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 ACLU — is 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.
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.
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
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