Roger Shuler, by Ken Paul White, Popehat.com

Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:21 am

Roger Shuler
by Ken Paul White, Popehat.com

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Table of Contents

• Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction (October 27, 2013)
• Update On Prior Restraint of Alabama Blogger Roger Shuler (November 13, 2013)
• Alabama Court, Roger Shuler Continue To Thwart Roger Shuler's First Amendment Rights (November 17, 2013)
• Alabama Court Releases Highly Problematical Written Permanent Injunction Against Roger Shuler (November 19, 2013)
• An Aside In The Roger Shuler Story: Fourth Amendment Rights And Pretext (November 20, 2013)
• Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order (January 15, 2014)
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:25 am

Alabama Blogger Roger Shuler Arrested For Violation of Unconstitutional Injunction
Oct 27, 2013
By Ken White.


Law, Politics & Current Events, WTF?

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.

_______________

Notes:

1. Roger Shuler's past is not the focus of this post, so I will be brief in describing my research. I examined Shuler's court records from the United States District Court for the Northern District of Alabama alone — I did not examine state court records or any other district. I discovered the following: (1) Shuler was embroiled in a bitter state court litigation against a neighbor. When he didn't like the rulings of the judge in that case, he sued the judge pro se in federal court. He lost, of course. Suing the judge because you don't like the judge's rulings is a reliable hallmark of crazy and abusive litigants. (2) Shuler then tried to move the state case against his neighbor to federal court, despite the federal court's lack of jurisdiction over it, on the bogus grounds that it was related to his case against the judge. He lost, because his theory was frivolous. (3) Shuler sued the University of Alabama, several of its officials, and the Birmingham Police Department pro se in federal court. Shuler — who used the complaint as a vehicle to attack his neighbor and his neighbor's lawyer, and the results of his neighbor's lawsuit — claimed that UA fired him because of his blogging, because of a political conspiracy, and because he's a man. He claimed that the police unlawfully accepted an invalid criminal complaint against him. He lost in the trial court and on appeal. (4) Shuler's neighbor won $1,525 is the lawsuit against Shuler. Shuler didn't pay, so Shuler's neighbor got a writ of attachment and arranged for a sale of Shuler's house. That's what happens when you don't pay judgments. Shuler responded by filing a pro se complaint in federal court against his neighbor, his neighbor's lawyer, the Sheriff who conducted the sale, and the Alabama State Bar (apparently on the theory that it failed to disbar the neighbor's lawyer upon Shuler's demand). Once again, Shuler lost in the trial and appellate courts. (5) Shuler filed a pro se federal complaint against a debt collection company and, once again, lost in the trial court and the appellate court. (6) Shuler frequently moved to disqualify the federal judges hearing his cases, sometimes multiple times in the same case, on the basis that they had demonstrated bias by ruling against him. See here, here, here, here, and here. This is a reliable tell of a frivolous and vexatious litigant. How frivolous and vexatious? Prenda Law tried it. In short: even without delving into his state court litigation record, the evidence shows that Roger Shuler crazily abuses the court system.

2. Motherfuckers could write back then, yo.

3. Shuler thinks it is sinister that Riley's lawyers write the proposed orders that the judge signs when he grants their motions. In fact, it is standard practice in state and federal courts across the United States for successful movants to submit proposed orders granting their motions. In many jurisdictions the local rules require the party making a motion to submit a proposed order with it. It's also common for judges to ask litigants to draft proposed orders. You would think that Shuler would have picked up such a mundane aspect of litigation by now. But I only said he's creepy, crazy, and litigious; I didn't say he's any good at it. By the way: freaking out over a party submitting a proposed order to the court is another reliable tell of a crazy vexatious litigant.

4. Under Judge Neilson's reasoning, you could get an injunction to prevent a defendant from accusing you of burning a flag, officiating at a same-sex marriage, or voting for a controversial measure or candidate, as we could speculate that any of those things could drive an unbalanced person to attack you.

5. Since Kimberlin's recent RICO complaint seeking to silence critics, someone using the name "RogerS" has been leaving exceptionally awful federal civil procedure advice for Kimberlin in comments on pro-Kimberlin sites. Now, I'm not saying that Roger Shuler is definitely RogerS. But I can't help noticing that both like Kimberlin and both have an astoundingly awful grasp of federal law. I'm not just saying Roger Shuler is ignorant of federal civil procedure; it's a dry subject, and there's nothing wrong with learning about other things instead. Rather, Shuler seems to have acquired a positive aversion to correct federal civil procedure, possibly by electrical means.
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:28 am

Update On Prior Restraint of Alabama Blogger Roger Shuler
Nov 13, 2013
By Ken White.


Effluvia

A couple of weeks ago I wrote about Roger Shuler, an Alabama blogger. Shuler is the subject of a preliminary injunction prohibiting him from repeating a story about local political figures and requiring him to remove that story from his blog. In my post I argued that the preliminary injunction constitutes unconstitutional prior restraint; most of the legal commentators I've seen have reached the same conclusion. In short, the First Amendment allows a court to impose consequences on you if your speech is found to be defamatory at trial, but in all but the most extraordinary circumstances doesn't allow a court to prohibit you from uttering your allegedly defamatory speech before trial. Roger Shuler simply doesn't present an extraordinary circumstance justifying prior restraint.

Shuler remains in jail — he was arrested for contempt of court based on his refusal to abide by the preliminary injunction, and also charged with resisting arrest for something that happened during the arrest. I wasn't there for the arrest and can't say what happened. I will merely observe that "resisting arrest" is often code for ""contempt of cop" or for "suspect then assaulted my fists and nightstick with his face, groin, and knees."

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 brief — signed by Randall C. Marshall, director of the Alabama ACLU — is here. It's good. The ACLU's brief makes two points: first, the prior restraint on Shuler is unconstitutional under settled law and no extraordinary circumstances justify it, and second, the court's decision to seal the entire case file is constitutionally suspect.

I found it more than a little surreal to be cited in a brief by the ACLU:

In the meantime, the remedy for Petitioners lies not in the suppression of speech but in more speech. Indeed, with the proliferation of the discussion of this case on the Internet, even those who raise First Amendment concerns are highly critical of Shuler. See, e.g.¸ http://www.popehat.com/2013/10/27/alaba ... njunction/ (last visited November 1, 2013)


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. Upon review of Shuler's litigation history and his posts I am disinclined to believe anything he writes, and suspect he's making up this story in particular. That doesn't make it right for a court to ignore First Amendment precedent and impose prior restraint just because Shuler is crazy, creepy, or offending the local political elite.

So: the ACLU's amicus brief may not turn the court around, but it may bring more attention to the case and make the court be more cautious about broad and unconstitutional orders.

By the way, the unprincipled and unconstitutional orders that Shuler's adversaries sought, and that an Alabama judge granted, have drawn far more attention to this case than an obscure blogger's plight would otherwise have merited. That's the Streisand Effect in action.

The Bad: Shuler's craziness may be an impediment to getting him effective representation and pushing back against the unconstitutional orders in the case.

Alabama news reported on his first appearance after his arrest:

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.


DAMMIT.

Yeah, I know that was only on the resisting arrest charge and not on the contempt charge. But it does not bode well for Shuler accepting help on the contempt charge, and thus on the crucial First Amendment issues in the case.

Look: be a martyr and refuse legal counsel to make a point if you want. But don't confuse that with mounting an effective fight against injustice. Lawyering isn't rocket science, but it does require training and experience. Every indication (see, for instance, the history in footnote 1 of my post about Shuler) indicates that Shuler does an awful job representing himself. The system is designed to chew up people who represent themselves. It's not fair, it's not right, but there it is — a fact that won't go away just because you're in the right. Shuler's rejection of a lawyer seems to be part of the pattern of misguided antics that has robbed him of the opportunity to litigate the First Amendment issues, like evading service and refusing to show up for hearings based on nutty vexatious litigant theories.

If Shuler continues to refuse counsel, it's highly unlikely that he will successfully navigate a system that's indifferent to him at best and hostile at worst. Does he have a right to do it himself out of some sense of pride or justice? Sure. But his bumbling may serve to lock in the orders against him and, through bad precedent, weaken everybody else's rights a little. It's crazy.

I'm aware of at least one substantial rights organization other than the ACLU that has expressed to me an interest in helping Shuler — if he will accept help. If anyone has any power to persuade him, now would be a good time to start.
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:29 am

Alabama Court, Roger Shuler Continue To Thwart Roger Shuler's First Amendment Rights
Nov 17, 2013
By Ken White.


Law, Politics & Current Events

Back in October I wrote about how an Alabama court had issued a preliminary injunction against "Legal Schnauzer" blogger Roger Shuler prohibiting him from blogging about certain claims and requiring him to take blog posts down. I also explained why that preliminary injunction was likely unconstitutional prior restraint — an order that prohibited speech before it happened rather than punishing defamatory speech after it happened, without any extraordinary circumstances that might support it. Last week I talked about how the ACLU had filed an amicus brief on Shuler's behalf, but bemoaned that Shuler was refusing legal counsel in a case arising out of his arrest for defying the preliminary injunction.

There are updates. They aren't good.

Though Roger Shuler may have enemies amongst Alabama politicians, and perhaps even amongst Alabama judges, he remains his own worst enemy.

The Alabama Court Has Issued A Permanent Injunction

This week a local news station reported that on November 14, 2013 the Alabama court held a hearing and indicated that it would issue a permanent injunction finding Shuler's posts about Robert J. Riley, Jr. to be false and ordering him to take them down.

The local station quoted Riley's law partner and attorney James Murrill as dismissing the prior restraint and First Amendment concerns:

There's been speculation that the Court's previous orders have infringed on Mr. Shuler's constitutional rights. Actually, libelous speech is not protected by the First Amendment. As the United States Supreme Court ruled in Linn v. United Plant Guard Workers of America, "it must be emphasized that malicious libel enjoys no constitutional protection in any context." Also, the concept of "prior restraint" applies to an action to enjoin speech before it occurs. This lawsuit dealt with speech that had already occurred, and the law allows a plaintiff to seek civil remedies for defamatory speech that has already occurred. All of this is clear if you look at the Court's records, which the Court has now agreed to unseal."


That press statement is either one of the most blindingly ignorant or cynically dishonest I have ever read from an attorney about a case. Riley may be suing Shuler based on past speech. But Riley — though Murrill — sought an injunction that prohibits future speech. That's classic prior restraint. Murrill is simply lying when he suggests that Riley has not litigated to silence Shuler's ongoing and future speech.

Some may suggest that because a court held a hearing and issued a permanent injunction rather than a preliminary injunction, this is no longer an issue of unconstitutional prior restraint. I disagree. The authorities permitting prior restraint of statements found by the trier of fact to be defamatory — whether by forbidding their utterance, or requiring them to be removed — only support such an order after a trial, not after a pre-trial hearing. Here Shuler has not had an opportunity to conduct discovery and the judge, rather than a jury, acted as the finder of fact. The vast weight of authority seems to be against prior restraint until after trial except in extraordinary cases — and nothing about Shuler's case is extraordinary, except perhaps the political connections of his targets.

In 2007 the California Supreme Court upheld a post-trial order enjoining specified defamatory statements; that opinion has a good survey of prior restraint cases across the state and federal courts. Those authorities strongly supports the notion that the First Amendment requires a full trial, not a mere pretrial hearing, before prior restraint is permissible. See, e.g., Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations (1973) 413 U.S. 376, 390 [“prior restraint is... communication...before an adequate determination that it is unprotected by the First Amendment”); Kramer v. Thompson (3d Cir.1991) 947 F.2d 666, 675 [“The United States Supreme Court has held repeatedly that an injunction against speech generally will not be considered an unconstitutional prior restraint if it is issued after a jury has determined that the speech is not constitutionally protected.”]; see DVD Copy Control Assn., Inc. v. Bunner (2003) 31 Cal.4th 864, 891–892, 4 Cal.Rptr.3d 69, 75 P.3d 1 (conc. opn. of Moreno, J.) [“a preliminary injunction poses a danger that permanent injunctive relief does not; that potentially protected speech will be enjoined prior to an adjudication on the merits of the speaker's or publisher's First Amendment claims”].

Moreover, until we see the written permanent injunction, we won't know if it suffers from the other flaw of the preliminary injunction: vagueness. The preliminary injunction didn't just require Shuler to take certain posts down and forbid him from saying specific things about Riley; it also vaguely forbade him to publish "any defamatory statement" about Riley "including but not limited to" the defamatory ones. That leaves Shuler (or anyone advising him) to guess at what he may or may not publish. It's exactly the sort of vague and indefinite prior restraint repeatedly struck down by courts. If it appears in the permanent injunction, it's an additional ground for constitutional challenge.

Roger Shuler is Still Roger Shuler

Riley's lawyer James Murrill — whose version of events admittedly should be taken with a pillar of salt — describes Shuler's conduct at this week's hearing as follows:

A hearing was held today on a permanent injunction. Mr. Shuler attended and presented no evidence in support of his false allegations, but instead called the Court a joke and said that he would not follow the Court's order. He also told the Court that it had no jurisdiction over him.


Well, that's just disastrous for Shuler and for the First Amendment. It's exactly the sort of behavior that concerned me when Shuler refused a court-appointed lawyer.

Shuler may believe that the fix is in; he may believe that this Alabama court is biased for powerful and connected local politicos like Riley and against critics of powerful politicos like Shuler. That doesn't make refusing to participate, calling the court a joke, and denying the court's jurisdiction a sensible strategy. It's a wholly deranged strategy. Shuler increasingly reminds me of some of the defendants I saw as a federal prosecutor in the 1990s — tax protestors who claimed that the United States District Court was an admiralty court with no jurisdiction over them because it flew a flag with a gold fringe, Feemen who said that the defendant named in the indictment was not the same person as them because the name was capitalized in the caption and their name is not capitalized, and so forth. Shuler's "I successfully evaded service and therefore this court has no jurisdiction over me" is a madman's gambit. Jurisdiction isn't a game, and even if it were a game, Shuler lost it. Shuler's litigation behavior — which is merely an extension of his history of vexatious pro se behavior — is robbing him of any chance of vindication of his rights.

Perhaps this court is biased against Shuler and for Riley. Riley is from a powerful family and has powerful friends; Shuler is — in a way that appears to me to be haphazard and crazed – a critic of powerful politicians. The court has issued a preliminary injunction that strikes me as frankly lawless. But ultimately you can't vindicate your rights by refusing to acknowledge the court, like some fallen dictator before a revolutionary tribunal. You have to fight for your rights. You have to articulate how you believe your rights are being violated. You have to seek to call witnesses, to present evidence, and to cross-examine the other side's witnesses. If, like Shuler, your circumstances make those things nearly impossible, you need to articulate your need for more time or resources and explain what you would do if you had them. If you don't do those things, you not only lose in the court you think is biased, you very likely lose on appeal or on any collateral attack in another court — because you haven't acted to preserve your arguments.

Shuler was in a very bad place this week, but he could have acted to protect himself. He could have asked for time to secure an attorney. There are pro bono attorneys willing to help him. He could have asked for time to conduct discovery to support his assertions. Even if he couldn't refute Riley's assertion that his blog posts were false, he could have tried to show that he had some sources and evidence supporting them. That might have demonstrated that his posts weren't defamatory because he didn't write with with actual malice, the standard applicable to statements about a public figure. But if Murrill's account is accurate, and he simply refused to participate, he may have lost not only this motion, but his ability to challenge it on appeal or in any other court. Any reviewing court may conclude that Shuler waived the arguments he declined to make.

It's not clear why Shuler is acting that way. Is his story a lie, and he knows he can't support it? Is he swollen with hubris? Is he crazy? Whatever the answer, legally speaking he's cut his own throat. Worse, he's helped set a precedent that will embolden future plaintiffs seeking to silence defendants through unconstitutional prior restraint.

I would have no problem if Riley sued Shuler, took him to trial, convinced a jury that his posts were false and malicious, secured a judgment against him, and enforced it against him. Shuler's conduct and history, and the shady nature of his claims, makes me extremely skeptical of his story. But this is a very bad result any way you look at it.
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:55 am

Alabama Court Releases Highly Problematical Written Permanent Injunction Against Roger Shuler
Nov 19, 2013
By Ken White.


Law

I've now collected all my posts about Roger Shuler — the "Legal Schnauzer" blogger subjected to an unconstitutional preliminary injunction prohibiting him from blogging — under a "Roger Shuler" tag. Those posts are the prologue to this one.

Shuler's web site has now published Alabama Circuit Judge Claude D. Neilson's permanent injunction against him. I've uploaded it here.

Here are some significant things about the permanent injunction:

■The permanent injunction only prohibits specified statements by Shuler, and eliminates the vague and ambiguous language of the preliminary injunction that prohibited "any defamatory statement about Petitioners, including, but not limited to" specified statements. That's the sort of vague language that courts have used as one basis to strike down prior restraints on speech. Judge Neilson has therefore cured one problem with the preliminary injunction.

■However, the permanent injunction does not include any substantive discussion of the prior restraint issue. Judge Neilson, by approving what appears to be a proposed order submitted by the plaintiff, dismisses the concept of prior restraint with scare quotes in the first footnote, attributing the concept to Mr. Shuler and implying it is a silly argument. It isn't. Though the order cites authority for the correct proposition that defamation is not protected by the First Amendment, it includes no analysis whatsoever of the wall of authority on the subject of prior restraint of allegedly defamatory speech. I find that utterly remarkable — in fact, shocking — from a judicial officer.

■The proposed order justifies the injunction by saying that Mr. Riley and Ms. Duke are in professions that can be harmed by defamation, and repeats the frankly ridiculous argument that they are put in physical danger by defamation associating them with abortion. However, the order does not try to establish what is "exceptional" about this case justifying prior restraint, and does not succeed in making any such showing. Near v. Minnesota, 283 U.S. 697, 716 (1931). Many people are in professions where reputation is important; this order doesn't establish that these plaintiffs are unusually situated.

■It appears that once again Judge Neilson executed a proposed order provided by counsel for plaintiff Mr. Riley. That is common. However, when a motion presents such a patent constitutional issue, judges usually exercise some sort of editing power over a proposed order to ensure that it addresses the point. Here Judge Neilson didn't. Again, I find that remarkable.

■The court repeats Mr. Riley's counsel's claim that Mr. Shuler called the court a "joke," claimed it lacked jurisdiction, and refused to participate in the permanent injunction hearing. As I said in my last post, that's a damnfool thing to do that may deprive Shuler of substantive appellate review.

■The court ordered Shuler to remove the specified statements from the blog Legal Schnauzer and made it clear that he will remain in jail for contempt until he does so. (The legality of indefinite contempt incarceration is a subject for another post).

■The court awarded around $34,000 in fees and costs to the petitioners against Shuler.

■The court issued the order against Carol Shuler, Mr. Shuler's wife, as well as Shuler. Carol Shuler has been updating the blog. This raises the possibility that she will also be held in contempt if she fails to take posts down.

■The court reversed its prior order and unsealed the documents from the case.

The written order doesn't change my analysis from earleir this week. The fact that the court calls this a permanent injunction rather than a preliminary injunction doesn't make it constitutional; I think it is still unconstitutional prior restraint because (1) the court issued it without a trial, and (2) there's nothing exceptional about the case permitting a rare exception to the prior restraint doctrine. However, Roger Shuler continues to be the biggest impediment to vindication of Roger Shuler's rights. His behavior is calculated to court martyrdom, not to protect his First Amendment rights. That's a shame.

I continue to doubt Shuler's allegations, in part because of the way Shuler made them, the way he evaded service, and the way he has conducted himself in the case. But the remedy for defamation should be a damages award and order after a fair trial, not unconstitutional prior restraint. The way the Alabama court has conducted this case doesn't make me think that Shuler's allegations about Riley are true, but it does make me think that Riley's power and prestige played an impermissible role, as Shuler argues.
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:56 am

An Aside In The Roger Shuler Story: Fourth Amendment Rights And Pretext
Nov 20, 2013
By Ken White.


Law

All my posts about Roger Shuler — the "Legal Schnauzer" blogger subjected to an unconstitutional preliminary injunction prohibiting him from blogging — are collected under a "Roger Shuler" tag.

One of Roger Shuler's loudest complaints has been that Shelby County Sheriff's deputies pulled him over for the purpose of serving him with papers in Robert J. Riley, Jr.'s defamation suit against him.

Shuler sees that — law enforcement stopping his car and detaining him, however briefly, for the purpose of serving him in a civil case – as a violation of his Fourth Amendment rights against unreasonable search and seizure. In my In my first post on the subject I pointed out that, regrettably, it probably isn't a Fourth Amendment violation — as part of the Great War on Drugs, the Supreme Court long ago decided that police may make pretextual stops. That is to say, police who wish to ask you questions, or sniff about your car, or otherwise develop probable cause to arrest you or search your car, may stop you for any traffic violation they (purportedly) observe even if under normal circumstances they would not bother to do so. Having stopped you, they may then talk to you and observe you and your car in an effort to develop sufficient cause to take further investigative steps. That doctrine probably allows Shelby County Sheriff's deputies to stop Shuler for a purported traffic violation and, as long as they are lawfully in contact with him, serve him with papers.

What I did not anticipate is how brazen law enforcement has become about this sort of thing. A helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts. The log generally supports the assertion (admitted by Shuler) that Shuler was evading service of process, which is part of the pattern of nutty pro se conduct that contributed to his trouble. But it also contains this entry describing the eventual traffic stop:

CONDUCTED A PRETEXT TRAFFIC STOP ON SHULER'S BLUE NISSAN AFTER OBSERVING IT ROLL THRU STOP SIGN AT MAC lAN/ KEITH DR; STOP WAS AT NORTH SHELBY LIBRARY; WARNING ISSUED FOR TRAFFIC VIOLATION AND BOTH PARTIES WERE SERVED WITH PAPERS, WHICH THEY DISCARDED IN THE PARKING LOT AS THEY LEFT.


Thanks to the United States Supreme Court, law enforcement can feel free to admit that their traffic stops are pretextual. Thanks, War on Drugs!
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 7:58 am

Roger Shuler Convicted of Resisting Arrest, Remains In Custody for Contempt of Prior Restraint Order
Jan 15, 2014
By Ken White.


Effluvia

I've previously written about Roger Shuler, the Alabama blogger currently in jail for contempt of court based on his defiance of an injunction that is likely an unconstitutional prior restraint of speech. Though I think that Shuler's history shows him to be a vexatious litigant, and though I think his erratic and foolish behavior has contributed substantially to this situation, I find the injunction against him and his incarceration for violating it very troubling. I'm quoted on that point in last weekend's New York Times.

There are some developments of note.

Shuler Has Been Convicted of Resisting Arrest And Sentenced to 90 Days Imprisonment, Suspended

Roger Shuler was charged with "resisting arrest" (sometimes called "contempt of cop") based on alleged conduct during his arrest in October 2013. Yesterday he was convicted of resiting arrest and sentenced to 90 days in jail, suspended, after a bench trial (that is, a trial by judge, not by jury) before Shelby County District Judge Ronald Jackson. I'm not an expert on Alabama criminal procedure, but my rough understanding is that misdemeanors like this are tried by bench trial in the "district courts" of Alabama, and can be appealed to the "circuit court" for a trial by jury, which is a strange way to run a railroad.1

Three things concern me about Shuler's bench trial.

First, he represented himself. It's not clear whether he refused appointed counsel (which he foolishly did before) or whether he was somehow deprived of one. I suspect he refused counsel, which is transcendentally idiotic and self-indulgent. He had a right to appointed counsel. Nothing in his history of pro se litigation suggests he was even minimally competent to defend himself.

Second, the judge denied Shuler a continuance to gather evidence, which Shuler requested because he had been in custody since October:

Jackson denied a request made by Shuler that the case be continued after he claimed that his incarceration prevented him from preparing his defense and obtaining certain discovery material, such as a video recording of the incident and copies of arrest warrants.


Now, representing yourself is likely to lead to this sort of result — you're not prepared for trial. But judges are supposed to take steps to protect the rights of pro se defendants. The arrest — and the alleged unlawful resisting of arrest — is less than three months old, and I find it highly dubious and suspicious that a judge would deny a continuance to give Shuler more time to seek discovery and prepare.

Third, it's not clear from the reporting how the prosecution proved the elements of the offense. I'm not talking about my standard skepticism of police claims that a suspect improperly resisted. I'm talking about proving that the arrest was lawful in the first place.

Under Alabama law resisting arrest is an attempt to prevent a lawful arrest. Resisting an unlawful arrest is not, as I understand Alabama law, a violation of the resisting arrest statute. To make a lawful arrest under Alabama law, a peace officer must have an arrest warrant, or must have probable cause to believe the suspect committed a felony, or must observe the suspect commit a crime. Shuler apparently argued at trial that the arresting officer didn't have a warrant and didn't observe any crime, and that therefore the arrest was not lawful and Shuler could not have committed the crime of resisting arrest. That's what his wife argues now. Regrettably the news coverage of the brief bench trial doesn't clarify how the prosecution proved (if it did) that the arrest was lawful in the first place.

The district judge imposed a suspended 90-day jail sentence, meaning Shuler is now incarcerated only on the contempt of court.

In short the coverage of the trial leaves me where I was before: questioning whether the Alabama court system is treating Shuler according to the rule of law, but also suspecting that Shuler is doing everything he can to undermine his own best interests.

Shuler Remains Incarcerated On The Contempt of Court Charges

Back in November, the Alabama court issued a permanent injunction against Roger Shuler forbidding him from saying certain things about the plaintiffs in his case and requiring him to remove certain posts from his blog. The court did so after a hearing that it characterized as a "permanent injunction hearing." As I explained back in November I believe that permanent injunction is a prior restraint in violation of the First Amendment; the cases permitting such prior restraint against defamation generally only do so after a full trial before the correct finder of fact (which should be a jury), not after some mere "hearing." There's nothing extraordinary about this case that should permit departure from that precedent. So unless Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing — something that's not outside the realm of possibility given his erratic behavior — the injunction seems unlawful.

Yet Shuler remains in jail for contempt of court based on his refusal to comply with the injunction. How long can he stay there? That's complicated.

There are two types of contempt consequences: punitive and coercive. Punitive contempt sanctions punish contempt; coercive contempt consequences seek to force someone to do something. Here's how the Supreme Court described the difference, and the different requirements:

"Criminal contempt is a crime in the ordinary sense," Bloom v. Illinois, 391 U.S. 194, 201 (1968), and "criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings." Hicks v. Feiock, 485 U.S. 624, 632 (1988). See In re Bradley, 318 U.S. 50 (1943) (double jeopardy); Cooke v. United States, 267 U.S. 517, 537 (1925) (rights to notice of charges, assistance of counsel, summary process, and to present a defense); Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 444 (1911) (privilege against self incrimination, right to proof beyond a reasonable doubt). For "serious" criminal contempts involving imprisonment of more than six months, these protections include the right to jury trial. Bloom, 391 U. S., at 199; see also Taylor v. Hayes, 418 U.S. 488, 495 (1974). In contrast, civil contempt sanctions, or those penalties designed to compel future compliance with a court order, are considered to be coercive and avoidable through obedience, and thus may be imposed in an ordinary civil proceeding upon notice and an opportunity to be heard. Neither a jury trial nor proof beyond a reasonable doubt is required.2


Shuler's contempt incarceration is nominally coercive rather than punitive — the Alabama court is putatively seeking to force him to comply with a (questionably lawful) order by imprisoning him until he obeys. That doesn't mean it is without limits. For instance, a court can't imprison you to coerce you do to something that's beyond your power. As the Supreme Court of Alabama said:

Because incarceration on a finding of civil contempt is a sanction coercive in nature and is designed to compel compliance with the court's orders, when the punishment can no longer have any coercive effect it becomes punitive and may no longer be imposed. . . . Because it is impossible to coerce that which is beyond a person's power to perform, once the confinement ceases to have any coercive impact, continued imprisonment for civil contempt constitutes a violation of due process.


Here, Shuler argued that he couldn't take down the blog posts from jail. That might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot.

So how long can he be kept in jail? In that same decision quoted about, the Supreme Court of Alabama noted that someone subject to coercive contempt imprisonment "conceivably could have remained incarcerated indefinitely." In many American jurisdictions that's correct — indefinite coercive incarceration is a tool that has led to calls for reform. In that Alabama case — which involved a mother refusing to disclose the location of a son suspected of arson — the Supreme Court of Alabama suggested that a court should revisit the issue:

In cases such as this, after the contemnor has been incarcerated for a substantial length of time, the trial judge should bring the contemnor before him for another due process hearing in which he can reevaluate the factual basis of his first adjudication. If he is satisfied that his determination was correct, he should again incarcerate her. If he is of the opinion that she is telling the truth, of course, he should release her.


Hopefully the Alabama court will revisit Shuler's incarceration. At this point Shuler's options to get out of jail are to comply with the (probably unconstitutional) order or appeal it. Given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal. Telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success.

We should be able to look critically both at Roger Shuler's behavior and of the system's treatment of him. Notwithstanding overly credulous coverage (like like Salon article that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior), Shuler remains his own worst enemy. His evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights. But even nuts and cranks deserve due process of law; depriving them of it threatens to weaken everyone's rights. I'm troubled by how Shuler's civil and criminal cases were handled.
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Re: Roger Shuler, by Ken Paul White, Popehat.com

Postby admin » Sun Jan 19, 2014 8:25 am

Rapeutation Synthesis:

Shuler's history shows him to be a vexatious litigant; I think his erratic and foolish behavior has contributed substantially to this situation; he represented himself; it's not clear whether he refused appointed counsel, which he foolishly did before, or whether he was somehow deprived of one; I suspect he refused counsel, which is transcendentally idiotic and self-indulgent; nothing in his history of pro se litigation suggest she was even minimally competent to defend himself; representing yourself is likely to lead to the result that you're not prepared for trial; I suspect Shuler is doing everything he can to undermine his own best interests; it's not outside the realm of possibility that Shuler somehow waived a trial by jury or consented to resolution of the defamation claim at a hearing given his erratic behavior; Shuler argued that he couldn't take down the blog posts from jail, which might have been grounds to release him, had he not also apparently proclaimed in court that he would not comply with the court's order, rendering the inability moot; given Shuler's behavior in court, I'm skeptical that he will be able to mount a successful appeal; telling the court that it's a joke and (incorrectly) that it lacks jurisdiction over you is generally not a recipe for appellate success; the Salon article is overly credulous coverage that seems to accept Shuler's characterizations of his behavior uncritically and ignore the evidence of his actual behavior; Shuler remains his own worst enemy; his evasion of service, blogging about the same, and nutty-pro-se refusal to acknowledge the court all impede effective defense of his rights; but even nuts and cranks deserve due process; Roger Shuler, the "legal schnauzer"; a helpful tipster sent me the Shelby County Sheriff's return of service and log of service attempts that generally supports the assertion that Shuler was evading service of process, which is party of the pattern of nutty pro se conduct that contributed to his trouble; Judge Neilson dismisses the concept of prior restraint with scare quotes, attributing the concept to Shuler and implying it is a silly argument, which it is not; the court repeats Mr. Riley's counsel's claim that Mr. Shuler called the court a "joke," claimed it lacked jurisdiction, and refused to participate in the permanent injunction hearing, which is a damnfool thing to do that may deprive Shuler of substantive appellate review; Shuler continues to be the biggest impediment to vindication of Shuler's rights; his behavior is calculated to court martyrdom, not to protect his first amendment rights, which is a shame; I continue to doubt Shuler's allegations because of the way he made them, the way he evaded service, and the way he has conducted himself in the case; the way the Alabama court has conducted this case doesn't make me think that Shuler's allegations about Riley are true; Shuler was refusing legal counsel; though Shuler may have enemies amongst Alabama politicians, and perhaps judges, he remains his own worst enemy; Roger Shuler is Still Roger Shuler; Riley's lawyer James Murrill describes Schuler's conduct at this week's hearing as: "A hearing was held today on a permanent injunction. Mr. Shuler attended and presented no evidence in support of his false allegations, but instead called the Court a joke and said that he would not follow the Court's order. He also told the Court that it had no jurisdiction over him;" that's disastrous for Shuler and the First Amendment; it's exactly the sort of behavior that concerned me when Shuler refused a court-appointed lawyer; refusing to participate, calling the court a joke and denying the court's jurisdiction is not a sensible strategy; it's a wholly deranged strategy; Shuler reminds me of tax protesters who claim that the U.S.D.C. was an admiralty court with no jurisdiction over them because it flew a flag with gold fringe, Feemen who said that the defendant named in the indictment was not the same person as them because the name was capitalized in the caption and their name is not capitalized, and so forth; Shuler's "I successfully evaded service and therefore this court has no jurisdiction over me" is a madman's gambit; Shuler's litigation behavior, which is merely an extension of his history of vexatious pro se behavior, is robbing him of any chance of vindication of his rights; Shuler is, in a way that appears to me to be haphazard and craze, a critic of powerful politicians; you can't vindicate your rights by refusing to acknowledge the court, like some fallen dictator before a revolutionary tribunal; you have to fight for your rights; you have to articulate how you believe your rights are being violated; you have to seek to call witnesses, to present evidence, and cross-examine the other side's witnesses; if your circumstances make those things nearly impossible, you need to articulate your need for more time or resources and explain what you would do if you had them; if you don't, you lose in the court you think is biased because you haven't acted to preserve your arguments; Shuler was in a very bad place this week, but he could have acted to protect himself; he could have asked time to secure an attorney; there are pro bono attorneys willing to help him; he could have asked for time to conduct discovery to support his assertions; he could have tried to show that he had some sources and evidence supporting his blog posts which might have demonstrated that his posts weren't defamatory because he didn't write with actual malice; it is not clear why Shuler is acting that way; is his story a lie and he knows he can't support it?; is he swollen with hubris?; is he crazy?' legally speaking, he's cut his own throat; worse, he's helped set a precedent that will embolden future plaintiffs seeking to silence defendants through unconstitutional prior restraint; Shuler's conduct and history and the shady nature of his claims make me extremely skeptical of his story; Shuler says nasty and potentially defamatory things against Riley; upon review of Shuler's litigation history and his posts I am disinclined to believe anything he writes, and suspect he's making up this story in particular, which doesn't make it right for a court to ignore first amendment precedent and impose prior restraint just because Shuler is crazy, creepy, or offending the local political elite; the unprincipled and unconstitutional orders that Shuler's adversaries sought and a judge granted have drawn far more attention to this case than an obscure blogger's plight would otherwise have merited; Shuler's craziness may be an impediment to getting him effective representation and pushing back against the unconstitutional orders in this case; he can be a martyr and refuse legal counsel to make a point if he wants, but don't confuse that with mounting an effective fight against injustice; every indication indicates that Shuler does an awful job representing himself; Shuler's rejection of a lawyer seems to be part of the pattern of misguided antics that has robbed him of the opportunity to litigate the first amendment issues, like evading service and refusing to show up for hearings based on nutty vexatious litigant theories; if Shuler continues to refuse counsel, it's highly unlikely that he will successfully navigate a system that's indifferent to him at best and hostile at worst; his bumbling may serve to lock in the orders again him and weaken everybody else's rights a little; it's crazy; there are a few things you should know about Roger Shuler: he is creepy and crazy, he is a vexatious litigant, a serial pro se abuser of the court system, and is in jail arrested for contempt because he violated an unconstitutional preliminary injunction; the First Amendment protects everyone, even creepy, crazy vexatious litigants; Shuler writes about Republican politicians in Alabama which is a fertile ground for posts about substantive issues such as legacy issues of the civil rights struggle, the abusive elements of the criminal justice system, etc., but Shuler seems most interested in writing about politicians' marital infidelity instead; perhaps he's trying out for a job with a cable news network; Shuler seems to believe that Riley is being groomed for office, though Shuler's word is not a good reason to believe it and if anything, the accusation is discredited by coming from Shuler; the order underlying Shuler's arrest is unconstitutional; one other factor may have influence the judge: that Roger Shuler is creepy, crazy, and a vexatious litigant; 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 thinks if he can successfully evade service of process he'll never have to face the case; he refused to answer the door when sheriff's deputies came to his house to serve papers; judges don't like that (ask our friend Charles Carreon who got hit with a $46,000 attorney fee bill in part because he evaded service like Shuler); the sheriff served papers on Shuler by running a traffic stop on him for a purported moving violation; the reason you should care that Roger Shuler who is a crazy, creepy, vexatious litigant who may have defamed Mr. Riley out of political spite has been arrested is because the injunction was absurdly unconstitutional and apparently derived through raw political power; because such abuses aren't confined to people we all agree are creepy, crazy, and vexatious; by the way, though 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 because in addition to protecting crazy, creepy, vexatious people, the First Amendment also protects hypocritical assholes; someone has started a legal defense fund for Shuler and though I have doubts, based on how Shuler operates, that he has a factual basis for his accusations, I think that he should have competent counsel.
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