By Sara Rafsky/CPJ Americas Research Associate
Before his staffers, under government duress, took power drills and angle grinders to destroy company Macbooks in the newspaper’s basement, Guardian editor Alan Rusbridger made sure to send Edward Snowden’s leaked documents to New York newsrooms for safekeeping.
That’s because, although a number of U.S. newsgathering practices have been compromised during the past decade, particularly under the current administration, prior restraint -- or, as it is more commonly known, censorship -- is one issue that, it is commonly agreed, was settled, and essentially prohibited, decades ago by the Supreme Court. Most in the U.S. press freedom community, like Rusbridger, cannot imagine Obama administration officials looking on while New York Times staffers take drills to laptops in the basement of their Renzo Piano-designed headquarters.
But the sanctity of the prohibition against censorship is now being challenged in a perplexing case which, though far from Washington and very far outside the national security debate, could have wider implications for the press. Roger Shuler, an Alabama blogger who is notorious for making allegations of corruption and scandal in Republican circles, has been sitting in a Shelby County correctional facility for three weeks, according to news reports.
Shuler was arrested on October 23 on contempt of court charges for failure to comply with an October 1 preliminary injunction prohibiting him from publishing certain stories on his blog Legal Schnauzer. 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 blogs in July claiming that Riley had an extramarital affair and offering details. Riley vehemently denies the allegations.
Riley said in a telephone interview 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.”
Riley told CPJ: “Shuler has a history of making up things and writing things that are outlandish lies...I am going to pursue every avenue possible to me in the courts to defend my name, my family and my business...He has no proof this is true. He has just decided to be a cyber-bully and make stuff up and I’ve had enough.”
As the case was pending, the Circuit Court of Shelby County issued a temporary restraining order and preliminary injunction prohibiting Schuler from publishing more about the alleged affair. When Shuler continued to publish stories about Riley on his blog, the lawyer filed a petition asking that the blogger be held in contempt. He was arrested weeks later.
This, at least, is the narrative strung together from interviews with Shuler’s wife, Carol, who was named in the suits as the administrator of the site (but has not been arrested), the reporting by local news outlets and the Reporters Committee for the Freedom of the Press (RCFP), and court documents the Shulers published on Legal Schnauzer.
All records in the case have been sealed by the court and Shuler has not been granted a public hearing since his arrest (the first is scheduled for Thursday, Nov. 14), according to his wife.
Further complicating matters are murky details surrounding how Shuler was served notification of the suit (Shuler claims it was via an “unconstitutional traffic stop,” both sides agree he threw the papers out a car window); the manner in which he was taken into custody (Shuler says the officers beat him in his garage, the police charged him with resisting arrest); and Shuler’s failure to appear at the hearing after he was served (his wife claims that while the documents dated to July, authorities violated procedures by only serving him the day before the hearing) or at the hearing on his contempt charges.
Leading press freedom and civil rights groups say the ruling contradicts decades of First Amendment jurisprudence and does so in complete secrecy. As the RCFP said: “Neither a default judgment nor a full adjudication on the merits of the defamation claims appears to have occurred...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.” The American Civil Liberties Union, which filed an amicus curiae brief in the case on November 1, expressed exasperation in its motion for leave to file. “Indeed, because the entire record is sealed, the ACLU is forced to rely on Internet postings of documents for information regarding the Court’s proceedings. There is simply no legal justification for the filing of every document under seal,” the ACLU said, noting the irony that its brief is most likely to now also fall under seal (the document was posted online by Legal Schnauzer).
Both the RCFP, in a letter it filed in the case, and the ACLU mention New York Times Co. v. United States, the landmark 1971 Supreme Court decision which allowed publication of the Pentagon Papers and appeared to settle the issue of prior restraint definitively in the United States. The ruling conceded wiggle room only for the most exceptional situations, such as publishing troop movements in wartime or preventing imminent “nuclear holocaust.”
There is no mistaking Roger Shuler and Legal Schnauzer -- which specializes in tying local Republican political figures to an array of salacious sex scandals, gay pornography leaks, and divorce settlements gone wrong -- for James Risen and the New York Times. The Legal Schnauzer’s motto “The memory of a beloved pet inspires one couple's fight against injustice” is not quite “All the news that’s fit to print.”
However, when Roger Shuler goes to court Thursday, the press freedom and journalism community, bloggers and traditional reporters alike, should be paying close attention.
Sara Rafsky is research associate in CPJ's Americas program. A freelance journalist in South America and Southeast Asia, she was awarded a 2008 Fulbright Grant to research photojournalism and the Colombian armed conflict.
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