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Sheriff's deputies violated the First Amendment when they removed an entire edition of a newspaper from circulation by buying most of the copies for sale, a federal appeals court recently held in an opinion that includes particularly strong language in support of press freedom. (Rossignol v. Voorhaar, Jan. 16, 2003).
St. Mary's Today is a small newspaper in southern Maryland that often had published stories critical of the sheriff and other local government officials. Anticipating that the Election Day issue would criticize the state's attorney candidate supported by the sheriff, off-duty and out-of-uniform deputies bought up most copies of the issue available in local stores and newspaper boxes before they could be sold to the public. The sheriff and the candidate backed the plan and gave the deputies money to buy the newspapers.
The edition taken out of circulation reported that the candidate had been convicted of rape in 1965 and that the sheriff had assigned a deputy who complained of sexual harassment to work directly under the accused harasser.
The newspaper's publisher sued the sheriff, his deputies and the candidate for violating his civil rights. In this type of lawsuit, only acts taken in the name of the government can result in liability. The trial court held that the mass purchase by off-duty deputies who were out of uniform was not an act that could be attributed to the government. The court dismissed the case.
The appeals court, however, reversed. It condemned the seizure in unusually blunt language, declaring that it "clearly contravened the most elemental tenets of the First Amendment." Suppressing a newspaper because of its viewpoint "by itself was sufficient to violate the Constitution," and censoring criticism of official conduct and fitness for office "struck at the very heart" of the First Amendment, the court said.
"The incident in this case may have taken place in America, but it belongs to a society much different and more oppressive than our own," the court concluded. If the defendants believed that the attacks were unfair or untrue, "their remedy was either to undertake their own response or to initiate a defamation action," the court stated. "It was not for law enforcement to summon the organized force of the sheriff's office to the cause of censorship and dispatch deputies on the errands of suppression in the dead of night."
Addressing the legal basis of the lower court's decision, the appeals court held that even though the deputies were off-duty and not in uniform when they bought the newspapers, the mass purchase qualified as a "state action." The court reasoned that this act was not merely a private action because the store employees recognized the buyers as law-enforcement officers who later could harass them if they refused to sell all of their copies to the deputies (two of whom wore their guns in plain view), and because the reason for the mass purchase was to suppress criticism of public officials.
Although the circumstances of this case are uncommon, several mass seizures of free newspapers have occurred in the last few years. This strongly worded opinion should give pause to public officials who might seek to censor criticism through misuse of the authority vested by their office.