Updates on Roger Shuler: No Longer a Prior Restraint?

This is the latest post in what I half-jokingly call The Kimberlin Saga^®.  If you are new to the story, that’s okay! Not everyone reads my blog.  The short version is that Kimberlin has been harassing me for over a year, his worst conduct being when he attempted to frame me for a crime.   I recognize that this might sound like an incredible claim, but I provide video and documentary evidence of that fact; in other words, you don’t have to believe my word.  You only have to believe your eyes.  So, if you are new to the story, go to this page and you’ll be able to catch up on what has been happening.

That question mark is correctly placed.  I will attempt to reach out to some parties today but according to a local CBS affiliate, the prior restraint element of the injunction may have been removed.

To recap (and I will put it in bold when the recap ends, so you can skip to it if you don’t need the review), Roger Shuler is frankly a crank who writes a blog called the Legal Schnauzer.  I mean seriously, just read where I explored his writings: the man is paranoid, finding conspiracies in the most ordinary workings of the courts.  He was also a cheerleader for Brett Kimberlin’s attempt to suppress my freedom of expression last year and we have come to suspect he is an unappreciated member of Team Kimberlin.  John Hoge has taken to calling him the Jailbird Advocate General, sticking with his Naval-themed nicknames.

And as you know, he was arrested.  Basically he wrote a series of posts accusing Robert Riley Jr. (son of a former governor of Alabama), of having an affair with a lobbyist named Liberty Duke, conceiving a child with her, and then procuring an abortion (and her silence) by some shady finances.  These posts cited unnamed sources, without any specifics as to dates, times, locations, etc. and he has not named them in any other context.  And not only do the alleged paramours deny the affair, but Riley has claimed he is medically incapable of fathering children at the time he was alleged to have done so, but he would not elaborate whether that meant he had a vasectomy or what.

Riley and Duke then sued Shuler for defamation.  As the case went forward, they got the records sealed—which I think is unjustified—and then Riley sought an injunction against him.  They held a preliminary injunction hearing.  Shuler was informed ahead of time that this would be happening, but claimed the service was invalid.  I find his argument specious and even if he was right, it was still stupid for him to skip the hearing.  Anyway, so the court found that he had defamed the plaintiffs and put out preliminary injunction.  That injunction contained three commands, more or less: 1) take down the claims about the affair/abortion, 2) do not repeat those claims in the future, and 3) do not otherwise defame Riley and Duke in the future.

It’s that third part that is most noxious.  Of course defamation is not protected speech, but the problem is that it is likely to chill speech that is protected. I mean how would Shuler be certain if he wrote something negative about either of them that the courts would or wouldn’t find it to be defamatory… if Shuler had any tendency to obey the courts.  And apparently Shuler did not.  He did none of it and thus eventually the court put out a warrant for him to be arrested for contempt of court.  When he was arrested, he allegedly resisted arrest and was charged for that as well.  And to this day he is being held without bail.

So ending the recap, the ACLU decided to intervene.  They were not going to weigh in on the truth or falsity of Shuler’s charges, they have filed a memorandum in which... holy crap, I was cited!  Cool!  I have never gotten an ACLUalanche before!  You can read it here.  But the upshot of the brief is to say that the injunction shouldn’t have been issued and the case shouldn’t have been sealed, both points I agreed with.  The Reporter’s Committee for Freedom of the Press wrote a letter, but it is not materially different from the ACLU memorandum and not being an official filing, I am not sure how effective it is.  At best it simply says to the judge that “we as a group are disturbed” which has some value.

(I was cited by the ACLU for the proposition that the sealed documents are all over the web anyway, which means that I may have materially helped Shuler, for which I do feel some satisfaction.)

Popehat also reports that there was preliminary hearing on Tuesday on the resisting arrest charge and Shuler refused a court-appointed attorney, which Popehat rightfully considers to be a really dumb decision.

So onto yesterday and the big news is that they held a permanent injunction hearing... and it was granted.  You can read about it, here, but there are suggestions in the report that the ACLU may have won some points.  Here’s what we can get from it.

This is a prepared statement from Jay Murrill, Riley’s attorney, but it appears that Shuler is continuing to be his own worst enemy.  From Murrill’s official statement:

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.

Of course that is one side’s version of events, but there are two reasons to credit it.  First, dishonesty on this kind of subject could subject Mr. Murrill to attorney discipline and second, because it sounds in character for Shuler.

Second, we see the suggestion that despite Shuler’s “help” the ACLU may have scored a few points for him.  Still continuing Murrill’s statement:

The Court informed the parties that it will be entering a permanent injunction that will require Mr. Shuler to remove the defamatory statements from Mr. Shuler's website.

That sounds like the court may have modified the injunction so that all it now does is command Shuler to take down the offending posts.  Now the difficulty is that in the prior paragraph, Murrill makes it sound like the previous injunction only said that, too, by artful wording.  That is not true.   But my intuition is that this is an indication that the prior restraint elements of the suit have been removed is bolstered by the fact Murrill said this as well:

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.

That only makes even a modicum of sense if all of the prior restraint elements from the prior preliminary injunction have been removed.  If that is the case, then how can I say it?  I don’t think it is right to have injunctions removing posts, but I don’t see a great danger to the First Amendment from it.  Indeed I can strongly see the opposing argument.

I read a piece a while back—sorry, I don’t remember where—where they author noted that in the past this kind of thing was never done because it was impractical.  If it is 1950 and the New York Times libels you, you can’t expect anyone to retrieve every copy of it and excise the offending statements.  It just couldn’t be done.  But in the age of the internet, you can go back and find the actual web page in which the defamation was contained and either remove the page entirely, or remove that portion that is defamatory.  If a specific statement is found by a court of law to be defamatory, if the court finds that Riley and Duke are being damaged by that defamation, I don’t see any great First Amendment danger to saying, “looking backwards, you shouldn’t have said this and I am going to command that you remove the statement.”  As defamation there is no protection for that expression in and of itself.  And there is no danger of a chilling effect, either, because such an injunction doesn’t look to future speech: it just says, “take X down.”  So while I disagree with the ruling, my First Amendment alarm bells would not go off in that situation; it becomes a more ordinary mistake of law, rather than a precedent that threatens freedom of speech itself.

If that is indeed the ruling.  And I suspect one way or the other we will know soon, for Murrill’s statement had another revelation in it.  He explained that everyone can see why the court ruled as it did, saying, “All of this is clear if you look at the Court's records, which the Court has now agreed to unseal.”  This is excellent spin, but basically Riley’s motion to seal has apparently been overturned in whole or in part.  There might still be very specific things that are sealed, but the case as a whole apparently is going to be on public record again although it seems the order to unseal hasn’t been fully processed, yet.  This also might loosen some tongues on the case as a whole.  We shall see.

But even if the injunction is pared back, it seems unlikely that the Shulers are going to comply.  Murrill’s statement claims that “Mr. Shuler informed the Court that he will not remove the statements and that he's prepared to sit in jail.”  Meanwhile, in the article itself, we get this from Shuler’s wife:

[Mrs.] Shuler says her husband represented himself and told the judge that he couldn't take down the posts from a jail cell, but that's where he remains.

She says she doesn't know how to take down the posts and is afraid that she will be arrested also.

First, I am sure that if the order was simply to remove the posts and Roger Shuler promised to do so, they would let him out of jail in order to do it—although perhaps with some supervision.  Second, I find it difficult to believe that Carol Shuler doesn’t know how to take down the posts.  The blog uses Google’s Blogspot interface, just like this one.  As a user of that interface I can say it is in fact very easy.  Indeed she doesn’t even have to delete them: she can revert the offending posts to “draft status,” and thus preserve them should her husband ever be free to publish them again.  All one needs is Roger’s username and password and does she have that?  Well, let’s look at this post over at Legal Schnauzer, from November 11:

This is [redacted], Roger's wife. Today as we celebrate the sacrifices of our brave men and women in uniform this Veteran's Day

I mean we cannot be one hundred percent certain that Mrs. Shuler wrote that, but if she did, then that means she can access the site and thus she can, with a little effort, remove the posts.  And certainly friends like Matt Osborne could show her how to do it.  So she holds the key to her husband’s jail cell in her hands and is refusing to turn it.  Indeed she claims that  she doesn’t know how, a claim that is hard to credit.

On twitter there is some speculation that Riley’s attorneys might next ask Google to take down the offending posts for the Shulers.  Google has reportedly done this sort of thing in the Kimberlin v. Allen litigation: that is, Kimberlin obtained an order from Google requiring them to take down certain post on Seth Allen’s blog and they complied.  So maybe this is a way out of the logjam for Shuler: Google takes down the posts for him, and then Roger Shuler maybe serves an additional sentence for contempt and then is let out.  That is possible, but I see no reports so far that this is being done.

Anyway, I will work to verify some of the speculation here, but it seems that even if Shuler has continued to lose, the First Amendment might have won.  If that is the case, I might simply give in to my schadenfreude about the whole thing and chuckle at his misfortune.  As I said I don’t emotionally feel any sympathy for the man, but with Spock-like logic I recognize that there are larger issues involved and have written in support of his First Amendment rights, which until now have definitely been trampled.  Once it is verified that his First Amendment rights are not being violated, I will have no logical reasons to provide any support to him whatsoever and indeed, his hope to be some kind of First Amendment martyr is likely to sputter out.

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Disclosure: the ACLU did provide some legal help to me when I was fighting Brett Kimberlin’s flagrantly unconstitutional peace order last year.  I don’t think that affects my analysis at all, but you had a right to know.

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My wife and I have lost our jobs due to the harassment of convicted terrorist Brett Kimberlin, including an attempt to get us killed and to frame me for a crime carrying a sentence of up to ten years.  I know that claim sounds fantastic, but if you read starting here, you will see absolute proof of these claims using documentary and video evidence.  If you would like to help in the fight to hold Mr. Kimberlin accountable, please hit the donation link on the right.  And thank you.

Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

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Disclaimer:

I have accused some people, particularly Brett Kimberlin, of reprehensible conduct.  In some cases, the conduct is even criminal.  In all cases, the only justice I want is through the appropriate legal process—such as the criminal justice system.  I do not want to see vigilante violence against any person or any threat of such violence.  This kind of conduct is not only morally wrong, but it is counter-productive.

In the particular case of Brett Kimberlin, I do not want you to even contact him.  Do not call him.  Do not write him a letter.  Do not write him an email.  Do not text-message him.  Do not engage in any kind of directed communication.  I say this in part because under Maryland law, that can quickly become harassment and I don’t want that to happen to him.

And for that matter, don’t go on his property.  Don’t sneak around and try to photograph him.  Frankly try not to even be within his field of vision.  Your behavior could quickly cross the line into harassment in that way too (not to mention trespass and other concerns).

And do not contact his organizations, either.  And most of all, leave his family alone.

The only exception to all that is that if you are reporting on this, there is of course nothing wrong with contacting him for things like his official response to any stories you might report.  And even then if he tells you to stop contacting him, obey that request.  That this is a key element in making out a harassment claim under Maryland law—that a person asks you to stop and you refuse.

And let me say something else.  In my heart of hearts, I don’t believe that any person supporting me has done any of the above.  But if any of you have, stop it, and if you haven’t don’t start.