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.

  • A Win for Officer Heffernan

    Apr 26, 2016
    In January, I posted a piece about Jeffrey Heffernan’s strange lawsuit against the city of Patterson, New Jersey.  I compared the facts in the lawsuit to a “Curb Your Enthusiasm” episode.  The incumbent mayor of Patterson had Heffernan fired from the force because he’d seen Heffernan carrying a sign for the mayor’s opponent in the upcoming election.  But Heffernan was merely picking up the sign for his bedridden mother.   

    The decision to fire a public employee for exercising his First Amendment rights is unlawful.  And Heffernan was fired based on the mayor’s perception that Heffernan was doing exactly that.   

    But Patterson argued that since Heffernan wasn’t actually exercising his First Amendment rights, his firing in reality couldn’t be attributed to any protected activity, and therefore his lawsuit should be dismissed.  Do you follow? Apparently, the U.S. Court of Appeals did, because it agreed with the city and held Heffernan’s suit should be dismissed.   

    Just this week, the United States Supreme Court weighed in and ruled in Heffernan’s favor in a 6-2 opinion (the Court is playing short- handed right now).  The majority determined that the key issue was the government’s motive, even if the government didn’t exactly have its facts straight.  That is, if the government set out to retaliate, and an employee was harmed as a result, that really should be enough.  As the majority noted, “the constitutional harm – discouraging employees from engaging in protected speech or association – is the same whether or not the employer’s action rests upon a factual mistake.”  And that seems like the proper way to rule.  

    Justices Thomas and Alito, however, felt differently, finding that in the absence of protected activity, there can be no retaliation for engaging in protected activity.  That seems theoretically sound, I guess. But Officer Heffernan wasn’t theoretically fired.  That was real.  And he is entitled to real relief. 
    Go comment!
  • R.I.P. Prince

    Apr 22, 2016
    I commented today to a friend of mine (who hosts a radio show) that the death of Prince seems to be a bigger deal on social media than the death earlier this year of David Bowie, Glenn Frey , George Martin or Merle Haggard.  That is completely unscientific, but I feel like I’ve seen more posts about it from friends and other sources than the other deaths.   

    So, because this is ostensibly a legal blog, here is an interesting piece about Prince’s legal legacy.  I’m not sure it’s fair to call him “litigious” but he clearly was not a fan of what the digital world was doing to the music industry.  

    His most significant legal legacy I think, is his impact on the Digital Millennium Copyright Act.  The DMCA is designed to protect the rights of copyright holders and to insulate third parties from liability.  The key feature of the DMCA is the notice/takedown provision.  Under the DMCA, copyright holders who believe their rights are being infringed can send a notice to the online service hosting the infringing content.  That site can avoid liability if it takes the content down.  But the copyright holder has to act in good faith in sending the notice.   

    The contribution from Prince to this law arose when he sent a takedown notice to YouTube challenging a homemade video of a toddler running wild through a house, with the song “Let’s Go Crazy” in the background.  Prince contended the use of the song in that video infringed his rights in the tune.  The mom who made the video claimed “fair use” for the snippet of the song used in the video.   

    A lawsuit ensued, and has meandered along since 2007.  The U.S. Court of Appeals recently issued a ruling in the case that requires copyright holders to consider the defense of fair use before sending a takedown notice, or risk a finding of bad faith.  The counter argument was that so long as the work was copyrighted, it was up to the alleged infringer to assert the defense.  The Ninth Circuit ruling is likely to have a chilling effect on takedown notices going forward.  Probably not the result Prince was looking for.  

    On the upside, of course, Prince’s musical legacy is unquestionably greater than his legal legacy.  I leave you with my favorite Prince song:   

    Go comment!
  • Managing Reputation or Rewriting History?

    Apr 15, 2016
    A friend of mine sent this piece from the Sacramento Bee.   It’s a story about  the University of California Davis paid Nevins & Associates – a reputation management firm -- $175,000 to remove online mentions of a November 2011 incident where campus police pepper sprayed student protestors.  Admittedly, not the kind of images that would lead high school seniors to apply.  But it begs at least two questions.  

    Question 1 is whether a state university should be spending that kind of money on anything other than essential services.  And it’s a pretty good question whether that type of PR campaign is in any way essential.  

    Question 2 is a little bigger.  And it is whether this is a legitimate PR campaign or an effort to re-write history.   I don’t think any institution has an obligation to dwell on negative events in its history.  If Kent State opts not to post a picture of the National Guard shooting from 1970, I get it.  And I get that UC Davis wants to move on from its own unfortunate recent history.  So if that means it emphasizes all the good things about UC Davis, go for it.   

    But reputation management takes it a step further in my view.  According to a memo from Nevis & Associates, its objective was the “eradication of references to the pepper spray incident in search results on Google for the university and the Chancellor.”  That’s not just accentuating the positive.  That is truly eliminating the negative.  And for a university, whose mission should be about discovering the truth, that seems as misguided as a face full of pepper spray.
    Go comment!
  • Not Your NORML College T-Shirt

    Apr 13, 2016
    Many thanks to my partner Dan Burke for sending this case my way.  It poses (and answers) the question whether a public university may withhold its logo from a student organization of which it apparently disagrees.  The answer is apparently no.  

    Paul Gerlich and Erin Furleigh are residents of Ames, Iowa, and students at Iowa State University. NORML ISU is the ISU student chapter of the National Organization for the Reform of Marijuana Laws (NORML), a political group that advocates for reform of federal and state marijuana laws. Gerlich and Furleigh are members of NORML ISU.

    ISU owns federally registered trademarks, including word marks such as “Iowa State University,” “Iowa State,” “ISU,” “Cyclone,” and “Cy,” as well as logos, such as Cy the Cardinal (Cy) graphics and Cy the mascot. ISU student and campus organizations may use ISU’s trademarks, including “ISU,” “Iowa State University,” and other marks, consistent with their recognized status with the University, if the Trademark Office determines that their use complies with the University’s licensing guidelines. The Trademark Office will not license ISU marks for certain items it considers a liability risk or as inappropriately portraying the University’s image, including sex toys, alcohol products, ashtrays, condoms, drug-related items, weapons, knives, toilet paper, and diapers.

    In October 2012, NORML ISU submitted a design (T-Shirt Design #1) to the Trademark Office that displayed the name of the organization on the front, with the “O” in “NORML” represented by the head of the ISU mascot, Cy the Cardinal. The shirt’s back read “Freedom is NORML at ISU” with an image of a small cannabis leaf above “NORML.” The group planned to use the shirts for publicizing their message and fundraising.

    Initially, the ISU Trademark office approved the design.  That apparently caused some political backlash from the Iowa House Republican Caucus, which led to a number of events, culminating in ISU revoking its approval for the re-order of the shirts.  Gerlich and Furleigh felt that ISU’s actions violated their First Amendment rights.  And that led to the lawsuit. 

    The court framed the issue as whether public university students could be denied benefits on the basis of their espoused views. And the answer is no. To allow a public university to pick and choose among messages is to allow “viewpoint discrimination” which violates the First Amendment. Once the court framed the question that way, the decision was virtually a foregone conclusion. 

    And ISU’s case was not helped by several facts.  First, its prior decisions allowing certain shirts called into question just how concerned it really was with promoting a “healthy lifestyle.”  The school had previously permitted the campus “CUFFS” organization – a group that promotes sexual bondage -- to use the trademark. 

    Second, ISU’s contention that its decision was not politically motivated rang hollow given the clear evidence that it reversed course only after getting the squeeze from the House Republican Caucus.

    ISU’s decision to cave into the political pressure resulted in an award of summary judgment to the students, a permanent injunction and an award of costs and attorney fees.  The student plaintiffs get the added benefit of forever being able to tell all who will listen about how they successfully stuck it to the man.  Which is in and of itself pretty awesome.
    Go comment!
  • Body Camera Footage and Public Records Law

    Apr 08, 2016
    I’m going to be on WLW radio in the morning talking about whether police body camera footage is a public record. Spoiler alert. I think it is.  And that doesn’t mean that I lack respect for the work police officers do. I have tremendous respect and admiration for their service.  And if the public had prompt access to the body camera footage, the public’s respect for our cops would increase.  

    Events from last week illustrate that point.  Here’s some chilling footage of a Glendale Police officer’s interaction with a man walking on I-75.  The police officer had pulled over to inquire why the man was walking on the side of the highway.  Within minutes, the man pulled a knife and refused to comply with the officer’s command to drop the knife.  Ultimately, the officer shot and wounded the man.  

    What I find most impressive about the video is the restraint the officer showed. His instinct was not to shoot first. It was the opposite.  I can’t imagine how anyone could view that video and not feel great admiration for the officer.  

    But, unfortunately, the police officer’s heroic efforts got obscured somewhat by a completely needless controversy that arose over the release of the footage.  At the direction of the Hamilton County Prosecutor, the Glendale Police initially refused to release the footage.  The Prosecutor feels very strongly that the footage is an “investigative” record and does not need to be released until his office says it’s okay to release it.  

    I respectfully disagree, for two reasons.  First, in my view, police body camera footage isn’t an investigative record.  The Ohio Supreme Court has made it clear that incident reports – the written narrative of police/public interactions – aren’t investigatory records.  The incident report may initiate an investigation, but that report is not itself part of any investigation.  And body cam footage is exactly that – a report of an initial interaction.  It’s visual, not written, but that’s a distinction without a difference.   

    The Glendale footage illustrates the point.  It wasn’t recorded as part of any investigation. The cop simply offered to give a pedestrian a ride.  It wound up turning into a life or death matter, but the investigation – what happened, why and whether there were any mitigating circumstances – took place later.   

    The second reason I disagree is because a record isn’t exempt just because it’s “investigative.”  It’s exempt only if, in addition to actually being an investigative record, it discloses an uncharged suspect, a confidential source, an undercover police officer or a confidential investigatory technique.  So let’s assume for a minute that the Glendale body cam footage is “investigatory.”  Take a look at it.  The footage discloses none of the four items noted above.  So, aside from the fact that it’s not an investigatory record, it wouldn’t be exempt even if it were.  It should have been produced without delay.  And in taking that position I am in no way disrespecting the police.  But I am respecting the law.      
    Go comment!
  • Sarah Palin Lawsuit Versus Azealia Banks? I'll Believe It When I See It

    Apr 07, 2016
    A performer named Azealia Banks, who I don’t know of (fortunately) recently put out a stream of nasty tweets directed at former Alaska Governor Sarah Palin (who I do know of – unfortunately).  Ms. Palin apparently told People Magazine she intends to sue Ms. Banks.  But why pass up the opportunity to highlight the unique eloquence of the former Governor. Here is the statement:   

    “ I've had enough of the unanswered threats and attacks against my family and me. So, for the first time I'm going to enjoy the only retribution some protected 'celebrities' seem to understand – I'm suing Azealia Banks and can't wait to share my winnings with others who have gone defenseless against lies and dangerous attacks far too long."  

    So, what is the lawsuit about? Apparently, Ms. Banks saw an article in which Ms. Palin was quoted as saying that African-Americans “liked” slavery.  That led to a series of tweets from Ms. Banks, including one that said: “Honestly… Let’s find the biggest burliest blackest negroes and let them run a train on her. Film it and put it on worldstar.”  The others were actually more crude.   

    So it’s easy to see why Ms. Palin is upset.  But that begs the question.  Could she win a lawsuit over the tweets? I’m thinking no.  For starters, Ms. Palin would need to overcome the actual malice standard that applies to public figures.  That’s a tough standard in itself.  But putting that aside, Banks’s comments would almost certainly be considered “hyperbole” --  so over the top they wouldn’t be expected to be taken seriously.   

    And to the extent Ms. Palin wants to treat the comments as “threats” she would likely be stymied by The First Amendment.  The First Amendment protects abusive, offensive speech, so long as the speech doesn’t constitute a “true threat.”  And courts apply a pretty tough standard in that department.   A “true threat” is a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”   Given the content and format of Ms. Banks’s tweets, it’s hard to imagine a court finding they meet that rigorous standard.  

    I suspect readers will be split over whether that is a good result or not.  I think it is and that has nothing to do with how I feel about Ms. Palin.  Public figures are bound to be subjected to harsh rhetoric. It comes with the territory.  And they ought not be permitted to sue other than in truly dangerous situations.  If First Amendment protections were less rigorous, there’d be a real risk politicians and celebrities could shut down legitimate criticism.   

    I have a feeling Ms. Palin will not proceed with litigation here.  But the unfortunate thing here is that Ms. Banks reacted to a satirical article.  Ms. Palin never actually said the things that got Ms. Banks so fired up.  Maybe that’s the ultimate lesson here. Make sure you’ve got your facts straight before you take to social media.   
    Go comment!
  • Is This Reputation Defense on the Up and Up?

    Apr 04, 2016
    The advent of the Internet has created a lot of tension between online reviewers and the subject of the reviews.  The good news about the increased ability of any customer of any business to share a post about the customer experience is that it creates much more data for the consuming public.   The bad news is that the easy availability to the world (they call it the “worldwide” web for a reason) allows competitors and pranksters to post fake reviews.  And those fake reviews can seriously damage the reputation of a business.  

    One outgrowth of this phenomenon is the “reputation management” industry.  Reputation management firms work with businesses to clean up their on line presence.  One goal, for example, is to counter negative reviews with positive reviews.  The theory is that by flooding the Internet with good news, the bad news will get pushed down the list on search result pages.  Which is okay, so long as the positive are real.  And they’re not.   

    Another tactic for reputation management firms is to file defamation suits with the goal of getting a court order requiring search engines and other sites to de-list the reviews.  And again, that’s okay too. Unless . . .  Here’s a post from the online review site called “” According to the post, there is some suspicious activity happening in some California courts.   

    The typical defamation strategy goes like this – an affected plaintiff files a lawsuit against an anonymous reviewer.  The plaintiff then serves a subpoena on the host site (e.g. “pissedconsumer” or “ripoffreport”)  and discovers the identity of the poster.  At that point, the plaintiff attempts to prove the post is false and defamatory.  If that works, then the court may order it removed.   

    But all of that activity takes time.  And that’s what makes the California cases so fishy.  In 11 separate instances, the plaintiff managed to identify the anonymous poster, and get an affidavit admitting liability almost on the same day the suit is filed.  And the judgments in these cases don’t just order the removal of the offending post, they order the entire subdomain referring to that particular business.  That means that all of the reviews – not just the “guilty” one comes down.  Which means that legitimate negative reviews go away too. And the online reputation of that business improves, when it hasn’t earned it.  And that should lead to a lot of “pissed consumers.”    
    Go comment!
  • Sitcom Theme Songs and Elevator Pitches

    Mar 30, 2016
    The death of Patty Duke this week had me singing the theme song to the Patty Duke Show.  Word for word. The whole thing.  For a TV show that originally ran more than 50 years ago.  

    And that leads me to a bigger question. Whatever happened to TV theme songs that laid out the entire premise of the show?  Think about it.  The Patty Duke Show theme told us she had an identical cousin – Cathy – who was a sophisticated world traveler.  Patty of course, was a “typical” Brooklyn Heights teenager.  And this was typical of the genre.  We had The Beverly Hillbillies theme – which told us all about Jed Clampett’s journey.  The Gilligan’s Island theme told us how the Minnow crew got stranded and introduced us to the castaways.  The Brady Bunch theme gave us a decent summary of that family’s dynamic.   

    But what happened to this art form?  There are some well-known theme songs that are thematic – they lay out the general sensibility of the show, but they don’t tell us much detail.  We know “Cheers” is the place where everyone knows your name and the cast of Friends will be there for each other. But the level of detail is missing. The last show I can recall that really lived up to the glory days of theme songs is The Fresh Prince of Bel Air.  

    And if you think of it, the classic theme songs were like elevator pitches – they told you enough about the show to get your interest.  More than that would be too much, but less is insufficient.  In thinking about it, the TV theme song is not a bad model to build on when developing a pitch.  So here’s mine, to the tune of the Beverly Hillbillies Theme:  

    Come and listen to my story ‘bout a man named Jack;
    A First Amendment lawyer who will always have your back;
    He’s great in front of juries and he’s awesome on appeal;
    Call him up today and you’ll get a winning deal.    
    Go comment!
  • New Defense in Celebrity Libel Cases - It Ain't Me Babe

    Mar 29, 2016
    One of the interesting (or bizarre, depending on your perspective) arguments in Hulk Hogan’s recently concluded privacy trial against Gawker was that “Hulk Hogan” is a character separate and distinct from Terry Bollea.  Hogan/Bollea made this argument to address the evidence presented by Gawker that Hogan had routinely bragged about his sex life – size, technique, etc. – in plenty of public settings, including multiple appearances on the Howard Stern show.   

    Gawker contended not only was Hogan’s sex life a matter of public concern, it was made so by Hogan himself.  But Terry Bollea argued that the comments by Hulk Hogan were not about Terry Bollea and essentially couldn’t be used to incriminate Bollea.  The jury apparently bought this crap  analysis, in light of its $140 million verdict.   

    It now appears country music star Blake Shelton is using the a similar tactic in a libel suit against “In Touch” magazine. Shelton sued over reports in In Touch that he’d hit rock bottom due to excessive drinking.  One of the magazine’s defenses is that Shelton is “libel proof” when it comes to reports about his alcohol use.  

    A plaintiff is libel proof when that person’s reputation is so damaged by truthful reports that a subsequent false report doesn’t cause any marginal damage.  A leading case in this area involved Bob Guccione, the publisher of Penthouse, who brought a libel suit against Hustler Magazine for reporting that Guccione had engaged in an adulterous affair (I swear I am not making this up).  The court found that Guccione had for a significant period of time truly been involved with a woman not his wife. It also noted that Guccione actively advocated for open marriages and a “swinging” lifestyle.  So he simply couldn’t claim reputational harm over an erroneous report on that topic.  

    In Touch contends that there has been so much written about Shelton’s drinking that its story doesn’t harm his reputation any more than it has already suffered.   And the interesting twist here is that much of the reporting has come from Shelton himself.  In Touch introduced 50 pages of Tweets from Shelton detailing drinking exploits and hangovers.  The Tweets go back to 2009 and were shared with 15 million followers (he has a few more followers than me).  

    In response, Shelton claims that the tweets are “part of my schtick with my fans.”  “It is part of my act, part of my performance, but in no way indicates that I have an actual problem with alcohol,” according to Shelton.

    In other words, Blake Shelton the artist is a high functioning but loveable alcoholic, while Blake Shelton the person is sober as a judge.  Or something like that. Confused? So am I.  And it seems like a really slippery slope here.

    Sports and entertainment history is full of examples where the real person was markedly different from the media’s portrayal.  Shoeless Joe Jackson – so often portrayed as an illiterate boob was in fact a highly successful businessman after his banishment from baseball.  Ty Cobb probably was not as evil as he was portrayed in Al Stump’s fanciful biography.  Johnny Cash’s first wife was, according to many reports not nearly the shrew portrayed in “Walk the Line.”  I get that. And no one is contending that a celebrity should be defined by what others write about them.

    But Hogan and Shelton actively created their personas by their own words.  The law shouldn’t let them walk away from that when it gets uncomfortable.
    Go comment!
  • Remedial Civics Class In Order

    Mar 25, 2016
    Nicole Williams, a student at Scott High School in Northern Kentucky has been suspended for posting video of a hallway fight on Facebook.  The student was not involved in the fight, and did not video it. She received a copy of the video from another student and decided to post it.   

    Williams and others were concerned that school officials didn’t act quickly enough to diffuse the situation.  The school is apparently more concerned, however, with punishing the messenger – Ms. Williams.  When Williams first posted the video, school officials told her to remove it or she would be suspended.  Williams refused, and the school made good on its threat.   

    And that’s why the school officials should attend a civics class.  Because they seemingly don’t know about the First Amendment.  As a public school student, Williams is protected by the First Amendment.  And the school can’t ignore her rights just because it feels like it.  In 1969, the United States Supreme Court, in the case of Tinker v. Des Moines, held that a public high school could not restrict a student’s First Amendment rights unless the speech disrupted the educational process.  

    “Embarrassed school officials” by any reasonable reading of the case, does not constitute a substantial disruption to the educational process.  And no school should use its power to discipline a student as means to cover up incidents that may make the school look bad.  Whoever taught Nicole Williams’ Civics class did a great job.  It would be nice if the Scott administrators brushed up on the subject.   
    Go comment!
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