In a recent New York Times article entitled Blogger’s Incarceration Raises First Amendment Questions, Campbell Robertson details the story of an activist who is the only journalist in the Western Hemisphere in a jail cell because of accusations he made on his blog. The blogger, Roger Shuler, is the author of the Legal Schnauzer. Schuler’s blog is known for its ongoing allegations of public corruption and conspiracy theories. Schuler’s arrest and subsequent detention on contempt charges stems from a defamation lawsuit filed by the son of the former governor of Alabama. Last July, the court issued a temporary restraining order which enjoined Schuler from making any further blog posts accusing the former governor’s son of impregnating a lobbyist and secretly paying for an abortion. The court also directed Schuler to remove older salacious blog posts about the married son of the former governor. At a subsequent hearing where Schuler appeared pro se, he unsuccessfully argued that the court lacked jurisdiction, calling the court a joke. The court subsequently ruled that the hearing “served as a trial on the merits” and ordered that Schuler be jailed until he removed the scandalous posts. Now Schuler, sits in a jail cell because he is unwilling to remove the posts or have an attorney contest his incarceration.
What I find most interesting about this case is whether First Amendment rights regarding blog posts may be impacted because of Schuler’s refusal to engage in the legal process? According to several civil rights attorneys, an amicus brief from the ACLU and even some of Schuler’s critics, the court’s ruling is alarming. One of Schuler’s critics, who in the past has threatened to sue Schuler for defamation, criticized the courts holding as having a potential chilling effect on blogging. In this case the court banned Schuler’s blog posts holding that they were libel. However, libel must be proved at trial, and here the hearing where Schuler opted out of the system is not enough according to Constitutional Law attorney Ken White. Now, bloggers First Amendment rights could be affected because of Schuler’s refusal to participate in the judicial system. In his article, Robertson details how Schuler’s past accusations have led to a flurry of previous litigation where Schuler mostly lost. Nevertheless, Schuler’s salacious allegations deserve the same protection under the First Amendment as those of any other person, blogger or journalist. However, any effects on bloggers First Amendment rights should not be determined in a case where a blogger refuses to take part in the judicial system but instead argues that the court is a “joke” and lacks jurisdiction. Instead bloggers First Amendment rights must be forged where the case is argued on its merits. In this case the effect on blogging may not be chilling but instead may only be room temperature, but we may not find out until Schuler opts back in to the judicial system and argues the case on its merits.