Sheriffs rounded up copies to squelch negative story

At the request of Alice Neff Lucan, AAN’s legal hotline attorney, the association has joined an amicus curae (“friend of the court”) brief that will be filed in the U.S. Fourth Circuit Court of Appeals. The case involves a scrappy Maryland weekly that ran afoul of local law enforcement in the heat of an election.

“The newspaper has a reputation as one that freely criticizes public officials, especially law enforcement agencies,” Lucan says. “It is, in a word, an “obnoxious speaker,” one in special need of First Amendment protection.”

On election eve in 1998, word began to spread that St. Mary’s TODAY would publish an unfavorable story the next day about State’s Attorney candidate Richard Fritz.

“Admittedly frustrated by their inability to stop St. Mary’s TODAY from publishing critical stories, several sheriff’s deputies set up a plan to pick up all of the election day edition of St. Mary’s TODAY from news racks and retail stores,” Lucan says. “They got approval from the Sheriff and legal advice from Richard Fritz — essentially guaranteeing themselves that they would not be prosecuted for this — and picked up and paid for most of the 1,100 single-copy circulation.”

The off-duty and out-of-uniform deputies were joined by a few sympathetic citizens. A lower court dismissed the case, ruling it was not a First Amendment violation, but rather just a “prank” by private citizens not taken “under color of state law.”

Lucan argues that, “This was an operation planned and carried out by sheriff’s deputies, doing something ‘off-duty’ they would not be permitted to do as deputies.”

“Our position, of course, is that the Sheriff, the Department and the sheriff’s deputies conspired to deprive the publisher of his First Amendment rights to distribute and the readers’ right to receive the information,” Lucan says. “On duty or off, these actions took place because of the newspaper’s criticisms of the Sheriff’s Department. The actions were a vendetta against the newspaper for this speech, and the Sheriff himself gave his ‘blessing’ in the form of a $500 contribution to buy the papers.”

Lucan says the trial court’s “color of state law” finding “is very wooden and technical, almost measuring the actions of the deputies by the time of day — were they on shift or not — carefully avoiding the impact and purport of what the deputies intended to do and did do.”

The appeal to the Fourth Circuit asks that the case be sent back for trial. The amicus brief, which has also been joined by the Reporters Committee for Freedom of the Press, is due to be filed next week.

Lucan says AAN is well-served to join the brief. “[AAN] members are frequently critical of governments, especially law enforcement,” she says.

Lucan has provided advice on the matter to St. Mary’s TODAY, and Lee Levine, Seth Berlin and Ashley Kissinger at Levine, Sullivan & Koch have represented the newspaper since the case went to Federal court. Jenner & Block has agreed to prepare the amicus brief on a pro bono basis.