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Tuesday, May 13, 2014

Incident Report Indicates Warrant Was Unsigned In The Arrest Of Legal Schnauzer Publisher

The incident report in my arrest indicates the warrant was unsigned, and that comes on top of courtroom evidence suggesting there was no warrant at all.

What does all of this mean? We still are researching the issue, but we have found Alabama law stating that an unsigned warrant is "utterly void." That suggests my arrest and the resulting five-month incarceration in the Shelby County Jail might have been conducted outside the law.

Alabama incident reports include a notation that certain parts of the report are considered officer work product and "may not be public information." We therefore are not publishing the entire report, but a copy was made available for my defense at the resisting-arrest trial, and I learned the following:

At the bottom of the second page on the report is section No. 208. The section says "Warrant Signed," with boxes for "yes" and "no." The box for "no" is checked.

Our research indicates this is not a minor detail. Long-standing Alabama law has held that an unsigned warrant is "utterly void," and we will be taking a closer look at that law in upcoming posts.

Tuesday, May 6, 2014

Alabama Court Case From 1994 Finds That Preliminary Injunction Was Prior Restraint On Free Speech

A grisly Alabama murder from 1984 led to publication of a book that sparked a classic prior restraint lawsuit. The Alabama Supreme Court, in a 1994 ruling, cited the state constitution in ruling that attempts to suppress publication amounted to an unlawful prior restraint.

The take-home lesson? Efforts to impose prior restrictions on speech run afoul of both the U.S. Constitution and its First Amendment--plus the Alabama Constitution. That means the preliminary injunction that led to my incarceration was unlawful on multiple levels.

The case in question is styled Doe v. Roe, 638 So. 2d 826 (1994), and the high-court ruling came 10 years after a murder that gave rise to a book. Here is background from the Doe opinion:

In 1984, the natural mother of Roe's adoptive children was murdered by their natural father. The man dismembered his wife's body and buried it under a fish pond in the back yard of the family's home. When her body was discovered approximately three years later, the event and the resulting trial received much publicity. The children's natural father was convicted and is now serving a life sentence in the penitentiary.
After the children's natural father was arrested for the murder of their mother, they remained in the custody of relatives for more than a year. Later, they were adopted by John Roe and his wife, who lived in another area of the state. The children moved to the home of their adoptive parents about a month before the trial of their natural father, and since that time they have been undergoing counseling to enable them to lead normal lives.
Doe wrote a novel based upon the events of the murder. She contacted various commercial publishers, but none was interested in publishing her book. She then invested her own money in publishing the book. She had approximately 1,000 copies printed in hopes that she could distribute the book herself. Roe learned of Doe's plan to distribute this book. As next friend of his minor adoptive children, Roe filed a complaint for an injunction against the distribution of the book.

The trial court granted a preliminary injunction, as it did in my case. But it did not hold up in Doe, and that finding helps explain why there never should have been in injunction in my case. From the Doe opinion:

Although Doe raises several issues on appeal, the dispositive question is whether the injunction violated Article I, § 4, of the Constitution of the State of Alabama. According to Article I, § 4, "no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty." The trial court held that a prior restraint was necessary because, it felt, the distribution of the book would injure the children by invading their right to privacy. We do not agree that Doe's right to freedom of speech as guaranteed by the constitution is overcome by the privacy interests raised in this case.

Alabama might not be thought of as a progressive state, but those are powerful words in support of free speech--showing that are free-speech traditions have been supported both by those on the left and the right.

Thursday, May 1, 2014

Alabama Case from 1909 Provides Strong Warning Against "Censorship In Advance" On Free Speech

A 1909 court case uses strong language to decry "censorship in advance" on matters of free speech. Was the case decided in a coastal state that has become known for its liberal traditions? Nope, it was decided right here in Alabama, in a federal court.

Our thanks to the Popehat blog for unearthing Citizens’ Light, Heat and Power Co. v. Montgomery Light and Water, 171 F. 553 (1909). After reading the key finding in Citizens' Light, one can only wonder how Circuit Judge Claud Neilson issued a preliminary injunction in a defamation case, leading to my incarceration in 2013/2014. That remains a head scratcher, but the words from Citizen's Light leave little doubt that I never should have been subject to an injunction, with resulting contempt and incarceration. 

Popehat sets the stage by explaining that equitable remedies, such as an injunction, are improper in defamation cases:

An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

With that as an introduction, let's consider these powerful words from the 1909 Citizens' Light case.Note it's key finding in the first sentence: that an injunction imposed by a single judge in the equity setting amounts to censorship:

Neither a court of equity, nor any other department of government, can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance. Citizens’ Light, Heat and Power Co. v. Montgomery Light and Water, 171 F. 553 (1909)

Tuesday, April 29, 2014

Alabama's Staunch Support of Free Speech Has Roots That Go Back More Than 100 Years

Alabama might not be seen as a favorable spot for progressive ideas, but the state's strong support of free speech goes back more than 100 years. Case law from both state and federal courts in Alabama show that preliminary injunctions that restrict free speech--the kind that led to my recent incarceration--are unlawful.

We have found several such cases, with the help of the authors at the Popehat blog, which seems to present a right-of-center view on legal and political issues. An October 27, 2013, post at Popehat puts it simply:

The order underlying Shuler's arrest is unconstitutional. There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation.

The post then points out that this notion doesn't just find support in parts of the country that are considered moderate to liberal. It also has strong support right here in Alabama, and it conflicts with Judge Claud Neilson's preliminary injunction in my case. Writes Popehat:

This is not some mere Yankee affectation. The courts of Alabama — where Judge Neilson issued his injunction — have long recognized the principle. "Nor can an injunction be granted to restrain the publication of a libel." Montgomery & W.P.R. Co. v. Walton, 14 Ala. 207 (1848).

Popehat notes that an injunction is an equitable remedy, one that is only supposed to apply where legal remedies, such as money damages, are unavailable or inadequate. Popehat then shines light on these principles by citing a federal case that was heard in Alabama in 1909.

We will take a look at that case, and what it says about my 2014 situation, in an upcoming post.

Wednesday, April 23, 2014

Injunction In Legal Schnauzer Case Runs Contrary to Alabama Constitution's Support For Free Speech

Reporting on my incarceration has focused on a preliminary injunction that constitutes an unlawful prior restraint under the First Amendment to the U.S. Constitution. Analysts from all sides of the political spectrum have come to that conclusion.

Problems with the injunction, however, do not end there; it also runs afoul of the Alabama Constitution.

Alabama often gets tagged as a backward state, but the state constitution takes a progressive stand on free-speech matters.

Powerful support for free speech is found in Article 1, Section 4, which states in part:

"No law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty."

We have found at least two cases where that sentiment was used to overturn prior restrictions on speech in Alabama. That means that the civil contempt finding and resulting incarceration in my case was contrary not only to fundamental Bill of Rights law at the national level, but it also appears to conflict with the Alabama Constitution's powerful language to ensure free speech.

Monday, April 21, 2014

Legal Schnauzer Is Not The Only U.S. Blog To Receive Unwanted Attention From Content Thieves In India

Legal Schnauzer is not the only blog to have its content lifted by a blogger from India who goes by the name "Poonam Verma." As happened in our case, part of the scheme is to add the letter "a" to the end of a key word in the URL.

The discovery came from Michael Donahue, an information-technology professional we asked to look at legalschnauzera.blogspot.come, the India-based site that copied our work. Donahue not only found the source of our problems, he also found at least one other U.S. blogger who had been targeted.

That was the Good Point Ideas Blog, which can be found at retroworks.blogspot.com. Robin Ingenthron, of Middlebury, Vermont, writes the blog and owns a company called American Retroworks Inc. The blog and the company focus on recycling, electronic exports, and fair trade.

On January 9, 2014, Ingenthron wrote a post about a blog from India that was lifting his content, and he traced it to someone using the name "Poonam Verma." In this case, the URL was changed to retroworksa.blogspot.com and the title became "Damageethical  Blog."

From Ingenthron's post on the discovery:

How's this for a doppleganger? Damageethical Blog, "by Poonam Verma". He may be from India, or from Sri Lanka, I see 22 pages accessed from Sri Lanka this morning.
It's registered as retroworksa.blogspot.com (notice the letter "a" affixed to retroworks). And it's a complete reposting of my work in this blog.
Except every post has a crap link advertisement in front. I haven't found any malware.
So... since I'm a mission oriented dude, do I see this as "getting the word out?" Or should I be outraged at the paid ads for water removal, sewage, etc. he's selling? It's like running into a cyber-Leonard Zelig from India.

That's exactly what happened with Legal Schnauzer. An "a" was added to our URL, with content lifted and an ad linked to each post.

Our thanks to Michael Donahue for helping us learn that we aren't the only victims of this scam.

Wednesday, April 16, 2014

Here Is An Inside Look At The "Web Scraping" That Led To Major Content Theft at Legal Schnauzer

A blog based in India stole content from Legal Schnauzer by using a technique called "Web scraping," an information-technology professional states. What is the key tip-off? It's the rogue blog's use of advertising, our IT source states.

The blog, LegalSchnauzera.blogspot.com, uses an almost identical title and Web address as this blog--with the only difference being the addition of the letter "a" after schnauzer. Republican political figure Rob Riley cited LegalSchnauzera in court documents and claimed the site might signal that I had not been fully purged of contempt after my wife, Carol, removed certain items from sites under our control, leading to my release from jail.

Our IT source, however, says Legal Schnauzer has been the victim of content theft from the India-based knockoff. We have sent a cease-and-desist letter to the registered owners of the site, who are shown from advertising documents as:

Poonam Verma and Pushpender Kumar
Verdhaman Hall/Verdhaman Complex
Delhi, DL 110091

(Note: The spelling most often found on the Web is Vardhman Hall or Vardhman Complex.)

Our source says scraping clearly was present at the site:

Typically the term "Web Scraping" is used to describe the act of taking content from a third party website (such as your blog) and displaying it on (another) website. Web scraping is not always malicious. For example many popular travel websites utilize web scraping. When you search for a flight the travel website reaches out to third party websites such as Southwest, Delta and American Airlines. Only the relevant information from the third party website is displayed to the user. . .

As it relates to "Legalschnauzera.blogspot.com" it is clear that the website is blog scraping. (http://en.wikipedia.org/wiki/Blog_scraping) All links redirect the user to advertisements. The user probably used your RSS feed to automate the process and capitalize on advertising revenue. The creator of this website either used a fictitious name or did not have any concerns about revealing their identity. The owner of the blog is listed as Poonam Verma. I found two separate forms of advertising on this website. The first one was Google Adsense. The second one was more of a custom solution in which the links direct the user to other websites owned by Verma.

Tuesday, April 15, 2014

Rogue Blog From India Used "Web Scraping" To Grab Heaping Helpings Of Legal Schnauzer Content

A Web site that Alabama political figure Rob Riley cited recently in court papers is registered to owners in India, an information-technology professional tells Legal Schnauzer. The IT source also states that it appears Legal Schnauzer has been the victim of a common form of content theft called "Web scraping."

Riley states in documents that he had discovered a Web site called LegalSchnauzera.blogspot.com, which has an identical title and address to my blog, except for the "a" added to the end of the word schnauzer. Riley says the "LegalSchnauzera" site still was running certain articles that my wife, Carol, had removed from Legal Schnauzer to comply with a court order and gain my release after five months in jail on civil-contempt charges. Riley asserts that the presence of the "LegalSchnauzera" articles raises questions about whether I was fully purged of contempt, and he has asked for a hearing or a show-cause finding on the issue.

As we stated in a post yesterday, neither Carol nor I had any knowledge of, or connections to, "LegalSchnauzera"--and she had, in fact, removed all of the court-ordered items under our control. Now we know that the rogue site has roots in India and apparently has been making unauthorized use of Legal Schnauzer content--in heaping portions.

Based on a review of advertising data, our IT source was able to trace "LegalSchnauzera" to the following registered owners:

Poonam Verma and Pushpender Kumar
Verdhaman Hall/Verdhaman Complex
Delhi, DL 110091

We already have sent a cease-and-desist letter to the listed e-mail address. Verma's name appears on "LegalSchnauzera," but it was unclear if that was a real name. Our IT source says advertising data refers to other sites where Verma is the registered owner.

The rogue site apparently has not been updated since September 2013, but it includes Legal Schnauzer posts from the early days of our site.

We have filed a response to the Riley document and outlined our findings regarding the origins of "LegalSchnauzera." 

Monday, April 14, 2014

Rob Riley Discovers Rogue Web Site and Cites It To Raise Questions About My Release From Jail

Alabama political figure Rob Riley has asked a judge to determine if I had any involvement with a Web site running articles that had been removed from Legal Schnauzer in order to purge a contempt finding and gain my release from jail.

The Web site in question is legalschnauzera.blogspot.com, with the addition of an "a" being the only difference between it and the title and address of my blog. "LegalSchnauzera" is filled with pop-up ads and pretty clearly appears to be a rogue Web site of some sort.

Riley is asking Judge Claud Neilson for a hearing--or to require my wife, Carol, and me to show cause concerning any involvement with "LegalSchnauzera." Carol removed certain items from Legal Schnauzer, plus my YouTube and Twitter accounts, in order to purge a contempt finding and gain my release after five months in the Shelby County Jail.

The answer to the primary question at hand is simple--neither Carol nor I have ever had any involvement with "LegalSchnauzera" or any Web site like it. We only learned of it upon receiving Riley's court documents on Saturday. In his March 26 release finding, Neilson noted Carol's "good faith efforts" to remove certain items from sites that were under our control. We have continued to act in good faith, but now a rogue blog of unknown origins has muddied the waters.

So where did "LegalSchnauzera" come from, and who is behind it? We don't know the answer to that question, but we certainly would like to find out.

I've never claimed to be an expert on abuse issues in the blogosphere, but some quick research shows that content theft has become a mounting problem. It's often called "scraping" or "splogging," and apparently can be easy to accomplish. Here is how one article on the Web describes the process:

Online content theft is, unfortunately, a common incident these days. As soon as a site becomes popular, it’s only a matter of time before someone reproduces it and tries to make a buck from it. One simply needs access to a RSS feed and an Google AdSense account in order to monetize from someone else’s work, and sadly, this happens all too often.

A quick visit to "LegalSchnauzera" shows that it is awash in ads. If you click on an article, it tends to call up an ad. In some cases, ads are superimposed so that an article cannot be read. It appears that the articles are there only as a vehicle to attract ad revenue.

Why did someone choose my articles as such a vehicle? I have no idea, but after spending five months in jail, this seems like another gross violation of my fundamental rights as a citizen. In terms of taste, I don't want anyone thinking I might be involved with a site like "LegalSchnauzera." More importantly, Carol and I have dealt with the court in an upfront and honest way throughout--and we will continue to do so; we aren't into playing shell games via a Web site that appears to be anything but upfront and honest.

Reporter Kent Faulk picked up on the story at al.com, and I told him that it felt like my site had been "hijacked." The rogue site appears to have articles on more than 100 subjects we've covered at Legal Schnauzer, with a small portion of them about Rob Riley. Here is part of the al.com article:

In an email Saturday evening responding to questions from AL.com, Shuler stated he had received a copy of the filings by Rob Riley's attorneys Saturday afternoon and stated he was "baffled" and denied having anything to do with the other website.

"I've never heard of legalschnauzera.blogspot.com, and I have no involvement with it," Shuler wrote in the email. "I took my first glance at it a few minutes ago, and it appears that someone has taken many of my posts and adopted them as their own. The author claims to be someone named Poonam Verma, and I have no idea who that is--or if it is even a real person.

"I'm sure Mr. Riley is upset to discover this Web site, and so am I. It looks as if my site has been hijacked," Shuler wrote. "I've never dealt with this sort of problem before, so I'm not an expert on it, but I think the key thing is to contact the hosting site and let them know that someone is using their service in a fraudulent way. I'm looking into doing that right now.

"I will be glad to help Rob Riley and his associates in any way that I can to straighten this out," Shuler wrote. "I'm concerned that this has happened, and I hope I can help get to the bottom of it."

I plan to file a formal response with the court shortly.

Thursday, April 10, 2014

Incarceration In Legal Schnauzer Case Is An "Extremely Dangerous" Development For Free Press

Roger and Carol Shuler have an
 emotional reunion. 
My five-month incarceration from the fallout of a defamation lawsuit is an "extremely dangerous" development, the head of a leading journalism organization says in a new story at Al Jazeera America.

Reporter Wilson Dizard wrote the story, titled "Case of Jailed Blogger Raises First Amendment Concerns."

Writes Dizard:

The merits of Shuler’s blog aside, journalist and civil liberties groups tend to agree that his incarceration raises flags in terms of First Amendment rights.
David Cullier, president of the Society of Professional Journalists, described the development as “extremely dangerous.”
“If he did wrong, then there are recourses in civil court, but the government should not throw people in jail for expressing themselves,” he said.

Some experts told Al Jazeera that I could have handled the case in a more effective manner. But I point out that I was arrested before even having an opportunity to answer the lawsuit or receive an order on fundamental motions regarding proper service and jurisdiction:

Shuler said he would have challenged the injunction using the First Amendment if he’d had the opportunity.
“I was never served with the restraining order. I've never seen it to this day. I certainly would have appealed the injunction on First Amendment grounds if I had not been arrested before I had the chance,” he said.
I should note that I was open to hiring an attorney, but my arrest came so quickly that it short-circuited most any opportunities to defend myself.

Could this case have broader implications for general communications on the Web? It could if the law is applied to others as it has been applied to me--but hopefully, it won't come to that. A 2013/14 Virginia case styled Dietz v. Perez, involved a preliminary injunction very much like the one in my case. Fortunately, there was no effort to arrest Jane Perez, who had posted negative reviews at several Web forums about a contractor who had done repair work on her townhouse.

One expert called my incarceration an "aberration."

Shuler suggested that his case should concern all those who write on the Web, in whatever form.
“What if people could be jailed because of comments they make on Facebook or Twitter or any other Web forum? That could happen if the law were applied the way it has been in my case,” he said.
Others warn against widening the implications of this one case. Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation, an Internet rights advocacy group, said that Shuler’s jailing was an “an aberration in the justice system that should not become a trend.”
“The Supreme Court has recognized that the full protections of the First Amendment apply online, and most courts have appropriately balanced the rights in online cases. Of course, as the Shuler case illustrates, there are some outliers,” he said.