That, of course, is easy for him to say. He hasn't been in a case where the opposing party is writing orders, which include wildly inaccurate citations to law, and he winds up in jail because of it.
I have been in that position. In fact, I'm going to show you exactly how an opposing party can write orders that are not remotely supported by law--and a compromised judge is so lazy and corrupt (or both) that he lets it go.
We are talking about Judge Claud Neilson's order that granted a preliminary injunction against me in the Rob Riley and Liberty Duke defamation case. Evidence in the record suggests that members of Riley's own law firm, probably Jay Murrill in most instances, wrote every order in the case--and Neilson simply rubber stamped them.
Was this an important order? Well, it caused me to go to jail for five months. It also was intended to send my wife, Carol, to jail--even though she had nothing to do with writing, editing, or administering my blog. Thankfully, Shelby County, Alabama, sheriff's deputies failed to abduct her, and she was able to spread news about what had happened to me--turning the case into a national and international news story, with reports from The New York Times, Al-Jazeera, and many lesser known news outlets of both the mainstream and non-traditional varieties.
In Neilson's order, Riley's lawyers cite 13 cases that purport to show that a preliminary injunction is a lawful remedy in a defamation case. The citations start in the second paragraph on page 2 and continue in Footnote 3. (You can read the order at the end of this post.)
The Riley lawyers introduce their legal handiwork by stating: "Injunctive relief can be an appropriate and effective remedy to repeated and ongoing defamatory speech." To support this notion, they cite a case styled South v. City of Mountain Brook, 688 So. 2d 292 (Ala Crim. App., 1996), followed by a footnote that refers the reader to 12 other cases that supposedly say more or less the same thing.
There is a slight problem, however, with all of this. The South case does not remotely say what Team Riley claims it says--and neither do the 12 cases cited in the footnotes. I'm not the only individual to make note of this--so have multiple legal experts.
As First Amendment expert Ken White wrote at the Popehat blog, "It appears that the drafter of this order simply scoured the nation for the handful of outlier cases saying something positive about injunctions against defamation — plus the tiny number of cases approving them pretrial — while completely ignoring the authority (including from the United States Supreme Court) that such injunctions are inappropriate." Actually, it's worse than that--none of these cases says anything positive about injunctions against defamation, and none of them approved an injunction pretrial.
On top of that, almost all of them are from state courts outside of Alabama or federal district courts. In other words, they have zero precedential value--even if they were remotely on point, which they aren't.
What is the truth, from a legal standpoint? Neilson's preliminary injunction runs contrary to more than 200 years of First Amendment law; it's a classic "prior restraint," and there is no law to support what he did--what Riley's lawyers asked him to do.
Here is a brief rundown of the cases Team Riley cites, with a description of their actual findings and links so you can read the cases yourself, if you so desire. It will soon become clear that Riley's lawyers committed a not-so-subtle fraud--and it caused me to unlawfully lose five months of my freedom:
(1) South v. City of Mountain Brook, 688 So. 2d 292 (Ala. Crim. App., 1996)
Background: An Alabama man sought to have his conviction for harassing communications overturned.
Key holding: The man's conviction was proper under the Alabama criminal code.
Our verdict: As you can tell from the citation, this is not even a civil case; it's a criminal case. It has nothing to do with defamation or preliminary injunctions.
(2) Tory v. Cochran, 544 U.S. 734 (2005)
Background: Famed Los Angeles attorney Johnny Cochran brought a defamation claim against a former client who, dissatisfied with legal services he had received, protested at Cochran's office.
Key holding: In the wake of Cochran's death, the U.S. Supreme Court vacated a state-ordered injunction but did not address the constitutional issues raised.
Our verdict: This is the only case on the Riley list that had the potential to set precedent in Alabama and throughout the country. But SCOTUS found that, because of Cochran's death, it would be unwarranted to address the issues raised by Tory's appeal.
(3) Balboa Island Village Inn v. Lemen, 156 P. 3d 359 (Cal., 2007)
Background: A woman was found at trial to have defamed the owners of a restaurant/bar that she felt had become a nuisance in her neighborhood.
Holding: A permanent injunction, after a finding of defamation at trial, can be proper if its terms are not overly broad and are limited. A preliminary injunction, which by definition comes before a trial, is unlawful.
Our verdict: Balboa's holding is the exact opposite of what Team Riley claims. It is a negative finding about preliminary injunctions.
(4) North America Recycling v. Texamet Recycling, 2012 WL 3283380 (S.D., Ohio, 2012)
Background: An Ohio recycling company claimed a competing company in Texas had made defamatory statements and engaged in tortious interference.
Holding: After Texamet failed to oppose summary judgment, a federal magistrate judge recommended certain damages, while acknowledging that his finding might cross the boundary into unlawful prior restraint. After Texamet failed to challenge the magistrate's recommendation, the district court upheld the damages and then remitted them, on certain conditions, while again acknowledging the problem of prior restraint. Strangely, the district judge claimed the case did not even involve an injunction. We can find no record that the case was appealed to a circuit court.
Our verdict: As the district judge stated, this case was not about an injunction; it was about a Texas company failing to adequately respond to a lawsuit brought against it in an Ohio federal court. The gist of the ruling is that Texamet did not defend itself, and here is a solid analysis of the court's actions, which really don't make much sense and almost certainly would be reversed if Texamet appealed.
We are roughly a fourth of the way through the cases cited in Judge Neilson's order. We will pick up with the rest of them in an upcoming post, and we promise that things won't look any better for Riley and his team. They lied about the real contents of the first four cases, and they lied about the rest of them, too.