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.

  • Will The Real Slim Shady Please Rise

    Aug 28, 2014

    Today I start my 14th year of teaching a media law class at the University of Cincinnati Law School. Where does the time go? One of the cases we will be discussing is Elonis v. Facebook. It’s a case that is going to be argued in the U.S. Supreme Court this fall.

    posted about it in June. The question is whether a Facebook user can be prosecuted for posting threatening language on his page. In his recently filed brief, Elonis compares his post to Eminem’s lyrics in “I’m Back” from the Marshall Mathers LP. Here’s an interesting discussion about the brief. 

    Elonis may have a little problem with the context of his post. Whatever Eminem had to say in his songs, it doesn’t appear he was engaged in a contentious custody battle or that he’s had the FBI come knocking on his door. 

    It will be interesting to see how the Supreme Court comes out. But I can’t get the image of Justice Scalia listening to “The Real Slim Shady” out of my head.  

    Go comment!
  • Purdue Follow Up

    Aug 22, 2014

    I posted last week about Purdue University’s refusal to release video of its cops roughing up a photographer from the student newspaper. After an attempt by Purdue president Mitch Daniels to shoot the messenger failed, Purdue finally agreed to do the right thing and release the video. The Tippecanoe County prosecutor agreed to the release.   

    And here’s the video:

    Now maybe someone can explain why the kid got knocked to the ground!

    Go comment!
  • Let My Cartoon Characters Go!

    Aug 20, 2014

    I know I shouldn’t chuckle as I read this article about the new organization of cartoon characters in Times Square. There is income at stake here, and maybe even a First Amendment issue lurking there. But this thing is chock full of unintentional comedy.

    But first, some background.  If you’ve been to New York City in the last year or so, you may have seen people wearing super hero and other cartoon costumes in Times Square.

    Tourists with money burning a hole in their pocket pose for pictures with these action heroes and occasionally give them some money. And of course, that’s where the trouble begins. It’s not illegal to dress like a super hero and accept cash from tourists.  But it is illegal to “aggressively” panhandle. Apparently somewhere between those two extremes, however, the lines get a little blurry. 

    Recently, two tourists offered Spiderman one dollar. He told them the tip was too small. A police officer intervened, telling the tourists they could tip what they wished. Spidey told the officer to mind his own business. The officer asked for the superhero’s identification (was he expecting a Peter Parker driver’s license?), but he had none on him. When the officer then moved to arrest the character, Spiderman threw a punch (surprised no web was involved here). The character was ultimately charged with assault and resisting arrest.

    That led the cops to start handing out fliers in Times Square letting tourists know they do not have to tip in exchange for a photo. And that has caused an outcry among the characters, who feel they are being singled out. Of course, one could make the argument that the performers have kind of asked for it. Here’s an excerpt from the New York Times article that is funny and pathetic at the same time:

    Other characters have had run-ins with the law in recent years: An Elmo was taken into police custody for shouting obscenities in 2012; another Spider-Man fought with a woman over a photo in 2013; a Cookie Monster was accused of shoving a toddler last year; and a Super Mario was said to have groped a pedestrian in 2012.

    I get that Cookie Monster may have been a little grumpy. And Super Mario being a little forward doesn’t shock me. But ELMO shouting obscenities? That is more than I can take. Maybe he’s been spending too much time with Oscar the Grouch. 

    I hope this thing works out. I’m not sure I’m ready for Big Bird carrying a “No Justice No Peace” sign. But if you go to New York, you might want to consider the thousands of photo opportunities that don’t involve faux cartoon characters. Just sayin’.

    Go comment!
  • Go Purdue Exponent!

    Aug 15, 2014

    You may think I have my mascots mixed up here. Perhaps you’re thinking I’ve forgotten that the Purdue mascot is the boilermaker. But if you think so, you would be wrong. The headline isn’t about a mascot, or even football. I am speaking of the Purdue student newspaper and its fight to obtain security camera footage. And Purdue University is putting up a defense in the case that is worse than the one its 2013 football team fielded (ranked 102 in the nation).

    According to the complaint, in January a student named Cody Cousins shot and killed a fellow student in the basement of the Electrical Engineering building. Police arrested Cousins, who did not resist. Later, a photographer for the Exponent entered the Electrical Engineering via a second floor skywalk. He quickly encountered police, at which point he raised his hands, (he had cameras in each hand) and identified himself as a an Exponent photographer. At that point, the police displaying an aggressive streak apparently lacking in the Purdue defense, pushed the photographer to the ground, pulled him back to his feet and shoved him into a wall. In doing so, they damaged his camera equipment. They then detained him for several hours.

    All of these gestapo tactics were captured by a security camera that ran continuously. The Exponent made a public records request for the footage, which the University denied. In doing so, the administration cited the “law enforcement investigatory records” exception to the Indiana Public Records Act. This left the student paper with no option but to file suit. The ACLU is handling the case.

    The investigatory records exception is a feature in most public records statutes. And it is routinely over applied. It is designed to protect uncharged suspects, sources and crime victims. It also protects confidential investigatory techniques. None of those elements are present in the Purdue situation. And at a minimum, the exception should only apply to records created in the course of a criminal investigation. Again, the footage in this situation wasn’t created in the course of any investigation. It’s a camera that happens to be located in one area of an academic building which runs continuously. It probably picks up more footage of students flirting (or maybe not, these are electrical engineers after all) than anything else. But to argue that the camera has anything to do with the shooting two floors below is preposterous.

    I hope the Exponent prevails here, and I hope other Indiana news organizations offer their support. There are valid policy reasons for the investigatory exception. Protecting cops who bully journalists isn’t one of them.
    Go comment!
  • One Word - Drones

    Aug 14, 2014
    One of the truly great scenes in movie history: 

    But “The Graduate” is 47 years old, and just a few fun facts – Dustin Hoffman was 30 years old when he made the movie – a little old for a guy just graduating from college.  And Ann Bancroft who played Mrs. Robinson – the older woman who seduced Hoffman – was only 6 years older than Hoffman. Doris Day was the original choice to play Mrs. Robinson, and Ronald Reagan was in the running to play Hoffman’s father.  So, anyway, getting back to my point, if The Graduate were re-made today, maybe the guy would substitute “drones” for “plastics.” 

    According to this opinion piece from Wired, it’s expected to be an $11.6 billion industry by 2023. So, yea, any recent college grads out there may want to get on board so to speak.

    But the Wired piece makes a compelling argument in favor of upgrading and streamlining regulations that affect the development and production of the drones. The key concerns seem to be with maintaining some sort of line between drones made for military use and drones made for commercial use. Not surprisingly, there are tight export controls on military drones, but because the military/commercial distinction is a little blurry, the industry is erring perhaps too much on the side of caution when it comes to exports.

    And the Federal Aviation Administration has been slow to address the need for clarity when it comes to air space issues.  This would explain why we don’t see the skies thick with these things flying about,

    but it also explains why Amazon can’t ship my latest book order in like an hour.

    I won’t drone on any longer here, but the applications, in areas like newsgathering are exciting to think about.  More to come I am quite sure.

    Go comment!
  • How Much For A Case Of Whine?

    Aug 05, 2014

    Lauren Martin Vogelpohl helps me put this blog together and she is invaluable. I will be interested in her take on
    this post. Lauren recently got married. I don’t know any details of what she paid for the event, but I suspect she did not have to deal with a charge being imposed by a New York Hotel.

    The Union Street Guest House, located near the Catskills is charging couples $500 if any of their guests post a negative online review of the reception. Here’s what it says: 

    “Please know that despite the fact that wedding couples love Hudson and our inn, your friends and families may not,” reads an online policy. “If you have booked the inn for a wedding or other type of event . . . and given us a deposit of any kind . . . there will be a $500 fine that will be deducted from your deposit for every negative review . . . placed on any internet site by anyone in your party. The fine will be doubled if you point out what buttheads we are.” 

    Okay, I made up the last sentence. But something about this offends my sensibilities as a First Amendment lawyer and as a recent father of the bride.

    The thing is, I don’t think the First Amendment would matter here. If the couple agree to the provision, it’s just a contract case. And it is very common to insert non-disparagement provisions in agreements. I do wonder, however, if a court would strike this provision down on public policy grounds.

    But if any of my readers are thinking about booking a wedding at this place, I have two pieces of advice. Number 1 – don’t do it. Number 2 – if you ignore #1 read the fine print in your agreement.   
    Go comment!
  • An APPtitude Test

    Aug 04, 2014

    Here’s an interesting piece from the Poynter site that caught my attention for several reasons.0 First, it quotes my friend Ashley Messenger, who has a job I would love – in house counsel for NPR. But more importantly it provides some great tips for reporters thinking about using any app that records conversations. 

    As the post notes, these apps are popular, because they make it really easy to record conversations. If you have your phone (and when don’t you) you have a recording device. One less accessory to pack up. Nice. 

    But some risks to consider:

    1.  You might be putting the confidentiality of the conversations you record at risk.  

    2.  Because the conversations are stored in the cloud, it’s not clear what state’s privilege law applies if the recording gets subpoenaed.

    3.  It’s also not clear to what extent the third party entity that stores the conversation will actually resist the subpoena. 

    Ashley recommends doing the unthinkable – reading the terms and conditions of the app. As crazy as that sounds, it’s good advice. 

    Go comment!
  • Round Up!

    Aug 01, 2014

    I’ve been tied up this week in a trial training program put on by the Cincinnati Bar Association. I am really honored to be a part of the faculty, which includes some of the best trial lawyers in the area. But it’s been a little time consuming. As a result, I’ve not posted anything this week. I apologize. So, to try to make amends, I offer several items:

    1.  Mug Shot Legislation – I have in the past compared operators of commercial mug shot businesses to stink bugs. And I feel I owe an apology. To the stink bugs.  By “commercial mug shot operators", I mean folks who post mug shots online and then charge the subjects a fee to take it down. Now Missouri, has introduced legislation to deal with these sleaze bags. And while the Missouri legislature has my sympathy, I think there are significant First Amendment issues with the law. Not sure this is going to fly.

    2.  What Keeps Twitter Lawyers Busy – Apparently, Twitter has seen a 46% increase in government requests for information in the first half of 2014 versus the last half of 2013. I suspect this is a trend that will continue.

    3.  ACPA Has Teeth –  A company called Optionsxpress recovered a $100,000 judgment under the federal Anticybersquatting Consumer Protection Act recently from a competitor that fraudulently registered confusingly similar domain names. 

    4. Virtual Parking – This is not related to any legal issue at all, but it’s cool. Follow this link and see if you can parallel park a car with your mind.  It works. Too bad this option wasn’t available when I took my first driving test nearly 40 years ago. I flunked when I managed to run my dad’s old Malibu up on the curb during the parking test!  


    Go comment!
  • 21st Century Round Table

    Jul 25, 2014
    There may no longer be Knights of the Round Table:

    But Round Tables still exist. Along with Sandra Hughes and Nick Vehr, I participated yesterday in a round table discussion on data privacy. This was part of our ongoing series on “Risk. Repercussions. Reputations. Data Security for Today’s Business Enterprise.” 

    Many thanks to Jocile Erlich and the Cincinnati Better Business Bureau for coordinating the event. There were many take aways from the discussion. Among them? 

    • Data privacy is a critical part of your business plan. Don’t assume it can be delegated to an IT intern. 
    • Careful about cutting and pasting a privacy policy. Better make sure you actually do the things the policy promises. Don’t believe me? Ask Facebook.
    • Think about Cyber Liability Insurance. At a minimum, check out the application.  The questions it poses can serve as a checklist for solid practices and procedures.

    Remember, the Federal Trade Commission is really interested in this topic.  REALLY interested.  

    (“Risk. Repercussions. Reputations. Data Security & Privacy for Today’s Business Enterprise,” presented by Sandra HughesJack Greiner and Nick Vehr, can be presented to your industry or trade association. Please contact either person to find out how.)

    Go comment!
  • The Importance of Being Videoed

    Jul 22, 2014
    It’s tempting to rush to judgment when we see video of a man dying in police custody. And so let’s try really hard not to do that in the case of Eric Garner, the New York man who died in a confrontation with NYPD officers over his allegedly selling illegal cigarettes. But let’s be glad we can see the video. As citizens, it’s important to be able to see our government in action, so we can make informed decisions.

    So I was disappointed by a recent Ohio appellate court decision finding that dash cam video recorded by the Ohio State Highway Patrol is an “investigatory record” and exempt from the Ohio Public Records Act. According to the 12th Appellate District’s decision release of the video could disclose “confidential investigatory techniques.” Of course, the dash cam comes on no matter what the trooper is doing – whether helping a motorist with a flat tire or stopping a speeder. The point is, the dash cam video is not reserved as a tool for criminal investigations. So it’s not part of an investigation.

    And even if it were, what “confidential investigatory technique” does it disclose? Is “could I see your license and registration” really a big secret? I think not. And I really think it’s tough to see how the dash cam video constitutes some sort of secret when the Ohio State Highway Patrol maintains its own YouTube channel where it posts videos like this: 

    Are you scratching your head yet?  I am.
    Go comment!
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