News coverage continued this week in erratic fashion regarding the Oct. 23 arrest and continued jailing of Alabama political commentator Roger Shuler, a longtime journalist and muckraking blogger.
A few news outlets covered as an important story Shuler's ongoing jailing without bond on contempt of court charges. A few others provided brief reports. Most simply ignored the jailing of a journalist for violating court orders that themselves appear to violate decades of clear-cut constitutional law banning prior restraint of the media from reporting.
My column today summarizes developments and points to a pivotal hearing in the case Nov. 14. At 10 a.m. Central Standard Time, Shuler, fresh from his jail cell, is scheduled to defend the prevailing constitutional structure protecting the media's right to report on public figures -- and the public's right to know.
It currently appears that Shuler, 56, must take on this burden without a lawyer and without access to law books.
This follows his three weeks of jailing because he refused to spike his stories alleging misconduct by a powerful Alabama attorney, Robert Riley, son of two-time GOP governor Bob Riley. Shuler alleged that the younger and married Riley had an affair with a lobbyist, Liberty Duke, who was also married at the time. Both denied the claims and sued Shuler for defamation.
Based on the judge's temporary injunction forbidding Shuler from reporting the story, the hearing for a preliminary injunction banning Shuler's reporting seems likely to extend the injunction. Any precedent could erode, in at least a limited way, constitutional rights in other jurisdictions where powerful forces are inclined to ignore federal and state law.
That is why it is worthwhile to recognize those whose experience and commitment enable them to see the dangers in the process.
Garland Robinette, right, is host of "The Think Tank," the midday show on CBS Radio affiliate WWL AM/FM in New Orleans. He invited me Nov. 12 to discuss the case for two segments. His provocative questions encompassed the Shuler case and its predecessor, the federal prosecution of former Alabama Gov. Don Siegelman on corruption charges. Siegelman is serving a 78-month term largely for urging wealthy businessman Richard Scrushy to donate to the non-profit Alabama Education Foundation in 1999, and then reappointing Scrushy to a state board.
The Shuler and Siegelman cases are oft-told tales on these pages. So I'll focus on the host's more novel questions. Robinette asked me why more professionals in law and journalism do not show greater concerned, if not outrage.
HuffPost Live! interviewer Alyona Minkkovski posed a similar question to me in her video interview of me earlier this month. I provide my answer both below, and in a longer version in major Huffington Post column expected Nov. 13.
Shuler, shown at left, remained jailed and without an attorney. His friends have started a Facebook support page here for news and comment.
The underlying case is a pair of defamation lawsuits brought by Riley, a member of Alabama’s most successful political family, and the lobbyist Duke. The two had an affair several years ago resulting in an abortion, according to several columns Roger Shuler published earlier this year based on confidential sourcing.
Riley and Duke denied the claims in affidavits attached to their suits. Their attorneys obtained a temporary injunction from state Circuit Judge Claud (sic) Neilson ordering the Shulers to remove the columns from the investigative website Legal Schnauzer, which Roger Shuler started in 2007 to describe gross irregularities in the prosecution of Siegelman, governor from 1999 to 2003 and Alabama's leading Democrat at the time.
Riley's father, Republican former Congressman Bob Riley, succeeded Siegelman as governor until retiring as term-limited following two terms from 2003 to 2011.
The younger Riley has become a wealthy attorney, in part from co-chairing a class action against Siegelman's co-defendant Richard Scrushy, resulting in a $700 million fraud settlement.
“It was Shuler,” Siegelman wrote this week in a column sent me from his prison in Louisiana, “who explained why it was so important to Rob Riley to damage my re-election chances, not only for his father to win but also so that Rob Riley could make millions off a conviction of my co-defendant, Richard Scrushy.” Siegelman went on to describe why Shuler's muckraking has been so important in Alabama after the consolidation of political, government and private sector power into fewer hands.
Some Alabama sources suggest that the younger Riley may seek next year to seek a congressional seat being vacated by its Republican incumbent.
Neither Riley nor Duke have so far responded to my requests for comment via their attorneys, or to other requests for comment to the best of my knowledge.
The Shulers say they have no attorney, no funds for one, and scant ability to prepare for Thursday's hearing because Roger remains in jail and Carol too frightened of similar treatment to attend court.
In sum, a classic courtroom confrontation shapes up on Thursday. But outsiders have no way to see it because the courtroom is sealed. Closing a courtroom would seem to violate Alabama Supreme Court law and other American traditions, according to research by the Reporters Committee for Freedom of the Press provided me in another recent case involving a sealed courtroom for the divorce action of U.S. District Judge Mark Fuller, trial judge for Siegelman.
United States law has long forbidden in nearly all circumstances “prior restraint” of reporting even if allegedly libelous, according to Supreme Court rulings.
“We have the law on our side,” Shuler’s wife Carol, right, told me in an interview this week. “But these kinds of people have absolute power, and think they can do whatever they want.”
The dramatic First Amendment battle has legal and political roots in the same region of central Alabama as the historic civil rights struggle a half century ago.
Just as the Rev. Martin Luther King Jr., his colleagues and the national press defied libel and contempt of court proceedings, Shuler and his wife are proceeding on what they claim is a higher moral right and duty to inform the public of massive corruption in Alabama's political and legal community.
And, like the early days of the civil rights protesters in the 1950s, the two are paying a steep price with little national attention.
The Riley and Duke filings are under seal but available at least in part via hot links on my Oct. 25 column herehe helping break the story, along with columnist Wayne Madsen and broadcaster Peter B. Collins. The filings state that Shuler’s claims are false and merit an injunction because he is unlikely to prevail at trial and, in the meantime, is inflicting irreparable harm on the plaintiffs.
The argument persuaded the judge to issue a temporary injunction against the Shulers. Plaintiffs seek a permanent injunction at the 10 a.m. hearing Nov. 14.
Yet even conservative opponents of the Shulers say that the court’s treatment seems illegal. Al.com Editorial Director Mike Marshall, who works for the state’s major consortium of newspapers, published a column Nov. 8 vilifying Roger Shuler as a an offensive “nut.” Nonetheless, the column’s headline was, "We must dare to defend Roger Shuler's rights, too." Similarly, several extreme right-wing blogs that harshly attack Shuler have asserted he is being treated unfairly under existing law.For years, Shuler has alleged misconduct by many Alabama judges and attorneys (including some Democrats) on the Legal Schnauzer blog and other prominent sites.
Shuler, despite the modest readership of any blogger compared to the mainstream, is a particularly striking voice in Alabama because three major newspapers have reduced staff and their print runs to just three-times-per-week because of financial pressures.
Shuler and his wife have both been jobless for years after claiming firing from their because of their political views. Their difficulties are often scorned in a state whose white majority is heavily Republican.
Even Democratic lawyers shy away from Shuler for the most part because of his criticism of the profession, the political climate of potential reprisal, and his own record of disagreeing with several of his previous lawyers in legal disputes.
The Alabama American Civil Liberties Union has filed two “friend of the court” briefs advocating for him, here. This does not constitute representation for Thursday’s court date, according to Carol Shuler.
The Reporters Committee for Freedom of the Press also wrote a letter to the court and a news brief for its website. Several other journalism or legal groups are in the process of writing news briefs about the case.
As a member of a half dozen national journalism groups, I have urged most to get much more involved. The most substantive reply so far was an email from a volunteer leader of one well-known group that it “has bigger fish to fry.”
HuffPost Live! host Alyona Minkovski asked me Nov. 1 why more national groups have not stepped up to help in such a struggle. I explained that many organizations in both journalism and law fear getting involved in what can be decried as a political fray. Other groups claim lack of budget, or simply express disbelief that such situations could ever occur in American courts.Carol Shuler, who said she had not been active in publishing on the Legal Schnauzer site before her husband's arrest, published a column this week on the issue. Her husband is shown at right in a Shelby County jail mug shot after what she and he have described as a beating and MACE attack during arrest.
WWL's host is a Vietnam veteran who rose from being a janitor at WWL to being a television and radio anchor. He describes his career as being blessed "with an angel on my shoulder," and takes professional risks in showing unusual concern for ordinary listeners.
Related News Coverage
Update: Columbia Journalism Review, The 2nd-worst year for jailed journalists, CPJ’s annual census of imprisoned journalists makes sober reading, Edirin Oputu, Dec. 18, 2013. Two hundred and eleven journalists are in jail around the world, the second-worst year on record since the Committee to Protect Journalists began its annual census in 1990. This year marks a slight improvement on 2012’s record high of 232, but the figures—which cover all reporters imprisoned as of December—still make depressing reading. The report was released December 18. Turkey was the world’s leading jailer of journalists for the second year running, closely followed by Iran and China. Altogether, the three countries accounted for more than half of all reporters behind bars in 2013. The number of journalists in Turkish prisons fell from 49 to 40 this year: Some were freed pending trial, while others—defendants in pre-trial detentions—were released for time served. Dozens of Kurdish reporters were detained on terror-related charges; other journalists were imprisoned for allegedly supporting anti-government groups. Turkey’s anti-terror and penal laws allow its government to conflate covering banned groups with becoming active members of them, according to the CPJ. Only one journalist is behind bars in the Americas: Independent blogger Roger Shuler is in jail in Alabama, held in contempt of court for refusing to remove information from his blog that a judge had ruled defamatory.
WWL AM/FM, Freedom of the Press, Garland Robinette, Nov. 12, 2013. Garland talks with Andrew Kreig, executive director of the Justice Integrity Project.
Legal Schnauzer, Media Coverage of Legal Schnauzer First Amendment Case Gains Traction with HuffPost Live! Interview, Carol Shuler, Nov. 12, 2013. The media coverage of Roger Shuler's beating and unlawful arrest on Oct. 23 gained some major traction recently with an insightful video interview with Alyona Minkovski, right, of HuffPost Live! The host of the daily Freedom Watch Zone broadcast of The Huffington Post interviewed me and Andrew Kreig of the Justice Integrity Project of Washington, D.C.
Legal Schnauzer, Bizarre Nov. 14 Hearing on "Permanent Injunctions" in Legal Schnauzer First Amendment Case, Carol Shuler, Nov. 15, 2013. Here is a brief update regarding the Nov. 14 hearing on "permanent injunctions." As expected, it was indeed a kangaroo court. The officials at the Shelby County Courthouse in Columbiana, Alabama, turned away large numbers of concerned citizens claiming the mysterious and nefarious proceedings were closed to the public. This was done in an effort to hold the court's actions away from the glaring and disapproving spotlight of public opinion. However, several people did manage to gain access to the courtroom. We have talked to them at length regarding the bizarre proceedings and will report more in coming days as further information comes to light. Although I was not present at this hearing, conversations with Roger Shuler and others reveal a number of very alarming and mystifying key points.
Legal Schnauzer, First Amendment Case Featured in a Special Report on CBS Channel 42 News, Carol Shuler, Nov. 14, 2013. CBS Channel 42 News, a local television news station serving the Birmingham Metro area, highlighted the Legal Schnauzer first amendment case in a special report featured during their 6 p.m. broadcast Nov. 12. The video segment was more than 4 minutes in length and is currently posted on the news station's website entitled "Jailed Blogger in Court" by Mike McClanahan. The link to the Channel 42 News special report is shown below:
WIAT-TV (Birmingham CBS affiliate on Channel 42), Jailed Blogger in Court, Mike McClanahan, Nov. 12, 2013.Tuesday morning Roger Shuler appeared in Shelby County District Court to answer a charge of resisting arresting. During his court appearance, Judge Ronald Jackson asked if Shuler had an attorney. Shuler replied no. The judge then asked if Shuler wanted the court to appoint an attorney for him. Shuler again replied no. After the hearing he was taken back to the Shelby County Jail where he’s been held since his arrest on Oct. 23th, almost three weeks ago. Documents relating to defamation claims, an injunction and TRO, and motion/order to file all case documents under seal are posted on the site, but not accessible through public court record databases. An attorney with Riley's firm, Jay Murrill, says Shuler did not show up for any hearings on the matter and says a judge concluded that the statements on Shuler's website were false and ordered him to take them down.
Wayne Madsen Report, The Kafka courts of Alabama, Nov. 14, 2013 (Subscription required.) Journalism is now a crime punishable by indefinite jailing in Alabama. Secret courts and trials, star chambers, and illegal detention may be the stuff of a Franz Kafka trial but in Alabama the court proceedings against an investigative journalist have reached and surpassed Kafkaesque dimensions.
Popehat, Update On Prior Restraint of Alabama Blogger Roger Shuler, Ken White, Nov. 13, 2013. A couple of weeks ago I wrote about Roger Shuler, an Alabama blogger. There are two significant developments in the case: one good, one bad. The Good: Mrs. Shuler reports that the ACLU has sought leave to file an amicus brief questioning the preliminary injunction, and has submitted a proposed brief. The ACLU's point is a good one: the fact that Shuler is saying nasty and potentially defamatory things is not an "extraordinary circumstance" justifying the Alabama court's decision to disregard the imposing wall of precedent against prior restraint. It's not an extraordinary circumstance, in part, because the marketplace of ideas provides pre-trial remedies in the form of response speech.
Justice Integrity Project, Exclusive: Imprisoned Former Alabama Gov. Siegelman Backs Jailed Blogger, Denounces Corruption, Andrew Kreig, Nov. 8, 2013. Former Alabama Gov. Don Siegelman (1999-2003), left, now imprisoned in Louisiana, sent the Justice Integrity Project this guest column that opposes the jailing of Alabama reporter/blogger Roger Shuler.
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.An erratic pattern of media coverage continued early this week of the appalling Oct. 23 arrest and jailing of Alabama reporter-blogger Roger Shuler on contempt of court charges.
Catching Our Attention on other Justice, Media & Integrity Issues
Huffington Post, Life In Prison For A Grain Of Cocaine: The Rise Of Extreme Sentences, Saki Knafo and Ryan Reilly, Nov. 12, 2013. These 32 People Are Spending Their Lives In Prison For Nonviolent Crimes.
Wayne Madsen Report, NSA routinely intercepted Jimmy Carter's and Hillary Clinton's phone calls, Wayne Madsen, November 4, 2013 (Subscription required. Excerpted by permission.) Exclusive: The National Security Agency intercepted so many of the phone calls and other communications of former President Jimmy Carter and then-First Lady Hillary Rodham Clinton, special internal procedures were established within NSA to handle the intercepts. According to declassified formerly "CONFIDENTIAL HANDLE VIA COMINT CHANNELS ONLY" memos issued by the NSA General Counsel's office, Clinton was to be treated as any other U.S. government employee owing to her being the Chairperson of the President's Task Force on National Health Care Reform. An NSA memo dated December 15, 1994 states that intercepts of President Carter's phone calls pertaining to his efforts to bring about a peace agreement with Bosnian Serb President Radovan Karadzic were to identify Carter as a "U.S. person" and not as a "former President." Transcripts of Carter's calls were only to refer to him as a "former U.S. President" if his status changed from private peace envoy to official U.S. government representative.
Huffington Post, Patrick Leahy Slams GOP For Blocking Another Nominee, Demands Filibuster Reform, Jennifer Bendery, Nov. 12, 2013. Sen. Patrick Leahy (D-Vt.) on Tuesday tore into Republicans for filibustering another one of President Barack Obama's judicial picks, and warned that Democrats are dangerously close to changing Senate rules to strip the minority of the power to block certain nominees. "If the Republican caucus continues to abuse the filibuster rule and obstruct the president's fine nominees to the D.C. Circuit, then I believe ... a rules change should be in order," Leahy said on the Senate floor, just before Republicans blocked Nina Pillard's confirmation to the D.C. Circuit Court of Appeals. "That is not a change that I've wanted to see happen," he continued. "But if Republican senators are going to hold nominees hostage without consideration of a nominee's individual merits, drastic measures may be warranted."
TruthDig.com, The Revolutionaries in Our Midst, Chris Hedges, Nov. 11, 2013. Jeremy Hammond, right, sat in New York’s Metropolitan Correctional Center last week in a small room reserved for visits from attorneys. He spoke with the intensity and clarity one would expect from one of the nation’s most important political prisoners. On Friday the 28-year-old activist will appear for sentencing in the Southern District Court of New York in Manhattan. After having made a plea agreement, he faces the possibility of a 10-year sentence for hacking into the Texas-based private security firm Strategic Forecasting Inc., or Stratfor, which does work for the Homeland Security Department, the Marine Corps, the Defense Intelligence Agency and numerous corporations including Dow Chemical and Raytheon. Hammond turned the pilfered information over to the website WikiLeaks and Rolling Stone and other publications. The 3 million email exchanges, once made public, exposed the private security firm’s infiltration, monitoring and surveillance of protesters and dissidents, especially in the Occupy movement, on behalf of corporations and the national security state. And, perhaps most important, the information provided chilling evidence that anti-terrorism laws are being routinely used by the federal government to criminalize nonviolent, democratic dissent and falsely link dissidents to international terrorist organizations. Hammond sought no financial gain. He got none.