10th Anniversary Fundraiser:
Alabama blogger Roger Shuler is living testimony to how "justice" is delivered in Alabama. Shuler writes a blog called Legal Schnauzer, where he focuses on Alabama politicians and the unjust justice Alabamians face if they find themselves on the wrong side of the powerful Southern political machine in place in that state.
An Alabama blogger who continued to write about the alleged extramarital affair of a prominent lawyer despite a court order was arrested and jailed last week. He was still being held without bond as of Tuesday, according to reports.
Roger Shuler, a former local newspaper reporter, writes a blog about Alabama politics, Legal Schnauzer. He wrote a series of posts alleging that Robert Riley, Jr., son of former Alabama governor Bob Riley and a lawyer rumored to be running for Congress, had an affair with lobbyist Liberty Duke.
Riley sued Shuler and his wife, Carol Shuler, last year for alleged defamation. The court issued a temporary restraining order and preliminary and injunction that prohibited Shuler from writing anything about Riley’s alleged extramarital affair, allegations that he had a child out of wedlock, and other related stories, according to documents posted online. When Shuler continued to write about Riley’s alleged affair, police pursued him during a traffic stop and arrested him for contempt.
Have a closer look at Shuler's photo. During that traffic stop, someone's elbow (or fist?) appears to have collided with his eye. According to Shuler's wife, they also pepper-sprayed him, claiming he was resisting arrest. Matt Osborne has photos of the scene where he was arrested.
Once again, it appears Republican hypocrisy is rearing its ugly head when it comes to online activity. On the one hand, many conservatives seem to follow the principle that libel and slander are fine and if you don't like it get a lawyer and sue. On the other, they cry about free speech until the guy who is exercising his right happens to be taking aim at the son of a former Alabama governor.
AL.com has a decent analysis, including quotes from LA lawyer Ken White of the Popehat blog:
"If you want an order to be issued against you, the way he acted is pretty much the best way to ensure it will be," said Ken White, a lawyer in California and author of the Pope Hat legal blog who has written about Shuler's case. "You have to show up in court to police your rights."
Riley asked the court for an injunction prohibiting Shuler from writing anything further about the alleged affair and asked that all posts about him on Shuler's blog 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.
After that, Neilson found Shuler in contempt of court. He was arrested at his home on Wednesday and subsequently charged with resisting arrest.
While White believes Shuler erred by not appearing before the court, he said that he believes the court was wrong to grant Riley the injunction.
"The basic principle is, if you write something that is false, then the court will impose a judgment after a trial," White said in an interview Tuesday. "It is a prior order. No trial has been held."
Since 1931, the U.S. Supreme Court has found that the First Amendment prohibits a court order restraining anyone from saying or publishing something, even if it is defamatory. In Near vs. Minnesota, the U.S. Supreme Court found that Jay Near, who published a scandal sheet about Minnesota politics, could not be enjoined by the courts from publishing.
Later cases have upheld the decision, most notably in 1971 when the New York Times and Washington Post sought to publish the Pentagon Papers, a secret history and analysis of the Vietnam War compiled for the government.
In short, if you intend to commit libel or slander, you can be punished or sued after the act, but not stopped from the act itself.
But that's exactly what happened in this instance, White said.
"The order basically scraped up every mildly supportive decision they could find saying that this is sometimes permissible, while ignoring everything else from the Supreme Court all the way down saying that this is unconstitutional," White said.
Alabama Republicans are walking in some deep, brackish mud with this one. We don't live in an age where you can beat the crap out of someone silently because they write things that might expose the corrupt machine of local politics.
With each passing day that Shuler sits in jail, more scrutiny is going to be placed on Alabama politicians and the hands that feed them. Blogging is not a crime, and having bloggers tossed in jail because you're the son of a powerful politician with your own ambitions is a dangerous precedent that has not escaped the scrutiny of many, without regard to whether we are right or left.
Here's Shuler's wife relating his version of what took place during his arrest, via OsborneInk: