Judge Claud D. Neilson
An Alabama judge's preliminary injunction in a defamation case runs counter to more than 230 years of case law on free speech in the United States.Circuit Judge Claud D. Neilson issued a ruling dated October 1, 2013, ordering me not to write about Alabama Republican Rob Riley and his affair with lobbyist Liberty Duke. Neilson also ordered me to remove all posts from Legal Schnauzer about the affair and went so far as to seal the entire file--with no apparent legal justification--and forbid any reporting on the case.
If all of that sounds unlawful to you, that's because it is. In fact, Neilson's order has to be a contender for one of the most outrageous legal documents in American history. It reads like something that might have originated from a court in Saddam Hussein's Iraq. (If you don't believe me, check out the order that Rob Riley and Judge Neilson don't want you to see, at the end of this post.)
So what is going on? Based on recent press reports and Riley's bizarre actions, it seems clear that he wants the Liberty Duke story to go away so he can pursue the U.S. House seat that Spencer Bachus is vacating. Judge Neilson apparently feels a Rob Riley candidacy is so important that it justifies trashing the U.S. and Alabama constitutions.
Neilson's order is unlawful on probably a half dozen grounds, starting with the fact that the defendants (my wife and me) have not been lawfully served, meaning the court has no jurisdiction over us. For now, we will focus on only one flaw in the Neilson document--that it constitutes a flagrant example of impermissible "prior restraint" on freedom of the press. (For a brief discussion of the relevant legal principles, see video at the end of this post.)
The U.S. Supreme Court has made it clear on numerous occasions that preliminary injunctions are unlawful in cases alleging any form of defamation (libel or slander). One of the most recent cases is styled Alexander v. United States, 509 U.S. 544 (1993). From the Alexander opinion, authored by Chief Justice William Rehnquist:
The term "prior restraint" is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions—i. e., court orders that actually forbid speech activities—are classic examples of prior restraints. . . . This understanding of what constitutes a prior restraint is borne out by our cases. . . . In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future "malicious, scandalous or defamatory" publication. . . . Near, therefore, involved a true restraint on future speech—a permanent injunction. . . .
Rehnquist hardly could be characterized as a wild-eyed liberal. Appointed to the Supreme Court by Richard Nixon, the late Rehnquist now is seen by many court watchers as a precursor to such right-wing firebrands as Antonin Scalia and Clarence Thomas. If Rob Riley can't abide by Rehnquist's findings, it raises serious questions about the Alabamian's conservative "credentials."
Even more background on the bedrock principle of prior restraint can be found in a case that Rehnquist cited in Alexander. It's styled Near v. Minnesota, 283 U.S. 697 (1931), and it involved a state statute that provided for the "abatement" as a public nuisance of any newspaper that was found to produce "malicious, scandalous, and defamatory" content.
The nation's highest court quickly found that the Minnesota statute collided with fundamental constitutional protections:
This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not unique, and raises questions of grave importance transcending the local interests involved in the particular action. It is no longer open to doubt that the liberty of the press, and of speech, is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state action. I
The Supreme Court then unmasked the Minnesota statute, revealing its true intent:
The object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical. . . . This suppression is accomplished by enjoining publication and that restraint is the object and effect of the statute. . . . The statute not only operates to suppress the offending newspaper or periodical but to put the publisher under an effective censorship.
In language that has been in place for 82 years, the Near court goes straight to the mindset of Rob Riley and Judge Neilson in 2013:
When a newspaper or periodical is found to be "malicious, scandalous and defamatory," and is suppressed as such, resumption of publication is punishable as a contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed because of the circulation of charges against public officers of official misconduct, it would seem to be clear that the renewal of the publication of such charges would constitute a contempt and that the judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court as to the character of a new publication. Whether he would be permitted again to publish matter deemed to be derogatory to the same or other public officers would depend upon the court's ruling.
Are Rob Riley and Judge Neilson trying to engage in unlawful censorship? The language of the Near court leaves no doubt that the answer is yes.
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.
In finding the Minnesota statute unlawful, the Near court notes that its ruling is grounded in state-court cases dating back 150 years. Considering that Near was decided in 1931, that means the opinion has roots in the early 1780s:
The fact that for approximately one hundred and fifty years there has been almost an entire absence of attempts to impose previous restraints upon publications relating to the malfeasance of public officers is significant of the deep-seated conviction that such restraints would violate constitutional right. Public officers, whose character and . . . conduct remain open to debate and free discussion in the press, find their remedies for false accusations in actions under libel laws providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The general principle that the constitutional guaranty of the liberty of the press gives immunity from previous restraints has been approved in many decisions under the provisions of state constitution.
What's the bottom line? If Rob Riley and Liberty Duke think our reports about their extramarital affair are false and defamatory, they can try to prove it under existing libel laws. But they cannot seek to restrain our reporting in advance, without any finding that it is defamatory.
As an attorney with a degree from Yale School of Law, Rob Riley surely is familiar with these fundamental legal principles. That he has filed such a lawsuit anyway means he should be subject to serious sanctions, including possible suspension of his bar card.
Judge Neilson also has to know about prior restraint and its foundations. That he issued a blatantly unlawful order on such a fundamental issue suggests he should be the target of an Alabama Judicial Inquiry Commission (AJIC) investigation, similar to the one recently launched against Jefferson County Circuit Judge Dorothea Batiste.
The charges against Batiste, which resulted in a three-month suspension, pale in comparison to Neilson's proven actions in the Riley case. Based on the AJIC's actions against Batiste, powerful grounds exist for removing Neilson from the bench.
Batiste, of course, is a black female, while Neilson is a white male. Will skin color protect one judge while it caused another to receive intense scrutiny? Is AJIC a fundamentally racist organization? We might soon find out the answers to the those questions.
Rob Riley Injunction by Roger Shuler
