Censorship at 75 Cents a Copy
Deputies who bought up papers to suppress critical stories may have violated the First Amendment.
By Jane Kirtley
Some sheriff's deputies in St. Mary's County, Maryland, were as steamed as the region's famous blue crabs.
Jane Kirtley (firstname.lastname@example.org) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
The November 1998 election was approaching. Their favored candidates, incumbent Sheriff Richard Voorhaar and lawyer Richard Fritz, running for state's attorney, were on the ballot.
But the problem was that the local weekly newspaper, St. Mary's Today, had a long history of criticizing county officials in general and law enforcement personnel in particular. The newspaper's brand of journalism was robust, to say the least. It had called one of the deputies a "drunk," another a "child abuser" and a third a "shoeshine boy."
The deputies didn't take kindly to this sort of abuse. According to court documents, they claimed that the paper was "unsavory" and published "outright lies." What really worried them, though, was that St. Mary's Today was due to publish on Election Day, and the deputies anticipated the paper would take potshots at Voorhaar and Fritz without giving them an opportunity to defend themselves.
So, as told in court records, the deputies cooked up a scheme to "protest [their] disagreement" with St. Mary's Today Publisher Kenneth Rossignol's "irresponsible journalism." They agreed to buy as many copies of the newspaper as they could from stores and vending machines before citizens could purchase them. They even planned to stage a "bonfire party" afterward. That ought to "piss off" Rossignol, they figured.
The deputies checked with Voorhaar and Fritz, both of whom approved the plan and kicked in some money to support the enterprise. Fritz advised them that it might be a good idea to get receipts to prove that they had bought the papers, not stolen them.
On election eve, six deputies set out on their mission. They were off duty, driving personal cars, and out of uniform. But two of them carried service revolvers. One wore a Fraternal Order of Police sweatshirt. And they were well known to the clerks in the convenience stores who routinely gave them free coffee and soft drinks.
When the deputies asked to buy all of one store's newspapers, a clerk later testified that they made it "real apparent [that] they could make my life here a living hell" if he declined to sell them.
In a few hours, the deputies visited 40 stores and 40 newsboxes, cadging at least 1,300 copies of St. Mary's Today, which has a circulation of 5,300. One witness later claimed he could not find "any papers anywhere in the county."
And sure enough, as the deputies had expected, the paper carried a front-page headline declaring "Fritz Guilty of Rape," referring to the candidate's guilty plea to a charge of carnal knowledge of a 15-year-old more than 30 years earlier, along with a story about a complaint filed against Voorhaar over his handling of a sexual harassment claim.
Rossignol filed a federal civil rights suit a year later, claiming that the officials had violated the First, Fourth and 14th Amendments, as well as state law. A federal district judge threw out the suit, finding that the deputies had not acted "under color of state law" when they bought the papers, but as private citizens. And because no "police action" occurred, Fritz and Voorhaar got off, too.
The 4th U.S. Circuit Court of Appeals saw it differently. In a unanimous opinion by Chief Judge J. Harvie Wilkinson, a three-judge panel ruled in January that the deputies' conduct amounted to a "systematic, carefully organized plan to suppress the distribution of St. Mary's Today" because they disagreed with its viewpoint, and to "retaliate against those who questioned their fitness for public office." That's exactly the "kind of suppression of political criticism that the First Amendment was intended to prohibit," Wilkinson observed.
Just because the deputies were acting outside their normal working hours didn't mean they weren't using the power of their office to carry out their plan, the court found. Like law enforcement officials who conspired with Ku Klux Klan members to intimidate former slaves, "the conduct here...cannot be absolved by the simple expedient of removing the badge," Wilkinson wrote.
If the deputies disagree with what St. Mary's Today had to say, they are free to denounce the paper, Wilkinson suggested. They can even sue for libel. But as he concluded, "to summon the organized force of the sheriff's office to the cause of censorship" "belongs to a society much different and more oppressive than our own." One where the government, not the citizen, decides what is the truth and what are "outright lies."###