Alabama Court Shuts Blogger Up With Prior Restraint Court Order, Indefinite Jailing For Contempt Of Court

from the defending-the-damn-near-indefensible dept

The problem with defending free speech is that you have to defend those whose words verge on indefensible in order to protect the speech you do like. Making this task considerably more unpalatable is the possibility that the person you’re defending verges on indefensible as well, prone to aggravating the situation and undermining his or her defenders at every turn. But the battle must be fought because being a combative jerk still isn’t a crime… nor do we want it to be.

Ken White at Popehat has been following the details of blogger Robert Shuler’s case since things kicked off back in October. As he noted when this began, the First Amendment covers even “creepy, crazy, vexatious litigants.”

Shuler blogs (or at least did so until October 2013) about a variety of politicians, most of whom he despises. He targeted Robert Riley Jr., the son of the former governor of Alabama, and proceeded to cover areas both proven (Riley Jr. paying a fine in a campaign finance investigation) and areas unproven (Riley Jr. had an extramarital affair with a lobbyist). The latter was “covered” in excruciating detail. This led to Riley Jr. suing Schuler for defamation. These are the unsurprising details of the case. What happened next, though, is what puts many of us in the uncomfortable position of defending the rights of a seemingly despicable person.

Riley […] 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.

Unsurprisingly, given Shuler’s background as a combative and generally unpleasant person, he refused to do so. He continued blogging about Riley Jr. and the forbidden topics. Riley asked the court to hold Shuler in contempt, which it obligingly did. No surprise there either, considering the court had already violated Shuler’s First Amendment rights with its earlier court order. Shuler was arrested on October 23rd. He is still in jail.

He has also had additional charges levied against him for his actions on the day of the arrest.

Roger Shuler was charged with “resisting arrest” (sometimes called “contempt of cop”) based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resisting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson.

As you’ll note, his sentence for the charge of resisting arrest (something White has problems with — such as resisting an unlawful arrest not being an actual crime in Alabama) has been suspended. Shuler remains in jail only because of the contempt of court charge.

Presumably, the state can’t hold him indefinitely. But as White breaks down the legal arguments surrounding imprisonment for contempt, there are certainly avenues the state could explore to do exactly that. What it appears to be is coercive contempt consequences, which the state can use to gain compliance from someone who is clearly uncooperative.

Shuler’s contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn’t mean it is without limits. For instance, a court can’t imprison you to coerce you do to something that’s beyond your power. As the Supreme Court of Alabama said:

“Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court’s orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person’s power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.”

Here, Shuler argued that he couldn’t take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court’s order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment “conceivably could have remained incarcerated indefinitely.”

Leaving this legal battle to Shuler (who has chosen to represent himself — quite possibly the person least qualified to do so and most likely to exacerbate the situation) will likely result in little more than further coercive action by the state. It’s backed him into a corner, but every time it lets him out, he makes it regret its decision.

Starting from his refusal to accept the papers served to him by law enforcement back in October (he and his wife threw them out the window as he was driving, leading to the “resisting arrest” charge) to his more recent statement to the court it was “a joke” and “lacked jurisdiction,” Shuler is intent on self-destructing in the most spectacular (pejorative sense used here) fashion. Shuler appears to be applying for the title of “free speech martyr” but his histrionics are more self-serving than useful.

Still, the problem remains. The Alabama court has issued a First Amendment-violating court order and has used that as a stepping stone towards the indefinite detention of a creepy, vexatious litigant. Neither of these acts are acceptable. Shuler’s actions and words cloud the issue. There may be a good chance he has defamed Riley Jr. but until that’s determined, he should be allowed to return to his home and continue blogging. His targets may not like what’s being written about them, but as has been proven by Riley Jr., there is a proper legal framework for addressing potential defamation. Sadly, the court has decided to color outside the lines and trample on free speech — a decision which seems to be guided mainly by Shuler’s undeniable urge to sabotage himself by opening his mouth before firing up his brain.

It’s hard to separate such a person from his speech and view that objectively. It’s harder still to read what Schuler has written and defend that, even without knowing his background and personality. But allowing Schuler to be Exhibit A in how litigants can shut down critics and opponents without due process will only encourage more litigants to explore this option. The court’s decision to order prior restraint bears its own weight on future court orders. Even those with much flimsier cases than Riley Jr. will be tempted to roll the dice with a sympathetic judge. The chilling effect of prior restraint is well-documented, which is why the First Amendment is in place to safeguard against it.

The justice system is in place to determine the veracity of Shuler’s claims and determine whether they are, in fact, defamation. Its purpose has never been to simply shut people up, no matter how unpleasant they — or their speech — are.

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Comments on “Alabama Court Shuts Blogger Up With Prior Restraint Court Order, Indefinite Jailing For Contempt Of Court”

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Pragmatic says:

Re: Re:

Hear, hear. The best course for Riley to have followed would have been to put up with it and get him in a civil court on defamation charges, assuming he could prove it.

By trying to shut him up so publicly, he’s Streisanded himself into the ground.

The alarming thing is, this case sets a worrying precedent: what if websites advocating changes in copyright law, for example, end up being shut down because some maximalist objects? It’s not beyond the realm of speculation.

We need to put the Constitution front and center in our law courts. The judge, in this case, appears to have forgotten that.

out_of_the_blue says:

You are on thin AFTER any court order. Cut your losses and fight elsewhere.

Also, trial by judge instead of jury is near certain as a guilty plea.

Along with the above, I’m intrigued by dawning recognition that a “combative and generally unpleasant person” does not make a good case. It’s waste of our precious indignation to defend this fellow any more than to defend whatever vile Reddit troll that was some time back — or to defend those who “liberate data” from out-of-sight in a closet. Yes, this blogger has a “right”, but when he doggedly and apparently causelessly goes after a rather low-level person, ya gotta question his common sense and judgment.

Let’s try to save everyday ordinary people first. — In other words, don’t worry about anomalies at the margin, or even minor figures when there’s plenty worse easily visible.

Worse than being censored on the net is being advertised. You can escape censorship with your ideas intact; advertising uses lures and tricks to re-shape your very mind.


S. T. Stone says:

Re: You are on thin AFTER any court order. Cut your losses and fight elsewhere.

The defense of a person?s rights doesn?t work that way.

Yes, Shuler may have issues that keep him from mounting a good defense of his actions and speech in a court of law. Yes, Shuler choosing to represent himself makes it even harder for him to mount a serious defense. No, that shouldn?t preclude him from the protection of law. No, that shouldn?t allow the state to violate his rights with an inappropriate and clearly-unconstitutional court order.

If and when a court of law finds Shuler guilty of defamation, we can talk about what rights Shuler may or may not have under the First Amendment. Until/unless that happens, any court in the land would find itself in a bad way by jailing him over speech that does not have the weight of a defamation ruling behind it.

The ACLU defended neo-Nazis in the infamous Skokie case precisely because the right to speak one?s mind must include the right to say things others may find offensive (or even hurtful). Free speech advocates may not necessarily like Shuler?s speech (or his actions in defense of said speech), but they (and I) defend his right to express himself anyway.

Defending civil rights means defending them for even the ?lower rungs? of society, regardless of how you define that group of people. Ignoring the civil rights of people because you may find them??distasteful? sends a horrible message: ?Civil rights are only for the ?good? people – you know, like me.?

weneedhelp (profile) says:

Re: You are on thin AFTER any court order. Cut your losses and fight elsewhere.

“You are on thin AFTER… slow down blue… your typos and bad grammar like… “It’s waste of our precious”… your fingers are moving faster than your brain… just couldnt wait to puke up your nonsense huh blue?

“I’m intrigued by dawning recognition that a “combative and generally unpleasant person” does not make a good case.” – You looked in the mirror?

Gwiz (profile) says:

Re: Re: You are on thin AFTER any court order. Cut your losses and fight elsewhere.

…just couldnt wait to puke up your nonsense huh blue?

In the last couple of weeks, as more and more people have been hitting the report button and simply ignoring Blue instead of replying to him (his comments usually get hidden within 10 or 15 minutes of being posted these days) I’ve also noticed a slight tone of underlying desperation in his comments. It’s rather amusing really.

Anonymous Coward says:

Re: Re:

The only rights you have in the USA are those the government permits you to have, and you can only exercise them in ways the government permits you to. Constitutional “rights” are pretty well useless. Remember, it was the constitution that GAVE us this government…and government is all the constitution gave us.

Pragmatic says:

Re: Re: Re:

Remember, it was the constitution that GAVE us this government…and government is all the constitution gave us.

Wrong, and wrong. THIS government was voted into office by the people. If you have a problem with that, take it up with the people.

The Constitution didn’t “give” us government, it told us how to govern fairly.

So no, Anonymous, there’s no good reason to get rid of the Constitution because the people haven’t properly evaluated the candidates on offer before they voted for them – if they bothered to vote at all.

I’m all for change, but abrogation of your civic responsibilities followed by a bout of violence in the hope of effecting change can only bring the wrong kind of change.

AntiFish03 says:

There are all kinds of people out there, and I really don’t like what a lot of people say out there. but is it my place to stomp on their right to free speech because I don’t like it. I would hope that no matter how offensive something I say might be to someone else there will always be someone to defend my right, as I am willing to defend theirs, even if I don’t agree.

“I do not agree with what you have to say, but I’ll defend to the death your right to say it.” ~Volatire

Gerard Pierce says:

annoying is as annoying does.

Everyone seems to ignore the fact that Alabama was the state where Governor Don Siegelman was convicted on grounds that some 40 or so Attorneys General said were bogus.

Just because Robert Shuler annoys some people does not even make him an annoying person. He seems to be doing the best he can in a probably corrupt legal system.

Most of his blog has seemed to be pretty rational over the last few years, so it’s surprising to see the previous posters damning him with very faint praise.

These seem to be people who might have called Rev MLK annoying for challenging the system. (And no, it’s hardly a racial issue – it’s simply an issue of refusing to shut up when you are targeted by an unfair system.)

Frankz (profile) says:

Shuler’s worst enemy in this case is….Shuler.
Anybody who represents themself has a fool for a client and an idiot for an attorney, even if they are an attorney to begin with, which Shuler clearly isn’t. He seems to go out of his way to prove how big of an idiot he is, with the things he tries to do legally and in court. And out of court, too.
He needs a real attorney who will kick him in the ass hard enough to make him listen, and he could get him out of this mess. But he won’t listen to anyone, so he won’t even try to hire an attorney, so he just keeps digging himself deeper. He won’t help himself just out of spite.
Yeah, the judge is wrong, but Shuler can’t fight it without a real attorney and he won’t hire one.

Aon says:

getting What He Wants

I think Shuler is getting exactly what he wants. He makes the judge look heavy-handed. He will eventually be freed due to the misguided and unconstitutional nature of the restraining order. And Riley and friend benefit from the Streisand effect, now people all over the world will be exposed to the news of his and co-complaintant (or co-repsondent?) Duke and their disagreements with Shuler over the facts of the case.

you can’t buy this sort of publicity, and he’s getting it pro bono.

S. T. Stone says:


Whoawhoawhoa hold up.

SHOULD be silenced

I wouldn’t go saying those sorts of things about anyone.

Shuler doesn’t strike me as the kind of person I?d want to hang around. He says ridiculous (and potentially defamatory) things. He acts no better than a jackass inside a court of law. He doesn?t appear to do or say anything that?d make me like him, let alone respect him.

None of that makes him deserving of the notion that he ?should be silenced?, though.

When you say things such as that, you make a value judgment about his speech (and about his right to express that speech): you?ve called his speech worthless enough to deny him the protection of law promised under the First Amendment for daring to say it.

Try to avoid value judgments about a person?s speech and expression unless you can prove them truly unworthy of legal protection (e.g. defamatory statements). You never know when your own speech might come under the same judgment by someone who thinks you ?should be silenced?.

Anonymous Coward says:

Re: Re: This guy IS NOT ROBERT He's ROGER

My blatherings, by definition, are my own opinion. I did NOT utter a value judgment on HIS blatherings, or on HIS actions. I merely stated that, IMHO he SHOULD be silenced for the betterment of all, not that he MUST be silenced as a legal matter. I’m not quite sure where you got that hobby horse you’re riding, but I suggest you get off of it.

S. T. Stone says:

Re: Re: Re: This guy IS NOT ROBERT He's ROGER

Maybe you should shut the fuck up for the betterment of all.

?yeah, that doesn?t sound so good when I say it to you, does it?

The usage of ?should? implies that you know what actions would best serve Mr. Shuler than Mr. Shuler himself. ?Should? implies that he must take a course of action that you recommend (or else!). You saying Mr. Shuler ?should? shut up implies that you have even the remotest ounce of power to force him into compliance with your ?suggestion?.

So he says and does things that annoy people. That fact alone doesn?t seem like a good enough reason to say he ?should? shut up, and I don?t see how you or anyone other than a court of law with a constitutionally-viable legal order can legally force him to do what you ?suggest? he do.

Your suggestion reeks of ego and hubris. You would do well to read your comment out loud, then replace Mr. Shuler’s name with your own and re-read the comment so you can feel how it would sound if someone said it to you.

Don?t ?should? me, son. I don?t buy into that horseshit.

Sheogorath (profile) says:

Hey, Robert Riley. Gonna sue me?

I am saying the following as a statement of fact: It has been alleged that Homewood attorney, Rob Riley, the son of former GOP governor, Bob Riley (2002-2010), had an affair with Liberty Duke, a lobbyist based in Clanton, Alabama. When Ms. Duke became pregnant, Republican insiders paid her to have an abortion and stay quiet on the subject, as the blog, Legal Schnauzer, claims it was told by multiple sources. Total payments were allegedly in the $250,000 to $300,000 range.

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