Errands of Suppression in the Dead of Night
By Alice Neff Lucan
(From May 2005 edition of the MDDC Press Association News)
The parties in the St. Mary’s Today lawsuit against various St. Mary’s County law enforcement officials have settled the case for $435,000, paid to plaintiff Ken Rossignol and his newspaper company. Though the settlement amount is a healthy sum, the significance of the settlement goes much further than the money.
One of the goals was to “hold on to” the U.S. Court of Appeals for the 4th Circuit decision in this case because that court said that the sheriff’s deputies, the sheriff himself, and the current St. Mary’s State’s Attorney Richard Fritz were acting “under color of law” when they absconded with Election Day editions of St. Mary’s Today in November 1998.
That edition of the newspaper reported two stories that Richard
Fritz and Sheriff Richard Voorhaar did not want published on Election Day. Fritz was elected to office; Voorhaar was re-elected. Whether the St. Mary’s Today stories would have made a difference in voters’ choices will never be known.
Apparently, based on advice from Richard Fritz, the deputies went to some trouble to make it appear that they were acting on their own time.
When they went out on the “newspaper caper” (overnight, November 3rd), most were off-duty, all were in civilian clothes (except for two guns sticking out from clothing), and they videotaped themselves paying for newspapers.
The 4th Circuit looked through their guise and wrote, for example, that the store clerks selling St. Mary’s Today knew perfectly well who the deputies were:
“One clerk testified that he sold the full supply of the paper to defendants because they were police officers, had a ‘real intimidating attitude,’ and made it ‘real apparent [that] they could make my life here a living hell.’
So much for “private conduct.”
The deputies had another advantage because of their law enforcement jobs.
They could be confident, the court said, that they would not be prosecuted for violating Maryland’s Newspaper Theft Law because their boss, Sheriff Voorhaar, approved of their actions, and indeed, had contributed his own funds to the buyout.
Otherwise, the court said, “defendants’ efforts to prevent St. Mary’s County readers from reading Rossignol’s newspaper put them in direct peril of criminal prosecution under Maryland law.”
It is odd that the deputies thought that paying for the newspaper would help at all. The law makes it a crime to take away newspapers with “the intent to prevent another from reading the newspapers.” Paying for the newspapers would have made no difference had the Maryland Attorney General, for example, made the decision to prosecute.
Most important, the court said the officers took these actions because of circumstances arising from their public employment.
“The actions here arose out of public, not personal, circumstances. 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.”
This is the view argued by The Baltimore Sun against Governor Ehrlich’s decision to exclude two of their journalists from interviews. The Sun’s case is on appeal to this same court.
The Rossignol decision ends with this: “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. If we were to sanction this conduct, we would point the way for other state officials to stifle public criticism of their policies and their performance. And we would leave particularly vulnerable this kind of paper in this kind of community. Alternative weeklies such as St. Mary’s Today may stir deep ire in the objects of their irreverence, but we can hardly say on that account that they play no useful part in the political dialogue. No doubt the public has formed over time its opinion of the paper’s responsibility and reputation. If defendants believed its attacks to be scurrilous, their remedy was either to undertake their own response or to initiate a defamation action. 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.”