March 10 marks the 50th anniversary of the Supreme Court’s historic New York Times v. Sullivan ruling that protected journalists and Alabama civil rights protesters. One of the nation’s most important libel rulings created a tough requirement for public figures to prove liability.
But that precedent has not protected jailed Alabama journalist Roger Shuler during his five months behind bars in Shelby County.
After Shuler alleged an affair last year between the regionally prominent lawyer Robert Riley and lobbyist Liberty Duke they filed a libel suit kept under seal.
County deputies tried with disputed success to serve him with papers. Shuler was then arrested and beaten at his garage Oct. 23. He has been held since then without bond for failure to follow a secret pretrial order from a judge to spike his columns alleging the affair. Shelby County is shown in red on a map.
Its courthouse looks pleasant enough in a file photo. Inside can be another story.
During a hastily convened trial of the libel issues in November, authorities brought Shuler from jail to defend his reporting. Shackled in chains from waist to ankles throughout the proceeding, Shuler had no defense lawyer, jury, witnesses or time to prepare his case.
Court security barred all observers except for one friend Shuler’s permitted entrance because guards mistakenly assumed him to be the judge’s brother. The judge’s brother came in through a private rear door, according to Shuler, to chat before the proceeding with Riley, the wheeler-dealer son of a two-term GOP former governor Bob Riley (2003-2011). At the time, the younger Riley was reputedly candidate for a congressional seat in 2014 but he failed to file last month for the GOP primary.
Separately, Shuler was convicted of resisting arrest in a bench trial without a lawyer. Shuler protested without success that his arrest had been illegal because authorities have never shown him a warrant despite repeated requests, including in court.
With scattered exceptions, the nation’s major news outlets, associations and journalism professors have responded with near-silence even as additional problems pile up for the jailed Shuler.
Shuler faces a hearing March 5 in a libel suit brought by Alabama Attorney General Luther Strange (shown in his official photo) and his former campaign manager, Republican Attorneys General Association Director Jessica Medeiros Garrison. Shuler has alleged they had an affair. They have denied the claim.
So, the facts are disputed regarding Shuler’s claims of affairs by the four married plaintiffs.
But the Sullivan precedent sets a high bar for public figures in libel cases. Plaintiffs must prove that a reporter knew the facts were false or distributed them with “reckless disregard” of the truth. Such “reckless disregard” proof normally requires a full trial, especially if a reporter has sought comment pre-publication from the news subjects.
Among other long-established precedents seemingly being flouted the first case, at least, involve the court-ordered “prior restraint” before trial. Questions arise also regarding the sealed docket and courtroom, the absence of a full trial, and the suspect’s violent arrest and jailing for an unlimited period on a contempt charge.
“I was surprised,” Alabama’s ACLU Director Randall Marshall told me, “that there wasn’t more of an outcry from the media world when this first happened.” The ACLU filed a friend of the court brief, but is not representing Shuler.