Joey Kennedy and three of his
animal friends
(From B-Metro Magazine)
Pulitzer Prize-winning journalist Joey Kennedy says al.com is using his name in an effort to sell subscriptions, just weeks after firing him.
In a post yesterday at his Facebook page, Kennedy said he is considering possible legal action. Al.com, the digital equivalent of The Birmingham News, fired Kennedy on February 19.
He reached a severance agreement with al.com on March 6 and signed on as a columnist for B-Metro Magazine. Also, Kennedy and his wife, Veronica, are launching Animal Advocates of Alabama, a Web site about animal-related news and advocacy.
Kennedy seemed stunned yesterday to learn that representatives for his former employer were using his name in an effort to sell newspapers--even hinting that he was about to return to the fold. Said Kennedy on Facebook:
Well, one tries to move on. The company that fired me for "making threats" and "being too personally involved in my stories" is now putting people out in stores around the city telling potential subscribers that they are negotiating with me to return to Alabama Media Group and The News. I've not been a party to these "negotiations," yet they're using my credibility and standing in the community to sell subscriptions to their 3-day-a-week paper.
How does Kennedy feel about this strange turn of events?
I'm insulted, offended and just plain angry. I've consulted with my lawyer and we're deciding what to do next. This is wrong on so many levels. I did nothing but exemplary work for this group for more than 33 years. They cast me aside, and now try to use me to sell subscriptions. How do you describe this?
Three terms come to my mind to describe it--"sleazy," "underhanded," and "dim-witted." Oh, and I mustn't forget "shameless."
How would you describe al.com's treatment of one of Alabama's best-known journalists? Please send your adjectives, adverbs, and other descriptive phrases to us via the comments section.
Former Alabama Governor Don Siegelman is seeking financial support for a proposed documentary about the political prosecution that caused him to unlawfully be sent to federal prison.
To be called Killing Atticus Finch, the film promises to expose Bush-era corruption in Alabama; Washington, D.C.; and around the country. The film's fund-raising site bills it as "the movie that Karl Rove does not want you to see."
From a federal prison in Oakdale, Louisiana, Siegelman sent a letter to the public, via Legal Schnauzer. The letter reads:
A LETTER FROM DON SIEGELMAN
My Dear Friend:
Once again, I call on you to help me fight for justice, not for me, but for our criminal justice system. I thank you for helping with my personal fight to expose the truth about how Karl Rove used the Department of Justice as a political weapon, and to finally hold him accountable. Now I am seeking to make an important systemic change to help ensure fairness and reduce government misconduct.
Please watch, share and support the Documentary Killing Atticus Finch. Help us tell my story!
Here is a summary of the documentary project and the effort to get it filmed:
THE MOVIE KARL ROVE DOES NOT WANT YOU TO SEE!
This film will expose the dark underbelly of corrupt politics that has remained secret for far too long.
Just like America's favorite literary figure, Atticus Finch, former Alabama Governor Don Siegelman believed in a judicial system that completely failed him. Don Siegelman needs your help! We need you to back this project so that the world will know about this travesty of justice. It's that important!
We have launched this GoFundMe Campaign to help produce a documentary that tells the whole story behind Don Siegelman's malicious prosecution and wrongful conviction. If you carry that same hunger for justice, please join us to shine a light on the truth.
Anthony Ray Hinton was freed last Friday after spending almost 30 years on Alabama's death row for two murders that new forensic evidence indicates he did not commit. We strongly suspect Hinton was not the only inmate wrongfully serving time on Alabama's death row. And we aren't just guessing about that; we have a specific case in mind.
But was this a case of murder? And, as was the case with Anthony Ray Hinton, is there any evidence tying Russell to the shooting? Based on press reports at the time, the answer to the first question is "maybe not." The answer to the second question is "no."
Are there similarities between the Hinton case and the Russell case? Well, here is how al.com described the process that set Hinton free:
After nearly 30 years on Alabama's death row, Hinton this morning walked out of prison a free man and into the arms of his sisters and friends.
He was freed when prosecutors dismissed the charges for his re-trial in the 1985 deaths of two fast-food managers after new testing on Hinton's gun couldn't prove the crime scene bullets were fired from the weapon.
Bryan Stevenson, executive director of the Equal Justice Initiative (EJI) in Montgomery, served as Hinton's attorney and pushed for the evidence that finally freed his client:
EJI has been asking for more than a decade for prosecutors and the Alabama Attorney General's Office to have the gun re-tested because Hinton's original attorney did not hire a qualified gun expert.
"It should have happened many many years ago. . . . His case, in my judgment, is a case study in what's wrong with our system. He was convicted because he is poor. We have a system that treats you better if you're rich and guilty than if you're poor and innocent," Stevenson said.
There is no evidence that Russell's court-appointed trial lawyers hired a gun expert, qualified or not. In fact, Russell's lawyers, Mickey Johnson and Rick Vickers of Pelham, put on no defense at all. We can find no documents on Google Scholar that indicate Russell's conviction was appealed. News reports at the time raised questions about whether the prosecution even had the right murder weapon--and the reports offered no forensic evidence that showed Russell fired the gun.
What led to Katherine Gillespie's death? Here is how we summarized it in a November 2010 post:
The death of Katherine Helen Gillespie is a sad and tragic story. She was born through artificial insemination to a mother who died when she was 7 years old. She did not have a father, so she lived with her maternal grandmother until the summer of 2007. At that point, the grandmother developed signs of dementia, and Gillespie came to live in Inverness with the 37-year-old Russell, a distant cousin who was single and reportedly planned to adopt her.
Katherine Gillespie had been at summer camp on June 16, 2008, and it appeared Russell was going to be late picking her up. A camp counselor later testified that Gillespie was concerned as it got closer to 6 that evening, and Russell had not picked her up, but she was happy and smiled when he made it on time.
Three teenagers reported later that evening being rear-ended by an SUV. When they followed the SUV, it went to Russell's residence. Two of the teens, Andrew Stone and Robert "Bo" Montiel, later testified that a young girl, presumably Gillespie, got out of the SUV and asked them in a tearful voice not to call the police about the collision. They said Russell stayed in the vehicle and eventually backed it into the garage.
One of Russell's ex girlfriends went to the house after relatives told her they had not been able to reach him for several days. She discovered Katherine's body inside the SUV.
Was there reasonable doubt in the Russell case? Evidence showed that Russell had financial problems and a serious drinking problem, but reasonable doubt about murder--and whether he committed it--was everywhere. Consider just a few issues raised at trial:
Katherine Helen Gillespie
* Don Gould, a retired evidence technician, admitted under cross examination that his team left behind four guns at the scene, including the one they eventually considered to be the murder weapon. That gun, a .40-caliber Glock, was found months after evidence recovery, hidden under a couch when a family member of Russell's removed his belongings from the house.
* Ed Moran, a forensics expert, could not connect the bullet from the body to any gun that he examined. From a January 2011 post and an article in the Shelby County Reporter:
Moran said the bullet jacket recovered from the body could not be marked back to any of the guns he examined. He said there was not enough microscopic markings on the jacket for him to make a conclusion.
* Katherine's body was found in Russell's house, where she lived, and he was her legal guardian. The supposed murder weapon was found there--one of 37 guns recovered at the scene. But that's pretty much where the evidence against Russell ends. We see no sign that he intended to kill Katherine, nothing tying him to the murder weapon. Does this evidence even rise to the level of "flimsy"? But a man sits on death row because of it? Here is how we summarized it:
Here is perhaps the most stunning element of this case: Based on press reports, from both The Birmingham News and the Shelby County Reporter, no evidence was presented that tied Russell to the actual act of shooting Gillespie. Articles about the testimony of a forensics expert made no mention of fingerprints, powder residue, or any other evidence that proved Russell fired the weapon. Yes, the gun was found in Russell's house. But proof beyond a reasonable doubt that he fired the gun? If any was presented at trial, it was not reported in the press.
Russell and Gillespie hardly were alone on the property that night, as we reported:
Based on press reports, we know that at least six other people--a former girlfriend, three teenagers, and at least two sheriff's deputies (called first by the teens, then by the former girlfriend)--were on or near the Russell property that night. . . . Is it possible that someone else on the scene that night had a gun and accidentally shot Katherine? It appears that authorities never seriously considered that possibility, and of course, that scenario would not go to murder either. It might, however, go to a massive wrongful-death lawsuit against the persons or entities responsible.
It took the Alabama "justice system" 30 years to get the Anthony Hinton case right. The Ryan Russell case emits many of the same foul odors. How long will it take for someone to take a second look? Has there even been a legitimate first look yet?
It has been just more than a year since my five-month incarceration for blogging ended in Shelby County, Alabama. We already have shown that the arrest was unlawful on at least three grounds, but the list of abnormalities in the case seems to keep growing.
That's because the actions of Deputy Chris Blevins in "effectuating" my arrest so clearly fall outside the boundaries of the law. Blevins' unlawful actions fall into at least four categories: (1) His failure to state his purpose for being at our home; (2) His failure to state his mission before entering our home; (3) His use of excessive force, as defined by law; (4) His use of pepper spray in a situation where the law does not support it.
Let's examine each of these issues closely:
(1) Failure to state his purpose--Under Alabama law, an officer making an arrest must give notice of his authority. From Code of Alabama 15-10-2: "An officer may execute a warrant of arrest on any day and at any time; but in doing so, he must inform the defendant of his authority and, if required, must show the warrant."
In other words, an officer must tell you why he is in your presence, he must describe his purpose for being there. We've already established that Blevins did not show a warrant, but perhaps more importantly for our purposes now, he never stated that he was at our home to arrest me--until after he had already knocked me to a concrete floor three times and directed pepper spray into my face.
That makes the arrest unlawful, especially when you consider that it took place inside our home. That takes us to item No. 2.
(2) Failure to state his mission before entering our home--Both statutory law and case law in Alabama show that an officer has important responsibilities before entering a home. To quote further from Code of Alabama 15-10-2: "If [an officer] is refused admittance, after notice of his authority and purpose, he may break an outer or inner door or window of a dwelling house, in order to make the arrest."
Blevins was refused admittance to our home--I told him to get out of our garage--but he had given no "notice of his authority and purpose" for being there. A videotape of the arrest shows Blevins walking into our home without stating why he is there. Under Alabama statute, this is unlawful.
Importantly, in most circumstances, a person must make known his purpose and demand admittance before breaking into and entering the house of another to make an arrest. 5 Am.Jur.2d Arrest § 93. Mr. Justice Bouldin, in Gray v. Williams, 230 927*927 Ala. 14, 18, 160 So. 715, 718, spoke to this point when he stated:
"In entering the dwelling of a third person, especially at night, the officer is under duty to apprise the head of the family of his mission and authority. No particular words are necessary, but, coming in the name of the law, he should make known such fact."
The arrest videotape shows that Blevins failed to fulfill his duty before entering our home, and that is one more ground for making my arrest unlawful.
(3) Use of excessive force, as defined by law--When an arrest is unlawful--as this one was on almost a half dozen grounds--a law-enforcement officer is not authorized to use force. As stated in Jackson v. Sauls, 206 F. 3d 1156 (11th Circ., 2000):
" . . . if a stop or arrest is illegal, then there is no basis for any threat or any use of force, and an excessive force claim would always arise but only collaterally from the illegal stop or arrest claim."
As we've shown, Blevins' actions were illegal from the moment he stepped into our garage without stating his purpose for being there. Under Jackson, all of the force that Blevins subsequently used was unlawful.
As this Court also recently explained in Lee, "Graham dictates unambiguously that the force used by a police officer in carrying out an arrest must be reasonably proportionate to the need for that force, which is measured by the severity of the crime, the danger to the officer, and the risk of flight. . . ."
Courts have consistently concluded that using pepper spray is excessive force in cases where the crime is a minor infraction, the arrestee surrenders, is secured, and is not acting violently, and there is no threat to the officers or anyone else.
In my case, there was no crime at all, severe or otherwise. I was being arrested for alleged contempt of court in a civil matter--one where I could not lawfully be subjected to a contempt finding. By Blevins' own words in his incident report, he was the one acting violently, throwing me through boxes (twice) and up against a sturdy, metal dog pen. By Blevins' own account, all I did was put my arms in front of my face to protect myself from his blows. When finally informed that I was under arrest, I was lying on the floor of my own garage--with the doors closed--so it seems clear I was not a flight risk. (See incident report at the end of this post.)
Reporting on my story has focused largely on clear violations of the First Amendment. In my view, however, the story goes way beyond that. Discussions of the First Amendment tend to be nuanced and theoretical. But there was nothing nuanced about Chris Blevins' actions in our garage--or about the five months I spent in jail.
Police abuse has been one of the leading stories in the United States over the past eight to 10 months; my story is just one more example of it. I managed to live through it, but the closer you look at the details, the uglier it gets.
The incestuous nature of the University of Alabama Board of Trustees was in the spotlight last week, thanks to an al.com article that outlined connections several board members have to Bryant Bank, where fellow trustee Paul Bryant Jr. serves as chairman. Perhaps the most important news from the story involves Bryant's tendency to try end runs around the Internal Revenue Service (IRS), and we suspect many readers might have missed that.
It's important because Bryant stepped in a major pile of doo-doo once before from his efforts to evade the tax man. Could it happen again? Time will tell, but reporter John Archibald makes clear that perhaps Bryant hasn't learned his lesson about the IRS.
Near the end of his article, Archibald drops a bomb about the Crimson Tide Foundation, a nonprofit fund-raising organization for UA athletics. Bryant has been chairman since its inception in 2005, and Archibald writes the following about the foundation, using it as an example of UA leaders' tendency to seemingly feel basic rules and courtesies don't apply to them:
When UAB supporters went to Tuscaloosa in support of a Southside stadium, trustees did not even give them the courtesy of a hearing. They simply ignored the students from Birmingham and killed the plan without a word.
Because they don't believe they answer to anyone.
The Crimson Tide Foundation - which two years ago bought Nick Saban's house for almost $3.1 million -- is a perfect example. In February AL.com sought IRS filings on that foundation as well as Auburn's similar Tigers Unlimited Foundation. Auburn complied, but Alabama said they no longer file IRS 990s.
How did a UA representative respond when confronted with questions about this issue? Archibald tells us:
When Deborah M. Lane -- assistant to the president and associate VP for University Relations - finally explained that decision this week she said the group believes it does not have to file the form because it is affiliated with a government entity: The UA Board of Trustees.
Which would make that foundation's books ... public. Yet the dance goes on, as the family tries to keep it all in the family.
They have been allowed to do it so long, by politicians and by media too scared, too cheap, or too homer to challenge it.
Could this be an instance of history repeating itself? It's possible, because we've seen signs that no one has much challenged the way Bryant manages his private business entities under the Greene Group banner. Bryant apparently likes to surround himself with "yes men and women," a trait that almost landed him and several associates in federal prison back in the late 1990s. In fact, it almost certainly would have if Birmingham lawyer Doug Jones, then U.S. attorney for the Northern District of Alabama, apparently had not called off a planned investigation of a Bryant company (Alabama Reassurance) in the wake of a major white-collar prosecution in Philadelphia.
The Pennsylvania case ended with convictions across the board and a 15-year prison sentence for a lawyer/entrepreneur named Allen W. Stewart. In the course of the prosecution, Alabama Re was implicated in a $15-million insurance fraud scheme--and that was to be the focus of an Alabama investigation until someone (likely Doug Jones, a long-time Bryant associate) stepped in and called off the probe.
Reporters Anthony Effinger and John Helyar show that Bryant got in trouble because of a scheme to avoid taxes. In fact, the whole purpose of Alabama Re was to hide dog-track profits from the IRS. This is what Bloomberg reported about a Mississippi Department of Insurance examination of Alabama Re in the 1990s: :
“They were propping up broke companies for a fee,” says Tom Gober, who was examiner-in-charge at the Mississippi Insurance Department in the early 1990s. “Companies knew they could call on Alabama Re because Alabama Re had to offset dog track profits.”
Bryant’s enterprises are all units of a holding company called Greene Group Inc., which Gober says allows the firm to consolidate its tax liabilities and offset profits from other enterprises with insurance write-offs.
Experts in Alabama knew that Bryant's company intentionally worked with troubled insurers in a way that deceived the public--and the markets. From Bloomberg:
The company made a business out of propping up troubled insurers with reinsurance that appeared to reduce liability, says W.O. Myrick, a retired Alabama state insurance examiner. The contracts carried little, if any, risk to Alabama Re, he says. One client, Inter-American Insurance Co. of Illinois, went into liquidation in 1991, according to Cook County court documents.
“Historically, Alabama Re has entered into contracts to assume liabilities from problem insurers to help them appear to be in better financial condition than they actually are,” Myrick says in a telephone interview.
In other words, Alabama Re, under Bryant Jr.'s "leadership," was a scam from the get-go. What about the Crimson Tide Foundation, another of Bryant's creations? Why is it not filing IRS documents that similar foundations seem to file?
Bryant flirted with IRS-related disaster once before--and managed to get away with it. Is he heading down that path again?
Alabama House Speaker Mike Hubbard (R-Auburn) seeks dismissal of the criminal charges against him, based almost entirely on the words of a former deputy attorney general who was forced to resign for leaking grand-jury information, according to court documents filed yesterday.
Hubbard's lawyers allege that prosecutorial misconduct, mainly by special prosecutor Matt Hart, has tainted the investigation to the point that a 23-count indictment against the speaker should be dismissed. To support his motion, Hubbard relies mainly on written evidence from Sonny Reagan, who was forced to step down from his post in the attorney general's office last December.
The motion and its exhibits do provide several comical moments, that is if you believe anything Sonny Reagan says or writes. The defense apparently will try to prop up Reagan's words during an evidentiary hearing set for April 15.
This is the same Sonny Reagan, by the way, who testified before the Lee County grand jury last year and wound up invoking the Fifth Amendment right not to answer questions for fear that he might incriminate himself. It's the same Sonny Reagan who was the recipient of a stinging letter from Attorney General Luther Strange, dated October 16, 2014, outlining examples of improper leaks and placing the deputy AG on administrative leave. (See exhibits attached to Hubbard's motion, from link at the end of this post.)
Finally, this is the same Sonny Reagan, who in documents that prosecutors released last week, is shown in e-mails as the source of leaks to key Republican political figures who are connected to targets (or are targets themselves) of the Lee County investigation. Involved in receiving leaks were Hubbard, former governor Bob Riley, Birmingham attorney Rob Riley (Bob Riley's son), and former Hubbard aide Josh Blades.
Hubbard's dismissal motion, in essence, relies on the word of a man whose "credibility" has been left in tatters. Does that mean the 123-page filing is a desperation move? It sure looks that way. Does it mean the motion has zero chance of being granted? Absolutely not. In the world of Alabama "justice," anything can happen.
The motion gets off to a farcical start by quoting Martin Luther King's Letter From the Birmingham Jail. The citation to MLK from a guy as white as Hubbard, who probably received .002 percent of the black vote in his district, is . . . well, it reads like something from a Saturday Night Live sketch.
Is the Hubbard defense team serious with this stuff? It's hard to tell, but things really get interesting when Reagan starts pointing out the myriad ways Matt Hart has been an ole meany to certain high-level Republicans. A few highlights, according (mostly) to the "word of Sonny":
* Reagan's own lawyer, Bill Baxley, clearly wants nothing to do with the evidentiary hearing on April 15. Writes Baxley: "If our attendance is necessary, naturally we will comply with the subpoena, but it would be nice to have as much notice as possible and even nicer not to have to go." That's the spirit, Bill. Sounds like you can't wait to do battle on behalf of your client.
Rob Riley
* Hart allegedly claims to be aware of a meeting where Rob Riley had encouraged a number of individuals to interfere with the Lee County investigation. Writes Reagan: "I would be shocked if Rob Riley was interfering with a criminal investigation, and it was more likely that he was trying to politically protect Mike Hubbard's role as House Speaker." Reagan seems to be making a "distinction without a difference"; either way, Rob Riley would be interfering with a criminal investigation, regardless of his motive. We now know, of course, that Reagan himself leaked grand-jury information to . . . Rob Riley.
* Hart allegedly referred to Rob Riley as a "mafia thug" and insinuated that former State Sen. Bryan Taylor was violating the ethics law by working as a contract lawyer for the Escambia County Commission in legal matters against the Poarch Creek Indians.
* Hart allegedly asked Reagan if he had heard that political consultant Dax Swatek "was a homosexual." Reagan said no and wrote, "I had met Dax's very attractive wife when they attended the AG's election party in 2011."
* Hart allegedly told Reagan that Rob Riley had motivated him to continue this grand jury investigation "like no other person has done before." Reagan wrote: "Matt said Rob Riley was a 'bad guy,' and he did not care who Rob's daddy was. Matt said the grand jury began with a definite ending point, but it would now 'continue indefinitely.'"
My wife and I continue to suffer the physical, emotional, and financial fallout from an arrest that has (best I can tell) universally been deemed unlawful. Legal analysts from both the left and the right have stated that the temporary restraining order (TRO) and preliminary injunction in my case were prior restraints that run afoul of more than 200 years of First Amendment law.
We are more determined than ever that Republican political figures Rob Riley and Liberty Duke, who sought the unconstitutional injunction, will be held accountable--along with the powerful figures who likely were pulling their strings from "behind the curtains."
It will not be an easy battle, given the grossly corrupt nature of Alabama courts, at both the state and federal levels. But we find inspiration in the words of Erwin Chemerinsky, the founding dean at the University of California Irvine law school and one of the nation's foremost constitutional scholars.
Chemerinsky has written both scholarly articles and legal briefs that show the TRO/preliminary injunction that sent me to jail was unconstitutional, as is the permanent injunction that I'm still under.
In 2007, Chemerinsky wrote "Injunctions In Defamation Cases" at Syracuse Law Review and shows that the Riley/Duke requests for prior restraints should have been dead on arrival--in a real court of law. But with Judge Claud Neilson handling the case, on assignment from the Alabama Supreme Court, this hardly was a real court of law. Neilson apparently ordered me arrested for "violating" a TRO/preliminary injunction that could not lawfully be in place to begin with. Writes Chemerinsky:
"The [U.S.] Supreme Court has declared that prior restraints on speech constitute "the most serious and least tolerable infringement on First Amendment rights. . . . " The strong presumption against prior restraints is evidenced by the fact that the Supreme Court has never upheld a prior restraint as a permissible remedy in a defamation action."
Let's let those words sink in for a moment. Rob Riley and Liberty Duke were seeking a remedy in their defamation claim that the highest court in the land never has approved. On top of that, they took away five months of my freedom, based on a remedy that the U.S. Supreme Court has rejected throughout its history.
Chemerinsky maintains that a permanent injunction, such as the one I'm under now, also is unconstitutional. To be clear, Chemerinsky is talking about permanent injunctions that have been reached after a finding at trial that certain material is, in fact, defamatory. One such case is Balboa Island Village Inn v. Lemen, 156 P. 3d 339 (Cal., 2007). My case, however, is an entirely different matter. Under "Judge" Neilson, my case never went to trial, never went before a jury. In fact, I am forbidden from publishing material about Rob Riley and Liberty Duke that never has been adjudicated as defamatory.
Lyrissa Barnett Lidsky
A Texas case styled Kinney v. Barnes (Texas Supreme Court, 2014) could be headed to the U.S. Supreme Court, and Chemerinsky has filed an amicus brief in the case, once again driving home the unlawfulness of injunctions in defamation cases. Joining him on the brief is Lyrissa Barnett Lidsky, from the University of Florida School of Law. Lidsky has written extensively on issues of Internet free speech, cyberbullying, and defamation and other privacy torts.
What are the issues in Kinney v. Barnes? The case involves executives at rival legal-recruiting firms, and this is how one court document describes the conflict:
BCG Attorney Search, Inc. employed Robert Kinney as a legal recruiter until 2004, when he left and started a competing firm. Several years later, BCG's President, Andrew Barnes, posted a statement on the websites JDJournal.com and Employmentcrossing.com implicating Kinney in a kickback scheme during his time with BCG. . . . The posted statements prompted Kinney to sue Barnes, BCG, and two other companies Barnes owned (Employment Crossing, Inc. and JD Journal, Inc.) for defamation in Travis County. Kinney did not seek damages in his petition, requesting only a permanent injunction following a trial on the merits. . . . Barnes filed a motion for summary judgment on the ground that the relief sought would constitute an impermissible prior restraint on speech under the Texas Constitution.
According to Chemerinsky and Lidsky, Barnes is on the right side of the law. From the professors' amicus brief:
Is a permanent injunction against defamatory speech ever permissible? Amici urge the court to hold that even where a statement has been adjudicated false and defamatory, the First
Amendment bars a permanent injunction against republication of the statement.
On what do Chemerinsky and Lidsky base their position? They turn to U.S. Supreme Court precedent--and two cases we have mentioned several times here:
Any injunction that restrains a defendant in a defamation case from making certain statements in the future is a prior restraint on speech. The U.S. Supreme Court has expressly declared that “permanent injunctions . . . that actually forbid speech activities — are classic examples of prior restraints” because they impose a “true restraint on future speech. . . .” Alexander v. United States, 509 U.S. 544 (1993).
The seminal case concerning prior restraints is Near v. Minnesota ex rel. Olson, 283 U.S. 697 (1931). In Near, a newspaper appealed a permanent injunction issued after a case “came on for trial.” Id. at 705-06. The injunction in that case “perpetually” prevented the defendants from publishing again because, in the preceding trial, the lower court determined that the defendant's newspaper was
“chiefly devoted to malicious, scandalous and defamatory articles. . . .” Id. at 706 (quotations omitted). The Near Court held that such an injunction on future speech, even if preceded by the publication of defamatory material, was unconstitutional.
Like my case, Kinney involves Internet speech, and the case likely will raise this question: Does the Internet provide such a free-flowing communication platform that it requires changes in U.S. law that long has forbidden prior restraints. Chemerinsky and Lidsky answer in the negative:
The landscape of communication has been dramatically reshaped by the Internet. Americans rely on digital means of communication for nearly every conceivable purpose in their daily lives. The U.S. Supreme Court has recognized the Internet’s importance and made clear that it is entitled to the full protection of the First Amendment. Reno v. ACLU, 521 U.S. 844, 870 (1997). Indeed, the
Internet gives great power to the fundamental First Amendment axiom that “[t]he remedy for speech that is false is speech that is true.” United States v. Alvarez, 132
S. Ct. 2537 (2012). . . .
Ironically, however, it is the very characteristics of the Internet that the U.S. Supreme Court in Reno v. ACLU found justified its full First Amendment protection—speed, ease and efficiency of communication, and the ability of the Internet to make any person a global publisher—that often lead to calls for speech on the medium to receive diminished protection. . . . However, the U.S. Supreme Court has stated clearly that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n, 131 S. Ct. 2729, 2733 (2011).
Profs. Chemerinsky and Lidsky clearly are two of the nation's leading experts on First Amendment law, and we encourage readers to follow the Kinney case.
What happened in my case--the jailing of a journalist based on an unlawful preliminary injunction; a permanent injunction based on communication that never has been found to be defamatory at trial--might be beyond the imaginations of even our nation's finest constitutional scholars.
A little more than one year ago today, I was in jail because two Republican operatives and a seemingly incompetent judge essentially decided that the First Amendment does not apply to Alabama. My goal is to prove that it does--and that those who violate it will be held accountable.
A significant number of individuals who help govern the public University of Alabama System also have connections to a private bank where UA trustee Paul Bryant Jr. serves as chairman, according to a report this morning from al.com.
Did such an incestuous, conflict-riddled system allow Bryant Jr. to push for demolition of the UAB football program, without anyone raising an opposing view? Columnist John Archibald does not answer that question, but he suggests the university's governing board operates in "the smoke and shadows," discouraging members from conducting their business "in the light of day"--in part, because of loyalties to Bryant.
Birmingham attorney Donald Watkins, on his Facebook page, reacted to the Archibald column by calling the UA system a "modern day plantation." Watkins seemed particularly appalled that even Governor Robert Bentley is connected to the ugliness. His son, John Mark Bentley, is a vice president at Bryant Bank.
Watkins offers stinging insights on the UA board, but he's using the wrong metaphor, in my view. I would suggest Bryant has taken a public board and turned it into a private whorehouse. Why? As far as I know, the plantation system was legal in its day, but prostitution has long been the "oldest profession" that operates outside the law.
While Archibald provides important information about the UA board, he leaves out at least one major detail: Paul Bryant Jr. has documented ties to criminal activities, and our research indicates a prominent Birmingham lawyer helped him get away with it.
We've shown in a series of roughly 50 posts, beginning in October 2009, that Bryant and one of his companies (Alabama Reassurance) were implicated in a $15-million insurance fraud scheme that netted a 15-year federal prison sentence for a Philadelphia lawyer/entrepreneur named Allen W. Stewart.
Bloomberg Markets picked up on our reports and turned them into a national story for its January 2014 print issue. An early version of the story appeared at Bloomberg's Web site on November 25, 2013. Bloomberg did not credit Legal Schnauzer for providing the foundation to more than half of the story, but reporter Anthony Effinger consulted me multiple times while conducting research.
Why did Archibald not mention Bryant's connections to criminality? That's hard to figure because Bryant's shady background probably contributes to the secrecy that Archibald decries in the UA board.
Archibald notes that board members routinely refuse to give substantive answers to questions about public business, including the decision to cut UAB football. That should not be a surprise to anyone who has followed this blog.
Doug Jones
Our investigation shows that Birmingham lawyer Doug Jones, while serving as U.S. attorney for the Northern District of Alabama in the late 1990s, called off a planned investigation of Bryant in the wake of the Stewart conviction in Pennsylvania.
Jones: I'm trying to make sure you understand that I have read your stuff, I have seen your conspiracy theories, and I am not going to answer any of your questions because I don't trust what you will write, period.
LS: I'm taking it down word for word. . . . I'm asking you, who called off the investigation of Paul Bryant?
Jones: I am not going to respond to any of your questions . . .
LS: You were a public official then, Doug . . .
Jones: I am not going to respond to any of your questions. . . . I've seen the garbage you write and the way you spin and the way you slant. It's the most disingenuous stuff I've ever seen. . . . It just doesn't matter to me. You're a nothing to me."
Notice that Jones never denies having called off the Bryant investigation. And he refuses to answer important questions about public business--from Jones' time as a public official.
John Archibald, in so many words, takes the UA board to task for acting in an arrogant and condescending fashion toward the public. But that should be expected when you know about Doug Jones' history of doing legal work for Bryant, followed by Jones' refusal to answer questions about his apparent actions to protect Bryant.
Do people affiliated with Bryant tend to become smarmy, greasy sycophants? I invite you to listen to my interviews with Doug Jones, via the two videos below, and come to your own conclusions.
I contend that this is the kind of attitude UA board members now take--and they are doing it with your tax dollars.
Many of Scarbinsky's readers might be aghast that a university president would look into the lenses of television cameras--into the eyes of student-athletes, boosters, and community leaders--and speak words that he knew were not true. But documents presented with Scarbinsky's articles show that is exactly what happened.
None of this surprises me. I've known for a long time that UAB administrators--especially those who are too weak to stand up to the corrupt University of Alabama Board of Trustees--have no problem lying on a monumental scale. That is particularly true since Paul Bryant Jr., who has documented ties to a massive insurance-fraud scheme, became a member of the board in 2000.
Is it a coincidence that lying has become almost a varsity sport at UAB since 2000, a sport in which the university's two most recent presidents--Ray Watts and Carol Garrison--should earn all-conference honors? I don't think so. It's the natural fallout from allowing a scoundrel like Bryant to gain power, and I suspect the subterfuge will continue until UAB breaks from the UA board and is controlled by individuals who actually care about the Birmingham campus, its students, and supporters.
It has been widely reported that Bryant was behind the scheme to end UAB football, and I have zero doubt that is true. I also have no doubt that Bryant, or a like-minded member of the board, pushed for my unlawful termination in 2008, after almost 20 years of employment as an editor at UAB.
What was my sin? I was reporting accurately--on my own time, with my own equipment--about the unlawful actions of U.S. District Judge Mark Fuller in a prosecution that sent former governor Don Siegelman and former HealthSouth CEO Richard Scrushy to federal prison for crimes they did not commit--in fact, for "crimes" that do not even exist, under the law.
As a government employee, my communications on such matters of public concern were protected by the First Amendment. But the U.S. Constitution doesn't mean much to UAB managers, especially when they answer to a board that includes a deceitful thug like Bryant.
So what happened? UAB "leaders" claimed that I was writing my blog at work. When a one-month investigation by a member of their own IT staff showed that wasn't true, it created a slight problem. When their own grievance committee found that I should not have been fired--in fact, the grievance hearing showed there were no documents to support discipline of any kind--they had another problem.
Carol Garrison, UAB's president at the time, decided to solve the problems by going against her own committee to uphold my termination. This was the same Carol Garrison who, during her first year on the job, brought copious amounts of embarrassment to UAB by carrying on an unseemly affair with John Shoemaker (the former president of the University of Tennessee), which involved misuse of public resources.
How did UAB administrators lie under oath? As my federal lawsuit unfolded, six of them submitted sworn affidavits, stating in part, that the termination had nothing to do with my speech via this blog. The perjurious six included Garrison, former human resources director Cheryl E.H. Locke, former associate vice president Dale Turnbough, former publications manager Pam Powell, employee relations director Anita Bonasera, and vice president for advancement Shirley Salloway Kahn.
All six of them stated under oath, in various ways, that speech issues had nothing to do with my termination. (See Motion to Strike Affidavits at the end of this post.) That, however, was not true--and like Kevin Scarbinsky, I have the evidence to prove it.
While on administrative leave, I contacted Bonasera to ask a question about my response to the university's accusations. During the course of the conversation, Bonasera admitted that I was targeted because of blog posts about the Siegelman case, that Pam Powell (my immediate supervisor) went to the IT department to seek digital evidence against me regarding any Siegelman posts. In fact, Bonasera mentioned Siegelman's name twice, and while she tried to backtrack, her overall tone was that my termination was based almost 100 percent on journalism at Legal Schnauzer.
Here is a partial transcript of that conversation: (The whole thing can be heard on the video at the end of this post.)
RS: I told Dale Turnbough about this two weeks ago, and she never said a word about any of this. In fact, she said she was going to take care of it, she assured me absolutely that this had nothing to do with my blog—and then two weeks later I find out it’s all about my blog.
AB: It’s not all about your blog. Your blog was an insignificant piece. . . . The blog . . . was a very small part of the bigger picture. . . . again, related to other non-work related things. I didn’t see those non-work related things. Pam (Powell) sat down with the computer people—and I don’t know who else was there—and they reviewed what was work related and what was non-work related.
RS: And she’s the determiner of that, even though she has told us . . .
AB: She was able to determine what you were working on and whether it was related to your blog . . .
RS: Well, you just said it, it’s all about my blog. You just said that.
AB: That was a piece of it. Some of it was research related to your blog, from my understanding. I understand there were some things about Siegelman, screens up about Don Siegelman, things that they saw you doing that they consider to be research for your blog because then that was topics that you wrote about on your blog.
RS: Those are also news articles that we are supposed to keep up with, about Alabama, stuff in the news.
As you can see, Bonasera commits enough verbal twists and turns to be an Olympic gymnast. She starts by admitting my blog "was a very small part of the bigger picture." (News flash: Firing a government employee for protected speech, even if it's a small part of a "bigger picture," violates the First Amendment.) Bonasera betrays her previous words by stating that Pam Powell checked with computer people to see what I was working on and "whether it was related to your blog." In other words, Powell's trip to the digital experts was all about my blog--and a techie later testified at my grievance hearing that I had never touched a keystroke on my blog while at work.
When I catch Bonasera in her lie--as Kevin Scarbinsky did with Ray Watts--she started to back pedal, claiming the blog was "a piece of it." She then digs her hole even deeper by admitting that Powell was specifically looking for information regarding my reporting on the Siegelman case--and Judge Mark Fuller.
UAB football at Legion Field
Despite this, Bonasera actually had the mangoes to write in her sworn affidavit that she was "not aware that any of Shuler's speech on his blog or elsewhere was related to the decision to terminate Shuler's employment." She even denied telling me I was terminated because of my speech, even though the words above show that is exactly what she said. (See Anita Bonasera affidavit at the end of this post.)
If there is a positive for UAB football fans, I've found that lying university administrators tend to be cowards. In my employment lawsuit, U.S. District Judge William M. Acker Jr., granted the university summary judgment, even though there had been no discovery in the case. In fact, there wasn't even a discovery schedule, as required by Rule 16(b) of the Federal Rules of Civil Procedure.
This is mind-bogglingly unlawful, the equivalent of baseball umpires letting one team bat while the other team never gets a chance at the plate. Case law, as cited in Snook v. Trust Company of Georgia, 859 F. 2d 865 (11th Circ., 1988), shows that Acker was acting way outside the law. From Snook:
This court has often noted that summary judgment should not be granted until the party opposing the motion has had an adequate opportunity for discovery. . . . The party opposing a motion for summary judgment has a right to challenge the affidavits and other factual materials submitted in support of the motion by conducting sufficient discovery so as to enable him to determine whether he can furnish opposing affidavits. . . . Generally summary judgment is inappropriate when the party opposing the motion has been unable to obtain responses to his discovery requests.
Heck, I wasn't even allowed to make discovery requests. That's likely because Acker knew a significant e-mail trail, if produced in discovery, would show that UAB did, in fact, discriminate against me and violate my First Amendment rights--that I was fired, 100 percent, because of my blog. The cheat job extended all the way to the Eleventh Circuit, which upheld Acker's ruling with a "Do Not Publish" opinion. That is a nasty trick that appellate judges use to cheat a litigant while not sullying the record with a ruling that is contrary to years of legal precedent. (More on that in an upcoming post.)
Ethics rules of the legal profession require a lawyer to report the misconduct of another lawyer or judge. Did chief university counsel Lisa Huggins object to Acker's violation of "black letter" law? Heck, no--she stayed quiet because Acker was cheating on her behalf.
That might provide comfort for UAB football fans. In a pathological environment created by neanderthals like Paul Bryant Jr., individuals become cowards--and their ethics become so warped that they eventually make glaring mistakes.
I suspect that eventually will happen to Ray Watts. He's going to become such a drag on the Board of Trustees, they eventually will cut him loose.
UAB, for its long-term health, still needs to cut itself loose from the Tuscaloosa board. But getting rid of Ray Watts will be a step in the right direction.
To add some levity to this subject, here is a video of Ray Watts (as Hitler) learning that his skybox privileges in Tuscaloosa have been rescinded because of his failure to kill the entire UAB athletics program.
