By Eric Mann
For the second time since March, a warrant has been issued for the arrest of investigative journalist John Caylor for publishing the expunged court records of a Mobile area federal court clerk, and now the U.S. Marshals Service appears to be involved in the state misdemeanor case.
On March 30, Caylor turned himself in to Daphne police on a warrant for publishing the expunged 14-year-old court records of Thomas Scott Smith III, a clerk in the U.S. Southern District Court in Mobile. Caylor posted bail shortly after and faced a May 3 court date in Daphne Municipal Court. Caylor’s arrest was likely the first of its kind in the state based on a 2014 law which made it illegal to knowingly and maliciously publish a person’s expunged court record.
Alabama Code 15-27-16 bans disclosure of information from an expunged file without a court order. Any individual who knows an expungement order was granted and who intentionally and maliciously divulges those records has committed a Class B misdemeanor and could face up to a year in jail.
Caylor appeared before Judge Michael Hoyt and was ordered to remove the expunged records from his website, insider-magazine.com, while the case progresses. Hoyt continued the case until Aug. 9.
Caylor’s court-appointed attorney, Parker Sweet, said Daphne has a policy of resetting cases when people show up for court unaware their conviction may send them to jail. Sweet said he hopes the delay in the case will allow the parties come to a resolution.
On May 4, the morning following Caylor’s hearing, Smith filed a second complaint with Daphne police alleging Caylor had yet to comply with Hoyt’s order. A warrant was issued for Caylor’s arrest later that day. However, by midmorning the expunged documents had been removed.
According to Daphne Police Cpl. Jason Vannoy, investigators expected Caylor to turn himself in at 9 a.m. May 5, but he did not do so. Vannoy said Caylor previously expressed concern for his safety if incarcerated due to the nature of his work as an investigative journalist, a concern he reiterated to Lagniappe.
Caylor claimed a U.S. Marshal named Josh Devine has pressured him to remove Smith’s records from the website, along with documents related to U.S. District Court Judge Ginny Granade. Smith is a clerk in Granade’s courtroom. In addition to Smith’s records, Caylor posted information related to the judge’s alleged personal relationships as well as a property sale involving land donated for use as a school in Nashville more than 100 years earlier.
The land was used as such for many years, but according to the donor’s wishes, reverted to her heirs when it was no longer in use. According to news articles and court records, Granade was one of nine heirs who split $1.3 million after the land was quickly sold to a local hospital in early 2006.
Contacted on May 5, Devine declined to comment on the matter and instead directed questions to U.S. Marshals Service Southern District Office public information officer Delvin Brown. At press deadline, Brown had not returned voicemail messages seeking comment. The U.S. Marshals Service is supervised by the federal court.
Lagniappe obtained a recorded phone call Caylor claims took place May 8 between Devine and himself. In the recording, the caller identifies himself as “Josh from the Marshals Service.”
The caller tells Caylor he was notified a warrant had been issued for Caylor’s arrest. Caylor tells the caller he worked all night after his court date to try to remove the information from his website in compliance with the judge’s order. In the recording Caylor indicates the caller has previously made comments about the posts involving Smith.
“You told me that boy Smith deserved a chance,” Caylor says. He also references Devine talking to him as long as three weeks ago.
In the recording Caylor tells the caller he does not plan to turn himself in to authorities because he fears for his life, to which the caller assures him, “Nobody wants to kill you, I promise.”
When Caylor claims Granade is involved, the caller said “she ain’t got nothing to do with it.” Later, Caylor and the caller argue about whether or not a U.S. Marshal has the jurisdiction to pursue a wanted person across state lines on a state warrant for a misdemeanor. Caylor also asks why the caller is spending his Sunday talking about a state misdemeanor.
“I’m not a damn terrorist and I have absolutely no intention of inciting anybody to riot, or burning a city or killing anybody,” Caylor said. “You know better than that. You’ve read everything I’ve got. I’ve never had a record of being dishonest or being violent. I have a First Amendment weapon, and that’s my weapon. I write about the truth and I expose it. I’m not going to be subjected to anyone in government, especially law enforcement, telling me to tone it down.”
The caller then tells Caylor he is only looking out for the safety of the federal court.
“I am protecting their positions, I am protecting their safety,” the caller said. “You don’t have a history or any convictions of violence or anything like that. However, you make references of violence.”
In reading through Caylor’s posts, Lagniappe was unable to find any references or incitements of violence against Granade, Smith or anyone else.
The caller also says despite the call and efforts to get Caylor to turn himself in he is not actually investigating anything, but is concerned Caylor will do something that will lead to a federal warrant for his arrest.
“What I’m concerned about is that you’re going to get yourself fired up, going to get yourself emotionally charged, emotionally embedded with this stuff and you’re going to do something that is going to get you a federal charge,” the caller says.
Later he adds, “John, you can either work with me or against me.”
If convicted in Daphne Municipal Court, Vannoy said, Caylor would face a $500 fine and up to 12 months in jail. He also faces a civil complaint filed by Smith’s attorney, Thomas S. Smith, which seeks a declaratory judgment requiring the permanent removal from the website of the records of Smith’s arrest in Dothan for alleged possession of methamphetamine.
The records show Smith was allowed to attend a pretrial drug diversion program and was never tried or convicted in the case.
Smith’s complaint also asks that Caylor be permanently restrained from republishing those documents and required to surrender all copies of the materials in his possession.
Caylor filed a complaint asking that his civil case be unsealed and that Judge Joseph Norton recuse himself from hearing the case. The complaint also asks that the state law criminalizing the publication of expunged records be ruled unconstitutional, and seeks damages of $3.5 million. Court records indicate the complaint has been dismissed.
“I am not armed and I do not have access to a gun,” Caylor said in a statement released to Lagniappe. “I have no mental health history and I am not a criminal, except a First Amendment criminal. I do not want to die.”
Caylor has said his only weapon is the First Amendment.
Sweet said there is a serious question of whether or not the law represents an unconstitutional prior restraint on freedom of speech, and whether or not the publication of Smith’s records was done in a “malicious” manner.
“If Mr. Caylor genuinely believes that what he is publishing is newsworthy and serves the public interest and that he has the duty to expose it, that’s a defense,” Sweet said.
Sweet said he has not had contact with the U.S. Marshals Service, but said marshals are sworn to protect employees of the federal court system. If the U.S. Marshals Service believes a threat has been made against the court, Sweet said, they have an interest in the safety of the court.