Alabama Court Releases Highly Problematical Written Permanent Injunction Against Roger Shuler

I've now collected all my posts about Roger Shuler — the "Legal Schnauzer" blogger subjected to an unconstitutional preliminary injunction prohibiting him from blogging — under a "Roger Shuler" tag. Those posts are the prologue to this one.

Shuler's web site has now published Alabama Circuit Judge Claude D. Neilson's permanent injunction against him. I've uploaded it here.

Here are some significant things about the permanent injunction:

  • The permanent injunction only prohibits specified statements by Shuler, and eliminates the vague and ambiguous language of the preliminary injunction that prohibited "any defamatory statement about Petitioners, including, but not limited to" specified statements.  That's the sort of vague language that courts have used as one basis to strike down prior restraints on speech. Judge Neilson has therefore cured one problem with the preliminary injunction.
  • However, the permanent injunction does not include any substantive discussion of the prior restraint issue.  Judge Neilson, by approving what appears to be a proposed order submitted by the plaintiff, dismisses the concept of prior restraint with scare quotes in the first footnote, attributing the concept to Mr. Shuler and implying it is a silly argument.  It isn't.  Though the order cites authority for the correct proposition that defamation is not protected by the First Amendment, it includes no analysis whatsoever of the wall of authority on the subject of prior restraint of allegedly defamatory speech.  I find that utterly remarkable — in fact, shocking — from a judicial officer.
  • The proposed order justifies the injunction by saying that Mr. Riley and Ms. Duke are in professions that can be harmed by defamation, and repeats the frankly ridiculous argument that they are put in physical danger by defamation associating them with abortion.  However, the order does not try to establish what is "exceptional" about this case justifying prior restraint, and does not succeed in making any such showing.  Near v. Minnesota, 283 U.S. 697, 716 (1931). Many people are in professions where reputation is important; this order doesn't establish that these plaintiffs are unusually situated.
  • It appears that once again Judge Neilson executed a proposed order provided by counsel for plaintiff Mr. Riley.  That is common.  However, when a motion presents such a patent constitutional issue, judges usually exercise some sort of editing power over a proposed order to ensure that it addresses the point.  Here Judge Neilson didn't.  Again, I find that remarkable.
  • The court repeats Mr. Riley's counsel's claim that Mr. Shuler called the court a "joke," claimed it lacked jurisdiction, and refused to participate in the permanent injunction hearing.  As I said in my last post, that's a damnfool thing to do that may deprive Shuler of substantive appellate review.
  • The court ordered Shuler to remove the specified statements from the blog Legal Schnauzer and made it clear that he will remain in jail for contempt until he does so.   (The legality of indefinite contempt incarceration is a subject for another post).
  • The court awarded around $34,000 in fees and costs to the petitioners against Shuler.
  • The court issued the order against Carol Shuler, Mr. Shuler's wife, as well as Shuler.  Carol Shuler has been updating the blog.  This raises the possibility that she will also be held in contempt if she fails to take posts down.
  • The court reversed its prior order and unsealed the documents from the case.

The written order doesn't change my analysis from earleir this week. The fact that the court calls this a permanent injunction rather than a preliminary injunction doesn't make it constitutional; I think it is still unconstitutional prior restraint because (1) the court issued it without a trial, and (2) there's nothing exceptional about the case permitting a rare exception to the prior restraint doctrine. However, Roger Shuler continues to be the biggest impediment to vindication of Roger Shuler's rights. His behavior is calculated to court martyrdom, not to protect his First Amendment rights. That's a shame.

I continue to doubt Shuler's allegations, in part because of the way Shuler made them, the way he evaded service, and the way he has conducted himself in the case. But the remedy for defamation should be a damages award and order after a fair trial, not unconstitutional prior restraint. The way the Alabama court has conducted this case doesn't make me think that Shuler's allegations about Riley are true, but it does make me think that Riley's power and prestige played an impermissible role, as Shuler argues.

Last 5 posts by Ken White

Comments

  1. Peter H says

    Ken,

    Since the ACLU's amicus brief did raise all the right constitutional questions, might that preserve them for appellate review, or do they have to be raised by the defense?

  2. Alabama...sigh says

    Welcome to Alabama, Ken, where head-scratching orders are in as much a part of daily routine as a cup of coffee.

  3. JonasB says

    I don't understand the bit about granting an injunction without a trial. Wasn't the judge's ruling issued as the /result/ of a trial, for which Shuler tried to act pro se?

  4. tmitsss says

    To satisfy my curiosity I looked at the order for TRO. The judge did require the plaintiffs to post a bond of $2000.00 each for the TRO, and the bond was posted with the Clerk

  5. George William Herbert says

    Is it possible that Carol Schuler's right to appeal this would be unaffected by her husband's antics?

    I would think, if she wasn't originally named in the TRO or case, extending it to her now gives her the full recourse to legal representation, etc.

    One could hypothetically then use that wedge to go after vacating the entire order…

  6. Malc says

    The amounts awarded for costs seems rather high in comparison with the those awarded as part of the Carreon and Prenda decisions (although those awards were numerically higher, it appears to me that the amount of work performed by attorneys living in, generally, higher-rent areas that Alabama was significantly greater). In those cases, also, wasn't there an extra step: first the court awards costs, then it determines whether the costs claimed were reasonable? Granted, those were federal cases, while this is an Alabama one, but it seems odd that the Judge doesn't make any obvious effort to pick at the amounts requested…

  7. says

    A few points, and I am working through my own thinking of this, so a little back and forth is appreciated.

    First, its really hard for me to care about whether he got a full trial or merely a hearing, because I doubt any more due process would have done the Shulers a lick of good. I mean its not like the Shulers were saying, "hey, i need a full trial with discovery so i can call witnesses and put on a defense." I don't know if they sincerely believe this service of process crud, or just want to avoid the issue, but plainly Shuler didn't put on a defense at all or even ask to do so. So its hard to get bent out of shape that he didn't have a chance to present a fullsome defense, given that he didn't want to put on a defense at all.

    Second, it is silly for the judge to say this is not a prior restraint. Obviously, it is, because in part he is being told not to say it again.

    But here is what I am noodling the most, here. Okay let's imagine what the court just said, "take down the following posts that i have found to be defamatory." Or even just "take out the following sentences from these posts." If the posts are proven to be defamatory, and they are proven to cause damage, what is the objection? Its not protected speech, if it is defamatory. And there is no danger of a chilling effect. I think that the law shouldn't do that, but i don't think the first amendment is violated: i just think the law shouldn't do that.

    Okay, so then he is free to say the same thing in the future? And Riley and Duke's lawyers have to play whack-a-mole getting new injunctions every time he says the same thing? The court obviously doesn't want to do that, so it orders him not to say it again in the future…

    I guess i am having trouble seeing the problem. Like can someone come up with a situation where Shuler would be chilled from saying something that is protected?

    I guess the closest I can come to seeing a chilling effect is if Shuler wanted to report about the case. I mean how do you report about the case without reporting what Shuler alleged? I mean in every post I have talked about this, I have repeated the allegations but said i thought it was probably defamation. I don't think Riley and Duke were harmed by my repetition and what I said is protected. So Shuler might wonder if he is allowed to simply write: "I wrote on my blog that Riley and Duke allegedly had an affair. The judge found this to be defamation and ordered me to take it down." In that situation, is the first sentence a violation of the order? Because after all, I can write the same sentence (in third person, obviously), and not get in trouble.

    I don't know, still noodling it. It would be cleaner if there was no prior restraint at all. And there is little question that this is an improvement over the prior situation, but stilll… hmm…. still noodling it.

  8. Ivraatiems says

    I understand and accept the arguments about the problems this raises for prior restraint.

    But I'm having a lot of trouble finding sympathy for Shuler, or really caring, because given his behavior I don't see what else the judge would have done or what we could really have expected.

    Yeah, the system isn't very good sometimes. We can argue about whether or not it should exist as it does. But it does exist, and it works in certain ways, and the way to get what you want out of it is not to blatantly ignore them, then make yourself out as the victim when it bites you in the rear.

  9. Jacob H says

    The legality of indefinite contempt incarceration is a subject for another post

    I would very much like to read that post.

  10. scott pilutik says

    Along with Riley's influence I wonder to what degree Shuler's reputation for legal kookery, which surely preceded him, was wrongly considered. The Order oozes loathing for Shuler, for example dropping each mention of his website into mocking quotation marks. That's probably the least of Shuler's, or the court's problems here, but it seemed worth noting.

  11. Garrett says

    Isn't there generally an applicable "plain error" review standard which can be used for appeals? IANAL, but even I know about prior restraint and public comment.

  12. Matthew Cline says

    I continue to doubt Shuler's allegations, in part because of … the way he evaded service, and the way he has conducted himself in the case.

    I think those two things can be attributed to his contempt for the judicial system (either the local judicial system in particular, or the entire judicial system in general).

  13. says

    So quick hypothetical?

    What would occur if someone who had no axe to grind in this matter (ie: unbiased) actually reported on this matter and fully mirrored the actual blog posts (seems there are around 10 or so) with the comments on another web site in another jurisdiction entirely and by jurisdiction here I'm saying another country not another state?

    Also at a glance some of the articles written by Carol Schuler give the impression that she is extremely grateful for the publicity and could be the best person to have a reasonable dialogue with an advocate/attorney in this matter who is concerned (like Ken and others) with this prior restraint. Even myself who is from another country can see this is prior restraint with a fair amount of prima facie political interference occurring

  14. M. Alan Thomas II says

    Well, at least the order makes it clear that Schuler raised a First Amendment objection regarding prior restraint. Indeed, the scare quotes literally put the words in his mouth. Is that sufficient to preserve it for appeal?

  15. Bamalaw says

    When you need an order of dubious legal basis, call in a retired judge who doesn't have to worry about being re-elected or being subject to an investigation by a court of the judiciary. Problem solved.

  16. andrews says

    When you need an order of dubious legal basis, call in a retired judge who doesn't have to worry about being re-elected or being subject to an investigation by a court of the judiciary

    Which is why in Florida, foreclosure cases are handled by Senior judges. They do not have to worry about re-election, and indeed they are hired to clear the dockets.

    They are honest. They understand that they are hired to get the houses to the banks, and that the banks are behind their hiring. They deliver honest service.

    It is, however, a rather shabby simulation of justice.

    Some of the regular judges have drunk the same kool-aid, and the legislautre is clearly sucking it down along with bank contributions, so I do not expect to see much change in the near future.