AL Attorney Bill Baxley Makes Ludicrous Assertions In His Letter Seeking Retraction For Jessica Garrison

Bill Baxley

How did I respond to Jessica Medeiros Garrison's threat of a defamation lawsuit over my reporting on her extramarital affair with Alabama Attorney General Luther Strange?

In polite language, I told her attorney, Bill Baxley of Birmingham, to more or less shove it. My language might not have been so polite had I realized at the time that Garrison's threats almost certainly were not driven by any genuine belief that my reporting on the affair is false. Rather, Baxley probably is trying to scare me away from reporting on another Garrison-related matter, which they know I'm investigating.

I take lawsuits, and threats of lawsuits, seriously. But it's hard not to look at Baxley's letter as somewhat of a joke when you consider its assertions about harassing-communications law in Alabama--and anywhere else.

We will address that legal issue in a moment, but first, here is the response I sent to Baxley via e-mail about an hour after I read his letter:

Mr. Baxley:

I am in receipt of your letter dated Aug. 16, 2013. Please be advised that the material you cite in my blog, Legal Schnauzer, is not false or defamatory, and I will make no retraction.

Your contention that it constitutes harassing communications for a journalist to present questions to, or seek comment from, an individual who is engaged in the public political arena . . . well, it's not remotely supported by law--and such a ridiculous claim should be beneath an attorney of your long standing. I have no intent to harass or alarm Ms. Garrison; I am giving her an opportunity to respond to questions about matters of public concern. I not only have a right as a reporter to make such an inquiry, I have an obligation to do so. If I see fit to seek Ms. Garrison's comment for future articles, I will do so. If she sees fit not to respond, that is her right, and I will proceed accordingly.

Finally, be advised that anyone who files a groundless lawsuit against me will be met with an appropriate counterclaim and motion for sanctions--against her and her attorney.

Sincerely,

Roger Shuler

As you can see, two can play the "threatening a lawsuit" game. But more importantly, you also can see my pointed response to Baxley's claims regarding harassing-communications law. Here are the specifics from his letter. (The full letter can be viewed at the end of this post.)

I have advised our client not to reply to any pending "inquiries" she may have received from you. In addition, by this writing, take notice of our representation of Jessica Medeiros Garrison and do not, again, attempt to contact her directly. Be further warned, by this writing, that persistence by you in attempting to have direct contact with our client for any reason will constitute harassing communications within the ambit of Code of Ala. 13A-11-8, which provides criminal penalties for communications with a person,  anonymously or otherwise, by telephone, telegraph, mail or other form of written or electronic communication in a manner likely to harass or cause alarm. Take notice of our demand, on behalf of our client, that you preserve any and all communications sent, received, published or existing in any manner regarding her, not deleting or destroying any of them.

Baxley conveniently left out a few important elements of harassing-communications law. Here is the actual law from 13A-11-8, which is titled "Harassment or Harassing Communications:

(b)(1) HARASSING COMMUNICATIONS.

A person commits the crime of harassing communications if, with intent to harass or alarm another person, he or she does any of the following:

a. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of written or electronic communication, in a manner likely to harass or cause alarm.

b. Makes a telephone call, whether or not a conversation ensues, with no purpose of legitimate communication.

c. Telephones another person and addresses to or about such other person any lewd or obscene words or language.

Nothing in this section shall apply to legitimate business telephone communications.

(2) Harassing communications is a Class C misdemeanor.

If Bill Baxley wants to see an example of real harassing communications, he should read his own letter. I have sent Jessica Garrison two e-mails--one requesting an interview about reports I had received regarding an affair with Luther Strange, and the other seeking comment about two issues that grew from my reporting. I will be publishing those e-mails in an upcoming post.

The bolded sections above point out two key segments of the law on harassing communications: (1) To even come close to meeting the elements of the crime, the communication must be done "with intent to harass or alarm another person"; (2) It must be done outside "legitimate business telephone communications."

Based on Baxley's own words, my communications with Jessica Garrison were not intended to harass or alarm her. Baxley devotes about two pages of his letter to information from six blog posts I've written about Jessica Garrison. My inquiries to her were related to my reporting on those articles--and they are the kinds of inquiries journalists across the globe make every day. As such, these inquiries are legitimate business communications, and this section of law plainly does not apply. 

Bill Baxley has been on the Alabama political and legal scenes for a long time, and he has to know his assertions regarding harassing communications are off target to an absurd degree. If Baxley's version of the law ruled, a journalist would be arrested every time he posed a question that the listener found the least bit unpleasant. Our jails and prisons would be packed with journalists--and some might consider that a good thing.

The truth is this: Bill  Baxley is the one sending harassing communications. Someone as connected as him almost has to know my reporting on the Garrison/Strange affair is true. Even more troubling, though, Baxley probably knows the real motivations behind Jessica Garrison's concerns--and it has nothing to do with my reporting on her affair.

In fact, my research indicates Jessica Garrison hired Bill Baxley for a specific reason.

Bill Baxley Letter by Roger Shuler