Alabama Court, Roger Shuler Continue To Thwart Roger Shuler's First Amendment Rights

Law, Politics & Current Events

Back in October I wrote about how an Alabama court had issued a preliminary injunction against "Legal Schnauzer" blogger Roger Shuler prohibiting him from blogging about certain claims and requiring him to take blog posts down. I also explained why that preliminary injunction was likely unconstitutional prior restraint — an order that prohibited speech before it happened rather than punishing defamatory speech after it happened, without any extraordinary circumstances that might support it. Last week I talked about how the ACLU had filed an amicus brief on Shuler's behalf, but bemoaned that Shuler was refusing legal counsel in a case arising out of his arrest for defying the preliminary injunction.

There are updates. They aren't good.

Though Roger Shuler may have enemies amongst Alabama politicians, and perhaps even amongst Alabama judges, he remains his own worst enemy.

The Alabama Court Has Issued A Permanent Injunction

This week a local news station reported that on November 14, 2013 the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.

The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:

There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal."

That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — though Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.

Some may suggest that because a court held a hearing and issued a permanent injunction rather than a preliminary injunction, this is no longer an issue of unconstitutional prior restraint. I disagree. The authorities permitting prior restraint of statements found by the trier of fact to be defamatory — whether by forbidding their utterance, or requiring them to be removed — only support such an order after a trial, not after a pre-trial hearing. Here Shuler has not had an opportunity to conduct discovery and the judge, rather than a jury, acted as the finder of fact. The vast weight of authority seems to be against prior restraint until after trial except in extraordinary cases — and nothing about Shuler's case is extraordinary, except perhaps the political connections of his targets.

In 2007 the California Supreme Court upheld a post-trial order enjoining specified defamatory statements; that opinion has a good survey of prior restraint cases across the state and federal courts. Those authorities strongly supports the notion that the First Amendment requires a full trial, not a mere pretrial hearing, before prior restraint is permissible. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) 413 U.S. 376, 390 [“prior restraint is... communication...before an adequate determination that it is unprotected by the First Amendment”); Kramer v. Thompson (3d Cir.1991) 947 F.2d 666, 675 [“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.”]; see DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 891–892, 4 Cal.Rptr.3d 69, 75 P.3d 1 (conc. opn. of Moreno, J.) [“a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims”].

Moreover, until we see the written permanent injunction, we won't know if it suffers from the other flaw of the preliminary injunction: vagueness. The preliminary injunction didn't just require Shuler to take certain posts down and forbid him from saying specific things about Riley; it also vaguely forbade him to publish "any defamatory statement" about Riley "including but not limited to" the defamatory ones. That leaves Shuler (or anyone advising him) to guess at what he may or may not publish. It's exactly the sort of vague and indefinite prior restraint repeatedly struck down by courts. If it appears in the permanent injunction, it's an additional ground for constitutional challenge.

Roger Shuler is Still Roger Shuler

Riley's lawyer James Murrill — whose version of events admittedly should be taken with a pillar of salt — describes Shuler's conduct at this week's hearing as follows:

A hearing was held today on a permanent injunction. Mr. Shuler attended and presented no evidence in support of his false allegations, but instead called the Court a joke and said that he would not follow the Court's order. He also told the Court that it had no jurisdiction over him.

Well, that's just disastrous for Shuler and for the First Amendment. It's exactly the sort of behavior that concerned me when Shuler refused a court-appointed lawyer.

Shuler may believe that the fix is in; he may believe that this Alabama court is biased for powerful and connected local politicos like Riley and against critics of powerful politicos like Shuler. That doesn't make refusing to participate, calling the court a joke, and denying the court's jurisdiction a sensible strategy. It's a wholly deranged strategy. Shuler increasingly reminds me of some of the defendants I saw as a federal prosecutor in the 1990s — tax protestors who claimed that the United States District Court was an admiralty court with no jurisdiction over them because it flew a flag with a gold fringe, Feemen who said that the defendant named in the indictment was not the same person as them because the name was capitalized in the caption and their name is not capitalized, and so forth. Shuler's "I successfully evaded service and therefore this court has no jurisdiction over me" is a madman's gambit. Jurisdiction isn't a game, and even if it were a game, Shuler lost it. Shuler's litigation behavior — which is merely an extension of his history of vexatious pro se behavior — is robbing him of any chance of vindication of his rights.

Perhaps this court is biased against Shuler and for Riley. Riley is from a powerful family and has powerful friends; Shuler is — in a way that appears to me to be haphazard and crazed – a critic of powerful politicians. The court has issued a preliminary injunction that strikes me as frankly lawless. But ultimately you can't vindicate your rights by refusing to acknowledge the court, like some fallen dictator before a revolutionary tribunal. You have to fight for your rights. You have to articulate how you believe your rights are being violated. You have to seek to call witnesses, to present evidence, and to cross-examine the other side's witnesses. If, like Shuler, your circumstances make those things nearly impossible, you need to articulate your need for more time or resources and explain what you would do if you had them. If you don't do those things, you not only lose in the court you think is biased, you very likely lose on appeal or on any collateral attack in another court — because you haven't acted to preserve your arguments.

Shuler was in a very bad place this week, but he could have acted to protect himself. He could have asked for time to secure an attorney. There are pro bono attorneys willing to help him. He could have asked for time to conduct discovery to support his assertions. Even if he couldn't refute Riley's assertion that his blog posts were false, he could have tried to show that he had some sources and evidence supporting them. That might have demonstrated that his posts weren't defamatory because he didn't write with with actual malice, the standard applicable to statements about a public figure. But if Murrill's account is accurate, and he simply refused to participate, he may have lost not only this motion, but his ability to challenge it on appeal or in any other court. Any reviewing court may conclude that Shuler waived the arguments he declined to make.

It's not clear why Shuler is acting that way. Is his story a lie, and he knows he can't support it? Is he swollen with hubris? Is he crazy? Whatever the answer, legally speaking he's cut his own throat. Worse, he's helped set a precedent that will embolden future plaintiffs seeking to silence defendants through unconstitutional prior restraint.

I would have no problem if Riley sued Shuler, took him to trial, convinced a jury that his posts were false and malicious, secured a judgment against him, and enforced it against him. Shuler's conduct and history, and the shady nature of his claims, makes me extremely skeptical of his story. But this is a very bad result any way you look at it.

Last 5 posts by Ken White

28 Comments

28 Comments

  1. Dustin  •  Nov 17, 2013 @10:05 pm

    This is a shame. Mainly because now someone will cite this to support silencing a critic. I don't think the would-be censor will be able to prevail doing so for very long, but it is a step in the wrong direction.

    I knew a victim of a censorious thug who failed in court and behaved like this in court. I didn't understand why he shot himself in the foot by behaving like a toddler when speaking to a judge, but it did make his little tragedy persist, and he did use that to elicit attention and sympathy. This guy turned out to be a huge liar about a lot of things, and even though the censorious thug was far more evil, it doesn't make the victim/weirdly self destructive guy a saint.

    There's a reason our justice system tends somewhat towards those who can keep their cool and speak earnestly for themselves. Most people who stand on a principle are eager to explain why. The law is imperfect, but on this it's generally on the right track.

  2. JS  •  Nov 17, 2013 @10:16 pm

    Isn't this basically a default judgment based on Shuler's failure to present a defense? That would be a merits decision, so the law on post-trial injunctions would seem to apply…

  3. Ivraatiems  •  Nov 17, 2013 @10:26 pm

    I'd love to see a transcript of that hearing, if there was a way to get one…

  4. Dion starfire  •  Nov 17, 2013 @10:56 pm

    We never got an answer to this question with the last Shuler post (prolly got lost in the shuffle) so I'll ask it again:

    Could a precedent resulting from an incompetent pro se litigant really be used as a persuasive argument, or would it just turn into a minor nuisance for anyone with competent council?

  5. Christenson  •  Nov 17, 2013 @11:00 pm

    Riley said those court records were unsealed… Any links?

  6. Michael Donnelly  •  Nov 17, 2013 @11:02 pm

    I don't see how it could be a strong citation in future attempts to silence speech. A competent defense can distinguish his/her case from Mr. Shuler's just by properly raising all the arguments that Mr. Shuler did not.

    At least that's my unfrozen caveman lawyer opinion.

  7. Patterico  •  Nov 18, 2013 @12:21 am

    I don't know. I guess it matters to me, to some extent, whether the speech that Shuler is engaged in is actually defamatory. While I can agree that the Supreme Court says there should be no prior restraint on speech that has not already been judged to be defamatory, and I am willing to support that rule, I am less apt to get super-duper-disturbed by an injunction like this if the speech really is defamatory.

    Please note well: It's not a question of whether I agree with the speech or not, as I fervently believe in people's right to speak things with which I disagree. But I don't believe in people's right to defame.

    So to me, an important question is: is Shuler's speech in fact defamatory? Here, I don't know whether it is or not. But let's say, for example, that Shuler had said that Ken had a sexual relationship with Karl Rove. (He has said that Ali Akbar has had such a relationship with Rove, so the scenario is not as far fetched as it might seem on its face.) Technically, he cannot be prevented from repeating that again and again and again and again and again and again and again until a jury has judged that it is defamatory. But as a practical matter, I just can't get all that upset about it the judge tells him to shut his trap — IF I know for a fact that what he is saying is bullshit.

    I am not saying prior restraint law is wrong or that a judge should not do what is legally right. I am just saying that, if Shuler is actually defaming Riley, I can't bring myself to care about this injunction that much. And if I were a betting man, from what I know about Shuler, I would bet he is defaming Riley.

  8. Patterico  •  Nov 18, 2013 @12:30 am

    And I agree with those who argue that the treatment of this asshole does not serve as much of a precedent for anything. If the court's orders are illegal (and it sounds like they are) they will be (and should be) struck down. If instead they are left in place because the douche does not appeal them, what precedent does that really set? I submit virtually nothing of consequence.

  9. C. S. P. Schofield  •  Nov 18, 2013 @7:09 am

    I'm not sure it's all bad, all the time. Yes, in an ideal world the Court would have acted to protect Shuler's rights even with Shuler acting the ass, but we do not live in an ideal world. Self-nominated Activists, Crusaders, and so on have a long history of antagonizing courts to the point of undermining their own cases, and it sometimes seems to me that this is a tactic used by pillocks who know they have no case. The Chicago Seven may have been found Not Guilty of the conspiracy charges leveled against them, but their own fans have since maintained (with misplaced pride) that they were as guilty as a feline in a fish tank. They ended up in prison on multiple contempt charges, which were richly deserved. One has to wonder if that was their intent.

    If Shuler has cast himself as a martyr and is making sure that that prediction comes true, then by all means throw him into prison so hard that he bounces. It will make him happy, or at least teach him better, and keep the little moron off the streets where he doubtless constitutes a hazard to navigation.

    The precedent that this may establish is bad, I admit.

  10. Chris  •  Nov 18, 2013 @7:45 am

    I, too, fail to see the precedent that this supposedly establishes. That an unopposed motion for an injunction will be granted? That a person who willfully violates that injunction instead of opposing it in court will be held in contempt of court? It's certainly possible that more defamation plaintiffs will attempt to get vague and sweeping injunctions in the mold of this case's preliminary injunction, but given the amount of publicity that this case has gotten and the likelihood that there will be actual, litigated opposition to such a motion I don't really see how this case could provide support in law or from a tactical standpoint.

  11. Ryan  •  Nov 18, 2013 @9:19 am

    I'm not sure if Ken is using 'precedent' here in it's legally-binding sense of established case law, or the more informal idea of "if this can happen once, then it's that much easier that it can happen again." Maybe he can clear that up. I'm inclined to agree with the latter interpretation, but it simply does not appear to be something that can establish legal precedent (e.g. for the purpose of citation and support) in the future. Correct me if I'm wrong, of course.

  12. CJK Fossman  •  Nov 18, 2013 @9:20 am

    @C. S. P. Schofield

    Self-nominated Activists, Crusaders, and so on

    The self-nominated ones are definitely the worst kind. They should all apply for the proper Activist and Crusader licenses, and be sponsored by responsible parties such as Barbra Streisand or the Koch brothers.

  13. Dictatortot  •  Nov 18, 2013 @9:35 am

    The $64K question for me is: even if this establishes some sort of precedent, how far should any principled 1st-amendment parties go in helping a man who doesn't want their help? The idea of freedom seems to imply not only rights, but the liberty to waive those rights for any reason, whether sound or loony.

    By now Shuler's made his desires clear. And at this stage, all these amicus briefs and "accept my pro bono help, goddammit" invites are starting to look like unseemly impositions on the man. Whatever the long-term consequences, hectoring the man into doing something he'd rather not do isn't sitting well with me; he appears to have made up his own mind and to understand the stakes for his own hide … even if he IS a couple sex offenders short of an anime convention.

  14. C. S. P. Schofield  •  Nov 18, 2013 @9:59 am

    CJK Fossman,

    OK, I'm a grouch about political activism. I admit it. Too goddamned many people treat it as a hobby, which might be fine if they didn't affect policy. Anyone who becomes an activist because he has been directly touched by an issue isn't self-nominated. Life-nominated, maybe. That leaves hobbyists, and professional grievance pimps like Al (if I was white I'd be KKK) Sharpton.

    Schuler strikes me as self-nominated. Also as nutty as a health bar.

  15. nlp  •  Nov 18, 2013 @10:20 am

    What annoys me about this type of pro se case (where the pro se side is the defendant rather than the plaintiff) is the thought of all those attorneys over the years who fought to establish the right to counsel for criminal defendants. Then someone like Shuler insists that he doesn't need an attorney because his rights are perfectly clear, and proceeds to flub his case. When Abe Fortis was arguing Gideon v Wainwright he mentioned that when Clarence Darrow, the most famous defense attorney of his era, was accused of jury tampering, the first thing Darrow thought was that he needed a lawyer.

    If a lawyer knows that he needs dispassionate legal advice, then why would a layman believe he can manage his own case?

  16. SarahW  •  Nov 18, 2013 @10:29 am

    My take is rather Tallulah-in-the-lifeboat : "what are you going to do with people like that?" I am not so down with letting the mentally ill run amok when they have no respect for process (or are too delusional to have respect for it.) He really did thumb his nose at the court, and every chance so far to stake a claim and make a case in court. He was apparently unwilling to show up to court to even *assert* his claims were true or that his allegations/conclusions had some reasonable basis. If he wouldn't do it then, when would he EVER do it?

    It's very plain he has some sort of paranoid disorder with persecutory delusions. This is a man who believes his "criminal" next door neighbor was installed there to torment Shuler and drive him to ruin, by powerful forces of the university using the unethical means of concealing the B-dry system from that new owner.

    High functioning paranoids are not generally in the full jibber and drool mode expected in a madman. Sometimes they are like Shuler; they are self-absorbed, self-centered jerks, often vicious jerks, who hyper-connect unrelated things that annoy them into a grand conspiracy that pushes them into a central hero/victim/martyr/avenger role.

    That's what I think Shuler is. And though I don't see many people arguing with the prior restraint imposed, esp. WRT unconstitutional vagueness of the "go and sin no more" injunction, neither his inclinations or his actions are likely to be fettered by any "chilling language" about what he can say in the future. That's because he's nuts.

    If the law can't make him accept counsel, can't treat him, can't do anything but lock him up for what would get anyone else locked up, I don't know how to make a case for special considerations for his disability. I wish there were some. I wish the court could order a mental evaluation for his criminal charge at least. But, I've always thought the imperfections and faults in the courts handling of this matter were directly related to the difficulties of dealing with someone who is just not right in the head.

  17. Alabama...sigh  •  Nov 18, 2013 @12:57 pm

    If I may, I'd like to add a little context for the readers on the typical workings of the Shelby County, Alabama court.

    Think 8 month delay in getting a trial date. And I do not mean "oh you need a continuance because you drug your feet on discovery and need a new setting." Typically you show up ready for trial after having fully performed all pre-trial activities only to be told that trial setting was really to see if it would settle, but if you want an "actual" trial date then you can have one day in about 6-8 months and then if it goes over you might get another day in about 3 months, hopefully.

    As far as the concerns over precedent go, it really does not matter there. Upon denial of a motion based upon xyz, I asked for reconsideration because xyz had already been addressed on appeal, and was not a valid reason to deny my motion (keep in mind exact same issue). Where it really gets good is that the opinion from the appellate court on xyz issue was on an appeal from the same Judge. Try explaining that to a client …"well you see Mr. Doe, the upper court previously told the Judge he was wrong, but I guess he really didn't believe them…"

    Shuler's best bet is to get a local lawyer. They may not appreciate the constitution there, but they sure do love a good home-cooked meal. ;)

  18. Lizard  •  Nov 18, 2013 @2:57 pm

    Anyone who becomes an activist because he has been directly touched by an issue isn't self-nominated.

    Doesn't this lead, then, to the charge that someone doesn't support an issue on principle, but only because it's to their benefit? And, in turn, this tends to lead to attacks/assumptions that if someone supports an issue seemingly of no benefit to them, they must be hiding something/scamming/somehow gaining from it, and their support can be ignored because they're not honest about "what's in it for them".

    So, you get the classic Catch-22: Oh, you're affected by issue X? Then you're obviously biased and can't be objective. Go away. Oh, you're not affected by issue X? Then why are you involved with it? Either you're secretly going to benefit from it, or you're just looking for attention. Either way, go away.

    We see this in many of Ken's posts on women's issues. If a woman says something in support of women's rights, well, she's irrational and emotional and/or a man-hating lesbian. If a man says something in support of women's rights, he's doing it because he thinks all the man-hating lesbians will have sex with him if he shows them how sensitive and progressive he is. (Look, I didn't say these kinds of accusations make *sense*.)

    Generally speaking, most issues that require activism directly affect those people who are a)a numerical minority, b)lack influence and power, c)both. This means that without "self-nominated" activists who are not personally affected, but who do have the numbers, power, and influence to actually get the powers-that-be to listen, the chances of success for those directly affected are much lower. Patrick Stewart sums it up:http://9buz.com/upload/patrick_stewart_people_wont_listen_to_you_or_take_you_seriously_unless_youre_an_old_white__2013-11-07.jpg

    (And, yeah, there's always a subset of activists who don't want "allies" (and who drive away anyone that doesn't meet some ridiculous litmus test of purity), they want to pure and true and all that rot, and that's a good sign they aren't activists because they want to solve a problem, they're activists because they enjoy feeling self-righteous and angry and would be very out of sorts if a problem got solved because they've defined their lives by the "struggle" as an end in itself, not a means to an end.)

  19. CJK Fossman  •  Nov 18, 2013 @4:16 pm

    It's very plain he has some sort of paranoid disorder with persecutory delusions.

    Can I get a diagnosis on my neighbor? I'll forward some of his emails or post them here if it helps.

  20. Patterico  •  Nov 18, 2013 @6:25 pm

    Reflecting on Ken's point, I think I understand it better. I think the idea is this: even speech that deserves no protection (like defamation) deserves a fair and constitutional process to determine whether it deserves protection.

  21. Ernie Menard  •  Nov 18, 2013 @6:39 pm

    nlp: "If a lawyer knows that he needs dispassionate legal advice, then why would a layman believe he can manage his own case?"

    Because some laymen can.

  22. SarahW  •  Nov 18, 2013 @8:46 pm

    But Shuler can't. He thinks he can because there is something wrong with him.

    @CJK Fossman – If your neighbor wanted to investigate your pre-purchase home inspection or lack of one in hopes of establishing his employer sold you the home without informing you of the B-dry system, that he might substantiate a suspicion that you and your barking dog and loud children were carefully selected as a device to break his peace and torment his days because Joe Seigelman's enemies were out to stop his exposure of the Judges law clerks connection to the Rileys something $$$, I might tender a "yeah he's nuts" diagnosis. No charge.

    @patterico I took that as his point and I agree with it. That said, I have trouble not noticing that Shuler won't play by rules and threw away all of his protections with both hands.

  23. SarahW  •  Nov 18, 2013 @9:08 pm

    I don't mean to be glib about what I think is wrong with Shuler. He's refusing counsel. In his blog he bitterly observes that they are, or have all been, turncoats who sell him down the river to powerful connected people arrayed against him. He seems positively convinced they will act against his interests.

  24. Shaheed  •  Nov 19, 2013 @6:38 am

    This case is not about first amendment rights or freedom of speech.
    This case is about how the corrupt politically rich and powerful who can do anything they want, to someone who stands up for himself or for truth. There is no doubt the judicial system is corrupt and the judges are at the head. Moreover, Shuler is not crazy nor incompetent. He has exposed corruption from top to bottom. To one point, he exposed the family value politicians, that really do not have family value. Further, he has shown how the judges in the legal system are dictators and are ruled from outside of the system. In my opinion, this case goes further up the chain. Indeed, Mr. Shuler was fired from his job for reporting on the Don Siegelman case. A case that 100 AG's filed a friend of the court brief, but the SCOTUS declined to hear. He accused Rob Riley as the person behind his firing, but Riley kept quite. I guess he did not feel he was defamed. In addition, his wife was also fired from her job.
    IMP, Mr. Shuler has more knowledge of the law than most people. He has represented himself many times, and he knows the corrupt legal system works. To be sure, he knows how money and power grease the courts. The retired judge in this case is from Demopolis, Al, some 90 miles from Shelby county. He was appointed by Judge Roy Moore of the Al supreme court. The elite are aware that Mr. Shuler knows the law. Thus, they presented his service in a draconian way as to show that he ignored service. The police went to his home on 3-4 occasions to make it appear to the public that they were trying to service him. This was done in order to get the contempt charges.

    The elitists in our society are making an example of Mr. Shuler. Because he is independent. He does not have to answer to anyone. (i.e. his boss, political party, or his editor) Moreover Mr. Shuler has what some people may refer to as "BALL". He is not afraid and he is a thinker. He speaks the truth and the elitists do not want the truth to see daylight, because they are the Father of Lies. Jesus, peace be upon him, told the Pharisees and Roman soldiers, " I come to you in daylight but you come to me at night".
    A SEEKER OF TRUTH

  25. Patterico  •  Nov 19, 2013 @7:42 am

    Moreover Mr. Shuler has what some people may refer to as “BALL”.

    I demand that this sentence be immortalized as a Popehat Classic. You are libel. Govern yourselves accordingly.

  26. Lizard  •  Nov 19, 2013 @8:56 am

    Dear Mr. or Ms. Shaheed:

    You're not helping.

    Sincerely, Lizard.

  27. Cvkvlv  •  Nov 19, 2013 @11:00 am

    IMP, Mr. Shuler has more knowledge of the law than most people. He has represented himself many times, and he knows the corrupt legal system works.

    Don Quixote knew a little something about jousting, too.

  28. pst314  •  Nov 22, 2013 @2:31 pm

    "Moreover Mr. Shuler has what some people may refer to as 'BALL'."

    Cue the song "Col Bogie":-D