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.

  • Chopping Away At The CDA

    Sep 30, 2014

    The Communications Decency Act has been a God send for providers of an interactive computer service.  The federal law says that those providers aren’t considered publisher of content supplied by third parties.  And those providers don’t lose that protection even if they choose to edit or remove the content.

    Most courts have interpreted the statute broadly – applying the law’s protection even when the third party content is really offensive.    But a couple of California based courts may be cutting the protection back. The California Supreme Court recently let stand a California appellate court decision where the court denied a motion to dismiss filed by a software developer who’d gotten included in a product liability case involving a  medication called lamotrigine. According to the suit, the software developer provided a program to GlaxoSmithKline (the drug’s manufacturer) which allowed GSK to distribute abbreviated drug monographs.  According to the suit, the abbreviated monograph didn’t fully disclose the side effects of the medication, and the plaintiff suffered permanent blindness after taking the medication. 

    PDX, the software developer argued that the CDA shielded it from liability. It didn’t prepare the truncated monographs, nor did it decide to post the shorter version. It just provided the technology that allowed GSK to publish the shorter version. According to PDX, it didn’t have anything to do with creating the content. 

    But the California appellate court (and apparently the California Supreme Court) considered this situation different from the more typical scenario – where someone writes content and posts it on the host’s site. In the court’s view, providing GSK with the means to shorten the content made PDX a “content  developer” to an extent where the CDA didn’t apply. 

    And to further erode the CDA protection, the United States Court of Appeals for the Ninth Circuit (located in California) recently reversed a trail court’s decision to dismiss a negligence claim based on the CDA. In Doe v. Internet Brands a woman claimed that Internet Brand failed to provide adequate warnings to users of its Web site called “”  According to the Doe plaintiff, the failure to warn led to her rape. 

    The facts are brutal. According to the court,  “Model Mayhem is a networking website, found at, for people in the modeling industry. Plaintiff Jane Doe, an aspiring model who posted information about herself on the website, alleges that two rapists used the website to lure her to a fake audition, where they drugged her, raped her, and recorded her for a pornographic video.” The plaintiff claimed Internet Brands knew about the rapists, but did not warn her or any other users. 

    The Ninth Circuit reversed the trial court’s dismissal order because it found that Doe was not asking the court to hold Internet Brands liable for any specific post the rapists put on the Web site. Rather, Doe’s claim was based on the notion that Internet Brands failed to warn about the scheme generally, even though evidence suggested it knew what was happening. 

    There is an old cliché about hard facts making bad law. These two cases may be the very illustration of that point. 

    Go comment!
  • First Amendment Battle?

    Sep 25, 2014

    Two Ohio based judges have come to differing conclusions on the ability of the state to penalize lying in the political arena. 

    A little more than a week ago, U.S. District Court Judge Tim Black

    issued a decision that the First Amendment protects political lies in the case of Susan B. Anthony List v. Ohio Elections Commission. SBA is a pro-life group political action group. During the 2010 congressional elections, SBA paid for billboards that would say: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.”  Driehaus was an Ohio congressman who voted in favor of the Affordable Health Care Act. His vote for the AHCA was, in the view of the SBA group a vote FOR taxpayer-funded abortion.

    According to Driehaus, that is not true. Here’s what the Act says at Section 1301(b)(2)(A)-(C):

    If a health care plan chooses to cover abortion services beyond those currently permitted under the Hyde Amendment, the issuer of the plan is prohibited from using federal subsidies to pay for those abortion services and must follow ACA’s segregation requirements.

    So it’s pretty hard to square the plain language of the law with the SBA’s statement.  And despite a finding by the Ohio Elections Commission that the statement is false, SBA has made it clear that they intend to make the same accusation against other congressmen going forward.    

    Under an Ohio law, any person who knowingly lied to advance a political candidate or cause could be convicted of a misdemeanor.  Given the OEC’s finding, SBA found itself in that predicament.  But Judge Black ruled the Ohio law is unconstitutional.

    In Judge Black’s view,  the government ought not “decide what the political truth is.”  In his view, “the answer to false statements in politics is not to force silence, but to encourage truthful speech in response, and let the voters, not the government decide.” 

    But just this week, Ohio Supreme Court Justice Judith Lanzinger

    issued an opinion in the case of In re Judicial Campaign Complaint Against O’Toole, and held that “[t]he portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from knowingly or recklessly conveying information about the candidate or the candidate’s opponent that, if true, would be deceiving or misleading to a reasonable person is unconstitutional as a violation of the First Amendment to the United States Constitution.”  But she also noted that “[t]he portion of Jud.Cond.R. 4.3(A) that prohibits a judicial candidate from conveying information concerning the judicial candidate or an opponent knowing the information to be false is not an overbroad restriction on speech and is not unconstitutionally vague.”  

    So, in the view of the Ohio Supreme Court, a judicial candidate can “mislead or deceive” a reasonable person, but outright lying remains prohibited. At least as it concerns the speech of judicial candidates, the government may still decide the truth.

    Interesting that two respected judges can come to opposing views. And while I understand Judge Black’s sentiment, I have to side with Justice Lanzinger on this one.  First Amendment or not, the idea of the government deciding “what the truth is” is not a completely foreign concept.  A public official is entitled to sue for defamation if he can establish the speaker knew the speech was false, or was reckless about it.  In that instance, the government (i.e. a court) has to decide what the truth is. There are perjury laws in every jurisdiction. Any conviction requires the government to determine the truth. The SEC has the power to regulate speech in the financial world.  In doing so, it determines what the truth is. The Federal Trade Commission handles claims for deceptive advertising. So it determines the truth in that sphere. 

    I am not taking off my First Amendment hat here, but I’m not sure I’m willing to accept the notion that the government is completely powerless to stop people from intentionally lying in the course of a political campaign.  If it’s against the law to lie to get me to buy a particular brand of toothpaste, I’m not sure why it’s okay to lie to get my vote. 

    And I agree with the notion that truth is the ultimate defense here.  But given the U.S. Supreme Court’s recent campaign finance decisions in Citizens United and  McCutcheon it seems like the truth may get washed out by dollars.  A little oversight may not be the worst thing.

    Go comment!
  • Droning On

    Sep 22, 2014

    I served on the planning committee for a media law conference last week sponsored by the Media Law Resource Center, the Newspaper Association of America and the National Association of Broadcasters. I am happy to report it was a huge success. The only down side is that I was so busy I wasn't able to post anything last week. My bad.

    But one of the topics that came up a lot last week was the use of drones in journalism.  At a session on Friday morning, we even got to see one in action:

    The potential use in journalism is endless. Imagine how much cheaper it would be for a TV station to use a drone mounted camera for traffic reports. Or think about a fire scene that's otherwise inaccessible. And I'm not the only one thinking about this.  There's already an organization called the Professional Society of Drone Journalists.  It's coming.  

    But I'm not sure how soon. Currently the FAA bans the use of drones for commercial purposes. Which apparently includes delivering a game ball at the University of Michigan. So, if someone uses a drone to get footage and sells it to a media  outlet, is that commercial? No one knows for sure at this point. 

    There are also safety and security concerns. Supreme Court Justice Sonia Sotomayor

     is on record expressing her alarm over privacy issues she sees inherent in the use of drones. She has a point, but we've generally handled privacy concerns brought about by technological advances by regulating the operator, not the equipment. Listening devices, for example, are smaller and easier to use than anyone imagined 20 years ago. But the way we address eavesdropping is by punishing the person, not banning the device. If an operator misuses a drone, have at him. But let's not prohibit all the great uses for the technology. 

    Especially this one:


    Go comment!
  • Content Marketing World

    Sep 12, 2014

    I had the true pleasure this week of speaking at the Content Marketing World Conference in Cleveland.  I was on a panel of lawyers talking about the legal issues surrounding the use of content marketing.  My fellow panel members were Cleveland lawyer Mark Avesc:

    and Portland Maine attorney Fred Frawley:

    Our moderator was recovering attorney Jeff Rohrs:

    Kevin Spacey was the Keynote speaker. Which means I can honestly say that “Kevin Spacey and I spoke at the Content Marketing World Conference.” Sounds good, right?

    But anyway, I was reminded of a checklist that my colleague Amanda Penick put together some time back. Worth a read if you’re doing any content marketing!

    Q:    You know what they call a company that adopts a content marketing plan?

    A:     A publisher.    

    And that is a more profound riddle than you might think. Because once you’re a publisher, you have a few things to consider. Here’s a quick checklist:

    1. TRADEMARK – Are you using someone else’s brand or logo? Do you mention another company or its product by name? 

    While trademark law prevents you from using someone else’s trademarks to sell your competing products, it doesn’t stop you from using the mark to talk about the other company or its products.  But beware: you want to be sure that you’re not using their trademarks in a way that might suggest they endorse you, your product, or your CBM piece.

    How are you using your own trademarks? Does your company have a policy about the size, font, or color of its trademarks on promotional materials?

    Some companies have very specific standards for how their trademarks should be used.  Be sure that the way you use the trademark in your CBM piece meets those standards so you don’t risk harming the brand.

    1. COPYRIGHT –Are you borrowing any content, including quotes, text, video, or art?  Cutting and pasting good stuff from the Internet? 

    Short quotes – and sometimes other words and images – may be fair use, not copyright infringement, so long as you’re using it to comment, criticize, or somehow add to the debate on an item that someone else has posted. 

    Beyond that, you may expose yourself to copyright infringement claims. Attribution is not always enough. As a publisher, you need to get explicit permission to use someone else’s images or words and other content. Your First Amendment protections can get a little thinner where your speech has any commercial element.

    1. RIGHT OF PUBLICITY – Are you using a celebrity’s or famous person’s name, photograph, or likeness? 

    The right of publicity is a claim that you have used someone's name or likeness to your commercial advantage without their permission in a way that harmed them, even if it’s only financially from missed endorsement fees.  Get permission.  Also beware that you can be liable if your use implies a false endorsement.

    1. PRIVACY – Are you sharing information about specific customers or their experiences using your products or services?  When you engage your audience, are you collecting any data from them?  Do they know?

                            If you plan to use customer testimonials, get their permission upfront and in writing. 

    Make sure you have a privacy policy in place for your website that covers what information you collect and how you use it.  But also be judicious in what information you collect.  If you don’t need it, don’t collect it.

    1. DEFAMATION – Do you talk about another company or product?  Do you write about the other company or its products in a negative way?

    Defamation is the communication of a false statement that is harmful to someone's reputation. Trade libel is defamation against the goods or services of a company or business. For example, saying that products sold by your competitor do not meet government quality control standards (if it isn't true). Make sure your statements are vetted and true.

    1. FALSE ADVERTISING – Did you pay someone to create the content? Endorse your company or its product? Give them freebies to entice them to write a review? Do you make any claims about how a product works?

    The FTC requires you to disclose connections between a company and someone who endorses or write a review of the product if the connection might materially affect the credibility of the endorsement.  This could include if the endorser was paid or given free products.

    Also, even though your CBM piece might look and feel like an editorial piece, beware of the claims you make about how your company’s product works.  Make sure that any claims can be supported with facts – and that they’re not misleading.

    Go comment!
  • Walmart Cover Up

    Sep 10, 2014

    A young African American man named John Crawford was shot and killed recently in a Beaver Creek Ohio Walmart. The shooter was a Beaver Creek police officer. The events leading up to the shooting and the shooting itself was captured on Walmart surveillance video. That video runs continuously throughout the day and night.  

    Walmart turned the video over to authorities, and it’s now in the hands of the Ohio Bureau of Criminal Investigation, an arm of the Ohio Attorney General, Mike DeWine.  In Ohio, a record maintained by a public office is a public record. The Walmart surveillance video fits that description. And it’s supposed to be produced on request of any member of the public.  

    But despite multiple requests by Mr. Crawford’s family and others, the BCI won’t release it.

    Why? The BCI claims that since the video is now part of a criminal investigation, they don’t have to produce it. They say it’s exempt from production, along with every other scrap of paper in the BCI file because it’s exempt under the Confidential Law Enforcement Investigatory Record (“CLEIR”) exception. But with all due respect, they are wrong. 

    The CLEIR exception permits law enforcement to withhold a limited number of records under limited circumstances. Which means that just saying “it’s part of an investigation” doesn’t cut it. The record has to be part of an investigation, but it also has to disclose the identity of a confidential source, reveal a confidential investigatory techniques, uncover  an uncharged suspect or pose a risk of harm to someone by virtue of the release. And even if one of those factors apply, the record still needs to be released with the confidential information redacted. Here’s a brief we field recently in a similar case with BCI that discusses the law in more detail.

    And one more thing.  Routine incident reports and 911 calls aren’t part of the investigation and aren’t subject to the CLEIR exception. The reason? Those reports kick off the investigation, but they’re not part of the investigation. SO a routine surveillance camera that runs 24/7 and happens to catch a shooting in my mind is an incident report. So the CLEIR exception doesn’t apply. And the BCI’s heavy handed approach in these matters is completely off base. 

    Go comment!
  • The Good Sheppard

    Sep 02, 2014

    I was really honored to be part of a panel discussion last week at the annual meeting of the Ohio Judicial Conference. My panel, headed up by Cuyahoga County Common Pleas Judge Michael Russo, discussed the issue of media access to court proceedings and the effect of pretrial publicity on high profile trials. Judge Russo presided over the Ariel Castro trial, so he has a little experience. 

    In the course of the discussion, we talked about the U.S. Supreme Court case of Sheppard v. Maxwell, still the leading case on pretrial publicity and its potential effect on a defendant’s fair trial rights. Sheppard was a doctor in Bay Village, Ohio, accused in 1954 of killing his wife. He claimed an intruder broke into the house and did the deed. Sound familiar? It was the inspiration for the TV program “The Fugitive.” The series led to the 1993 movie starring Harrison Ford and Tommie Lee Jones. And that led to one of my favorite bits of dialogue ever:

    Sheppard’s trial caused a media frenzy. This video  and this one  give a feel. One aspect we discussed was the sheer physical intrusion in the courtroom occasioned by the size of the typical 1954 era camera. Suffice to say, they were bigger back in the day. Just given the advance of technology, not to mention the reduction in the number of media outlets, it’s hard to imagine a repeat of a courtroom so jammed with reporters that the media is permitted to sit literally next to the counsel tables.  

    I suppose sensationalist coverage will be with us, at least so long as Nancy Grace is on the air.  But before we conclude today’s media is irresponsible, it may be worth looking at the case that inspired the one armed man!  

    Go comment!
  • 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!
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