The case would ask the high court to decide when those exercising their First Amendment rights should be protected from overreaching subpoenas, and when a prosecutor’s demand for information could be found to be in less than “good faith.” It would also require the Supreme Court to address the issue of how much secrecy is tolerated in filings before the court.
Siobhan Reynolds, president of the Pain Relief Network, a national advocacy group that opposes the government’s crackdown on physicians who allegedly over-prescribe painkillers, asked the high court to shield her from a grand jury subpoena that she said punished her for her speech and other expressive activities she undertook on behalf of Dr. Stephen Schneider and his nurse-wife, Linda. The pair, which operated a Kansas medical practice specializing in pain management, was convicted in federal court in Wichita for conspiring to profit from the allegedly illegal prescription of painkillers.
The prosecution in the Schneiders’ case originally tried to issue a prior restraint against Reynolds. After the trial judge denied that motion, the government issued a sprawling grand jury subpoena that had nearly 100 subparts and “sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and ‘Facebook communications (including messages and wall posts)’ concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the [defendants] and a documentary film called … ‘The Chilling Effect,’ ” according to the Reporters Committee’s brief. Reynolds fought the subpoena and lost at the trial and appellate levels.
“Nearly 40 years ago in a case involving journalists, the U.S. Supreme Court said that while there was no First Amendment-based right to avoid subpoenas related to published news stories, journalists and others engaged in speech might be able to avoid testifying about their reporting if they can show the subpoena was not issued in good faith,” said Reporters Committee Executive Director Lucy A. Dalglish. “Since Branzburg v. Hayes was decided, the Supreme Court has never laid out the standard they would use in making that determination, so this case would be an outstanding opportunity for them to do so.”
The Reporters Committee argued that the Supreme Court should hear this case to determine what a prosecutor must show before he or she can issue a subpoena that targets activities protected by the First Amendment. Although the high court has emphasized that the government may issue a grand jury subpoena only pursuant to a “good faith” investigation, it has not indicated the specific type of conduct that would fall short of this standard, according to the brief.
“A number of factors in this case, including an unsuccessful attempt to obtain a prior restraint against the subject before subpoenaing her and an avoidance of the ‘good faith’ determination by reliance on the prosecutor’s mere assurances that she conducted the investigation ‘in good faith,’ are sufficient to raise concerns about whether the government met its burden,” the Reporters Committee’s brief said.
Also of concern in this case is the trial and appellate courts’ sealing of the entire case file, according to the brief. Such an across-the-board sealing conflicted with the precedent of other appellate courts, as well as the Supreme Court’s “established practice of deciding issues of constitutional importance in public.”
“The total secrecy mandated by the [appellate court] in the present case is at odds with this Court’s long history, and reflects an apparent misinterpretation of grand jury secrecy that must be addressed,” according to the brief.
The Supreme Court could make a decision about whether to hear the case by next week.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.