March 9 marks the 50th anniversary of the Supreme Court’s historic New York Times v. Sullivan ruling that protected journalists and Alabama civil rights protesters. One of the nation’s most important libel rulings created a tough requirement for public figures to prove liability.
But that precedent has not protected jailed Alabama journalist Roger Shuler during his five months behind bars in Shelby County.
After Shuler alleged an affair last year between the regionally prominent lawyer Robert Riley and lobbyist Liberty Duke they filed a libel suit kept under seal.
County deputies tried with disputed success to serve him with papers. Shuler was then arrested and beaten at his garage Oct. 23. He has been held since then without bond for failure to follow a secret pretrial order from a judge to spike his columns alleging the affair. Shelby County is shown in red on a map.
Its courthouse looks pleasant enough in a file photo. Inside can be another story.
During a hastily convened trial of the libel issues in November, authorities brought Shuler from jail to defend his reporting. Shackled in chains from waist to ankles throughout the proceeding, Shuler had no defense lawyer, jury, witnesses or time to prepare his case.
Court security barred all observers except for one friend Shuler's permitted entrance because guards mistakenly assumed him to be the judge’s brother. The judge’s brother came in through a private rear door, according to Shuler, to chat before the proceeding with Riley, the wheeler-dealer son of a two-term GOP former governor Bob Riley (2003-2011). At the time, the younger Riley was reputedly candidate for a congressional seat in 2014 but he failed to file last month for the GOP primary.
Separately, Shuler was convicted of resisting arrest in a bench trial without a lawyer. Shuler protested without success that his arrest had been illegal because authorities have never shown him a warrant despite repeated requests, including in court.
With scattered exceptions, the nation’s major news outlets, associations and journalism professors have responded with near-silence even as additional problems pile up for the jailed Shuler.
Shuler faces a hearing March 5 in a libel suit brought by Alabama Attorney General Luther Strange (shown in his official photo) and his former campaign manager, Republican Attorneys General Association Director Jessica Medeiros Garrison. Shuler has alleged they had an affair. They have denied the claim.
So, the facts are disputed regarding Shuler’s claims of affairs by the four married plaintiffs.
But the Sullivan precedent sets a high bar for public figures in libel cases. Plaintiffs must prove that a reporter knew the facts were false or distributed them with “reckless disregard” of the truth. Such "reckless disregard" proof normally requires a full trial, especially if a reporter has sought comment pre-publication from the news subjects.
Among other long-established precedents seemingly being flouted the first case, at least, involve the court-ordered “prior restraint” before trial. Questions arise also regarding the sealed docket and courtroom, the absence of a full trial, and the suspect's violent arrest and jailing for an unlimited period on a contempt charge.
"I was surprised,” Alabama’s ACLU Director Randall Marshall told me, “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.
I have learned not to be surprised after my requests as a member to four of the nation’s major journalism organizations that they protest Shuler’s treatment. He is shown in a photo taken before his jailing last year.
Last fall, I recommended to the groups a letter protest, a news report to members, a friend-of-the-court legal brief, and/or treatment of the case as part of a regional or national panel discussion on increasing setbacks for First Amendment freedoms.
Five months later, none of these organizations have made any effort to protest or educate their members to my knowledge, although one said it is planning a protest statement later this month. Those few officials bothering to respond cited other priorities as well as lack of staff and funding.Several broadcast, newspaper and blog treatments also have covered the case. But the response falls far short of what would impress court officials inclined to thwart settled Constitutional law on press freedom and due process.
Adding to the complexities, Shuler has alleged that the sex scandals are linked to political and financial scandals. He published his allegations on Legal Schnauzer, a blog about injustices in the Deep South that has become nationally well-known in progressive circles since he began daily (on weekdays) muckraking reports in 2007 in documenting abusive practices in the courts and politics.
In some respects, Shuler is a court of last resort for litigants (including himself in several pro se matters) victimized by what he alleges and documents as unfair tactics.
A major, ongoing crusade has been his documentation in hundreds of columns the unfair methods used in several major federal prosecutions, including the corruption convictions of former Alabama Gov. Don Siegelman and businessman Richard Scrushy. Shuler's targets are primarily Republicans. He has angered also many Democrats and independents, particularly in the legal profession, who believe his allegations are unfair, untrue or unseemly.
To be sure, neither I nor any other outsider beyond the defendants know the truth of Shuler’s sex scandal allegations in the two current suits. For my part, I have failed to receive any comment from Riley, Duke, their attorneys or Moore on the main case reported in this column.
If Shuler is wrong the plaintiffs are entitled to be very angry and obtain redress. This is especially so -- and difficult -- because Shuler and his co-defendant wife, Carol, have no assets for damages. Also, the plaintiffs are Republicans in a state where reputations for family values” is especially important for those in public life.
Even so, the libel and other procedural law has evolved over many years to treat difficult issues.
Sullivan is named after a late police commissioner in Montgomery whose colleagues were aggrieved at erroneous descriptions in the New York Times of the department's record. The case standards as a symbol of a tradition of a free and independent press, which the court believed entitled to make occasional errors in matters of involving public figures. This was part of the court's interpretation of the Bill of Rights, whose provisions also include due process provisions generally requiring public courtrooms, the ability to call witnesses at trial, and a ban on court “prior restraint” of reporting even if alleged to be libelous.
Officials in Montgomery Alabama obtained a $500,000 libel judgment in lower courts because an ad in the New York Times bought in 1960 by civil rights activists contained several minor errors. The court’s 9-0 ruling voided the damage award and nearly $300 million in similar awards across the Deep South, thereby allowing vigorous news coverage of desegregation protests.
Later this week, I am traveling to Alabama to participate in the Bridge Crossing Jubilee in Selma March 6 to 10. The event commemorates the brutal police crackdown in 1965 on marchers for voting rights. The injuries, covered by the press in a manner made possible in part by Sullivan, prompted congressional passage of the Voting Rights Act of 1965.
Shelby County, the same one jailing Shuler, won a Supreme Court victory in June voiding key provisions of the Voting Rights Act under the argument that such civil rights protections are no longer necessary in the Deep South.
During my trip, I plan to report on the march and also share my previous reporting in my recent book Presidential Puppetry about blatant voting fraud in Alabama that prosecutors and newspapers refuse to investigate.
It’s all related. Suppression of voting rights goes hand-in-hand with suppression of First Amendment freedoms, political prosecution of reporters like Shuler and political leaders like Siegelman, plus cover-up whereby news industry leaders and academics alike find rhetoric more gratifying than research.
On the trip, I get the chance to meet some of my readers and brainstorm.
In the meantime, we should all keep watch on celebrations of the First Amendment and the Sullivan decision. The news media have become especially adept through the years at celebrating successes and grand intentions.
Winning a court victory 50 years ago was impressive, true enough. Even more so would be to retain such a victory today and for future generations.
Legal Filings in Riley v. Shuler and Duke v. Shuler
Riley -- Order on Injunction, 10/4/13
Riley -- Petition for Contempt, 10/4/13
Riley -- Motion to Seal, 7/23/13
Riley -- Proposed Order on Contempt, 10/7/13
Riley -- Order on Contempt, 10/7/13
Riley -- Shuler Motion to Quash, filed 10/16
News Coverage of Shuler Case and Jailing
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.
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.
GulfCoastNewsToday.com (Robertsdale, AL), Bah, humbug! I say to Alabama politics, Bob Morgan, Dec. 24, 2013. Alabama political blogger Roger Shuler’s in jail in Shelby County right now for alleging that a trio of Alabama power brokers — Rob Riley, son of former Gov. Bob Riley, Atty. Gen. Luther Strange and federal judge Bill Pryor, all notable “family values” types — have been involved in certain indiscretions that don’t exactly spell out “f-a-m-i-l-y-v-a-l-u-e-s.” Personally, I don’t know if Shuler is on target with his allegations or not, but several things about Shuler’s jailing make me say, “Bah, humbug!” To begin with, Shuler was arrested at his home in Shelby County on Oct. 23 and his mugshot shows him with a black, swollen eye. A retired judge was brought out of mothballs and charged Shuler with contempt of court. The judge sealed the court record at Rob Riley’s request and ordered Shuler to take down all blogs pertaining to the alleged “family values” trio. Of course, Shuler can’t do that from jail. “That’s your problem,” the judge is alleged to have told Shuler in open court. Thus, Roger Shuler could be in jail in Shelby County until the cows come home. What’s happened to Shuler is called “prior restraint” and it’s unconstitutional according to the U.S. Supreme Court. After years of watching “Perry Mason,” here’s how I think the case should have been handled. Rob Riley brings a defamation lawsuit against Roger Shuler. Everybody involved swears to tell the truth and nothing but the truth and the court decides, after hearing everyone’s testimony, if Shuler defamed Riley and the others. (Seriously, it’s legally difficult to defame a politician for obvious reasons.) If Shuler is found guilty, then he’s ordered to take down the blogs and suffers whatever other reprisals the court decides.
Birmingham News / AL.om, Shelby County blogger sentenced to 90 days for resisting arrest, remains in jail without bond on contempt charges, Kelsey Stein, Jan. 15, 2014. Blogger Roger Shuler was arrested for contempt of court and resisting arrest after he violated a court order, but some legal experts say the order was unconstitutional. A Shelby County blogger remains in jail after a judge found him guilty of resisting arrest.
Huffington Post, Why Is This Journalist In Jail? Conrad Black, left, Jan. 16, 2014. It might have been expected that Alabama would be the first jurisdiction in this hemisphere in many years to imprison a journalist. This is the lot of Roger Shuler, blogger under the title "Legal Schnauzer," which implies a self-image of a persistent, aggressive, little dog, with a loud bark. Shuler is accused of taking liberties with the truth, but his self-image seems to be fairly well accepted as exact. Shuler and his wife operate a left-wing blog from their home in Birmingham, Alabama, and although the New York Times has declared the Schnauzer's allegations "fuzzily sourced," the Shulers get high marks for fearless, if rather undiscriminating, assaults on their subjects. These are generally drawn from the infinitely target-rich environment of the Alabama right, which includes practically all the state's Republicans and most of its Democrats. Roger Shuler's blog grew from a fierce dispute with his neighbor, which spread in defamation actions to his neighbor's lawyer, who, as a result of the skirmishing, ended up as part owner of the Shulers' house. The whole affair also lifts the lid on the byzantine murkiness of Alabama political prosecutions and scandals, that have been the most notorious in the country for this sort of activity for the last 20 years or so. It is all shabby, tawdry, and distasteful (though entertaining in places), but so is much of Alabama public life, and so are vast areas of the U.S. justice system.
Reuters, Blogger gets same speech protections as traditional press: U.S. court, Dan Levine, Jan. 17, 2014. A blogger is entitled to the same free speech protections as a traditional journalist and cannot be liable for defamation unless she acted negligently, a federal appeals court ruled on Friday. Crystal Cox lost a defamation trial in 2011 over a blog post she wrote accusing a bankruptcy trustee and Obsidian Finance Group of tax fraud. A lower court judge had found that Obsidian did not have to prove that Cox acted negligently because Cox failed to submit evidence of her status as a journalist. But in the ruling, the 9th U.S. Circuit Court of Appeals in San Francisco said Cox deserved a new trial, regardless of the fact that she is not a traditional reporter. "As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable," 9th Circuit Judge Andrew Hurwitz wrote for a unanimous three-judge panel.
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. Shuler reports on Deep South legal affairs via several nationally prominent blog sites such as his own Legal Schnauzer. Salon, OpEd News, and FireDogLake frequently reprint the stories. Shuler specializes in political muckraking about scandals in the Deep South legal community. The reports often focus on claims that ordinary litigants are being unfairly treated in the courts. Also, he writes about financial corruption involving taxpayer dollars, illicit sex among conspirators and their minions, and cover-up to uphold family values image necessary for election success. Most but far from all of the wrongdoers in his columns are Republicans.
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 (2002-2010) 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.
Catching Our Attention on other Justice, Media & Integrity Issues
Faith & Politics Institute, Institute Announces Congressional Civil Rights Pilgrimage From MS to AL, Camille McKinley, Feb. 26, 2014. The Faith & Politics Institute announced the 14th Congressional Civil Rights Pilgrimage slated for March 7- 9, 2014. This journey will begin in Clarksdale, MS, travel through Ruleville, Money, and Jackson, MS, and end in Selma, AL. Members of the United States Congress will experience a pivotal moment in our nation’s history. This year marks the 50th anniversary of Mississippi’s Freedom Summer and the 49th Anniversary of Bloody Sunday, one of the most pivotal events of the civil rights movement and a moment that the Pilgrimage will commemorate with its 14th march across Edmund Pettus Bridge. Rep. John Lewis (D-GA), who as a civil rights activist led the marchers 49 years ago will serve once again as the Pilgrimage Chairman. He is shown in a file photo. Congressman Gregg Harper (R-MS), Congressman Bennie Thompson (D-MS), Congressman Spencer Bachus (R-AL), and Congresswoman Terri Sewell (D-AL) will serve as co-hosts. Former Mississippi Governor Haley Barbour (R), a leader among those spearheading a new Mississippi Civil Rights Museum to open in 2017, noted the importance of this congressional pilgrimage, "You need to remember your history. The good and the bad parts. Mississippi is a wonderful state, but we have some things in our past that nobody's proud of, shouldn't be. This pilgrimage is a very good occasion for reminding people of the importance of remembering.”
Washington Post, The legal gusher BP cannot contain, Steven Mufson, March 1, 2014. Nearly four years after BP’s Gulf oil spill, the oil giant is mired in litigation in federal courts in New Orleans.
Al Jazeera via OpEd News, Saudi Arabia: besieged and fearful, Immanuel Wallerstein, March 1, 2014. Immanuel Wallerstein is a senior research scholar in the department of sociology at Yale University. The Saudi regime has long been considered a pillar of political stability in the Middle East, a country that commanded respect and prudence from all its neighbors. This is no longer true. Today, they feel besieged on all sides and quite fearful of the consequences of turmoil in the Middle East for the survival of the regime. About the only regime with whom the Saudis are on good terms today is the Israelis. They share the sense of being besieged and fearful. They therefore decided to play their cards independently of the United States, and indeed against U.S. preferences.
Washington Post, Russian forces expand control of Crimea, Will Englund, William Booth and Kathy Lally, March 3, 2014. Russian forces expanded their control of Ukraine’s Crimea region Monday, as the Ukrainian prime minister called for Western political and economic support and the Russian and Ukrainian currencies fell in tandem. The Russian forces, already in control of much of Crimea, took possession of a ferry terminal in Kerch, in the eastern part of the peninsula just across a strait from Russian territory, according to reports from the area.
Washington Post, What is to be done? Putin’s aggression in Ukraine needs a response, Zbigniew Brzezinski, March 3, 2014. Zbigniew Brzezinski was national security adviser from 1977 to 1981, and co-founded the Trilateral Commission with David Rockefeller in 1974. Regarding the Russian aggression against Ukraine, much depends on what Vladimir Putin does next. Putin’s thuggish tactics in seizing Crimea offer some hints regarding his planning. He knew in advance that his thinly camouflaged invasion would meet with popular support from the Russian majority in Crimea. He was not sure how the thin and light Ukrainian military units stationed there would react, so he went in masked like a Mafia gangster. In the event of serious Ukrainian resistance, he could disown the initiative and pull back.
National Press Club, Ukrainian protest leader to speak at Press Club Newsmaker March 5, Herb Perone, March 3, 2014. One of Ukraine’s most internationally recognizable and politically active citizens will discuss the situation there at a Newsmakers conference at the National Press Club in Washington, DC. The pop music star and former Ukrainian Parliament member Ruslana Lyzhychko – known simply as Ruslana – comes one day after she receives the U.S. Secretary of State’s international Women of Courage Award.
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