|The Newseum Institute's First Amendment Center|
at Vanderbilt University.
Looked at another way, retired Alabama Circuit Judge Claud Neilson, who ordered my incarceration on the request of Republican political operatives Rob Riley and Liberty Duke, made the most grossly unlawful First Amendment ruling in our nation's history.
Looked at a third way, one might say that Rob Riley (an attorney) is the most ignorant lawyer on matters of free speech that our country ever has produced.
How extraordinary is all of this? I'm probably the only person in American history, journalist or non-journalist, to be incarcerated under such circumstances. And it happened in Alabama. That's certainly something in which our state can take pride. Perhaps the state needs a new motto--"Alabama: Nobody tramples constitutional rights like we do."
My incarceration, it turns out, is even more historic than I thought it was. For that discovery, we owe thanks to Gordon T. Belt, former library manager at the Newseum Institute's First Amendment Center, a nonpartisan think tank housed at Vanderbilt University in Nashville, Tennessee, and in Washington, D.C., Belt currently is director of public services for the Tennessee State Library and Archives and editor/publisher of a blog called The Posterity Project.
While at the First Amendment Center, Belt wrote an article titled "Jailed and subpoenaed journalists--a historical timeline." It shines new light on the unprecedented nature of my incarceration, and we will examine the article closely in a moment.
We already have shown that I am the only journalist since 1900 to be jailed because of a preliminary injunction that runs contrary to more than 200 years of First Amendment law. That post was based on a 2013 report from Fox News, which showed that only two journalists had been jailed from 1900 to 2006 on purely civil matters, and one of the cases involved a defamation claim that actress Judy Garland brought against a New York City gossip columnist. In both of those cases, reporters were jailed for failing to disclose sources during depositions.
My incarceration, which started on October 23, 2013, and ended on March 26, 2014 (155 days). is the only one in the 2000s involving civil matters. Adding me to the two journalists jailed over civil matters in the 1900s, that adds up to three such incarcerations in the past 115 years.
But my case becomes even more extraordinary when you consider it involved a preliminary injunction, which case law predating the end of the Revolutionary War shows is an unlawful prior restraint in a defamation case. That principle is most famously stated in a 1931 U.S. Supreme Court case styled Near v. Minnesota, 283 U.S. 697 (1931).
Near is considered the "foundational case" on prior restraints in U.S. law, meaning most lawyers are intelligent enough not to bring cases that would run afoul of it--and most judges are competent enough not to issue rulings that run contrary to it. But in Rob Riley and Claud Neilson, I obviously was dealing with a pair of legal "scholars" who are too dense or too corrupt (or both) to bother abiding by one of the most famous cases in First Amendment jurisprudence.
To make matters even more astounding, I never had a lawful opportunity to challenge the preliminary injunction. I was given less than 24 hours notice of a hearing on the matter, which is way short of the notice required by Alabama law. But contrary to numerous reports on my case, I did not ignore a court order; I filed a Motion to Quash service because Alabama deputy Mike DeHart handed me the complaint during a traffic stop that clearly violated the Fourth Amendment.
I was awaiting a ruling on that motion--and preparing to challenge the injunction as unconstitutional--when Deputy Chris Blevins entered our home, without showing a warrant or stating he had one, and arrested me. The arrest came only after Blevins had knocked me to a concrete floor three times and directed pepper spray into my face, violating state and federal law because he did not state his purpose for being on our property, never showed he had lawful authority for being there, and used excessive force to execute an arrest that was unlawful on its face.
As for Gordon Belt's article on jailed and subpoenaed journalists, it starts in 1735 and runs through 2006. The oldest case involves a German-immigrant publisher named John Peter Zenger, who defied a government order to reveal his sources for criticism of New York's Colonial Governor, William Cosby. One of the most recent cases involved reporting on the BALCO investigation, a federal probe of alleged steroid use by athletes, including former San Francisco Giants slugger Barry Bonds.
Belt covers roughly 60 cases, over four centuries, and reports none like my case--none where a journalist was jailed because of a preliminary injunction in a defamation case, violating clear First Amendment precedent.
A defamation lawsuit, of course, does not have to involve a journalist. A regular citizen can file a lawsuit alleging that another regular citizen committed libel (written word) or slander (spoken word) against him. Has an American judge ever thrown a non-journalist citizen in the slammer for violating an unlawful preliminary injunction? In other words, has an American judge ever punished a non-journalist citizen with incarceration for publishing (either orally or in writing) material that had yet to be found defamatory at trial?
My research has not turned up such a case, and I find it unlikely that one exists. After all, most citizen v. citizen defamation cases probably involve material that was published in relative isolation. Since the non-journalist likely does not publish on a regular or ongoing basis, it's hard to imagine any judge punishing him without a trial on the merits. Since the lawful remedy for proven defamation is money damages, it's unlikely even the most incompetent judge would resort to the unlawful remedy of incarceration, without a trial.
Research indicates only one citizen in American history has been victimized by such a flagrantly unlawful ruling--and that citizen is me.