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.

  • The Ditzy Defense

    Mar 31, 2015

    Potentially good news for dimwits everywhere.  There may exist a “ditzy defense” in the world of libel.  And based on what happens in a Los Angeles Superior court, we’ll soon know for sure.  

    The case arises from the movie “American Hustle” and specifically a line delivered by Jennifer Lawrence.  In the scene that’s the subject of the suit, Lawrence and her husband, played by Christian Bale, are arguing about a new microwave oven that Bale received as a gift.  Lawrence claims that the microwave takes nutrition out of food. Bales says that’s “BS.”  Lawrence responds, “it’s not BS. I read it in an article. Look, by Paul Brodeur.”

    This is where it gets interesting.  Paul Brodeur is a real life scientist. And around the time in which the movie was set – the late seventies – Brodeur regularly gave interviews on the then new-fangled device.  In one interview, he was asked if there was any danger in eating food cooked by a microwave. He answered “none that is known.”  So in Brodeur’ s view the reference to him in the movie inaccurately and unfairly portrays him as a fear monger. 

    The interesting thing about the case is the nature of the film itself. It’s not fiction, since it’s at least loosely based on real events.  But it doesn’t pretend that it’s completely accurate either.   As the film’s opening title says “Some of this actually happened.” 

    So, can a plaintiff base a libel suit on statement by a character in a movie that is, by its own admission, not necessarily an accurate depiction of history?  On the one hand, why not?  If the statement is presented as a fact, about a real person, why should it matter that it was presented in a fictionalized presentation?  If someone writes a screenplay and includes a reference to “Cincinnati lawyer Jack Greiner, who defrauded his clients out of millions of dollars” (not true by the way) but presents it as a historical fact, why shouldn’t I be able to sue for that? 

    On the other hand, and at the heart of the “ditzy” defense, is the argument that it matters which character says it.  Jennifer Lawrence’s character in “American Hustle” was not entirely stable, or reliable.  So having her make the statement about Brodeur makes it questionable whether that particular item was reported as a historical fact.  In other words, her character is so “ditzy” that the audience can’t really take anything she says as factual.  And so nothing she says could form a viable libel claim. 

    We’ll see what happens.  I’m not really sure which way the court will go.  But I imagine in retrospect, the film makers are wishing they had just made up a name of a scientist.  Kind of ditzy not to do that in my view.   

    Go comment!
  • Better Late Than Never?

    Mar 26, 2015

    Here’s a piece by former Channel 9 reporter Karl Idsvoog:


    Karl justifiably calls out Kent State for violating Ohio’s Public Records Act in an effort to hide from the public details about KSU’s contract with a branding firm called 160over90.  Given that Karl currently teaches at Kent State, it’s safe to say he is as gutsy as ever, and his integrity remains intact.

    Too bad the same can’t be said for Kent State or 160over90.  Shame on both.  Kent State, you are a public entity subject to Ohio’s Public Records Act. You may not always like that, but I don’t like that I have to drive 45 miles per hour on Columbia Parkway.  We both just have to deal with it.

    And 160over90 (that’s your company name and you’re telling other people how to do branding? Really?) if you want to enter contracts with public universities,  you’d better deal with the fact that the contract is a public record. If you don’t like it, stick to the private sector.  But don’t think you can take public funds behind closed doors.  Karl is watching.

    Oh yea, Kent finally did cough up the unredacted records.  Great.  But why not obey the law in the first place?

    Go comment!
  • Stars, Bars and The First Amendment

    Mar 25, 2015

    The United States Supreme Court heard oral argument on Monday in a case that presents a tricky First Amendment issue.   Does the First Amendment require the state of Texas to approve a specialty vehicle license plate that features the Confederate flag?  Under the Texas program, the state sells space on licenses plates for individuals, non-profits and businesses to publish messages and advertising.  Theoretically, anyone willing to pay a premium can post  a message.   The money goes to the state.

    And that’s where it gets a little tricky.  The Texas Sons of Confederate Veterans (I would think all of those people would be dead by now. The Civil War ended in 1865. I assume this is primarily great-great grandsons of Confederate veterans. But I digress) applied for a message that featured the Confederate flag.  The Texas Department of Motor Vehicles Board (“Department” and “Board” seems redundant to me, but again, I digress) rejected the application because:

    “[P]ublic comments have shown that many members of the general public find the design offensive, and because such comments are reasonable.”

    And I agree that there are reasonable people who are offended by the confederate flag.  But having said that, it’s hard for me to see how this decision survives the First Amendment challenge.  Let’s think about this for a minute.  This is a state prohibiting speech based on the content of the speech.  The Sons of Confederate Veterans filed a 20 page brief but honestly, I’m not sure they needed to say much more than that last sentence.

    The state may regulate and prohibit a very narrow subset of speech.  Truly incendiary speech (i.e. speech that incites imminent violence), “fighting words”, and obscenity are subject to regulation.  But the Confederate flag, no matter how offensive it may be, does not fall under any of those categories.  Nor should it.   I have no desire to defend the veneration of that flag.  But I am a big believer in the First Amendment.  And it’s always good to remind ourselves that the First Amendment doesn’t exist to protect speech we love.  It exists to permit speech we hate.  It’s what makes us free, unlike slaves who lived in the Confederacy.  But once again, I digress.

    Texas has two choices as I see it.  Either run the license plate program consistently with the First Amendment, or shut it down.  I just don’t see much room for compromise on this one.

    Go comment!
  • Cleaning Up A Messy CDA Case

    Mar 24, 2015

    Federal courts have been pretty generous with their interpretation of the Communications Decency Act.  For the most part, judges have applied the law to protect ISPs and other interactive computer service providers from lawsuits arising from third party content.  But a recent case from a federal court in the Southern District of California bucks that trend. For now at least. 

    The case involves LivingSocial – an online promotions service that offers online deals and discounts to consumers for its “strategic business partners.”  The plaintiffs are the owners of a janitorial business called “A.T. Your Service Cleaning and Janitorial.”   In the spring of 2012, A.T. Your Service ran a LivingSocial promotion in San Diego. 

    Later in the summer a company called “At Your Service Housekeeping Company” ran a LivingSocial promotion.  According to the complaint, At Your Service Housekeeping “failed almost uniformly to fulfill and honor vouchers purchased on . . . LivingSocial’s website.”   And if that wasn’t bad enough, At Your Service Housekeeping didn’t put a phone number on the voucher, so a bunch of angry customers wound up calling A.T. Your Service to complain.  In A.T. Your Services view, that confusion caused it to suffer “a loss of business, revenue and reputation.”   

    A.T. Your Service filed suit against LivingSocial and At Your Service Housekeeping alleging a number of claims centered around the alleged misuse of the A.T. Service trademark and the false advertising. 

    LivingSocial filed a motion to dismiss based in part on the Communications Decency Act.  The motion argued that LivingSocial is a provider of interactive computer services and the content it displays is generated by third parties – in this case, At Your Service Housekeeping.  As such, LivingSocial argued it could not be liable for any claims seeking to treat it as a publisher of the offensive content. 

    A.T. Your Service countered that, based on LivingSocial’s website, it does not merely “passively display content created entirely by third parties.”  Rather, in its own words, LivingSocial is a “strategic business partner” that “partners with vendors to advertise and offer deals to potential customers.” 

    In considering a motion to dismiss, a court has to rely solely on the allegations in the plaintiff’s complaint.  The defendant files the motion before it files an answer, so the question really is whether the complaint is so deficient on its face to merit dismissal before the defendant even has to answer.  It’s a tough standard, and in this case, the court determined LivingSocial couldn’t satisfy it.  A.T. Your Service’s allegations about LivingSocial’s role in the process – which were based on LivingSocial’s own words – were enough to avoid the dismissal.

    Of course, that doesn’t mean LivingSocial lost the case.  It only means the case may proceed.  And things may look up for LivingSocial once more facts come in.  The CDA protections do not apply only if the service provider develops the content at issue.  In this case, the offensive content isn’t the promotion itself, so much as the confusing name (At Your Service Housekeeping) and the absence of a phone number.  To the extent At Your Service Housekeeping provided those items, LivingSocial may very well prevail on the CDA defense.  It’s just impossible to know the complete picture based solely on the complaint. 

    So this decision is kind of an outlier for now.  But that may change before too much longer.  And this case may get “swept” under the CDA coverage yet.

    Go comment!
  • I Know You Are, But What Am I?

    Mar 16, 2015

    In my March 7 “Strictly Legal” column for The Cincinnati Enquirer, I wrote about a recent Ohio court of Appeals case in which the court took an unusual step in its opinion. Specifically the Eighth District Court of Appeals (located in Cuyahoga County) asked the Ohio legislature to pass anti-SLAPP legislation, to keep people from filing lawsuits “aimed at chilling protected speech.” The case before the appellate court had been filed by Robert E. Murray and several energy companies he owns in reaction to protests staged by an organization called “Patriots for Change” and to the coverage and editorials on the matter published by the Chagrin Valley Times.

    The trial court and the appellate court both found that libel case lacked legal merit.  And the appellate court said that the case illustrated the need for legislation that would help makes sure similar cases could be nipped in the bud, with the plaintiffs being required to pay the defendants’ attorney fees. By my standards, it was a straightforward news account.

    This Sunday, The Enquirer published a response to my column penned by Murrays’ “Assistant General Counsel/Media Director/Attack Dog” Gary M. Broadbent.  In the interest of full disclosure, I made up the Attack Dog part. But while I don’t know what his middle initial stands for, there is at least a 50/50 chance it’s short for “Mean.”
    I won’t repeat everything Mr. Broadbent has to say, but here are a couple of nuggets that should give you a feel for his nuanced approach to legal discourse:

    “The Enquirer and its lawyer, John C. Greiner, in their false and demonizing article have made it abundantly clear that they want to be able to publish anything they want, including absolute lies, personal attacks and complete fabrications, with no legal repercussions whatsoever.” Um, not really. My column recounted what the court of appeals held. And no one is advocating that a newspaper should be allowed to publish “lies and complete fabrications.” The point of the court of appeals opinion was that Murray could not establish as a matter of law that the protests, news coverage or editorials constituted actionable libel.

    “In advocating their radical view, The Enquirer and Greiner have managed to defame and insult Robert E. Murray and the 7,500 direct employees and 90,000 indirect jobs that depend on him.” Well, not really. Mr. Murray my find my column insulting but it didn’t “defame” him. Unless accurately reporting on what an Ohio appellate court unanimously rules is defamation. Now that would be a radical view.

    “The Enquirer and Greiner think that Ohio should adopt an anti-SLAPP statute and they will say anything they need to – true or not – to persuade readers to agree with them.”
    I do think Ohio should pass anti-SLAPP legislation, but where does Mr. Broadbent get off saying I’d “say anything – true on not” to make that happen? Is he suggesting that there was something not true in my column? Maybe he could take his teeth off my ankle long enough to indicate what that was. Because he doesn’t point to one single example in his response.

    This column is merely Greiner’s attempt to bully Murray into filing a lawsuit, so that he can generate some new clients for his law firm. This is disingenuous, plainly wrong and must be addressed.
     Huh? I’m the bully? For reporting on an appellate decision? What about the three appellate judges who essentially said that Murray’s conduct is an example of why Ohio needs an anti-SLAPP statute? And who are the new clients I am going to generate if Mr. Murray sues me for what I wrote? Me? What a great client development strategy. Maybe while I’m at it, I’ll go ahead and rear end somebody on my drive home from work today. That will drum up some business too I guess.

    I’ve always liked the quote “The best way to expose a fool is to let him keep talking.” So please Mr. Broadbent, feel free to comment.

    Go comment!
  • What Part of "Public" Do You Not Get?

    Mar 11, 2015

    In light of “potential” presidential candidate Hillary Clinton’s press conference yesterday (and I try to avoid politics, but seriously, it took her THAT long to come up with THAT response? Was the original draft not tone deaf and arrogant enough?), my friend Kimball Perry wrote this piece in today’s Cincinnati Enquirer. It’s a survey of the extent to which local officials use private e-mail to conduct public business. Kimball asked readers to answer a survey about the topic. In lieu of me responding to the form, I offer this slightly longer response.

    And it is this. If Ohio officials think they can avoid the Ohio Public Records Act by using their private e-mail, they are wrong. I cannot state that strongly enough.  WRONG.  REALLY, REALLY WRONG. So, let’s explain why. The Ohio Revised Code defines  “records” at R.C. 149.011: "Records" includes any document, device, or item, regardless of physical form or characteristic, including an electronic record as defined in section 1306.01 of the Revised Code, created or received by or coming under the jurisdiction of any public office of the state or its political subdivisions, which serves to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office.

    Note that the definition focuses on who creates the record and what it concerns. Physical logistics don’t matter. So, if a public official creates a record that concerns public business, it’s a record. And that includes records created on a private server, a legal pad or an etch a sketch. R.C. 149.43 defines  “public records” as: records kept by any public office, including, but not limited to, state, county, city, village, township, and school district units, and records pertaining to the delivery of educational services by an alternative school in this state kept by the nonprofit or for-profit entity operating the alternative school pursuant to section 3313.533 of the Revised Code.

    Now, I suppose some public officials will seize on the words “kept by” and argue that e-mails on private servers that clearly constitute “records” under R.C. 149.011 aren’t “public records” under R.C. 149.43 because they aren’t “kept by” the public office. I have seen this argument advanced by at least one local school board. Now, putting aside for a moment the sheer cynicism inherent in this argument (“it can’t be a public record because I made sure to hide it from the public”), it is also pretty clear that this too is WRONG.


    First, if the public official is maintaining the record, it seems to me a reasonable argument that the public office is maintaining the record. The “office” is not a living, breathing organism. It can only act through its employees. But in addition, the public official who tries that tactic is most likely going to encounter R.C. 149.351: All records are the property of the public office concerned and shall not be removed, destroyed, mutilated, transferred, or otherwise damaged or disposed of, in whole or in part, except as provided by law or under the rules adopted by the records commissions provided for under sections 149.38 to 149.42 of the Revised Code or under the records programs established by the boards of trustees of state-supported institutions of higher education under section 149.33 of the Revised Code. Those records shall be delivered by outgoing officials and employees to their successors and shall not be otherwise removed, destroyed, mutilated, or transferred unlawfully.

    Note that R.C. 149.351 says “records”, not “public records.” So the e-mails that contain official business are the property of the public office, and if the public official does anything other than deliver them to the public office he or she (let’s call her Hillary for convenience) are liable for a civil forfeiture of up to $10,000. 

    Don’t say I didn’t warn you.

    Go comment!
  • Balancing Act Favors First Amendment

    Mar 09, 2015

    I spent a good chunk of last Friday observing a hearing in federal court. The issue? A conflict between the First Amendment and the fair trial rights of an accused terrorist.   Always an interesting balancing act. 

    The case involved Chris Cornell, a young man from Cincinnati's west side who was arrested on federal charges earlier this year for threatening to kill, among others, John Boehner. Cornell is being held in the Boone County, Kentucky jail pending his trial.  Cornell's lawyers went to court in mid- January and got an order prohibiting the Boone County jail from allowing third parties to contact Cornell without the express permission of his lawyers. 

    But Cornell's lawyers also asked that Cornell have access to a phone. And in making that request, they agreed that Cornell could call who he wanted. And that's where the trouble started. 

    Last Wednesday night, during the WXIX news broadcast, Cornell called Channel 19 anchor Tricia Mackie. Through a series of efforts, and over the objection of Cornell's lawyers, on Thursday morning, Mackie conducted a 60 minute phone interview with Cornell.

     Last Thursday night the interview was set to air, Cornell's lawyers went to court seeking a contempt citation and an injunction preventing WXIX from broadcasting the interview. The court conducted the hearing on Friday morning. WXIX agreed not to broadcast the interview until after the hearing.

    And that's why I headed over. Cornell's request that the court prohibit the broadcast was extraordinary. It's called a prior restraint. And the First Amendment prohibits such an order absent truly extraordinary circumstances. Cornell's lawyers argued that the violation of the court order was extraordinary enough to permit the prior restraint. 

    With all due respect, I disagree. But the court didn't have to get to that tricky issue.  Because the court concluded neither the Boone County Jail nor Channel 19 violated the order. Cornell initiated the contact, and while that may have upset his lawyers, it didn't violate the court order.

    But there was one other aspect to the proceedings which was a little ironic. The thinking underlying the proceeding was that publicizing the interview would make it impossible for Cornell to get a fair trial. But Cornell's lawyers presented no evidence to support that assumption. And the irony is that just last week the United States Court of Appeals for the First Circuit rejected a motion by Dzhokhar Tsarnaev, the accused Boston Marathon bomber to move his trial out of Boston. 

    Tsarnaev argued the pretrial publicity meant he couldn't possibly get a fair trial in Boston.  In denying the motion, the appellate court rejected the notion that juries can't put aside prejudice and publicity and do their jobs.  The opposite perspective is really cynical when you think about it.  It's a view that shows no confidence in the attitude jurors bring to a proceeding -- a genuine desire to do the right thing.  Litigants who argue the cynical view that jurors can't be fair simply because of prejudicial publicity not only don't understand the First Amendment, they don't understand human nature.

    Go comment!
  • Supreme Court Doesn't Blow It In Whistleblower Appeal

    Mar 05, 2015

    My friend Dennis Hetzel, who heads up the Ohio Newspaper Association sent me this link and suggested it would make a good blog post. He is right.

    The Poynter piece discusses a recent U.S. Supreme Court decision which turned out to be a huge victory for Robert MacLean, federal whistle blowers and ultimately the public's right to know. MacLean is a federal air marshal who lost his job because he leaked information to MSNBC that the Transportation Security Administration had decided to stop providing air marshals for overnight flights from Las Vegas for a period of time in 2003. MacLean attempted to bring his concerns to his superiors, and only when his comments fell on deaf ears did he give the story to MSNBC.

    There is a federal statute that protects whistle blowers in this type of situation.  Understandably, though, there is an exception to the law that prohibits a whistle blower from leaking information in violation of a law. 

    Unfortunately for MacLean, when the TSA found out he was the leaker, it fired him, claiming his actions violated a security regulation adopted previously by the TSA. The Supreme Court found in MacLean's favor, finding that a regulation adopted by an agency is not a "law" as envisioned by the whistle blower act. The Court noted that if agencies could adopt regulations allowing the agency to discipline whistle blowers, it would open a loophole in the federal whistle blower law bigger than a 747.

    So good news for MacLean and other federal employees who try to do the right thing.  And good news for the public. There are countless instances of great investigative journalism that originated from an employee who is willing to expose wrong doing, negligence or corruption in his work place. While that was not the precise issue before the court, a collateral benefit of its ruling is more robust journalism. And that is a very good thing.  


    Go comment!
  • Slapping a Bully

    Feb 26, 2015

    Robert Murray owns Murray Energy Coal Corp. And he is a big bully. Which is bad enough, I suppose, but Murray is the kind of bully who uses the court system to throw his considerable weight around.

    And like most bullies, while Murray’s skull is thick, his skin is thin. Which accounts no doubt for this litany of libel lawsuits he’s filed over the years. I’ll keep my readers posted if I’m next.

    But most recently, Mr. Murray may have gone too far. Because in his most recent temper tantrum/libel suit, an Ohio appellate court not only tossed the meritless case, it called for the Ohio legislature to pass legislation that would put the brakes on Murray’s tactics.

    Here’s a quick recap of the case. The day after President Obama’s 2012 re-election Murray Energy fired 158 employees. In a personal “prayer” delivered to employees the day of the firings, Mr. Murray said: “Lord, please forgive me and anyone with me in the Murray Energy Corp. for decisions we are now forced to make to preserve the very existence of any of the enterprises that you have helped us build.”  (Is it just me or does Murray’s prayer sound a little like this one?)

    An organization called “Patriots for Change” organized a protest in front of Murray Energy’s Chagrin Falls headquarters in December of 2012. Protestors accused Murray of being a bully, and held up signs that included statements such as “Mr. Murray stop intimidating your coal mining employees.”

    Chagrin Valley Times reporter Sali McSherry reported on the protest, quoting several demonstrators, but also quoting verbatim Murray’s official statement calling Patriots for Change a “militant unionist labor group.”

    The Valley Times also published an editorial written by Editor Emeritus David Lange taking Mr. Murray and Murray Energy to task for its spotty safety record and challenging the truth of certain statements Mr. Murray had made regarding his alleged lack of knowledge of a 2007 partial mine collapse.

    The Valley Times editorial cartoonist Ron Hill chimed in with a cartoon depicting a snowman made of lumps of coal, holding a sack of money in each hand.  The cartoon also featured lyrics to the tune of “Frosty the Snowman” that included “Murray the coal-man … meant to hoard away his pay.”

    In response, Murray and his affiliated companies did what any person who believes in less government would do. They asked a branch of the government to help them out. Mr. Murray apparently believes in the motto about foolish consistency being the hobgoblin of small minds. Either that or he’s a also a hypocrite.

    In any event, Murray and his companies sued Patriots for Change, Chagrin Valley Publishing Co., Sali McSherry, David Lange, Ron Hill and assorted others for libel and false light invasion of privacy. The trial court granted summary judgment in defendants’ favor on all claims, and the appellate court affirmed.

    Summary judgment means Murray’s suit had no legal merit. The court threw it out without wasting a jury’s time. And the court of appeals validated that decision.

    But of course, the newspaper, the reporter and the protestors had to hire lawyers, take time out of their work days and otherwise endure a civil lawsuit due to the whims of this moron. All of which prompted the appellate court to add this color commentary to its decision:

    This case illustrates the need for Ohio to join the majority of states in this country that have enacted statutes that provide for quick relief from suits aimed at chilling protected speech.  … The fact that the Chagrin Valley Times website has been scrubbed of all mention of Murray or this protect is an example of the chilling effects this has.  … Many states provide that plaintiffs pay the attorney fees of successful defendants and for abbreviated disposition of cases. 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.”

    Good advice from Ohio’s judicial branch.  Let’s hope the legislative branch pays attention.

    Go comment!
  • Drone Update

    Feb 16, 2015
    My last post talked about options for limiting drone traffic, including this video

    detailing the plans by at least one member of some “well regulated militia” to shoot ‘em down. 

    But it looks like I forgot one other option – the Federal Aviation Administration. The FAA has proposed new rules that will limit how commercial operators can use drones going forward. Two provisions that may pose a real problem? Operators will need to see the drone with “unaided vision.” Operating the drone within eyesight will no doubt limit the range and the usefulness of the technology.

    And when you think about it, what good would the drone really be under these restrictions? We know Amazon wants to use them for lightning fast delivery. And journalists see value in a device that can travel where a reporter cannot. 

    No doubt the proposed rules are a starting point for negotiations.  Let’s see where we end up. 

    Go comment!
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