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Tuesday, April 8, 2014

Journalist Found Himself With Hands Tied During Five-Month Incarceration In Defamation Case

I was largely cut off from communication with the outside world, with little opportunity to defend myself, during a five-month incarceration over a defamation lawsuit. Those are among the key points in a new article from Think Progress reporter Nicole Flatow.

The article describes the no-win situation I encountered: I was faced with removing articles in an order that represented a clear prior restraint, conflicting with more than 200 years of First Amendment law; but if I was going to comply with the court order, I had no way of doing it. From the Think Progress piece:

Shuler was initially resistant to the order. But even when he wanted to comply, he didn’t know how.
“At my Nov. 14 hearing, the only hearing I had in the case, the court gave me no direction on how I could purge myself of contempt,” Shuler told the Reporters Committee for Freedom of the Press. “I noted that I had no computer or Web access to take down the posts, even though I knew it was unlawful to be forced into taking them down. The court’s response was more or less that I had to resolve that problem myself. With that kind of response from the court I felt caught between the proverbial ‘rock and a hard place.’”
Shuler said if he was lucky, he got to make a 15-minute call three or four times a week. “That’s the only communication I had with anybody,” said.

Getting legal assistance also was difficult. Writes Flatow:

And getting a lawyer wasn’t easy. While defendants in criminal cases who cannot afford a lawyer have a right to court-appointed counsel, the same is not true in civil contempt cases. Shuler called himself middle class, and said he would “really need either pro bono or contingency type of legal representation and I think it’s a possibility but it’s very slow in trying to make it happen.”
Shuler was supported by legal briefs in his case from the American Civil Liberties Union of Alabama, and the Reporters Committee for Freedom of the Press. But neither organization was representing him directly, and only he had the power to appeal his own case. Shuler didn’t appeal. He said he spent his time in jail fearing for his life, and figuring out how he could comply with a sweeping contempt order and get out of jail. As the Reporters Committee for Freedom of the Press explained in an October letter, the order included a vague mandate to take down all content related to the alleged affair, without ever deeming which content was actually defamatory.

I did wind up with an education about the nature of our "correctional" system, which doesn't seem to address many of the problems that put inmates behind  bars:

Shuler was perhaps the most prominent inmate in Shelby County jail these last few months, but he says he wasn’t the only one who shouldn’t have been there. Most of the people he met were there for drug and alcohol problems, he said, or for mental health issues the jail didn’t appear suited to handle.
“Jail is I guess by definition a holding facility for people a lot of whom have not yet been found guilty of anything,” he said. (Jails typically hold individuals who have been charged but not yet convicted, or those who receive short sentences, typically less than a year). “I go to bed at night and a lot of times I think there are guys still in there … I get the feeling we’re in a culture right now, it’s sort of like arrest first, and ask questions later.”


Anonymous said...

You're bloodied but now bowed. Someday you'll be vindicated..if not in this world, then the next...

Anonymous said...

I didn't go looking, maybe as you, to get involved becoming an advocate for the poor and minorities whose equal rights were always available for being toyed with; it came bluntly to me.

Subsequently word got around you might say because on a late winter's night I received a phone call about a woman w/two sick children locked out of their home.

It's a long story, but after her being told that it would be four or five days before allowed back in, her husband had project's apartment key on key ring and he had got put in jail on way to pick her from work by same officer who had always been one stopping him.

The jail would not give her the key off the key ring; prompting her call to me; after speaking with her, making overnight arrangements for her, arrangements for maint. person to open door next AM at 8:00 for her/sick children; realizing all unnecessary had she just been given key that same day's afternoon by jailer, housing mgr. not told her would be following Wednesday before getting another key........ Clearly, the wrong way to treat people, especially those vunderable, dependent on officials.

Later I too found myself behind steel bars listening to the rumbling of the steel rollers thudding the lock latched. Several more times, after having never before in my life been arrested. Attempts to shut me up.

Anonymous said...

generally the dark skinned and lesser than, are throw away in a fascist governed place.

americans were supposed to be white, christian, perfect democratic system.

that is how good the cover up has been, except for the dark skinned and lesser than, the throw away found in the places where now the white people are shocked to know.

voting for fascists.

taken awhile, the system as what the truth is, can't be in denial when the system is no longer a fascist prison for only the dark and lesser. now all are waking up to not being wealthy enough to not be in a total slave system.

americans awaken to the fascism.

shock happens like what has happened to the people now numbering in increases, here at this blog is a perfect example of how fascism is america.

number of powerless victims is going to continue increasing, number of slaves, fascism only knows how to control unmercifully.

e.a.f. said...

sending you to jail, was the whole idea. they weren't interested in having you out. That would have enabled you to write and publish. The idea was to isolate you.

As to the many in jail, who might be more appropriately housed in hospitals, that on its own ought to be a crime, but it isn't. It is much less costly for governments (i.e. politicians and friends) to have the current system in place. During the Regan years they opened the doors for all those who were mentally ill, but provided no alternatives. The republicans thought it would be less costly. It hasn't been and its been very bad for those with mental illnesses.

It is unlikely to change and American society will continue to pay the cost of the decision made during the Regan years. Then police officers are forced to become the first line in the mental health system things do not turn out well for society in general.

So glad you are home, safe. What sending you to jail did, was most likely created a whole list of new subjects to write about. take care

Unknown said...

The writer, Nicole Flatow, is a graduate of UVA School of Law which establishes her credentials as a person with a law degree from a respected first-tier law school. Whether she fully understands the constitutional implications of the Roger Shuler controversy is another matter, although her resume also shows she was previously employed at the American Constitution Society.

Again I am shocked that during the 5 long months of Roger's incarceration, no lawyers emerged to help him. Pro bono lawyers must be dead ducks. Had I been licensed I would have jumped at the opportunity. But wait!

Apparently the federal courts of Alabama are stacked against Roger too, partly because of squabbles with them, partly because of their right-wing constituency. So I would have expected the controversy to get some kind of emergency Section 1983 declaratory and injunctive attention in the 11th Circuit. Surely there are some checks and balances somewhere which would have sprung him from behind bars!


Let me tell you something. Because of a series of craven barriers like collateral bar and the abstention doctrine --- http://en.wikipedia.org/wiki/Abstention_doctrine ---- and all the other hurdles of absurdity, even corrupt state appellate judges claiming that the "defendant 'waived' his constitutional rights (something rotten that happened in my own case here in NC), it is horrifically difficult to get heard in the federal system on the violation of a basic constitutional right robbed from you, such as your right to free speech. That may have something to do with the feckless, inert ACLU ducking their responsibility in the Shuler case. My theory with the ACLU is that had the blogger been a woman, ACLU would have jumped on the case like hens after a June bug. Just my theory because of watching ACLU transform itself into a hotbed of militant feminism. The whole idea of judicial review is that justiciable claims like Roger's should be heard, and heard quickly, but that doesn't happen. And the American public have been dumbed down and flimflammed into believing they have that right of appellate review.

They do not.

Unknown said...

Now let's hypothesize that because of Rooker-Feldman and other abstention doctrines, Roger is stuck with taking his claim all the way up through the Alabama appellate courts and is quickly defeated at every stage while he's behind bars. Well, first of all, he's not going to get a quick decision because of charlatans like Roy Moore. So let's abandon that theory of relief right quick. His chances there are Slim and None.

Next, hypothesize that the Alabama appellate courts quickly reject Roger's claims for relief, making his case now ripe for review before the United States Supreme Court; for that is his next AND LAST CHANCE. That forum is not going to hear him either BECAUSE LESS THAN 1% OF THE PETITIONS FOR CERTIORARI BEFORE THE HIGH COURT ARE GRANTED! (And I don't care if the robbery of the basic civil rights from the victim litigant are so tyrannical and so detestable as to give cause to a petit jury to throw up, he ain't going to get any help from SCOTUS.) So the effect of this country's corrupt, dissembling judicial system -- and the Rileys and the Neilsons and swarthy Roy Moores of the world are very aware of this corruption of judicial indifference and obfuscation -- is that Roger is going to languish in jail until a public media outcry such as what happened in USA vs. Judge David Lanier gets the ball rolling. And that basic lack of review is another reason why ACLU, EFF, Reporters Committee for the Freedom of the Press, and others sat on their hands and shook their heads and did nothing. That's why there are so few constitutional lawyers and why even they are all starving: our judicial branch, honor-bound to vindicate our constitutional rights, is there primarily for show, for window-dressing.

At least we do have some brave young law review writers like Law Professors Eugene Volokh, Aaron Caplan, and others who tell us on the internet that so many of our laws, and the ways they are being abused to stalk, restrict, and punish us, violate the Bill of Rights. The Constitution does not enforce itself. The Constitution is dying, imploding from the bubonic plague of neglect.
I don't know if Public Citizen, which was founded by Ralph Nader, would have helped or not. Its role in Dietz v Perez may have been attributable to Public Citizen's anti-SLAPP posture which stands up for the “little guy” getting railroaded in the courts by a company with money to buy 'justice.' And this is just exactly what happened to Roger. It would have been interesting to know how PC responded to a cry for help. I certainly would be curious to know.
Let me say something about the law of resisting an illegal arrest. And twice, according to the facts, Roger's freedom was taken from him illegally, the first time when he was “seized” on a public road for service of process, and then the second time when he was arrested and brutalized on his own premises. The law is clear on illegal arrests, that they may be resisted with impunity. Well, that doesn't help very much when we know from viral YouTube clips that the LEOs of this country haven't an inkling of that law on their minds when they brutalize, assassinate, and execute Americans on the streets and homes of the USA. In my own case, since I am presently crippled with lumbar and thoracic spondylosis and hiding out in my home from an illegal order of arrest, I have collected the caselaw, right here. Read it for yourself. But that law won't help me if they come out here with guns-a-blazing and execute me: https://groups.google.com/forum/#!search/right$20to$20resist$20illegal$20arrest/talk.politics.misc/ZBtU_ypFvw8/IebWSNWD5M0J
(to be cont'd from Unknown at 1:14)

Unknown said...

Now read the following comments in talk.politics.misc and you will see just how this caselaw works out, because what those two say while not de jure, it is de facto. I would be executed and the cops who executed me would be exonerated. My three children would then have a cause of action for wrongful death, by which a jury of American sheeple might award them a dollar bill in compensatory damages.
Furthermore, the law arising on illegal arrests or illegal home invasion is in disarray. Take a look at this case and you will see:
Despite a vigorous dissent, an idiotic Indiana appellate court ruled that a homeowner had no right to resist the illegal entry of his premises by law-enforcement officers.
There are eleven federal circuit courts of appeals in the USA, and the laws in those circuits are mired in such a mishmash of conflicts of law, it would be impossible to sort them out. And let's not even consider the laws of 50 states-- it would drive you insane. I remember back in the '80's litigating a copyright case in the federal courthouse before Judge Woodrow Jones here in Asheville. We briefed him well on the law but then he overruled us. In a bench trial without a jury he found the facts against us, denying us a jury trial on the question whether my client had violated a copyright by playing music in his nightclub without a license. We won the case in the 4th Circuit in Richmond, VA. But I saw that in so many of the other ten circuits, the courts had followed a blatantly unconstitutional Act of Congress which denied the right to trial by jury, in violation of the 7th Amendment: “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”
So there you are. I told my three children when I was practicing law and growing very tired of the political chicanery and lawlessness in the WNC courthouses where I practiced: “Do not go into law. There IS NO LAW.” And, thank goodness, they took my advice. And I believe they are happier, more fulfilled because of it.
Final comment. I quit law in 1986 by refusing to pay dues to the bar. The bar then suspended my license, and I never went back, although I made a couple of half-baked efforts to go to another state, but those efforts were derailed by chicanery and lack of funds to fight. So I have for the last several years done some writing, mostly from the liberal POV, on the internet; and that has drawn out the trolls who have called me everything in the book including an ex-con who did time in the pen and a disbarred lawyer. I am neither. I have no criminal record, and not even a traffic ticket for the last 10 years. But you just google my name and see the filth you can read: James Lawrence Smith. I am also known as “Buncy” in the Topix forum, a sewer of libel and abuse. And the reason why I have not litigated any of that malicious libel is due to the law that equity will not enjoin a libel, and because the people who libel me would be judgment-proof. So there you are. Victory is not to the swift nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all. Eccles.9:11

MagginKat said...

If we had a decent Justice Dept, they would have been all over this case and that of Don Siegelman.
This state is so corrupt it defies the imagination. Following closely behind is Mississippi, Louisana, Florida & others with corrupt, corporate owned mostly republican governors. What a despicable mess this country has become. What was done to Roger Schuler is just one example of the vile corruption. How can these people (like the judge brought in to handle this non-case) look at themselves in the mirror?
I look at the people behind these cases as nothing more than common thugs who have taken over a state & act more like organized criminals than a part of a judicial system. When will it stop? Is there no one who can stop them? investigate & prosecute them? Where are the Democrats?