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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.

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  • The List

    Dec 18, 2014

    Around this time of year, it’s common to see “lists”  -- typically “the best of”.  But here is my list of people who bugged me in 2014:

    1.            Tony LaRussa (he will be on this annual list till I die, as a matter of principal)

    2.            Yadier Molina (see above)

    3.            Matt Holliday (ditto)

    4.            Anyone wearing St. Louis Cardinals apparel (this includes players and fans)

    5.            Former Vice President Dick Cheney

    6.            Oliver Stone

    7 – 9.     The writer, performer and producer of “It’s All About That Bass”

     10.          The companies mentioned in this techdirt.com article


    Since my reasons for picks 1 – 9 are obvious, let’s discuss item 10. The companies listed in the article all contain provisions in their terms and conditions that purport to obligate customers to refrain “from taking any action that negatively impacts [the company’s] reputation.” In some cases, the terms say that the customer who violates the provision will be liable to “attorney fees and court costs.” 

    Think about the quoted words above. The two that are key are “any action.” So, let’s say you buy something from one of these companies. And let’s say that they screw up your order. And let’s say there is absolutely no doubt about that fact. And let’s say you complain about it to the local Better Business Bureau, or you post a review on Yelp detailing the undisputed facts. Guess what you’ve done? If you answered “breach the contract” you are correct. And therein lies the problem. 

    The terms and conditions contractually bind customers to silence in the face of legitimate complaints. Victims of false reviews have a remedy – a libel suit. But the key word there is “false.” These terms and conditions allow the companies to blow by that little inconvenience. So by definition the terms don’t address false reviews (since there’s already a remedy for those) instead, they seek to stifle the truth. And that is disgraceful.

    Let’s hope courts that review any lawsuit seeking to enforce these onerous terms refuse to do so on public policy grounds. That is the only proper response.

     

    Go comment!
  • SLAPP Fight In Ohio?

    Dec 17, 2014



    Many thanks to my friend Jonathan Peters for bringing this item to my attention. Jon is a professor at the William Allen White Journalism School at the University of Kansas.  As an aside, White was a fascinating figure in American history. He’s mentioned prominently in Doris Kearns Goodwin’s The Bully Pulpit for being one of the “muckrakers” who helped spur much progressive legislation during Theodore Roosevelt’s presidency. White also fought against isolationists in the lead up to World War II – not a real popular position for a Midwesterner at that time. But I digress.

    Jon’s piece is about a recent ruling from Ohio’s Eighth Appellate District upholding a summary judgment in favor of the Chagrin Valley Times, a small newspaper near Cleveland. The Valley Times reported on a December 2012 protest at the Ohio headquarters of Murray Energy. The protest had to do with Murray’s firing 156 employees following President Obama’s reelection. The Valley Times also published an editorial and an editorial cartoon critical of Murray and its owner Robert Murray. 

    Robert Murray has been a guest on Fox News, where he has decried President Obama’s efforts to “destroy America.”



    But, like most bullies, Mr. Murray is great at dishing it out and not so great at taking it.  Murray and his company filed suit against the Valley Times for libel and “false light publicity.”  Following a period of discovery the trial court granted summary judgment in favor of the Valley Times, meaning the court found the Valley Times was entitled to judgment as a matter of law. There was not enough of a case to waste a jury’s time.  And the court of appeals upheld that decision.

    But that was the easy part. What makes the case most interesting is the conclusion to the Court’s Opinion. There, the court urges the Ohio legislature to adopt anti-SLAPP legislation. A SLAPP suit is a “strategic lawsuit against public participation.” It’s a suit where a big self-righteous bully, let’s call him “Robert Murray”, brings a lawsuit to shut down the free speech rights of people who disagree with him. Even if the suit is meritless, and even if he loses, the cost of defense may make the other side think twice before they open their mouths the next time. 

    Anti-SLAPP legislation exists in 28 states and the District of Columbia. As Jon explains,  “Anti-SLAPP statutes . . . typically provide five things: protections for speech on issues of public concern and for activities related to petitioning the government, procedures to obtain early dismissal of a SLAPP, recovery of attorney’s fees and court costs for the target, speedy review of any motions to dismiss, and restrictions on the discovery process while the court considers such a motion.”  And as the Eighth District Appellate Court notes, “In this era of decentralized journalism where the internet has empowered individuals with broad reach, society must balance competing privacy interests with freedom of speech. Given Ohio’s particularly strong desire to protect individual speech, as embodied in its Constitution, Ohio should adopt an anti-SLAPP statute to discourage punitive litigation designed to chill constitutionally protected speech.”

    Here’s hoping the Ohio General Assembly includes this on their list of New Year’s resolutions!  

    Go comment!
  • Above The Law Is, Apparently, Not Above The Law

    Dec 10, 2014


    First, an important point of clarification. This post does NOT concern the classic 1998 Steven Seagal film of the same name:



    It deals instead with a legal blog. Above the Law is a chatty, snarky publication about the legal industry.  It features headlines like “Judge Uses Cartoons to Benchslap Jones Day.”  From my observation, a lot of young lawyers read it regularly. Do I sound mildly jealous? Perhaps. Maybe I need to be snarkier.  

    But I digress. A lawyer named Meanith Huon sued Above the Law for allegedly posting an article that discussed his criminal trial for sexual assault charges. Meanith Huon is an attorney licensed to practice law in Illinois. On July 2, 2008, Huon was charged with two counts of criminal sexual assault, two counts of criminal sexual abuse, and one count of unlawful restraint. The charges arose out of his alleged interactions with “Jane Doe” on June 29, 2008, in Madison County, Illinois.

    Approximately one year later, on July 17, 2009, Huon was charged with cyber stalking and witness harassment based on allegations involving the same Jane Doe. Following a trial in May 2010, a jury acquitted Huon of the sexual assault charges. The cyber stalking and witness harassment charges were dismissed in December 2011. 

    On July 2, 2008, the day the sexual assault and related charges were filed, an article about those charges appeared in the Madison County Record. The following day, July 3, 2008, Above The Law published a post that included the one-line statement “Lawyer of the Day: Meanith Huon” along with a link to the Madison County Article. On May 6, 2010, Above The Law published an article “Rape Potpourri.” The “Rape Potpourri” article provided information and commentary on two “rape stories”: (1) the arrest of former New York Giants linebacker Lawrence Taylor based on a rape allegation, and (2) the allegations at issue in Huon’s criminal trial and the opening statement made by Huon’s defense lawyer at trial. The section of the article on Huon purported to link to and quote, several other publications, including the Madison County Article. The Article eventually generated over 107 comments or replies from users (way more than I ever get).

    On May 6, 2011, one year after publication of the potpourri article, Huon sued Above the Law, along with the anonymous commenters who posted comments on the article. Huon included a potpourri of claims, including defamation, intentional infliction of emotional distress, and false light invasion of privacy. Huon’s civil suit generated its own publicity, including a story on the blog Jezebel.com, which appears on Gawker.  That blog posted an article entitled “Acquitted Rapist Sues Blogger for Calling Him Serial Rapist.” Jezebel included links to the Above the Law potpourri article. The Jezebel article prompted about 80 comments. Huon eventually amended his complaint to add Jezebel and Gawker as defendants.

    For the most part, Huon had less success in civil court than he’d had on the criminal side.  Although Huon alleged that the articles were written to incite defamatory comments, the court held Section 230 of the federal Communications Decency Act precluded any suit against Above the Law and Gawker for those third party comments.

    The court also found that for the most part, even the content written by Above the Law and Gawker (which would not have Section 230 protection) wasn’t defamatory.  According to the court, the articles accurately described the charges and the court proceedings against Huon. They were protected by what is known as the “fair report privilege.” 

    But Above the Law didn’t come away totally clean. The court noted that one passage in the article said: “And this, people, is why God invented Google. Had the victim Googled Huon, she would have found stories like this . . .”  The article then detailed reports about Huon from other publications. In context, the court found that this passage implied that Huon had been involved with sexual assault charges before the Jane Doe incident. And this was not the case. As a result, while the court dismissed all of the claims against Gawker, it allowed Huon to proceed with his suit, albeit in a very limited manner, against Above the Law. 

    The lesson? It’s okay to be snarky, but better make sure your facts are straight.       

     

    Go comment!
  • Shooting The Messenger

    Dec 09, 2014


    Well, sort of I suppose. Here’s a post from techdirt.com that calls out Roca Labs for its efforts to get negative comments about Roca products off the Internet. Without going into a lot of detail Roca is apparently suing 11 anonymous commenters for defamation based on comments the anonymous posters put up a various Web sites complaining about a Roca Labs product that supposedly gives the drastic weight loss benefits of a gastric bypass procedure without the operation.   

    Typically, in a case like this, the first thing the defendant tries to do is unmask the anonymous poster. But Roca may not be bothering with that step. According to the post, Roca’s plan is to get default judgments against the anonymous posters, and then use those judgments to force search engines such as Google to remove the posts.  Some search engines will remove content that has been deemed defamatory, but that is a voluntary policy, not a legal requirement.

    In fact, the law is contrary to such an argument. The federal Communications Decency Act provides that a provider of interactive computer services is not deemed the publisher of content generated by third parties. And courts have held (most recently an appellate court in Florida) that the CDA effectively provides immunity to search engines for claims arising from third party content. And that includes “equitable claims” like an injunction. 

    All of that means, it may be tough for Roca to shut down the critical voices out there. No matter how much it throws its weight around.

    Go comment!
  • Making Stuff Up

    Dec 01, 2014

    I have a friend named Bob (last name withheld) who makes stuff up. But I am okay with that, because he weaves the made up stuff seamlessly in with the truth in a way that enhances the quality of the narrative. And it’s not like he’s committing fraud or anything like that – his web of deceit is harmless. And often hilarious. 

    He came to mind as I was readingthis piece from the Washington Post. Apparently, it’s pretty common for scripted TV shows to make up names for popular products like “Apple” (a show on Nickelodeon features an “iPear Store”) “Google” (aka “NetRangler” in an episode of “Dexter”) and “Facebook” ( “YouFace” in “30 Rock”). 

    The writers (and more likely the network suits) figure it’s not worth a cease and desist letter, or worse yet, a law suit from a company who’s not amused by having their name or logo made fun of or disparaged. Hence, the practice of making up names. My friend Bob would fit right in.

    And by the way, if I see a reference out there to a blog called “John Freed from the Container” don’t think you’re fooling me for a second. 

    Go comment!
  • No Safety Indeed

    Nov 26, 2014

     

    A California Criminal court decided earlier this week that Brandon Duncan, also known as rapper Tiny Doo will have to stand trial for conspiracy related to nine San Diego shootings.  And how many times did Tiny Doo pull the trigger in those incidents? Approximately never.

    Allow me to explain. Apparently, other than belonging to the gang, Tiny Doo had nothing to do with the shootings. He did, however, cut a CD called “No Safety” . While the titles on the CD display atrocious grammar – “Hella on Feet”; “Bare Wit Me Feat” and “Gimme Back My Bullets” – this in itself is not a crime. (And I am an old man, I realize this). And, in fact, none of the songs discuss the shootings. 

    Apparently Tiny Doo is charged with violating a California statute that allows the state to prosecute gang members who benefit from crimes committed by other gang members. In the prosecutor’s view, Tiny Doo benefitted from the gang shootings because those shootings elevated the gang’s status resulting in additional CD sales. 

    Seems like a stretch. And it probably violates the First Amendment. There are two ways a law may be unconstitutional. Some are “facially invalid” – the law as written plainly violates a constitutional right. So if the statute prohibited any composition that “glorifies” gang activity, that law would almost certainly not survive a challenge. 

    Other laws, however, are unconstitutional based on how they are applied. And cases challenging them are referred to as “as applied” challenges. Here, to the extent the statute prohibits other gang members from profiting from a crime it does not necessarily violate the constitution. If one gang member robs someone and shares the loot (yes, I used the word “loot” – as noted above, I am old) with another gang member, there’s probably not a constitutional issue posed by prosecuting the members who benefit from the robber’s generosity.

    But when the state seeks to prosecute expression, based on the content of that expression, there’s a problem. Because the First Amendment guarantees the right of free speech. And from a policy perspective, a contrary ruling would lead to absurd results.  What if the CD was critical of aspects of gang life? What if instead of a CD, Tiny Doo wrote a scholarly piece on the root causes of gang life?  Wouldn’t he be reaping the same reward? And if the CD is a crime, how could the other examples not be? 

    It’s probably best to keep the government out of the music criticism business. The founding fathers grasped this concept, even if they thought hip hop was a maneuver for their horses.        

    Go comment!
  • Federal Court Delivers Brushback to Roger Clemens

    Nov 20, 2014

    A federal judge in New York is threatening to impose sanctions on former major league Roger Clemens for Clemens’ “continued and repeated abuse of the discovery process.'' This is a little worse than being tossed from a game by an umpire.

    Clemens is the defendant in a libel suit filed by Clemens’ former trainer Brian McNamee. McNamee claims Clemens libeled him when he accused McNamee of lying and manufacturing evidence in connection with McNamee’s claims that Clemens used performance enhancing drugs. Clemens is apparently not producing documents McNamee has requested in the discovery process. 

    While it doesn’t make for much drama, in most civil trials, there aren’t a lot of surprises.  A plaintiff files the lawsuit, and is then entitled to obtain documents and other information from the defendant to help prove the case. The defendant can object to the requests, but for the most part, judges allow the parties (the defendant can request information from the plaintiff too) to make broad requests. The process can take months or years in a complex trial.

    As Clemens is discovering, the courtroom and the diamond are different environments.  And Clemens has a little less control over his fate than when he was standing on the mound.

    Of course, the judge better be careful too. You never know what Clemens might throw at him.

    Go comment!
  • Rap Sheet

    Nov 19, 2014
    This is awesome.  On a host of levels:



    First, she’s pretty good. Second, the gestures are phenomenal. Third, her reaction to being recorded is priceless. But finally, and most importantly, here’s what her husband commented when he posted the clip:

    My wife is THE most beautiful human being I know and I absolutely adore the moments I get to watch her being herself. Don't be shy people, say you love your loved ones, treasure the little moments and don't worry if people are judging you!

    Amen to that. 

    But, of course, the lawyer in me can’t leave it on that sentimental note. And the media lawyer in me wonders, what if this couple had a less friendly relationship. Would the rapping wife have a legal claim against her husband? Well, here comes the answer that makes clients everywhere cringe. It depends. In 12 states, a party to a conversation can record it only if the recorded party consents. These states are called, unsurprisingly, “all party consent” states. So, if the couple resides in one of those states, the wife may have a claim.

    But 38 states, D.C.  and under the U.S. Code, a party to a conversation is allowed to tape it without telling the other party.  These states are called “single party consent” states.  So, if the couple reside in one of those states, the wife may not have a claim.  The only issue, I suppose, is whether her rap song would be deemed a “conversation” and whether the husband was a party to it in any event. 

    If any of my media law friends are reading, I’d love your input!

    Go comment!
  • It Goes With The Bench

    Nov 13, 2014

    I was thinking about this movie today, mainly for this quote:

    Billy Joe 'Budger' Cahill: You're bleeding again, Pa.

    J.D. Cahill: Yeah, I guess it goes with the badge. You got a kerchief?

    The point? If you accept a job some burdens come along with it. So what made me think about that quote? This USA Today article. It’s a piece about what may be the most powerful institution in our government – The Supreme Court – is the least accessible. And probably the least accountable. I’ve blogged about the Court’s inexcusable refusal to broadcast its oral arguments.

    And while that’s an important point, there are other pressing issues. Such as, for example, why shouldn’t the justices specify why they recuse themselves from cases? Why shouldn’t their financial disclosures be filed online? Intrusive? Maybe. But it seems like a small price to pay for lifetime tenure and pretty much limitless power. Not to mention summers off. 

    Of course, just this week, Justice Alito



    is speaking to the uber conservative Federalist Society. And guess what? He’s insisted that his speech be closed to all broadcast media. Which is actually a compromise – he originally wanted all press excluded. Now he has deigned to allow “pen and paper” media (although in my experience, most reporters now have iPads). I don’t know if the Justice is a fan of the Duke. But he could take a lesson. And not be so camera shy!   

    Go comment!
  • Elephant Stampede

    Nov 07, 2014


    I’m not saying this is exactly what it looks like in Washington right now,



    but given the Republican control of the House and Senate, there are bound to be some consequences. One area that might pique the interest of the re-constituted Congress is the Federal Trade Commission’s data privacy regulation. I’ve written about this before. Congress has never specifically given the FTC regulatory power in the data privacy world, but that has not stopped the FTC from filling the vacuum. 

    The FTC believes its power to regulate comes from its statutory authority to investigate unfair and deceptive trade practices. So companies that don’t abide by their privacy policies or who don’t use state of the art techniques to protect customer data have found themselves in the FTC’s cross hairs. 

    Congressman Darrell Issa, who seems to head up a disproportionate number of investigations, is already on record opposing the FTC’s activity in this area. Now that the Senate has a majority of Republicans, as well as the various committee chairs, it will be interesting to see if there is any action on this topic. Stand by.  

    Go comment!
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