The Fourth Circuit, United States Court of Appeals had this to say:
The whole purpose of the Ku Klux Klan Act was to prevent public authorities from violating constitutional rights through the use of nominally private 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 encouraged and sanctioned the organized censorship of his political opponents by his subordinates, contributed money to support that censorship, and placed the blanket of his protection over the perpetrators. Sheriffs who removed their uniforms and acted as members of the Klan were not immune from § 1983; the conduct here, while different, also cannot be absolved by the simple expedient of removing the badge.
From the Author
Censorship at 75 Cents a Copy
Some sheriff's deputies in St. Mary's County, Maryland, were as steamed asthe region's famous blue crabs.
The November 1998 election was approaching. Their favored candidates,incumbent Sheriff Richard Voorhaar and lawyer Richard Fritz, running for state'sattorney, were on the ballot.
But the problem was that the local weekly newspaper, St. Mary's Today, had along history of criticizing county officials in general and law enforcementpersonnel in particular. The newspaper's brand of journalism was robust, to saythe least. It had called one of the deputies a "drunk," another a "child abuser"and a third a "shoeshine boy."
The deputies didn't take kindly to this sort of abuse. According to courtdocuments, they claimed that the paper was "unsavory" and published "outrightlies." What really worried them, though, was that St. Mary's Today was due topublish on Election Day, and the deputies anticipated the paper would takepotshots at Voorhaar and Fritz without giving them an opportunity to defendthemselves.
So, as told in court records, the deputies cooked up a scheme to "protest[their] disagreement" with St. Mary's Today Publisher Kenneth Rossignol's"irresponsible journalism." They agreed to buy as many copies of the newspaperas they could from stores and vending machines before citizens could purchasethem. They even planned to stage a "bonfire party" afterward. That ought to"piss off" Rossignol, they figured.
The deputies checked with Voorhaar and Fritz, both of whom approved the planand kicked in some money to support the enterprise. Fritz advised them that itmight be a good idea to get receipts to prove that they had bought the papers,not stolen them.
On election eve, six deputies set out on their mission. They were off duty,driving personal cars, and out of uniform. But two of them carried servicerevolvers. One wore a Fraternal Order of Police sweatshirt. And they were wellknown to the clerks in the convenience stores who routinely gave them freecoffee and soft drinks.
When the deputies asked to buy all of one store's newspapers, a clerk latertestified that they made it "real apparent [that] they could make my life here aliving hell" if he declined to sell them.
In a few hours, the deputies visited 40 stores and 40 newsboxes, cadging atleast 1,300 copies of St. Mary's Today, which has a circulation of 5,300. Onewitness later claimed he could not find "any papers anywhere in the county."
And sure enough, as the deputies had expected, the paper carried a front-pageheadline declaring "Fritz Guilty of Rape," referring to the candidate's guiltyplea to a charge of carnal knowledge of a 15-year-old more than 30 yearsearlier, along with a story about a complaint filed against Voorhaar over hishandling of a sexual harassment claim.
Rossignol filed a federal civil rights suit a year later, claiming that theofficials had violated the First, Fourth and 14th Amendments, as well as statelaw. A federal district judge threw out the suit, finding that the deputies hadnot acted "under color of state law" when they bought the papers, but as privatecitizens. And because no "police action" occurred, Fritz and Voorhaar got off,too.
The 4th U.S. Circuit Court of Appeals saw it differently. In a unanimousopinion by Chief Judge J. Harvie Wilkinson, a three-judge panel ruled in Januarythat the deputies' conduct amounted to a "systematic, carefully organized planto suppress the distribution of St. Mary's Today" because they disagreed withits viewpoint, and to "retaliate against those who questioned their fitness forpublic office." That's exactly the "kind of suppression of political criticismthat the First Amendment was intended to prohibit," Wilkinson observed.
Just because the deputies were acting outside their normal working hoursdidn't mean they weren't using the power of their office to carry out theirplan, the court found. Like law enforcement officials who conspired with Ku KluxKlan members to intimidate former slaves, "the conduct here...cannot be absolvedby the simple expedient of removing the badge," Wilkinson wrote.
If the deputies disagree with what St. Mary's Today had to say, they are freeto denounce the paper, Wilkinson suggested. They can even sue for libel. But ashe concluded, "to summon the organized force of the sheriff's office to thecause of censorship" "belongs to a society much different and more oppressivethan our own." One where the government, not the citizen, decides what is thetruth and what are "outright lies."