An outspoken pain relief advocate has asked the U.S. Supreme Court to shield her from a grand jury subpoena that threatens her First Amendment right to criticize the government, according to a recently unsealed but still redacted petition in a case that also has implications for journalists called before grand juries.
Siobhan Reynolds, president of the Pain Relief Network, a national advocacy group that opposes the government’s crackdown on physicians who allegedly overprescribe painkillers, was subpoenaed as part of an ongoing grand jury investigation into Dr. Stephen Schneider and his nurse-wife, Linda, who operated a Kansas medical practice specializing in pain management, according to the American Civil Liberties Union, which once represented Reynolds in her legal battle to quash the subpoenas.
Although the high court denied The Reporters Committee for Freedom of the Press’ motion to intervene and gain public access to the filings earlier this week, the court yesterday released a redacted version of Reynolds’ request for review.
Reynolds’ motion states that “this case presents a First Amendment issue of critical importance” because it, among other things, addresses what standard applies when a government subpoena seeks information that is constitutionally protected.
According to the ACLU, the subpoenas sought “all personal and organizational communications on any subject with any former employees or patients of the Schneider Medical Clinic or with any of dozens of named individuals, including members of the Schneider family and members of the Schneiders’ legal and medical defense team, as well as a record of all Reynolds’ phone calls for the past seventeen months.”
Reynolds and her organization were investigated because of their public support for the Schneiders, the prosecution of whom she has condemned, the ACLU added.
Although the lower court records are sealed, Reynolds told The Associated Press in 2009 that she planned to fight the subpoenas in federal district court in Kansas and would appeal if she lost.
Although the Supreme Court has previously addressed the First Amendment implications of grand jury subpoenas in a variety of contexts, including when they target journalists, it has never weighed in on what the government must show when it wants to subpoena expressive materials like the advocacy video Reynolds made about pain management and the government’s prosecution of physicians.
In the 1972 landmark case Branzburg v. Hayes, the Supreme Court, in refusing to hold that the First Amendment protects journalists from testifying before grand juries, did note that “news gathering is not without its First Amendment protection” and, thus, grand jury investigations that implicate the First Amendment must be conducted “in good faith.” However, the Supreme Court has never defined what “good faith” means, Reynolds’ motion states.
“The government’s bare assurances that an investigation is being conducted in good faith are simply insufficient to address the questions raised by the underlying facts in this case,” it states.
“Branzburg and those cases addressed whether reporters have a constitutional privilege not to testify before a grand jury, but this case asks what level of scrutiny the courts should apply to subpoenas that seek information that may be protected by the First Amendment,” said Bob Corn-Revere, the Washington, D.C., media lawyer representing Reynolds at the high court.
Also of particular significance to journalists is Reynolds’ request that the court hear her case, In re Grand Jury Proceedings (Siobhan Reynolds and Pain Relief Network Alliance Inc.), and rule that judicial authority to seal cases from public viewing must be limited.
“Such tight restrictions on public information in the name of grand jury secrecy is a perversion of an institution that was designed ‘as a kind of buffer or referee between the Government and the people,” the motion states, quoting from an earlier Supreme Court case.
“If the grand jury proceeding can be used in a way that infringes freedom, that undermines its purpose,” Corn-Revere added.
The pleadings contain “secret grand-jury material,” acting Solicitor General Neal Kumar Katyal wrote. “It includes, for example, the names of individuals connected with a grand-jury investigation. It also includes statements by the government to the district court about the nature and targets of a grand-jury investigation.”