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View Diary: Will we let Roger Shuler ("The Legal Schnauzer") suffer alone and forgotten? [Update] (97 comments)

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  •  Walker case vs. Shuler Case (0+ / 0-)

    I'm going to have to do some reading but before I do, let me comment that I have read some of Popehat's analyses.  He's a bit too hard on Shuler but he is knowledgeable.  Walker is an assembly case, not a free speech case.  There are 7 guaranteed inherent freedoms in the First Amendment -- Establishment Clause; freedom of religion, speech, press, assembly, petition, association.  The Supreme Court has said that a prior restraint on content-based speech is immediately suspect, and few exceptions exist.  And we know that prior restraint on content-based speech is a presumptive violation of the speech clause.  Therefore, until I do some more reading I'm just about cocksure that Walker is inapposite and that the imprisonment of Shuler is illegal.  If I'm wrong, tell me why.

    •  OK. Here it is in a nutshell. (0+ / 0-)

      (1)  The injunction in Walker was attacked both as a violation of the freedom of assembly and an improper prior restraint of free speech.  Walker, 388 U.S. at 324 (discussing challenge to injunction.   The fact that the injunction was a prior restraint on free speech was specifically mentioned in the Brennan dissent.  Id. at 345.  

      (2)  More to the point, the fact that the "collateral bar" rule of Walker would apply even in cases involving prior restraint of free speech was recognized by the Supreme Court in Vance v. Universal Amusement Co., Inc.,445 U.S. 308, 316 n.15 (1980).  

      Thus, if Walker is a "freedom of speech case" and not merely a "freedom of assembly case," I would suggest that the collateral bar rule can apply.   (This is the position espoused on Popehat -- that it probably applies).

      The argument I believe you are trying to make -- without putting words in your mouth, and my apologies if I misunderstand -- is that the temporary restraining order and temporary injunction is transparently invalid  .   It is true that Walker says, 388 U.S. at 315, that "transparently invalid" orders can be disregarded, and will not trigger the collateral bar.   This was the approach taken by the First Circuit, considering a willful violation of a prior restraint, in Matter of Providence Journal Co., 820 F.2d 1342 (1st Cir. 1986), dealing with a news story on a public issue.

      The problem with the "transparently invalid" test in the present case is that the trial court, for all of its weirdness, really did find some basic authority to support its position.   The trial court reasoned by analogy to a trade secret case -- it said, essentially, that a woman's abortion history was a lot like a trade secret, and therefore subject to protection (Popehat thought this was ridiculous).  

      Essentially, one could argue, the trial court here made three implicit findings --

      (1)  A blogger does not have a right to make a true allegation of a woman's abortion history, and, relying on what Mr. Shuler published, he obtained her private medical records improperly.

      (2)  A blogger does not have a right to make a false statement about a woman's abortion history, because such speech is defamatory, and

      (3)  It is wrong to allow a blogger to make a spurious claim that a woman has had an abortion.  If she has, the very nature of the lawsuit over the disclosure of private information will verify the truth of the allegations.  If she has not, then she will be subject to an intrusive inquiry into her sex life to refute a claim of truth.   The victim of defamation should not be subject to a Hobson's choice -- just like a company should not be forced to either affirm or deny its future business plans.

      Thus, its not transparently obvious that, at least in some circumstances, an injunction could not issue on facts similar to these.  (To give another example, imagine that an anti-choice group broke into an abortion clinic, obtained a list of those who had had abortions,, and announced an intention to publish that list.   Yes, an injunction would be a prior restraint -- but on those facts, the situation appears to be very close to a "trade secret" issue and I suspect an injunction might issue.)

      And that, of course, is the problem.   In order to escape Walker, one must show not only that the injunction was invalid, but that any person looking at the issue would immediately agree to its invalidity -- that no rational argument could be made to support the injunction.   We don't have that here -- even if you do not agree with the suggestion of the district court, it is not as if the district court's opinion was utterly without any legal basis.  

      If there's any potential basis to support the injunction, its not transparently invalid, and if its not transparently invalid, it would appear the rule of Walker should apply, as suggested by Vance, even to prior restraint cases.

      •  I Shall Return (0+ / 0-)

        I answered all your logical points and one or two of the farfetched ones and lost the entire thing.  So I'll be back after I have pasted your post in a word processor, then answered it, so I can copy and paste my response here without losing it.  Shucks!

        •  I hate it when that happens. (0+ / 0-)

          I await your return.  

        •  Back with Bells On (0+ / 0-)

          Of course Birmingham's city ordinance was declared unconstitutional, so there will be no more letters from the Birmingham Jail on that account.  
          I have answered some of your points at a few of your other posts above.  I have read from several law review articles:

          So now I have concluded, after reading current law and the above articles, that Walker is no longer good law with respect to the facts in Shuler.  But we need a ruling in scotus.  I wonder what Shepard's would say about it.  I haven't used Shepard's Citations since the mid-1980's, and I quit paying dues to practice law in 1986.

          Vance does not say what you say it says, and Popehat does not say what you say he said.   He said that he was afraid that Alabama appellate courts would cuddle up to the collateral bar rule, but I don't believe the federal appellate courts or scotus would do so.  And I don't believe that he believes that either.  But I'd have to go back and reread what he said.

          So Neilson likened his ruling for Liberty Duke to protection of the IP of the female reproductive system, to "trade secrecy of the vajaja?"  MY, My.  He did that?  Now that is farfetched, and a little chauvinistic, don't you think?  Did he lift that off of Riley's brief?

          Your abortion clinic analogy fails because injunction lies there for violation of doctor-patient confidentiality and other fundamental privacy rights.  Per Sullivan Duke is a public figure, and so is Riley, while women who slip into an abortion clinic for medical procedures are not.  And where are your and Neilson's cases in support of these ambitious new authorities?  You haven't cited a one.

          What was Shuler convicted of, civil contempt or criminal contempt?  I suspect that you were there.  The way I understand it Shuler is under a mandatory, or coercive, injunction to remove the pertinent material from his blog.  And since he did not he's jailed from day to day until he does.

          See 37 American University L. Rev.(supra) at p. 323:  Walker is not a speech case but a streets case.  So I am vindicated.

          You know what I'd do if I were Shuler?  I'd give my site time to be mirrored abroad, then comply with Neilson's injunction, get out (if that's possible), then contest the constitutionality in the 11th Circuit. Everybody wins! The Riley and Duke cats are already out of the bag anyway.  Hell, Neilson has made the musky smell of sex go viral.  He's a trafficker.  He's as bad as an international porn dealer.

          •  Thanks for the reply (0+ / 0-)

            First, let's talk about that which we can agree upon.

            (1)   Now, we use something called Keycite, which is just an updated Shephards.   There's not a lot out there on this point.   I wish there was, because it would resolve the matter once and for all.

            (2) You are correct that Shuler is under a civil injunction to remove documents from his blog.  He refuses to do so.  

            (3)  I was not there.   I am not a part of this litigation.   I don't represent anyone suing Shuler or contemplating suit by Shuler.   I have no Alabama clients.   I don't know why you think I might be part of this, but I'm not.   If I was, I surely would not be blogging on the issue.

            (4)   I agree with your analysis that Shuler should take the matter down and then challenge the injunction.   This would give him standing to pursue the injunction and get out of jail.   This is the essential point I have been making throughout this diary.

            Things we probably don't agree on, by maybe:

            (5) Related to 4, above, if Shuler would be less interested in being a pretend martyr  (Oh, look at me, I'm incarcerated!  Oh the woe!  Oh the woe!), he could actually, you know, effect some change.   He could, for example, move to set aside the injunction immediately in the Court of appeal -- taking with him the ACLU, various other groups, and virtually every attorney in the world -- and win.   He could force the recusal of the judge and get a real shot at a fair trial.  

            He could then take depositions of the now-removed judge and try to find out the basis of the special assignment and try to show that there was actually a conspiracy against him.   He could fucking win.  Unfortunately, that isn't what Shuler seems to want.   He'd rather wallow in contempt and screw up his chance of victory.  Which leads me back to my original point -- I'm not going to do anything for him.

            Things we probably don't agree on:

            (6) I disagree that being a lobbyist makes one a "public figure."   Perhaps she is a limited purpose public figure, but (taking the accusations as true) having sex with the son of the ex-gov does not make one a public figure for all purposes.

            (7)  I'll leave it to the jury of Kossacks on the meaning of Vance.   Look at FN 15 and the text associated with it, which surely suggests that the collateral bar rule would apply to a prior restraint on speech.   You simply say I'm wrong, which is an excellent ipse dixit, but doesn't really do much.  

            (8)  Popehat says that the collateral bar rule may well apply, and talks about Walker.   I'm sorry you feel otherwise.

            (9)  This has to come up through the state courts; from there it goes to the US Supreme Court.   I've got no good way to remove the matter.  

            (10)   You claim that, based on your reading, Walker doesn't apply to the facts of Shuler.   I don't see it that way.   Surely, however, if it took you two days of research, you recognize that my citation of Walker was not some kind of off-the-wall idea?   I understand your position that it shouldn't apply, but surely, you wouldn't think it insane if it did apply?  

            And finally,

            (11)   I'm sorry you don't like the abortion clinic example, but I think its still valid.   If Mr. Shuler obtained truthful information about the abortion, he must have gotten it from somewhere.   It wasn't from the woman.   The only people who would know she had an abortion were the doctors and the people at the clinic or payment information from her own medical files.   How is that different than an anti-choice group getting the info?

            (12)   Now, you do have me on one point.   The "learned" trial judge certainly did not write a great amount in his order -- he cited two cases, one of which was a business disparagement / trade secret case.   One could infer (if one was very generous) the reasoning that might have caused him to cite those cases -- and I did.   But, in my defense, this is what the appellate courts will do -- they can affirm on any grounds, and will look to see if there is any possible validity whatsoever.   That is the problem

            •  One more thing (0+ / 0-)

              I'll need to give you the last word.  

              Having sat now through a multiple-day depositions, (big case, 200 defendants, here we sit, everyone gets to ask questions), its been extremely enjoyable to argue about things with real consequences.   This is why I became a lawyer, so many years ago.

              Unfortunately, its now time for me to start preparing to ask my half-hour of allotted questions, and after that, I'll doubtlessly return to my office and be swamped under a gajillion emails.   So, my ability to respond further will be limited.

              I will say this:   you have asked me why I bother to do anything on this site -- why do I care about Mr. Shuler, what the hell is going on?   Well, if you practiced today, you would find that the mind-numbing nature of large litigation practice can only be alleviated by finding parts of the law that are interesting, and discussing those.   I've appreciated the time you've spent -- certainly, its been more fun than asking about obscure issues involving securities spreads.  

              In any event, thanks again.   I've enjoyed the debate, even if we remain at loggerheads.

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