Bits and Bobs about the First Amendment and Judicial Activism, Part Two.

And now the conclusion of today’s two part discussion on the First Amendment and Judicial Activism.  This is a much shorter post than the previous, because the material within contains several points from other sources I’d prefer you read.

The First Amendment is one of the most important principles in United States law because allows for so much in the way of exchanging ideas and expressing opinions.  We Americans should treasure our liberties in this regard, and defend them zealously–if we fail to do so, no one will stand up for us when the thought police come for US.  In fact, I’ve often said the most important free speech to defend is that with which we most fervently disagree.

Our story comes to us from Alabama, where writer Roger Shuler was arrested on contempt charges for violating defamation suit injunction.  To paraphrase a couple of well-informed sources, Shuler made some very nasty comments about Robert J. Riley, Jr.–the son of Alabama’s former governor.  Shuler accused Riley of an affair with a lobbyist, and Riley sued for defamation.  Riley somehow managed to get a preliminary injunction in the matter preventing Shuler from saying things about Riley–what we call a “prior restraint.”  Text as follows:

Based on the foregoing, respondents are ordered to cease and desist immediately from publishing (including oral publication to any third party), posting online, or allowing to be posted online any defamatory statement about Petitioners, including, but not limited to, any statement that Petitioners had an extramarital affair, that Petitioner Riley fathered a child out of wedlock with Petitioner Duke or anyone else, that Ms. Duke had an abortion, that Petitioner Riley paid or was in any way involved in paying to Ms. Duke or anyone else any monetary funds from any source related to said extramarital affair or abortion, that any such funds were paid by Petitioner Riley or anyone acting on his behalf in exchange fro Ms. Duke having an abortion or were in any way related to an affair or an abortion and/or as part of an effort to conceal an abortion and that Petitioner Duke received any such funds.  The Respondents are ordered to take all efforts to ensure that the subject information is taken off any and all websites that they enable, host, own and/or operate and that said information is not allowed to be posted or in any way published pending further Order of this Court.  These efforts shall include, but not be limited to, taking the subject information off of the website known as “Legal Schnauzer,” taking the subject information off all Twitter accounts that any Respondent maintains, and removing the subject information from all video-sharing and video-posting websites including, but not limited to, Youtube.

The above quote from the preliminary injunction–this prior restraint–is better described in the below post on the issue by Ken White at Popehat.  If you don’t read their blog–and you should–I encourage you to check it out now.  Popehat covers a lot of First Amendment issues, and Ken White particularly does a great job with responding to them in a very analytical fashion.  You can read his take on the subject here:

I can’t respond as analytically as Ken White to this issue.  This matter disturbs me as a proponent of free speech.  There’s so much wrong with this matter that makes me angry.  For all intents and purposes, this is potentially a case of a former Governor’s son using his political clout–or his daddy’s–to get his way.  It’s a case of a judge issuing an overreaching order that has no basis in constitutional law.  This sort of ruling continues to perpetuate the stereotype that Southern Courts are rife with a “good ol’ boy network” and that judges in the South are stricken with “black robe syndrome.”

Whatever your political affiliation, you should be concerned about this Order.  You should speak out against it.  There are recourses for action if people are seriously harmed by speech or expression–we call those suits “defamation” and “libel” in the law.  Going to the judge and getting a preliminary injunction telling a blogger he can’t talk about you is not a viable option, and shame on the Petitioners in this suit and shame on the judge for attempting to make it one.

Anyone concerned with the “marketplace of ideas” or keen on “free expression” should be saying “NO” to this sort of issue right now.   Refusal to say this is wrong–even if you disagree with the man uttering the statements–is tantamount to allowing the same actions when YOU are the subject of the same treatment.


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