OUTSPOKEN ACTIVIST'S CASE BECOMES TANGLED IN SECRETS

Last week, I asked a lawyer from a libertarian group for a copy of a
brief it had filed in a First Amendment case. Sounding frustrated and
incredulous, he said a federal appeals court had sealed the brief and
forbidden its distribution.

"It's a profound problem," said the lawyer, Paul M. Sherman, with the
Institute for Justice. "We want to bring attention to important First
Amendment issues but cannot share the brief that most forcefully
makes those arguments."

The brief was filed in support of Siobhan Reynolds, an activist who
thinks the government is too aggressive in prosecuting doctors who
prescribe pain medications.

The Institute for Justice does not represent Ms. Reynolds, and it is
not a party in the case. Its submission, made with a second
libertarian group, Reason Foundation, was an amici curiae -- or
friends of the court -- brief. It relied only on publicly available materials.

But it was sealed by the United States Court of Appeals for the 10th
Circuit, in Denver, citing grand jury secrecy rules. The court then
denied the groups' motion to unseal their own brief. That ruling
itself is sealed, too, but I have seen parts of it.

Among the reasons for keeping the brief secret, the court said, was
that the groups' goal "is clearly to discuss in public amici's
agenda." Well, yes.

The brief paints an unflattering picture of the United States
attorney's office in Kansas, which may have overreacted to Ms.
Reynolds's adamant public defense of two medical professionals,
Stephen J. Schneider and his wife, Linda K. Schneider, who were
indicted in 2007 for illegally distributing prescription painkillers
to patients who overdosed on them.

In 2008, Tanya J. Treadway, a federal prosecutor, asked the judge in
the Schneiders' case to prohibit Ms. Reynolds, who is not a lawyer
and had no formal role in the case, from making "extrajudicial
statements." In the vernacular, Ms. Treadway asked for a gag order.

Judge Monti L. Belot of Federal District Court in Wichita denied that
request, saying Ms. Treadway was seeking an unconstitutional prior
restraint on speech.

Then Ms. Treadway tried another tack. She issued a sprawling grand
jury subpoena to Ms. Reynolds.

It had almost 100 subparts and sought documents, e-mails, phone
records, checks, bank records, credit card receipts, photographs,
videos and "Facebook communications (including messages and wall
posts)" concerning contacts with dozens of people, including doctors
and lawyers, along with information about a billboard supporting the
Schneiders and a documentary film called, perhaps presciently, "The
Chilling Effect."

"It was a nuclear bomb of a subpoena," Ms. Reynolds said in an
interview from Santa Fe, N.M., where she lives. "I was viscerally
terrorized. I was genuinely physically frightened."

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms.
Reynolds smelled of prosecutorial payback. "As far as we can tell,"
he said, "she was targeted because of her outspoken criticism."

Ms. Treadway did not respond to a request for comment, and a
spokesman for her office declined to comment.

Ms. Reynolds, represented by the American Civil Liberties Union,
moved to quash the subpoena and lost. When she refused to comply with
the court's order, Judge Julie A. Robinson of Federal District Court
in Topeka imposed fines on Ms. Reynolds and her group, the Pain
Relief Network, of $200 each a day.

"By early January, I was completely destitute," Ms. Reynolds said.
"My organization was ruined, and so was I."

In secret proceedings, the 10th Circuit affirmed Judge Robinson's rulings.

After paying almost $40,000 and facing the possibility of jail time,
Ms. Reynolds folded, turning over thousands pages of documents. Judge
Robinson refused to refund the fines.

The case has now reached the Supreme Court, and the justices are
likely to decide next week whether to hear it. The publicly available
version of Ms. Reynolds's petition seeking review is studded with
blacked-out passages.

Grand jury secrecy often protects important interests, notably the
reputations of people under investigation. But Ms. Reynolds's lawyer,
Robert Corn-Revere of Davis Wright Tremaine in Washington, said the
usual rules had been turned upside down in this case.

"The grand jury was created to be a buffer between the government and
the people and to be a check on tyranny," Mr. Corn-Revere said. "The
problem in this case is that it was misused by a prosecutor to
silence a government critic and then to hide those actions in secret
proceedings."

Ms. Reynolds is in her way quite effective. She seems to have the
ability to drive the judicial system nuts.

When Judge Belot sentenced the Schneiders to 30 years in prison last
month, he digressed to take a swipe at Ms. Reynolds and her group,
though he did not get its name quite right.

Judge Belot said he hoped the prison sentences would "curtail or stop
the activities of the Bozo the Clown outfit known as the Pain Control
Network, a ship of fools if there ever was one." He added that the
group and its leaders were "stupid" and "deranged."

Ms. Reynolds said she could live with the insults. The grand jury
subpoena was another matter.

"We absolutely need voices speaking out," she said. "I'm afraid of
the chilling effect this will have on activism in general."