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Prior Restraint, Roger Shuler, and the Rileys of Alabama

Roger Shuler (above) and Rob Riley (below)

Many FDL readers may know the posts of Roger Shuler, who writes at his Legal Schnauzer blog, he posted. Or at least, he did until last week, when he got beaten up and hauled off to jail:

The prominent investigative blogger Roger Shuler was arrested and beaten by Shelby County sheriff’s deputies in his Alabama garage upon returning home the evening of Oct. 23.

Shuler faces charges stemming from his refusal to obey a judge’s order to stop writing about an alleged affair involving Robert Riley Jr., an attorney who is part of Alabama’s most prominent political family.

Shuler at right shown in a jail mug shot photo with a swollen face after his beating and attack with MACE in his garage. Authorities in his county south of Birmingham held him on two contempt of court charges and one for resisting arrest. A judge refused to set bond on the contempt charges, thereby enabling authorities to hold Shuler for an undetermined period that could be many months at the judge’s discretion. His bond was $1,000 for the resisting arrest charge.

Update Oct. 29: As of this writing, Shuler remained in jail, his wife was barricaded in their home, and a news blackout remained through virtually all of the mainstream media, with only a few web-based media covering the story. OpEdNews editor Joan Brunwasser published an interview with me: Andrew Kreig: Alabama Journalist Roger Shuler Beaten and Arrested! A sympathetic reader of these reports dropped off enough food to last for several days, and more than $1,000 has been contributed to a fund for potential legal expenses.

Shuler remained in jail without bond on the morning of Oct. 29. This story passed 20,000 hits on this site. As far away as Moscow, the pro-privacy fighter Edward Snowden had reTweeted this column to his followers. The mainstream United States media maintained eerie silence. As so often said (most famously by Edward R. Murrow), a nation of sheep begets a government of wolves.

Even people inclined to see Shuler as a crank and a nutjob are angry about the blatantly unconstitutional “prior restraint” involved in the efforts to gag Shuler and Legal Schnauzer. Here is Ken White of Popehat, a legal blog, weighing in:

Shuler set his sights on Robert J. Riley, Jr. Riley is the son of the former Republican governor of Alabama. So he’s connected. Shuler seems to believe that Riley is being groomed for office himself; it may be true, though Shuler’s word is not a good reason to believe it. A few years ago Shuler wrote about Riley paying a fine in a campaign finance investigation. More recently, Shuler accused Riley of having an extramarital affair with a lobbyist, and made various sordid claims about their relationship. Again, Shuler saying it is not a good reason to believe it’s true; if anything, the accusation is discredited by coming from Shuler.

Riley sued Shuler for defamation. That much is unremarkable. Defamation isn’t protected by the First Amendment when it constitutes false and unprivileged statements of fact.

But Riley went further. He got Alabama Circuit Judge Claude D. Neilson to issue a preliminary injunction — that is, an order issued before there’s been a trial — prohibiting Shuler from saying certain things about Riley:

‘Based on the foregoing, Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said alleged extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received any such funds. The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court. These efforts shall include, but not be limited to, taking the subject information off of the website known as “Legal Schnauzer,” taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube.’

That order — forbidding Roger Shuler from saying something before he says it — is called prior restraint, and it is widely acknowledged to be a violation of First Amendment rights in all but the most extreme circumstances.

You can see the last Legal Schnauzer post here.

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