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Monday, March 30, 2015

As we pass the one-year anniversary of my release from jail, the words of Erwin Chemerinsky ring out

Erwin Chemerinsky
Last Thursday (March 26) marked the one-year anniversary of my release from an Alabama jail, ending my term as the only journalist in the western hemisphere to be incarcerated in 2013. But the story is far from over.

My wife and I continue to suffer the physical, emotional, and financial fallout from an arrest that has (best I can tell) universally been deemed unlawful. Legal analysts from both the left and the right have stated that the temporary restraining order (TRO) and preliminary injunction in my case were prior restraints that run afoul of more than 200 years of First Amendment law.

We are more determined than ever that Republican political figures Rob Riley and Liberty Duke, who sought the unconstitutional injunction, will be held accountable--along with the powerful figures who likely were pulling their strings from "behind the curtains."

It will not be an easy battle, given the grossly corrupt nature of Alabama courts, at both the state and federal levels. But we find inspiration in the words of Erwin Chemerinsky, the founding dean at the University of California Irvine law school and one of the nation's foremost constitutional scholars.

Chemerinsky has written both scholarly articles and legal briefs that show the TRO/preliminary injunction that sent me to jail was unconstitutional, as is the permanent injunction that I'm still under.

In 2007, Chemerinsky wrote "Injunctions In Defamation Cases" at Syracuse Law Review and shows that the Riley/Duke requests for prior restraints should have been dead on arrival--in a real court of law. But with Judge Claud Neilson handling the case, on assignment from the Alabama Supreme Court, this hardly was a real court of law. Neilson apparently ordered me arrested for "violating" a TRO/preliminary injunction that could not lawfully be in place to begin with. Writes Chemerinsky:

"The [U.S.] Supreme Court has declared that prior restraints on speech constitute "the most serious and least tolerable infringement on First Amendment rights. . . . " The strong presumption against prior restraints is evidenced by the fact that the Supreme Court has never upheld a prior restraint as a permissible remedy in a defamation action."

Let's let those words sink in for a moment. Rob Riley and Liberty Duke were seeking a remedy in their defamation claim that the highest court in the land never has approved. On top of that, they took away five months of my freedom, based on a remedy that the U.S. Supreme Court has rejected throughout its history.

Chemerinsky maintains that a permanent injunction, such as the one I'm under now, also is unconstitutional. To be clear, Chemerinsky is talking about permanent injunctions that have been reached after a finding at trial that certain material is, in fact, defamatory. One such case is Balboa Island Village Inn v. Lemen, 156 P. 3d 339 (Cal., 2007). My case, however, is an entirely different matter. Under "Judge" Neilson, my case never went to trial, never went before a jury. In fact, I am forbidden from publishing material about Rob Riley and Liberty Duke that never has been adjudicated as defamatory.

Lyrissa Barnett Lidsky
A Texas case styled Kinney v. Barnes (Texas Supreme Court, 2014) could be headed to the U.S. Supreme Court, and Chemerinsky has filed an amicus brief in the case, once again driving home the unlawfulness of injunctions in defamation cases. Joining him on the brief is Lyrissa Barnett Lidsky, from the University of Florida School of Law. Lidsky has written extensively on issues of Internet free speech, cyberbullying, and defamation and other privacy torts.

What are the issues in Kinney v. Barnes? The case involves executives at rival legal-recruiting firms, and this is how one court document describes the conflict:

BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG's President, Andrew Barnes, posted a statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. . . . The posted statements prompted Kinney to sue Barnes, BCG, and two other companies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on the merits. . . . Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution.

According to Chemerinsky and Lidsky, Barnes is on the right side of the law. From the professors' amicus brief:

Is a permanent injunction against defamatory speech ever permissible? Amici urge the court to hold that even where a statement has been adjudicated false and defamatory, the First Amendment bars a permanent injunction against republication of the statement.

On what do Chemerinsky and Lidsky base their position? They turn to U.S. Supreme Court precedent--and two cases we have mentioned several times here:

Any injunction that restrains a defendant in a defamation case from making certain statements in the future is a prior restraint on speech. The U.S. Supreme Court has expressly declared that “permanent injunctions . . . that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech. . . .” Alexander v. United States, 509 U.S. 544 (1993).

The seminal case concerning prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed a permanent injunction issued after a case “came on for trial.” Id. at 705-06. The injunction in that case “perpetually” prevented the defendants from publishing again because, in the preceding trial, the lower court determined that the defendant's newspaper was “chiefly devoted to malicious, scandalous and defamatory articles. . . .” Id. at 706 (quotations omitted). The Near Court held that such an injunction on future speech, even if preceded by the publication of defamatory material, was unconstitutional.

Like my case, Kinney involves Internet speech, and the case likely will raise this question: Does the Internet provide such a free-flowing communication platform that it requires changes in U.S. law that long has forbidden prior restraints. Chemerinsky and Lidsky answer in the negative:

The landscape of communication has been dramatically reshaped by the Internet. Americans rely on digital means of communication for nearly every conceivable purpose in their daily lives. The U.S. Supreme Court has recognized the Internet’s importance and made clear that it is entitled to the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844, 870 (1997). Indeed, the Internet gives great power to the fundamental First Amendment axiom that “[t]he remedy for speech that is false is speech that is true.” United States v. Alvarez, 132 S. Ct. 2537 (2012). . . .

Ironically, however, it is the very characteristics of the Internet that the U.S. Supreme Court in Reno v. ACLU found justified its full First Amendment protection—speed, ease and efficiency of communication, and the ability of the Internet to make any person a global publisher—that often lead to calls for speech on the medium to receive diminished protection. . . . However, the U.S. Supreme Court has stated clearly that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).

Profs. Chemerinsky and Lidsky clearly are two of the nation's leading experts on First Amendment law, and we encourage readers to follow the Kinney case.

What happened in my case--the jailing of a journalist based on an unlawful preliminary injunction; a permanent injunction based on communication that never has been found to be defamatory at trial--might be beyond the imaginations of even our nation's finest constitutional scholars.

A little more than one year ago today, I was in jail because two Republican operatives and a seemingly incompetent judge essentially decided that the First Amendment does not apply to Alabama. My goal is to prove that it does--and that those who violate it will be held accountable.


Anonymous said...


You still don't get it. Even if the judge was wrong on prior restraint, you failed to appear, tried to evade being served, resisted arrest. The judge issued a temporary 10 day injunction which became moot before you were hauled in for failure to appear. The ACLU only became a friend of the court because of the prior restraint issue. No one ever attempted to help you afterwards. If you had a valid defense, someone would had helped!
Get over it and move on.

legalschnauzer said...

As clueless as you are, @7:56, you should be an Alabama judge. You would fit right in.

Your second and third sentences are completely wrong, with zero support in the record. Your fourth sentence involves mind reading regarding the motives of the ACLU. Sentences five and six are both incorrect and ungrammatical.

You do deserve credit for this: I've never had a commentor pack so much stupidity into such a small space before. Congratulations!

Anonymous said...

LS: Looks like you ruined somebody's breakfast by referencing actual constitutional law. Was probably too much for this individual to handle.

Marcus said...

Isn't it interesting that critics such as 7:56 never give their name or any affiliations? Stupid and cowardly--no way to go through life.

DeeDee said...

How did Rob Riley manage to graduate from Yale Law School again? He must have hired someone to take tests for him.

Anonymous said...

Roger, I wanted to read your response to 7:56 for a third time but the smile on my face started to hurt.

legalschnauzer said...

Thank you, @6:14, I'm glad you enjoyed it. Where I grew up, we call that "telling the hog how to eat the cabbage."

Anonymous said...

There has existed for past few years more than ever before witnessed a fundamental dissolving of our national heritage, where once those trusted has now become the feared; secure in our rights and freedoms, now over cautious of losing should say/do if such powers and authorities dislikes.

In recent years few has come along only realizing there is no mass majority willing to stand holding accountable those who has, would seek to violate and deny their constitutional rights, equal rights protections, due processes; civil rights.

On any given day facts speaks volumes exposing these unlawful illegal issues burdened by the poor and minority. Maybe one day I can address here, "someone would had helped",a response to
7:56 AM.