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.
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
- Update on The Popehat Podcast - November 30th, 2016
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- Update: Ninth Circuit Rejects Attack on "Comfort Women" Monument - November 28th, 2016
- True Threats v. Protected Speech, Post-Election Edition - November 16th, 2016
- Lawsplainer: About Trump "Opening Up" Libel Laws - November 14th, 2016