By Kirsten Murphy, Silha Fellow
On Jan. 16, 2003 a three-judge panel of the U.S. Circuit Court of Appeals (4th Circuit) held in Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), that local law enforcement officials in Maryland may be sued for violating the First Amendment rights of a St. Mary's County, Md. newspaper by purchasing large quantities of the paper with the intent of squelching critical commentary.
The decision reversed a Maryland federal District Court's summary judgment order, which dismissed the federal civil rights and state law claims against the public officials, holding that they could not be held liable because they were not acting "under color of law."
The case arose in November 1998, when then-incumbent sheriff Richard J. Voorhaar and seven sheriff's deputies conspired to buy all the copies of the alternative weekly newspaper St. Mary's Today, throughout St. Mary's County, on the eve of Election Day. Because of the weekly's frequent biting criticism of the sheriff's department, the deputies anticipated negative coverage of the department and the department's chosen candidates.
The paper's headline that day revealed that a department-supported candidate for State's Attorney, Richard Fritz, had pled guilty to a charge of carnal knowledge of a 15-year old girl in 1965. Another article reported on the handling of an Equal Employment Opportunity Commission complaint filed against the sheriff's department.
The deputies set out in the early morning on Election Day to round up copies of the paper from stores and newsboxes. Although they were off-duty, two carried visible service revolvers and one wore a Fraternal Order of Police sweatshirt. The deputies bought at least 1,300 copies of the 2,600 printed and delivered to stores.
The sheriffs paid for all the newspapers, carefully videotaping their purchases in an effort to avoid legal trouble. But in November 1999, St. Mary's Today publisher Kenneth Rossignol sued the deputies, St. Mary's County and the sheriff's office for violations of First, Fourth and Fourteenth Amendment rights, as well as Maryland State law.
After the defendants prevailed on their summary judgment motion, Rossignol appealed to the Fourth Circuit. The appellate court agreed with the newspaper, reversing the lower court and holding that the deputies acted under "color of law," which is a requirement to succeed in a lawsuit against public officials under 42 U.S.C. section 1983, the federal Civil Rights Statute.
The deputies may have been off duty, wrote Chief Judge J. Harvie Wilkinson, but their conduct had a "sufficiently close nexus" with the State, because they sought to prevent criticism of themselves in their official capacity. "Where the sole intention of a public official is to suppress speech critical of his conduct of official duties or fitness for public office, his actions are more fairly attributable to the state," said Wilkinson.
The panel found that because some deputies visibly carried firearms, and many of the store clerks where the deputies purchased all available copies knew that they were county officials, the evidence indicated that the deputies intimidated some of the clerks. One clerk testified that the deputies "made it real apparent [that] they could make my life a living hell" if he didn't sell them the papers. The panel also found that sheriff Richard Voorhaar knew of the plan and contributed $500 to help defray purchasing costs.
Significantly, the deputies' actions deprived the public of access to a news publication. This is exactly the type of surreptitious activity the First Amendment is meant to prevent, the court concluded. Wilkinson chastised the deputies: "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. . . . 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." On Jan. 28, 2003, the defendants appealed the decision to the entire Fourth Circuit Court of Appeals.