iacknowledge.net
Alabama blogger Roger Shuler
is being held in indefinite detention in a state prison for refusing to
comply with an injunction barring him from exposing political
corruption. His story raises serious concerns not only about the
erosion rights guaranteed under the First Amendment of the US constitution, but the demise of democracy in the Western Hemisphere.
The Committee for the Protection of Journalists (CPJ)
maintains a list of those jailed for journalism around the world – and
the US now joins the ranks of Macedonia, Kuwait, Pakistan and Thailand
in keeping a journalist behind bars. According to the CPJ:
Shuler, whose blog Legal Schnauzer specializes in allegations of corruption and scandal in Republican circles in Alabama, was arrested on contempt of court charges for failure to comply with an October 1, 2013, preliminary injunction
prohibiting him from publishing certain stories on his blog. 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 blog posts in July 2013 that claimed Riley had an extramarital affair and offered details. Riley vehemently denies the allegations.
In an interview with CPJ, Riley said 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.”
Shuler was charged on Oct. 23 2013 with two counts of contempt of court
for allegedly violating a temporary restraining order and preliminary
injunction. The Circuit Court of Shelby County, Alabama had ordered
Shuler to remove stories that alleged that Robert Riley, Jr., the son of
a former Alabama governor, had an affair with and impregnated lobbyist
Liberty Duke.
There are several factors which make this case extraordinary and a dangerous exercise in precedent setting.
Prior Restraint
Before the charge of defamation could be heard in a court of law, a judge issued a preliminary injunction or prior restraint
order to Shuler, which is effectively a gagging order. This is a
constitutional grey area, with an exceptionally high burden of proof
required to take such a step, it looks unlikely that this case would merit such an order based on either the weight of evidence or public importance/national security test.
As Reporters Committee for Freedom of the Press (RCFP) explains:
“Neither a default judgment nor a full adjudication on the merits of
the defamation claims appears to have occurred, people familiar with the
case said. 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.”
Vendetta
The timing of the preliminary injunction and defamation orders also
raised suspicions. Despite Shuler’s reputation for emptying both barrels
at the Alabama political elite in the Legal Schnauzer blog, his wife
Carol told Salon
that ““This is our first defamation case since starting the blog in
June 2007..They both hit at the same time and we think they are linked
in effort to shut us down by the power brokers in this state. But other
than that we have never been sued for defamation.”
A recent piece on the case by the New York Times
even misrepresented the blog, giving the impression that Shuler was
known for unfounded and salacious accusations about Alabama’s law and
policy makers (in which case one would expect prior suits), and also
claiming that Shuler was somehow milking his prison sentence by not
engaging the services of a lawyer. His wife Carol explains:
“The Times article was entirely in error in suggesting that we are
not seeking a lawyer. My husband and I both told the [Times] reporter
repeatedly that we were in fact very much wanting a lawyer and were in
fact looking for one, however, we did not have the resources to pay an
attorney. We hope to find a good First Amendment or constitutional law
attorney who could represent us pro bono or by contingency.”
Secrecy
All records pertaining to the case have been sealed by the Alabama
courts, meaning external parties, human rights organisations and the
Shulers themselves are unaware of the evidence and testimony against
them.
This from the RCFP:
The American Civil Liberties Union of Alabama asked the court on
Monday for permission to file a friend-of-the-court brief on behalf of
Shuler. The group is arguing that the both injunctions and the decision
to seal all of the records in the case are unconstitutional, legal
director Randall Marshall said.
“It’s hard to see any justification for filing everything under
seal,” Marshall said. “The motion to file everything under seal is
itself sealed. Every document in its entirety should not be hidden from
public view.”
Shuler was also charged with resisting arrest, while he claims police brutality
took place during his un-necessary and potentially unlawful arrest.
Shuler is being held to ransom – take down the blog posts, or remain in
jail.
So what you have is a journalist jailed indefinitely for refusing to
be silenced by allegations of defamation that have never been proven,
and whose evidence of lack thereof is hidden from public view. This
sets precedent for any aggrieved politician or lawmaker to gag
journalists without needing to challenge the voracity of their claims in
court, and journalists who refuse to be bound by such an injudicious
process can find themselves detained indefinitely in the prison system.
Does that sound like the actions of a democratic state to you?
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