|Ken White, of Popehat blog|
But what about Riley's lawyers in the case, who were from his own Riley Jackson firm--perhaps because no real lawyer would touch such a facially bogus case? What about Jay Murrill, who seemed to be Riley's primary in-house shill? Is he a lawyer with a strong sense of honor and respect for the truth? Uh . . . not exactly.
And you don't have to take my word for it. We will let Ken White, a Los Angeles lawyer and First Amendment expert at the Popehat blog, take the honors.
Popehat is not a good source of information on all topics. On matters that require more than surface research, White tends to become a lazy, name-calling hack. But he does know First Amendment law, and he can recognize a con artist like Jay Murrill when he sees one.
It's unusual for one lawyer to say or write anything negative about a fellow member of the legal tribe--at least in public. But White administers a spanking to Jay Murrill that's unlike anything I've seen before. It came in an article posted roughly three weeks after my arrest on October 23, 2013. The following is from a Popehat post that is based in part on a report by Mike McClanahan of CBS 42 in Birmingham. (Unfortunately, the link to the original CBS 42 piece no longer works.):
This week a local news station reported that on November 14, 2013, the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.
The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:
Here is the Jay Murrill quote, in all of its "glory":
There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal.
How does Popehat assess the Jay Murrill statement? Well, to say he treats it with disdain would be putting it mildly:
That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — through Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.
Let's make sure we all understand what's being said here--and it comes from Ken White, a California-based expert on the First Amendment. I'm not necessarily a fan of everything White writes, but I think it's understood he is knowledgeable about free-speech issues.
Bottom line? A well-known expert says Riley's lawsuit was designed to unlawfully shut down my reporting, and Riley's lawyer is lying about it. Also, Riley's lawyer is trying to mislead the public about constitutional issues in the case.
Language from one lawyer, about two other lawyers, does not get much more blunt than that.
Popehat does not address this, but I want to make it clear for the record: Murrill also is lying about the meaning of a prior restraint. It is a restriction on speech prior to a finding at trial that the speech is defamatory--and case law generally holds that such a finding should be made by a jury, not a single judge. The notion that you can enjoin speech before it occurs is absurd; most third graders would know that. In my case, there never was a lawful finding that anything I reported was false or defamatory--and that's because there was no trial, no discovery, no cross-examination, nothing to challenge Riley and Duke's bare assertions in their complaint.
As for Popehat's tendency to go off the rails, let's consider a couple of things he wrote about me in a post dated October 27, 2013, four days after my arrest. First, I should note that White repeatedly states that Alabama Judge Claud Neilson ruled unlawfully by granting a temporary restraining order and preliminary injunction in a defamation case--and then ordered me jailed for "violating" orders that run contrary to more than 200 years of First Amendment law. White, however, can't leave it at that; he has to make assumptions about me, someone he knows nothing about, has never met, and with whom he's never sought an interview, even though I'm easily available. Consider these statements from White:
* White says I am "creepy and crazy," and he claims to have formed that opinion from reading my blog. What, specifically, has White read on my blog that makes him think I'm "creepy and crazy"? White doesn't say; he doesn't cite one example. If White is like most lawyers I've encountered, he's a righteous defender of his "profession"--even though it costs Americans millions of dollars while returning very little in either financial or societal benefit. Perhaps a journalist who knows what he's talking about, and is willing to unmask the legal tribe, is "creepy and crazy" (and threatening) to a guy like Ken White.
* White says I am "a vexatious litigant, a serial pro se abuser of the court system," and he claims to have formed that opinion from researching records of my litigation history. White helpfully provides a footnote with information that he unearthed. But when you check at Footnote 1, you find that White's "research" barely scratched the surface of any case. He apparently accessed PACER to determine the outcome of certain federal cases, and since I "lost" several of them, that makes me vexatious and abusive. White, however, did not take the time, or expend the effort, to see if those cases were lawfully decided. (Answer: They were not, not one of them.) He also did not bother to check any underlying state matters. If those had been correctly decided (and they were not), there would have been no federal cases. White's effort stopped at determining who "won" or "lost" the case, so he really knows nothing about the merits of the cases I presented to the courts.
How's this for irony? White correctly chastises Judge Claud Neilson for repeatedly making unlawful rulings in the Rob Riley/Liberty Duke case. But White apparently assumes Alabama federal judges in those other cases ruled correctly. And he's so sure that Alabama state judges are highly competent, other than Claud Neilson, that he doesn't even bother to check state cases. In Ken White's world, Claud Neilson is an incompetent or corrupt boob, but every other judge in Alabama--federal or state-- is a paragon of legal virtue. Does that make a lick of sense? Of course not. But Ken White can't be bothered to actually research cases that would show judicial corruption in Alabama is widespread and goes way beyond Claud Neilson. It's easier to hurl insults at me.
* Finally, White tries to connect me to an anonymous commenter at Breitbart Unmasked who goes by "RogerS," and White wonders if that person is me. "RogerS" is devoted to urging liberal activist Brett Kimberlin to file a RICO lawsuit against various right-wing bloggers who operate under the Breitbart umbrella--and White has taken up the bloggers' cause, even though their activities have devolved from legitimate criticism and research on Kimberlin to what appear to be harassment and stalking. (The "RogerS" saga is closely associated, in time, with my incarceration, and I will have more on the bizarre episode in an upcoming post.)
In Footnote 5 of his October 27 post, White wonders if "RogerS" is me, in part because he claims we both have a poor understanding of federal civil procedure. I, of course, was not (and am not) "RogerS," but here is what White has to say about me anyway: "Now, I'm not saying that Roger Shuler is definitely RogerS. But I can't help noticing that both like Kimberlin and both have an astoundingly awful grasp of federal law. I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means."
Where did White get the notion that I "like" Brett Kimberlin? I don't know Brett Kimberlin, and I believe my interaction with him consists of one brief telephone call. I don't "dislike" Brett Kimberlin, and I've written all of one post about his battles with the Breitbart bloggers, noting that (unlike many liberals) Kimberlin doesn't mind fighting back against those who appear to be bullying him.
Where did White get the notion that I have a "positive aversion to correct federal civil procedure"? Again, he doesn't say; he doesn't cite a single example to back that up. Does he examine any of the federal cases involving me and show how U.S. judges, such as William M. Acker Jr. and Abdul Kallon, have repeatedly ruled contrary to simple procedural and case law? Nope, he doesn't do that either.
While I appreciate Popehat's accurate assessment of Jay Murrill and First Amendment law, the lawyer/blogger might be wise to steer clear of complex topics that require the kind of in-depth research to which he apparently has a "positive aversion."