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Sheriff wants case over election-day newspapers reheard

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Sheriff wants case over election-day newspapers reheard

  • The appellate court found sheriff deputies to be acting “under color of state law” when they bought out copies of St. Mary’s Today critical of the sheriff and other local candidates.

Feb. 3, 2003 — When off-duty sheriff’s deputies dressed in plain clothes set out into the night in St. Mary’s County, Md. to purchase virtually all copies of a newspaper printed for election day in November 1998, their actions were sufficiently linked to their official office to warrant a claim under federal law for violation of First Amendment rights, a three-judge panel of the U.S. Court of Appeals in Richmond (4th Cir.) ruled. Arguing that this decision ignored controlling law, the sheriff, his deputies and a candidate for public office involved in the mass purchase of St. Mary’s Today petitioned the entire court of appeals to rehear the case on Jan. 28.

Petitioners admitted that the mass purchase was retaliation for the newspaper’s negative coverage of the sheriff and other local candidates. “Where the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state,” the panel wrote.

In their brief, petitioners argued that the Fourth Circuit panel should not have addressed whether their conduct violated the First Amendment prior to or as a part of its determination that state action was present. The panel should have simply determined whether petitioners acted “under color of state law” and left the constitutional issues to be resolved by the lower court, they argued.

The petitioners’ brief also criticized the panel for using the wrong legal standard to determine whether state action was present. The panel should have required a showing that petitioners abused their state authority before finding petitioners acted “under color of law.” In addition, petitioners argued that the panel should not have examined their motive to censor the newspaper in its analysis of whether state action was present and that the panel overlooked facts favorable to petitioners. All of these errors by the panel required a rehearing of the case, petitioners argued.

(Rossignol v. Voorhaar; Media Counsel: Ashley Kissinger, Levine, Sullivan & Koch, Washington, D.C.) ST

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