Monday, January 20, 2014

Alabama Attorney-Blogger Remains in Jail Indefinitely Due to Judge's Order Imposing Prior Restraint on Speech

Earlier this month, the New York Times reported on  remarkable story about a blogger-attorney who has been in jail for three months based on a judge's contempt order:
Attorney-Blogger Roger Shuler
For over six years, Roger Shuler has hounded figures of the state legal and political establishment on his blog, Legal Schnauzer, a hothouse of furious but often fuzzily sourced allegations of deep corruption and wide-ranging conspiracy. Some of these allegations he has tested in court, having sued his neighbor, his neighbor’s lawyer, his former employer, the Police Department, the Sheriff’s Department, the Alabama State Bar and two county circuit judges, among others. Mostly, he has lost.


A former sports reporter and a former employee in a university’s publications department, Mr. Shuler, 57, was arrested in late October on a contempt charge in connection with a defamation lawsuit filed by the son of a former governor. The circumstances surrounding that arrest, including a judge’s order that many legal experts described as unconstitutional and behavior by Mr. Shuler that some of the same experts described as self-defeating posturing, have made for an exceptionally messy test of constitutional law.


His allegations are frequently salacious, including a recent assertion that a federal judge had appeared in a gay pornographic magazine and a theory that several suicides were actually a string of politically motivated murders. Starting in January 2013, Mr. Shuler, citing unidentified sources, began writing that Robert Riley Jr., the son of the former governor, had impregnated a lobbyist named Liberty Duke and secretly paid for an abortion. Both denied it, and Ms. Duke swore in an affidavit that they had never even been alone in the same room.

In July, Mr. Riley and Ms. Duke sought an injunction in state court against such posts, citing Mr. Shuler and his wife, Carol, in defamation suits. A judge issued a temporary restraining order in September barring the Shulers from publishing “any defamatory statement” about Mr. Riley and Ms. Duke and demanding that the offending posts be immediately removed.
When the Shulers missed a hearing, the judge replaced the restraining order with a similarly worded preliminary injunction.   Shuler continued to blog and eventually he was arrested for contempt and resisting arrest.  He was taken to the county lockup.  

The Times reports what happened next:
On Nov. 14, the judge held a hearing, and Mr. Shuler, who was representing himself, took the stand, insisting that the court had no jurisdiction over him and calling the court a joke. The judge decided that the hearing had “served as a trial on the merits” and made his final ruling: Mr. Shuler was forbidden to publish anything about Mr. Riley or Ms. Duke involving an affair, an abortion or payoffs; was to pay them nearly $34,000 for legal fees; and was to remove the offending posts or remain in jail.
Today, Shuler sits in jail indefinitely.  He is on the Committee to Protect Journalists list of imprisoned journalists. As the Times article notes:  "[t]here, in the company of jailed reporters in China, Iran and Egypt, is Mr. Shuler, the only person on the list in the Western Hemisphere."

It is easy to write this and downplay the judicial culpability in what has happened to Mr. Shuler. Even a first year law student knows the Constitution does not allow prior restraint on speech.   Yet that is exactly what the judge ordered on several occasions.  Undoubtedly he knew his ruling violated the Constitution but he also undoubtedly knew that Shuler's remedy for such an unlawful order was probably years down the road long after the issues in the case would be mooted by the passage of time.  That is unacceptable conduct by the judge.

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