Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.
“It’s a profound problem,” said the lawyer, Paul M. Sherman, with the Institute for Justice. “We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”
The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.
The Institute for Justice does not represent Ms. Reynolds, and it is not a party in the case. Its submission, made with a second libertarian group, Reason Foundation, was an amici curiae — or friends of the court — brief. It relied only on publicly available materials.
But it was sealed by the United States Court of Appeals for the 10th Circuit, in Denver, citing grand jury secrecy rules. The court then denied the groups’ motion to unseal their own brief. That ruling itself is sealed, too, but I have seen parts of it.
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