Thursday, December 22, 2016

Lawyers for Hearst Corp., publisher of Marie Claire, omit key part of quote about stalking that points to defamation by GOP operative Jessica Garrison

Stalking is a peculiar issue in our "House Case"
What do students learn in law school? Based on personal experience, I would say many of them learn how to cheat people, including their own clients. Members of the bar have almost endless techniques for cheating people -- maybe more than any other profession in the world -- and documents in our pending "House Case" reveal a particularly sneaky form of underhandedness. We are filing it under the heading "When in doubt, leave it out."

It comes from Hearst Corporation, publishers of the Marie Claire women's fashion magazine that published an article in October 2015 that included several false and defamatory statements about me. Hearst is represented in the proceeding by a couple of in-house lawyers from New York City, plus two or three from Birmingham's Lightfoot Franklin and White firm. Get a load of a scheme they presented in their Motion to Dismiss for the "House Case."

The article in question was an "as told to" piece that Alabama GOP operative Jessica Medeiros Garrison dreamed up, apparently with no questioning from writer Liz Welch, about experiences surrounding the $3.5-million default judgment she received against me. The article contains at least three statements that are false and defamatory: (1) That I reported Alabama Attorney General Luther Strange was the biological father of Garrison's child; (2) That Garrison claimed I was stalking her, and stalking is a crime; (3) That the court proceedings involved a trial.

For now, let's focus on item No. 2. Hearst lawyers claimed that the statement they published regarding stalking could not be defamatory because it was in the form of a question. (Kind of like on Jeopardy!, I guess.) Here's how the Hearst lawyers explained the law: (Their brief, and our response to it, are embedded at the end of this post.)

A prerequisite to establishing a prima facie defamation claim is the publication of a false statement of fact. See, e.g., Corporate Am. Car Wash Sys. v. City of Birmingham, 165 F. Supp. 3d 1117, 1127 (N.D. Ala. 2016). “A statement of fact is not shielded from an action for defamation by being prefaced with the words ‘in my opinion,’ but if it is plain that the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise, rather than claiming to be in possession of objectively verifiable facts, the statement is not actionable.” Marshall v. Planz, 13 F. Supp. 2d 1246, 1257 (M.D. Ala. 1998) (quoting Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1227 (7th Cir. 1993)).

Is that an accurate statement of the law? Knowing the Hearst grew, I'd say that's debatable. But this much is certain: The citation relies on two cases from Alabama district courts, which generally do not produce binding law. Law that sets precedent comes from circuit courts, such as the U.S. Eleventh Circuit (covering Alabama, Georgia, and Florida), or the U.S. Supreme Court.

For now, we are going to overlook such technicalities and assume the statement is at least somewhat close to the actual law. Let's look at how Hearst spins things:

Here, in the Article Ms. Garrison does not state as a matter of fact that Mr. Shuler was stalking her. To the contrary, she informs the readers about her concern when Mr. Shuler posted a photograph of her home on his blog, and wondered: “Had he been at my house? Was he stalking me?” She is clearly expressing “conjecture or surmise, rather than claiming to be in possession of objectively verifiable facts, [and thus] the statement is not actionable.” Id.

That's swell and peachy, but here's the catch: Hearst did not provide the full Garrison quote from the Marie Claire article. The full quote apparently caused them doubt, so they left it out -- probably figuring the court would be no wiser. Here is the full Garrison quote on the subject of stalking from the article:

“Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . .

Does Garrison live in a world of hysteria? Apparently so, because the photos in question came from a real-estate Web site and almost certainly were taken well before Garrison ever lived there. I didn't take them, and any reasonably grounded person could have determined that in a matter of seconds on the Web. The sentence "Was he stalking me?" is, in fact, in the form of a question. But look at the highlighted part above, the part Hearst's lawyers conveniently left out of their motion.

Taken in context with the full quote, it's clear Garrison is not concerned about a general stalker or prowler. She's concerned about me, the guy who never had any significant interaction with law enforcement (other than maybe one or two traffic tickets) until I started reporting accurately on this blog about legal and political corruption in Alabama. Garrison says she installed a home security system because of me, and she put the police on notice because of me. It's not just a question. Here's how we responded to the Hearst argument:

Re: Hearst’s claim that Garrison’s statement about Roger Shuler stalking her was a question posed in the article and not a statement of fact: On pp. 12-13, Hearst claims Garrison’s statement is a question, a matter of conjecture. But Hearst fails to cite the full statement. Here it is: “Shuler posted photos of my home on his website, which felt like a threat, not to mention a huge violation of privacy. Had he been at my house? Was he stalking me? I installed a home security system and put the police on notice. . . . “ The highlighted section clearly is not a question or a matter of conjecture. Garrison and Liz Welch tell Marie Claire’s readers that Garrison installed a home security system and put police on notice out of concerns about stalking. And it was not just a general concern; it specifically was about Roger Shuler. Stalking, of course, is a crime, which makes this a case of defamation per se, where false statements are considered harmful on their face.

That last sentence is important. If defamation per se is proven, damages are assumed. And to publicly accuse a man of stalking, in today's environment of heightened sensitivities on gender issues, is serious business.

I have no way of knowing what a court might do on this, or any other, issue. Defamation presents a particularly complex and tricky form of law. For example, someone once said that trying to determine a public figure in a defamation case is like "trying to nail a jellyfish to a wall."

So, I will refrain from reaching too far on conclusions. But this much seems clear: The Hearst Motion to Dismiss almost certainly is due to be denied (on a number of grounds), and I am entitled to discovery that should reveal more information about what Jessica Garrison said to others (friends and neighbors, plus law enforcement) about the notion of me stalking her.

The whole point of Hearst's deceitful motion is to avoid discovery. Well, by law, that effort should fail.


Anonymous said...

If you groundlessly accused me of sleeping with my boss and published my personal details online - particularly pictures of my house - I would certainly begin to worry you were obsessive and potentially stalking me. Completely reasonable to have that concern given your behavior. The fact that you don't understand that is another indication that your judgement is shot.

Madison Clarke said...

I just sent you a link, Shuler. I doubt you'll have the guts to actually address it and defend yourself outside the safe confines of your free blog. You only talk big when you can insult and censor others.

Anonymous said...

Is it wrong to say that you are already making excuses for the ultimate dismissal of these incompetent complaints of yours? Right the judge is corrupt. We've heard that one before.

Anonymous said...

I know women hate being hit with the hysteria tag, but it seems to apply with Jessica Garrison. Calling the cops to report a "stalker" who clearly isn't there? Grow up, woman.

legalschnauzer said...

I hear you, @10:17. Want to make clear I didn't mean to use hysteria as a tag for any woman beyond Jessica Garrison. And it's not just about the stalking quote. If you read the full Marie Claire article, it's filled with hysterics from start to finish.

Anonymous said...

Your hypocritical censorship is noted.

Free speech for Roger, not for anyone who visits the blog.

That's some “journalist”!

Anonymous said...

God bless you and your wife.

Baby Jesus rains golden rain of glory on you.

The righteous die and are with the Lord Our God.

Anonymous said...

Just he wrote, the danger is that people will think one standard for Roger, a whole different standard for everyone else. Sad.

Look, we're tired of people telling us what we can read and think. That's over. I would hope that you have enough confidence in your positions to actually let people disagree with you here. We'll never agree with you on all the facts. But you can't just censor us and call us liars. We agree with you on more things than we disagree.

Sort of sad what had happened here. I don't know what you aren't publishing but it concerns me.

Anonymous said...

You're a fool. Those statements are not actionable, and you are a vexatious litigant as well as a supercreep. Garrison was entitled to be afraid of you and say why and what she did about it.

You were posting pics of her home online. Weirdos do that, and you were making weirdo claims about her and acting like an obsessed person. She had a perfectly reasonable basis for wondering if you were doing drive-bys and took reasonable steps to protect herself.

The fact that you think its ridiculous because the photos are available online - as if that were proof of innocent motive and argument against your fixation with her private life - is an indication you have no sense about how people perceive invasion and threat.

BTW, even if someone were to accept your belief that her fear was excessive or "hyterical" - she is entitled to speak about how she felt and how she reacted.

Also, she is the one with the judgement, not you. You are going to find yourself declared a vexation litigant if you keep up with the weirdness, and that's probably a good thing.

Anonymous said...

Also, even now, it isn't clear you weren't there. Maybe you weren't, I doubt you were, but how is she to know you aren't using the map or following her around, but she only has your reputation for craziness to go on to judge what you are capable of.

Anonymous said...

Surprised they didn't call it the vapors?

legalschnauzer said...

Note to readers:

Within 30 to 45 minutes of publishing this post, I received almost 50 comments, most of them from members of what I've come to call the lunatic fringe. Most of them were connected to this post, with some tied to the posts from yesterday or the day before. These commenters are like cockroaches, who seem to come out of the dark whenever I write anything about Jessica Garrison, Ashley Madison, or Donald Trump. Those seem to be the three subjects that rile them up.

Most of the comments were utter nonsense, based in a "post-truth world," and I tossed them in the digital trash. That so many comments arrived in such a short time frame, and many of them were repeat comments that people have sent before, tells me we are under a coordinated attack -- maybe a better term than "attack" would be "digital vandalism." I work hard to make this an informative, accurate, interesting blog, and a lot of work goes into each post here. These people are like vandals who come in the night and spray paint your house. They are cheap, lazy, mindless, thugs -- and they are targeting this blog for a reason; it's not an accident. But they will not be allowed to muck this blog by high-jacking the comment section.

Just wanted to explain a little bit of the "behind the scenes" action here in recent days. A few of the comments were thoughtful -- with a few others that were largely garbage but raised an issue or two worth a response -- so I will include a few responses here or at other relevant posts from recent days.

legalschnauzer said...

@11:17 --

I wasn't there, and she falsely accused me of stalking. Why do you think the Hearst lawyers left out key sections of her quote? They know what she said and who she said about it, and they know it's false and defamatory. That's why they are pulling legal chicanery to get around it.

Your "reputation for craziness" line is just a vague smear, showing you have no idea what you are talking about.

legalschnauzer said...

@11:13 --

You clearly don't know what it means to be a "vexatious litigant." Garrison can be afraid of the "boogey man" for all I care, but she's not entitled to trash my reputation and make false claims regarding alleged criminal action.

I guess real-estate agents are weirdos in your book because they post photos of homes online? Did you give any thought to how ridiculous you sound before you wrote this?

Why don't you call the agent who posted that photo, and I'm sure you will find Jessica Garrison was a long way from living there when the photo was taken. It wasn't her house. I only used the photo, and wrote a post on the subject, because of all the strange transactions involved in her buying the house. She has admitted under oath that it was a peculiar set of circumstances involved in the purchase.

legalschnauzer said...

@10:28 --

Why is it a concern of yours re: comments I do or don't publish here? How is that any of your business? It's not, it's my blog, and it's my business, and I set the standards comments must meet to be published. I'm not running a free-for-all here. I'm in charge, and I have every right to reject comments that are poorly written, based on false information, are threatening or insulting to me or anyone else, show no understanding of the issues involved, are in poor taste, etc. If someone can show I'm wrong by citing to facts or law, great. I welcome comments like that -- and if I'm wrong, I will change the post content to reflect that, and I will give the commenter credit for being on top of things. But people who rant and rail because they "disagree" without having done any research . . . well, I have no use for them. If you want to take space in my comment section, you have to earn it, you have to somehow add to the conversation in a thoughtful or insightful way. You can be funny. You at least need to be able to ask an intelligent question, for genuine reasons.

legalschnauzer said...

@10:25 --

Whatever made you think you have the right to make any comment you want -- no matter how fact-free, tasteless, and stupid it might be -- and I have to run it? This is my blog, I've run it for almost 10 years, and I call the shots. Why is that hard for you to understand.

If you are capable of writing a thoughtful comment, try it, and I bet it gets published. But if you are nothing more than a "digital vandal," you ain't going to cut it.

Do you think newspapers and magazines run every letter to the editor they receive? Hell, no. If your letter sucks, it lands in the trash. Same thing applies here.

legalschnauzer said...

@10:13 --

Is it wrong to say you were too lazy to research the relevant facts and law -- or even click on the links I provide -- before writing this mindless piece of mush you call a comment?

Check the facts and law and show me where any of my recent posts are incorrect. Get off your lazy ass and do a little work. I can promise you won't be able to show where I'm wrong for two reasons: (1) I'm right; (2) Even if I weren't right, you are too lazy and dense to show how I am wrong.

Put some meat in your comments or buzz off. We don't cater to intellectual lightweights here.

legalschnauzer said...

Madison Clarke --

I've never seen a link from anyone named Madison Clarke. Feel free to send again if you want to, but you are going to have to ID yourself first. I don't open links from people I don't know, and who show no signs of being an intelligent observer.

legalschnauzer said...

@10:08 --

Your comment is so ignorant that it blows the mind: (1) I didn't groundlessly accuse Jessica Garrison of sleeping with her boss. The story was accurate, and she and Luther Strange know it. That's why they were determined not to go through discovery or a trial. If you can't grasp that, you are not smart enough to read this blog. You should find a Web site on fart jokes and read away; (2) I didn't take the picture in question, and it wasn't Jessica Garrison's house when the photo was taken; (3) It might be reasonable (in your mind) for Ms. Garrison to have a concern about stalking, but if she falsely publishes that statement to another about me, it's reasonable for me to sue her ass; that's what defamation law is about;

Anonymous said...

Some advice for Ms. Garrison:

Grow up and act like a woman, not a school girl. You filed this lawsuit against Mr. Schnauzer, correct? You helped ensure you would never face discovery or a trial, correct? Because of that, Mr. Schnauzer's reporting never has been proven false or defamatory, correct?

In other words, the record strongly suggests you filed a baseless lawsuit against Mr. Schnauzer, and yet you wound up with a $3.5 million default judgment that appears to be void. As a lawyer, you should know it's void, but you stay silent.

On top of that, you probably engaged in the plan to have Mr. Schnauzer unlawfully arrested and to have his house stolen. At the very least, I'd say you know who was behind that, and yet you've never stepped forward to see that justice was carried out.

How clueless can you get? When you sue people, they generally aren't happy about it. When you sue people with no grounds for doing so, they get real pissed. When you help manipulate the court system in your favor, you are just inviting trouble.

Mr. Schnauzer must be a pretty even-keeled guy because he didn't stalk you, scare you, or threaten you in any way. It's all in your girlish imagination.

You want to ride with the big boys, but you act like a sniveling child. People like you have ruined the Republican Party. You are nothing but an opportunist and a crybaby, to boot.

Anonymous said...

I'm pretty sure I know what's happening here. These people are trying to "gaslight" you. Not sure I have the exact definition, but I think gaslighting is a form of psychological abuse where someone tries to shake you up so that you begin to doubt your own reality. In your case, you start to doubt the facts and the law that you've written about, you start to doubt that you've created one of the best legal blogs in the country, hell, in North America.

This thought occurred to me when you said these "lunatic fringe" comments tend to come in bunches, mostly in the same general time frame, and commenters often send the same item over and over. In other words, they aren't trying to communicate with you, they are trying to launch salvos at you. You said it was like a coordinated attack, and I think that' exactly what it is.

I will give this more thought, and I hope you will, too. Others are welcome to join the conversation. Hope I'm onto something.

Best regards. Like many I really appreciate your work, and I think it's needed, now more than ever.

legalschnauzer said...

Thanks for an insightful comment, @7:39. You've raised a very interesting issue that I want to ponder. Here is one definition of "gaslighting" that I found on the Web:

"Gaslighting or gas-lighting is a form of psychological abuse in which a victim is manipulated into doubting their own memory, perception, and sanity.[1][2] Instances may range from the denial by an abuser that previous abusive incidents ever occurred up to the staging of bizarre events by the abuser with the intention of disorienting the victim. The term owes its origin to Gas Light, a 1938 play and 1944 film, and has been used in clinical and research literature."

ph0bit said...

Sadly this is probably just the first few shots in what will be a long war against you waged by Trump-Putin trolls and bots.

The clues are all over the place, from the repetition to the swarming comments. You stand up against GOP corruption, and that makes you a target. I wish I could tell you this will pass, but its more likely that it will get a lot worse. Trump's people will use this technology to attempt to silence you and other journalists who publish the truth. I won't be surprised when the Washington Post and New York Times get knocked offline, one or both of them probably hacked into oblivion. We'll be left with Breitbart and Fox News.

With the coming end of Network Neutrality, websites will start to disappear from the internet. They'll still exist, but ISPs will refuse to allow you to see them. Google will be regulated. I wish I was exaggerating this stuff, but Trump has already said what he is going to do.

Buy some good anti-Virus software, Roger. You're a target.

Anonymous said...

We're calling you Rooooger from now on.

Anonymous said...