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.


    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!
  • Who Owns Stephen Colbert?

    Jul 29, 2016

    There’s been a pretty interesting controversy emerging from Stephen Colbert’s “Late Show” on CBS.  Colbert recently reprised “The Word” segment from the Colbert Report on Comedy Central – Colbert’s employer before CBS. 

    On Comedy Central, Colbert portrayed a bombastic, conservative leaning commentator, named “Stephen Colbert.”  The Word featured the character riffing on words, with a box over his shoulder with text amplifying the points.  The most famous “Word” was “truthiness” – which the Colbert character defined as   “the quality of seeming or being felt to be true, even if not necessarily true.” 

    On the Late Show, Colbert does not portray a character – he is his own man so to speak.  And he’s generally steered clear of the Comedy Central character – until last week  when the character made a triumphant return to discuss "Trumpiness."   Trumpiness describes the state of followers who don’t believe a candidate’s wildest promises – and don’t care. 

    In any event, Viacom – the parent of Comedy Central – apparently sent a letter to CBS demanding that Colbert stop being Colbert.  It’s an interesting dilemma isn’t it?  On the one hand, the concept is pretty clear – a character belongs to whoever creates it.  So, Jon Hamm couldn’t recreate his Don Draper role in another series without AMC’s permission.  That seems pretty black and white.

    What makes the Colbert situation more gray is that the character is Stephen Colbert.  So where does Colbert the person end and Colbert the character begin?  Here’s an excellent discussion of the issue.  It may come down to attitude. The bit isn’t too different from what Seth Myers does with “A Closer Look” or what Trevor Noah does on “The Daily Show.”  So Comedy Central really can’t own the format.  It really comes down to the characteristics of the Colbert character – the bombastic cluelessness is the essence.  But that may be a pretty amorphous standard.

    Colbert’s solution for now is to introduce the character’s "identical twin cousin" who did a segment called “The Werd.”  I guess now we’ll see if Comedy Central has a sense of humor!

    Go comment!
  • Do As I Say, Not As I Do

    Jul 27, 2016
    The Columbus Dispatch reports that the Pike County Coroner, David Kessler, has completed the autopsy reports on brutal slayings in Pike County Ohio.  And, contrary to Ohio Law, he is refusing to produce copies.  He is relying on Ohio Attorney General Mike DeWine for support on this illegal action. 

    It appears that Kessler is citing a 1984 Ohio Supreme Court case – State ex rel Dayton Newspapers v. Rauch – where the Court ruled that autopsy reports are exempt from the Ohio Public Records Act.   But in legislation adopted after that 1984 decision, the Ohio Legislature made it clear the Rauch case is no longer controlling.  Revised Code 313.10 provides:   

    Except as otherwise provided in this section, the records of the coroner who has jurisdiction over the case, including, but not limited to, the detailed descriptions of the observations written during the progress of an autopsy and the conclusions drawn from those observations filed in the office of the coroner under division (A) of section 313.13 of the Revised Code, made personally by the coroner or by anyone acting under the coroner's direction or supervision, are public records.  (emphasis added)

    This statute begs the question -- what part of “ARE PUBLIC RECORDS” do these guys not understand?

    The same statute then specifically lists those records that are not public record: 

    2) Except as otherwise provided in division (D) or (E) of this section, the following records in a coroner's office are not public records:

    (a) Preliminary autopsy and investigative notes and findings made by the coroner or by anyone acting under the coroner's direction or supervision;

    (b) Photographs of a decedent made by the coroner or by anyone acting under the coroner's direction or supervision;

    (c) Suicide notes;

    (d) Medical and psychiatric records provided to the coroner, a deputy coroner, or a representative of the coroner or a deputy coroner under section 313.091 of the Revised Code;

    (e) Records of a deceased individual that are confidential law enforcement investigatory records as defined in section 149.43 of the Revised Code;

    (f) Laboratory reports generated from the analysis of physical evidence by the coroner's laboratory that is discoverable under Criminal Rule 16.

    This section begs another question – if the autopsy is exempt in its entirety, why provide specific carve outs, especially for the “preliminary autopsy”?  If the autopsy is exempt, then by definition the preliminary autopsy is exempt.  Under the interpretation invented by the Coroner and the AG, the statute is utterly meaningless.  

    And even with those excepted records, the statute provides as follows:    

    (D) A journalist may submit to the coroner a written request to view preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent made by the coroner or by anyone acting under the coroner's discretion or supervision. The request shall include the journalist's name and title and the name and address of the journalist's employer and state that the granting of the request would be in the best interest of the public. If a journalist submits a written request to the coroner to view the records described in this division, the coroner shall grant the journalist's request. The journalist shall not copy the preliminary autopsy and investigative notes and findings, suicide notes, or photographs of the decedent.

    But, and this probably comes as no surprise at this point, the coroner won’t let any journalists see the information which the Ohio Revised Code absolutely requires them to provide for inspection.

    We hear our elected officials talk a lot about respect for the rule of law.  It would probably sound more sincere if they showed a little respect for it themselves.   
    Go comment!
  • Twitter Not Busting the First Admendment

    Jul 21, 2016
    I haven’t seen the new Ghostbusters film.  I thought the original was just okay, and I’m not sure how adding Kristin Wiig to the mix makes it any better.   

    But even if the movie is truly awful (and it’s scoring a 73% on Rotten Tomatoes, so it probably isn’t) there is no excuse for the kind of abuse co-star Leslie Jones has been enduring on Twitter recently.  I won’t dignify any of the tweets by repeating them here, because they are cruel and racist in an unfathomable manner.   

    In response, Twitter has permanently banned writer Milo Yiannopoulos from using the platform.   It is sort of a lifetime achievement award.  Yiannopoulos has a history of trolling objects of his scorn.  Apparently, Twitter has had enough.  And predictably, Yiannopoulos sees in Twitter’s actions political correctness run amuck and the end of “free speech.”   

    It is neither.  First off, let’s hope Yiannopoulos is not invoking the First Amendment here.  Because it doesn’t apply.  The First Amendment applies to “state action.”  And Twitter, a private company, is not the state.  It is free to set up codes of conduct and enforce them as it sees fit.  And whether it makes good decisions or bad decisions in executing the policy, it doesn’t violate anyone’s constitutional rights.   

    And if you want to rail against “political correctness” this is probably not where you want to plant your flag.  A number of the tweets compared her to an ape and used the n word. It’s not “politically correct” for Twitter to crack down on that type of behavior. It’s just correct. 
    Go comment!

    Jul 17, 2016

    One of the nice things about doing a blog is the tips I receive from readers.  A recent one came from my friend Pat, a fellow Reds fan and loyal reader.  (Waiting for jokes about his bad judgment on both items).  But Pat figured I would be interested in this item that appeared in the Cincinnati Enquirer earlier this month.

     It concerns Pete Rose’s libel suit against John Dowd.  Pete contends that Dowd libeled him last year when Dowd appeared on a radio show in Philadelphia and made the following comment: 

     “Michael Bertolini told us that not only did he run bets, but he ran young girls for him down in spring training. Ages 12-14,” “Isn't that lovely? So that's statutory rape every time you do that. So he's just not the kind of person that I find very attractive. He's a street guy.”  Bertolini is a former associate of Pete’s. 

     No doubt, Pat figured this story is in my absolute sweet spot – baseball and libel law.  Two things I love.  And he’s right.  But I should add a caveat.  Despite the fact that I am a devoted Reds fan and belong in the absolute target demographic for Pete Rose – a west side Cincinnati native, raised by a baseball fanatic , having turned 12 in 1970 – I am not a Pete fan.  Not to belabor the point, but he disgraced the Reds franchise, lied for over a decade, and has lived a life utterly devoid of class.  I am done with him.  So, I am not inclined to be rooting for him in this litigation.  But let’s look at this objectively.  And it does raise some interesting questions.

     1.            Pete filed the case in a federal court in Philadelphia. I wonder why Pete didn’t try to find a way to sue Dowd in Cincinnati?  I’m not sure how he would have done that, but it’s hard to imagine a more favorable jury pool.  I think my views on Pete are distinctly in the minority. The average Cincinnati juror in this case would likely have one question – “how much do you want Pete?”   

     2.            I suppose the statute of limitations has run, but John Dowd could theoretically have a counter claim for libel against Pete.  In all the years Pete lied about not betting on baseball a subtext was that Dowd’s report was inaccurate and biased.  That wasn’t true and Pete knew it.  That sounds like libel to me.  But Dowd chose not to pursue the claim when Pete was spewing the lies, and he is now likely barred by the statute of limitations. 

     3.            As a factual matter, Pete has to prove Dowd’s allegations are false.  He may not have too much trouble with that.  Bertolini has denied ever making the statements.  If all Dowd has is what Bertolini told him, he may have his hands full defending himself.

     4.            As a legal matter, Dowd has a few options.  One is a theory called the “libel proof” plaintiff.  Where a person’s reputation is sufficiently tarnished, the law holds that there’s really no way to make it worse.  So any given statement does not make the situation worse.  If someone incorrectly said that a serial killer was also a shoplifter, the serial killer doesn’t have a case.  I’m not sure that defense will fly here.  Pete’s lawyer, Ray Genco has issued a statement that suggests he’s anticipating this defense: 

      “[N]o matter what his transgressions in the past may have been, no matter what you may think of him in terms of the baseball Hall of Fame debate, it's not open season to the point you can accuse them of being a pedophile," 

     He’s probably got a point.

     5.            Pete is no doubt a “public figure” which means he must prove that Dowd made the comment with “actual malice.”  That means Dowd had to know the statement was false or was “reckless” when he made it.  This is a tough standard – by design.  And it’s tough to prove a person’s mindset.  But if Bertolini is convincing in his testimony that he never said that to Dowd, and if Dowd has no other source, Pete has a pretty good shot on this. 

     6.            In order to prove the statement is false, Pete has to prove the statement wasn’t “substantially true.”  This means even if the statement isn’t literally true, if the gist is accurate, it’s not false.  For example, if someone said Pete bet on baseball 20 times, when in fact it was only 10, the statement would be substantially true.  Where this may play out here is if Dowd can establish that Pete was having sex with young women – even if they weren’t actually as young as 12 or 14.  I don’t know if that is the case, but it should make for interesting discovery. 

     7.            Pete may not have to establish actual damage. That is, the claim is defamatory per se.  A court may presume that Pete’s reputation was harmed by the very nature of the statement.  But apparently, Pete contends that he lost a $250,000 endorsement deal from Skechers  footwear after the story broke.  So, even if he had to prove actual damage, he’s potentially got the goods. 

     We will see.  It would be ironic if Pete wound up with the last laugh here.  But this is the legal equivalent of the first inning. There is no doubt much more to come.  Stay tuned.

    Go comment!

    Jul 15, 2016

    Here’s a piece that came in while I was on vacation ( I am reluctantly back in the office).  It’s about a private e-mail server that contains federal government records.  But it’s not about Hilary Clinton.  It actually concerns a science advisor to President Obama named John Holdren. He maintained a private e-mail account at the Woods Hole Research Center in Massachusetts. 

     A non-profit organization called the Competitive Enterprise  Institute made a Freedom of Information request for e-mails related to Holdren’s work at the U.S. Office of Science and Technology Policy.  A District Court ruled that the OSTP was not required to search an e-mail account that was not part of the OSTP’s official system.  That ruling effectively put the e-mails at Woods Hole off limits.

     The United Court of Appeals for the D.C. Circuit, however, reversed the District Court’s ruling.  Judge David Sentelle put it simply and elegantly:

     "If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose [government transparency] is hardly served. It would make as much sense to say that the department head could deprive requestors of hard-copy documents by leaving them in a file at his daughter’s house and then claiming that they are under her control."

    The point is, the nature of the document determines whether it’s a public record. Where I store it isn’t the determining factor.  If I put a pair of my boxers in the sock drawer, that doesn’t make them socks.  They remain underwear.  The analogy holds true here.

     This rather obvious ruling should be a universal rule for purposes of the federal FOIA statute and for every state open records law.  If courts consistently adopt and apply this intuitive rule, maybe government officials – I’m looking at you Hilary Clinton and Sarah Palin – would be a little less inclined to play games and skirt their duties to the public. 

     Hey, a guy can dream, right?

    Go comment!

    Jun 27, 2016

    A consortium of media outlets – including the strange bedfellow coupling of The Washington Post and Fox News – are engaged in litigation in a California federal court seeking the release of a number of video depositions filed in the now infamous case against Trump University.    

     The case serves as an interesting tutorial on what it takes to shut down public access to court related materials.

     The specific fight at issue here arose when the plaintiffs in the suit sought leave to file 32 video clips from a December 10, 2015 and  January 21, 2016 deposition of the defendant Trump. The defendant in question –presumptive Republican presidential nominee Donald Trump --   doesn’t want the clips released.  The plaintiffs wish to file the clips in conjunction with their opposition to a motion for summary judgment filed in the case by Trump.  This is significant, because while “discovery materials” are typically not shared with the public, once they are filed in a proceeding, they become (or should become) publicly available.  And once they are filed, the presumption that they are publicly available can be overcome only upon evidence that demonstrates  an “overriding interest” requiring that they be kept private.  In other words, to borrow a quote from Vice President Biden it’s a “big f*#*ing deal” to deny the public access to court records.

     Trump’s argument was based on a blustery recitation of all the terrible things that would happen if he didn’t get his way.  His litigation style evidently comes from the same playbook as his campaign strategy.  Trump is apparently concerned that release of the video clips will deny his Sixth Amendment right to a fair trial.  He of course presented no evidence supporting this concern, which in itself should doom his position. 

     But that’s not the only problem with his argument on this point.  Courts have routinely rejected the notion that pretrial publicity – even substantial negative publicity – automatically means a defendant can’t get a fair trial.  Juries that have decided cases arising from the Manson murders and Watergate provide compelling examples that they can get highly publicized trials right.  Frankly, Trump’s argument displays an appalling lack of trust in the process and the citizens that serve.  It’s no surprise to me that he can’t  muster any evidence to prove his thesis. 


    Trump’s position as the presumptive nominee makes this case a matter of public interest. And given that this is the case presided over by the Indiana born “Mexican” judge, the interest is even greater thanks to Trump’s own comments. 


    Ultimately Trump is likely to learn that even he can’t dictate what the public learns about him.  He called the judge’s integrity into question – the public has a right to decide for themselves if there is anything to those charges.  And to do that, the public is entitled to see the evidence.  All of it.  Whether Mr. Trump likes it or not.  

    Go comment!
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