Sometimes people write me and ask why the hell I'm not writing about story X, because it's "right up your alley." Usually this means that story X is about free speech, or nanny statism, or police abuse, or (not infrequently) some species of mordantly self-involved douchebaggery that readers associate with me.
Sometimes the answer is that I'm too busy. Often the answer is that I can't think of an angle on the story that will allow me to say something about it that hasn't been said better already by smarter people, and I am not in the mood for a mere heh indeed-style link.
And sometimes the answer is that the story inspires a white-hot impotent fury that would leave me unable to write anything but a string of epithets.
The story of Siobhan Reynolds and the Pain Relief Network, and how they've been menaced, censored, and eventually shut down by Assistant United States Attorney Tanya Treadway, falls into the last two categories.
See, Jacob Sullum and Radley Balko have been reporting the living shit out of this story. I'm not going to improve on either of them. And the story makes me very, very angry. Not to mention very sad — sad that the judiciary has been an indifferent observer of (at best) or co-conspirator in (at worst) Tanya Treadway's censorious abuse of the justice system, not a check on it. This is a story that makes me sympathetic to the sentiment that what ails the justice system should be cured not with briefs or ballots but with short ropes and long drops.
Read Sullum and Balko yourself, and follow their links all the way back to their earliest writings on the subject.
You'll learn that Siobhan Reynolds is a vigorous critic of the government's failed, life-destroying, state-power-accreting, ruinously expensive War on Drugs. Specifically, she's a critic of the federal prosecution of doctor Stephen Schneider and his wife (and nurse), Linda, in Haysville, Kansas. The government said the Schneiders were illegally dealing pain pills to their patients, encouraging addiction and abuse. The Schneiders, and pain-relief advocates who support them, say the government is full of shit, and is preventing adequate treatment of chronic pain by applying blundering War-on-Drugs mentality. I'm not a doctor, or a drug addiction expert. I don't know who is right. But I used to be a prosecutor, and now I'm a defense lawyer, and I've worked one side or the other of the War on Drugs for sixteen years, and I am inclined to agree with others that the government is full of shit.
But it shouldn't matter whether critics of a prosecution are on the mark or off of it. Their right to criticize the government for such prosecutions should be above question. But, in reality, apparently it isn't. Assistant United States Attorney Tanya Treadway was enraged by the criticism of Siobhan Reynolds and her Pain Relief Network. Treadway took the astounding step of demanding that a court gag Reynolds and her organization, asserting that Reynolds had "a sycophantic or parasitic relationship" with the defendants Treadway was prosecuting, and that she was using the case "to further her own personal interests." To Treadway, speech ought not be free if the speaker is advancing a personal interest. That's an odd interpretation of the First Amendment, and not one that the judge was willing to accept.
Treadway was not deterred by the federal judiciary's minimal resistance to her efforts at censorship. Having failed to use one tool — a gag order — she resorted to the federal prosecutor's favorite tool: the grand jury.
Let me pause and offer you a dark confession. I miss the grand jury. When I want documents or evidence now as a criminal defense attorney, I have to ask the government for it, wait for them to laugh and refuse, and then run to court and try to convince a judge to order the government to abide by its obligations. As a civil litigant, I have to write long, complicated demands for documents and information, wait a month for a response, get a response refusing most of what I asked for, engage in a letter-writing campaign, and eventually go to court seeking an order making the other side give me the documents, often months later. Oh, to use the grand jury again! As a federal prosecutor, I could just issue grand jury subpoenas. I could refuse extensions at my whim. I could ask for whatever the hell I wanted based on the most remote suspicion that it might be relevant to a federal investigation. I could demand compliance with confidence, knowing that it is extraordinarily rare for a federal court to grant a target's motion to quash or limit a subpoena. And I could do all of this under the ridiculous fiction that I was acting on behalf of a grand jury so long as, occasionally, I stepped into the grand jury room and had a federal agent testify briefly that "Hey, we've got an investigation going into [vague subject], we issued subpoenas in your name, we got these documents, the investigation continues." 99% of the time, the grand jurors wouldn't look up from their newspapers, hoping they'd get let out early that day. Were the grand jurors a check on government abuse of the subpoena power? Don't make me laugh until I throw up.
Tanya Treadway knows all of that. So, thwarted in her demand for a gag order to silence the critics of her little battle in the Great War on Drugs, she turned to the more reliable weapon of the grand jury.
After Treadway failed to obtain a gag order silencing Reynolds, she instigated a grand jury investigation of her for obstruction of justice, obtaining subpoenas that demanded material related to PRN's activism, including its finances, media strategy, and organizational techniques. Among other things, the subpoenas covered communications with the Schneiders, their lawyers, and their patients; a PRN video about the conflict between drug control and pain control; and records regarding a PRN-sponsored billboard in Wichita that proclaimed "Dr. Schneider never killed anyone."
This time, the judiciary offered no resistance at all to Treadway's censorious ambitions. Reynolds' attempts to quash the subpoenas as overbroad, harassing, or in violation of her First Amendment rights failed in the trial court and the circuit. It would be nice to know more about all of the arguments employed to justify a ruinous and expensive grand jury investigation of an American citizen for criticizing the government, wouldn't it? It would be nice, but it won't be easy, because the trial and appellate courts ordered most of the briefs and decisions sealed. They did so because grand jury proceedings are supposed to be secret — to protect the privacy of the witnesses and the suspects being investigated. In other words, an effort to vindicate Siobhan Reynold's free speech rights must be kept secret by the courts for her own good, and the good of her accusers. The courts even ordered the friend of the court briefs by free speech advocates to be sealed, apparently in part on the grounds that those groups are trying to publicize their arguments. As if that's a bad thing, a wrong thing.
In short, after the denial of Treadway's initial attempt at censorship, the federal judicial has actively assisted her campaign to silence Siobhan Reynolds and the Pain Relief Network by censoring open debate about the methods used to investigate her. The judiciary has demonstrated very little recognition of the First Amendment issues involved, and in fact has demonstrated open hostility to her advocacy. Here's what United States District Judge Monti Belot said when he sentenced the Schneiders to long sentences:
There is one aspect of deterrence I hope this case achieves and that is to curtail or stop the activities of the Bozo the Clown outfit
known as the Pain Control Network, a ship of fools if there ever was one. A ship of fools is an allegory in Western literature which depicts a ship with deranged passengers without a pilot who are seemingly ignorant of their own direction. When persons leading or involved in an organization such as the Pain Control Network are so stupid that they support what occurred in this case, they demean the efforts of legitimate medical providers to help persons suffering from chronic pain.
Siobhan Reynolds and the Pain Control Network may be passengers on a ship of fools. They may be advocating foolish and reckless distribution of dangerous drugs instead of sensible pain management. But I don't give a shit, and neither should any decent free citizen who cares about limited government and freedom of expression over government thuggery and the state enforcement of the sentiments behind the War on Drugs. Judge Belot's statement — that one reason to sentence doctors to long prison terms is not just to deter drug distribution, but to deter critics of the government's methods in the War on Drugs, however deluded — is sickening and nothing short of evil. The government has no legitimate interest in using force to deter unpopular viewpoints, particularly criticisms of the government itself.
This is not a happy story. This is not a story in which American values, American strengths, American love of justice prevails. This is a story where the bad guys win. This is a story where censorship and thuggery — where those who think the government should be able to control criticism — triumph.
From Reynolds' Facebook entry:
[V]ery sad to be announcing the closure of Pain Relief Network. The government and the federal judiciary have succeeded in silencing the lone organized effort on behalf of tens of millions of American, vets, children, cancer patients, people born with congenital painful conditions who cannot get their pain controlled. Power wins. Suffering humanity, decency itself, and the rule of law lose.
From the Pain Relief Network:
The Members of the Board of Trustees and I have decided to shut down PRN as an activist organization because pressure from the US Department of Justice has made it impossible for us to function. I have fought back against the attack on me and PRN but have received no redress in the federal courts; so, the board and I have concluded that we simply cannot continue.
The Tanya Treadways and Monti Belots of the nation will continue to triumph because not enough of us give a shit, and because not enough of us do something about it. What can you do? Write about it. Spread the word. Donate to organizations that defend free speech. Vote for candidates who are wiling to question statism — whether it comes in the form of the nanny state or the War on Drugs. When you get called for jury duty, speak out and tell them during voir dire why you don't trust the prosecution or the judiciary. Call out, revile, decry the Treadways. Push back, or someday you might get a grand jury subpoena for vigorous criticism of the government. Push back, because government behavior like this makes it harder and harder to advocate for change through the rule of law and the political process — because such abuses make it harder and harder to answer the eliminationist question "why shouldn't this end with Tanya Treadway and Monti Belot and their ilk enjoying a brief, blindfolded appearance in front of a pock-marked wall?"
Last 5 posts by Ken White
- Lawsplainer: The Ninth Circuit and Compelled Speech About Abortion - October 17th, 2016
- Thanks and Congrats To Dhillon Law Group For Important Pro-Bono Anti-SLAPP Win - October 10th, 2016
- Hillary Clinton, the Sixth Amendment, and Legal Ethics - October 10th, 2016
- FIRE Attacks Northern Michigan University's Shocking, Wanton Rule Against Students Sharing Suicidal Thoughts - September 22nd, 2016
- Kindly Shut The E-Fuck Up - September 14th, 2016