Monday, February 12, 2018

USA Gymnastics sexual-abuse case in Michigan -- plus my unlawful incarceration in an Alabama defamation case -- shows courts easily botch contempt law

A Michigan man's attempt to launch a courtroom assault on Dr. Larry Nassar, the physician at the heart of the USA Gymnastics sexual-abuse case, has wound up teaching an important lesson about the gross misapplication of contempt-of-court laws in the United States. Randall Margraves almost certainly did not intend to teach such a lesson -- but he did, and it's one that hits close to home here at Legal Schnauzer.

Margraves' actions amounted to about as blatant a case of contempt of court as one can imagine. It happened right under the nose of Judge Janice K. Cunningham, and based on Michigan law, Margraves was looking at up to $7,500 in fines and three months in jail. So, why did Cunningham ignore her oath to uphold the law and let Margraves off the hook? Given that judges in Michigan are subject to election, political considerations probably played a major factor.

Does that frost us, just a bit? It sure as heck does, given that I spent five months in an Alabama jail because of a preliminary injunction in a defamation case, the kind of injunction that has been prohibited by only 230 years or so of First Amendment law?

Why are preliminary injunctions forbidden in defamation cases? By definition, a preliminary injunction is a prior restraint on free speech and a free press. It involves a judge acting as a one-man censor, essentially saying, "You can't publish this, even though there has been no lawful finding that it is defamatory -- no discovery, no trial, no jury."

Also, a preliminary injunction leads to the possibility of a contempt finding, which inherently means fines and jail time. If that notion sounds un-American to you, that's because it is. So, how did I spend five months in jail on a contempt finding that has zero basis in law? Well, that's because Alabama is hideously corrupt -- a place where a political hack and legal neanderthal like Rob Riley can seek remedies not allowed by law, and a specially appointed corrupt judge like Claud Neilson will let him get away with it.

In a broader sense, my experience in Alabama -- viewed in a light with the Nassar case in Michigan -- shows that U.S. courts often make no serious effort to ensure law is equitably applied across jurisdictions. In other words, the notion of "equal protection of the law" is a joke in the U.S. justice system -- and judges tend to treat it with thinly disguised disdain.

How gross were Riley and Neilson's abuse of contempt powers in my case? About as bad as it can get, and we've spelled that out in several posts. (See here, here, and here.) Near v. Minnesota, 283 U.S. 697 (Sup. Ct., 1931), one of the seminal First Amendment cases of the 20th century, involved a Minnesota statute that provided for the "abatement" as a public nuisance of any newspaper that was found to produce "malicious, scandalous, and defamatory" content. The nation's highest court quickly found that the Minnesota statute collided with fundamental constitutional protections -- and one reason involved issues connected to contempt. From the Near opinion:

When a newspaper or periodical is found to be "malicious, scandalous and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the renewal of the publication of such charges would constitute a contempt and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. Whether he would be permitted again to publish matter deemed to be derogatory to the same or other public officers would depend upon the court's ruling.

How dangerous is this to a society built largely on the foundation of a free press?

If we cut through mere details of procedure, the operation and effect of the statute in substance is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter — in particular that the matter consists of charges against public officers of official dereliction — and unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.

There is that ugly word again -- censorship. I spent five months in an Alabama jail because Rob Riley and associated corrupt lawyers asked Judge Claud Neilson to act as a one-man censor in my case, contrary to centuries of First Amendment. And Neilson, showing absolute disdain for our constitution, agreed to act as a one-man censor -- using contempt powers he did not have as the weapon of choice.


Anonymous said...

What happened to you was organized crime. People should spend decades in prison for that.

Anonymous said...

I agree with how the judge in Michigan handled the situation where the father of Nassar's victims lost it. Yes, it was contempt, but I don't think society's interests would have been served by throwing that guy in the slammer for three months.

Anonymous said...

Your case wasn't held in a real court. It was more like a star chamber. As 10:44 says, it was an example of organized crime taking over our taxpayer-funded court system. Every Alabama citizen should be outraged about such an abuse, not only against you but against everyone in the state.

Anonymous said...

Courts don't even try to be accurate about the law, much less consistent across jurisdictions.

legalschnauzer said...

@10:51 --

Your use of the term "star chamber" is on target. Consider what was not present in my case:

* No summons

* No lawful service

* Less than one day's notice for a preliminary-injunction hearing, in direct violation of Alabama law

* Case file sealed

* No record available to the public

* One party incarcerated pretty much throughout

* No trial

* No jury, as required in defamation cases

* No opportunity for appeal; time for appeal ran while party was incarcerated.

This shows the utter lack of respect Rob Riley has for the rule of law.

Anonymous said...

The Rileys, Jeff Sessions, Bill Canary . . . they all are part of the Dixie Mafia. Probably can include Doug Jones, Bill Baxley, Claud Neilson in that, too.

Anonymous said...

Your reporting on the Rob Riley-Liberty Duke affair is accurate. That is well known around Homewood, especially at Dawson Baptist Church, where RR attends.

Anonymous said...

Claud Neilson is a pox on the legal profession. You simply cannot have a preliminary injunction (or a resulting contempt finding) in a defamation case. Near v. Minnesota is just one of many cases that have driven that point home. Not sure how Neilson expects the public to have any faith in courts when he engages in frauds like this.

Anonymous said...

Perhaps the public needs to be reminded of what the Reporters Committee for Freedom of the Press (RCFP) said about your case:

"Alabama blogger Roger Shuler was released from a Shelby County, Ala. jail on March 26, more than five months after he was imprisoned on contempt charges for refusing to comply with a court order to take down allegedly defamatory articles.

"The Reporters Committee for Freedom of the Press argued in an October letter that the order was an unconstitutional prior restraint. Shuler had written a series of posts on his blog, Legal Schnauzer, claiming that Robert Riley, Jr., son of former Alabama governor Bob Riley and potential candidate for a soon-to-be-vacant U.S. House of Representatives seat, had an affair with and impregnated lobbyist Liberty Duke."

Anonymous said...

Here is more from RCFP about your case:

"In July 2013, Riley filed a lawsuit against Roger and Carol Shuler, alleging that they had posted false and defamatory stories and seeking to prevent further articles from being published. Duke also filed suit against the Shulers.

"The court issued a temporary restraining order and a preliminary injunction in October 2013, which ordered that previously posted defamatory stories be removed from the blog. It also banned the Shulers from posting further defamatory statements about Riley and Duke.

"However, the Reporters Committee for Freedom of the Press, in its letter, argued that the process by which the court issued the take-down order was problematic.

""It appears that there was no full adjudication on the merits or default judgment ever issued against the Shulers on the defamation claim," the letter states. "As such, the temporary restraining order and preliminary injunctions amount to unconstitutional prior restraints."

"After Legal Schnauzer continued to run articles about Riley and Duke, the two asked the court to hold the Shulers in contempt for violating the orders not to publish. Roger Shuler was arrested on Oct. 23, 2013, and also was also charged with resisting arrest. Carol Shuler was not arrested.

"The Committee to Protect Journalists had considered Shuler the only imprisoned journalist in the Western Hemisphere."

Thomas S. Bean said...

Roger...had a thought last night-early morning...if I was your closely held attorney and confidante, I would advise you "not to enter into the record at Legal Schnauzer, anything negative about Missouri Repubicans or Government swine".

Leaving Alabama was a real smart move, almost a defensive necessity like a form of political asylum. Now that the Missouri Feds are manipulating the local idiot cops who break women's arms with might be smart to not start a war of words targeting the GOP Nazi Social Dominators who run secret star chamber policy to manipulate the idiotic Authoritarian slobs known as county-city-state law enforcement.

Of's too late for that, once they fired first with a bogus COIN eviction to set up the search for a false pretext to accelerate "use of force" on your wife.

I never could keep my mouth shut in the face of civil rights violations......I couldn't take my own advice. Doubt it would matter anyways. My thoughts were, "....they're gonna come after me into perpetuity until I have to do what John Caylor did (arm himself)...".

More desperate thoughts: my advice of no value in your situation because, "once the GOP secret Gestapo targets you, it's into perpetuity...and, the pen is the only weapon allowed for you on this tilted playing field".

Without exposing the swine in Missouri as a newly arrived politcal asylum prisoner, no one who could possibly help, or will ever know all the facts from both parties.

I'm gonna stop living in stupid land for now and stop giving flimsy advice to TI's because targeted individuals have few options, and the pen over the sword, seems to be the only avenue for due process of some kind. Your blog, is the only forum for due process. The Internet Court of Common Pleas for Targeted Individuals caught in the crosshairs of psychopathic, patriotic, lowlife, heroic slime.

Anonymous said...

From the RCFP letter to Neilson, which he obviously ignored:

"The Supreme Court has never upheld a prior restraint, or a government
prohibition on speech. In Nebraska Press Association v. Stuart, it found
these bans on speech presumptively unconstitutional and called them “the
most serious and the least tolerable infringement on First Amendment rights.”
427 U.S. 539, 558-59 (1976). See also Near v. State of Minnesota ex rel.
Olson, 283 U.S. 697, 713 (1931) (calling prior restraint “the essence of
censorship.”) The Supreme Court has speculated that prior restraints may
only be allowed to prevent disclosure of information that would provide troop
locations in wartime or “set in motion a nuclear holocaust.” Id. at 716; New
York Times v. U.S., 403 U.S. 713, 726 (1971). The stories on Mr. Shuler’s website fall
far short of those extremely high thresholds.

"This Court, in granting the petitioners’ request for a preliminary injunction found the
articles in question to include defamatory statements. However, the process by which the
court made that determination seems problematic. It appears that there was no full
adjudication on the merits or default judgment ever issued against the Shulers on the
defamation claim. As such, the temporary restraining order and preliminary injunctions
amount to unconstitutional prior restraints. There may be facts that support the Shulers’
ultimately needing to take down the articles, but that decision would need to be made
after a judgment on the defamation claim is issued. Otherwise, the procedure runs afoul
of the First Amendment."

This letter flat-out told Neilson he was violating the law, and he did it anyway. Disgusting.

Anonymous said...

Perhaps the public needs to be reminded that Rob Riley lied to the New York Times:

"Mr. Riley said Mr. Shuler’s refusal to engage with the legal process had given the judge the leeway to make a final ruling.

“If someone can continually ignore the judge just by saying, ‘You don’t have jurisdiction over me,’ then the whole system breaks down,” Mr. Riley said, adding that Mr. Shuler could not plead ignorance of the legal process. “This is not the first time Roger Shuler has been in court.”

That's a lie, utter bullshit. The New York Times now hires reporters who can't ask a simple follow-up question or two to expose Rob Riley's duplicity. And we are supposed to believe Mr. Riley's denials about his affair with Liberty Duke?

Anonymous said...

@5:18 --

One of most interesting LS posts on this matter is below, noting that Rob Riley never has denied the Liberty Duke story under oath. Hmmm. URL is at bottom of comment, and here is key section:

"Alabama attorney and Republican operative Rob Riley never has denied under oath the allegations that prompted him and lobbyist Liberty Duke to file a defamation lawsuit against me, my wife, and the Legal Schnauzer blog, a review of court records shows.

"Duke filed an affidavit denying the allegations, but a check of court records in Shelby County, Alabama, shows Riley did not file a similar affidavit. In fact, the record indicates Riley never made a sworn statement denying the allegations."

Anonymous said...

The NY Times was one of several news outlets that falsely claimed both Riley and Duke denied the allegations. In fact, Rob Riley never denied them under oath:

"Speaking of the Times article, it states that both Riley and Duke denied the allegations in my reporting. But reporter Campbell Robertson doesn't bother to state that only Duke filed a sworn statement on the matter; Riley never did.

"The Times is not alone in making this omission. A number of news outlets made the same mistake, including some whose reporting otherwise was excellent., the largest news organization in the state, also reported that Riley denied the allegations--without noting that his denials never were under oath. A few Web sites reported that Riley and Duke filed affidavits, but that is not true--the court record shows no Riley affidavit was filed.

"Reporting on the case was difficult because Riley and Duke sought an order for the file to be sealed, and Neilson granted it. That meant the public was in the dark about the case for several months before the seal was lifted--after the ACLU and others pointed out it was contrary to Alabama law. My wife and I never were lawfully served with the complaint, so even we did not know much about the case--and we were parties to it.

"Why would Liberty Duke file an affidavit, while Rob Riley did not? Does it have something to do with Riley's status as a lawyer, while Duke is a mere lobbyist?"

Anonymous said...

Rob Riley also lied to the Committee to Protect Journalists (CPJ):

"Shuler was arrested on October 23 on contempt of court charges for failure to comply with an October 1 preliminary injunction prohibiting him from publishing certain stories on his blog Legal Schnauzer. The charges stem from a defamation suit brought by prominent local attorney Robert Riley, Jr., son of a two-term former Alabama governor and a rumored future political candidate himself. The suit is related to Shuler's blogs in July claiming that Riley had an extramarital affair and offering details. Riley vehemently denies the allegations.

"Riley said in a telephone interview he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so. He said someone who decides "to make up a lie, destroy someone's reputation, that's not journalism."

"Riley told CPJ: "Shuler has a history of making up things and writing things that are outlandish lies...I am going to pursue every avenue possible to me in the courts to defend my name, my family and my business...He has no proof this is true. He has just decided to be a cyber-bully and make stuff up and I've had enough."

Anonymous said...

Note in the comment above that there are three paragraphs and three blatant lies from Rob Riley:

(1) The reporter states that "Riley vehemently denies the allegations." The public record shows Riley never denied the allegations under oath, so that statement is false.

(2) Riley said in a phone interview "he has a right to seek injunctive relief in a defamation case, and there is legal precedent for doing so." Again that's a lie, per letters to Judge Neilson from ACLU and RCFP.

(3) Riley said, "Shuler has a history of making things up and writing things that are outlandish lies." The public record does not support Riley's claim. Riley is the first person ever to sue Shuler for defamation, and Jessica Garrison -- Riley's political ally -- followed with a second suit. In neither case was Shuler's reporting found to be false or defamatory. They succeeded in having him throw in jail, by a corrupt judge, but they failed to show Shuler's reporting was defamatory.

legalschnauzer said...

@5:54 --

Thanks for your insights. It's important that Riley did not just lie to the press. He and his lawyers lied over and over against to the court, about "relevant" case law. Here are URLs to two key LS posts on that subject:

legalschnauzer said...

Even a goofball like Ken White, of Popehat, who smeared me repeatedly with zero justification and defended right-wing slime bots like Ali Akbar, noted that Riley's lawyers almost certainly wrote Neilson's order for him -- and they repeatedly got the law wrong:

"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."

Anonymous said...

I've often wondered how the NY Times came to conclude that Ken White/Popehat, out in California, was an expert on your case.

legalschnauzer said...

@7:02 --

Great question. Popehat has no clue about my cases, and NYT failed to notify its readers that Popehat had represented a number of right-wing lunatic bloggers -- Ali Akbar, Stacy McCain, Aaron Walker, and others -- in their various legal actions involving Brett Kimberlin.

Popehat trashed me because he had a raging conflict of interest. I had helped unmask Ali Akbar as a dude with a criminal record and as a participant on Grindr, the homosexual-geospatial Web site, and I broke the story about Jill Simpson's letter to the Obama White House, pointing out Akbar's skeezy history with Karl Rove.

Popehat is not even close to being an expert on my cases, and he's never communicated with me. But he did smear me because of my accurate reporting about members of is little sicko right-wing blogging crew. To my knowledge, neither Popehat nor the NYT ever have disclosed this conflict of interest.

Popehat and NYT essentially perpetrated a fraud on the public.

legalschnauzer said...

Here is one of many posts that reflect Popehat's connections to Ali Akbar and other skeezy types in the right-wing blogosphere:

Anonymous said...

At the risk of angering Schnauzer and his pack...

Alabama appears to allow prior restraints, particularly when the person making the allegedly defamatory comments is destroying a business reputation. Please see David Arida, Freedom of Speech, Defamation, and Injunctions, 55 William and Mary Law Review 1 at notes 210-214 (2013). The case cited is Carter v. Knapp Motor, 11 So. 978 (Ala. 1943).

According to Arida, there are at least a dozen cases before 2013 where a preliminary injunction was issued to stop defamatory conduct. There are over 50 cases where injunctions have been generally issued in defamation cases.

In short, what has been done to LS is not unprecedented.

And it is the *precedent* that is the problem.

We'd like to live in a country where this sort of use of an injunction is forbidden, but that's not right now the country we live in, and it hasn't been since the 1920s. It should not be that the rich and powerful can obtain an injunction against free speech, while the poor and the powerless cannot. So keep fighting, LS, but fight smarter -- stop preaching about the way you think the law is, and start preaching about the way the law ought to be. You are wrong on the first part, but oh so very right on the second.

legalschnauzer said...

@8:21 --

Sorry, but you are wrong across the board. The absolute rule, per Near v. Minnesota and other US Sup. Ct. cases, is that temporary restraining orders and preliminary injunctions are unlawful prior restraints in defamation cases. Many scholars believe any form of injunction -- including a permanent injunction -- is improper in a defamation case. But there can be no doubt that TROs and preliminary injunctions are prohibited.

The Carter v. Knapp Motor case does not deal with either a TRO or preliminary injunction, so it's not remotely on point with my case. Rob Riley and Liberty Duke sought both a TRO and prelim injunction against me, and that simply can't happen. Read Near v. Minnesota (1931), Alexander v. U.S. (1993), or Dietz v. Perez (2014) for more details.

Also, your law view article from William & Mary does not support your cause. It states, early on:

"The Article concludes that although courts should be cautious when granting injunctions,
a limited form of injunctive relief would be constitutional and consistent with equitable principles if it were limited solely to false statements on matters of private concern that a court has found—AFTER FULL ADJUDICATION—are defamatory. It then describes how such a remedy could be structured so that it would be both effective and compatible with the First Amendment."

Note the letters in all caps -- "after full adjudication." A TRO or prelim injunction, by definition, does not involve full adjudication. In my case, there was no adjudication at all -- no trial, no discovery, no jury, no real hearing. It was a case of one-man censorship -- as is pretty much always the case with prior restraints -- so it is strictly forbidden.

Don't know if Rob Riley is feeding you this BS or not, but it's pure rubbish.