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The big buy: a new way to censor newspapers

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

02.09.03

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It was the kind of day newspaper publishers dream of, with buyers all over town snapping up copies.

The downside for St. Mary’s Today: Sheriff’s deputies were doing all the buying.

At the heart of a fascinating Maryland case making its way through federal courts is the question of whether public officials can limit critical press coverage by buying up all available copies.

The case began on Election Day in 1998. Anticipating that the newspaper would criticize the sheriff’s department and a state’s attorney candidate who was friendly to the department, a group of deputies hatched a plan to purchase all available copies before people could see them.

Their hunch about negative coverage was right. The feisty newspaper, which had long been critical of the department, carried a bold headline and a story accurately reporting that, as a young man in 1965, the candidate and three other men had been convicted of carnal knowledge of a 15-year-old girl. Another article focused on an Equal Employment Opportunity Commission complaint filed against the sheriff’s department.

On the night before the election, six deputies traveled throughout the county, buying newspapers in large quantities. Newspaper publisher Kenneth Rossignol’s efforts to restock stores were to no avail. The deputies doubled back and bought up the additional copies.

The deputies did not steal the newspapers. In fact, they carefully documented their bulk purchases by videotaping themselves.

St. Mary’s Today sued the deputies, charging that they had violated federal civil rights laws by encroaching on First, Fourth and 14th Amendment rights while acting in the capacity of government officials.

One federal court dismissed the case, concluding that the deputies were acting as private citizens and not as government employees.

Three weeks ago, the 4th U.S Circuit Court of Appeals reached a different conclusion, finding that the deputies acted under the “color of law” and that the case could proceed in federal court.

The appellate court found plenty of evidence that this attempt to restrain the press qualified as government action. After all, convenience store clerks knew they were dealing with law enforcement officers. Though not in uniform, two carried their weapons and one wore a Fraternal Order of Police sweatshirt. Further, Richard Voorhaar, then sheriff of the county, approved the plan in advance and contributed $500 to the effort.

The court observed that store clerks would have been too intimidated to tell officers they could not buy all the newspapers. The court quoted a clerk who told deputies, “Y’all can’t do that because other people want to read them,” but relented after the deputies “made it real apparent … if I didn’t sell it to them then they could make my life here a living hell.”

The sheriff and his deputies must have believed that they could stay out of trouble by paying for the newspapers, but the appellate court said the real issue was whether public officials were preventing residents from obtaining constitutionally protected news and information.

“In suppressing criticism of their official conduct and fitness for office on the very day that voters were heading to the polls, [the deputies] did more than compromise some attenuated or penumbral First Amendment right; they struck at its heart,” wrote Chief Judge J. Harvie Wilkinson.

This case will now go to a lower court for further proceedings, but the message stands: Public officials wounded by public criticism can’t make an end-run around the Constitution.

From the beginning, the First Amendment has served as an important check on government. Freedom of speech and press remain our best guarantees against the abuse of power.

As this decision makes clear, government officials are free to disagree with or debate the merits of local news coverage, but they can’t limit the distribution of ideas — even if they’re willing to pay 75 cents a copy.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Appeals court reverses decision in newspaper-seizure case
Allowing sheriff's deputies to buy up large quantities of newspaper because it criticized an official is unacceptable, 4th Circuit says.  01.21.03

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