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Thursday, April 24, 2014         

NEW YORK TIMES


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Blogger’s incarceration raises first amendment questions

By New York Times

POSTED:



BIRMINGHAM, Ala. » For more than 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.

But even those who longed for his muzzling, and there are many, did not see it coming like this: with Shuler sitting in jail indefinitely, and now on the list of imprisoned journalists worldwide kept by the Committee to Protect Journalists. There, in the company of jailed reporters in China, Iran and Egypt, is Shuler, the only person on the list in the Western Hemisphere.

A former sports reporter and a former employee in a university's publications department, 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 Shuler that some of the same experts described as self-defeating posturing, have made for an exceptionally messy test of constitutional law.

"You've got a situation where sometimes there's no good guys," said Ken White, a former federal prosecutor in Los Angeles who writes about and practices First Amendment law.

Shuler is no stranger to defamation suits, as one might surmise from reading his blog. He started it in 2007 to document a property dispute with his neighbor that blew up into a legal war and ended with the neighbor's lawyer becoming a part-owner of Shuler's house, which is in Birmingham. Later, the blog branched out to expose what he alleged were the corrupt machinations of powerful figures, mostly Republicans, and with a particular animus toward former Gov. Bob Riley.

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 last January, 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 Duke swore in an affidavit that they had never even been alone in the same room.

In July, Riley and Duke sought an injunction in state court against such posts, citing 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 Riley and Duke and demanding that the offending posts be immediately removed.

Such a sweeping order struck some lawyers as far too broad, and Shuler says he did not even know about it.

The Shulers refused to answer the door when officials came to serve court papers, stating their suspicions in blog posts that the visits were part of an "intimidation and harassment campaign" stemming from the reporting on another topic.

One afternoon as the Shulers drove to the local library, where Shuler had been writing his blog since they could no longer pay for their Internet connection, a member of the Sheriff's Department pulled them over, saying they had run a stop sign. The officer then served them the papers, which the Shulers refused to accept, contending that service under such a pretext was improper.

"We were both throwing the papers out of the windows as we were driving off," Shuler said in an interview.

The Shulers missed a hearing the next day, and the restraining order was superseded by a similarly worded preliminary injunction, which some free-speech advocates saw as a clear violation of Shuler's First Amendment rights.

"It seems to me that the judge's order was really way out of bounds," said David Gespass, a civil rights lawyer in Birmingham, who was further troubled by the judge's initial decision to keep the case under seal.

Shuler continued blogging. On Oct. 23, the police followed Shuler as he pulled into his driveway, arrested him in his garage and took him to jail on charges of contempt and resisting arrest.

In the hyperpartisan corners of the blogosphere where Shuler was known, there was shock. Even some of his dedicated foes were alarmed.

The National Bloggers Club, a group led by Republican activist Ali Akbar, who has also threatened to sue Shuler for defamation, released a statement condemning Shuler's "rumor-monger cyberbullying" but also criticizing the injunction as creating a potential chilling effect on blogging.

The state chapter of the American Civil Liberties Union filed a "friend of the court" brief, and the Reporters Committee for Freedom of the Press sent a letter to the judge.

On Nov. 14, the judge held a hearing, and 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 the hearing had "served as a trial on the merits" and made his final ruling: Shuler was forbidden to publish anything about Riley or 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.

Riley said Shuler's refusal to engage with the legal process had given the judge the leeway to make a final ruling.

"If someone can continually ignore the judge just by saying, 'You don't have jurisdiction over me,' then the whole system breaks down," Riley said, adding that Shuler could not plead ignorance of the legal process. "This is not the first time Roger Shuler has been in court."

But White and others say that before a judge can take the step of banning speech, libel must be proved at trial, or at least over a litigation process more involved than a quick succession of hearings, with the only evidence presented by the plaintiffs.

"Idiocy is not a zero-sum game," White said. "I think you can say that what the court is doing is unconstitutional and troublesome and also that Shuler is his own worst enemy."

So while the furor has all but dissipated, Shuler remains in jail, unwilling to take down his posts but also unwilling to hire a lawyer and contest his incarceration in the state courts.

"This is flat-out court corruption, and it's criminal," he said in an interview from prison.

His wife spoke of collecting damages when this is over, but Shuler is thinking beyond civil remedies this time: He is planning to bring federal criminal charges against the judge.

———

Campbell Robertson, New York Times






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Mythman wrote:
Wow: reminds me of Hawaii.....
on January 12,2014 | 09:24AM
iwanaknow wrote:
This is all lose lose......................if you blog, you better tell the truth and be above reproach.
on January 12,2014 | 03:44PM
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