An Alabama blogger who continued to write about the alleged extramarital affair of a prominent lawyer despite a court order was arrested and jailed last week. He was still being held without bond as of Tuesday, according to reports.
Roger Shuler, a former local newspaper reporter, writes a blog about Alabama politics, Legal Schnauzer. He wrote a series of posts alleging that Robert Riley, Jr., son of former Alabama governor Bob Riley and a lawyer rumored to be running for Congress, had an affair with lobbyist Liberty Duke.
Riley sued Shuler and his wife, Carol Shuler, last year for alleged defamation. The court issued a temporary restraining order and preliminary and injunction that prohibited Shuler from writing anything about Riley’s alleged extramarital affair, allegations that he had a child out of wedlock, and other related stories, according to documents posted online. When Shuler continued to write about Riley’s alleged affair, police pursued him during a traffic stop and arrested him for contempt.
As even Shuler’s critics have pointed out, this sort of order is what is known as a prior restraint on First Amendment expression and is almost certainly unconstitutional. In fact, as California lawyer/blogger Ken White points out, the Shelby County court order failed to even acknowledge any of the many U.S. Supreme Court cases that have deemed this sort of advance ban on speech presumptively unconstitutional.
White describes Shuler as a “vexatious litigant,” and notes that Shuler failed to appear in court for the hearing in Riley’s lawsuit. Carol Schuler told Reporters Committee for Freedom of the Press they didn’t appear because they considered the lawsuit “completely absurd.” But the reasons are irrelevant to the constitutionality of the court order.
This is the second incident of law enforcement interference with the press this month. In Maryland, officers executing a search warrant to look for weapons seized unrelated government documents from a former Washington Times reporter’s home, which she had obtained through the Freedom of Information Act in the course of reporting. The documents were seized by a Coast Guard investigator who accompanied the officers, and who reportedly asked Audrey Hudson whether she had written a series critical of the Federal Air Marshal program several years ago. In this case, however, the agency has since returned the documents with an apology, and did not pursue legal action against Hudson. According to the latest reports on Shuler, he remains in jail.