Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction

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68 Responses

  1. Chris says:

    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 says:

    Rily and Reily should really be Riley

  3. 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 says:

    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 says:

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

  6. melK says:

    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. 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 says:

    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 says:

    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 says:

    Is there a bond supporting the injujction?

  12. Anony Mouse says:

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

  13. todd says:

    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 says:

    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 says:

    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 says:

    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 says:

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

  18. James Pollock says:

    "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 says:

    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 says:

    "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 says:

    @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 says:

    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 says:

    @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 says:

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

  25. Dan says:

    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. 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 says:

    @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 says:

    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 says:

    @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 says:

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

  31. SarahW says:

    @Oesten Never skip the footnotes

  32. Jeff Hall says:

    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 says:

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

  34. Gaelen says:

    A lobbyist named Liberty Duke? . . . WTF

  35. Mika says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    …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. 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 says:

    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 says:

    "…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 says:

    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 says:

    @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 says:

    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 says:

    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 says:

    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 says:

    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 says:

    "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 says:

    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 says:

    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 says:

    @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. 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 says:

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

  59. dianne says:

    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 says:

    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 says:

    Please remove my other comment too.

  62. Shaheed says:

    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!

  1. October 28, 2013

    […] curious case of political blogger (Legal Schnauzer) and multiple litigant Roger Shuler [Ken at Popehat; Brian Doherty, Reason] And: Update on Kimberlin lawsuits against critics includes new action filed […]

  2. October 29, 2013

    […] Popehat thinks Shuler is a creep, but a creep with rights: […]

  3. October 30, 2013

    […] even Shuler's critics have pointed out, this sort of order is what is known as a prior restraint on First Amendment expression and is […]

  4. November 4, 2013

    […] 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 […]

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    […] a laywer in California who has been following the Shuler case, and has been writing about it on the Pope Hat legal blog. He says that even though Judge Neilson's injunction is unconstitutional, Shuler may still be […]

  6. November 15, 2013

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