Court: deputies cannot buy papers to thwart criticism

MARYLAND ‘ The U.S. Court of Appeals for the Fourth Circuit ruled in January that off-duty sheriff’s deputies violated the Constitution when they purchased nearly all available copies of the St. Mary’s Today Election Day edition in 1998. This case could have far-reaching implications for student journalists, who often find themselves at the mercy of public officials seeking to stifle criticism.

The three-judge panel ruled the deputies acted improperly by attempting to prevent the public from reading critical coverage of the sheriff’s department and a state’s attorney candidate.

‘In suppressing criticism of their official conduct and fitness for office on the very day that voters were heading to the polls, defendants did more than compromise some attenuated or penumbral First Amendment right; they struck it at its heart,’ wrote Chief Judge J. Harvie Wilkinson.

In November 1998, local deputies learned that St. Mary’s Today, a community newspaper for St. Mary’s County, planned to run a critical front-page story on Election Day. The article accurately reported that a state’s attorney candidate, who was a friend of the sheriff’s department, had been convicted in 1965 of carnal knowledge with a 15-year-old girl. Another article focused on an Equal Employment Opportunity Commission complaint filed against the sheriff’s department.

In an effort to silence the negative coverage, six deputies decided to buy all copies of that day’s edition from stores throughout the county. The off-duty officers, wearing plain clothes, crossed the county, doubling back when publisher Kenneth Rossignol attempted to restock stores. All of the papers were purchased, not stolen, and the deputies videotaped themselves going into stores and paying for them.

Rossignol sued the deputies, claiming they had violated his paper’s First Amendment rights by acting in their roles as government officials.

The appellate court agreed, ruling that they had acted under the ‘color of law’ because store clerks and local residents recognized the deputies.

‘The fact that these law enforcement officers acted after hours and after they had taken off their badges cannot immunize their efforts to shield themselves from adverse comment and to stifle public scrutiny of their performance,’ wrote the court.

Daniel Karp, attorney for the deputies, said the judges erred in reversing a lower court’s decision that ruled the deputies acted as private citizens. Karp has filed an appeal on behalf of the deputies.

‘I don’t know that the deputies exercised the best judgment in doing this, but they have First Amendment rights, too,’ Karp said. ‘If a product is for sale, they can buy it. If they don’t like the paper and wish to protest it by buying it up, they have a First Amendment right to do it just as much as Mr. Rossignol has a First Amendment right to publish.’

But the court said that although the deputies purchased the papers, they still infringed on the public’s ability to receive that information.

Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003)

According to a 2000 study by the Harvard School of Public Health of more than 700 colleges and universities, roughly 51 percent of schools reported prohibiting advertisements for off-campus bars or clubs in campus newspapers or on bulletin boards.

Public schools were less likely to limit advertising, while schools in the Northeast and those with religious affiliations were more likely to do so.

Because of First Amendment protections for student journalists, no court has ever allowed a public school to enforce restrictions on alcohol advertising.

Some student publications, including the Spectrum at North Dakota State University, have instituted their own policies regarding the types of alcohol ads they will run. The Spectrum staff chose to limit advertising they felt encouraged binge drinking.