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You may not remember the diary from November, "Former Kossack Arrested on Bullsh*t Charges" (h/t Colorado is the Shiznit) or the earlier one from October "The Legal Schnauzer Caged" (h/t Murphoney).  They told the story of former Kossack, Roger Shuler  (AKA "The Legal Schnauzer") and his abuse at the hands of local Alabama authorities.  Well, on the 50th anniversary of Dr. King's famous Letter from the Birmingham Jail, Andrew Krieg, an attorney with the Justice Integrity Project shares with the world a new "Letter from the Birmingham Jail."  If you care about journalistic freedom, this one is every bit as distressing as the original.

Here's the opening paragraph:

Alabama commentator Roger Shuler's condition has sharply worsened during his nearly five months of jailing, as I learned by visiting him in Birmingham March 10.

Krieg goes on to explain the general outline of the problem:

The corruption-fighting reporter said he has lost 16 pounds during his jailing without bond since Oct. 23 on two contempt of court charges. The charges stemmed from his investigative reports alleging a sex scandal involving the prominent Alabama lawyer Robert Riley Jr. and lobbyist Liberty Duke.

In the lawsuit filed last summer under seal against the Shulers, Riley and Duke denied Shuler’s reports, which were published on the Legal Schnauzer site Shuler founded in 2007 to reveal suppressed and other under-reported stories involving Deep South courts and politics. Riley, Duke and their attorneys have not responded to my requests for further comment.

My visit occurred the day after the 50th anniversary of the nation's most famous free press case in history, New York Times v. Sullivan, which Shuler’s judge appears to be violating by holding the reporter indefinitely for failing to spike his stories before trial of the Riley and Duke suits.  

My column today shows how Shuler's treatment violates fundamental press freedom and due process law arising in significant part from the 1960s civil rights struggle in Alabama and across the Deep South.

Yet the nation's journalism leaders -- especially those leading media organizations and teaching at universities -- have done virtually nothing to help Shuler either to win freedom or otherwise to preserve the national civil rights precedents being violated in his case.

This silence by groups like the Society for Professional Journalism is deafening.  Say what you will about Shuler's pugnacity, the man has been fearless in his efforts to report and expose stories from some places most of us would rather forget exist.

He was also important in keeping the Don Seigelman story in public awareness.  That is probably one of the reasons he is being abused by the local authorities now.

"I see this more as a kidnapping than a defamation case," Shuler told me from a visiting room in the jail. Let's examine why:

Shuler said the younger Riley, co-plaintiff with Duke against Shuler in the libel suits, also represents as counsel the county's jail system. Such a tight relationship between a favored litigant and law enforcement helps illustrate the concentration of political, financial and legal power that the well-connected Riley family has wielded in Alabama along with their allies, such as longtime Bush family advisor Karl Rove.

Their track record includes the notorious prosecution of former Alabama Gov. Don Siegelman (1999-2003).

Don SiegelmanSiegelman, imprisoned in Louisiana and shown at right in a file photo from better days, is scheduled to serve more than four years remaining from his trumped-up federal prosecution on corruption charges stemming from 1999 conduct. His crime? The gist is that the governor asked one of the richest men in the state, businessman Richard Scrushy, to donate to the non-profit Alabama Education Foundation, and then re-appointed Scrushy to an unpaid state hospital board upon which Scrushy had served under three Republican governors previously.

Shuler has written hundreds of Legal Schnauzer columns documenting myriad legal misconduct in Siegelman's state and federal prosecutions, which enabled the Riley family to win and retain power without competition from Siegelman, the state's leading Democrat.

Regarding Shuler's own case, he cited to me this week major violations of precedent and procedure, such as prior restraint, secret courts, jailing without bond, and lack of an arrest warrant.

The lack of support for this man is breathtaking when you consider how many of his professional colleagues are under attack both here and abroad.   I won't belabor the hypocrisy of a government that talks about freedom in Ukraine and Crimea while assaulting basic rights here and abroad with impunity.  Fortunately, there are some who remember him....
The Committee to Protect Journalists, one of relatively few media organizations to protest Shuler's treatment, listed him in its annual worldwide survey as the only jailed journalist in the Western Hemisphere at the end of 2013. The Reporters Committee for Freedom of the Press stepped forward with a letter on his behalf to the court.

These actions prompted several other groups to mention him briefly in their newsletters or other publications. But those scattered and sporadic efforts are no match for those within the court system who seem determined to destroy Shuler and his wife financially and otherwise.

The whole article is well worth the read, but in the interest of generating a lot of attention, this is the problem:  The powers that be are on a mission to crush Shuler and ruin him. Forget due process.  Forget constitutional rights.  Forget common decency.  They are going to have their pound of flesh and when they are done, they will do to him what their forefathers did to the Native Americans.  

The question for folks here is simple.  Are we going to be silent in the face of this outrage, only waiting until something horrible and irreversible has happened before we voice outrage?    The powers that be are banking on our indifference.  They count on us to forget.  

One of the most memorable experiences I had as a young man was listening to Jacobo Timerman describe his experience at the hands of the Argentinian Junta.  What saved him was the work of ordinary people through the agency of Amnesty International.  He described how the torturers used to make it clear "No one knows you are here.  No one can hear you scream."  They did it to break your will.  But one day, a jailer came to his cell and tossed a bunch of letters at his feet.  They were part of the campaign launched through Amnesty International.  "They know you are here," was all the jailer said.  Timerman found the hope he desperately needed to survive in that moment.  It's stunning how much we can do with even a modest gesture.  

What will you do?

11:52 AM PT: I want to clarify a couple of points in response to some of the comments.  As I indicated in the original posting, the main concerns here are the ones articulated by Krieg:

Regarding Shuler's own case, he cited to me this week major violations of precedent and procedure, such as prior restraint, secret courts, jailing without bond, and lack of an arrest warrant.

Whether or not Shuler is a journalist is secondary.  The fact is at least one group that is interested in protecting journalists has spoken up on his behalf.  I am not interested in arguing the point further than that.  

Similarly, I do not feel obliged to argue whether or not Krieg's rhetorical appeal to authority by analogizing his letter to that of King's is justifiable or even effective.

The bottom line is a guy -- with a documented record of irascibility -- has played an important role over the years and is now paying a price that is completely outside the bounds of legal or ethical behavior.  

What is clear to me, and this is just my opinion, is that the people tormenting him in this case are doing it with the expectation that no one will notice or care.   My purpose for highlighting this here is to raise awareness and publicize the situation so those inclined and able to affect the process have more leverage to ensure fair treatment.

Advocating for fairness, due process, and public disclosure in no way prejudges the legitimacy of any party's claim.  I don't think this is asking anyone to compromise their integrity.

I raise the issue here, because if we don't care about those things when it hits this close to home, why should we care about it anywhere else?  Why should anyone else care?

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Comment Preferences

  •  The clock is ticking, the alarm is ringing... (150+ / 0-)
    Recommended by:
    Shockwave, Nebraska68847Dem, Hammerhand, leftykook, commonmass, bluedust, gooderservice, CanyonWren, elwior, tobendaro, Ojibwa, FiredUpInCA, htowngenie, native, Nailbanger, MsGrin, JML9999, sailmaker, Horace Boothroyd III, badscience, newpioneer, JimWilson, Seneca Doane, IndieGuy, Lorikeet, jguzman17, No one gets out alive, Galtisalie, hwmnbn, sow hat, humphrey, MadMs, UncleCharlie, chuckvw, Empower Ink, TracieLynn, J M F, gnothis, Susipsych, 1BQ, hubcap, NYmom, tgrshark13, Black Max, lotlizard, buddabelly, MarkInSanFran, Dburn, zerelda, samanthab, SpecialKinFlag, chrississippi, Observerinvancouver, laurak, Sandino, Odysseus, Mayfly, yoduuuh do or do not, bsmechanic, side pocket, camlbacker, SneakySnu, dRefractor, Karen Hedwig Backman, Sun Tzu, WheninRome, marina, kbman, eeff, roses, jalbert, Aaa T Tudeattack, bleeding blue, greengemini, FrY10cK, FarWestGirl, blueoasis, vicki, cville townie, Dvalkure, artisan, KenBee, pcl07, enemy of the people, IreGyre, oldpotsmuggler, carpunder, JVolvo, john07801, Simplify, run around, Preston S, i saw an old tree today, rmx2630, Dyana, StrayCat, Bernie68, awcomeon, Wreck Smurfy, llbear, my2petpeeves, Statusquomustgo, jhop7, BYw, whenwego, Jim Domenico, bnasley, lcrp, emmasnacker, raptavio, middleagedhousewife, alice kleeman, most peculiar mama, where4art, triv33, goodpractice, Woody, snoopydawg, jlms qkw, Santa Susanna Kid, ladybug53, helpImdrowning, shortgirl, mrkvica, wildweasels, revsue, deltadoc, psnyder, terabytes, greycat, davidincleveland, Words In Action, Kombema, RiveroftheWest, edsbrooklyn, Black Mare, CIndyCasella, real world chick, chimene, NoMoreLies, George3, susakinovember, kaliope, Brian B, nailbender, peregrine kate, Robynhood too, kpeddicord, MKSinSA, xynz

    anyone there?

    "When puzzled, it never hurts to read the primary documents—a rather simple and self-evident principle that has, nonetheless, completely disappeared from large sectors of the American experience." -- Stephen Jay Gould

    by 8ackgr0und N015e on Sun Mar 16, 2014 at 09:48:55 AM PDT

  •  Thanks for alerting us to this story (33+ / 0-)

    Reporting politically-motivated arrests is so last year. /s

    "You are not even aware of what is possible. The extent of their capabilities is horrifying."Edward Snowden -6.62, -6.92

    by CanyonWren on Sun Mar 16, 2014 at 10:23:34 AM PDT

  •  Schuler was not a "journalist" by any stretch. (14+ / 0-)

    I'm not certain whether or not his detention is lawful but, while I have no clue who the Society for Professional Journalism is, the presence of the word "journalism" in their title implies that Schuler is not someone they would be terribly concerned about.  What he needs is the advocacy of a Society for Full-Time Conspiracy Theorists.  He was full of more bullshit than a cattle yard.

    It would be helpful to read a real news article about the situation.  The new article does imply that the judge who found him in contempt potentially ignored some serious procedural issues, which explains how the ACLU ended up involved.

    By the way, the allusion to MLK is absurd.  This guy is no MLK and, while he deserves due process and Constitutional proceedings, which he may not have received, he deserves neither our support nor access to our website.  When he gets out of jail, which I hope is soon, he'll still be the same fact-free conspiracy theorist that he was before going to jail.

    "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

    by auron renouille on Sun Mar 16, 2014 at 11:11:55 AM PDT

  •  Roger is a journalist in his own mind. (10+ / 0-)

    Not that I believe journalists and the rest of us should enjoy different sets of freedoms.  Like Bradley Manning, focus on his treatment, not on his alleged heroism because too many of us don't see it.

    It's not the side effects of the cocaine/I'm thinking that it must be love

    by Rich in PA on Sun Mar 16, 2014 at 11:17:32 AM PDT

  •  I will do nothing. (3+ / 0-)
    Recommended by:
    Victor Ward, NotGeorgeWill, MKSinSA

    He is in contempt of court.  

    •  Others will. (16+ / 0-)

      Enjoy your inactivity. The judicial system appreciates you.

      •  Indeed, it does! (11+ / 0-)

        Mr. Shuler is incarcerated because he has knowingly and intentionally violated a court order.  

        Yes, the injunction issued by the court is questionable, but the proper process is to (1) obey the injunction, and then (2) challenge it through appeal.  Mr. Shuler refuses to do any of that -- he has decided, based on his own authority, that the Court is wrong, and that he will violate the injunction.  

        He can get out of jail anytime...all he needs to do is obey the injunction.   Mr. Shuler refuses, because, so far as I can tell, he enjoys his status as "martyr" and "hero."   If he wants to martyr himself, why should anyone lift a finger to stop him?

        More to the point, do we really want a world where individuals can decide with impunity to ignore court orders with which they disagree?   Assume with me that an injunction was issued to stop a protest at a Planned Parenhood clinic-- do the protestors get to ignore the injunction because they think it wrong?   How about an injunction to stop a company from polluting a river -- does the company get to ignore the injunction just because it thinks the court is wrong?   How about an injunction issued against a town clerk that refuses to issue marriage licenses to gay couples -- does the town clerk get to interpret the law and refuse to obey the court?

        Finally, full disclosure, my lack of willingness to help Mr. Shuler might have something to do with the fact that when I suggested that Mr. Shuler was incorrect on a legal point involving one of his targets, he decided to suggest by innuendo that I was a paid representative of his opponent.   You can see it Here in all its glory.

        To those who don't want to bother reading the link, Mr. Shuler made a completely spurious legal claim about a divorce proceeding.  I called him on it and provided the relevant citation.   His response was to question whether I was working for the subject of his article; when I called him on it, he then said he wasn't accusing me -- he was just "asking questions."   Of course, what followed was a wonderful bit of ad hominem against me -- including an improper demand that I reveal my identity to him.   When I refused, he called me names.  

        He got banned from here soon thereafter.

        So:  Mr. Shuler finally made some intemperate remakrks that got him sued and a court issued an injunction against him.   He responded by arguing that the court had no jurisdiction to issue the injunction and decidced to ignore the court -- a bad idea.   He then got arrested, and now, rather than obey the injunction, he prefers to sit in jail and wallow in his martyrdom.   And now, apparently, we are supposed to treat his incarceration and contempt as a rallying cry?  

        •  a few quick thoughts (9+ / 0-)

          (1) I haven't waded through all the comments in detail, although I see Roger's innuendo easily enough, but I know from my own experience that he's capable of pounding the table on behalf of an argument that really makes no sense at all.

          (2) It's at least logically possible, given what I know and the very great deal that I am aware of not knowing, that Shuler is being badly mistreated in this case even if he is far from a hero.

          "Democracy is a political system for people who are not sure they are right." —E. E. Schattschneider

          by HudsonValleyMark on Sun Mar 16, 2014 at 01:46:29 PM PDT

          [ Parent ]

          •  Yes... (5+ / 0-)
            Recommended by:
            Sylv, elmo, NotGeorgeWill, MKSinSA, Ahianne

            I was hardly the only person who drew Mr. Shuler's ire.  I gave the link so that people could at least understand where I am coming from.  

            And let me go a step further.   I will assume for purposes of this discussion that the Court's injunction was improper and it would be vacated on appeal, if properly brought.  Let's assume that he was signled out for this mistreatment as well.  

            The Supreme Court dealt with a similar issue many years ago.   Martin Luther King ran a protest march in violation of an illegal injunction.   Held:  even if the injunction was issued erroneously, Dr. King was still in contempt.   That is why he was in the Birmingham jail when he wrote his famous letter.

            •  Injunction Against Roger Shuler (2+ / 0-)
              Recommended by:
              NotGeorgeWill, Black Max

              Reply to Cthulhu.  Your analogy of Walker vs. City of Birmingham (1967) and the illegal prior restraint against the content-based internet free speech of Roger Shuler is false.  Walker was about the violation of an injunction to enforce parade permits and regulate pedestrian and motorist traffic in Birmingham.  I hope you are not a lawyer because you are not even close, and as a lawyer you should be.  You should know better.

              It's up to a civil jury to determine if Shuler's statements about Riley and Duke are defamatory, not Judge Neilson.  The minute we let political judges take peremptory leaps to find facts in lieu of petit juries, we're on the low road to another Third Reich.

              The injunction is against the wrong party.  It ought to be against Claud Neilson and the sheriff of the county where Shuler is being held.

              And no, I'm not a lawyer.  I'm retired.

              •  Actually, I am a lawyer (0+ / 0-)

                And your reading of Walkeris far, far f-a-r outside the mainstream.

                I challenge you:   find a case where a person violated an injunction, was found to be in civil contempt, and then successfully argued that since the injunction was invalid, the contempt was also invalid.   The Supreme Court in Walker found that contempt would apply even if the injunction was constitutionally suspect.  

                •  Providence, Cthulhu, Providence (0+ / 0-)

                  You found the case yourself, after you went out on a limb and said it didn't exist.
                  (Discussing In Re Providence Publishing.)

                  •  Yes, I am aware of it (0+ / 0-)

                    With all respect....I tried to choose my challenge very carefully,  I'm aware of Providence.   Its a criminal contempt case.  

                    However, can you find a civil contempt case?   I couldn't find one, and I looked pretty hard.  

                    And yes, in this case, it makes a great deal of difference.   A criminal contempt is to punish someone for violating a Court order.   A civil contempt is to hold someone in jail until they comply wit a court order.   One is to punish, the other is to persuade.

                    Of course, that's the problem in this case.   This isn't a case about a violation of a court order leading to punishment (at least, so far as I can tell).   Instead, this is a case about an ongoing refusal to follow a court order.   I think that Walker and Vance suggest that the ongoing violation will allow the contempt to stand (this goes back to United Mine Workers).  

        •  What I'm reading: (0+ / 0-)

          "I don't like him, he was mean to me, he said a lot of things in here that got him banned, so the court system can eat him for lunch, nyaaah."

          Good thing Shuler wasn't incinerated in a drone strike, or, based on your posts, you'd be defending those, too.

          And yes, that is intemperate.

          •  Hmmmm..... (1+ / 0-)
            Recommended by:

            I'm not sure how to respond.   I've spoken out against drone strikes in the past....

            But its don't seem to have a much of an argument for (1) why Shuler isn't in contempt of court, (2) why under the majority of precedents his contempt ruling is improper, and (3) why Shuler doesn't just comply with the injunction and get out of jail.

            I mean, that's the injustice, right?   You think he was wrongfully incarcerated.   I tell you:  the man has the keys in his hand; he can get out of jail by complying with the injunction, and then he will have the standing to challenge the injunction.   Your response is that I obviously don't like him, and how sad it is that I support his incarceration.  

            Might I also make a further suggestion?  The fact that Mr. Shuler is capable of getting out of jail any time he chooses doesn't make him much of a martyr....and may explain why there hasn't been a great deal of media outcry.

            And finally....I' must admit, I am confused.   What Robert Shuler did on his blogs was the worst form of slut shaming.   He went after a woman who is a private citizen and either (a) improperly published her private medical records of an abortion, or (b) lied about whether she had an abortion.

            Assume that Roger is, in fact, telling the truth.   That means that Mr. Shuler improperly got hold of a private person's private medical information and published it.   Do you think that's OK?   Do you think that a court has no power to stop that sort of thing from happening?  

            And assume it wasn't Mr. Shuler who was in the dock, here, but rather, it was an anti-abortion zealot who broke into a Planned Parenthood and got the information and was threatening to publish it.   Would you then think that, wow, a court should do something to stop that publication from going forward?  

            Or, to ask this question the way a lawyer (or court) might ask it --  Are you seriously suggesting that there is a constitutional right to slut shame someone by releasing their private medical information which was apparently obtained improperly?

            Drone strike?   Ha!

    •  What an asinine comment. (11+ / 0-)

      Contempt of court has long been misused to muzzle opponents. I have no opinion on the merits of Shuler's case but misuse of our court system by the rich and connected is abhorrent and should be condemned by all of us.

      If you don't watch news, you're un-informed. If you watch Fox news, you're mis-informed. (paraphrasing Mark Twain)

      by edg on Sun Mar 16, 2014 at 01:16:46 PM PDT

      [ Parent ]

      •  Awesome. Let me ask you a question (3+ / 0-)

        The principle that is at stake in the Shuler case is whether a person has the right to ignore court orders with which they do not agree.

        Do you think that people should be able to unilaterally ignore court orders with which they don't agree?  

        My answer to this question is "no."   I feel this way because personal disregard of even erroneous court orders will lead to chaos.   Do you disagree?   If so, why?   ANd do you have any legal precedent to support your position, or are you just saying that every individual can do what they please, and to hell with the courts?

        •  I pray ... (3+ / 0-)
          Recommended by:
          JVolvo, tgrshark13, Johnny Q

          that with beliefs like "personal disregard of even erroneous court orders will lead to chaos", you are never put in a position of power over any other human being.

          If you don't watch news, you're un-informed. If you watch Fox news, you're mis-informed. (paraphrasing Mark Twain)

          by edg on Sun Mar 16, 2014 at 01:50:55 PM PDT

          [ Parent ]

          •  Can you explain the basis of your argument? (8+ / 0-)

            My explanation for this belief is the fact that our judicial system is advesarial in nature, and that there will always be one litigatant who is displeased with a court ruling.

            So, take a divorce case, where a huspband is ordered to pay child support to his ex-wife.    The husband says thayt this is bullshit, his wife was a cheating bitch who never worked a day in her life, now she gets to take a portion of his earnings and sit back and enjoy life.   Its slavery!  Its serfdom!  It violates the Bible!   He decides to ignore the Court's ruling -- and does not pay.

            This same principle comes up every day in our court system, where one litigant loses and thinks the court is wrong.   We have a way of dealing with this issue in our system -- its called an appeal.   In order to appeal, one complies with injunctive relief or obtains a stay by seeking redress through a higher court.   We don't allow people to just ignore court orders they don't like, even if the order later turns out to be incorrect.   This principle has been litigated and reaffirmed time and time again, because no person should place themselves unilaterally above the law and, in effect, act as judge in their own case.

            So...that's my basis, that a society of laws functions only when court orders are treated as binding.   Tell me:  what do you think the rule should be?   Do you truly think that a person shiould be able to disregard the order of the court simply becausethat person does not agree with it?   Surely, you can see that there might be problems with this approach in a diverse society?

            •  Thousands of cases of non-payment of support (0+ / 0-)

              Prison sentences aren't used for non-payment of support.

              Please find another argument for your support of authoritarianism.

              “Industry does everything they can and gets away with it almost all the time, whether it’s the coal industry, not the subject of this hearing, or water or whatever. They will cut corners, and they will get away with it. " Sen. Jay Rockefeller, D, WVa

              by FishOutofWater on Sun Mar 16, 2014 at 10:20:00 PM PDT

              [ Parent ]

            •  O, Cthulhu! How Easy for You to Say (0+ / 0-)

              "This same principle comes up every day in our court system, where one litigant loses and thinks the court is wrong.   We have a way of dealing with this issue in our system -- its called an appeal."

              You remind me of A. H. Caplan's quip about defendants faced with appealing a quickie civil restraining order.  The plaintiff has taken a few minutes to fill out a simple questionnaire, and had all kinds of sympathizers and court officials holding her hands.  The defendant is now restrained ex parte and without notice, and then a few days later the abomination is made permanent.   Where does HE go to fill out papers to appeal the damnable injunction against him?

              And that's the whole idea behind an injunction obtained by the powerful.  The powerless will now play hell getting the injunction lifted.

              Cthulhu, how close are you to these adversary parties?  Or, may I say, are you one of them, or their attorney?

              If you'll read that Harvard U. law note I gave you the link for in another post, you'll see why MLK and his group of peaceful Gandhi-inspired ministers decided to disobey the Birmingham injunction.  They had just gotten clobbered when they tried to appeal in the corrupt Jim Crow courts in Georgia. --------->>

              "King and his colleagues learned of the order and spent the next day deciding what to do. In a prior civil rights struggle in Albany, Georgia, the same thing had happened: King had helped to mobilize a peaceful protest plan only to face an injunctive order. In Albany, the protesters decided to abide by the court order, to challenge it, and appeal it. In the meantime, though, the resolve, discipline, and momentum of the movement dissipated."  
              --- from

              •  Hey, I just saw this.... (0+ / 0-)

                Pretty amazing.   I was waiting for your to respond below -- you mentioned you would be giving me a full response to my Walker argument.   Sorry I missed this.

                A few random things:

                (1)   I am not representing any person or entity that has a dispute with Mr. Shuler or is contemplating suit against Mr. Shuler or, to my knowledge, who has been mentioned by Mr. Shuler.   I represent only myself -- a person who has crossed swords on this site with Mr. Shuler.   I am not a litigant against Mr. Shuler, nor am I involved with Mr. Shuler's many opponents.  

                (2)   Interestingly, Mr. Shuler questioned when I spoke against his position whether I was an attorney representing one of his targets.   He had no basis to ask that question -- it was a pretty vile insinuation -- and I took him to task for it.   It amounts to suggesting that I am a paid shill -- a sort of no-no around here.

                (3)   What is your connection to Mr. Shuler?  

                (4)  It is doubtful the opponents would hire me.   I am a known supporter of Democratic candidates in my home state of Texas.   I do not represent any Republican-oriented political organization or PAC or anything similar.   I do not raise money for Republicans.   I have been involved in civil rights litigation in the past.

                (5)  Yes, I understand that the situation in Walker was dire, and that Dr. King and his supporters felt they could not obtain a fair shake in the Alabama courts.   Walker nevertheless held that they had to try to appeal before violating the injunction.   Dr. King didn't try.   That's why he ended up in jail -- even though the Court thought the injunction was probably invalid.

                (6) "The Powerful" filing frivolous lawsuits to harass the weak is an interesting theory.   It is, of course, a flaw in our system -- the costs of filing a lawsuit are low, and the expense of dealing with that lawsuit is high.   So, query:   was Mr. Shuler one of the "powerful" when he filed a frivolous lawsuit against his neighbor, and then an even more frivolous lawsuit against the judge who ruled in favor of his neighbor?   Or, was that all about "obtaining justice" for the poor oppressed Mr. Shuler from the judge who ruled against him?

                (7) It is awesome that you are so solicitous of Mr. Shuler's right to slut shame.  Tell me:  where does a woman who has had her private medical information improperly accessed and released by Mr. Shuler go to stop the release?     This might seem like a snarky question, but, in fact, its really not.  

                You see, in your framing, Mr. Shuler is the one who is powerless -- he's just some fucking blogger, up against the power elite.   But one can see this in a vastly different light.   Mr. Shuler, rather than being powerless, is the one with the power here -- after all, he controls when and how he will release private medical information about the woman (if he's telling the truth) or what lies he will speak about a private person (if he's lying).  One can argue that it is the woman in this case who is powerless, and Mr. Shuler is the one with the power.   Given that scenario -- where is the woman to go for justice and redress, other than the Court?


        •  wrong (1+ / 0-)
          Recommended by:

          the principle here does the state of Alabama, when a person catches officials and bigwigs, have the right to attack, slander, and harass a person who is exposing them? Does the state of Alabama have the right to misuse their power when their conspiracy to jail former governor Siegelman, is exposed?

          You should look into the back story, especially how Shuler's neighbor was enlisted in the attempts to jail him. Alabama has been trying anyway it can to shut him up, for a long time. The truth is, Schuler knew he was doomed if he responded to the court, and doomed if he didn't. The courts already proved their bias and corruption against him.

          "Whenever the people are well-informed, they can be trusted with their own government" T. Jefferson

          by azureblue on Sun Mar 16, 2014 at 08:29:56 PM PDT

          [ Parent ]

          •  Again, let's take the slut-shaming angle (1+ / 0-)
            Recommended by:

            Why do you believe Mr. Shuler had a constitutional right to slut shame a woman by publishing her private medical records?

            Let's assume Mr. Shuler was telling the truth -- he exposed a woman's private medical records regarding her decision to have an abortion.  He isn't her doctor, and it sure would appear that he had no legal source to support his reporting.  Which means -- and a judge could so find -- that if he had the information, he got it illegally.

            Do you think Mr. Shuler, if he obtained the private medical information illegally, should have had the right to publish it, even if it causes harm to the woman?

            Again, let's change the facts slightly.   Imagine that an anti-abortion group broke into a Planned Parenthood and obtained hundreds of abortion records.   It announced it was intending to publish the names, one by one, on a website called ""   Could a court enjoin that publication?  

            For the record, courts do have the power to enjoin the publication of trade secrets obtained illegally.   If you believe that the constitution protects the publication of those who have had abortions, but not trade secrets, then tell me -- Why do you believe people have a constitutional right to slut shame, but do not have a constitutional right to publish trade secrets?

    •  Contempt of kangaroo court should void all (9+ / 0-)

      charges against him even if he is a nutter.

      Perhaps you've forgotten. This is Roy Moore-ville, not far from Arpio-land we're talkin' about. This is how nations devolve and you're watching it happen.

      Reaganomics noun pl: blind faith that unregulated capitalism can provide unlimited goods for unlimited people on a planet with finite resources. Synonyms: trickle-down; voodoo economics. Antonyms: common sense. Related Words: Laffer curve.

      by FrY10cK on Sun Mar 16, 2014 at 02:00:22 PM PDT

      [ Parent ]

      •  I haven't forgotten (4+ / 0-)

        But I also know that Mr. Shuler doesn't get to pick what courts he will obey and what courts he will ignore.  

        The proper way to void the charges is to comply with the injunction, get out of jail, and then appeal.  What's the answer otherwise?   Kossacks take to the streets with weapons and force the jail to release him?   How does that "void" the charges?

        •  I hear ya. (3+ / 0-)
          Recommended by:
          tgrshark13, Sylv, FishOutofWater

          Let's hope it doesn't come to that. That's exactly what Joe Dixieflag and Ginni Thomas want.

          Sorry to remind you about how sick our legal system is but Thom Delay and Dick Cheney remain free.

          Reaganomics noun pl: blind faith that unregulated capitalism can provide unlimited goods for unlimited people on a planet with finite resources. Synonyms: trickle-down; voodoo economics. Antonyms: common sense. Related Words: Laffer curve.

          by FrY10cK on Sun Mar 16, 2014 at 02:23:45 PM PDT

          [ Parent ]

        •  no, but (1+ / 0-)
          Recommended by:

          when he knows and it has been proven that the courts are corrupt and they will do anything to shut him up, then what? Have you even looked into how flimsy the case against Siegelman was, but yet, he was convicted and jailed? Schuler knew he had no chance against the AL court system.

          "Whenever the people are well-informed, they can be trusted with their own government" T. Jefferson

          by azureblue on Sun Mar 16, 2014 at 08:34:28 PM PDT

          [ Parent ]

  •  Regardless of peripheral issues, it is (17+ / 0-)

    shocking that he's been locked up for so  long.  And I doubt that those responsible have any trouble keeping a straight face when they brag about the glorious example Amurrica bestows on the rest of the world of democracy, freedom and the rule of law.  Sure does.  

    We must, indeed, all hang together, or assuredly we shall all hang separately. B. Franklin

    by Observerinvancouver on Sun Mar 16, 2014 at 12:42:37 PM PDT

    •  Actually, its not (6+ / 0-)

      The injunction says, as I understand it (I have not read it in a while) that he is to remover certain posts from his blog.

      He refuses to do so.   That's civil contempt.   He can stay in jail forever while he remains in contempt of the injunction.   He holds the key of his release in his hands.

      He doesn't want to use it.   Why?   Well, there's two explanations.   One is that he stands on the principle that the injunction is overborad and can be ignored.   That's very brave, but foolhardy -- better to take down the offening posts, get out of jail, and then appeal (which one cannot do while in contempt in most states).

      The second is that he enjoys martyrdom, and this is the most exciting thing that has happened to him -- he now has international exposure and can be famous!   My view, based on having read his work, is that his conduct is narcissistic martyrdom.  

      •  Maybe he's narcissistic nutter. I don't know. (2+ / 0-)
        Recommended by:
        tgrshark13, Sylv

        But sane or not he's bringing attention to a very fucked up judiciary. Roy (need I say) Moore.

        Reaganomics noun pl: blind faith that unregulated capitalism can provide unlimited goods for unlimited people on a planet with finite resources. Synonyms: trickle-down; voodoo economics. Antonyms: common sense. Related Words: Laffer curve.

        by FrY10cK on Sun Mar 16, 2014 at 02:13:31 PM PDT

        [ Parent ]

  •  Do we have the right to be CT people? (2+ / 0-)
    Recommended by:
    blueoasis, artisan

    Is there a huge difference between this and Alex Jones, David Icke, and Jesse Ventura?  Some of their stuff is way out there.  I have a choice to read or not?

    I understand that we do not do any of "that" here but do we as Americans have the right to read and self publish anything we want.

    Is this any different then revolutionary America using Tom Paine when it worked for him and calling him a traitor and forcing him into exile for publishing a diatribe against the Bible?

    •  Just to separate out two issues: (19+ / 0-)

      Yes, Roger has every right to be a CT person, but people are citing it above as evidence - duly so - that Roger's take on issues, including his own incarceration, should be dealt with with the requisite amount of salt.  He has a tendency to make things up whole cloth, and it's what got him banned from this site.

      Roger does not, however, legally, have the right to libel, and that's what got him in trouble with the courts in the first place (the facts of this case show him to be every much the asshole that deserved his banning, from his clear acts of defamation to his refusals to show up to court and respond to the decision.*)  That doesn't mean the judgment was correct, and everything in this case points to the fact that the judge overstepped his boundaries, that his injunction was unconstitutionally broad - prior restraint, wtf? - and that Roger is in the right at least as far as the injunction goes.  

      So I think it's possible to be concerned about the application of justice here, but not to believe the person who's telling his own story about it.  I trust Roger about as far as I can throw, but I'm happy the ACLU and others have stepped up to challenge the clearly problematic parts of the judge's orders.

      (* - Which anyone could have seen coming.  Roger was frequently warned on this site that he had no idea what he was talking about when he blogged on legal issues, so his handling of his own trial - the fact that he probably lost the case through his own ineptitude - are the reason words like "schadenfreude" exist for.)

      Saint, n. A dead sinner revised and edited. - Ambrose Bierce

      by pico on Sun Mar 16, 2014 at 02:45:05 PM PDT

      [ Parent ]

    •  Only if we don't offend the powerful. (1+ / 0-)
      Recommended by:
      yoduuuh do or do not

      Those you named don't offend the powerful.

      I won't believe corporations are people until Texas executes one. Leo Gerard.

      by tgrshark13 on Sun Mar 16, 2014 at 03:38:13 PM PDT

      [ Parent ]

    •  Paine was never forced into (11+ / 0-)

      exile. He moved to France inspired by the French
      Revolution. He wrote The Age of Reason, which is the 'diatribe' you refer to, shortly before his arrest by Robespierre on suspicion of supporting the French monarchy.

      Paine argued against executing the King, as he had contributed so much to the American Revolutionaries. Paine was spared from the guillotine by a prison guards error. He continued to live in hiding in France. He wrote the second half of The Age of Reason during this time. He met with Napoleon several times as the soon to be emperor was a fan of Paine's writing.

      Paine did not return to the States until several years later. He was an unpopular figure, due to his attack on organized religion, but also because of his attacks on President Washington while in France. He believed that the American President had conspired with Robespierre to execute him.

      Paine died in Greenwich Village in 1809. Only six mourners came to the funeral, including two Black Freedmen. Paine argued for the emancipation of slaves throughout his career, one of many of the many unpopular ideas Paine espoused.

      Here's my take on it - the revolution will not be blogged, it has to be slogged. - Deoliver47

      by OIL GUY on Sun Mar 16, 2014 at 03:50:57 PM PDT

      [ Parent ]

  •  I read the story in question. (9+ / 0-)

    The alleged extramarital affair that he reported on was weak in detail and you simply had to rely on Shuler's word for it. As a journalist myself, I was in a similar situation where there were rumors flying around. In that case, when you hear allegations of this nature, you have to wait until there is independent corroborating evidence for the allegation before you print something of the nature that he did. We're not law enforcement; we're the court of last resort. My rule is to either stick to what is public knowledge or stuff that I can document if I have to. If you can document the truth, that is an absolute defense against these sorts of charges.

    The problem is, where did these alleged affairs take place? Where were these two individuals seen? How does your source know that there is an affair? It's human nature to assume that if a man and woman are friendly that there is therefore something going on. I understand that there is the potential for major implications if these allegations are true. But that makes it all the more important to do one's homework.

    None of this justifies Shuler's arbitrary imprisonment. Two wrongs don't make a right. His civil rights still have to be protected and fairness and due process still have to be followed.

    "The cost of liberty is less than the price of repression." - W.E.B. Du Bois Be informed. Fight the Police State.

    by Eternal Hope on Sun Mar 16, 2014 at 03:28:08 PM PDT

  •  The Reporters' Committee for Freedom of the Press (6+ / 0-)

    is a fine, thoroughly responsible, mainstream organization that helps reporters with various thorny legal issues (I and my editor were helped more than once with public-info disclosure issues), and if that organization is speaking up on this situation, it says a lot. If the Committee to Protect Journalists is weighing in, that is exponential. (I'm not sure what's up with the Society of Professional Journalists on this issue, but they are not everybody.)

    Also: in the U.S. there is, quite intentionally, no single "official" definition of a journalist vs a non-journalist. Always there are inevitable gray areas and arguments. But the Reporter's Committee definitely does not make a practice of going to bat for random loudmouths. If they consider Schuler a journalist, there is bound to be good reason.  

    Finally: Schuler's personality, whatever it may be, is not on trial. Neither is his sense of good taste.

    These kinds of things:

    prior restraint, secret courts, jailing without bond, and lack of an arrest warrant
    are what should be on trial and should gravely concern us all.  
    •  That's what prompted my posting... (6+ / 0-)

      Two independent and reputable organizations had weighed in, plus the charges made by an attorney (Krieg) -- even though he was careful to qualify them by saying:

      ... he cited to me ....
      I specifically ignored the stated concerns about threats to his personal safety precisely because of his prior history and the fact such claims could easily be dismissed as "histrionics" or "attention whoring" or some other attempt to gin up publicity.

      "When puzzled, it never hurts to read the primary documents—a rather simple and self-evident principle that has, nonetheless, completely disappeared from large sectors of the American experience." -- Stephen Jay Gould

      by 8ackgr0und N015e on Sun Mar 16, 2014 at 04:50:42 PM PDT

      [ Parent ]

  •  some people here (3+ / 0-)
    Recommended by:
    Words In Action, FishOutofWater, Sylv

    post criticisms of Schuler, based on the assumption that the AL legal system lays by the rules. As a person who was raised right next door to the state, I can assure you, they do not. Judges and cops do what they damn well please to make their friends happy. And they all cover for each other - it is still the era of "Mississippi Burning" down there. And just like that era down there, and it will take a huge Federal intervention to get some kind of justice for Siegelman and Schuler. Schuler knew the same machine that brought down the former governor with the flimsiest of charges, would be used against him, and it was. I was appalled that no one stood up for the former governor when he was being railroaded into jail, and the same thing has happened to Roger.

    As I said, he knew was damned if he showed up in court and damned if he didn't. Roger knew he didn't have snowball's chance in that court, he knew the judge was corrupt.

    So why isn't the ACLU and Holder doing something? There is something fishy going on, that, even as far back as the governor's trail, nobody stepped up to help but Roger.

    "Whenever the people are well-informed, they can be trusted with their own government" T. Jefferson

    by azureblue on Sun Mar 16, 2014 at 08:46:20 PM PDT

  •  This is the last place to expect support against (0+ / 0-)

    any mainstream power unless it involves anonymous canvassing or some such.

    Those who are the quickest to appreciate and avoid the potential negative impact that public political actions might have on their comfort are likewise the strongest to reject notions of "rigged systems," plutocracy, corporatocracy, kleptocracy, etc., insisting instead that accusations of such are conspiracy theories...

    Trust, but verify. - Reagan
    Vote, but Occupy. - commonmass

    When the rich have tripled their share of the income and wealth yet again, Republicans will still blame the poor and 3rd Way Democrats will still negotiate.

    by Words In Action on Sun Mar 16, 2014 at 09:20:32 PM PDT

  •  Since I do not have a clue about (2+ / 0-)
    Recommended by:
    MKSinSA, Sylv

    any of this, my comment really has to do with the tone of the commentary on this thread. It appears that most are complaining or supporting this Shuler guy because the state of Alabama is accused of a bad judicial system that protects their friends in high places. Or this guy Shuler is a hero journalist to some here who is seen as fighting the good fight against the bad established order in the state of Alabama. That there was an injustice done for jailing him for contempt as he supposedly would not stop his reporting of his allegement of an adulterous affair that no one here is confirming ever occurred.

    I am just wondering, regardless of the political leanings of the 2 alleged adulterers, how come no one during this entire post writes about the injustice to 2 people who may not have committed adultery? Was there any evidence of adultery? What impact on the families of the 2 is being reported, or does anyone here care about that as long as this supposed martyr's legal situation is discussed? What kind of journalist reports on alleged adultery without evidence? Secondly, when did this community all of a sudden take up the mantel of protecting a person for publicly accusing 2 people of wrong doing in their "personal" life. Just seems to me the commenters are more willing to support an accuser than the people being accused with no evidence. Maybe I got it all wrong, but just lurking on this post without any knowledge of the issue, this is what I infer from all the comments.

    Those are my principles, and if you don't like them... well, I have others....Groucho Marx

    by tazz on Mon Mar 17, 2014 at 12:37:45 AM PDT

    •  This is painting with too broad a brush (2+ / 0-)
      Recommended by:
      MKSinSA, Sylv

      I see plenty of people here expressing skepticism about the case, or at least defending the state's authority to jail someone who refuses to attend a hearing and then obey a court order requiring the removal of the offending post, especially when the post is made without any supporting evidence.  I also see people commenting who raise the issue of defamation, for example, there is no Constitutional right to libel someone.

      This case is of particular interest on this site, because Roger Shuler once posted here and some of the commentators had interactions with him, including several who had negative encounters with him.

      •  Ok, I now see some comments about (1+ / 0-)
        Recommended by:

        defamation. I don't recall this guy. I know a lot of discussions here deal with meta stuff and I usually ignore it because we tend to get pissed off a lot and that's when we feel the urge to write personal sounding stuff so I did not know this guy Shuler interacted with many here, now I can understand why his plight is being discussed versus the 2 people he accuses. Sorry.

        Those are my principles, and if you don't like them... well, I have others....Groucho Marx

        by tazz on Mon Mar 17, 2014 at 01:14:05 AM PDT

        [ Parent ]

        •  Btw, I know it's not germane to (0+ / 0-)

          the discussion about his incarceration, and I don't think the judge's decision is fair, but, I actually think a journalist stops being a journalist when they write about adultery. It's one thing to have freedom of the press, it's another thing when the press assumes the role of being the morality cop and tries to expose what goes on behind closed doors between two consenting adults. Most of the time I've seen journalists accuse people of adultery was to vilify someone they had it in for anyway or to denigrate someone in support of an issue or sponsor.

          Those are my principles, and if you don't like them... well, I have others....Groucho Marx

          by tazz on Mon Mar 17, 2014 at 01:30:54 AM PDT

          [ Parent ]

          •  I appreciate your common sense about this. (3+ / 0-)
            Recommended by:
            MKSinSA, Sylv, tazz

            I don't know much about Schuler's case but I do know that a lot of otherwise pretty progressive people don't support him.  The fact that the ACLU supports him doesn't mean he is a progressive "speaking truth to power".  They don't make those distinctions.  I think his incarceration is terrible.  I've seen other people jailed for contempt and they are usually willing to do whatever they can to get out so they haven't stayed as long.  But my understanding is that Schuler won't "purge" his contempt by complying.  

            I agree with you that, if making false allegations of adultery are what got him sued in the first place, I don't have much sympathy for him.  You don't get to make up lies about other people that could hurt them and their families without some consequence.  If he lost because he refused to show up to court then it's even sadder.  What I don't think about this, like many other topics here at DKos, is that a discussion about this has to turn into one of those "you are a corporatist lackey who support the oligarchy" vs. "this man is clearly a conspiracy theorist and thus doesn't deserve any discussion".  Wouldn't it be nice to actually discuss the case (from different perspectives) without assuming we know the real political leanings and personalities of the people commenting on it.

            "Speak the TRUTH, even if your voice shakes."

            by stellaluna on Mon Mar 17, 2014 at 05:37:13 AM PDT

            [ Parent ]

        •  I haven't read his stuff for years . . . (0+ / 0-)

          but during the U.S. Attorneys scandal in 2007, he helped call attention to the prosecution of Dem Gov. Don Siegleman, and wrote some diaries that weren't completely nuts on the issue.  

          I agree with you about the question of whether writing about adultery is in the public interest.  If the issue somehow touches on a public concern and involves public figures, it might be newsworthy, but otherwise it's more of a personal matter.  

          In the case of outright libel, there isn't any defense for the publication of those kind of charges.  And where the charges are potentially defamatory, there should be some attempt to substantiate the claims on the basis of actual evidence.

  •  Judge Neilson's Order Committing Roger to Jail (0+ / 0-)

    Is there a site with a scan of Claud Neilson's civil contempt order that one could read?  I keep learning new tidbits that are more bothersome about this case of prior restraint.

    Another question I have.  Riley sued Shuler.  Was Shuler defaulted?

    And where may be found the most objective and articulate material charging Alabama authorities with enlisting Roger's neighbor as a collaborator against him?

    •  You can find some of it (1+ / 0-)
      Recommended by:

      on legal schnauzer (Shuler's blog), and some on "legal schnauzer exposed" which was a blog started by people who hate Shuler.   (I am not affiliated with either site).

      Yes, I believe Shuler was defaulted.  As I remember things, the Sheriff pulled him over and served him; Shuler objected, claiming that the stop was pretextual, and suggested the service therefore was improper.   The Court did not agree, and, on motion, issued an arrest warrant.

      The local constables were not gentle in arresting him -- I suspect that he may have a cause of action against them, although good luck with the proof.   He was brought to court and held in civil contempt for failing to take down the articles.   He claimed he couldn't take down the articles from a jail cell, but the Court said "too bad."  

       I'll see if I can find the orders.   I saw them at one point, but that was months ago, and I don't remember where.

    •  Here is the Popehat article (0+ / 0-)

      It seems to have actual excerpts from the trial court.   If you go to the ACLU brief on Mr. Shuler's blog (sorry, no link), which was filed in November, there are a bunch of websites listed where the records are available.

      BTW:  while Popehat generally agrees that Mr. Shuler should be released, it points out:

      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.

      Despite your comments above, it would seem that I'm not the only one out there who thinks that the Walker case might be applicable to this circumstance.   You may not believe my analysis -- but are you seriously going to challenge Ken White on his first amendment jurisprudence?  
      •  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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