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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)