Drug Control Becomes Speech Control

By Jacob Sullum (Archive) · Wednesday, September 9, 2009

When the government accuses a doctor of running a "pill mill," prosecutors portray every aspect of his practice in a sinister light. Prescribing painkillers becomes drug trafficking, applying for insurance reimbursement becomes fraud, making bank deposits becomes money laundering and working with people at the office becomes conspiracy.

When Siobhan Reynolds thinks a doctor has been unfairly targeted for such a prosecution, she tries to counter the official narrative by highlighting the patients he has helped and dramatizing the conflict between drug control and pain control. But now the government has turned its reinterpretive powers on Reynolds, portraying the pain treatment activist's advocacy as obstruction of justice and thereby threatening the freedom of anyone who dares to suggest there is more than one side to a criminal case.

In December 2007, the U.S. Attorney's Office in Wichita, Kansas, unveiled a 34-count indictment against Haysville physician Stephen Schneider and his wife Linda, a nurse who worked in his clinic. It charged Schneider with "illegally distributing prescription drugs to his patients, directly causing the deaths of at least four of them."

Convinced the Schneiders were innocent, Reynolds and her group, the Pain Relief Network (PRN), publicly disputed the charges. In January 2008, PRN announced a lawsuit challenging the constitutionality of using the federal Controlled Substances Act to regulate the practice of medicine, traditionally a state function. PRN also tried to stop the state medical board from suspending Schneider's license, arguing that doing so would harm his patients.

Although neither of those efforts succeeded in a court of law, they began to have an impact in the court of public opinion. Press coverage of the case went beyond perfunctory quotes from defense attorneys to include the perspectives of chronic pain patients who were grateful to Schneider for making their lives livable and anxious about their prospects of obtaining adequate treatment from doctors wary of legal trouble.

"He fought for me, and it is time now that I fight for him," a woman suffering from spinal deterioration told The Associated Press. "He doesn't deserve this. This is like a nightmare for me." Hundreds of patients signed a petition supporting Schneider, an effort launched under a hand-lettered sign reading, "Don't Tread on Me Tanya."

The Tanya in question, Assistant U.S. Attorney Tanya Treadway, evidently was annoyed by the unusually balanced press coverage Reynolds helped arrange. In April 2008, Treadway took the extraordinary step of seeking a court order prohibiting Reynolds, who was neither a defendant nor a lawyer in the Schneiders' case, from talking about it. The prosecutor claimed Reynolds had "a sycophantic or parasitic relationship with the defendants," whom she was using "to further her own personal interests."

Nine months after a federal judge rejected Treadway's attempt to gag Reynolds, the activist learned she was the subject of a grand jury investigation into possible obstruction of justice. Reynolds and PRN received subpoenas demanding their communications with dozens of people, including relatives of the Schneiders and members of their defense team. Tellingly, the material sought includes correspondence related to a PRN-commissioned billboard in Wichita proclaiming, "Dr. Schneider never killed anyone."

Scott Michelman, an attorney with the American Civil Liberties Union who is representing Reynolds, says the interest in the billboard "confirms that this so-called investigation is about Siobhan Reynolds' speech. ... The most plausible explanation here is that the prosecutor is trying to shut Siobhan up."

Last week, a federal judge rejected Reynolds' motion to quash the subpoenas on First Amendment grounds and imposed $200-a-day fines on her and PRN for refusing to comply. Reynolds plans to appeal. "This is a direct attempt to intimidate me and silence me," she told AP.

Another item sought by the grand jury is a PRN documentary that discusses how the war on drugs affects pain treatment, a video Michelman calls "completely innocuous from a criminal perspective" and "absolutely protected speech." Its title, especially apt in light of Treadway's vindictive campaign against Reynolds, is "The Chilling Effect."

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