Alabama blogger still in jail after violating take-down order in libel suit

Jamie Schuman | Prior Restraints | News | November 6, 2013

Two weeks after his arrest, the Alabama blogger found to have violated a judge’s order not to publish certain stories remains in jail and without an opportunity to challenge the contempt order.

Roger Shuler, who runs the blog Legal Schnauzer, was charged on Oct. 23 with two counts of contempt of court for allegedly violating a temporary restraining order and preliminary injunction. The Circuit Court of Shelby County, Ala., had ordered Shuler to take down stories that alleged that Robert Riley, Jr., the son of a former Alabama governor, had an affair with and impregnated lobbyist Liberty Duke.

Riley and Duke have filed defamation suits against Shuler and his wife Carol Shuler in the Circuit Court of Shelby County, Ala. The court has sealed all of the records in the case, although a handful of them are available on Legal Schnauzer and other websites.

The American Civil Liberties Union of Alabama asked the court on Monday for permission to file a friend-of-the-court brief on behalf of Shuler. The group is arguing that the both injunctions and the decision to seal all of the records in the case are unconstitutional, legal director Randall Marshall said.

“It’s hard to see any justification for filing everything under seal,” Marshall said. “The motion to file everything under seal is itself sealed. Every document in its entirety should not be hidden from public view.”

The ACLU is not representing Shuler, and Carol Shuler said Wednesday that her husband is eager to find an attorney. One lawyer in the state said he visited Shuler in jail but could not represent him due to a conflict that arose between the two. The Reporters Committee submitted a letter to the judge in support of the effort to rescind the order and unseal the documents.

Carol Shuler said she received notice this week that a hearing on whether to issue a permanent injunction that was originally scheduled for Thursday has been pushed back to Nov. 14.

On Oct. 1, Judge Claude D. Neilson granted Riley and Duke’s petitions for preliminary injunctions. The judge found that the Shulers published “false, defamatory, and libelous statements” and that Riley and Duke “are likely to succeed on the merits of their case.” Neilson then ordered the Shulers to stop publishing any information about the alleged affair and to take down articles that had already been written.

Neither a default judgment nor a full adjudication on the merits of the defamation claims appears to have occurred, people familiar with the case said. Courts have determined that bans on speech prior to such determinations are prior restraints. The Supreme Court has found prior restraints to be presumptively unconstitutional and has never upheld one.

Shuler has run Legal Schnauzer, a blog focused on exposing political corruption, since 2007. Before that, he worked for the Birmingham Post-Herald for more than a decade and was a university editor for about 20 years.

Shuler also is charged with resisting address. Bond is $1,000 for that charge, but has not been set for the contempt charges because civil contempt charges are meant to compel action. Carol Shuler, who said she has occasionally helped with research for the blog, has not been arrested. Both had declined to attend some earlier court hearings on the injunctions.

The Shulers have been told they can remove the contempt charges only by taking references to the alleged affair off of their website and other social media.

Carol Shuler said she does not know how to take the material down from the blog, and that she did not know if doing so would “do any good.”

If the court wants the materials down, she said, it should ”have a hearing and say ‘Mr. Shuler we’ll let you out if you take it down.’”

“He hasn’t had a proper hearing,” she said. “He’s just being left there to rot.”