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.