Shuler, who writes the Alabama politics blog Legal Schnauzer, drew the ire of the powers that be when he doggedly pursued the alleged extramarital affair of a prominent lawyer rumored to be running for Congress. After allegations that his writing was potentially defamatory, Shuler was ordered by a judge not to write anything else about Robert Riley, Jr.’s alleged extramarital affair and other related content. And when he didn’t comply, Alabama officials jailed him for contempt. All of the records in this case were sealed and unavailable for public view.
All of this was almost certainly a First Amendment violation, and both the American Civil Liberties Union and the Reporters Committee for Freedom of the Press filed amicus briefs to say so. Ordering a journalist not to publish items that have not yet been written is what is known as a “prior restraint” and it has been deemed presumptively unconstitutional by the U.S. Supreme Court. But Shuler remained in jail, in part because of the faulty order, and in part because of his own failure to exhaust legal avenues for challenging the ruling. He didn’t hire a lawyer to represent him, he didn’t appeal the ruling, and he didn’t show up for court dates to defend his case, according to reports.
Last week, a judge allowed his release at least temporarily after Shuler made what the court deemed “good faith” efforts to remove content relating to the allegation. He cautioned, however, that Shuler might be asked to take down additional items after full court review. What’s more, the permanent injunction remains in effect, meaning Shuler remains banned from talking about the alleged affair of a potential political candidate going forward.
ACLU of Alabama’s Randall Marshall, who filed the amicus brief in Shuler’s case, said the law on prior restraint is so well-established that the only cases in which he sees this happening are those like Shuler’s in which a defendant is not represented by a lawyer and not pressing the First Amendment issues.
“Obviously I think the trial court judge has an independent obligation to ensure that he’s not issuing orders that run afoul of the Constitution,” Marshall said. In its amicus brief, the ACLU asked the Shelby County court to dissolve the preliminary injunction even in the absence of a request from Shuler, and to unseal the records. The court did unseal the records, and narrowed the scope of the injunction in the permanent order. But it didn’t overturn it entirely, perhaps in part because Shuler didn’t appeal. “At least when a judge runs afoul of the Constitution you have a remedy and that’s to the court of appeals,” Marshall said.
Shuler said he did “the best we could with an extremely stressful, unfair situation.” “I also was limited by that fact that [my wife] Carol and I had no experience dealing with issues related to jail and arrest,” he said, according to the the Reporters Committee for Freedom of the Press.
Shuler says now he plans to file a civil lawsuit challenging his detention.