There are a few things you should know about Roger Shuler, who blogs at "Legal Schnauzer."

First, Shuler is creepy and crazy. (I formed that opinion by reading his blog.)

Second, Shuler is a vexatious litigant, a serial pro se abuser of the court system.1 (I formed that opinion by researching records of his litigation history.)

Third, Shuler is currently in jail, arrested for contempt because he violated an unconstitutional preliminary injunction — a classic prior restraint — prohibiting him from defaming the son of a former Alabama governor.

Some people excuse or applaud the third thing because of the first and second things. They shouldn't. The First Amendment protects everyone — even creepy, crazy vexatious litigants. You should demand that the First Amendment protect people like that, because if it doesn't, it won't protect you when you need it.

Shuler writes about Republican politicians in Alabama. It may be my ideological bias, but I assume that's fertile ground for posts about substantive issues — the legacy issues of the civil rights struggle, the abusive elements of the criminal justice system, and so forth. But recently Shuler seems mostly interested in writing about politicians' marital infidelity instead. Perhaps he's trying out for a job with a cable news network.

Shuler set his sights on Robert J. Riley, Jr. Riley is the son of the former Republican governor of Alabama. So he's connected. Shuler seems to believe that Riley is being groomed for office himself; it may be true, though Shuler's word is not a good reason to believe it. A few years ago Shuler wrote about Riley paying a fine in a campaign finance investigation. More recently, Shuler accused Riley of having an extramarital affair with a lobbyist, and made various sordid claims about their relationship. Again, Shuler saying it is not a good reason to believe it's true; if anything, the accusation is discredited by coming from Shuler.

Riley sued Shuler for defamation. That much is unremarkable. Defamation isn't protected by the First Amendment when it constitutes false and unprivileged statements of fact.

But Riley went further. He got Alabama Circuit Judge Claude D. Neilson to issue a preliminary injunction — that is, an order issued before there's been a trial — prohibiting Shuler from saying certain things about Riley:

Based on the foregoing, Respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said alleged extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange for Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion, and that Petitioner Duke received any such funds. The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court. These efforts shall include, but not be limited to, taking the subject information off of the website known as "Legal Schnauzer," taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube.

That order — forbidding Roger Shuler from saying something before he says it — is called prior restraint, and it is widely acknowledged to be a violation of First Amendment rights in all but the most extreme circumstances.

Roger Shuler continued to utter his accusations about Riley despite the injunction. Riley asked the court to hold Shuler in contempt. Shuler was arrested on October 23. His booking photo suggests he was beaten during the arrest. Though there are differing accounts, it appears that he was arrested for contempt for violating the unconstitutional injunction.

The Prior Restraint

The order underlying Shuler's arrest is unconstitutional.

There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation. It comes from two sources: equity and the First Amendment.

Equity

Injunctions are an equitable remedy, with their origins in courts of equity. Courts of equity applied discretion in an attempt to achieve just results, as opposed to courts of law bound to rules set forth in statutes. Courts of equity and law have been combined since the 19th century, but equitable traditions remain. An injunction is an equitable tradition because it is only supposed to be imposed when legal remedies — like monetary damages — are unavailable or inadequate. American courts have long held that equity will not enjoin defamation — that courts may not issue an injunction to prohibit someone from committing libel or slander because the victim can always sue for damages.

This is not some mere Yankee affectation. The courts of Alabama — where Judge Neilson issued his injunction — have long recognized the principle. "Nor can an injunction be granted to restrain the publication of a libel." Montgomery & W.P.R. Co. v. Walton, 14 Ala. 207 (1848). As one Alabama federal court explained a century ago:

Neither a court of equity, nor any other department of government, can set up a censorship in advance over such matters, and prevent a person from exercising this constitutional right. He has the right to publish, if he chooses to take the consequences. After he has spoken or written falsely, the criminal law can punish him, and the civil courts amerce him in damages. That such redress may not be adequate in all cases, and in some cannot be, is quite apparent; but the remedies named are all that the Constitution permits any court to employ against slanders upon a man’s credit and business standing. The court cannot go outside of the Constitution, or hold that to be an inadequate remedy which the Constitution has declared to be the sole remedy. The wrongs and injury, which often occur from lack of preventive means to suppress slander, are parts of the price which the people, by their organic law, have declared it is better to pay, than to encounter the evils which might result if the courts were allowed to take the alleged slanderer or libeler by the throat, in advance.Citizens’ Light, Heat & Power Co. v. Montgomery Light & Water, 171 F. 553 (1909)2

So: preliminary injunctions against defamation have long been strongly disfavored in equity.

First Amendment Law

Preliminary injunctions against defamation are even more strongly disfavored under the First Amendment. Here's how United Sates Supreme Court Justice Harry Blackmun put it in staying an injunction that a lower court had imposed forbidding CBS from running undercover footage of a beef processing plant in CBS, Inc. v. Davis, 510 U.S. 1315 (1994):

For many years it has been clearly established that “any prior restraint on expression comes to this Court with a ‘heavy presumption’ against its constitutional validity.” Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971), quoting Carroll v. Princess Anne, 393 U.S. 175, 181, 89 S.Ct. 347, 351, 21 L.Ed.2d 325 (1968). “Where … a direct prior restraint is imposed upon the reporting of news by the media, each passing day may constitute a separate and cognizable infringement of the First Amendment.” Nebraska Press Assn. v. Stuart, 423 U.S. 1319, 1329, 96 S.Ct. 237, 254, 46 L.Ed.2d 199 (1975) (BLACKMUN, J., in chambers). As the Court recognized in Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 2802, 49 L.Ed.2d 683 (1976), prior restraints are particularly disfavored: “A criminal penalty or a judgment in a defamation case is subject to the whole panoply of protections afforded by deferring the impact of the judgment until all avenues of appellate review have been exhausted…. A prior restraint, by contrast, … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.” Although the prohibition against prior restraints is by no means absolute, the gagging of publication has been considered acceptable only in “exceptional cases.” Near v. Minnesota, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even where questions of allegedly urgent national security, see New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), or competing constitutional interests, Nebraska Press Assn., 427 U.S., at 559, 96 S.Ct., at 2802, are concerned, we have imposed this “most extraordinary remed[y]” only where the evil that would result from the reportage is both great and certain and cannot be mitigated by less intrusive measures. Id., at 562, 96 S.Ct., at 2804.

See also Nebraska Press Assn. v. Stuart, 427 U. S. 539, 559 (1976) ("[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights").

Many courts have drawn a distinction between post-trial orders prohibiting speech that a jury has found to be defamatory and pre-trial orders forbidding speech on which there has been no trial. Narrowly drawn post-trial injunctions may comply with the First Amendment; pre-trial injunctions do not in any but the most extraordinary circumstances.

Judge Neilson's Excuse

So how did Judge Neilson excuse granting Riley's motion for a preliminary injunction before any trial of the matter? Very badly.

Judge Neilson — who may have executed a proposed order from Riley's attorneys3 — utterly failed to cite or distinguish any of the wall of authority discussing how preliminary injunctions are strongly disfavored in both equity and First Amendment law. Judge Neilson didn't cite the "only in the most extraordinary circumstances" rule, let alone apply it. He only cited two Alabama cases — one 1947 case about defamation of a business that had no First Amendment analysis, and one appeal of a criminal harassment conviction that doesn't even mention prior restraint or injunctions. In a footnote, Judge Neilson cited a melange of state and federal cases from California, Ohio, Michigan, and Illinois with no explanation or analysis. Those cases actually undermine his authority to issue the injunction, because they support the proposition that an injunction against defamation is almost always inappropriate before a finding on the merits at trial or if the plaintiff wins a summary judgment motion. 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.

Moreover, the injunction has a key problem that courts have repeatedly identified: it doesn't just prohibit Shuler from saying a list of specified things, but also forbids "any defamatory statement about Petitioners, including, but not limited to" the specified statements. Courts strike down such language because it leaves a defendant like Shuler to guess at what he is or isn't allowed to say. Such vague language chills speech because it requires the injunction's target to risk jail over his belief about what is or isn't defamatory.

I read the injunction trying to find something "extraordinary" or "exceptional" about this case that could justify prior restraint. I failed. Judge Neilson attempts to rely on cases about defamation of trade by saying that Riley is in a high-profile business as an attorney, but does not explain how that is "extraordinary" as required by the Supreme Court. Almost everyone who bothers to sue for defamation is in some sort of business that might be harmed; this is not a limiting principle. Judge Neilson also indulges in a bit of scaremongering, suggesting that the injunction is necessary because Shuler has said the affair led to an abortion:

Some people in Alabama have very strong opinions about the ethics of abortion, and false statements about the Petitioners and abortion could subject Petitioners to ire, a physical altercation, or serious bodily harm.

As Aaron Walker suggests in his blog post about this, that argument is utterly ludicrous. Moreover, Riley and Judge Neilson cite no authority for the proposition that it's an "exceptional circumstance" just because the court can speculate that someone might believe the libel and as a result break the law to attack the victim for allegedly doing something protected by the United States Constitution.4

It's difficult to see what justifies this order — unless it's the fact that Robert J. Riley, Jr. is the son of a former governor and well-connected in the Alabama Republican party. It's very rare for judges to approve pretrial injunctions against defamation in the face of the overwhelming law against it, but when it happens it tends to benefit the rich, connected, and powerful. It's called the rule of law: they rule, that's the law.

There is one other factor that may have influenced the judge: that Roger Shuler is creepy, crazy, and a vexatious litigant. In this case Shuler has engaged in the sort of litigation conduct that would enrage any judge, and that might cloud good judgment. Shuler is one of those litigants who seems to think that if he can successfully evade service of process he'll never have to face the case. So he refuses to answer the door when Sheriff's deputies come to his house to serve papers. Judges don't like that. (Just ask our friend Charles Carreon, who got hit with a $46,000 attorney fee bill in part because he evaded service like Shuler has.) Eventually, the Sheriff served papers on Shuler by running a traffic stop on him for a purported moving violating and serving the papers on him in his car by the side of the road.

Yeah, you read that right. Sheriffs serve legal process on people all the time. It's part of their job. But how often, for how many litigants, do you suppose the Sheriff runs a traffic stop to achieve service?

Two Unpleasant Points Of Law

I'm going to tell you about two points of law right now. You're not going to like them.

First: maybe you're outraged because the Sheriff violated Shuler's Fourth Amendment rights by pulling him over to serve him with legal papers on behalf of the son of the former governor of Alabama. If you want to be outraged, it should be because under current law it's probably not a violation of his Fourth Amendment rights.

You can thank the Great War on Drugs for that. 18 years ago the Supreme Court, in one of its innumerable drug cases, ruled that a cop can run a traffic stop on you on a pretext. That is to say, if cops want to question you, or sniff around your car in hopes of developing probable cause to search it, they can follow you until they think you've broken a traffic law, and stop you for it, even if they would normally never bother with that particular traffic infraction. So: is it outrageous that a deputy would follow Roger Shuler until he (allegedly) broke some traffic law, and then stop him and use that opportunity to serve papers on him? Hell yes. Is it legal? Unfortunately, it probably is.

Second: Roger Shuler may be in serious trouble for violating Judge Neilson's injunction even if it is unconstitutional.

You may be thinking "it's not a crime to violate an unconstitutional order." Regrettably, that's not always the case. Some jurisdictions follow the "collateral bar rule" which provides, in brief, that the remedy for an unconstitutional order is an appeal, and that it's not a defense to a contempt charge to say the order was unconstitutional. Alabama has a shameful role in promoting that rule. In 1963, another Alabama circuit judge issued an injunction against civil rights protestors to prevent them from sit-ins, demonstrations, and protests. Civil rights protestors defied them, and were held in contempt. The United States Supreme Court itself agreed that the injunction appeared problematical, but upheld the Alabama doctrine that the protestors had waived any constitutional challenge to the injunction by violating it instead of making any attempt to challenge it.

Yeah. That's awful, isn't it? And it means that Shuler will have, at a minimum, a very difficult time defending the contempt charge by attacking the constitutionality of the injunction.

So What?

Why should you care that Roger Shuler — a crazy, creepy, vexatious litigant who may well have defamed Mr. Riley out of political spite — has been arrested for defying an injunction?

You should care because the injunction was absurdly unconstitutional, and apparently derived through raw political power. You should care because such abuses will never be confined to those few people we can all agree are creepy, crazy, and vexatious. You should care because every time they are successful such abuses become easier and more common. You should care because each such case is another line in a footnote in the next prior restraint order by the next Judge Neilson urged by the next Riley, prohibiting someone else on pain of jail from speaking. You should care because each such case emboldens and encourages plaintiffs to seek prior restraint against criticism. You should care because in our legal system no man is an island, and each man's censorship diminishes our collective right to speak, because we are all involved in the legal norms that protect freedom.

I hope that Roger Shuler's case will attract attention and some competent counsel. Orders such as Judge Neilson's should not issue without consequence — whether that consequence is reversal or infamy. Mr. Riley should get his day in court, and should — if he can convince a jury that Roger Shuler defamed him — collect appropriate relief. But we should not stand by while he obtains prior restraint that weakens all of our rights.

By the way, though Roger Shuler wraps himself in the First Amendment and bemoans how defamation suits against him are intended to chill speech, he's a fair-weather friend of free speech. When vexatious litigant and unrepentant domestic terrorist Brett Kimberlin abused the legal system to silence his political opponents, Shuler reacts with amusement and applause — because Kimberlin hates the people Shuler hates and mouths the words Shuler wants to hear. But he wants you to be outraged that political opponents are abusing the court system to silence him. In short, Shuler is a hypocritical asshole. That's okay. In addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes. Good thing for most of us, really.5

Postscript

When I started to research this post, I planned to issue a plea to Shuler's political opposites to care about the prior restraint against him. But Aaron Walker has made the point more eloquently than I possibly could by writing a post about some of the problems with the preliminary injunction. Walker is the subject of censorious litigation by Brett Kimberlin, which Roger Shuler has applauded. Yet Walker challenges and questions the preliminary injunction against Shuler, because Walker cares about free speech. That's what support of key American ideals looks like.

Edited to add: Someone has started a legal defense fund for Mr. Shuler. Though I have doubts, based on how Mr. Shuler operates, that he has a factual basis for his accusations, I think that defamation cases should be resolved with both sides represented by competent counsel; one-sided affairs tend to yield results that erode free speech.

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