Update On Prior Restraint of Alabama Blogger Roger Shuler

Effluvia

A couple of weeks ago I wrote about Roger Shuler, an Alabama blogger. Shuler is the subject of a preliminary injunction prohibiting him from repeating a story about local political figures and requiring him to remove that story from his blog. In my post I argued that the preliminary injunction constitutes unconstitutional prior restraint; most of the legal commentators I've seen have reached the same conclusion. In short, the First Amendment allows a court to impose consequences on you if your speech is found to be defamatory at trial, but in all but the most extraordinary circumstances doesn't allow a court to prohibit you from uttering your allegedly defamatory speech before trial. Roger Shuler simply doesn't present an extraordinary circumstance justifying prior restraint.

Shuler remains in jail — he was arrested for contempt of court based on his refusal to abide by the preliminary injunction, and also charged with resisting arrest for something that happened during the arrest. I wasn't there for the arrest and can't say what happened. I will merely observe that "resisting arrest" is often code for ""contempt of cop" or for "suspect then assaulted my fists and nightstick with his face, groin, and knees."

There are two significant developments in the case: one good, one bad.

The Good: Mrs. Shuler reports that the ACLU has sought leave to file an amicus brief questioning the preliminary injunction, and has submitted a proposed brief. The brief — signed by Randall C. Marshall, director of the Alabama ACLUis here. It's good. The ACLU's brief makes two points: first, the prior restraint on Shuler is unconstitutional under settled law and no extraordinary circumstances justify it, and second, the court's decision to seal the entire case file is constitutionally suspect.

I found it more than a little surreal to be cited in a brief by the ACLU:

In the meantime, the remedy for Petitioners lies not in the suppression of speech but in more speech. Indeed, with the proliferation of the discussion of this case on the Internet, even those who raise First Amendment concerns are highly critical of Shuler. See, e.g.¸ http://www.popehat.com/2013/10/27/alabama-blogger-roger-shuler-arrested-for-violation-of-unconstitutional-injunction/ (last visited November 1, 2013)

The ACLU's point is a good one: the fact that Shuler is saying nasty and potentially defamatory things is not an "extraordinary circumstance" justifying the Alabama court's decision to disregard the imposing wall of precedent against prior restraint. It's not an extraordinary circumstance, in part, because the marketplace of ideas provides pre-trial remedies in the form of response speech. Upon review of Shuler's litigation history and his posts I am disinclined to believe anything he writes, and suspect he's making up this story in particular. That doesn't make it right for a court to ignore First Amendment precedent and impose prior restraint just because Shuler is crazy, creepy, or offending the local political elite.

So: the ACLU's amicus brief may not turn the court around, but it may bring more attention to the case and make the court be more cautious about broad and unconstitutional orders.

By the way, the unprincipled and unconstitutional orders that Shuler's adversaries sought, and that an Alabama judge granted, have drawn far more attention to this case than an obscure blogger's plight would otherwise have merited. That's the Streisand Effect in action.

The Bad: Shuler's craziness may be an impediment to getting him effective representation and pushing back against the unconstitutional orders in the case.

Alabama news reported on his first appearance after his arrest:

Tuesday morning Roger Shuler appeared in Shelby County District Court to answer a charge of resisting arresting. During his court appearance, Judge Ronald Jackson asked if Shuler had an attorney. Shuler replied no. The judge then asked if Shuler wanted the court to appoint an attorney for him. Shuler again replied no.

DAMMIT.

Yeah, I know that was only on the resisting arrest charge and not on the contempt charge. But it does not bode well for Shuler accepting help on the contempt charge, and thus on the crucial First Amendment issues in the case.

Look: be a martyr and refuse legal counsel to make a point if you want. But don't confuse that with mounting an effective fight against injustice. Lawyering isn't rocket science, but it does require training and experience. Every indication (see, for instance, the history in footnote 1 of my post about Shuler) indicates that Shuler does an awful job representing himself. The system is designed to chew up people who represent themselves. It's not fair, it's not right, but there it is — a fact that won't go away just because you're in the right. Shuler's rejection of a lawyer seems to be part of the pattern of misguided antics that has robbed him of the opportunity to litigate the First Amendment issues, like evading service and refusing to show up for hearings based on nutty vexatious litigant theories.

If Shuler continues to refuse counsel, it's highly unlikely that he will successfully navigate a system that's indifferent to him at best and hostile at worst. Does he have a right to do it himself out of some sense of pride or justice? Sure. But his bumbling may serve to lock in the orders against him and, through bad precedent, weaken everybody else's rights a little. It's crazy.

I'm aware of at least one substantial rights organization other than the ACLU that has expressed to me an interest in helping Shuler — if he will accept help. If anyone has any power to persuade him, now would be a good time to start.

Last 5 posts by Ken White

29 Comments

26 Comments

  1. David  •  Nov 13, 2013 @10:02 am

    Why is there no way to have someone declared incompetent to represent him/herself in court (I assume there is not, because I've never heard of one)? Shuler seems like he's going to insist on being his own attorney despite pro bono counsel being available, and he'll end up fined and/or in jail because of it – sure sounds like a danger to himself to me.

  2. Evan  •  Nov 13, 2013 @10:11 am

    @David – Because everyone has a right to represent himself, because incompetent self-representation harms only the person choosing to do it (except for, yes, precedent…), and because any standard for declaring someone incompetent and forcibly appointing a lawyer for him is ripe for abuse. I've heard of multiple dictatorships appointing lawyers for dissidents who purposefully messed up their clients' cases. In my mind, preventing that from ever happening here is worth some bad precedents.

  3. David  •  Nov 13, 2013 @10:40 am

    At the same time, we already have rules that can bar people from litigation entirely when they abuse the process, which seems like a much more extreme measure to me.

  4. En Passant  •  Nov 13, 2013 @11:05 am

    Look: be a martyr and refuse legal counsel to make a point if you want. But don't confuse that with mounting an effective fight against injustice.

    That confusion is the line that separates zealous from stupid. It's usually a symptom of elephantiasis of the ego.

  5. Wick Deer  •  Nov 13, 2013 @11:27 am

    Pro Se is Latin for loser.

  6. Hasdrubal  •  Nov 13, 2013 @11:46 am

    So, a disastrous precedent resulting from an incompetent pro se litigant can be used as precedent. But, does that translate to a weak precedent? I.e. will thugs refer to this case when threatening others and seeking prior restraints, but that just forces competent lawyers to spend a line or two saying "It's a bad result from a nutty pro se litigant that flies in the face of settled law, nuff said. But, just because the other guy raised the issue (and he should have known better) see a, b, c, do you want me to give you more cause I have like 4 dozen others…"

    In other words, does a precedent set this way just turn into a minor nuisance for anyone with competent council, or could it lead to a persuasive argument?

  7. JeffM  •  Nov 13, 2013 @12:37 pm

    Is there any disastrous precedent looming?

    Shuler is in jail, as I understand it, for failing to show up in court to argue against the injunction, and, if the cops are to be believed, for starting a scuffle. Ignoring the scuffle, which is he said/ she said, I gather that it is not in dispute that Shuler neither opposed the injunction when and where he should have nor showed up in court when ordered.

    The precedent that you need to show up in court when ordered to do so is neither new nor disastrous.

    Finally, what precedent can this judge establish about prior restraint? I think the US Supreme Court has already established the relevant precedent.

    I am not a lawyer so maybe this is gross ignorance speaking, but no one has explained this case in a way that makes me understand what is so horrifying. A judge screwed up; he probably does it every day that he is sitting. There are remedies for that. Shuler appears to have screwed up too, and he is paying the price for that. What am I missing?

  8. Matt  •  Nov 13, 2013 @12:43 pm

    I've known of courts to appoint counsel in cases where the defendant didn't want it, but only on serious criminal matters. (The one I'm thinking of was a child pornography case I think.) And even in that case, the appointed counsel wasn't technically the lawyer of record – the client was pro se and the lawyer was there as some kind of weird adviser to him. Mostly it was just for the convenience of the court and in the hope that the trial could proceed in some kind of somewhat orderly fashion.

  9. C. S. P. Schofield  •  Nov 13, 2013 @1:09 pm

    It sounds like Mr. Shuler either doesn't know or doesn't believe the adage that you will not win an argument with a Judge in his own court. Granted, there are exceptions, but when one does win one does so by being extremely polite, making lawyer noises that the Judge finds soothing, and allowing the opposing council to annoy His Honor. Otherwise one wins on appeal, by subtly goading His Honor to do something that will annoy a higher court. Making Tom Paine speeches doesn't work, and is harder than Mr. Paine made it look, besides.

  10. Dion starfire  •  Nov 13, 2013 @1:38 pm

    In other words, does a precedent set this way just turn into a minor nuisance for anyone with competent council, or could it lead to a persuasive argument?

    That's a good question and one I'd also like to hear an answer to. Let's hope one of our more legally astute alumni can explain what we non-lawyers are missing.

  11. MrSpkr  •  Nov 13, 2013 @2:19 pm

    Given that this is a local state court, it will have zero value as precedent. In state court actions, local court decisions are generally not reported (published in a time of case law) and thus have nearly zero impact outside the case itself.

  12. Garrett  •  Nov 13, 2013 @2:20 pm

    @C. S. P. Schofield:

    when one does win one does so by being extremely polite, making lawyer noises that the Judge finds soothing, and allowing the opposing council to annoy His Honor.

    I am not a lawyer, but I always thought the first rule of Courtroom proceedings was "never piss off the judge".

  13. Suedeo  •  Nov 13, 2013 @3:34 pm

    Suggestion:

    IF citizen is formally charged with "resisting arrest"

    AND charges are later dropped without explanation

    THEN charging officer receives a disincentive (a fine / docked pay / a demerit in their job performance).

  14. StewBaby911  •  Nov 13, 2013 @4:01 pm

    It was on the Addams family movie that Gomez sais
    "anyone who represents themselves in a court of law
    has a fool for a client"?

  15. mud man  •  Nov 13, 2013 @4:40 pm

    In general, can't you do amicus stuff, without being an actual party? If the judge will allow it? So you could make your written arguments part of the record, at least. Or does this count as annoying the judge? IANL, obviously.

  16. Rhonda Lea Kirk Fries  •  Nov 13, 2013 @6:28 pm

    @StewBaby911,

    It was on the Addams family movie that Gomez sais
    "anyone who represents themselves in a court of law
    has a fool for a client"?

    That quote is a wee bit older than Gomez–it's most often attributed to Abraham Lincoln (although I've never seen actual proof that he said it first).

  17. mikhael  •  Nov 13, 2013 @7:43 pm

    Why is it surreal to be cited by the ACLU? Seems like a logical progression to me, since you advocate for civil liberties.

  18. Rob  •  Nov 13, 2013 @7:56 pm

    @mikhael: I think Ken is just having trouble with the notion that he's more than "internet famous" (i.e. known by people other than blog followers) now. ;)

  19. Eric  •  Nov 14, 2013 @7:26 am

    At the risk of asking a dumb question or derailing the comments, what sort of "extraordinary circumstances" DO warrant prior restraint from the courts?

  20. Taliesyn  •  Nov 14, 2013 @8:22 am

    @Eric:

    The first thing that comes to mind is an exhortation for immediate violence – things like calling for an assassination or assault, or for some sort of mob 'justice'/violence, things like that. Basically, actions that could easily cause a clear and present danger to people.

    That said, keep in mind IANAL, and I could be WAY off here.

  21. Paul Baxter  •  Nov 14, 2013 @8:54 am

    Congrats on becoming part of the legal landscape!

  22. nlp  •  Nov 14, 2013 @8:58 am

    Eric, I asked the same question in the earlier article on Shuler, and received this response:

    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).

  23. Helen Tansey  •  Nov 14, 2013 @2:58 pm

    Roger Alan Shuler posted to Rally for Roger Shuler

    I'm feeling very despondent. If I had been able to get online the first 10 days after this mess happened, I might be closer to having a good lawyer or two lined up. But instead, here I sit with no legal representation and a permanent injunction hearing of some sort at 10 a.m. tomorrow. No wonder I wish I could just die in my sleep….
    Share · 20 hours ago near Birmingham, AL ·

  24. Steve Lane  •  Nov 14, 2013 @4:04 pm

    Helen Tansey, Just so that people are not confused the quote you copied from Roger Alan Shuler was made by his wife Carol.
    Mr Popehat I guess you do not read as well as you seem to think. I have been following Rogers blog since the time he was outing the corruption in the prosecution of Don Siegelman. Roger does not make stuff up. Everything he has published he backs up with publicly available court documents, Information from the public record or from freely given interviews. He was shafted by the Alabama GOP mafia for his reporting on Don Siegelman and it cost him his job and his wife's job. That said Roger knew he was dealing with corrupt Judges and the corrupt Riley clan. He must have assumed that because they had no legitimate case against him that they could not touch him. He should have known by now that corruption does not give a damn for legitimacy and that applies multiple fold for corrupt Judges and police.

  25. Helen Tansey  •  Nov 14, 2013 @4:44 pm

    Thanks for correcting the record, Steve.

    I concur with your impression of Shuler's dogged work to expose the deeply corrupted Alabama political and judicial system. He's done some major heavy lifting with little to no support. He's a 'sunshine' guy who is meticulous in his documentation.

  26. FishOutofWater  •  Nov 16, 2013 @11:32 am

    Roger Shuler has excellent reporting skills but he has become increasingly paranoid since I started reading his groundbreaking coverage of the Siegelman case. Of course, they really are out to get him. Thus it's hard to know were his good reporting ends and his fear induced interpretations of what's going on begins. I do not believe Roger is intentionally making anything up. I believe he is a man of principle. However, I suspect that he needs medical treatment for his increasing paranoia, even if they really are out to get him.

    I hope Roger gets excellent legal representation. He needs it. The way this case has been handled to date is a threat to freedom of speech and all bloggers.

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