Alabama blogger Roger Shuler is being held in indefinite detention in a state prison for refusing to comply with an injunction barring him from exposing political corruption.  His story raises serious concerns not only about the erosion rights guaranteed under the First Amendment of the US constitution, but the demise of democracy in the Western Hemisphere.

The Committee for the Protection of Journalists (CPJ) maintains a list of those jailed for journalism around the world – and the US now joins the ranks of Macedonia, Kuwait, Pakistan and Thailand in keeping a journalist behind bars.  According to the CPJ:

Shuler, whose blog Legal Schnauzer specializes in allegations of corruption and scandal in Republican circles in Alabama, was arrested on contempt of court charges for failure to comply with an October 1, 2013, preliminary injunction prohibiting him from publishing certain stories on his blog. The charges stem from a defamation suit brought by prominent local attorney Robert Riley, Jr., son of a two-term former Alabama governor and a rumored future political candidate himself. The suit is related to Shuler’s blog posts in July 2013 that claimed Riley had an extramarital affair and offered details. Riley vehemently denies the allegations.

In an interview with CPJ, Riley said he has a right to seek injunctive relief in a defamation case and there is legal precedent for doing so. He said someone who decides “to make up a lie, destroy someone’s reputation, that’s not journalism.”

Shuler was charged on Oct. 23 2013 with two counts of contempt of court for allegedly violating a temporary restraining order and preliminary injunction. The Circuit Court of Shelby County, Alabama had ordered Shuler to remove stories that alleged that Robert Riley, Jr., the son of a former Alabama governor, had an affair with and impregnated lobbyist Liberty Duke.

There are several factors which make this case extraordinary and a dangerous exercise in precedent setting.

Prior Restraint

Before the charge of defamation could be heard in a court of law, a judge issued a preliminary injunction or prior restraint order to Shuler, which is effectively a gagging order.  This is a constitutional grey area, with an exceptionally high burden of proof required to take such a step, it looks unlikely that this case would merit such an order based on either the weight of evidence or public importance/national security test.

As Reporters Committee for Freedom of the Press (RCFP) explains:

“Neither a default judgment nor a full adjudication on the merits of the defamation claims appears to have occurred, people familiar with the case said. Courts have determined that bans on speech prior to such determinations are prior restraints. The Supreme Court has found prior restraints to be presumptively unconstitutional and has never upheld one.”

Vendetta

The timing of the preliminary injunction and defamation orders also raised suspicions. Despite Shuler’s reputation for emptying both barrels at the Alabama political elite in the Legal Schnauzer blog, his wife Carol told Salon that ““This is our first defamation case since starting the blog in June 2007..They both hit at the same time and we think they are linked in effort to shut us down by the power brokers in this state. But other than that we have never been sued for defamation.”

A recent piece on the case by the New York Times even misrepresented the blog, giving the impression that Shuler was known for unfounded and salacious accusations about Alabama’s law and policy makers (in which case one would expect prior suits), and also claiming that Shuler was somehow milking his prison sentence by not engaging the services of a lawyer.  His wife Carol explains:

“The Times article was entirely in error in suggesting that we are not seeking a lawyer.  My husband and I both told the [Times] reporter repeatedly that we were in fact very much wanting a lawyer and were in fact looking for one, however, we did not have the resources to pay an attorney. We hope to find a good First Amendment or constitutional law attorney who could represent us pro bono or by contingency.”

Secrecy

All records pertaining to the case have been sealed by the Alabama courts, meaning external parties, human rights organisations and the Shulers themselves are unaware of the evidence and testimony against them.

This from the RCFP:

The American Civil Liberties Union of Alabama asked the court on Monday for permission to file a friend-of-the-court brief on behalf of Shuler. The group is arguing that the both injunctions and the decision to seal all of the records in the case are unconstitutional, legal director Randall Marshall said.

“It’s hard to see any justification for filing everything under seal,” Marshall said. “The motion to file everything under seal is itself sealed. Every document in its entirety should not be hidden from public view.”

Shuler was also charged with resisting arrest, while he claims police brutality took place during his un-necessary and potentially unlawful arrest.  Shuler is being held to ransom – take down the blog posts, or remain in jail.

So what you have is a journalist jailed indefinitely for refusing to be silenced by allegations of defamation that have never been proven, and whose evidence of lack thereof is hidden from public view.  This sets precedent for any aggrieved politician or lawmaker to gag journalists without needing to challenge the voracity of their claims in court, and journalists who refuse to be bound by such an injudicious process can find themselves detained indefinitely in the prison system.  Does that sound like the actions of a democratic state to you?

 

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About The Author

Kerry-anne Mendoza is a writer, blogger and activist. She is the author of the Scriptonite Daily blog which explores matters of current affairs, politics, economics and ideas. She is also a contributor to New Internationalist, openDemocracy, Trebuchet Magazine, the Occupy News Network and others. She is based in the UK, and left her career as a Management Consultant having held senior positions in banking, local government and the NHS to be part of the Occupy Movement. She has since worked as a writer and campaigner for social, economic and environmental justice.