Gagging criminal defendants

We’ve written about prior restraints before on The Free For All, in the context of a court order that prevented a Boston TV station from broadcasting the results of autopsies of firefighters killed in the line of duty. As we wrote last fall, prior restraints on speech, and especially these kinds of court injunctions limiting publication of something before it’s actually published, are the most drastic form of censorship and are strongly disfavored by the courts – or at least by courts that are reasonably versed in constitutional law.

Because these prior restraints are so generally frowned-upon, it was with some surprise that I read that the Department of Justice has asked a federal judge to silence Kansas physician Stephen Schneider, and his wife Linda, who had attempted to speak out about the highly questionable prosecution against them. According to the Fort Mill Times, the Schneiders are charged with conspiracy, fraud, and a variety of other allegations related to their clinic, which prosecutors are calling a “pill mill.” Even more remarkably, the DOJ, clearly intent on keeping its prosecution – and persecution – of the Schneiders as quiet as possible, is also seeking to hush up the outspoken Siobhan Reynolds, the founder and head of the Pain Relief Network, who has been heroically battling federal drug warriors for years. Reynolds had come to the defense of the Schneiders as part of her larger push against the devastating terror campaign the DOJ has been conducting for decades against doctors who prescribe pain medications to patients who suffer from serious, chronic pain. The Schneiders apparently spoke with the media about their case and about the flimsiness of the allegations against them, which in turn provoked the DOJ into seeking the gag order against them. It appears that the DOJ, unable to withstand public scrutiny of its shameful war on physicians who help people deal with chronic pain, is turning its guns on those who vociferously oppose the reactionary anti-drug agenda of the DOJ – and accordingly dare to inform fellow citizens about the travesty of these prosecutions.

Though courts have the power, under legal ethical rules, to tell lawyers they can’t talk about certain elements of ongoing cases to the media – known as the pretrial publicity rule – presumably in order to avoid influencing the minds of potential members of the jury pool, it’s unclear how they can tell defendants, let alone third party observers like Reynolds (who isn’t a party to the case) what they can and cannot say. Typically, litigants, the press, observers and other commentators cannot be restrained by these kinds of injunctions. I doubt that the judge will be dumb – and reckless – enough to grant a gag order that almost certainly would be reversed on appeal. However, judges, who sometimes view themselves as part of the government “anti-drug” team rather than as neutral arbiters whose job it is to enforce the law, have done stranger things.

Indeed, for these reasons, I would predict that the DOJ would fail in seeking an injunction against anyone other than the lawyers in the case. However, this bizarre strategy by the DOJ does give us some idea of how far out of line the drug war has veered, such that the prosecutors are trying to keep the public from knowing that if their physician is reluctant to treat chronic severe pain, the reason probably lies in Washington.

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