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.

Riley did not respond to Al Jazeera’s request for comment. But speaking to the Committee to Protect Journalists (CPJ) after Shuler’s arrest last year, Riley signaled an intention to use “every avenue possible” to prevent Shuler — whom Riley has referred to as a “cyberbully” — from further smearing him.

“To make up a lie, destroy someone’s reputation — that’s not journalism," he told the CPJ.

Shuler, who before his release was the only person on the CPJ’s index of journalists serving time in the United States, denies that his post crossed the line of what is acceptable.

“I would never intentionally violate anyone’s right to privacy, and I believe my record as a journalist shows that.”

He added that he was “looking at his legal options” but said he is prevented by the court from discussing specifics relating to Riley’s lawsuit.

It has been reported that Shuler intends to initiate civil and federal criminal proceedings challenging his detention.

The contempt charge stemmed from his refusal to accept a court summons that the Shelby County Sheriff’s Office served him.

Shuler said he had grounds to ignore the court order because the legal documents were served in what he said was an unconstitutional way. “Without lawful service, the court has no jurisdiction over my wife and me,” he told Al Jazeera.

But others — even those who agree that it was wrong to incarcerate him — have said the blogger did not help himself in his bid to remain out of jail.

He did not show up for hearings in the case. And he could have taken immediate action to appeal the injunction on First Amendment grounds.

“Shuler didn’t do himself any favors in this litigation,” said Randall Marshall, legal director of the Alabama chapter of the American Civil Liberties Union, who wrote a friend-of-the-court brief arguing the ruling was wrong. “If he had immediately appealed the preliminary injunction, which he had the right to do, I believe that an appellate court would have set that aside.”

“It was clear in our minds,” Marshall said, “that the temporary restraining [order] and the preliminary injunction violated the First Amendment.”

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.

Marshall and others have voiced concerns over the court’s use of prior restraint — censoring expression in advance. In any case, in the Internet age, pulling down the initial post would not have removed the risk of defamation. “With the Internet now, the injunctive relief really is no remedy at all,” he said. “Even if the guy just took down those comments, you can find them 15 other places on the Internet.”

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.