One of the more interesting cases involving how freedom of speech, libel law and the Internet converge has been going on in Alabama over the past five months.
As I’ve written before, Roger Shuler, a blogger known as “The Legal Schnauzer” felt the law fall heavily upon him late last year after writing a series of scandalous articles about Rob Riley, son of the former governor, and Attorney General Luther Strange, to name a couple. His claims have been salacious, alleging affairs by both men, naming names of supposed lovers and even accusing Riley of misusing GOP money in order to silence his paramour and get her an abortion.
The stories on his website, legalschnauzer.blogspot.com, landed Shuler in hot water and late last year he ignored a summons to go to court, even throwing court papers and cursing at law enforcement officials, according to published reports, which landed him in the slammer without bond.
But what took it to the next level was that Circuit Court Judge Claud Neilson granted Riley an injunction that essentially has the state committing what’s called “prior restraint” by barring Shuler from writing any more about Riley. Neilson held Shuler without bond and sealed the court records. With that move the judge transformed Shuler — who most journalists would probably consider to be erratic and careless as a news gatherer — into a journalistic cause celeb.
His jailing caused outrage across the country and even around the globe, although some have pumped up Shuler’s status as a credible journalist a good bit in my opinion. Still, he was only able to get out of jail after making changes to his website.
“I was released on March 26 and was in jail for five months,” Shuler said. He added, “The charge was civil contempt, based primarily on failure to abide by a preliminary injunction to remove certain articles from the blog. That’s where the prior restraint issue comes in. My wife, Carol, finally was able to remove those articles, and that is what led to my release. I was in jail and could not remove the articles myself, so it was a sort of ‘rock and hard place’ situation. It took us a while to figure out how to address it.”
Shuler’s situation raises a lot of questions dealing with the way things are evolving on the web. It used to be only businesses with deep pockets had the reach to spread information far and wide, thus they were more careful and concerned about getting sued for libel. But the web allows people to sometimes have very large regional or national readerships without necessarily having much money. In such cases someone might become almost “judgment proof” because there’s nothing to get financially.
So if you can’t really get much money if you’re libeled, how do you handle someone writing over and over about such alleged sordid behavior? In this situation such accusations fall in a difficult area, since people like Riley and Strange are “public figures” and enjoy far less protection from libel than would a private citizen just minding his own business. In the case of public figures “actual malice” must be proven, which essentially means showing the person publishing the information knew it was false and did so with the intent to harm the subject of the stories.
In the Schnauzer’s case, he hasn’t really produced any actual evidence his claims are true and Riley and former Luther Strange campaign aide Jessica Medeiros Garrison have both sued him for defamation. Shuler said the suit by Garrison is ongoing. Because of the permanent injunction in the Riley case, Shuler was unable to say much about what’s happening there.
The fact that Shuler had to remove articles from his website in order to get out of jail seems bizarre, but it does raise questions as to how such things should be handled. In the “old days,” the newspaper was gone in a day or so, the television broadcast was gone in minutes. But the website lives on and on, regardless of whether someone is there tending to it or not.
In this case, a second website, legalschnauzera.blogspot.com, suddenly showed up still running some of the articles that were supposed to be pulled from Shuler’s site. He has said online that the schnauzera site is a “rouge” site and he has nothing to do with it. Still it caused some legal hiccups, according to Shuler’s site.
I’m not sure how far Shuler will push this issue legally. If he can’t prove the things he’s published are true, that may make it even more difficult for him to legally fight back against the permanent injunction and the prior restraint it creates.
But the case is one that has the potential to be important in setting precedent in the world of libel on the web. There are already efforts to legally define publications based upon some government criteria, and what First Amendment protections small web-only publications or blogs will enjoy seems hazy.
On the flipside of things, though, certainly there is a burgeoning trend on the web of total irresponsibility as far as what is written and what people are accused of. And that it lives on and on for the whole world to see may end up leading to some erosion of our rights.