The sixth journalist is me, and my freedom was taken away for five months based on . . . nothing. No U.S. law supports it. In fact, a long line of U.S. Supreme Court and state high-court cases specifically state that a preliminary injunction in a defamation case is an unlawful prior restraint under the First Amendment--and yet, I spent five months in the Shelby County, Alabama, jail after Republican political figure Rob Riley and lobbyist Liberty Duke sought my arrest because I allegedly had violated a preliminary injunction in their defamation case, a civil matter that involved no criminal allegations of any kind.
Never mind that the material in question was not found to be defamatory at trial. That's because, under specially appointed judge Claud Neilson, there was no trial--only a hearing, with no discovery, no cross-examination, almost no evidence, no jury . . . well, you get the idea. It was, in fact, a joke--as I stated to the court that day.
What separates my case from the other five that involve incarceration of journalists? Numerous differences come to mind, but the main one is this: Branzburg was the primary governing law in the other cases, and while I don't agree with the finding in Branzburg, it means that the other incarcerations probably were legal. Mine clearly was not legal, and even knowledgeable legal analysts who differ with me politically, agree on that.
The key issue in the other five cases involved efforts by journalists to protect confidential sources in criminal matters. Here is the core finding from Branzburg:
The First Amendment does not relieve a newspaper reporter of the obligation that all citizens have to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, and therefore the Amendment does not afford him a constitutional testimonial privilege for an agreement he makes to conceal facts relevant to a grand jury's investigation of a crime or to conceal the criminal conduct of his source or evidence thereof.
I disagree with court actions that led to the incarcerations of editor/publisher Timothy Crews (2000), free-lance writer Vanessa Leggett (2001), broadcast journalist Jim Taricani (2004), New York Times reporter Judith Miller (2005), and free-lance blogger/videographer Joshua Wolf (2006). But the Branzburg case provided legal precedent that probably made those rulings lawful.
The jailing of a Houston book author for 168 days drew the attention of the national media and free-speech groups because of the oddity of a writer spending more than five months in jail when she was not even accused of a crime. . . .
Could (Vanessa) Leggett's case compel the U.S. Supreme Court to reconsider a muddled 30-year-old ruling on whether a reporter has a First Amendment right to keep sources confidential, especially in criminal cases?
The question is a sensitive one among journalists. The Supreme Court held in its 1972 decision in Branzburg v. Hayes that reporters had no privilege to refuse to appear and testify before state or federal grand juries. But a concurring opinion in the case, coupled with dissents from four justices, has been construed to give journalists at least a qualified privilege to withhold information in other circumstances. The fractured opinion left lower courts to figure out when and how the reporter's privilege should apply, and those courts have not decided the issues consistently.
The Supreme Court never again accepted a case that required it to clarify when a reporter has a privilege to withhold information. Press groups recognize the imperfection of Branzburg, but they worry that this court's conservative justices would erode reporters' rights if those justices took another look at the issue.
The U.S. Supreme Court has not looked at a case similar to Branzburg since that article was written almost 13 years ago, so the rights of reporters to protect confidential sources in criminal matters remain unclear. But the law in my case, a civil matter involving an unlawful prior restraint, is crystal clear. Writes Ken White, a conservative lawyer at the Popehat blog:
The order underlying Shuler's arrest is unconstitutional.
There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment
Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. 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.
Then there is the matter of the First Amendment. Writes White:
Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):
'A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.'
Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.
Rob Riley has a law degree from Yale, but he obviously must have skipped class when important constitutional issues were being presented.
Very educational stuff, LS. Thanks for the research on an important topic.
Rob Riley isn't stupid. He knows the law. He just thinks he can get away with violating it because . . . well, he's Rob Riley
So I guess this makes you the only journalist to be unlawfully arrested this century?
That's correct. And it's a "distinction" I don't feel real good about.
He probsbly was daydreaming while they were being discussed.
If I were you, I would be highly pissed about this. You have no other criminal history?
No, I have zero criminal history, other than this. And the "arrest" wasn't even for an alleged crime or for any legitimate civil purpose.
And yes, I am highly pissed.
That cop was lucky he didn't walk into my garage like that. I carry when driving, and I would have unloaded a slug right between his eyeballs.
In my opinion, you would have been justified in doing just that. A cop comes inside your house without showing he has lawful grounds to be there? He's lucky he ain't dead.
He would be dead if he had pulled that s--t on me.
I've never been big on "Second Amendment remedies," but I'm starting to think it's time to take another look at that.
Courts have repeatedly sent us the message that we live in the "Wild, Wild West," where laws don't matter and won't be upheld.
If they want us to live like a bunch of vigilantes, I guess a reasonable person has to get prepared to play that game.
You had better learn to make Mr. Smith and Mr. Wesson your friends.
How many lawyes, judges, or cops have been helpful in your legal battles?
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