WASHINGTON – A federal appeals court has ordered a new hearing for a St. Mary’s County newspaper publisher who sued the county sheriff’s office for violating his right to publish by trying to buy up all the copies of his paper.
A panel of the 4th U.S. Circuit Court of Appeals ruled in a published opinion Thursday that a district court judge was wrong to dismiss the suit because the sheriff’s deputies who bought the papers did so as private citizens. Their “censorial seizure” related to their official duties as deputies, even if they were not in uniform, the appeals court ruled.
“It was a textbook violation of his First Amendment rights, and we’re happy to see that the judge wrote a textbook opinion,” said Ashley Ivy Kissinger, an attorney representing Kenneth C. Rossignol, owner and publisher of St. Mary’s Today.
An attorney for the deputies and for St. Mary’s County State’s Attorney Richard Fritz and former Sheriff Richard Voorhaar, who are also named in the suit, said he would probably ask the full court to consider the panel’s ruling.
The case began on the night before Election Day in 1998, when St. Mary’s Today carried a front page article with the headline “Fritz guilty of rape.”
Fritz, who has since been elected to a second term as state’s attorney, had pleaded guilty with three others to “carnal knowledge of a 15-year old” in 1965, when he was 18. He was sentenced to probation and a suspended 18-month prison sentence.
The court said deputies bought at least 1,300 of the 3,700 copies of the newspaper at stores and boxes in the county, after first checking the legality of their plan with Fritz and getting $500 toward their plan from both Fritz and Voorhaar.
At issue is whether the officers acted as private citizens, or whether the store clerks sold their entire stocks to them because they were deputies. The district court ruled in a summary judgment in February 2002 that the officers had acted as private citizens.
But the three-judge panel of the circuit court decided that because the motivation for buying the papers was political, the officers had not acted as private citizens.
“We have no doubt that the seizure in this case was perpetrated under color of state law,” said the opinion written by Chief Judge J. Harvie Wilkinson III.
Many of the convenience store clerks who sold the papers knew the deputies, the court said. Security videos showed two officers carried weapons and one wore a police T-shirt. One of the clerks testified that he felt intimidated into selling the papers to the officers, Kissinger said.
“If they were trying to make sure people didn’t know they were cops, they didn’t do a good job,” she said.
Daniel Karp, attorney for Fritz and the officers, disputes the claim that the deputies used their positions to force the clerks to sell the newspapers against their will.
“That’s a pretty big error,” Karp said.
He also said there is no evidence that any of the clerks saw the guns.
Karp thinks the judges on the panel were offended by the deputies’ actions and allowed that to get in the way of their analysis of the facts.
“The opinion’s more a function of passion,” he said.
“We think they missed the boat, frankly,” Karp said. “They basically just accepted the plaintiff’s version of what occurred.”
Rossignol’s case has drawn the support of several press organizations, including the Reporters Committee for Freedom of the Press and the Maryland- Delaware-D.C. Press Association, among others.
Rossignol, who has operated the newspaper for 12 years, expressed thanks to his lawyers.
“When they protect our rights they protect the rights of my readers, who were not given the opportunity to read the paper and make up their own minds,” he said.