Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction

Law, Politics & Current Events, WTF?

There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.1 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. 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.

Shuler writes about Republican politicians in Alabama. It may be my ideological bias, but I assume that's fertile ground for posts about substantive issues — the legacy issues of the civil rights struggle, the abusive elements of the criminal justice system, and so forth. But recently Shuler seems mostly interested in writing about politicians' marital infidelity instead. Perhaps he's trying out for a job with a cable news network.

Shuler set his sights on Robert J. Riley, Jr. Riley is the son of the former Republican governor of Alabama. So he's connected. Shuler seems to believe that Riley is being groomed for office himself; it may be true, though Shuler's word is not a good reason to believe it. A few years ago Shuler wrote about Riley paying a fine in a campaign finance investigation. More recently, Shuler accused Riley of having an extramarital affair with a lobbyist, and made various sordid claims about their relationship. Again, Shuler saying it is not a good reason to believe it's true; if anything, the accusation is discredited by coming from Shuler.

Riley sued Shuler for defamation. That much is unremarkable. Defamation isn't protected by the First Amendment when it constitutes false and unprivileged statements of fact.

But Riley went further. He got Alabama Circuit Judge Claude D. Neilson to issue a preliminary injunction — that is, an order issued before there's been a trial — prohibiting Shuler from saying certain things about Riley:

Based on the foregoing, Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said alleged extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received any such funds. The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court. These efforts shall include, but not be limited to, taking the subject information off of the website known as "Legal Schnauzer," taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube.

That order — forbidding Roger Shuler from saying something before he says it — is called prior restraint, and it is widely acknowledged to be a violation of First Amendment rights in all but the most extreme circumstances.

Roger Shuler continued to utter his accusations about Riley despite the injunction. Riley asked the court to hold Shuler in contempt. Shuler was arrested on October 23. His booking photo suggests he was beaten during the arrest. Though there are differing accounts, it appears that he was arrested for contempt for violating the unconstitutional injunction.

The Prior Restraint

The order underlying Shuler's arrest is unconstitutional.

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

Equity

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. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

This is not some mere Yankee affectation. The courts of Alabama — where Judge Neilson issued his injunction — have long recognized the principle. "Nor can an injunction be granted to restrain the publication of a libel." Montgomery & W.P.R. Co. v. Walton, 14 Ala. 207 (1848). As one Alabama federal court explained a century ago:

Neither a court of equity, nor any other department of government, can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance.Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water, 171 F. 553 (1909)2

So: preliminary injunctions against defamation have long been strongly disfavored in equity.

First Amendment Law

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored:

“A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”

Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

See also Nebraska Press Assn. v. Stuart, 427 U. S. 539, 559 (1976) ("[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights").

Many courts have drawn a distinction between post-trial orders prohibiting speech that a jury has found to be defamatory and pre-trial orders forbidding speech on which there has been no trial. Narrowly drawn post-trial injunctions may comply with the First Amendment; pre-trial injunctions do not in any but the most extraordinary circumstances.

Judge Neilson's Excuse

So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.

Judge Neilson — who may have executed a proposed order from Riley's attorneys3 — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate.

Moreover, the injunction has a key problem that courts have repeatedly identified: it doesn't just prohibit Shuler from saying a list of specified things, but also forbids "any defamatory statement about Petitioners, including, but not limited to" the specified statements. Courts strike down such language because it leaves a defendant like Shuler to guess at what he is or isn't allowed to say. Such vague language chills speech because it requires the injunction's target to risk jail over his belief about what is or isn't defamatory.

I read the injunction trying to find something "extraordinary" or "exceptional" about this case that could justify prior restraint. I failed. Judge Neilson attempts to rely on cases about defamation of trade by saying that Riley is in a high-profile business as an attorney, but does not explain how that is "extraordinary" as required by the Supreme Court. Almost everyone who bothers to sue for defamation is in some sort of business that might be harmed; this is not a limiting principle. Judge Neilson also indulges in a bit of scaremongering, suggesting that the injunction is necessary because Shuler has said the affair led to an abortion:

Some people in Alabama have very strong opinions about the ethics of abortion, and false statements about the Petitioners and abortion could subject Petitioners to ire, a physical altercation, or serious bodily harm.

As Aaron Walker suggests in his blog post about this, that argument is utterly ludicrous. Moreover, Riley and Judge Neilson cite no authority for the proposition that it's an "exceptional circumstance" just because the court can speculate that someone might believe the libel and as a result break the law to attack the victim for allegedly doing something protected by the United States Constitution.4

It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.

There is one other factor that may have influenced the judge: that Roger Shuler is creepy, crazy, and a vexatious litigant. In this case Shuler has engaged in the sort of litigation conduct that would enrage any judge, and that might cloud good judgment. Shuler is one of those litigants who seems to think that if he can successfully evade service of process he'll never have to face the case. So he refuses to answer the door when Sheriff's deputies come to his house to serve papers. Judges don't like that. (Just ask our friend Charles Carreon, who got hit with a $46,000 attorney fee bill in part because he evaded service like Shuler has.) Eventually, the Sheriff served papers on Shuler by running a traffic stop on him for a purported moving violating and serving the papers on him in his car by the side of the road.

Yeah, you read that right. Sheriffs serve legal process on people all the time. It's part of their job. But how often, for how many litigants, do you suppose the Sheriff runs a traffic stop to achieve service?

Two Unpleasant Points Of Law

I'm going to tell you about two points of law right now. You're not going to like them.

First: maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.

You can thank the Great War on Drugs for that. 18 years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.

Second: Roger Shuler may be in serious trouble for violating Judge Neilson's injunction even if it is unconstitutional.

You may be thinking "it's not a crime to violate an unconstitutional order." Regrettably, that's not always the case. Some jurisdictions follow the "collateral bar rule" which provides, in brief, that the remedy for an unconstitutional order is an appeal, and that it's not a defense to a contempt charge to say the order was unconstitutional. Alabama has a shameful role in promoting that rule. In 1963, another Alabama circuit judge issued an injunction against civil rights protestors to prevent them from sit-ins, demonstrations, and protests. Civil rights protestors defied them, and were held in contempt. The United States Supreme Court itself agreed that the injunction appeared problematical, but upheld the Alabama doctrine that the protestors had waived any constitutional challenge to the injunction by violating it instead of making any attempt to challenge it.

Yeah. That's awful, isn't it? And it means that Shuler will have, at a minimum, a very difficult time defending the contempt charge by attacking the constitutionality of the injunction.

So What?

Why should you care that Roger Shuler — a crazy, creepy, vexatious litigant who may well have defamed Mr. Riley out of political spite — has been arrested for defying an injunction?

You should care because the injunction was absurdly unconstitutional, and apparently derived through raw political power. You should care because such abuses will never be confined to those few people we can all agree are creepy, crazy, and vexatious. You should care because every time they are successful such abuses become easier and more common. You should care because each such case is another line in a footnote in the next prior restraint order by the next Judge Neilson urged by the next Riley, prohibiting someone else on pain of jail from speaking. You should care because each such case emboldens and encourages plaintiffs to seek prior restraint against criticism. You should care because in our legal system no man is an island, and each man's censorship diminishes our collective right to speak, because we are all involved in the legal norms that protect freedom.

I hope that Roger Shuler's case will attract attention and some competent counsel. Orders such as Judge Neilson's should not issue without consequence — whether that consequence is reversal or infamy. Mr. Riley should get his day in court, and should — if he can convince a jury that Roger Shuler defamed him — collect appropriate relief. But we should not stand by while he obtains prior restraint that weakens all of our rights.

By the way, though Roger Shuler wraps himself in the First Amendment and bemoans how defamation suits against him are intended to chill speech, he's a fair-weather friend of free speech. When vexatious litigant and unrepentant domestic terrorist Brett Kimberlin abused the legal system to silence his political opponents, Shuler reacts with amusement and applause — because Kimberlin hates the people Shuler hates and mouths the words Shuler wants to hear. But he wants you to be outraged that political opponents are abusing the court system to silence him. In short, Shuler is a hypocritical asshole. That's okay. In addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes. Good thing for most of us, really.5

Postscript

When I started to research this post, I planned to issue a plea to Shuler's political opposites to care about the prior restraint against him. But Aaron Walker has made the point more eloquently than I possibly could by writing a post about some of the problems with the preliminary injunction. Walker is the subject of censorious litigation by Brett Kimberlin, which Roger Shuler has applauded. Yet Walker challenges and questions the preliminary injunction against Shuler, because Walker cares about free speech. That's what support of key American ideals looks like.

Edited to add: Someone has started a legal defense fund for Mr. Shuler. Though I have doubts, based on how Mr. Shuler operates, that he has a factual basis for his accusations, I think that defamation cases should be resolved with both sides represented by competent counsel; one-sided affairs tend to yield results that erode free speech.

  1. Roger Shuler's past is not the focus of this post, so I will be brief in describing my research. I examined Shuler's court records from the United States District Court for the Northern District of Alabama alone — I did not examine state court records or any other district. I discovered the following: (1) Shuler was embroiled in a bitter state court litigation against a neighbor. When he didn't like the rulings of the judge in that case, he sued the judge pro se in federal court. He lost, of course. Suing the judge because you don't like the judge's rulings is a reliable hallmark of crazy and abusive litigants. (2) Shuler then tried to move the state case against his neighbor to federal court, despite the federal court's lack of jurisdiction over it, on the bogus grounds that it was related to his case against the judge. He lost, because his theory was frivolous. (3) Shuler sued the University of Alabama, several of its officials, and the Birmingham Police Department pro se in federal court. Shuler — who used the complaint as a vehicle to attack his neighbor and his neighbor's lawyer, and the results of his neighbor's lawsuit — claimed that UA fired him because of his blogging, because of a political conspiracy, and because he's a man. He claimed that the police unlawfully accepted an invalid criminal complaint against him. He lost in the trial court and on appeal. (4) Shuler's neighbor won $1,525 is the lawsuit against Shuler. Shuler didn't pay, so Shuler's neighbor got a writ of attachment and arranged for a sale of Shuler's house. That's what happens when you don't pay judgments. Shuler responded by filing a pro se complaint in federal court against his neighbor, his neighbor's lawyer, the Sheriff who conducted the sale, and the Alabama State Bar (apparently on the theory that it failed to disbar the neighbor's lawyer upon Shuler's demand). Once again, Shuler lost in the trial and appellate courts. (5) Shuler filed a pro se federal complaint against a debt collection company and, once again, lost in the trial court and the appellate court. (6) Shuler frequently moved to disqualify the federal judges hearing his cases, sometimes multiple times in the same case, on the basis that they had demonstrated bias by ruling against him. See here, here, here, here, and here. This is a reliable tell of a frivolous and vexatious litigant. How frivolous and vexatious? Prenda Law tried it. In short: even without delving into his state court litigation record, the evidence shows that Roger Shuler crazily abuses the court system.  
  2. Motherfuckers could write back then, yo.  
  3. Shuler thinks it is sinister that Riley's lawyers write the proposed orders that the judge signs when he grants their motions. In fact, it is standard practice in state and federal courts across the United States for successful movants to submit proposed orders granting their motions. In many jurisdictions the local rules require the party making a motion to submit a proposed order with it. It's also common for judges to ask litigants to draft proposed orders. You would think that Shuler would have picked up such a mundane aspect of litigation by now. But I only said he's creepy, crazy, and litigious; I didn't say he's any good at it. By the way: freaking out over a party submitting a proposed order to the court is another reliable tell of a crazy vexatious litigant.  
  4. Under Judge Neilson's reasoning, you could get an injunction to prevent a defendant from accusing you of burning a flag, officiating at a same-sex marriage, or voting for a controversial measure or candidate, as we could speculate that any of those things could drive an unbalanced person to attack you.  
  5. Since Kimberlin's recent RICO complaint seeking to silence critics, someone using the name "RogerS" has been leaving exceptionally awful federal civil procedure advice for Kimberlin in comments on pro-Kimberlin sites. Now, I'm not saying that Roger Shuler is definitely RogerS. But I can't help noticing that both like Kimberlin and both have an astoundingly awful grasp of federal law. I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means.  

Last 5 posts by Ken White

68 Comments

62 Comments

  1. Chris  •  Oct 27, 2013 @10:50 pm

    Is Shuler represented by counsel in his role as defendant in the defamation suit or is he defending himself pro se?

    I ask because one explanation for the unconstitutional preliminary injunction could be that the brief in opposition did a poor job making the case for just how horribly unconstitutional this injunction would be (not that this excuses the judge for issuing it).

  2. ysth  •  Oct 27, 2013 @11:01 pm

    Rily and Reily should really be Riley

  3. Harry Johnston  •  Oct 27, 2013 @11:18 pm

    Is there any downside for a US Judge if an order of his or hers is declared unconstitutional by a higher court?

  4. En Passant  •  Oct 27, 2013 @11:21 pm

    This is what I think of as an ACLU-ish flavored case, with roughly as handsome and endearing a speaker as the Skokie parade case in the 1970s. Best comment I saw at the time, in an ACLU newsletter, was a letter saying "Defend the bastards!"

    The principle of free speech is at stake here, and whoever does defend him deserves support from those who value that principle.

    So I hope somebody does defend this git.

  5. melK  •  Oct 27, 2013 @11:38 pm

    Was the preliminary injunction ex parte or unopposed? Could Judge Nelson have granted the injunction in part because Shuler wasn't there?

  6. melK  •  Oct 27, 2013 @11:43 pm

    Reading Aaron walker's post, Shuler did dodge service, was finally served, and did not show. Sorry. And yes, still not an excuse for the injunction, but points to an irritated judge.

  7. Aaron "Worthing" Walker  •  Oct 28, 2013 @12:05 am

    Ken,

    A few notes…

    As for why this was issued, I lean toward the "nutty pro se litigant"/frustrated judge theory.

    As for the connection with the Governor, my suspicion is that this is going the opposite way. Shuler blames Riley Sr. for being fired from his job, because he had a super excellent case against the debt collectors coming after him and so the lawyer for his neighbor who had a debt against him took his house, after someone conspired to place a really bad neighbor next to him and… Karl Rove! Okay, he's behind all of it! Eleventy!!!!!1!!!1!!

    Seriously, I am working on a long post on the guys nuttiness tomorrow. I am only exaggerating how crazy this guy is a little bit. Maybe not at all.

    And Chris, in answer to your question, he is pro-se.

  8. Dustin  •  Oct 28, 2013 @12:16 am

    Good on you for having consistency of principles, Ken.

    Rights are rights. Even for weirdos and even for bad people.

    Of course he is not a good example of what I wish we could see: criticisms and arguments conducted in speech, answered in speech, and left out of the courtrooms and employer phone calls and family doxing and the rest of this.

  9. Don't appear for court on contempt charges and most judges WILL throw you in jail.

  10. M  •  Oct 28, 2013 @2:36 am

    I'm not clear on why a pretext is even required for the sheriff to have pulled Shuler over to serve him? It would have been legal to sit outside his house until he left and ambush him, right? Would it have been cool if the sheriff had followed Shuler until he stopped on his own? These are actual questions, not sarcastic rhetorical ones.

  11. tmitsss  •  Oct 28, 2013 @2:37 am

    Is there a bond supporting the injujction?

  12. Anony Mouse  •  Oct 28, 2013 @3:14 am

    Moreover, what does serving a summons have to do with the 4th Amendment? Nothing was searched nor seized.

  13. todd  •  Oct 28, 2013 @4:31 am

    It is exactly this kind of nonsense which causes people to go on shooting sprees. I would not be surprised to hear about Riley and his lawyers getting shot sometime soon. Shuler sounds like he is off his meds and is very angry. A deadly combination of history is any guide.

  14. Edward  •  Oct 28, 2013 @4:45 am

    Pretrial orders affecting people should be heavily suspect in nearly any context. For example, pretrial drug tests, pretrial psychiatric evaluations, and similar actions seem unfair, though I haven't had to do much work on them until recently.

  15. David  •  Oct 28, 2013 @5:22 am

    Moreover, what does serving a summons have to do with the 4th Amendment? Nothing was searched nor seized.

    A traffic stop is a "seizure" of the person being stopped, per Terry v. Ohio, even if no arrest is made or even threatened.

  16. That Anonymous Coward  •  Oct 28, 2013 @5:31 am

    So once again the idea that they will only do this to 'Bad People ™' rears its ugly head. Why do people never understand that what you push being done to them, can in turn be done to you.

    He might be a really not nice person… but that doesn't mean the rules don't apply. Hell by creating this extra legal circus they brought MORE eyes onto the claims, spreading them further. The lengths they undertook only amplify it further and it calls into question those in power in that state doing what is politically helpful rather than following the law.

    Yep this is going to end well… and everyone should care simply because if they find a way to make all of this stick, they will use it again and again.

  17. Chris Rhodes  •  Oct 28, 2013 @5:38 am

    "The constitution? How many divisions does it have?"

  18. James Pollock  •  Oct 28, 2013 @6:14 am

    "The constitution? How many divisions does it have?"

    All of them. Every service member has taken an oath to support and defend the Constitution of the United States, and to follow the lawful orders of the officers placed over them.

    Obviously, officers and soldiers may break their oath to do either one… but there it is. (Remember who won the Little Rock standoff. The Constitution had the 101st on its side.)

  19. Lizard  •  Oct 28, 2013 @6:22 am

    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.

    Yeah, time for this:

  20. SarahW  •  Oct 28, 2013 @7:01 am

    "In this case Shuler has engaged in the sort of litigation conduct that would enrage any judge, and that might cloud good judgment."

    I can't argue that the judge isn't wrong on the law. But I think this profferred reason you suggest really does explain it. The mentally person is in the world with the rest of us, and is hurting real people, and the urge will be to manage the harm done. The paranoid, recalcitrant and contemptuous ill person lives in a fantastic, self-serving universe and doesn't respond to reason or reasonable warning.

  21. Quiet Lurcker  •  Oct 28, 2013 @7:17 am

    @Ken -

    I thought I saw somewhere in my mis-spent youth that the the mere fact of a law or rule or order being plainly unconstitutional was an affirmative defense, irrespective of whether it had been ruled so, harking back to the concept enshrined the military oath to obey lawful orders of (lawfully appointed) superior officers.

    Please don't ask me where/when or the source. I'm working from a vague memory of something I think I read at one time or other.

    Is there something to that notion, or am I completely off my rocker?

  22. C. S. P. Schofield  •  Oct 28, 2013 @7:18 am

    It seems to me that one of the benefits of honoring the First Amendment is that it drives one to more creative ways of dealing with those who abuse it.

    I recall stories about a town that, once informed that they could not block a parade by the KKK, lined the streets to mock the Klucks. Anyone remember the name of that town?

  23. Ken White  •  Oct 28, 2013 @7:24 am

    @Quiet:

    I thought I saw somewhere in my mis-spent youth that the the mere fact of a law or rule or order being plainly unconstitutional was an affirmative defense, irrespective of whether it had been ruled so, harking back to the concept enshrined the military oath to obey lawful orders of (lawfully appointed) superior officers.

    Please don't ask me where/when or the source. I'm working from a vague memory of something I think I read at one time or other.

    Is there something to that notion, or am I completely off my rocker?

    It is a defense to a contempt charge in some jurisdictions. But as far as I can tell the courts haven't ruled that it is required to be available as a defense, and in many jurisdictions it isn't.

  24. Lizard  •  Oct 28, 2013 @7:26 am

    Oh, also: Someone is named "Liberty Duke", and is not a gay porn star? (NTTAWWT)

  25. Dan  •  Oct 28, 2013 @7:41 am

    Not being a lawyer I am thoroughly out of my depth… but isn't there something called "plain error" where the objection was so obvious, and the result so unjust, that the ruling can be reversed even though he didn't voice that objection? Could that apply here?

  26. Graham Shevlin  •  Oct 28, 2013 @7:50 am

    I have been following Roger Shuler's blog for some time. The guy is more than a little cranky, and has adopted the role of a Don Quixote figure, tilting at all manner of real (and possibly imaginary) windmills. His biggest challenge is that he appears to hate lawyers and lawyering as an occupation (probably because of past bad experiences) so he refuses to use them and instead represents himself. Given that he is up against the political and legal establishment in his home state, he is seriously outgunned, not allowing for his pro se representation strategy.
    Having said that, it is clear that this recent incident is shockingly and egregiously unconstitutional. I am going to be donating some money on his blog. My main fear is that he will, on past form, refuse proper legal representation and end up stuck in the quixotic martyr mode of operation.

  27. TJIC  •  Oct 28, 2013 @8:02 am

    @Lizard

    Oh, also: Someone is named "Liberty Duke", and is not a gay porn star?

    I once wanted to learn more about ammunition reloading, so I typed in the URL dillonpress.com

    …and that's how I learned that there is a difference between Dillon Precision that makes reloading presses, and Dillon Press, who makes gay pr0n.

  28. Oesten  •  Oct 28, 2013 @8:13 am

    It's always worth it to read to the very end of Ken's posts, as that's where the awesome humor lives.

    I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means.

  29. Joe Pullen  •  Oct 28, 2013 @8:16 am

    @Graham – a very accurate description of Mr. Shuler. The fact he supports both Kimberlin's methods as well as those of Crystal Cox tell me that he has completely missed the "investigative" portion of his self conferred title, or he's a bit of a wingnut. I'm leaning towards both. That being said, the fact he is up against some heavy hitters does not bode well for him and like you, I doubt he will obtain competent legal council whether out of dislike for lawyers or for financial reasons I can't ultimately say.

  30. nlp  •  Oct 28, 2013 @8:29 am

    Out of curiosity, how have the courts defined "extraordinary" or "exceptional" circumstances?

  31. SarahW  •  Oct 28, 2013 @8:30 am

    @Oesten Never skip the footnotes

  32. Jeff Hall  •  Oct 28, 2013 @9:02 am

    Fourthamendment.com/blog talked about an even creepier example of prior restraint a few days ago:

    http://docs.justia.com/cases/federal/district-courts/idaho/iddce/4:2013cv00442/32488/8/0.pdf

    It seems to me that this whole discussion is like counting the angels on the head of a pin. Judges and police officers can, and nowadays do, put prior restraint on speech and the press all the time, and if you don't have the right connections and a lot of money then fighting prior restrictions in court is going to cause you a world of pain.

  33. Anonymous Coward  •  Oct 28, 2013 @9:10 am

    What a great article. It's thoughtful, educational, and provocative. I wish such level-headed articles made it into mainstream news.

  34. Gaelen  •  Oct 28, 2013 @9:18 am

    A lobbyist named Liberty Duke? . . . WTF

  35. Mika  •  Oct 28, 2013 @9:20 am

    I'm surprised that it is possible to dodge service in the US. Over here in Germany the bailiff can, if they can't find you multiple times and you don't have obvious means to take messages (such as a post box), just dump the message into your garden or staple it to your door and call it a day (and the message served). The (rather sensible) rule is that you have to arrange to take messages yourself.

    On the other hand I guess this is only possible because we have to tell the state where we live, such that the state always has a more-or-less up to date register of a legal address and that also defines where you have to arrange for means to receive messages. This mandatory population register containing everyone's address (and nowadays even fingerprints) is of course not reasonable.

  36. Chris  •  Oct 28, 2013 @9:30 am

    Roger Shuler certainly isn't a martyr on the cross of free speech. As noted, he could have challenged the injunction instead of simply violating it. What's more, the part of the injunction that IS plainly constitutional forbids him to publish court documents from the case–something which he's done over and over since learning about the injunction. So even if there was some merit to the argument that he's entitled to violate unconstitutional aspects of the injunction instead of challenging them in court, there's no similar argument that he should also be allowed to violate the parts of the injunction that are constitutional as well.

  37. David  •  Oct 28, 2013 @9:39 am

    That Shuler behaved like a jerk and/or a crazy person when presented with an unconstitutional court order does not change the fact that the court order was unconstitutional, nor that a responsible judge would have laughed the motion that precipitated it straight out of court.

  38. Dion starfire  •  Oct 28, 2013 @9:42 am

    Was anybody else reminded of the famous quote by Martin Niemroller about the Nazi's

    First they came for the Socialists, and I did not speak out–
    Because I was not a Socialist.

    Then they came for the Trade Unionists, and I did not speak out–
    Because I was not a Trade Unionist.

    Then they came for the Jews, and I did not speak out–
    Because I was not a Jew.

    Then they came for me–
    and there was no one left to speak for me.

    @NLP Some of the exceptions to prior restraint include:
    * matters related to an on-going trial (to protect integrity of the legal process),
    * national security (sorry, no counter for NSA gag orders here), or
    * when the speech is likely to place a person in imminent danger (e.g. domestic abuse cases).

  39. Ethan  •  Oct 28, 2013 @10:18 am

    The United States Supreme Court itself agreed that the injunction appeared problematical, but … the protestors had waived any constitutional challenge to the injunction by violating it instead of making any attempt to challenge it.

    jesus.

    fuck that noise.

    fuck the shit out of that noise.

  40. Matthew Cline  •  Oct 28, 2013 @10:34 am

    Shuler responded by filing a pro se complaint in federal court against his neighbor, his neighbor's lawyer, the Sheriff who conducted the sale, and the Alabama State Bar (apparently on the theory that it failed to disbar the neighbor's lawyer upon Shuler's demand).

    Holy crap. Suing the state bar, and pro se no less. I mean… English doesn't have sufficient words.

  41. JTM  •  Oct 28, 2013 @10:45 am

    Suing the state bar is pretty tame, as far as crazy pro se litigants go. I'd guess that Ken has some tales of jailhouse lawyers that'd knock your socks off.

  42. Lizard  •  Oct 28, 2013 @11:43 am

    …and that's how I learned that there is a difference between Dillon Precision that makes reloading presses, and Dillon Press, who makes gay pr0n.

    Now you know. And knowing is half the battle.

  43. Michael Donnelly  •  Oct 28, 2013 @12:44 pm

    Now you know. And knowing is half the battle.

    And the other half is violence. The GI Joe PSA's never seem to cover that part…

  44. EPWJ  •  Oct 28, 2013 @12:57 pm

    The First Amendment protects everyone — even creepy, crazy vexatious litigants. 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 supreme court erred in its decision with the pornographer and the TV preacher, state case law since the hustler case has clearly shown that some states completely ignore the hustler ruling.

    Additionally the creepy guy perhaps was threatening to write even further false and inflammatory remarks, so I don't think it was as egregious as it seems.

    We have strong disagreements – here – but as always your positions are infinitely more sound than mine.

  45. Philosopherva  •  Oct 28, 2013 @5:13 pm

    "…and that's how I learned that there is a difference between Dillon Precision that makes reloading presses, and Dillon Press, who makes gay pr0n."

    And if you wish to purchase sporting goods online from a mega-store, the address is http://www.dickssportinggoods.com. Do not abbreviate. Especially at work.

  46. pat  •  Oct 28, 2013 @10:14 pm

    I knew Rob in college , we were in the same fraternity and in the machine together. Rob was kind of a prick .. he used obscure parliamentary rules to get the things he wanted in the fraternity and on campus when he was sga president.. so none of this surprises me

  47. Garrett  •  Oct 29, 2013 @4:58 am

    @Ken,
    In your experience, how does the court handle non-crazy pro-se litigants?

    From reading online I get the sense that if you show up, state a claim, get to the point and follow some sort of reasonable process (even if only learned from watching Law & Order) the judge will usually try and make sure that you get your day in court. I'm not certain how well that reflects reality, however.

  48. mcinsand  •  Oct 29, 2013 @9:52 am

    At first glance, 'prior restraint' is very similar to The Bush Doctrine, where agencies take action in response to something a potential adversary might do in the future.

  49. wfjag  •  Oct 29, 2013 @3:56 pm

    Ken:
    While I agree that "preliminary injunctions against defamation have long been strongly disfavored in equity" and you make a strong and convincing case that any injunction on speech has to be strongly suspected of being unconstitutional, I'm not sure I agree with your conclusion in this case. Riley appears to be a public person. So, in order for any statement (or blog) about him to be defamatory, not only would declarant know or reasonably should know that the statement was factually false, the declarant would also have be acting with actual malice. I realize that the trial court didn't use that reasoning, but an appellate court isn't bound by the trial court's reasons for judgment.

    I haven't found a case which addresses the issue from this approach. Are you aware of any decisions adding the actual malice element into the analysis?

    Also, please remember that when alluding to southern state politicians who opposed the civil rights movement, they were Democrats. George Wallace was a Dem. So were "Bull" Conner, Lester Maddox, and Orvil Faubus. (I could continue, but it's a depressing and sorry litany).

  50. andrews  •  Oct 29, 2013 @6:19 pm

    lined the streets to mock the Klucks

    One year the KKK marched in the Christmas parade here in DeLand. People indeed lined the street. As the KKK folks approached, everyone simply turned their backs to the parade, turning back after the goofs had gone.

    I think that was the last we saw of them, and that has been many years. Oddly enough, they do not seem to be missed.

    People still line the street for the Christmas parade. It is a high point in the season and a well-loved downtown event, standing out in a city that is chock-full of downtown events and fun.

  51. 205guy  •  Oct 29, 2013 @7:34 pm

    I agree that prior restraint is a bad, bad thing and it was applied very lightly in this case (let's say without enough reasoning in the descision). And I'm pretty much convinced it was applied unlawfully here, but I think it was a clumsy maneuver by the judge/court to achieve some other end.

    First, the extraordinary circumstances weren't elicidated until Dion starfire's late comment, in which we learn that "matters related to an on-going trial (to protect integrity of the legal process)" could constitute an exception. Secondly, it's not until the footnotes that we see that Shuler's past behavior was directly targetting the courts. Not just frivolous lawsuits, but lawsuits against judges and the bar.

    So, how could a court system "defend" itself against people who would keep it from functioning (I realize some may laugh at that)? Does one person's right to speak about one other person trump a lot of other people's right to a speedy trial? And yes, the court system could abuse that power, so we must be careful. Are there any other means available to the court to achieve the same ends (keep vexious litigants from endlessly tying up court resources)?

  52. Robby Scott Hill  •  Oct 29, 2013 @9:45 pm

    "But he wants you to be outraged that political opponents are abusing the court system to silence him. In short, Shuler is a hypocritical asshole. That's okay. In addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes. Good thing for most of us, really.5" So, what you're saying it's a good thing for the Justices of the Alabama Supreme Court as well? LOL :^)

  53. Noneya  •  Oct 29, 2013 @11:22 pm

    Roger Shuler is neither creepy or crazy. And, he is not a vexatious litigant or a serial pro se abuser of the court system. While you have your opinion, I can assure you that it is not based upon direct discussions with Roger. I find your post about Roger to be nothing more than exploitation of someone when he's down. Doesn't take much character or thought to do that, now does it?

  54. Clark  •  Oct 30, 2013 @2:03 am

    Roger Shuler is neither creepy or crazy. And, he is not a vexatious litigant or a serial pro se abuser of the court system. While you have your opinion, I can assure you that it is not based upon direct discussions with Roger. I find your post about Roger to be nothing more than exploitation of someone when he's down. Doesn't take much character or thought to do that, now does it?

    I find it amusing that Ken attacks the overweening State on Roger's behalf, and one of Roger's partisans immediately denounces Ken as insufficiently in Roger's corner.

    This doesn't exactly sway me away from Ken's views on the matter.

  55. Ken White  •  Oct 30, 2013 @6:31 am

    @Noneya:

    Roger Shuler is neither creepy or crazy.

    Those are classic matters of opinion. I invite anyone to read his blog or observe his bizarre behavior in this case.

    And, he is not a vexatious litigant or a serial pro se abuser of the court system.

    For that proposition, you offer a short sentence with no support. For my proposition, I offer a seven-point footnote with more than a dozen court documents, citing specific examples of behavior. Feel free to explain why his behavior isn't vexatious.

    While you have your opinion, I can assure you that it is not based upon direct discussions with Roger.

    True.

    I find your post about Roger to be nothing more than exploitation of someone when he's down.

    And I find it funny that the supporter of such a wretched, frothing little tabloid scribbler would be so butthurt about someone saying mean things about him. Is he someone who can dish it out but can't take it? I mean, READ the stuff he writes. My God.

    Doesn't take much character or thought to do that, now does it?

    Do you think that I have to support someone's speech to support their right to speak it?

  56. The Alabama courts have long done the bidding of powerful Republicans.

    Karl Rove worked hard to pack them. It is why Donald Siegelman is in prison.
    ~

  57. Aaron "Worthing" Walker  •  Oct 31, 2013 @6:14 pm

    Noneya

    if you click on my name you will go to a link examining shuler's many writings. This is a test: if you think this is the product of a sane mind, let your local mental health official know.

    Yes, this is just an opinion. But I feel very certain about this.

    And he is a terrorist bootlicker who cheered on the fascist attempts of a convicted terrorist to silence me. Which doesn't justify this court order, but there you go.

  58. SPQR  •  Oct 31, 2013 @7:28 pm

    Well, we can see that Shuler hasn't the monopoly on the CrAzY in Alabama.

  59. dianne  •  Nov 1, 2013 @9:32 am

    As they say, "just because I'm paranoid, doesn't mean they aren't out to get me". I've been reading his column for a while now and admittedly, it's a little out there sometimes. I was once a resident of that fair state and it doesn't surprise me that he has a provoked a huge reaction for stepping out of his place. How else
    could the authoritarian Repubs keep such control if the citizens weren't so willing to allow it. When a person comes along who speaks up it astounds them all. He's braver than I was. I just left.

  60. North by Northwest  •  Nov 3, 2013 @9:08 am

    Ken,
    Have you ever tried to represent yourself in court? You should give it a shot.

    There is a solidarity between legal people against any outsider Pro Se. They will do anything to prove to you that justice in this country is not blind, but rather stares to your wallet.

  61. North by Northwest  •  Nov 3, 2013 @11:15 am

    Please remove my other comment too.

  62. Shaheed  •  Nov 5, 2013 @6:29 am

    As a reader of Legal Schnauzer since about 2007, Rodger Shulers speaks the truth. He uses public documents to support his claims. Moreover, his knowledge of the law, is above the average citizen. This litigation is a desperate attempt to intimidate him and other not to stand up for justice in this country. For the most part, the Justice system is corrupt throughout the U.S. He was the first person to report on the injustices of the former Governor. Thus, he is a threat to the establishment. The truth will prevail!

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