Graydon Head

Blog: Jack "Out of the Box"

Welcome to Jack "Out of the Box." This is a spin-off of the Firm's InfoLaw Newsletter, much like "CSI: Miami" is a spin-off from "CSI." Except without all the corpses. I plan to update the blog at least weekly. Really. It's not like when I used to promise my mom to clean my room once a week. I'm more mature now. And of course, the InfoLaw Newsletter will continue every two weeks. The blog will feature shorter pieces, and ideally, reader feedback. Should be fun. Oh yeah, and informative.


    Sep 19, 2016

    Two events in my life recently have made me think more about Donald Trump’s “birther” charges than I might otherwise. 

    The first reason the birther thing is on my mind is because I have just started the section on defamation in the Media Law class I teach at UC Law School.  One of the points I typically make is that one statement may constitute several slanders.  For example, we talked last week about a New York case where the court struggled with whether it could be deemed defamatory to call someone a homosexual.  The point is that just because something is false does not make it defamatory.  The statement also has to be derogatory. If someone said I used to play center field for the Cincinnati Reds, that would be false, but in no way derogatory. 

    The New York court was reluctant to find that a statement mischaracterizing someone’s sexual orientation was derogatory, because that implies that there is something wrong about being gay.  And so holding feeds into bigotry.  But in class we talked about how a plaintiff could address that issue.  One way would be to argue that if the plaintiff held himself out as heterosexual, the claim that he is gay essentially is accusing that person of being a liar.  And that implication could form the basis of the claim.

    And that is relevant to the birther issue. When Trump touted that President Obama was not born in the United States—with absolutely no basis, or when he claimed his investigators were finding “unbelievable” material in Hawaii, he was not merely saying that President Obama was not a natural born U.S. citizen.  He was quite simply calling President Obama a liar.  President Obama (correctly) claimed he was born in Hawaii.  If he wasn’t (and he was) then he was consistently lying. That’s defamation. 

    In addition, President Obama ran for the office of President. One must be a natural born citizen to run for that office.  So, in his baseless accusations, Trump was calling President Obama a criminal.  If Trump was telling the truth (he wasn’t) President Obama was committing election fraud.  Once again, defamation.  The constitutional standard for defaming a public figure is actual malice – “a reckless disregard for the truth or falsity” of a statement.  Recklessness is Trumps standard operating procedure.  

    The other reason the birther thing is on my mind is a book I’m reading called Lincoln and the Power of the Press by Harold Holzer.  It hits two of my sweet spots – American history and journalism.  I just finished the part of the book that talks about the Cooper Union speech.  Holzer considers that speech the turning point in Lincoln’s political career.

    In the speech, Lincoln made the following comment:  “persisting in a charge which one does not know to be true, is simply malicious slander.”  That is as succinct a description of Donald Trump and his birther claims as anything I’ve read.  So a little over 150 years ago, Honest Abe was able to nail The Donald.  Without the benefit of Twitter even. Impressive. 

    Go comment!

    Sep 15, 2016
    It has been an interesting week in the Colin Kaepernick controversy.  We've heard from baseball executive Tony LaRussa, and college football coach Dabo Swinney. 

    I found the contrast between LaRussa and Swinney's comments interesting.  Now, my readers know how I feel about LaRussa. A search of this blog's archives will turn up the frequent use of the term "Satan's spawn" in connection with his name. And, in my view, LaRussa did not disappoint.  In his comments he made it clear he would stifle a player's protest. Worse, he concluded that Kaepernick was not sincere -- that this was an attention grab by a struggling athlete. 

    Swinney, before launching into a rambling discourse on Martin Luther King, Jesus and sin, said he would not discipline a player for engaging in a peaceful protest.  And he did not question Kaepernick's motives or sincerity.  He simply said he did not agree with the method Kaepernick chose.

    Tony LaRussa may or may not be a genius (the performance of the Arizona Diamondbacks suggest not) but he does not have the power to crawl inside Colin Kaepernick's heart and conclude what's motivating him.  To presume to be able to do so is, to use a baseball term, bush league.

    But the best writing I saw on the issue comes from Jeffrey Toobin, who wrote an essay about the Supreme Court's ruling in  West Virginia State Board of Education v. Barnette .  In that case, the Supreme Court upheld the right of a Jehova's Witness to refuse to pledge allegiance to the flag in his grade school classroom.  Justice Jackson's eloquent words are worth considering today I think:

    To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

    Go comment!

    Sep 13, 2016
    I continue to see public records cases in which public officials (whether elected or appointed) attempt to avoid their obligations to produce e-mails because the e-mails were generated and transmitted on a private account.  And they contend this puts the e-mails out of the public's reach even if those e-mails discuss public business. 

    A case involving New Jersey Governor Chris Christie is the most recent example.    The good news is that most courts, when faced with this nonsense, have ruled in favor of the public's right of access.  The bad news is, public officials continue to waste time and money making this argument. 

    It shouldn't be that hard.  A record is public by virtue of what it says, not by virtue of where it's kept.  Let's say that instead of talking about public records, we were talking about socks.  And I asked for a copy of all of Governor Christie's socks.  Would anyone consider it reasonable for Governor Christie to refuse to provide a copy of a pair of socks he happened to keep in his underwear drawer? And if his theory was that by virtue of the fact the socks were kept in an underwear drawer that made them underwear, would anyone take that seriously? 

    The same is true here.  The public record stored in the private location is a public record.  It really is that simple. And I apologize to all of my readers who are now stuck with an image of Chris Christie's underwear in their heads.
    Go comment!

    Sep 09, 2016
    The Subway Sandwich chain is facing a class action lawsuit that arises from an offer to give away free six inch sandwiches.  The problem for Subway isn't so much the message, as it is the medium.  

    Subway made the offer via text messages delivered by T-Mobile.  Subway's potential problem (this is just a complaint, so there is no guarantee that the allegations are true) is that the messages appear to have been generated via an automatic dialer and the text recipients did not consent to receiving unsolicited text messages from commercial senders.  If true, Subway violated the federal Telephone Communications Privacy Act. 

    The plaintiff -- Matthew Warciak -- apparently realizes he may have a challenge establishing damages.  His complaint seems to offer a litany of "damages" he incurred from the texting. These include "the cost associated with receiving the unwanted and unsolicited text messages, the diminished value and utility of their telephone equipment and telephone subscription services (i.e., the value of such equipment and services is higher when unencumbered by repeated and unwanted text message advertisements), the measureable amounts of time lost answering and deleting the unwanted text messages, the wear and tear caused to their telephone equipment, the loss of battery charge (which becomes diminished with each incoming text message), the loss of battery life (which has a finite number of charging cycles), and the per-kilowatt electricity costs required to recharge their cellular phones as a result of such text messages."

    I don't know if all of those will stick, but his strategy may be that out of the whole menu there may be enough to allow the suit to proceed.  

    I have not seen an answer from Subway yet, but the case is a reminder that it's probably a good idea to check the law before launching any marketing program.  Especially one that takes away valuable battery life from a cell phone. And that is intended to only be partly sarcastic.   
    Go comment!

    Sep 01, 2016

    Uber recently got hit with an 11.4 million fine courtesy of the Pennsylvania Public Utility Commission.  The fine resulted from Uber’s failure to obtain a transportation brokerage license before commencing operations in Pennsylvania.

    The action presents an existential question for Uber – what is it exactly?  In Uber’s view, it is an app that connects people looking for a ride with drivers looking for riders.  Kind of a dating service if you will. 

    But the Pennsylvania Commission noted that “[Uber] exercised active and significant oversight of its drivers and that its service was reasonably available to the general public for compensation.”  To continue with the dating service analogy, it would be like Uber maintained a pool of eligible bachelors, who were subjected to Uber’s rules and regulations.  The control piece is a critical fact.  In addition, the Commission didn’t think much of Uber’s contention that it was not subject to the rules because Uber drivers drove their own cars.  As the Commission noted, “the definitions of transportation public utility, common carrier, and common carrier by motor vehicle convey the opposite position that the provision of transportation service can be offered indirectly and independently of actual ownership of a vehicle.”

    So Uber is fighting a losing battle in the Keystone state. But what caught my eye in this story was not the $11.4 million that Uber was finally ordered to pay, but the original fine -- $49 million.  This was calculated based on the statutory provision of $100 per violation, which increased to $1000 per violation after Uber received a cease and desist order, but continued offering its service.  Uber provided 81,000 rides up to the cease and desist order – for a total of about $8 million; and 41,725 rides after the cease and desist order, for a total of $41 million. 

    The number ultimately got reduced when the Commission decided to base the fine on the average trip cost ($7) during the period before the cease and desist order.  That came to $860,986.  It assessed a $250 per ride fine for the period after the cease and desist notice. That came to $10.4 million.   All told, the new penalty totaled $11,292,236.  Uber also got hit with discovery sanctions that took the number up to the $11.4 mark. 

      Uber has indicated it will appeal the Commission’s decision to the state courts, but in the meantime, it still may have to write the big check. The Commission denied Uber’s request that it stay its order pending the appeal.  

    Go comment!

    Aug 30, 2016

    I heard an interesting piece on Morning Edition today on my way into work.  At issue in the story is the question of whether social media sites should cut off posts made in the course of active police activity.

    The impetus for the story was a recent incident in Baltimore County Maryland where a criminal suspect, in the midst of a stand-off with local police, was posting to Instagram.  Some of her followers were encouraging her not to give up. Eventually, the police persuaded official at Facebook, the parent company of Instagram, to suspend the account temporarily.  The woman, however, did not surrender and the police ultimately shot and killed her.

    The police contend the social media activity was distracting the woman from the negotiations with police.  The fact that others were encouraging her not to surrender no doubt had an impact as well. 

    The NPR piece, however, quoted critics who wondered if the police were attempting to keep the public from learning what was happening.  Given the spate of police involved shootings and the ongoing debate over public access to body camera footage, this is one more accountability question that police are facing. 

    There are some fundamental principles at play here, however, that supply some answers, albeit not ones that are necessarily satisfactory to all sides.  Facebook is a private company, and is not in any way subject to The First Amendment.  As a matter of law, it can choose what it blocks and what it does not.

    But Facebook is subject to contract rules like any other company. And so while it may not owe a statutory/constitutional duty to anyone, it is bound by its own policies and terms of use.  The limit there, of course, is that Facebook’s policy on what it blocks reserves lots of discretion to react on a case by case basis.  Tough to nail it down and establish an actual breach.   And of course, even if someone could demonstrate a breach, what are the damages?

    But police departments had better be careful not to behave in a coercive manner.    That is, the cops may request that Facebook (or any other social media site) block the posts, but if that request starts to sound more like an order, that could be a big First Amendment problem.  In late 2015, the online publication Backpage prevailed in a case against the Cook County Illinois Sheriff.  Backpage claimed the Sheriff was pressuring credit card companies not to accept payments for adult ads in the magazine.  Overly aggressive police departments could find themselves in similar circumstances if they push too hard in these type of cases.   

    Go comment!

    Aug 24, 2016

    The University of Kentucky is evidently set on establishing itself as the most shameless institution of higher learning in America.  And this may come as a surprise, but it has nothing to do with athletics.  The University is heading to court to block the student newspaper – The Kentucky Kernel – from obtaining records concerning the investigation of allegations of sexual assault against an entomology professor named James Harwood.

    The Kernel has obtained some of the records from an anonymous source.  And according to the leaked records, Harwood “fondled” two students at conferences in 2012 and 2013.  And three other students testified about alleged sexual misconduct as well.

    UK entered into an agreement with Harwood that allowed him to resign, and which provided that UK wouldn’t disclose the existence of the investigation if Harwood applied for a job elsewhere.  So a prospective new employer would have no way of what it’s taking on if it hires Professor Harwood.

    The Kernel made a public records request for the records of the investigation and Kentucky Attorney General Andy Beshear ordered them produced with victim names redacted.  Case closed, right? Wrong. UK refuses to provide the records and is going to court to block the release.  That’s not even the shameless part.

    The true shamelessness can be found in UK’s lame excuse for its actions.  Here it is:

    “ Our University cannot — and should not — decide when it is appropriate to violate a victim-survivor’s privacy — and a victim-survivor’s trust — by providing information to the Office of the Attorney General, the Kernel (our student newspaper), or any other entity.”

    My reaction to this statement  is to quote tennis player John McEnroe – “you cannot be serious.”  As a factual matter, this is ridiculous – the names are redacted.  As a matter of common decency, it is appalling.  Using victims of sexual assault to justify protecting the legacy of that guy?  UK should talk to the Catholic Church and see how this morally deficient strategy worked out for them.

    A University should applaud students who endeavor to discover the truth – not sue them.  It is apparently true. You can’t “yuck” without a “u” and a “k.” 

    Go comment!

    Aug 15, 2016

    My wife occasionally has to put up with my rants.  These can be on any number of subjects that range from sports to music to politics.  The most recent rant she had to endure came this past Sunday while we were returning from a weekend getaway to Lake Geneva Wisconsin.  We were listening to the Milwaukee broadcast of the Reds/Brewers game (I had never actually heard a Bob Uecker broadcast – he is good, but not as funny as I hoped. He talks about food a lot).  In about the 5th inning, the station cut away to a press conference featuring Milwaukee Mayor Tom Barrett and Police Chief Ed Flynn discussing the events in Milwaukee following the officer involved shooting the previous afternoon.

    Now, before I go on, it is important to say that I feel terrible for everyone involved – the victim’s family lost a loved one; the officer’s life will never be the same; and the city of Milwaukee is enduring violence and unrest.  It is tragic.  But I could not help but express my displeasure when Police Chief Flynn’s comments regarding the public’s access to the officer’s body camera footage.  The gist of the comments are that the footage will be released if and when the city feels like releasing it.  That is the same type of official gibberish we’ve heard in Ohio, where a case is currently pending on this issue before the Ohio Supreme Court. 

    Several comments particularly annoyed me.  At one point, Chief Flynn talked about how there has to be a “balancing act” between the investigation and “the public’s need to know.”  With all due respect to the Chief, it is not a question of the “need” know.  And the public and press shouldn’t be asked, and shouldn’t have to answer the question “why do you need to see it?”  The public has an absolute right to review the records of its public servants – especially those servants charged with the power to arrest and kill.  It’s not about a “need” – it’s about a right.  I don’t have to explain why I “need” to vote and I don’t have to explain why I “need” to see the footage.  Chief Flynn’s comment suggests a fundamental misunderstanding. 

    And I also noticed that while Chief Flynn justified his failure to release the footage because of the need to maintain the integrity of the investigation (or some other empty platitude) he never explained why release of the footage would adversely affect the investigation.   In my experience, if someone contends that there is a cause and effect relationship they really should be able to explain why they thinks such a relationship exists.  But the Chief, like so many others before him, is unable to explain why allowing the public to see what actually happened will in any objective way hamper the investigation.     

    And if he is so concerned about the integrity of the investigation, why did he describe what he saw on the footage and essentially clear the officer of any wrongdoing at the press conference?  If release of the footage is potentially fatal to the investigation, why is it okay to provide a detailed verbal description of the footage (and the still photos that Mayor Barrett described)?  The only difference I can see is that when the Chief gives his description without releasing the video, there is no way to meaningfully refute what he says.  Which means he gets to control the narrative. 

    Which makes  me think he is more concerned about public relations than he is about public access.  

    Go comment!

    Aug 10, 2016
    The heirs of Ed Townsend have filed a lawsuit against Ed Sheeran claiming that Sheeran's hit "Thinking Out Loud" infringes on the Marvin Gaye hit "Let's Get It on."  Townsend co-wrote that song with Marvin Gaye. 

    The Marvin Gaye estate won a huge verdict last year in an infringement suit over Robin Thicke's hit "Blurred Lines."  I suspect that may have provided the incentive for this suit. 

    I have to say, I'm having a tough time seeing the infringement in this case.  So here we have Sheeran's song.   And here we have Marvin.   I'm really wondering if the average listener would be confused by the two songs.  They seem pretty distinct to me.  And if it takes a music expert, well versed in matters like "melodic, harmonic, and rhythmic compositions," to establish the infringement, doesn't that suggest the listening public isn't confused?  

    I am not a musician, but I'd be a bit concerned by the notion that stylistic similarities can lead to successful infringement suits. There are only so many notes and so many chords after all.  And everyone is inspired by somebody.  Maybe I'll write a song about this and call it "Slippery Slope."  

    And of course, I can't help but make a few random comments on the respective videos.  The "Thinking Out Loud" highlights a rule of thumb that I think is immutable -- if you want to look like you know how to dance get a great partner. This is the theory of Dancing with the Stars, and the Thinking Out Loud video nails the point. A mannequin could pull off Sheeran's moves, but who really notices given his partner's skill?  

    And Marvin Gaye is the world's coolest person.  Dead or alive.  He will simply never be equaled.   
    Go comment!

    Aug 08, 2016
    For reasons that I cannot fathom, the Houston law firm of Tuan A. Khuu brought a libel suit against a 20 year old waitress named Lan Cai based on postings she made on YELP and Facebook. This is bound to end badly for the law firm.

    Ms. Cai was involved in a collision with a drunk driver. The relationship with the firm got off to a rocky start and ended almost immediately. Thereafter, Ms. Cai posted on YELP that she “wouldn’t even give this law firm a star.”  She was more expansive on Facebook:

    “After 3 days, they didn’t tell me anything about the doctor I needed to go to.  I was in a lot of pain.  Not only that, they didn’t know where the hell my car was! And they came to my house and into my room to talk to me when I was sleeping I my underwear.  Seriously it’s super unprofessional! . . . I came in to the office to meet with my previous attorney, but he literally ran off.”

    The libel suit appears to be based primarily on the Facebook post. And while it’s not too flattering, it makes me wonder how it could be worth the aggravation of suing. On a non-legal basis, the suit just makes the firm look like huge bully. Maybe there’s a niche client base out there that thinks this is how aggressive lawyers do business. But I suspect a bigger demographic would be put off by this bullying.

    The suit also puts the firm’s reputation at issue. And that may not be a good thing. Apparently, there’s plenty of other one star reviews from YELP – which begs the question whether Cai’s review had any marginal impact on the firm’s reputation. And in any event, the suit puts a spotlight on every bad review the firm has gotten.

    Finally, Texas has adopted anti-SLAPP  legislation. This allows a court to promptly dismiss a libel suit if it determines that the plaintiff filed it to stifle legitimate discussion of a matter of public interest. And it can award the defendant’s attorney’s fees if it rules in favor of the defendant. Ms. Cai has already asked the court for this relief.

    Additionally, the story has gotten attention from any number of Internet trolls – many of whom have posted parody reviews of the firm on Reddit.

    All in all, if law firm of Tuan Z. Khuu was worried about its reputation they needn’t worry anymore. They’ve pretty much ruined it.  
    Go comment!
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