Popehat Quoted in New York Times on Roger Shuler: “Idiocy Is Not a Zero-Sum Game”
Roger Shuler is an extraordinarily reckless leftist who has published several questionable pieces about figures on the right. No rumor is too thin, and no allegation too unsourced, to make its way into the pages of Shuler’s blog — as long as the target is someone on the right. (The fans of Brett Kimberlin love him.)
But when Shuler published one of his wild accusations against the son of a former Alabama governor, a judge issued apparently unconstitutional prior restraint orders before a final adjudication of the lawsuit. When Shuler then refused to obey the judge’s order, police came to arrest him for contempt. He allegedly resisted, and he was charged with contempt and resisting arrest. He has been jailed for weeks.
The New York Times has published an article about Shuler, the judge who issued the apparently illegal orders, and the entire situation is summed up well by my friend Ken White from Popehat, who is quoted in the article:
“You’ve got a situation where sometimes there’s no good guys,” said Ken White, a former federal prosecutor in Los Angeles who writes about and practices First Amendment law.
. . . .
“Idiocy is not a zero-sum game,” Mr. White said. “I think you can say that what the court is doing is unconstitutional and troublesome and also that Shuler is his own worst enemy.”
Roger Shuler is not a good guy, in my opinion. The circles in which he travels and the methods he employs lead me to suspect that the things he writes are often false. That does not justify treating him in a manner at odds with the Constitution.
Idiocy is not a zero-sum game. Good stuff. Well played, Mr. Popehat.
Ding.
Patterico (9c670f) — 1/12/2014 @ 12:31 pmWrong reason, right remedy. Shuler was a private and public nuisance. He was abated.
Don’t get me wrong. I absolutely agree with Ken’s constitutional analysis. But I’m still snickering.
nk (dbc370) — 1/12/2014 @ 12:35 pmMe too. Shuler’s underhanded attempts to avoid being served, his refusal to appear for a hearing, and the charge of resisting arrest combine with his long record of blatant abuse of others qualify him for Zero Tolerance.
ropelight (d1b55c) — 1/12/2014 @ 1:33 pmOn top of everything else, Schuler’s mental illness will make the judge’s overreach almost unappealable.
SPQR (768505) — 1/12/2014 @ 2:41 pmIt’s more and more and more and more clear to me that we need to make some sacrifices as a society in order to seriously address mental illness.
In the long run, it would probably cost us less, and it’s also the right thing to do.
Dustin (8a9fb3) — 1/12/2014 @ 3:17 pmNo, Schuler is a spiteful nazgul, like one in your neck of the woods, or another north of the 48,
narciso (3fec35) — 1/12/2014 @ 3:22 pmKen White is undoubtedly right about the law as it currently stands. The Alabama court’s injunction blatantly violates the first amendment as the Supreme Court currently interprets it. But is that interpretation correct? And whether or not it is correct, should the law ban prior restraint of allegedly defamatory speech? In principle I don’t see why. Defamation can cause irreparable damage. There are things that almost anyone can say about another that will harm them beyond the ability of any court to make them whole at trial. If someone claims that another is about to harm him in a way that doesn’t involve speech, and shows that he is likely to be able to prove this at trial, he can get an injunction to protect him until the trial; why, in the case of damage done by means of speech, should he not be entitled to the same protection? Where is he going to go to get back his reputation, once he proves that the story is false? And what if he wins an uncollectable judgment; how will that help him? Did the framers and ratifiers of the first amendment, or the fourteenth, really intend to make such relief impossible? I’m just asking.
Milhouse (b95258) — 1/12/2014 @ 10:40 pmThere can be prior restraint on speech. This case simply does not meet the standard — either substantively or procedurally. Procedurally, the TRO should not have been issued ex parte (without notice and an opportunity to be heard), and the preliminary injunction should not have been issued (without full trial on the merits). Substantively, the standard is higher than irreparable harm for speech, but even if it were only irreparable harm, there is the second leg of “no adequate remedy at law”, and money damages have long been, universally, the usual compensation for defamation. And the plaintiffs are public officials/figures with even more stringent rules and limits than private citizens.
And Obama sucks monkey turds.
nk (dbc370) — 1/12/2014 @ 11:21 pmBy which time the harm will have been done.
It may be the usual compensation, but it doesn’t make the victim whole; it’s merely the next best thing that can be done at that point. The victim’s reputation is still shot. And the judgment may prove uncollectable, in which case the victim is worse off than before, since he’s out his legal fees. Shouldn’t the standard be the same as for other kinds of harm?
Milhouse (b95258) — 1/13/2014 @ 4:06 amWell, it’s not like that. Preliminary injunctions to preserve the status quo pending full litigation on the merits (don’t sell the house until the court decides who owns it) are a different thing from injunctions which give the plaintiff the entire relief he requests, and deprive the defendant of his right to carry on what could very well be a lawful activity. Under penalty of imprisonment. I mean, there would be no cause of action if Mr. Plaintiff and Ms. Plaintiff were in fact having an affair, would there? Shouldn’t that be fully litigated before the defendant is muzzled?
No, the judge is way overreaching in this case. It cannot even be called a good faith attempt to carve an exception to the existing law.
nk (dbc370) — 1/13/2014 @ 7:33 amFWIW, I concur with Patterico & nk.
It’s often a mistake to ask for an injunction against folks like this. Don’t rely on “extraordinary remedies,” rely on the regular ones. The odds are quite good that the scofflaws will fail and/or refuse to comply with the normal process, which is likely to lead to either a discovery sanction and/or default judgment on liability. You can do a lot of practical deterrence through vigorous enforcement of those. They’re more likely to stand up if appealed, and they still ultimately involve enforcement by a sheriff or constable with handcuffs and sidearm.
Beldar (8ff56a) — 1/13/2014 @ 10:23 amOh, and with Ken White.
Beldar (8ff56a) — 1/13/2014 @ 10:26 am