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This is Carol, Roger's wife. The headline on The New York Times article says the Legal Schnauzer case raises questions about the first amendment. One sentence in the article says that the case makes for "an exceptionally messy test of constitutional law." But the article as a whole does not say that at all. In fact, the article states that the case really is about judicial incompetence and corruption in an Alabama courthouse.
Every legal expert cited by The Times says that Alabama Circuit Judge Claud Neilson has ruled unlawfully in the Legal Schnauzer case, resulting in the incarceration of publisher Roger Shuler. None of the experts says that the case raises new issues regarding the first amendment. A 2012 Virginia case called Dietz v. Perez states unequivocally that a preliminary injunction in an alleged defamation case is unlawful under the first amendment. The facts and procedure of the Schnauzer case are almost identical to Dietz, and that means that Shuler's incarceration is unlawful and he is due to be released immediately.
"This case really is about unlawful actions in an Alabama courtroom." Shuler said. "The first amendment has been rock-solid for roughly 230 years and the Dietz case shows that it's still very much intact and nothing in my case raises new issues regarding the first amendment. It simply is a matter of a rogue judge who has so far gotten away with making rulings that go way outside the law."
This is Carol, Roger's wife. An inmate was severely beaten by another inmate on Feb. 26 in the cell block where Legal Schnauzer publisher Roger Shuler is housed at the Shelby County Jail. The fight apparently started over theft of a telephone PIN account, the same problem for which Shuler has been victimized.
"This was the second most disturbing event I've witnessed in jail, next to the suicide of an inmate," Shuler said. "One man wound up with numerous welts and abrasions all over his head and face so the potential is there for serious damage. It's particularly disturbing that this involved alleged theft of a PIN account because I've experienced that myself. I know from experience that the Shelby County Jail provides no security or privacy for telephone use, and it's extremely easy for PIN information to be stolen. Even worse, the jail has done nothing to investigate my case which involved the loss of $99 and I'm still out that money and I have no evidence that the jail has even looked into it."
This is Carol, Roger's wife. The law is "crystal clear" that a preliminary injunction in an alleged defamation case is unlawful under the first amendment according to a free speech expert. Paul Alan Levy, an attorney with Public Citizen, was talking about a Virginia case styled Dietz v. Perez. But he might has well have been talking about the case of Legal Schnauzer publisher Roger Shuler because the two cases are almost identical in terms of facts and applicable law.
Levy's statement provides further proof that Shuler's incarceration is not grounded in law and he is due for immediate release. Despite the clear cut nature of the law, Levy said it is not unusual for judges to grant preliminary injunctions in such cases. That simply is a sign that laziness and incompetence run deep in America's courtroom.
From a Public Citizen article that Levy wrote:
"At the appellate level, and in the reported cases, it is crystal clear that, as the petition for review argues, a preliminary injunction against alleged defamation is an impermissible prior restraint. But it is not uncommon to hear about trial judges issuing temporary restraining orders or preliminary injunctions against alleged defamation. These orders are often made because they are sought ex parte and the judge does not do original research leading to clear law forbidding ex parte injunctions against speech, or because the defendant’s lawyer lacks enough sophistication to recognize and argue the prior restraint issue, or, in the end, because the trial judge just wants to do what he sees as fair. It is also not unusual for trial judges to “split the baby” by issuing an order that gives something to both sides. Apparently, we need more appellate precedent reminding trial judges that the First Amendment forbids such injunctions."
This is Carol, Roger's wife. Legal Schnauzer publisher Roger Shuler recently was held for more than a week at the Jefferson County Jail because of a hearing in the Jessica Medeiros Garrison case.
Shuler was transported for a 30 minute hearing on March 5 before Circuit Judge Don Blankenship. Shuler expected to be returned that day, but stayed in the Jefferson County Jail for a week before he was finally returned to Shelby County.
"I have no idea why I was detained so long at the Jefferson County Jail," Shuler said. "I don't know if it's just a case of general incompetence or someone was intentionally interfering with my case, but my experience in the Jefferson County Jail was extremely unpleasant."
This is Carol, Roger's wife. Attorney and author Andrew Kreig of Washington, D.C. visited Legal Schnauzer publisher Roger Shuler at the Jefferson County Jail on Monday, March 10. Kreig had traveled to the state on Thursday, March 6, to take part in that weekend's commemoration of the Selma march anniversary.
Kreig had attempted to visit Shuler upon his arrival in Birmingham on Thursday afternoon. However, officials at the Jefferson County Jail told Kreig that Shuler "was not there" despite the fact that Shuler was shown to be an inmate at Jefferson County Jail per their website and calls to the facility prior to the attempted visit indicated he was indeed being detained there. It is anyone's guess as to why officials mislead Kreig regarding Shuler's whereabouts when he stopped by the Jefferson County Jail on March 6. Thankfully, however, Kreig was able to finally meet with Shuler on Monday in the jailed journalist's second only visit by a reporter since his arrest on Oct. 23.
Kreig, executive director of the Washington, D.C.-based nonprofit Justice Integrity Project, has been covering the Legal Schnauzer first amendment case extensively since the investigative reporter's beating and unlawful arrest on Oct. 23. Following the jailhouse interview, Kreig wrote an article about his visit with Shuler which was published March 14.
Here is an excerpt from the article:
"Alabama commentator Roger Shuler's condition has sharply worsened during his nearly five months of jailing, as I learned by visiting him in Birmingham March 10.'It's a horrible trauma to be away from your wife, your home -- and have no idea when you can get out or how,' Shuler told me in a rare interview regarding his case, in which he is being held without bond in a civil case with no possibility foreseeable freedom unless he spikes his stories in apparent violation of Supreme Court protections for the public and the press.
He said he did not even know why he was being held in the Jefferson County facility after being jailed in nearby Shelby County nearly all of the four previous months. He was able to inform his wife of his locale only because a fellow prisoner released last weekend kindly contacted her. (As of March 12, he was back at Shelby County's jail following phone inquiries by his wife.)
'I've been treated fairly well by fellow prisoners,' Shuler told me. 'But some of them come in hyped up on drugs, and I've barely escaped some vicious fights, typically over some little thing like who gets to use a phone for a 15-minute call. Anybody can get killed, and I saw it happen.'"
Andrew Kreig also published his article on the OpEd News website. Here is the link to the article which appeared there March 16: Jailed Journalist Sends Shocking 'Letter from Birmingham Jail'
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|Roger Shuler's mug shot from the Shelby County Jail|
Shuler was released about 4:15 p.m. at the jail in Columbiana, Alabama, where he had been the only incarcerated journalist in the Western Hemisphere.
The arrest and incarceration has drawn national and international news coverage. Among the media outlets providing coverage are The New York Times, Al Jazeera, Huffington Post, Salon, Think Progress, WhoWhatWhy, FireDogLake, and more. Journalist/Attorney Andrew Kreig has provided ongoing in-depth coverage at his Washington-D.C.-based Justice-Integrity Project. Radio host Peter B. Collins has provided regular updates from his base in San Francisco.
Alan Colmes, of Fox News Radio, conducted a jailhouse interview with Shuler just last week, via telephone.
"I am grateful to have my freedom restored," Shuler says. "I also am grateful for the support of many readers, friends, and justice-focused citizens. This has been a traumatic experience for me and my wife, Carol, who has done a wonderful job of keeping our audience updated in my absence. Jail, of course, is not meant to be a pleasant experience, and I can provide first-hand testimony that it definitely is an unpleasant place to be, more so than probably many of us can imagine. It takes a tremendous physical, mental, and emotional toll."
We will have more details in upcoming posts.
In both interviews, I discussed the circumstances of my release and provided insights about life behind bars in an Alabama jail--one I was told that is built to the level of a maximum-security prison, although without the "amenities" of a prison. My jailhouse experiences included witnessing an inmate suicide.
My release came after my wife, Carol, managed to remove certain items from this blog, along with some from my Twitter and YouTube accounts. She then prepared a proposed release order and twice reached Judge Claud Neilson by phone to ensure that everything was in order. I called Carol from jail at about 2 p.m. last Wednesday, not knowing if any progress had been made. But she talked about her conversations with Neilson, and about two hours later, I was told at the jail to pack up my things and come to the door--those usually are the magic words that an inmate is about to go home.
Removal of the Web items was not our desired outcome, I told the interviewers. We had hoped to receive legal assistance that would have allowed me to be released based on the fact that a preliminary injunction in my case is unlawful, contrary to long-held U.S. Supreme Court law under Near v. Minnesota. But that process was dragging out, and having witnessed one inmate death and hearing about two others while I was at the jail, I felt it was imperative to seek my release by any lawful means necessary. That meant abiding by a court order that had been issued on October 21, 2013.
Colmes asked if I could have accomplished the same result by acting earlier, and I said, "I don't know." I noted that I had challenged service, which was conducted via an unconstitutional traffic stop, but I was arrested before ever receiving a ruling on that. I should note now that I was prepared to challenge the unlawful notice we received (barely 24 hours) on the preliminary-injunction hearing, but again I was behind bars before that could be done.
|Peter B. Collins|
Given the court's tone, I saw almost no way to get out at any time during late 2013. I sensed that things might be softening a bit sometime in February 2014. Carol states that during her two phone conversations with Neilson, the judge was cordial and came across as fair and understanding. The court seemed open to making my release happen quickly, and I did not have that impression earlier.
In the interviews, I got emotional at several points, especially when discussing my reunion with Carol, who did heroic work to keep this blog going and to share my story with any reporters who wanted to listen. I also got emotional when discussing my fellow inmates, who generally treated me with respect and kindness. Several became friends, and I hope to stay in touch with them in the future. I noted that many inmates seem to have mental-health issues--drug and alcohol problems--that do not seem to get proper attention in the jail environment.
Here are links to the two interviews. The full Collins interview requires a subscription, but a preview clip is available to the general public:
Alan Colmes interview
Peter B. Collins interview
Loyal readers have helped sustain this blog during a traumatic time, and we invite your financial support to help continue the battle. Donations can be made by clicking on the donate button to the right.
Shuler was incarcerated because of a civil-contempt charged based on a preliminary injunction in a defamation lawsuit. But American law long has held that such injunctions constitute an unlawful prior restraint and are forbidden under the First Amendment.
This is perhaps most strongly stated in Near v. Minnesota, a ground-breaking 1931 case on the subject of free-speech restrictions. From the opinion of Chief Justice C.J. Hughes in the Near case, addressing a Minnesota "anti defamation" statute and the issue of contempt:
If we cut through mere details of procedure, the operation and effect of the statute, in substance, is that public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter -- in particular, that the matter consists of charges against public officers of official dereliction -- and, unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is of the essence of censorship.
To anyone who has followed my case, those words from 1931 should be particularly chilling.
|Judge Claud Neilson|
The article is titled Legal Schnauzer blogger freed from jail after 5 months; had been held on contempt charge and focuses on steps that led to my release last Wednesday.
In the initial version of his report, Faulk noted that he had sought comment from me but had not received a reply. I contacted Faulk and told him that the e-mail had not appeared in my inbox, but I would be glad to comment or answer questions. His query finally reached me, and here is how it read:
I see from your blog that your wife removed some things from your blog etc. That satisfied the judge? Do you feel you had support from different groups during your incarceration? How so?
Here is my response:
"I'm very thankful to be out of jail. It was an extremely difficult experience, physically and mentally.
"I had hoped to be released much sooner than this, with the help of legal counsel that could have argued that the preliminary injunction in my case was improper under roughly 200 years of American law. It's a classic prior restraint, the kind that long has been forbidden under the First Amendment. Outside legal counsel was slow in developing, and I couldn't argue the case for myself from inside the jail, so over the course of several weeks my wife figured out how to remove certain items as ordered by the court and gained my release. I see her as a hero in this, operating under very stressful conditions.
"I guess you could say it was a survival move. While inmates and guards generally treated me well, jail is a rough place. I witnessed an inmate suicide and regularly witnessed fights or intense verbal altercations that threatened to become dangerous. I needed to get out, especially when you consider this was a civil matter that involved no criminal allegations.
"I regret that it took five months to make this happen, but we had very little direction from the court on how to make it happen. And inmates in general have limited opportunities to communicate with the outside world. I'm not sure the general public understands just how isolating the jail experience can be. I certainly didn't realize it until I experienced it.
"As for support from different groups, I know the ACLU and Reporters Committee for Freedom of the Press (RCFP) filed briefs on my behalf--and I greatly appreciate that. I know a lot of people from all walks of life were in touch with Carol, offering support in different ways. I think my case was so extraordinary--I was the only jailed journalist in the Western Hemisphere for 2013--I'm not sure a lot of people knew exactly how to respond to it. It's just not the kind of thing you see, or should see, in the United States. Plus, the case file was sealed for a number of months, and that helped keep people in the dark.
"I do know that Carol and I have been in a lot of thoughts and prayers, and that means more to us than I can say."
In the body of his report, Faulk notes the major role my wife, Carol, played in bridging the gap between the court and her inmate husband. From Faulk's report:
Roger Shuler, who writes the blog Legal Schnauzer, was released from the Shelby County Jail last Wednesday afternoon based on an order from Circuit Court Judge Claud D. Neilson.
In his order, Neilson stated that Shuler's wife, Carol Shuler, "has removed most of the subject matter of the injunction from the Legal Schnauzer blog, from Shuler's You Tube account, and from Shuler's Twitter account."
"The court is informed that the headlines about the subject matter of the injunction are still on the internet if you utilize Google or Yahoo. The defendant Roger Shuler, also has another blog/website that contains the material that was determined to be defamatory and made the subject of the permanent injunction," the judge wrote.
"Because of the good faith efforts made to remove the material by Carol Shuler, the court has determined that the defendant, Roger Shuler, may be released from custody pending a review by the court of all actions taken to remove the defamatory items and if the defendants have purged themselves of contempt," Neilson wrote.
But Neilson also cautioned that his final order in the case on Nov. 14, 2013 is a permanent injunction - ordering Shuler to take the comments down - and Shuler is subject to its terms in the future.
Reporter Michael Rooney wrote the article, titled "Blogger Roger Shuler released after five months in jail." Rooney addresses the challenges I faced in dealing with a court order that, according to commenters from both the left and right, ran contrary to long-established First Amendment law.
One of the fundamentals of civil contempt law in Alabama is that the subject must be capable of complying with the order. Here is how one article puts it:
Civil contempt refers to a willful, continuing failure or refusal of a person to comply with a court’s order, ruling, or command, including a subpoena. In order for there to be a civil contempt the ruling, order, or command must still be capable of being complied with before Alabama contempt charges will be justified.
In jail, with no access to a computer or the Web, I was not physically capable of complying with the court's order. That's why so much of the burden wound up falling on my wife, Carol. From the RCFP article:
Shuler said he did not take down the materials sooner because he did not have adequate information or resources to purge the contempt.
“At my Nov. 14 hearing, the only hearing I had in the case, the court gave me no direction on how I could purge myself of contempt," Shuler said. "I noted that I had no computer or Web access to take down the posts, even though I knew it was unlawful to be forced into taking them down. The court's response was more or less that I had to resolve that problem myself. With that kind of response from the court I felt caught between the proverbial ‘rock and a hard place.’”
Shuler also explained that “I also was limited by that fact that Carol and I had no experience dealing with issues related to jail and arrest."
"Neither of us ever had been close to being incarcerated before," he said. "We simply did the best we could with an extremely stressful, unfair situation.”
As Rooney notes, the RCFP was one of several organizations that issued briefs saying the take-down order was inappropriate from the outset:
The Reporters Committee for Freedom of the Press . . . argued that the process by which the court issued the take-down order was problematic.
"It appears that there was no full adjudication on the merits or default judgment ever issued against the Shulers on the defamation claim," the letter states. "As such, the temporary restraining order and preliminary injunctions amount to unconstitutional prior restraints."
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|The New York Times building|
The January 12 article, by reporter Campbell Robertson, inaccurately states that I was "unwilling to hire a lawyer" and that I planned to "bring federal criminal charges" against the judge in the defamation case that led to my incarceration.
But the newspaper stepped way out of bounds by hinting on multiple occasions that I have long been the target of defamation lawsuits. The record, however, shows that I had been a professional journalist for 35 years without ever being sued for defamation--until two Republican political figures filed similar lawsuits within roughly one month of each other in August/September 2013.
In short, my experience as the target of defamation lawsuits involves two cases in the span of roughly one month during a 35-year career. That constitutes "many defamation lawsuits"?
Robertson writes as follows in the body of the story:
Mr. Shuler is no stranger to defamation suits, as one might surmise from reading his blog.
That's off the mark, but it's fairly general in nature. The newspaper, however, goes way off track with its photo caption. (Note: Reporters usually do not write photo captions; that duty tends to fall to someone on a newspaper's copy desk.) I only became aware of the caption after being able to check the Web following my release from jail on March 26. Here is how the caption reads:
Posts on Roger Shuler’s blog, Legal Schnauzer, have prompted many defamation suits. His refusal to cooperate in one recent case has led to his being jailed since October and has drawn international attention.
Court records are public records that anyone can check, and they show that Legal Schnauzer has not prompted "many defamation lawsuits." (The part about my "refusal to cooperate" isn't true either. When faced with the lawsuit in question, I filed a motion to quash service after being handed court papers during an unconstitutional traffic stop. That was the first key issue to raise, but I was arrested before I received an order on that issue--or before I was able to raise any other defenses. It's hard, of course, to "cooperate" with the process when you are thrown in jail without access to a computer or even with a real pen to use.)
Natasha Lennard, of Salon, raised questions about inaccuracies in the Times story in an article dated January 14, 2014. From the Salon article:
A New York Times report on Shuler may have underplayed some chilling factors relating to the blogger’s situation. The Times story gave the strong impression that Shuler has regularly engaged in salacious and defamatory writing about Alabama lawmakers and policymakers. Carol Shuler, Roger’s wife, spoke to Salon and claimed this was an erroneous characterization. She noted that her husband had never been sued for defamation, until two suits were filed against him at the same time.
We now know that the Times, in its photo caption, did more than give a strong impression that I had regularly engaged in writing that sparked defamation lawsuits; the newspaper made a flat-out statement to that effect.
The public record shows that the assertion is untrue.
a new article from Think Progress reporter Nicole Flatow.
The article describes the no-win situation I encountered: I was faced with removing articles in an order that represented a clear prior restraint, conflicting with more than 200 years of First Amendment law; but if I was going to comply with the court order, I had no way of doing it. From the Think Progress piece:
Shuler was initially resistant to the order. But even when he wanted to comply, he didn’t know how.
“At my Nov. 14 hearing, the only hearing I had in the case, the court gave me no direction on how I could purge myself of contempt,” Shuler told the Reporters Committee for Freedom of the Press. “I noted that I had no computer or Web access to take down the posts, even though I knew it was unlawful to be forced into taking them down. The court’s response was more or less that I had to resolve that problem myself. With that kind of response from the court I felt caught between the proverbial ‘rock and a hard place.’”
Shuler said if he was lucky, he got to make a 15-minute call three or four times a week. “That’s the only communication I had with anybody,” said.
Getting legal assistance also was difficult. Writes Flatow:
And getting a lawyer wasn’t easy. While defendants in criminal cases who cannot afford a lawyer have a right to court-appointed counsel, the same is not true in civil contempt cases. Shuler called himself middle class, and said he would “really need either pro bono or contingency type of legal representation and I think it’s a possibility but it’s very slow in trying to make it happen.”
Shuler was supported by legal briefs in his case from the American Civil Liberties Union of Alabama, and the Reporters Committee for Freedom of the Press. But neither organization was representing him directly, and only he had the power to appeal his own case. Shuler didn’t appeal. He said he spent his time in jail fearing for his life, and figuring out how he could comply with a sweeping contempt order and get out of jail. As the Reporters Committee for Freedom of the Press explained in an October letter, the order included a vague mandate to take down all content related to the alleged affair, without ever deeming which content was actually defamatory.
I did wind up with an education about the nature of our "correctional" system, which doesn't seem to address many of the problems that put inmates behind bars:
Shuler was perhaps the most prominent inmate in Shelby County jail these last few months, but he says he wasn’t the only one who shouldn’t have been there. Most of the people he met were there for drug and alcohol problems, he said, or for mental health issues the jail didn’t appear suited to handle.
“Jail is I guess by definition a holding facility for people a lot of whom have not yet been found guilty of anything,” he said. (Jails typically hold individuals who have been charged but not yet convicted, or those who receive short sentences, typically less than a year). “I go to bed at night and a lot of times I think there are guys still in there … I get the feeling we’re in a culture right now, it’s sort of like arrest first, and ask questions later.”
How did other inmates respond when you said you were in for blogging?
People looked at me like I was crazy. Most Americans have a sense of what the First Amendment means, and I can’t tell you how many times people would say, “That’s wrong.” I never should have been in jail at all under the law. There’s just no provision for preliminary injunction in a defamation case. It runs contrary to First Amendment law that goes back to the 1800s.
As for the broader implications of the prior-restraint issues in my case . . .
Why do you think your case is important?
This is not just about journalists. It’s about anybody going on the Internet. There was a case similar to mine, Dietz v. Perez. Jane Perez had hired a contractor to work on her town home. She went on Angie’s List and Yelp and wrote a critical review and wound up getting sued. The contractor sought a permanent injunction [to get those posts removed], exactly like in my case, and the trial judge granted it. She got help from a group called Public Citizens out of D.C., and they got that injunction overturned.
What about jail food? We touched on that, too.
What was life like in jail?
Jail’s not supposed to be pleasant, and I can confirm that it isn’t. There were times I thought I wasn’t going to live through it. The inmates in general were nice to me, but it’s a volatile place where violence happens, and I was concerned on a regular basis about something breaking out. I lost probably close to 20 pounds. The Shelby County Jail—some of the meals are fine, but you just don’t get as much as you normally would. I’m tremendously grateful to be back home with my wife, Carol, and our two kitty cats and trying to get life back to normal again.
|Roger and Carol Shuler have an|
Reporter Wilson Dizard wrote the story, titled "Case of Jailed Blogger Raises First Amendment Concerns."
The merits of Shuler’s blog aside, journalist and civil liberties groups tend to agree that his incarceration raises flags in terms of First Amendment rights.
David Cullier, president of the Society of Professional Journalists, described the development as “extremely dangerous.”
“If he did wrong, then there are recourses in civil court, but the government should not throw people in jail for expressing themselves,” he said.
Some experts told Al Jazeera that I could have handled the case in a more effective manner. But I point out that I was arrested before even having an opportunity to answer the lawsuit or receive an order on fundamental motions regarding proper service and jurisdiction:
Shuler said he would have challenged the injunction using the First Amendment if he’d had the opportunity.
“I was never served with the restraining order. I've never seen it to this day. I certainly would have appealed the injunction on First Amendment grounds if I had not been arrested before I had the chance,” he said.I should note that I was open to hiring an attorney, but my arrest came so quickly that it short-circuited most any opportunities to defend myself.
Could this case have broader implications for general communications on the Web? It could if the law is applied to others as it has been applied to me--but hopefully, it won't come to that. A 2013/14 Virginia case styled Dietz v. Perez, involved a preliminary injunction very much like the one in my case. Fortunately, there was no effort to arrest Jane Perez, who had posted negative reviews at several Web forums about a contractor who had done repair work on her townhouse.
One expert called my incarceration an "aberration."
Shuler suggested that his case should concern all those who write on the Web, in whatever form.
“What if people could be jailed because of comments they make on Facebook or Twitter or any other Web forum? That could happen if the law were applied the way it has been in my case,” he said.
Others warn against widening the implications of this one case. Kurt Opsahl, a senior attorney with the Electronic Frontier Foundation, an Internet rights advocacy group, said that Shuler’s jailing was an “an aberration in the justice system that should not become a trend.”
“The Supreme Court has recognized that the full protections of the First Amendment apply online, and most courts have appropriately balanced the rights in online cases. Of course, as the Shuler case illustrates, there are some outliers,” he said.
Alabama political figure Rob Riley has asked a judge to determine if I had any involvement with a Web site running articles that had been removed from Legal Schnauzer in order to purge a contempt finding and gain my release from jail.
The Web site in question is legalschnauzera.blogspot.com, with the addition of an "a" being the only difference between it and the title and address of my blog. "LegalSchnauzera" is filled with pop-up ads and pretty clearly appears to be a rogue Web site of some sort.
Riley is asking Judge Claud Neilson for a hearing--or to require my wife, Carol, and me to show cause concerning any involvement with "LegalSchnauzera." Carol removed certain items from Legal Schnauzer, plus my YouTube and Twitter accounts, in order to purge a contempt finding and gain my release after five months in the Shelby County Jail.
The answer to the primary question at hand is simple--neither Carol nor I have ever had any involvement with "LegalSchnauzera" or any Web site like it. We only learned of it upon receiving Riley's court documents on Saturday. In his March 26 release finding, Neilson noted Carol's "good faith efforts" to remove certain items from sites that were under our control. We have continued to act in good faith, but now a rogue blog of unknown origins has muddied the waters.
So where did "LegalSchnauzera" come from, and who is behind it? We don't know the answer to that question, but we certainly would like to find out.
I've never claimed to be an expert on abuse issues in the blogosphere, but some quick research shows that content theft has become a mounting problem. It's often called "scraping" or "splogging," and apparently can be easy to accomplish. Here is how one article on the Web describes the process:
Online content theft is, unfortunately, a common incident these days. As soon as a site becomes popular, it’s only a matter of time before someone reproduces it and tries to make a buck from it. One simply needs access to a RSS feed and an Google AdSense account in order to monetize from someone else’s work, and sadly, this happens all too often.
A quick visit to "LegalSchnauzera" shows that it is awash in ads. If you click on an article, it tends to call up an ad. In some cases, ads are superimposed so that an article cannot be read. It appears that the articles are there only as a vehicle to attract ad revenue.
Why did someone choose my articles as such a vehicle? I have no idea, but after spending five months in jail, this seems like another gross violation of my fundamental rights as a citizen. In terms of taste, I don't want anyone thinking I might be involved with a site like "LegalSchnauzera." More importantly, Carol and I have dealt with the court in an upfront and honest way throughout--and we will continue to do so; we aren't into playing shell games via a Web site that appears to be anything but upfront and honest.
Reporter Kent Faulk picked up on the story at al.com, and I told him that it felt like my site had been "hijacked." The rogue site appears to have articles on more than 100 subjects we've covered at Legal Schnauzer, with a small portion of them about Rob Riley. Here is part of the al.com article:
In an email Saturday evening responding to questions from AL.com, Shuler stated he had received a copy of the filings by Rob Riley's attorneys Saturday afternoon and stated he was "baffled" and denied having anything to do with the other website.
"I've never heard of legalschnauzera.blogspot.com, and I have no involvement with it," Shuler wrote in the email. "I took my first glance at it a few minutes ago, and it appears that someone has taken many of my posts and adopted them as their own. The author claims to be someone named Poonam Verma, and I have no idea who that is--or if it is even a real person.
"I'm sure Mr. Riley is upset to discover this Web site, and so am I. It looks as if my site has been hijacked," Shuler wrote. "I've never dealt with this sort of problem before, so I'm not an expert on it, but I think the key thing is to contact the hosting site and let them know that someone is using their service in a fraudulent way. I'm looking into doing that right now.
"I will be glad to help Rob Riley and his associates in any way that I can to straighten this out," Shuler wrote. "I'm concerned that this has happened, and I hope I can help get to the bottom of it."
I plan to file a formal response with the court shortly.
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A Web site that Alabama political figure Rob Riley cited recently in court papers is registered to owners in India, an information-technology professional tells Legal Schnauzer. The IT source also states that it appears Legal Schnauzer has been the victim of a common form of content theft called "Web scraping."
The rogue site apparently has not been updated since September 2013, but it includes Legal Schnauzer posts from the early days of our site.
We have filed a response to the Riley document and outlined our findings regarding the origins of "LegalSchnauzera."
A blog based in India stole content from Legal Schnauzer by using a technique called "Web scraping," an information-technology professional states. What is the key tip-off? It's the rogue blog's use of advertising, our IT source states.
The blog, LegalSchnauzera.blogspot.com, uses an almost identical title and Web address as this blog--with the only difference being the addition of the letter "a" after schnauzer. Republican political figure Rob Riley cited LegalSchnauzera in court documents and claimed the site might signal that I had not been fully purged of contempt after my wife, Carol, removed certain items from sites under our control, leading to my release from jail.
Our IT source, however, says Legal Schnauzer has been the victim of content theft from the India-based knockoff. We have sent a cease-and-desist letter to the registered owners of the site, who are shown from advertising documents as:
Poonam Verma and Pushpender Kumar
Verdhaman Hall/Verdhaman Complex
Delhi, DL 110091
(Note: The spelling most often found on the Web is Vardhman Hall or Vardhman Complex.)
Our source says scraping clearly was present at the site:
Typically the term "Web Scraping" is used to describe the act of taking content from a third party website (such as your blog) and displaying it on (another) website. Web scraping is not always malicious. For example many popular travel websites utilize web scraping. When you search for a flight the travel website reaches out to third party websites such as Southwest, Delta and American Airlines. Only the relevant information from the third party website is displayed to the user. . .
As it relates to "Legalschnauzera.blogspot.com" it is clear that the website is blog scraping. (http://en.wikipedia.org/wiki/Blog_scraping) All links redirect the user to advertisements. The user probably used your RSS feed to automate the process and capitalize on advertising revenue. The creator of this website either used a fictitious name or did not have any concerns about revealing their identity. The owner of the blog is listed as Poonam Verma. I found two separate forms of advertising on this website. The first one was Google Adsense. The second one was more of a custom solution in which the links direct the user to other websites owned by Verma.
Legal Schnauzer is not the only blog to have its content lifted by a blogger from India who goes by the name "Poonam Verma." As happened in our case, part of the scheme is to add the letter "a" to the end of a key word in the URL.
The discovery came from Michael Donahue, an information-technology professional we asked to look at legalschnauzera.blogspot.come, the India-based site that copied our work. Donahue not only found the source of our problems, he also found at least one other U.S. blogger who had been targeted.
That was the Good Point Ideas Blog, which can be found at retroworks.blogspot.com. Robin Ingenthron, of Middlebury, Vermont, writes the blog and owns a company called American Retroworks Inc. The blog and the company focus on recycling, electronic exports, and fair trade.
On January 9, 2014, Ingenthron wrote a post about a blog from India that was lifting his content, and he traced it to someone using the name "Poonam Verma." In this case, the URL was changed to retroworksa.blogspot.com and the title became "Damageethical Blog."
From Ingenthron's post on the discovery:
How's this for a doppleganger? Damageethical Blog, "by Poonam Verma". He may be from India, or from Sri Lanka, I see 22 pages accessed from Sri Lanka this morning.
It's registered as retroworksa.blogspot.com (notice the letter "a" affixed to retroworks). And it's a complete reposting of my work in this blog.
Except every post has a crap link advertisement in front. I haven't found any malware.
So... since I'm a mission oriented dude, do I see this as "getting the word out?" Or should I be outraged at the paid ads for water removal, sewage, etc. he's selling? It's like running into a cyber-Leonard Zelig from India.
That's exactly what happened with Legal Schnauzer. An "a" was added to our URL, with content lifted and an ad linked to each post.
Our thanks to Michael Donahue for helping us learn that we aren't the only victims of this scam.
Reporting on my incarceration has focused on a preliminary injunction that constitutes an unlawful prior restraint under the First Amendment to the U.S. Constitution. Analysts from all sides of the political spectrum have come to that conclusion.
Problems with the injunction, however, do not end there; it also runs afoul of the Alabama Constitution.
Alabama often gets tagged as a backward state, but the state constitution takes a progressive stand on free-speech matters.
Powerful support for free speech is found in Article 1, Section 4, which states in part:
"No law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty."
We have found at least two cases where that sentiment was used to overturn prior restrictions on speech in Alabama. That means that the civil contempt finding and resulting incarceration in my case was contrary not only to fundamental Bill of Rights law at the national level, but it also appears to conflict with the Alabama Constitution's powerful language to ensure free speech.
Alabama might not be seen as a favorable spot for progressive ideas, but the state's strong support of free speech goes back more than 100 years. Case law from both state and federal courts in Alabama show that preliminary injunctions that restrict free speech--the kind that led to my recent incarceration--are unlawful.
We have found several such cases, with the help of the authors at the Popehat blog, which seems to present a right-of-center view on legal and political issues. An October 27, 2013, post at Popehat puts it simply:
The order underlying Shuler's arrest is unconstitutional. There is a strong and venerable rule in American law against pretrial injunctions prohibiting defamation.
The post then points out that this notion doesn't just find support in parts of the country that are considered moderate to liberal. It also has strong support right here in Alabama, and it conflicts with Judge Claud Neilson's preliminary injunction in my case. Writes Popehat:
This is not some mere Yankee affectation. The courts of Alabama — where Judge Neilson issued his injunction — have long recognized the principle. "Nor can an injunction be granted to restrain the publication of a libel." Montgomery & W.P.R. Co. v. Walton, 14 Ala. 207 (1848).
Popehat notes that an injunction is an equitable remedy, one that is only supposed to apply where legal remedies, such as money damages, are unavailable or inadequate. Popehat then shines light on these principles by citing a federal case that was heard in Alabama in 1909.
We will take a look at that case, and what it says about my 2014 situation, in an upcoming post.
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