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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
------------------------------------------------*
KENNETH C. ROSSIGNOL; ISLAND
PUBLISHING COMPANY, a/k/a St.
Mary's Today,
Plaintiffs-Appellants,
v.
RICHARD J. VOORHAAR, Sheriff, St.
Mary's County Sheriff's Office;
RICHARD FRITZ, State's Attorney for
St. Mary's County, Maryland;
DANIEL ALIOTO, Deputy First Class,
St. Mary's County Sheriff's Office;
STEVEN DOOLAN, Captain, St. Mary's
County Sheriff's Office; LYLE LONG,
Sergeant, St. Mary's County
Sheriff's Office; MICHAEL MERICAN,No. 02-1326
Sergeant, St. Mary's County
Sheriff's Office; STEVEN MYERS,
Deputy First Class, St. Mary's
County Sheriff's Office; EDWARD
WILLENBORG, Sergeant, St. Mary's
County Sheriff's Office; HAROLD
YOUNG, Deputy First Class, St.
Mary's County Sheriff's Office;
BOARD OF COUNTY
COMMISSIONERS FOR ST. MARY'S
COUNTY, MARYLAND,
Defendants-Appellees,
and
JOHN DOES, 1-50,
Defendants.
------------------------------------------------*
------------------------------------------------*
THE REPORTERS COMMITTEE FOR
FREEDOM OF THE PRESS; AMERICAN
SOCIETY OF NEWSPAPER EDITORS;
ASSOCIATION OF ALTERNATIVE
NEWSWEEKLIES; MARYLAND-
DELAWARE-DC PRESS ASSOCIATION;
MARYLAND MEDIA,
Amici Curiae in Support of Appellants.
------------------------------------------------*
Appeal from the United States District Court for the District of Maryland, at Greenbelt. William M. Nickerson, Senior District Judge. (CA-99-3302-WMN)
Argued: October 30, 2002
Decided: January 16, 2003
Before WILKINSON, Chief Judge, GREGORY, Circuit Judge, and Frank J. MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.
____________________________________________________________
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Gregory and Senior Judge Magill
joined.
____________________________________________________________
COUNSEL
ARGUED: Ashley Ivy Kissinger, LEVINE, SULLIVAN & KOCH,
L.L.P., Washington, D.C., for Appellants. Daniel Karp, ALLEN,
KARPINSKI, BRYANT & KARP, Baltimore, Maryland, for Appel-
lees. ON BRIEF: Lee Levine, Seth D. Berlin, Audrey Billingsley,
LEVINE, SULLIVAN & KOCH, L.L.P., Washington, D.C.; Alice
2
Neff Lucan, Washington, D.C., for Appellants. Victoria M. Shearer,
Kevin Karpinski, ALLEN, KARPINSKI, BRYANT & KARP, Balti-
more, Maryland; John F. Breads, Jr., Columbia, Maryland, for Appel-
lees. Paul M. Smith, Thomas J. Perrelli, Nathan C. Guerrero, Brian
Hauck, JENNER & BLOCK, L.L.C., Washington, D.C., for Amici
Curiae; Lucy A. Dalglish, Gregg P. Leslie, REPORTERS COMMIT-
TEE FOR FREEDOM OF THE PRESS, Arlington, Virginia, for
Amicus Curiae Committee; Richard M. Schmidt, Jr., Kevin M. Gold-
berg, COHN & MARKS, L.L.P., Washington, D.C., for Amicus
Curiae Society; Richard Karpel, ASSOCIATION OF ALTERNA-
TIVE NEWSWEEKLIES, Washington, D.C., for Amicus Curiae
Newsweeklies.
____________________________________________________________
OPINION
WILKINSON, Chief Judge:
Plaintiff Kenneth Rossignol brought suit against defendants for
their organized efforts to suppress the distribution of the election day
issue of plaintiff Island Publishing Company's newspaper, St. Mary's
Today. Plaintiffs sought damages and injunctive relief under 42
U.S.C. § 1983, the Maryland Constitution, and Maryland common
law. The district court granted summary judgment to defendants on
plaintiffs' federal claims on the grounds that defendants had not acted
under color of state law. It then dismissed plaintiffs' remaining state
claims without prejudice. Rossignol v. Voorhaar, 199 F. Supp. 2d
279, 286-89 (2002). Because defendants sought to censor plaintiffs'
criticism of them in their official roles, because their official positions
were an intimidating asset in the execution of their plan, and because
this sort of quasi-private conspiracy by public officials was precisely
the target of § 1983, we reverse the judgment and remand for further
proceedings consistent with this opinion.
I.
The facts of this case are largely undisputed. St. Mary's Today is
a weekly newspaper owned by Kenneth Rossignol and primarily serv-
ing St. Mary's County in southern Maryland. It has reported exten-
3
sively and often critically on local government and public officials,
including County Sheriff Richard Voorhaar and his deputies, from
"Captain [Steven] Doolan at the top of the rank . . . all the way to the
bottom." In defendants' own words, St. Mary's Today published
"constant belittlement" and "scandalous things" about the sheriff's
deputies' performance, including what they "buy for the agency,
equipment, [and] positions [they] ask for." Nor was this just "one arti-
cle"; it was constantly, "week, after week, after week." This criticism
also extended to a personal friend of Voorhaar named Richard Fritz,
a candidate for St. Mary's County State's Attorney in the November
1998 elections who enjoyed broad support in the Sheriff's Office.
Several deputies in the Sheriff's Office anticipated that the election
day issue of St. Mary's Today would be critical of them and their
favored candidates, particularly Voorhaar and Fritz. Over the course
of a series of meetings and conversations, both on the job at the Sher-
iff's Office and in the evening at private homes, some of the deputies
formulated a plan to deal with this problem. They decided to form
two teams on election day, each comprising three sheriff's deputies,
and buy out the stock of St. Mary's Today at vending locations
throughout the county. They viewed the seizure as a "good opportu-
nity" for two things: "to piss [Rossignol] off" and to "protest [their]
disagreement" with Rossignol's "irresponsible journalism." They
planned to stage a "bonfire party" when the seizure was completed.
The election day issue of St. Mary's Today bore the front-page
headline "Fritz Guilty of Rape." It accurately reported that in 1965,
Fritz and three other men had pled guilty to carnal knowledge of a
fifteen-year-old girl. Fritz, who was eighteen at the time of the rape,
was sentenced to probation and a suspended sentence of eighteen
months in state prison. The same article reported that Fritz's opponent
had been convicted of marijuana possession in 1973. Another article
in the issue also reported an EEOC complaint which charged that
Voorhaar had assigned a deputy who complained of sexual harass-
ment to work directly under the supervision of the harasser. Six thou-
sand five hundred total copies of St. Mary's Today were printed:
2,600 papers delivered to stores in St. Mary's County, 1,100 placed
in newspaper boxes throughout the county, 1,100 delivered by mail
to subscribers, and 1,700 distributed to other counties. Each copy cost
seventy-five cents.
4
Late on the night before the election, six sheriff's deputies set out
in two cars. The officers were off duty, wearing plainclothes, and
driving their personal cars. They drove throughout the county, buying
newspapers from both newsboxes and local stores. To prove that they
were purchasing the newspapers and not stealing them, defendants got
receipts from the stores and videotaped themselves removing papers
from newsboxes. Later that night, Rossignol discovered defendants'
plan and drove through the county attempting to resupply the stores
and newsboxes. But defendants followed him around the county, buy-
ing up the fresh inventory as soon as it was replenished.
During the course of the mass purchase, a group of defendants met
with an on-duty sheriff's deputy who had contacted them on their
department-issued pagers in order to conduct official business. Some
defendants also stopped at a Sheriff's Office outpost to use facilities
there during the course of the evening. One defendant wore his Frater-
nal Order of Police sweatshirt with the word "Sheriff" written on top
of the county seal. Two other defendants carried their service weap-
ons during the mass purchase; those firearms are visible on two vid-
eotapes of the incident and were noticed by at least one eyewitness.
Many local clerks were quite familiar with county law enforcement
personnel because of 7-Eleven's policy of giving free coffee and soft
drinks to police officers, even those out of uniform. Thus, many of the
clerks who interacted with defendants during the night knew that they
were sheriff's deputies. 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." A different clerk told one of
her store's other customers that the St. Mary's deputies were taking
all of the papers. A manager of one 7-Eleven was told by one of her
night employees that "it was a police officer [who] bought them." A
clerk at another store also explained to her manager the next morning
that "cops came in and bought them all." And a police report on the
incident further notes that "several of the clerks" at convenience
stores and a night watchman at Walmart had "recognized some of [the
men involved in the seizure] as St. Mary's County Deputies."
The mass purchase was completed at approximately 7:00 a.m.,
defendants having visited roughly forty stores and forty newsboxes
5
and removed at least 1,300 copies of the paper. At least 300 more
copies were seized without payment from retailers who had not yet
opened, but defendants contend that any copies taken without pay-
ment were not taken by them. One witness testified that after the mass
purchase he could not find "any papers anywhere in the county."
Both Voorhaar and Fritz personally supported and participated in
the mass purchase. Approximately one week before the election, one
deputy spoke with Voorhaar and secured his approval for the plan.
Voorhaar approved the plan, personally contributed $500 to defray
purchasing costs, and wished his deputies "good luck" on the
endeavor. He also personally purchased multiple copies of the news-
paper early in the morning on election day. And during the days fol-
lowing the election, he made extensive comments in local media
defending and celebrating the seizure. Likewise, Fritz explicitly
approved the plan and was directly involved in planning its imple-
mentation and mapping out with the other defendants exactly how
they should proceed on the night before election day. Fritz's co-
defendants testified that he contributed $500 of his own money to the
seizure; at a minimum, he served as a conduit for contributions which
had been given to him. He also offered legal advice to defendants
about the constitutionality of their plan, researching the issue before
advising them that it was legal under both Maryland and federal law.
Plaintiffs brought suit in November 1999, alleging violations of
their rights under the First, Fourth, and Fourteenth Amendments, as
well as under the Maryland Constitution and at common law. After
extensive discovery, the parties filed cross-motions for summary
judgment. In February 2002, the district court granted summary judg-
ment against plaintiffs on the § 1983 claims and accordingly dis-
missed plaintiffs' state law claims without prejudice. Plaintiffs now
appeal.
II.
As a threshold matter, there can be no question that, if defendants
acted under color of state law, they violated these plaintiffs' constitu-
tional rights. The seizure clearly contravened the most elemental
tenets of First Amendment law. First, defendants targeted Rossignol's
newspaper for suppression and retaliation because they disagreed with
6
its viewpoint and intended to prevent its message from being dissemi-
nated. This by itself was sufficient to violate the Constitution. "It is
axiomatic that the government may not regulate speech based on its
substantive content or the message it conveys." Rosenberger v. Rector
and Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995). And
when, as here, the government targets "not subject matter, but particu-
lar views taken by speakers on a subject, the violation of the First
Amendment is all the more blatant." Id. at 829; see also R.A.V. v. City
of St. Paul, 505 U.S. 377 (1992).
Second, the category of speech that defendants suppressed "occu-
pies the core of the protection afforded by the First Amendment."
McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 346 (1995). "Dis-
cussion of public issues" and "debate on the qualifications of candi-
dates" for public office have always been "integral to the operation of
the system of government established by our Constitution." Buckley
v. Valeo, 424 U.S. 1, 14 (1976) (per curiam). And "it is by no means
easy to see what statements about a candidate might be altogether
without relevance to his fitness for the office he seeks." Monitor
Patriot Co. v. Roy, 401 U.S. 265, 275 (1971) (overturning state libel
judgment against newspaper for criticism of a political candidate
three days before the primary). The First Amendment therefore "af-
fords the broadest protection to such political expression in order `to
assure [the] unfettered interchange of ideas,'" since "[i]n a republic
where the people are sovereign, the ability of the citizenry to make
informed choices among candidates for office is essential." Buckley,
424 U.S. at 14-15 (citations omitted). It is for that reason that the First
Amendment "has its fullest and most urgent application precisely to
the conduct of campaigns for political office." Monitor Patriot Co.,
401 U.S. at 272. In suppressing criticism of their official conduct and
fitness for office on the very day that voters were heading to the polls,
defendants did more than compromise some attenuated or penumbral
First Amendment right; they struck at its heart.
Third, the fact that defendants paid for the newspapers in no way
affects the conclusion that the seizure violated plaintiffs' right to dis-
seminate core political speech. "Governmental restraint on publishing
need not fall into familiar or traditional patterns to be subject to con-
stitutional limitations on governmental powers." Miami Herald
Publ'g Co. v. Tornillo, 418 U.S. 241, 256 (1974). The First Amend-
7
ment is about more than a publisher's right to cover his costs. Indeed,
it protects both a speaker's right to communicate information and
ideas to a broad audience and the intended recipients' right to receive
that information and those ideas. Bd. of Educ., Island Trees Union
Free Sch. Dist. No. 26 v. PICO, 457 U.S. 853, 867 (1982). Liberty
of circulation is as important to freedom of the press "as liberty of
publishing; indeed, without the circulation, the publication would be
of little value." Lovell v. City of Griffin, 303 U.S. 444, 452 (1938)
(quoting Ex parte Jackson, 96 U.S. 727, 733 (1877)).
It is because of the inherently communicative purpose of First
Amendment activity that compensation in the form of lost profits is
legally insufficient as a remedy for the loss of First Amendment free-
doms. See Elrod v. Burns, 427 U.S. 347, 373-74 (1976) (plurality
opinion) (citing New York Times Co. v. United States, 403 U.S. 713
(1971)). The fact that a small newspaper seeks to turn a meager profit
does not remove it from the protections of the First Amendment. The
Supreme Court has made clear that "the degree of First Amendment
protection is not diminished merely because the newspaper or speech
is sold rather than given away." City of Lakewood v. Plain Dealer
Publ'g Co., 486 U.S. 750, 756 n.5. What matters is that defendants
intentionally suppressed the dissemination of plaintiffs' political ideas
on the basis of their viewpoint. And in doing so before the critical
commentary ever reached the eyes of readers, their conduct met the
classic definition of a prior restraint. E.g., Near v. Minnesota, 283
U.S. 697 (1931).
III.
The district court granted summary judgment for defendants on the
grounds that "the mass purchase constituted private conduct not exe-
cuted under color of state law" as required by 42 U.S.C. § 1983. 199
F. Supp. 2d 279, 289 (D. Md. 2002). In so holding, it necessarily
denied plaintiffs' motion for partial summary judgment as well. We
review these rulings de novo. Goldstein v. Chestnut Ridge Volunteer
Fire Co., 218 F.3d 337, 340-41 (4th Cir. 2000). When faced with
cross-motions for summary judgment, the court must review each
motion separately on its own merits "to determine whether either of
the parties deserves judgment as a matter of law." Philip Morris Inc.
v. Harshbarger, 122 F.3d 58, 62 n.4 (1st. Cir 1997) (citation and
8
internal punctuation omitted). When considering each individual
motion, the court must take care to "resolve all factual disputes and
any competing, rational inferences in the light most favorable" to the
party opposing that motion. Wightman v. Springfield Terminal Ry.
Co., 100 F.3d 228, 230 (1st Cir. 1996).
To state a claim for relief under § 1983, plaintiffs must demonstrate
that defendants' effort to suppress the distribution of St. Mary's
Today was perpetrated under color of state law. 42 U.S.C. § 1983
(2002). The color of law requirement excludes from the reach of
§ 1983 all "merely private conduct, no matter how discriminatory or
wrongful." Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50
(1999) (citation and internal punctuation omitted). If the substance of
§ 1983 is not to be substantially eviscerated, however, "its ambit can-
not be a simple line between States and people operating outside for-
mally governmental organizations." Brentwood Acad. v. Tennessee
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001).1 Section
1983 therefore includes within its scope apparently private actions
which have a "sufficiently close nexus" with the State to be "fairly
treated as that of the State itself." Jackson v. Metro. Edison Co., 419
U.S. 345, 351 (1974). "[T]here is no specific formula for defining
state action" under this standard. Hicks v. Southern Maryland Health
Sys. Agency, 737 F.2d 399, 402 n.3 (4th Cir. 1984) (quoting Hower-
ton v. Gabica, 708 F.2d 380, 383 (9th Cir. 1983)). Rather, the ques-
tion of what is fairly attributable to the State "is a matter of normative
judgment, and the criteria lack rigid simplicity." Brentwood Academy,
531 U.S. at 295.
____________________________________________________________
1 Brentwood and several other cases cited herein addressed the issue of
state action. They control our inquiry nonetheless, since if a defendant's
conduct satisfies the state-action requirement of the Fourteenth Amend-
ment, it also constitutes action "under color of state law" for the purposes
of § 1983. Id. at 295 n.2 (citing Lugar v. Edmondson Oil Co., 457 U.S.
922, 935 (1982)). In the course of its state action inquiries, the Supreme
Court has not opted for an objective or subjective test, but simply for a
look at the totality of circumstances that might bear on the question of
the nexus between the challenged action and the state.
9
A.
We have no doubt that the seizure in this case was perpetrated
under color of state law. The requisite nexus between defendants'
public office and their actions during the seizure arose initially out of
their censorial motivation. Defendants executed a systematic,
carefully-organized plan to suppress the distribution of St. Mary's
Today. And they did so to retaliate against those who questioned their
fitness for public office and who challenged many of them in the con-
duct of their official duties. The defendants' scheme was thus a clas-
sic example of the kind of suppression of political criticism which the
First Amendment was intended to prohibit. The fact that these law
enforcement officers acted after hours and after they had taken off
their badges cannot immunize their efforts to shield themselves from
adverse comment and to stifle public scrutiny of their performance.
Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989).
To begin with, it is clear that if a defendant's purportedly private
actions are linked to events which arose out of his official status, the
nexus between the two can play a role in establishing that he acted
under color of state law. In Layne v. Sampley, 627 F.2d 12 (6th Cir.
1980), for example, an off-duty police officer was in plain clothes,
had been on vacation for several days, and was sitting in his personal
car when he shot the plaintiff. The Sixth Circuit nonetheless held that
there was sufficient evidence to support a finding that the defendant
had acted under color of state law, in large part because "the animos-
ity grew out of [the officer's] performance of his official duties." Id.
at 13. And in United States v. Causey, 185 F.3d 407 (5th Cir. 1999),
the Fifth Circuit held that a police officer had acted under color of
state law when he conspired with two civilians to murder a woman
who had filed police brutality charges against him. Important to the
decision was the fact that the desire to retaliate against the victim
arose out of her criticism of the defendant's actions in his official
capacity. Id. at 415-16.
Indeed, where the action arises out of purely personal circum-
stances, courts have not found state action even where a defendant
took advantage of his position as a public officer in other ways. For
example, in Martinez v. Colon, 54 F.3d 980 (1st Cir. 1995), an on-
duty police officer shot his coworker with a state-issued revolver
10
while they were both in the stationhouse. The court nonetheless held
that the defendant had not acted under color of state law because the
shooting had arisen from a "singularly personal frolic: tormenting an
acquaintance," and because defendant's "status as a police officer
simply did not enter into" his decision to torment the victim. Id. at
987; see also Bonsignore v. City of New York, 683 F.2d 635, 638-39
(2d Cir. 1982) (no state action where police officer shot his wife with
a police revolver and then committed suicide).
The actions here arose out of public, not personal, circumstances.
Where the sole intention of a public official is to suppress speech crit-
ical of his conduct of official duties or fitness for public office, his
actions are more fairly attributable to the state. That was the case
here. Defendants were enraged by what they called Rossignol's "un-
savory journalism." And they had reason to dislike his coverage: their
depositions detail at length Rossignol's past attacks on their perfor-
mance of official duties. They were also convinced that St. Mary's
Today would print election day attacks on "Voorhaar [or] anybody
that was not on [Rossignol's] ticket." So they decided both to punish
Rossignol's previous speech by "piss[ing] him off" and to suppress
his expected election day criticism of Sheriff Voorhaar's performance
in office. Defendants' statements on the videotapes recorded that eve-
ning further emphasize their desire to "cleanse the filth" printed in the
newspaper and prevent the "pack of lies" from being circulated.
Among other comparable comments, one deputy said, "you call us
idiots, Rossignol? We'll show you. . . . We'll show you, Rossignol;
that's all I got to say." Another deputy stated that "we don't believe
in blasphemy being published, so we're buying them all."
In their scheme to silence disrespectful speech, defendants seemed
called to resurrect the discredited concept of a criminal libel, which
was broadly invoked in seventeenth and eighteenth century England
to silence adverse comment on public personages, all in the name of
preserving "the King's peace." As one historian has noted, however,
the King's peace was "as wide a phrase as the King's English. To dis-
turb the King's peace of mind was probably a breach of the King's
peace. . . . [A criminal libel] might bring institutions or prominent
persons into contempt, or hatred, or ridicule." William H. Wickwar,
The Struggle for the Freedom of the Press 20 (1928). It goes without
saying that this stigmatization of speech critical of public officials
11
was among the chief evils that the First Amendment sought to com-
bat.
Ultimately, defendants were driven by a desire to retaliate against
Rossignol's past criticism of their fitness for office and to censor
future criticism along the same lines. This link between the seizure's
purpose and defendants' official roles helps demonstrate that defen-
dants' actions bore a "sufficiently close nexus" with the State to be
"fairly treated as that of the State itself." Jackson v. Metro. Edison
Co., 419 U.S. at 351.2
B.
Several additional factors reinforce our conviction that defendants
acted under color of state law.
Among these was defendants' ability to use their positions in the
Sheriff's Department to ensure that they would not be prosecuted for
their election day seizure. Under Maryland law, the Newspaper Theft
Act prohibits "knowingly or willfully obtain[ing] or exert[ing] control
that is unauthorized over newspapers with the intent to prevent
another from reading the newspapers." Md. Code, Criminal Law § 7-
106(b) (2002) (recodified version of law in effect during the seizure).
The Act was passed to criminalize such events as the St. Mary's
Today seizure: mass censorship-oriented appropriations of newspa-
pers which cannot otherwise be punished as theft. See Thomas W.
Waldron, "Pilfered Papers: If a Crime, What Punishment?", Balt. Sun,
Jan. 5, 1994, at 1B (discussing history leading to passage of Act);
Editorial, "Can You `Steal' a Free Paper?", Wash. Post, Jan. 22, 1994,
at A16 (same). In other words, 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.
____________________________________________________________
2 The principal case defendants cite in opposing this conclusion is not
controlling here. See Hughes v. Halifax Cty. Sch. Bd., 855 F.2d 183 (4th
Cir. 1988). Its brief and factbound discussion of state action focused on
defendants' spur-of-the-moment harassment of a coworker in the work-
place rather than a conspiracy to suppress by prior restraint the distribu-
tion of election day political speech.
12
Voorhaar's position as Sheriff, however, gave him the ability to
help shield his coworkers from the consequences of their crime
through both formal direction of his department's investigations and
informal ties to other law enforcement agencies. And his personal
contribution of $500 made Voorhaar part of the conspiracy and served
as a bond of solidarity with the other deputies involved in the seizure.
Resting on the powers of his public office and his own self-interest
in avoiding prosecution, Voorhaar's sanction operated as a concrete
assurance that the rest of the defendants would be shielded from crim-
inal repercussions by the cloak of state protection. This in turn meant
that the St. Mary's County Sheriff Department "did more than adopt
a passive position" towards the seizure, Chestnut Ridge, 218 F.3d at
342 (quoting Skinner v. Ry. Labor Executives' Ass'n., 489 U.S. 602,
615 (1989)), and instead gave "significant encouragement" to its per-
petrators. Mentavlos v. Anderson, 249 F.3d 301, 311 (4th Cir. 2001)
(quoting Am. Mfrs. Mut. Ins. Co., 526 U.S. at 52).
Additionally, the deputies' identities as state officers played a role
at several points during the seizure itself. They were recognized as
police officers by store employees throughout the county. They were
carrying their state-issued firearms, and some of those firearms were
visible during the evening. And one of them was wearing a Fraternal
Order of the Police sweatshirt. It is no surprise, then, that at least one
clerk was intimidated into selling his entire run of newspapers by the
deputies' authority as state officials. When the deputies first tried to
buy all the papers, he said "y'all can't do that because other people
want to read them." The clerk later testified, however, that while the
deputies made no explicit threats, "they basically came off real intimi-
dating" and "made it real apparent . . . if I didn't sell it to them, then
they could make my life here a living hell. . . . [I]t wouldn't be that
hard [for them] to set [me] up for something." Cf. Bantam Books, Inc.
v. Sullivan, 372 U.S. 58, 68 (1963) (noting that"[p]eople do not
lightly disregard public officers' thinly veiled threats").
The effect of a police presence on a store owner or clerk is not hard
to imagine. Proprietors of small stores often feel a keen need to stay
on the right side of local law enforcement. They depend heavily on
prompt responses by the police to their calls, as well as on freedom
from harassment and other unnecessary difficulties with the police.
See, e.g., Turner v. Dammon, 848 F.2d 440, 442-43, 445-47 (4th Cir.
13
1988). The 7-Eleven policy of giving free coffee and soft drinks to
sheriff's deputies, for example, is driven by a desire for good relations
with the local police. The strength of this interest is amply confirmed
by the willingness of the convenience stores in this case to sell their
entire run of newspapers to the police at one stroke, even to their
potential economic detriment. Running out of newspapers risked
offending other customers and cutting off a significant flow of ancil-
lary business: a major reason to sell newspapers is to attract custom-
ers into the store in the first place, thereby leading them to buy other
items that they otherwise might not have purchased there.
In sum, the nexus between defendants' actions and the state arose
from more than just defendants' desire to still criticism of their public
performance. Their status as sheriff's deputies enabled them to exe-
cute their scheme in a manner that private citizens never could have.
C.
Finally, both the First Amendment and 42 U.S.C. § 1983 exist in
significant part to deter the kind of misdeeds perpetrated by defen-
dants on election day. The First Amendment was drafted in the con-
text of a lengthy history of censorship carried out by private
organizations with complicated ties to the state apparatus and compel-
ling motives to suppress speech unfavorable to the Crown. The Statio-
ners' Company was a private guild of printers with its origins in
medieval England; it was granted valuable monopolies and privileges
by the government. Fredrick Seaton Siebert, Freedom of the Press in
England, 1476-1776, at 64-66, 135 (1952). In exchange for the assur-
ance of this valued status, the Stationer's Company acted as a vigor-
ous censor, searching printing houses both for material which violated
the Company's own monopolistic privileges and for material consid-
ered dangerous to the Crown. Id.; see also Cyprian Blagden, The Sta-
tioners' Company: A History, 1403-1959, at 20-21, 32-33 (1960). The
drafters of the First Amendment knew full well that censorship is
equally virulent whether carried out by official representatives of the
state or by private individuals acting out of a self-interested hope in
receiving or maintaining benefits from the state. Historical experience
flatly belies defendants' argument that the First Amendment cannot
apply to their censorial seizure because they were not wearing state
uniforms.
14
Similarly, defendants' conspiracy bears many of the hallmarks of
the civil rights violations that prompted the passage of § 1983. That
statute was enacted principally to deal with conspiracies between
local law enforcement officers and private individuals - typically via
the Ku Klux Klan - to violate the rights of former slaves. The sup-
porters of 42 U.S.C. § 1983 saw a criminal justice system "under the
control of those who are wholly inimical to the impartial administra-
tion of law and equity," and asked "[w]hat benefit would result from
appeal to . . . officers [who] are secretly in sympathy with the very
evil against which we are striving?" Cong. Globe, 42d Cong., 1st
Sess. 394 (1871) (statement of Rep. Rainey). see also Monroe v.
Pape, 365 U.S. 167, 171-87 (1961). Congress had no doubt about the
complicity of those who in their official capacities promoted the sub-
terfuge of private arrangements to accomplish constitutionally imper-
missible ends. Indeed, "without concert, understanding, and
arrangement," it "could not be possible that all should be acquitted
who were arrested. It could not happen that in some localities a vast
number of these crimes were committed and no one arrested. . . .
These things do not occur thus accidentally." Cong. Globe, 42d
Cong., 1st Sess. 459 (1871) (statement of Rep. Coburn). The whole
purpose of the Ku Klux Klan Act was to prevent public authorities
from violating constitutional rights through the use of nominally pri-
vate means. Whether the rights be those of small papers and their
readers or those of freedmen is not dispositive. The unlawfulness of
private infringement of those rights under color of state law remains
the same.
We would thus lose sight of the entire purpose of § 1983 if we held
that defendants were not acting under color of state law. Here, a local
sheriff, joined by a candidate for State's Attorney, actively encour-
aged and sanctioned the organized censorship of his political oppo-
nents by his subordinates, contributed money to support that
censorship, and placed the blanket of his protection over the perpetra-
tors. Sheriffs who removed their uniforms and acted as members of
the Klan were not immune from § 1983; the conduct here, while dif-
ferent, also cannot be absolved by the simple expedient of removing
the badge.3
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3 Plaintiffs' motion for summary judgment on the "color of law" issue
is inextricably intertwined with defendants' summary judgment motion
15
IV.
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 opin-
ion 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 sup-
pression in the dead of night.
The judgment of the district court is therefore reversed and the case
is remanded for further proceedings consistent with this opinion.
REVERSED AND REMANDED
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on that same question, because they each rest on identical factual and
legal issues. The First Amendment inquiry is likewise inextricably inter-
twined with defendants' summary judgment motion, since the same retal-
iatory suppression of core political speech lies at the heart of each. See
Swint v. Chambers Cty. Comm'n, 514 U.S. 35, 50-51 (1995) (appellate
courts may review issues that are "inextricably intertwined" with another
issue properly on appeal). However, the questions of qualified immunity,
municipal liability, the extent to which defendant's conduct is actionable
under the Maryland Constitution and Maryland common law, and the
extent to which defendant Alioto participated in the seizure have not
been fully briefed by the parties and have not been shown to be inextrica-
bly intertwined with the issue properly before the court as required by
Swint. These issues must be addressed by the district court on remand.
16