Debate Forum 01/21

Debate Forum 01/21

Debate Center: Judge aims to write the ending to blogger’s story of scandal

Illustration: Elliot Ward
By Alex Culpepper
What do Chen Wei of China, Mojtaba Lotfi of Iran, Nikolai Yarst of Russia and Roger Shuler of Alabama all have in common? Answer: They are all journalists who have been imprisoned.

The first three are among hundreds of journalists jailed worldwide for what many believe to be publishing critical words about governments. Roger Shuler is in a similar situation. What makes Shuler significant, however, is he is the only known journalist in the Western Hemisphere who is sitting behind bars for his writing.

Shuler is a blogger who posts through the site Legal Schnauzer and has a long list of high-profile targets in Alabama he has attempted to expose as conspirators, cheats, gay pornographers and even murderers. Over the years, Shuler has made many allegations and made many enemies, and his work, though attention-getting, has been questioned for its accuracy, and his claims have been labeled “furious but fuzzily sourced” according to the New York Times.

Shuler – who has done some writing as a sports reporter and at a college – found his latest trouble when he went after Robert Riley, Jr., the son of former Alabama Governor Bob Riley. Shuler wrote about an alleged affair Riley had with a woman named Liberty Duke and his payment for an alleged abortion she had as a result. Riley and Duke said Shuler was way off target and sought help from a court to prevent Shuler from posting more chapters to the story. Riley found a sympathetic judge, and his ruling ordered Shuler to get rid of the posts about Riley. Shuler ignored court orders and continued blogging, but the police eventually caught up with him and charged him with contempt and resisting arrest. Throughout the trial, Shuler resisted the court, the judge and claimed they had no jurisdiction over him. Shuler remains in jail, but questions have come up about the violation of his civil rights.

Opponents of Shuler’s jailing claim the court has clearly violated his First Amendment rights because his writings have not been proved libelous at a trial. The court has simply used evidence from the plaintiff and drawn a decision from that. They also say his jailing sets a troublesome precedent for other bloggers who – in this judge’s interpretation of the law – could be swept up as well and jailed for unproven defamatory statements.

Supporters of the court say Shuler’s hearing was enough of a trial to warrant his jailing and to impose payment of legal fees to Riley. They say Shuler’s refusal to acknowledge and participate in the proceedings left the judge with no choice but to side with Riley. They further add Shuler cannot perpetually deny and disrupt the legal process because that would also set a troublesome precedent.

Legal experts say Shuler’s unwillingness to hire a lawyer and proceed with the due process of making his case are creating an odd situation because with the defendant not participating, there’s really only half of a trial. Even so, Shuler’s supporters say he has been unlawfully jailed because his speech has not been proved illegal. The fact he remains in jail shows how supporters of the court’s decision believe he has gone too far and insist the judge made the correct decision.

Debate Forum Question of the Week:

Roger Shuler is an Alabama blogger who is serving jail time for ignoring a judge’s order to remove posts about the former governor’s son’s alleged private affairs even though Shuler has not been found guilty of libel. Is Shuler’s imprisonment a violation of his First Amendment rights? 

Debate Left: A crazy good example

By Michael Truax

The debate is not whether or not Robert Shuler’s story on Robert Reilly Jr. is well-reported, or even true. The debate is whether  Shuler must follow an unconstitutional injunction that violates his freedom of speech.

To be sure, Shuler is not a shining example of journalistic integrity and righteousness. Campbell Robertson of the New York Times euphemistically calls his pieces on Reilly “fuzzily sourced allegations.” Shuler has a long history of picking – and losing – legal fights with neighbors and law enforcement.

Shuler’s selfish circus has taken focus away from the real case. Some of Shuler’s reasoning and charges against the court-ordered injunction are nonsensical, but it’s not always the Pulitzer-winning journalists of the world who are named in important First Amendment legal cases.

Take, for example, the upstanding citizen Larry Flynt and his – ahem – pet publication, Hustler. In 1987-88 Flynt successfully defended himself against minister Jerry Falwell. Falwell was the subject of a satirical parody ad, in which he recounted a tryst with his mother in an outhouse. He sued for libel, invasion of privacy and emotional distress, but was rebuffed in a unanimous decision by the Supreme Court of the United States.

Score one for the good guys, I guess.

Or consider Forsyth County v. The Nationalist Movement, in which a fringe group protesting Martin Luther King, Jr. Day defeated the county for levying irregular fees for the use of public spaces, which SCOTUS found as a violation of the group’s freedom of speech.

Notch another.

According to Ken White of Popehat.com, a respected legal blog, Shuler is a vexatious litigant, someone with a history of filing nuisance suits. However, “The First Amendment protects everyone – even creepy, crazy vexatious litigants,” White wrote in a blog post about Shuler. “You should demand that the First Amendment protect people like that, because if it doesn’t, it won’t protect you when you need it.”

The Shuler case may end up underscoring freedom of speech laws, defining or redefining the benchmarks and standards for injunctions and what constitutes prior restraint.

If courts across the country, including Alabama, have previously found these types of cases as unconstitutional prior restraint, how can acting Circuit Judge Claud Neilson justify his actions here?

Prior restraint has a chilling effect on journalism and the free flow of information. If injunctions can be filed before freedom of speech or freedom of the press cases are decided, the subjects of stories can postpone the release of critical information or harass journalists into submission.

In addition to the public discussion over prior restraint, the Shuler case has underscored and emphasized a couple of points about the morphing state of journalism in 2014:

– Independent blogs run by individuals are considered journalism, even by international journalism watchdogs. The Committee to Protect Journalists lists Shuler as the only jailed journalist in the Western Hemisphere, a catchy headline picked up by a host of other news organizations.

– It is nearly impossible to remove or retract a blog post, even with legal force. The individuals running the blogs often have less oversight and a seemingly infinite propagation and backup system. The old adage attributed to Mark Twain: “Never pick a fight with people who buy ink by the barrel.” Now, everyone has that potential reach, without even purchasing a Bic pen.

The preliminary injunction on the blog posts should never have been granted without a ruling on the defamation charges. When there’s a conflict with personal interest, the American tradition is to err on the side of free speech. Injunctions are for when there is no way to right the wrong of defamation – Reilly, and other subjects of potentially defamatory stories, can always sue for damages.

This has been the tradition in Alabama, too. According to a 1909 defamation lawsuit between two regional utility companies: “(A defendant) has the right to publish, if he chooses to take the consequences.”

WINNERS AND LOSERS

To simplify this into binary CNN-style categories:

Loser: Robert Reilly, Jr.  Apparently Reilly and Neilson have never heard of the “Streisand Effect” – If you try to take something away from the Internet, it will only spread further and deeper, out of spite and increased interest. Once a local affair on a minor blog, the Reilly story has been spread across national media, effectively archived forever, even if it’s eventually found to be defamatory and untrue. The story leapt the small platform of an Alabama politics blog to the New York Times.

Loser: Acting Circuit Judge Claud Neilson He turned a standard defamation case into a national case study by initially sealing the case and issuing an injunction before the case had a trial on its merits. It is possible Shuler loses the defamation suit, but wins his own against Neilson.

Loser: Robert Shuler Throughout the case, Shuler has acted irrationally. He claimed Judge Neilson has no jurisdiction in this case, which is a weak proposition. After being served, he threw the papers out of a car window, as if that was a legal rejection of the charges. He claimed he couldn’t “take down the posts from a jail cell,” while his wife continues to post on the blog.

Loser: Freedom of the Press For now, at least. If this case escalates, it could end as an exemplary decision that helps protect journalists and individuals from harassment.

 

Michael Truax is a freelance writer, digital marketing consultant, entertainment enthusiast and bar trivia champion living in West Chester, Ohio. He can be reached at
MichaelTruax@DaytonCityPaper.com

 

Debate Right: Shuler in jail for contempt, not for exercising free speech

By Rob Scott

Alabama blogger Roger Shuler’s imprisonment is not a violation of his First Amendment rights, because he is prison due to violating a court order and resisting arrest. There is really no argument Schuler has First Amendment rights and he was exercising him.

Various groups, from the American Civil Liberties Union (ACLU) to the Committee to Protect Journalists, have expressed concerns about the circumstances of Shuler’s arrest and incarceration. The New York Times and Salon.com have since addressed serious questions of First Amendment, free speech and prior restraint issues raised by Shuler’s case.

However, despite the court order possibly being unconstitutional, Shuler still violated it and more. For several years, Shuler has written about elected officials and those close to them, alleging everything from marital infidelity to criminal activity. Shuler’s recent legal troubles stem from articles written on his Legal Schnauzer blog about Rob Riley, the son of former Governor Bob Riley.

Riley denied allegations Shuler made he was having an affair and took him to court, asking for an injunction prohibiting Shuler from writing anything about an alleged affair and asking all posts about him be taken down.

With Shuler absent from the hearing, acting Circuit Judge Claud Neilson gave Riley the injunction he wanted. Then, Shuler wrote about Riley on his blog again, and he did not remove any of the previous posts.

Due to the violation and contempt of court, an arrest warrant was issued for Shuler. When a deputy went to arrest Shuler at his residence, Shuler resisted.

Last week, a judge found him guilty of resisting arrest when a deputy tried to take him into custody on contempt of court charges. Shuler represented himself during a bench trial and was sentenced to 90 days in jail. However, the judge suspended the sentence for two years so Shuler can pay off court costs and fees. He remains incarcerated on the contempt of court charges that led to the resisting arrest charge.

Since Shuler’s arrest, some other national blogs have portrayed his imprisonment as a political attack meant to silence a contrarian voice in a conservative state. Others have said Shuler is a reckless bomb-thrower who has, nonetheless, had his constitutional rights trampled on and he is a victim of prior restraint, a practice the U.S. Supreme Court has forbidden in all but imminent threats to national security.

The legal analysis is interesting in Shuler’s case and certainly backs his argument the injunction should not have been issued from the trial court. Since 1931, the U.S. Supreme Court has found the First Amendment prohibits a court order restraining anyone from saying or publishing something, even if it is defamatory.

There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: the laws of equity and the First Amendment.

Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies – like monetary damages – are unavailable or inadequate. Courts have long held equity will not enjoin defamation, meaning courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. In 1994, the U.S. Supreme Court in CBS, Inc. v. Davis determined when there is an injunction against speech there is a heavy presumption against constitutional validity. Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Even where questions of allegedly urgent national security, or competing constitutional interests, are concerned, the court has imposed this “most extraordinary remedy” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures.

Taking the facts regarding Schuler about Riley, most likely the injunction probably should not have been issued by the trial court judge. Regardless, injunctions are court orders and violating them is contempt of court, which is a crime in most jurisdictions. Schuler has remedies available to him in order to knock the induction out through the judicial appeals process for First Amendment reasons.

Reasonably, Schuler could have appealed the injunction the trial court judge had issued to the next appellate court. Likely, the appellate court would have weighed the issues and found the injunction was improperly ordered.

I, above anyone, support anyone’s right to free speech under the First Amendment and will defend Schuler’s right to it. He was a blogger who was publishing his “opinions” in the public domain. Ultimately, Schuler is in prison for not following judicial conduct, not for exercising his First Amendment rights.

 

Rob Scott is a general practice attorney at Oldham & Deitering, LLC. Scott is a Kettering City Councilman and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or www.gemcitylaw.com.

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