|My mugshot from the Shelby County Jail in Alabama.|
We recently discovered that my 2013 "arrest for blogging" in Shelby County, Alabama, has been designated a "censorship violation" by the Committee to Protect Journalists (CPJ). That teaches us at least three important characteristics about the defamation case -- a 100 percent civil matter -- brought by Republican thug Rob Riley and lobbyist Liberty Duke, that caused me to spend five months in the Shelby County Jail and become the only U.S. journalist to be imprisoned in the past 14 years.
Our research indicates I am the only American reporter to be incarcerated totally outside the law -- it is legal for a court to jail a journalist for failing to turn over evidence related to a possible criminal case, but mine had nothing to do with a criminal matter -- and perhaps the only one ever to be imprisoned because of a preliminary injunction/temporary restraining order, both of which have been found to be unlawful "prior restraints" under more than 200 years of First Amendment law.
The CPJ's censorship designation also shines unflattering light on some of the bad actors who made my arrest happen, bringing a touch of Russia to the United States, well before Donald Trump aligned us with a country that is controlled by, and associated with, organized crime:
(1) Specially appointed (and retired) Circuit Judge Claud Neilson is a con man, who unlawfully acted as a one-man censor, which is plainly outside U.S. law and makes all of his rulings void as products of fraud on the court;
(2) There was no jury because Riley and Duke never asked for one. Instead, they wanted Neilson, probably under instructions from the Riley camp or its associates, to designate my reporting as defamatory without the slightest bit of discovery or deliberation by jurors. The only evidence was an affidavit from Liberty Duke, essentially claiming she had never engaged in a romantic relationship with Rob Riley; curiously, Riley never filed any document, or made any statement under oath, denying the relationship with Duke. Because I was not allowed to challenge Duke's affidavit via discovery, and no jury was involved, my reporting never has been found to be defamatory, as a matter of law. And yet, I lost five months of my freedom because of journalism that never has been found to be anything other than accurate.
(3) Rob Riley is a liar, which should not be stunning news to anyone who has followed Alabama politics over the past 20 years or so. In an interview with CPJ while I was in jail, Riley declared that the law supported his efforts. He, of course, cited no law to support that claim, and he clearly did not con the folks at CPJ; otherwise, they would not have declared the case a matter of censorship.
Let's take a closer look at these three issues, working from the bottom up:
(3) This is from a November 2013 interview of Rob Riley by CPJ reporter Sara Rafsky, titled "Censorship in Alabama's Shelby County":
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."
Did Rafsky or her ogranization believe Rob Riley? Well, just look at the headline; it essentially identifies Riley as an accomplice to censorship, meaning the law provides no support for his actions. Also, consider these words from later in Rafsky's article, referencing the Reporters Committee for Freedom of the Press (RCFP):
Leading press freedom and civil rights groups say the ruling contradicts decades of First Amendment jurisprudence and does so in complete secrecy. As the RCFP said: "Neither a default judgment nor a full adjudication on the merits of the defamation claims appears to have occurred...Courts have determined that bans on speech prior to such determinations are prior restraints. The Supreme Court has found prior restraints to be presumptively unconstitutional and has never upheld one." The American Civil Liberties Union, which filed an amicus curiae brief in the case on November 1, expressed exasperation in its motion for leave to file. "Indeed, because the entire record is sealed, the ACLU is forced to rely on Internet postings of documents for information regarding the Court's proceedings. There is simply no legal justification for the filing of every document under seal," the ACLU said, noting the irony that its brief is most likely to now also fall under seal (the document was posted online by Legal Schnauzer).
Both the RCFP, in a letter it filed in the case, and the ACLU mention New York Times Co. v. United States, the landmark 1971 Supreme Court decision which allowed publication of the Pentagon Papers and appeared to settle the issue of prior restraint definitively in the United States. The ruling conceded wiggle room only for the most exceptional situations, such as publishing troop movements in wartime or preventing imminent "nuclear holocaust."
(2) Why is a judge forbidden to act as a one-man censor, as Neilson did in my case? Consider these words from Bernard v. Gulf Oil Co., 619 F. 2d 459 (5th Cir., 1980, citations omitted):
Prior restraint has traditionally been defined as a "predetermined judicial prohibition restraining specified expression . . .." Litwack, The Doctrine of Prior Restraint, 12 Harv.C.R.-C.L.Rev. 519, 520 (1977). This expansive definition has not often been further elaborated. There are, however, four separate but related features that may serve to distinguish prior restraints from limitations on free speech imposed by subsequent restraints.
1. Origin. A prior restraint is generally judicial rather than legislative in origin, although an enabling statute may authorize the judicial suppression of publication. Near v. Minnesota, supra. The essence of prior restraint is that it places specific communications under the personal censorship of the judge. Kalven, Foreword: Even When a Nation is at War, 85 Harv.L.Rev. 3, 33 (1971).
Neilson had every reason to know he could not act as a one-man censor, but he did it anyway. This again points to fraud on the court, perpetrated by Neilson and likely others, which would make all of his rulings void and subject to being vacated.
(1) Press groups have blasted Neilson for his handling of Riley, et al v. Roger Shuler, et al, and perhaps none did a more thorough job than the Thomas Jefferson Center for the Protection of Freedom of Expression, which is based at the University of Virginia. The center issues "Jefferson Muzzles Awards" each year to those who committed one of the year's "more egregious or ridiculous affronts to free expression." Neilson was an "honoree" for 2014-15, and it even drew coverage from al.com. Here is the Jefferson Center's basic citation for Neilson's "award":
Alabama Circuit Court Judge Claud D. Neilson for ignoring a basic tenant of defamation law that “equity will not enjoin a libel” and holding blogger Roger Shuler in contempt of court until he removed allegedly defamatory statements from his website. Shuler spent five months in jail before finally agreeing to remove the statements because he felt he could not endure jail any longer.
The center then takes a deep dive into issues of the case:
Alabama resident Roger Shuler is a former newspaper reporter who since 2007 has maintained the blog Legal Schnauzer. The blog aims to “scale all obstacles in pursuit of truth and justice” and since its founding Shuler has used it to allege a wide variety of illegal or unethical activities by Alabama’s public officials and political figures.
In late 2013, Shuler posted claims that Rob Riley, son of a former Alabama Governor and active member of the Republican Party, was engaged in an extra-marital affair. Riley strongly denied the allegation and went to court seeking an injunction prohibiting Shuler from writing anything further about the alleged affair and asking that all posts about Riley be removed from the blog. At a hearing in which Shuler was not present, acting Circuit Judge Claud Neilson issued the requested injunction, effectively placing a prior restraint on Shuler’s speech. Shuler did not comply with the injunction, however, and not only refused to remove his earlier posts on Riley but also soon wrote a new one. Shuler’s non-compliance landed him in jail for contempt of court. He remained in jail for 5 months until he could not bear incarceration any longer. In March 2014, Shuler had his wife remove the allegedly defamatory posts about Riley and he was released from jail.
While in many circumstances it is not unusual to find someone in contempt of court for refusing to obey a court order, it is virtually unheard of in the context of allegedly defamatory speech. Were it otherwise, individuals could effectively silence critics by merely alleging their speech to be defamatory without actually having to prove it. To avoid this, the established remedy for reputation harming falsehoods is post-publication relief, not pre-publication censorship. Yet Judge Neilson issued an injunction without any finding that Shuler’s posts about Riley were defamatory. By issuing a prior restraint on Shuler’s speech, Judge Neilson employed a legal mechanism that the U.S. Supreme Court has described as “the most serious and the least tolerable infringement on First Amendment rights.” Moreover, Judge Neilson’s unconstitutional injunction deprived a U.S. citizen of his liberty for 5 months. In hopes that it will inspire him to learn what any law student in a basic First Amendment course already knows, Alabama Judge Claud Neilson is awarded a 2015 Jefferson Muzzle.
When a law enforcement officer went to Shuler’s house to arrest him for contempt of court, an altercation occurred resulting in a resisting arrest charge against Shuler. That matter involves legal issues that are not relevant for the purposes of this Muzzle.
Many other questions arise from the trampling of the First Amendment found in Riley v. Shuler. Here are a few:
* Why did Rob Riley produce no affidavit, or any form of sworn statement, denying an affair with Liberty Duke? Why did only Duke produce such a document?
* Why did Birmingham attorney David Gespass, during two visits with me in jail, offer no path to justice? His strategy essentially was to get the whole thing over as quickly as possible, apparently to the benefit of Rob Riley, with no benefit to me. Here are words from a Gesspass letter:
"I do not think the petitioners are expecting money damages, as the complaint alleges you have no resources, but they are asking for costs and attorney fees for the injunctive relief and that can end up being tens of thousands of dollars. Thus, there is something to be said for having this case resolved as quickly as possible at the trial level and appealing the constitutional issues."
Then, we have this, from the same letter:
"Another consideration is how much discovery do you want to engage in. If discovery is conducted, they will want you to identify your source, which I would assume you would not be willing to do unless they were willing to come forward on their own. Obviously, if you do not reveal them, that will weaken your ability to defend the case, and that, too, argues in favor of getting it done quickly, and making constitutional arguments, rather than defending on the grounds that the statements were all true."
Notice the references in both statements to getting he case resolved quickly, with no mention of damages for the harm done to Carol and me. Also notice that Gespass seems to be unaware that the burden of proof is on Riley and Duke. It was their duty to prove my reporting was false, and if they fail at that, I wouldn't have to prove it is true. Gespass refers only to discovery directed at me, without mentioning the discovery (emails, text messages, letters, photographs) we could direct at Riley and Duke.
What kind of attorney is David Gespass? A piss-poor one, who in this case, apparently was trying to protect Rob Riley.
* How did Christina Crow, a small-town attorney (Union Springs) from a small-time firm who served as Liberty Duke's lawyer, wind up as the current president of the Alabama State Bar?
Sources have been providing information that shines light on all of those questions and reveals the real motivations behind a bogus defamation lawsuit that caused me to land in jail for five months.
We invite you to stay tuned
(To be continued)