News Update: Alabama commentator Roger Shuler was released from five months in jail March 26 after removing from his website allegations that a prominent Alabama attorney had had an affair with a lobbyist.
Shuler had been held since Oct. 23 on a contempt of court charge stemming from libel actions brought under seal last summer by Birmingham attorney Robert Riley and lobbyist Liberty Duke.
Shuler's condition had sharply worsened during his nearly five months of jailing, as I learned by visiting him in Birmingham March 10.
"It's a horrible trauma to be away from your wife, your home -- and have no idea when you can get out or how," Shuler told me in a rare interview from a visitor's cell.
Shuler, 57, nearly choked up at the end of our interview when he said that he feared jail violence, and did not want to die from it. He is shown in his most recent photo, his mug shot the night of his beating by a Shelby County deputy last October.
The corruption-fighting reporter said he has lost 16 pounds during his jailing without bond since Oct. 23 on two contempt of court charges. The charges stemmed from his investigative reports alleging a sex scandal involving the Riley and lobbyist Duke.
In a secret lawsuit last summer, Riley and Duke denied Shuler’s reports, which were published on the Legal Schnauzer site Shuler founded in 2007 to expose corrupt practices in Deep South courts and politics. Riley, Duke and their attorneys have not responded to my requests for further comment.
My visit occurred the day after the 50th anniversary of the nation's most famous free press case, New York Times versus Sullivan, which Shuler’s judge appears to be violating by holding the reporter indefinitely for failing to spike his stories before trial of the Riley and Duke suit.
Today's column -- originally entitled "Jailed Journalist's 'Letter from Birmingham Jail' -- shows how Shuler's treatment violates fundamental press freedom and due process law arising in significant part from the 1960s civil rights struggle in Alabama and across the Deep South.
Yet the nation's journalism establishment -- especially those leading media organizations and teaching at universities -- has done little to help Shuler either to win freedom or otherwise preserve the civil rights precedents being violated in his case.
With a few exceptions, most of these entities focus their energies on awards, First Amendment rhetoric, kow-towing to celebrities in government and the media, encouraging young people to join a falsely glamorized "profession" -- and ignoring dark scandals arising here and now.
As a dues-paying member of several of the nation's leading journalism societies and clubs, I have repeatedly written leaders without success to encourage news articles, panel discussions or letters of protest regarding the Shuler case. For the most part, leaders ignore my letters, or else plead lack of sufficient interest in the rest of their membership or funding even to add their name to a letter of protest to an Alabama court.
To break the cycle, I traveled last week to visit Shuler. Shuler's wife Carol could only guess at his location. I went March 6 to the Jefferson County jail serving Birmingham. The front desk officer erroneously told me Shuler was not there, illustrating what I understand to be an all-too-frequent problem for those seeking to visit prisoners across the nation, especially in political cases in Alabama where authorities have a track record of intentionally keeping prisoners away from family and the media.
Five days later on March 10, I was able to visit Shuler by confirming independently that he had been, in fact, at the Jefferson County jailhouse. Authorities admitted me only because I am an attorney and he does not have counsel. Other visitors can enter only one day per week.
This column is entitled "Letter from the Birmingham Jail" to recall the Rev. Martin Luther King's 1963 non-violent civil resistance as authorities held him in a predecessor facility in Birmingham. Denied writing materials, King wrote much of his call for everyone to fight injustice on the margins of a newspaper and other paper scraps. In somewhat similar fashion, I am a messenger delivering Shuler's words to you now via rough notes from the jailhouse, where Shuler is being held and silenced.
These notes add up to a shocking picture.
"I was surprised,” as Alabama’s ACLU Director Randall Marshall told me two weeks ago, “that there wasn't more of an outcry from the media world when this first happened." The ACLU filed a friend of the court brief, but is not representing Shuler.
What's At Stake
"I see this more as a kidnapping than a defamation case," Shuler told me from a visiting room in the jail. He said the younger Riley, co-plaintiff against Shuler in the libel suit, also represents as counsel the county's jail system.
Such a relationship would illustrate the concentration of power that the well-connected Riley family has wielded with such allies as Karl Rove over Alabama's legal system. Their track record includes the notorious prosecution of former Alabama Gov. Don Siegelman (1999-2003).
Siegelman, imprisoned in Louisiana and shown in a file photo, is scheduled to serve more than four years remaining from his trumped-up federal prosecution on corruption charges stemming from 1999 conduct.
Shuler has written hundreds of Legal Schnauzer columns documenting legal misconduct in Siegelman's state and federal prosecution, which enabled the Riley family to win and retain power without competition from Siegelman, the state's leading Democrat.
Regarding Shuler's own case, he cited to me this week major violations of precedent and procedure, such as prior restraint, secret courts, jailing without bond, and lack of an arrest warrant.
He said he did not even know why he was being held in the Jefferson County facility after being held in nearby Shelby County nearly all of the four previous months. He was able to inform his wife of his locale only because a fellow prisoner released last weekend kindly contacted her. "I've been treated fairly well by fellow prisoners," he told me. "But some of them come in hyped up on drugs, and I've barely escaped some vicious fights, typically over some little thing like who gets to use a phone for a 15-minute call. Anybody can get killed, and I saw it happen."
I have previously written about Shuler's arrest in such columns as Alabama Court Again Hammers Blogger As NY Times Flubs Libel Story.
Most in the national media have abandoned him and such precedents as Sullivan that protect the public. For the most part, the nation's journalistic establishment has ignored or trivialized the plight of Shuler, a corruption-fighting writer of great bravery.
Meanwhile, journalism organizations pursue their self-congratulatory awards ceremonies, "training" conferences and high-minded rhetoric about the nation's free press and First Amendment freedoms.
The National Press Club, for example, has scheduled in cooperation with government officials a number of Sunshine Week and Freedom of Information events over the next month. But it has not bestirred itself to write even a simple letter protesting Shuler's treatment despite many requests. Similarly, the Society of Professional Journalists has done nothing despite at least ten requests by me alone to various officials nationally, in Alabama, or in my Washington, DC region. Even the Online News Association, founded to advance blogging and other online news, pleads poverty and other priorities.
To recap the Shuler case background:
Shuler and his wife, Carol, have virtually no funds. Roger Shuler said his wife has lost 30 pounds from stress as she hides in their home in fear of being arrested on a pending contempt order, which Roger Shuler says is unjustified because she had nothing to do with his reporting before his arrest.
Riley, a wealthy wheeler-dealer who recently shared in the legal fees from helping lead a $500 million settlement of a fraud case against businessman Richard Scrushy, is the son of two-term GOP governor Bob Riley (2003-2011). Last year, the younger Riley was reputed to be a likely candidate for the Birmingham region’s congressional seat before Shuler’s columns claiming Riley had had an affair with Duke resulting in an abortion and dissolution of her marriage.
As further background, Dana Jill Simpson, a former Republican lawyer and political opposition researcher, gave sworn testimony in 2007 to Congressional staff that the younger Riley was involved in a plot with Karl Rove and other Republicans to remove Siegelman from politics by framing him on criminal charges. My five years of investigative reports have confirmed her analysis despite the denials of Riley, Rove and other players.
There is no record of an aggressive investigation by either the Bush or Obama justice department, only whitewashes. Further details are available by searches on this site, which contain links to dozens of other news reports and court filings. The overall portrait of corruption is portrayed in my recent book, Presidential Puppetry: Obama, Romney and Their Masters.A Strange Development
Also, he declined my offer to leave him several pieces of paper and pen so that he could try write legal papers seeking his release or appeal major procedural decisions that are clearly in violation of settled law.
"I know the guards would take the paper and pen as soon as you left," he told me. "I would love to have paper and pen, and be able to make filings to get out of here. But it's no use. You have to get materials like that from the jail commissary."
He has several judges arrayed against him.
But his chief tormenter, Claud Neilson is not even a real judge elected to serve in the jurisdiction by standard procedures.
Neilson, shown in a file photo, is an attorney who represents plaintiffs against the state's leading civil rights law firm, Sanders and Sanders, in a politically charged multi-million suit. Details are here: Selma's once thriving Chestnut, Sanders and Sanders law firm much smaller and splintered.
Alabama Chief Justice Roy Moore, who notoriously ignored the U.S. Supreme Court's establishment of religion holdings in the so-called "Ten Commandments Case" a decade ago, brought Neilson out of retirement in mysterious circumstances last summer. Moore named Neilson to serve as a part-time state judge to handle the Shuler case, whose docket and courtroom were kept secret during its main procedures.
The beating and jailing of Shuler last October had the effect of silencing a major regional pro-consumer voice in Alabama and the Deep South, especially after financially strapped mainstream news organizations cut back on their coverage of such government functions as courts, law and police. Birmingham's daily newspaper (one of whose predecessors employed Shuler as a reporter for nine years) is published in print just three days per week to save money, for example.
Even those who do not care about Shuler, his reporting, and the subjects of his commentaries might care about the national civil rights precedents being undermined with scant protest by his treatment. Those Constitutional protections were created by the founders and solidified by the courts to protect the public, not just reporters.
In 1813, for example, the Supreme Court voided by a 5-4 vote in U.S. v. Hudson and Goodwin the criminal convictions for seditious libel against the publishers of the Hartford Courant for their 1806 criticism of then-President Thomas Jefferson. In arguably the first free press case before the high court, the justices ruled that criminal convictions in the new nation must be on the basis of written law, not simply "common law" or other such informal tests.
The Courant was my first employer when I began my journalism career in 1970 with 14 years there.
Later, my study of the Hudson and Goodwin libel prosecution provided a historical backdrop for my first book, Spiked: How Chain Management Corrupted America's Oldest Newspaper. That case study in 1987 documented suppressed or inflated news stories, including highly deceptive prize applications that showed how complacent if not unethical journalists strived for career-enhancing but unmerited honors instead of honest reporting within their communities.
In 1931, the U.S. Supreme Court took another major step on behalf of vigorous reporting in its Near v. Minnesota ruling, which forbade courts from ordering "prior restraint" of news articles and speeches of all kinds before a finding of liability even if the publisher and the allegation each might offend local sensibilities.
Perhaps most importantly of all these cases, the U.S. Supreme Court in 1964 overturned by a 9-0 vote a $500,000 libel judgment Alabama authorities had won against civil rights leaders and the New York Times.
The Sullivan verdict against Montgomery Public Safety Commissioner L.B. Sullivan also overturned nearly $300 million in similar libel verdicts in the Deep South against the media. The ruling created a special "absolute malice" standard for reporting about obvious public figures such as Sullivan, Robert Riley and Luther Strange (and arguably the female plaintiffs as well).
This safe harbor for reporters -- and indeed all citizens -- to discuss public affairs whether in print or in speech thereby enabled vigorous national news coverage of the civil rights movement and all other public figures and issues since then. As a reminder, defendants in that case were not simply the New York Times, as anyone in journalism knows, but also citizens who had used the Times to portray the pro-segregation track record of Sullivan and other local officials.
Theoretically, that Supreme Court holding protects everyone -- except Shuler, apparently.
His judges have never applied the Sullivan standard to my knowledge, although it is impossible for outside observers to tell since the most relevant parts of his ordeal occurred in a sealed courtroom with a sealed docket. Court deputies barred from attending his key November hearing before Neilson any observers, except the judge's brother, who wanted to meet the wealthy wheeler-dealer plaintiff Riley, as I reported previously.
There are other legal principles besides Sullivan and Near being violated in the Shuler case, including the basic provisions of due process that include open dockets and open courtrooms -- and, for lack of a better word, basic fairness. I have reported previously on these irregularities, which are too numerous to summarize here again.
In closing, I return to the Sullivan case.
Not only is it arguably the most relevant precedent being ignored. Also, this is now the anniversary year of our most famous press freedom case, one that arose from the darkest days of the civil rights struggle in Alabama. It is now being ignored not simply by a new generation of law enforcement oppressors in Alabama but also nationwide by relatively comfortable professors and other professionals within the journalistic establishment who find every excuse, it seems, to avoid to taking a stand on the tough issues within the justice system.
There is snobbery at work here. Many will rally to the defense of a New York Times reporter, even a Judith Miller who sought to protect high-level government policymakers from accountability.
Shuler is one a-person operation with little if anything to offer his supporters. But many today forget -- or never focused on the fact -- that Thomas Paine was a mere one-man "blogger" by today's standards, even when his pamphlet Common Sense sold two million copies in the American colonies.
Even Barzillai Hudson and George Goodwin, publishers of America's largest newspaper during the Revolutionary War, were sentenced to prison for having the temerity to criticize President Jefferson, otherwise famous as an advocate of the free press.
Not everyone can have the eloquence or important issues of Martin Luther King (shown at right), Thomas Paine, or even Hudson and Goodwin -- who also helped create a uniquely American language by publishing former Courant reporter Noah Webster's dictionary and speller.
Last week, however, I gained a first-hand sense of passion of the ongoing civil rights struggle from the ministers and other passionate advocates of civil rights whom I encountered during my five days in Selma on my Alabama trip commemorating the Bloody Sunday march of 1965 and recent injustices.
Much on the minds of protesters was the Supreme Court's 5-4 cutback last June on Deep South voting rights in Shelby County v. U.S. and the continued imprisonment of Siegelman, which the Supreme Court confirmed by rejecting a petition unprecedented in American history by 113 former state attorneys general who said Siegelman's 1999 conduct in appointing a donor to a state board violated no law.
Yet every injustice worth fighting does not need to be of historic scale. Looked at in another way, eloquent speakers do not exist simply for our entertainment, but also for inspiration on everyday issues within our control.
In that spirit, I am asking every reader who made it this far into this column and who is also a member of journalism organization to demand to know that organization's position and action plan on the Shuler case.
This is not to say Shuler is correct in his findings or that he should not be punished if proven wrong.
That's in the future after due process.
For now, his rights have been stolen. So have each of our rights and those of our descendants. Once upon a time, people fought for those rights. Let's do so again today.
Related News Coverage
Atlantic, Today Is the 50th Anniversary of the (Re-)Birth of the First Amendment, Andrew Cohen, March 9, 2014. On March 9, 1964, a unanimous Supreme Court reversed a libel verdict against the New York Times in a case brought by Alabama officials who complained about a civil rights advertisement in the paper. The First Amendment, thankfully, hasn't been the same since.
Atlantic, Martin Luther King's 'Letter From Birmingham Jail,' The Editors, April 16, 2013. Fifty years ago today, Martin Luther King wrote this landmark missive. It was republished several months later in The Atlantic.
Wikipedia, The Letter from Birmingham Jail (also known as "Letter from Birmingham City Jail" and "The Negro Is Your Brother"). This is is an open letter written on April 16, 1963, by Martin Luther King, Jr. The letter defends the strategy of nonviolent resistance to racism, arguing that people have a moral responsibility to break unjust laws. After an early setback, it enjoyed widespread publication and became a key text for the American civil rights movement of the early 1960s. King met with unusually harsh conditions in the Birmingham jail. An ally smuggled in a newspaper from April 12, which contained "A Call for Unity": a statement made by eight white Alabama clergymen against King and his methods. The letter provoked King and he began to write a response on the newspaper itself. King writes in Why We Can't Wait: “Begun on the margins of the newspaper in which the statement appeared while I was in jail, the letter was continued on scraps of writing paper supplied by a friendly black trusty, and concluded on a pad my attorneys were eventually permitted to leave me.”
Legal Schnauzer, Publisher Roger Shuler Will Appear at Jefferson County Hearing on Wednesday, March 5, Roger Shuler, March 3, 2014. Legal Schnauzer publisher Roger Shuler will appear at a hearing at 9 a.m. on Wednesday, March 5 at the Jefferson County Courthouse. The hearing, before Judge Don Blankenship, is in a lawsuit filed by Republican political figure Jessica Medeiros Garrison. The hearing reportedly will involve an attempted default judgment that Garrison is seeking. Shuler is unlawfully incarcerated in the Shelby County Jail because of a lawsuit filed by Rob Riley, one of Garrison's Republican political allies. Garrison is the former campaign manager for Alabama Attorney General Luther Strange.
Al.com, Judge 'conditionally' rules Luther Strange won't be forced to testify at Lowell Barron trial, Paul Gattis, March 12, 2014. A judge today conditionally denied a subpoena request by former state Sen. Lowell Barron to force state Attorney General Luther Strange to testify at Barron's trial next month. Barron's attorney, Joe Espy, said in court last week that Barron was seeking Strange's testimony about how campaign funds are frequently used. Espy also filed almost 200 pages of Strange's campaign documents outlining money given to a former campaign aide. Barron and Rhonda Jill Johnson, a former campaign worker, have been indicted on six counts of violating the state's campaign and ethics laws. They are scheduled to go to trial on April 14.
Justice Integrity Project, Alabama Court Again Hammers Blogger As NY Times Flubs Libel Story, Andrew Kreig, Jan. 17, 2014. An Alabama judge imposed a 90-day sentence this week on corruption-fighting Alabama blogger Roger Shuler, who is jailed indefinitely in a libel case brought by a prominent attorney. Meanwhile, a New York Times reporter tried so hard to be balanced that he underplayed the damage to the public from the court system's outrageous confiscation of Shuler's rights.
Al.com, We must dare to defend Roger Shuler's rights, too, Mike Marshall, Nov. 8, 2013. Mike Marshall is director of statewide commentary the Alabama Media Group. Roger Shuler might be a wingnut conspiracy theorist and a crackpot. He might unfairly besmirch conservative Alabama politicians with little or no evidence to back up outlandish accusations. But he is certainly an American. As such, he certainly has a constitutional right to free speech, and that right certainly has been trampled by a judge in an Alabama circuit court.
Justice Integrity Project, Alabama Kangaroo Court Parades Liberal Commentator in Chains, Continues Indefinite Jailing, Andrew Kreig, Nov. 15, 2013. Alabama authorities paraded a shackled liberal pundit into court, where he was denounced Nov. 14 for recent news coverage about his jailing. The defendant was Roger Shuler, a 56-year-old commentator jailed on contempt of court charges Oct. 23 for publishing columns about a politically powerful GOP attorney.
Justice Integrity Project, Corruption-Fighting Reporter Arrested, Beaten, Jailed In Alabama As Deputies Seek Wife's Arrest, Andrew Kreig, Oct. 25, 2013. The prominent investigative blogger Roger Shuler was arrested and beaten by Shelby County sheriff's deputies at his Alabama garage upon returning home Oct. 23. Shuler faces a resisting arrest charge stemming from his refusal to obey a judge's order to stop writing adversely about Robert Riley Jr., a well-connected attorney who is part of Alabama's most prominent political family.
Legal Schnauzer, Rob Riley Had An Affair With Lobbyist Liberty Duke, Leading to Pregnancy And Payments For Abortion, July 2, 2013. A prominent Alabama Republican had an extramarital affair with a lobbyist that led to a pregnancy and payments for the woman to have an abortion. Homewood attorney Rob Riley, the son of former GOP governor Bob Riley had an affair with Liberty Duke, a lobbyist based in Clanton, Alabama. When Ms. Duke became pregnant, Republican insiders paid her to have an abortion and stay quiet on the subject, multiple sources tell Legal Schnauzer. Total payments reportedly were in the $250,000 to $300,000 range. Who was involved in the payment of hush money to cover up Rob Riley's transgressions? Our sources are not certain about the financial flow chart, but it appears the funds came from Alabama GOP sources rather than coming directly from Riley. This raises a number of prickly ethical questions for a party that has consistently framed itself as "pro life" and "pro family" and against abortion rights. Liberty Duke did not respond to a voice message seeking comment. In a series of telephone interviews with Legal Schnauzer, Riley admitted knowing Liberty Duke, but denied having an affair with her. During our conversations, Riley angrily hung up on me multiple times.
Associated Press via Al.com, Selma's once thriving Chestnut, Sanders and Sanders law firm much smaller and splintered, Phillip Rawls, Dec. 15, 2013. Hank Sanders is the only remaining partner in the firm that was once one of the most prominent African American law firms in the South. One of the South's prominent African-American law firms has disintegrated in a fight over money after helping black farmers nationwide win $1.2 billion in a discrimination case. The Chestnut, Sanders and Sanders law firm in Selma once had nearly 40 employees and handled high-profile cases ranging from defending capital murder defendants to pursuing civil rights complaints. In recent years, it has shrunk dramatically and struggled with financial problems.
Wikipedia, Shelby County v. Holder, 570 U.S. ___ (2013), is a landmark United States Supreme Court case regarding the constitutionality of two provisions of the Voting Rights Act of 1965: Section 5, which requires certain states and local governments to obtain federal preclearance before implementing any changes to their voting laws or practices; and Section 4(b), which contains the coverage formula that determines which jurisdictions are subjected to preclearance based on their histories of discrimination in voting. On June 25, 2013, the Court ruled by a 5-to-4 vote that Section 4(b) is unconstitutional because the coverage formula is based on data over 40 years old.
Catching Our Attention on other Justice, Media & Integrity Issues
Al.com via USA Today, Thousands march in remembrance of 'Bloody Sunday,' Alvin Benn, Montgomery (Ala.) Advertiser, March 9, 2014. h Thousands of activists walked across the historic Edmund Pettus Bridge on Sunday to retrace the steps of peaceful protesters who were beaten, gassed and run over by horses by Alabama authorities in 1965. The annual commemoration drew what could have been the largest attendance since the event began two decades ago. Local law enforcement officials are already planning for the 50th anniversary next March — something expected to be much larger.