Blogger Jailed For Contempt of an Unconstitutional Order

An Alabama blogger messed with the wrong guy and is now sitting in jail on contempt charges.

Roger Shuler is a prominent investigative journalist who writes about high-profile political figures and political corruption in Alabama on his blog, Legal Schnauzer. He blogged about an alleged affair between a lobbyist and Rob Riley, the son of former Alabama governor Bob Riley.

Riley denied the affair allegations and filed a defamation suit against Shuler. That’s not unusual in case like this, but Riley didn’t stop there. He also asked the court for an injunction prohibiting Shuler from writing anything else about the alleged affair, and to order all blog posts about him to be taken down.

Shuler didn’t show up for the related hearing. Circuit Judge Claude Neilson agreed to issue the injunction – one that legal experts are calling unconstitutional.

The injunction that was issued is called a preliminary injunction, which is an order that is issued before there has been a trial. The order, which forbids Shuler from writing anything about Riley, is called prior restraint. Prior restraint is considered to be a violation of First Amendment rights.

Shuler continued to write about Riley. Riley asked the court to hold Shuler in contempt, and it did: Shuler was arrested on October 23 and has been sitting in the Shelby County jail ever since.

CBS42 reported on the case:

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The letter the Reporters Committee for Freedom of the Press sent to the court states:

The Supreme Court has never upheld a prior restraint, or a government prohibition on speech. In Nebraska Press Association v. Stuart, it found these bans on speech presumptively unconstitutional and called them “the most serious and the least tolerable infringement on First Amendment rights.” 427 U.S. 539, 558-59 (1976). See also Near v. State of Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931) (calling prior restraint “the essence of censorship.”) The Supreme Court has speculated that prior restraints may only be allowed to prevent disclosure of information that would provide troop locations in wartime or “set in motion a nuclear holocaust.”

The First Amendment does not always protect slanderous, libelous, or defamatory speech, and you can be punished or sued for what you write. But you can’t be stopped from the act of writing it.

Ken White is a laywer in California who has been following the Shuler case, and has been writing about it on the Pope Hat legal blog. He says that even though Judge Neilson’s injunction is unconstitutional, Shuler may still be in trouble for violating it:

You may be thinking “it’s not a crime to violate an unconstitutional order.” Regrettably, that’s not always the case. Some jurisdictions follow the “collateral bar rule” which provides, in brief, that the remedy for an unconstitutional order is an appeal, and that it’s not a defense to a contempt charge to say the order was unconstitutional. Alabama has a shameful role in promoting that rule. In 1963, another Alabama circuit judge issued an injunction against civil rights protestors to prevent them from sit-ins, demonstrations, and protests. Civil rights protestors defied them, and were held in contempt. The United States Supreme Court itself agreed that the injunction appeared problematical, but upheld the Alabama doctrine that the protestors had waived any constitutional challenge to the injunction by violating it instead of making any attempt to challenge it.

Yeah. That’s awful, isn’t it? And it means that Shuler will have, at a minimum, a very difficult time defending the contempt charge by attacking the constitutionality of the injunction.

In addition to granting that unconstitutional injunction, Judge Neilson ordered the court records sealed. Randall Marshall, the legal director for the ACLU of Alabama, said sealing an entire case is unusual, aside from cases involving minors. In this instance, it essentially creates a secret court in Shelby County:

“There is a secret docket,” he said. “That is not common in American courts.”

This case is important because it involves First Amendment violations of improper use of prior restraint and sealed court records, and violations of the Alabama Constitution:

Article I, § 4, of the Alabama Constitution – “no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty” – similarly prohibits prior restraint. (source)

Shuler’s reasons for writing about Riley’s alleged affair may have been malicious. Riley claims Shuler is lying, and that may be so. Those issues are irrelevant to the contempt charges, though, and should be settled in civil court. The ACLU and other legal experts say that Shuler’s arrest raises serious questions about prior restraint, secretive court proceedings, and the influence of powerful public figures.

Gregg P. Leslie, legal defense director of the Reporters Committee for Freedom of the Press, told WhoWhatWhy:

This issue is important to journalists because they should not have to face jail over something they wrote. This goes beyond traditional reporters and bloggers — no one should be held in contempt of court and jailed for not taking something off of an Internet site, at least and until they have a chance to defend it in court and there’s a final court order finding it libelous. Even then, the punishment under libel laws is a monetary award to the injured party, not a coercive demand to stop speaking.

We all should care about Shuler’s case, as White explains so eloquently on Pope Hat:

In our legal system no man is an island, and each man’s censorship diminishes our collective right to speak, because we are all involved in the legal norms that protect freedom.

Lily Dane is a staff writer for The Daily Sheeple, where this first appeared. Her goal is to help people to “Wake the Flock Up!”