Monday, January 13, 2014

The troubling case of the Legal Schnauzer and Roger Shuler

imageI’m a few months late on this, but this New York Times story about the Robert Shuler situation reminded me that it’s time to weigh in.

In case you’re not up to speed, Shuler runs (or, ran) the controversial blog Legal Schnauzer, in which he has regularly accused (mostly Republican) officials of wide-ranging political corruption and on many occasions, sexual misconduct.

He had accused Robert Riley, Jr., son of former Governor Bob Riley, of having an illicit affair with Liberty Duke, a prominent Alabama lobbyist. He further accuses Republican operatives of paying Ms. Duke hundreds of thousands of dollars for an abortion and ordering her to keep quiet.

Both Riley and Duke denied the allegations and filed a defamation suit against Shuler. Shuler’s petulance and refusal to comply with court orders has landed him in the Shelby County jail. He was arrested last fall and remains in lockup to this day.

In a nutshell, an Alabama judge ordered Shuler to remove what he decided was defamatory content on the alleged affair, pregnancy and payoff. Shuler refused, was found in contempt and ordered to jail.

In the Alabama blogging community, the Schnauzer is almost universally perceived as a blog that promotes the wildest of the wild conspiracy theories. Almost no one takes Shuler seriously. It’s seen as an electronic version of your every day supermarket checkout tabloid.

But even supermarket tabloids enjoy the most basic freedoms enshrined in the First Amendment to the Constitution. What Shuler doesn’t seem to understand is that along with the freedom guaranteed by the First Amendment comes the responsibility to exercise it wisely and that failing to do so can result in very unpleasant consequences.

What the judge has apparently done with his injunction—ordering Shuler to remove the story from his blog pending litigation of the defamation trial—is what is known as prior restraint, a very carefully defined and rare situation where a judge decides that a publisher must hush until the case reaches trial. Prior restraint is almost always determined to be unconstitutional. It can only be exercised in extreme circumstances, such as preventing loss of life or preventing catastrophe.

While the Schnauzer is often obnoxious and routinely salacious, there is nothing in the case at hand that would appear to allow the judge to exercise prior restraint. It is clearly an unconstitutional overreach.

The problem is that Shuler refuses to accept legal counsel, even when offered the opportunity for the court to appoint a public defender to represent him. Shuler is a regular with the Alabama judicial system, and has almost always represented himself pro se. As the old adage goes, anyone who represents himself in a court of law has a fool for an attorney and an idiot for a client.

Predictably, Shuler has a lousy record in court. In fact, I don’t think he’s had a single significant victory. As a measure of his world view, he attributes his lousy record to conspiracy, corruption and judicial incompetence. He is his own worst enemy.

A newly barred attorney fresh out of law school could get Shuler freed based on a challenge on the prior restraint issue. But Shuler continues to decline legal counsel, insists on pro se representation, and as a result he continues to sit in the Shelby County lockup.

Remember the definition of insanity? Repeating the same effort, over and over again, and expecting a different result.

What’s troubling in this case is that it could establish a precedent in which all bloggers—in Alabama and beyond—might have their First Amendment rights seriously curtailed.

This blog has gone after several controversial issues, ranging from exposing an oil spill truther group to allegations of corruption at the highest levels of college athletics and state political actors. I’ve not been shy in this space. However, regular readers of this blog also know that I adhere to the Blogger’s Code of Ethics.

It’s not just a bunch of suggestions. The Code is set of a guiding principles. It’s so important, it’s linked right there at the top of the page.

If I go after public figures, I’ll either have my facts straight and be able to demonstrate the truth of my statements, or I will refrain from posting. I have refrained from posting many more times than I’ve gone forward with a story because I either couldn’t get someone to go on record or could not independently corroborate information provided by confidential sources.

In both of the cases I linked above where this blog went after folks, I gave the parties involved an opportunity to respond and state their side of the story. All refused, but that opportunity is necessary for honest reporting and factual presentation of the issues involved.

Bloggers do not enjoy the same protections that credentialed journalists in traditional media enjoy. I can’t have an anonymous source in a potentially defamatory story. I can’t make stuff up and publish it just because the organization or individuals involved are public figures or politicians. Along with my First Amendment rights come responsibilities. I am mindful of those responsibilities, as are 99% of other bloggers in this state and elsewhere.

Shuler doesn’t seem to get it. But that doesn’t mean the courts should be free to exercise prior restraint just because he’s not behaving responsibly. Mr. Riley and Ms. Duke have a legitimate right to have their grievance against Mr. Shuler adjudicated in a court of law. But that the court could silence an irresponsible blogger simply because the court has determined that he’s behaving irresponsibly is a dangerous step towards censorship. Even irresponsible speech is free speech, unless that speech threatens human life, national security or could lead to a manmade catastrophe.

I frankly believe that Shuler should be freed, even though I agree with virtually nothing he believes or has written. I may disagree with what he says, but I will fight to the death his right to say it.

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