The extraordinary secrecy is far broader than necessary to protect the confidentiality of grand jury proceedings, extending even to a friend-of-the-court brief, based entirely on publicly available information, that was filed last December by the Institute for Justice and my employer, the Reason Foundation (which publishes Reason magazine). Furthermore, one of the main justifications for grand jury secrecy -- that it protects innocent people who are investigated but never charged -- does not apply in a case like this, where the target of the investigation wants transparency and the government is trying to hide what it's doing.
In a brief supporting Reynolds' Supreme Court petition, the Reporters Committee for Freedom of the Press questioned the 10th Circuit's decision to "order the complete sealing of a record in which the facts are already publicly known and the traditional grounds for secrecy carry no force." It also urged the Court to clarify the limits that the First Amendment imposes on grand jury subpoenas and the standards for distinguishing a "good faith" investigation from a vindictive campaign of intimidation.
"A strong case can be made that the government tried to silence Siobhan Reynolds' speech not because it suspected her of any criminal wrongdoing but because the prosecution found her troublesome," the group said. "The government should not be able to frighten citizens into refraining from exercising their First Amendment rights of expression, advocacy and association by threatening them with compulsory process -- at least not without first satisfying a heightened standard of scrutiny."
Reynolds, who resisted the subpoenas until contempt-of-court fines exhausted her resources and left her organization "in ruins," says "the Supreme Court has decided to participate in the establishment of secret courts that fleece and abuse dissenters at the whim of a disgruntled prosecutor." Such abuse of the grand jury process turns what is supposed to be a bulwark against arbitrary government power into an instrument of repression.
Jacob Sullum is a senior editor at Reason magazine. To find out more about Jacob Sullum and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate Web page at www.creators.com.