The Lies and Fallacies of the Second Circuit

The "Legal Method" of Judge Jon O. Newman and the Second Circuit

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 23 Apr 2010 20:03:00 +0000

In cases prior to Groden v. Random House, Inc., et al., the United States Court of Appeals for the Second Circuit manifestly understood the meanings and distinctions that New York assigns to the terms "incidental use," "republication," "newsworthiness," "advertising purposes," and "purposes of trade" in interpreting and applying the New York Civil Rights Law §§ 50 and 51. See. e.g., Lerman v. Flynt Distr. Co., Inc., 745 F.2d 123 (2nd Cir. 1984); Bankers Trust Co. v. Publicker Indus., 641 F.2d 1361 (2nd Cir. 1981); see also, Negri v. Schering Corp., 333 F. Supp. 101 (S.D.N.Y. 1971). The meaning of "incidental use," and that doctrine, changed with Groden, and the earlier cases went unmentioned.

A federal court of appeals may overrule lower (district) court precedents and, on rare occasions, it overrules even its own, but it has no power to overrule the precedents of either a coordinate federal jurisdiction or those of a state court, even a state's highest court. That said, given the sheer volume of cases that pass through the judicial process annually, courts enjoy enormous discretion to pick and choose among precedents that support almost any legal proposition. Conversely, they may ignore precedents that they find inconvenient.

One of the remarkable aspects of the Second Circuit's Opinion in Groden v. Random House, Inc., et al., is its studied avoidance of inconvenient precedents from within its own jurisdiction, as well as from the highest court of one of its forum states, the New York Court of Appeals, in preference for decisions from other forums and the lower state courts.

Besides selectivity, the skill of contriving flexible interpretations of case precedents is a highly valued presentational technique in the law profession. Nevertheless, there is a difference, however fine, between selectivity and flexible interpretation, on the one hand, and stark intellectual dishonesty, on the other. Judge Jon O. Newman's Opinion in Groden v. Random House, Inc., et al. illustrated the point through his argument from case precedents. The main pillar of his argument was the Ayn Rand case.

Ayn Rand was well-known for championing egoism and selfishness as ideal human traits nurtured by capitalism unbound. Forty years before her protégé, Alan Greenspan, was humbled by the latest financial crisis in the United States, Rand received her comeuppance at the hands of the New York State Supreme Court, Appellate Division, First Department, in the case of Rand v. Hearst Corp., 298 N.Y.S.2d 405, 410 (1st Dept. 1969), aff'd, 309 N.Y.S.2d 348 (1970).

Hearst published and distributed a paperback reprint of a novel entitled "Chaos Below Heaven" by Eugene Vale. On the back cover of the paperback, Hearst printed an excerpt from a review of the original hardcover edition of Vale's book by the San Francisco Examiner. The quoted review mentioned Ayn Rand's name as follows: "Ayn Rand Enjoys * * * The Same Kind Of Mystique Analysis As Vale * * * Their Underlying Drive Is The Same." That the quotation was a true and accurate excerpt from the review, and that it was explicitly sourced to the San Francisco Examiner, were never in dispute. Regardless, Rand objected to the use of her name in a comparison with the writing style of another author. Instead of suing the San Francisco Examiner, she sued Hearst over the Vale paperback under the New York Civil Rights Law.

Twice in its opinion, the Appellate Division pointedly quoted the proud proclamation in Rand's Complaint that she was "well-known in the contemporary intellectual and literary world [and] among the public at large generally she possesses great fame as a writer." Clearly, the Appellate Division was not similarly so impressed. It held "that the book publisher had a right to use the book review in the manner it did." The New York Court of Appeals affirmed the decision without opinion, meaning that it agreed with the end result, not necessarily that it adopted the Appellate Division's reasoning.

Leaning heavily on the Rand case in Groden v. Random House, Inc., et al., Judge Jon O. Newman of the U.S. Court of Appeals for the Second Circuit (pictured right) attempted to summarize its facts: "Rand concerned a book jacket . . ." [no, it was actually the cover of a paperback] ". . . in which a publisher had used the name of Ayn Rand in describing the writing style of the book's author." No, it was actually a review by a newspaper, the San Francisco Examiner, which the publisher quoted on the cover of the paperback. "The Appellate Division found this to be incidental use." This was a serious misrepresentation by Newman. It was not the majority opinion by the Appellate Division but the minority dissent that characterized it as "incidental use." The majority never characterized it as such. Indeed, although Newman would have his readers believe that Rand was "a leading case on incidental use," that characterization was an outright fabrication.

As the Appellate Division noted in Rand, "The facts in the Booth case and in our case are entirely different. They present different situations and call for different considerations."

A close reading of Rand indicates that, if anything, it was a "for purposes of trade" case, not a "for advertising purposes" case. Since there was no advertising in another separate medium, "incidental use" could not be established. The Appellate Division never equated the use of Rand's name with a print or broadcast advertisement. The verbiage was physically part of the paperback book product itself. A prospective purchaser browsing a bookstore and seeing that excerpted review on the cover of the Vale paperback could immediately inspect its contents and judge for himself whether the blurb was reliable. Since the comparison to Rand's style of writing was physically attached to the Vale paperback, it was never disseminated more widely than the paperback itself, and perhaps even less widely than the original review in the San Francisco Examiner.

On the other hand, Robert Groden's identity, used in conjunction with a photograph and a quote not found in -- and therefore not reproduced from -- Case Closed, was related to that product in separate commercial print advertising, which reached a far wider audience than Case Closed ever achieved. The quote, which predated Case Closed, was not pegged to its source.

The New York State Court of Appeals' later and more authoritative interpretation of the statute in Beverley v. Choices Women’s Medical Ctr., Inc., 78 N.Y.2d 745 (1991), which the Second Circuit saw fit to ignore, made the continuing vitality of the intermediate (Appellate Division) court's reasoning in the 1969 Rand case highly dubious. (I discussed Beverley in my last post.) So, Jon Newman relied upon an intermediate state appellate court's decision in Rand so that he could intentionally ignore the higher New York Court of Appeals more recent ruling on "matter of public interest" in Beverley.

Having misconstrued and disguised Rand v. Hearst in the garb of "incidental use", Newman sought to embellish further support for his Opinion: "Other decisions of the New York courts also indicate that republication is not required for incidental use." His "evidence" for this assertion was two cases in which the judges held republication to be permissible incidental use: the Joe Namath case, Namath v. Sports Illustrated, a Division of Time Incorporated, et al., 80 Misc. 2d 531, 533, 363 N.Y.S.2d 276, 278 (Supreme Court of New York, Special Term, New York County, 1975), aff'd, 48 A.D.2d 487, 371 N.Y.S.2d 10 (First Dept. 1975), aff'd, 39 N.Y.2d 897, 386 N.Y.S.2d 397 (1976), where Sports Illustrated had previously published Namath's photograph many times in its editorial content and republished one of those photographs to solicit subscriptions to its magazine; and Velez v. VV Publishing Corp., 135 A.D.2d 47, 524 N.Y.S.2d 186 (1st Dept.), ap denied, 72 N.Y.2d 808, 533 N.Y.S.2d 57 (1988), in which The Village Voice republished the photograph of a person previously featured on the cover of the publication in a subscription advertisement. If these were not examples of "republication" then what were they? Well, according to Newman, they were not, because:

(a) "Republication" means to him the exact replication of an image taken from the original medium in its original size, without any cropping or embellishment. If the image is not a precise, unadorned replica of the image as it appeared in its original medium, there is no "republication".

(b) The doctrine of "incidental use" has been applied to instances where there was no exact replication.

(c) Therefore, "republication" is not required to qualify the use of a man's photo in advertising without his consent as "incidental use."

In other words, from two cases that defined "incidental use" as "republication", and allowed it as a complete defense, Newman concluded that republication was unnecessary. Absurd as it sounds, this is a scrupulously fair and accurate syllogistic breakdown of Newman's argument. I forego any attempt at eloquent appeals to common sense and fairness. Instead, I leave it to people of average intelligence to marvel at what masks for genius in the federal judiciary today. I leave it to their hard-won experience in life to ponder the pompous, arrogant, abstract, desolate mindset of the judges who published this argument earnestly believing that their stature alone would guarantee it credence and respect. And I remind readers that this exploration of Newman's Opinion is no mere academic exercise; its purpose is to highlight the judiciary's fear of the potential for a jury trial of the official lone gunman theory of President Kennedy's assassination, and the lengths to which they were willing to go to prevent it.

For his next trick, I will show how Newman's desperate quest for a persuasive precedent to reject the Civil Rights Law branch of Robert Groden's lawsuit led him in circles.

“Newsworthiness” and “Incidental Use”: How the Second Circuit Changed the Law

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 16 Apr 2010 21:37:00 +0000

In most circumstances, a business cannot use your image to advertise a product without your permission and without paying you. If you're the President of the United States, you can ask that such a billboard be taken down. If your name is Woody Allen, you can sue and win $5 million dollars. The federal judiciary of the Second Judicial Circuit in the United States has carefully thought about this problem in the past and decided in favor of people who were exploited by businesses in this way. But then they thought about it some more, and they decided that, on the other hand, if you're a critic of the Warren Commission, it's okay for a business to steal your image, use it as a poster for their own profit to advertise a derisive anti-conspiracy book, and not have to pay a dime for the damage they've done to your ability to sell your own book. The federal courts accomplish such feats of magic, and officially sanction such thievery on behalf of the government they serve, through the use of fancy words, which, after all, are their stock-in-trade. So, our task is to understand how judges used these words when their goal was to muddle and confuse a set of ideas that had been carefully developed over a period of eight decades because their literal application would have led them inexorably toward a result they found unpalatable.

The key to understanding New York law on this point is the distinction that it draws from the statutory language between the terms "advertising purposes" and "purposes of trade." Since news publications (e.g., newspapers, magazines, etc.) are sold for profit, if a person's photo is used for illustrative purposes within a news or public interest medium it is denominated a use for "purposes of trade." However, New York grants this kind of use a common law "newsworthiness" (a/k/a "public interest") exception so long as it has a real relationship to the article. Murray v. New York Mag. Co., 27 N.Y.2d 406, 409 (1971); Pagan v. New York Herald Trib., 26 N.Y.2d 941 (1970), aff'g, 32 A.D.2d 341, 343, 301 N.Y.S.2d 120 (1st Dept. 1969).

That same photo may be republished in an advertisement for the original medium under the doctrine of "incidental use", because it is "incidental" to the original protected use. New York grants this common law exemption solely to publishers as a limited accommodation of their need to convey samples of the aesthetic content or quality of their products.

If there is no photograph accompanying the article, but one is used instead to separately advertise the sale of the publication, this is use for "advertising purposes." Prior to Groden, the "newsworthiness" and "incidental use" doctrines did not apply to commercial ad photos that did not originate in the underlying publication. Beverley v. Choices Women,s Medical Ctr., Inc., 78 N.Y.2d 745 (1991).

"Incidental use" is a doctrine that finds no textual basis in the statute, and is more in the nature of a judicial accommodation of the editorial use of a publication's actual contents in other media to aid its dissemination.

The "newsworthiness" and "incidental use" doctrinal exceptions to the New York Civil Rights Law were carefully crafted to save the statute from overbreadth only as applied to the news, public affairs, and entertainment dissemination media. They were not invented for the benefit of garment manufacturers looking for "free" advertising, but solely as limited accommodations to enable the media to advertise their publications where they would otherwise have no practical means of publicizing them.

Consider the problem: You or I might look at a magazine or billboard photo of a professional model (not Barack Obama) that has been paid to display the Weatherproof coat. We might then visit a store to try it on, or else order it, either by mail or online. But in the days before the World Wide Web, if we wanted to know who was on the cover of TIME or Newsweek or Gentlemen's Quarterly, were these publications not permitted to advertise we would have to travel to our local newsstand or candy store to find out. Judges in New York State recognized that, reading the statute by its strict literal terms, the media would be unable to advertise their wares unless they were allowed to display some of their graphical content in another, separate medium to generate sales.

Thus was born, in 1919, New York State's doctrine of "incidental use" as an exception to the proscriptions of the New York Civil Rights Law. The seminal case was Humiston v. Universal Film Manufacturing Co., 189 App. Div. 467, 178 N.Y.S. 752 (1919). Newsreel footage of a lawyer helping police to solve a murder was shown in theaters, and posters containing her photograph for the purpose of advertising the newsreel were displayed outside. She sued under the New York Civil Rights Law. The court declared both the film and the advertising posters exempt from the statute.

There is, however, a vitally important point about the Humiston case that the corporate media defense bar dislikes bringing to a court's attention, frequently resulting in judicial misconstruction of what Humiston actually decided and meant: Those lawyers routinely cite the appellate opinion in Humiston, which did not recite the full procedural history found in the decision of the lower court, i.e., the New York State Supreme Court, Special Term, New York County. There, the procedural history of the case makes clear that the defendants in Humiston disclaimed a First Amendment defense. Humiston v. Universal Film Mfg. Co., 101 Misc. 3, 6, 167 N.Y.S. 98 (Sup. Ct., Special Term, N.Y. Co. 1917), rev'd, 189 App. Div. 467, 178 N.Y.S. 752 (1st Dept. 1919). Since the defendants did not raise the First Amendment in the lower court, the appellate court did not face the issue whether it applied to the case.

What that means is that Humiston, the wellspring from which the doctrine of incidental use flowed, was not grounded in a free speech rationale, an immutable fact of historical record that significantly undermines the notion advanced by the Second Circuit Court of Appeals in Groden v. Random House, Inc., et al., that the exception was driven by a First Amendment interest in protecting the ability of the media to publicize its own communications. It wasn't. This is a serious misconception that has been foisted upon, and in turn by, the courts through the passing years in the apparent expectation that repetition will breed familiarity, which in turn will gain acceptance of a false proposition. Nonetheless, it is a legal fiction. On the contrary, beginning with Humiston, the historical development of the "incidental use" doctrine was pegged to the practical necessity of publishers, broadcasters, and filmmakers to advertise samples of their aesthetic content. As interpreted by New York state courts prior to the federal court decisions in Groden, the "incidental use" exception applied only to "republication" of material contained within the protected (under the "newsworthiness" exception to "purposes of trade") editorial content of the product being advertised. Such use was analogized to a "window display" of the contents of the underlying publication.

Therefore (and here is the crucial point), the two doctrines of "newsworthiness / matter of public interest" and "incidental use" are conceptually separate and distinct, but not co-extensive. The application of the former doctrine is the prerequisite to application of the latter. The incidental use exception derives from the material's original source; it does not stand on its own footing.

For example, Holiday Magazine had published an article featuring a photograph of actress Shirley Booth vacationing in Jamaica. Booth had consented to the article, but Curtis Publishing Company made further use of the photo to advertise its magazine in The New Yorker and Advertising Age. Booth sued. The court found that the advertisement used nothing more than a properly acquired, previously published photo, therefore, the use was "incidental" to the original publication and non-actionable. As the court explained in Booth v Curtis Pub. Co., 15 A.D.2d 343, 223 N.Y.S.2d 737 (First Dept. 1962), aff'd, 11 N.Y.2d 907, 228 N.Y.S.2d 468, 182 N.E.2d 812 (1962), the doctrine recognizes "the purpose served in a publisher presenting to its potential customers illustrative samples of the quality and content of its publication." Id., 15 A.D.2d at 351, 223 N.Y.S.2d at 745 (emphasis supplied).

In a subsequent case involving football star Joe Namath, Booth was called "the extreme limit of 'incidental use'", Namath v. Sports Illustrated, a Division of Time Incorporated, et al., 80 Misc. 2d 531, 533, 363 N.Y.S.2d 276, 278 (Supreme Court of New York, Special Term, New York County, 1975), aff'd, 48 A.D.2d 487, 371 N.Y.S.2d 10 (First Dept. 1975), aff'd, 39 N.Y.2d 897, 352 N.E.2d 584,386 N.Y.S.2d 397 (1976).

Indeed, in all these cases, and several more, the safeguard of predictability was clear: Use deemed "incidental" by these courts was carefully confined to the reproduction in advertising of an image, portrait or likeness that was actually contained within the publication being sold, and then only where that image bore such a real relationship to editorial content that the incidental use became, in effect, a representative display of the work itself.

Robert Groden's photograph was not contained within the book Case Closed, neither was the quote attributed to him by the Random House advertising campaign reproduced anywhere in that book. Until Groden, no case squarely held the unconsented use of one's photograph in a commercial advertisement privileged under New York's Civil Rights Law §§ 50, 51 where that same photograph had not previously appeared in the protected editorial content of the advertised medium. The dubious "innovation" of the Groden case lay in deeming the unauthorized advertising use of Mr. Groden's identity "incidental" to a matter of alleged "public interest," i.e., a book about the Kennedy assassination. The holding implicit in Groden appears to be that, under the New York Civil Rights Law and the common law doctrine of "incidental use", a publisher of material that is newsworthy, or concerns a matter of public interest, may use the likeness of person who is one of its subjects in an advertisement to "indicate the nature of the contents" of the publication being sold, irrespective of whether that likeness appears in the publication itself. (This leaves the question whether that person must be a subject of the book or article, or could merely be employed as a symbolic representation of the subject. The thrust of my understanding of Groden is that the vagary of "indicating the nature of the contents" does leave that wide-open uncertainty, however, we need not address that problem here.)

In practical reality, this holding merely restates the premises and prerequisites of the "newsworthiness" doctrine, and it leaves nothing of the doctrine of "incidental use." The latter is a nullity except in name only, since its sine qua non is the republication of "newsworthiness-privileged" likenesses previously used in the underlying publication. According to this holding, the quality of "newsworthiness" in the subject matter and the likeness alone suffices to privilege a publisher to use it in commercial advertising for his product.

Common sense yields that, if there were a First Amendment privilege to breach the statutory proscription in advertising for products related to news dissemination or the public interest, the doctrine of incidental use would be superfluous. Although there is, still, no such First Amendment privilege under the statute, whose constitutionality still stands, nevertheless, that redundancy appears to be Groden's practical result. If "incidental use" is not closely delineated and qualified, as New York courts have previously done, the definition of "advertising purposes" under the statute becomes uncertain and even whimsical. Besides common sense, the U.S. Court of Appeals for the Second Circuit previously held that the First Amendment does not protect the commercialization of personality through treatment distinct from the dissemination of news or information. Titan Sports, Inc. v. Comics World Corp., 870 F.2d 85, 87 (2d Cir. 1989). Compare in the copyright context the rejection of fair use defenses to direct commercial exploitation in Iowa State Univ. Rsch. Fd., Inc. v. ABC, Inc., 621 F.2d 57, 61 (2d Cir. 1980); Meeropol v. Nizer, 560 F.2d 1061, 1069 (2d Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978).

Having considered the true purpose and origins of the "incidental use" doctrine, we are left with a troubling question: In the absence of a holding that the "Guilty of Misleading" ads were exempt from regulation under the First Amendment, why would a ruling in Groden's favor have been incompatible with the traditional purpose and interpretation of the "incidental use" rule, and what made the literal application to his case of prior formulations of that rule unacceptable, unreasonable, unfair, or absurd?

Regrettably, Judge Newman and his Second Circuit colleagues failed to supply us with a rhetorically or dialectically convincing answer, as we will further learn by examining their use (and egregious misuse) of legal precedents as purported justification for their alteration of the doctrine.

Next: The "Legal Method" of Judge Jon O. Newman and the Second Circuit (Only the First of Several Iterations)

Barack Obama at the Great Wall of China

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 09 Apr 2010 20:15:00 +0000

This photograph of President Barack Obama visiting The Great Wall in Badaling, China, was taken by an Associated Press news photographer covering the President's trip during November 2009. The Weatherproof Garment Company, which manufactured the coat worn by Obama in the photo, paid the AP for a license to use it. Weatherproof, however, did not ask President Obama for his permission to use his image in its advertising, which identified the coat's style number and bore the tagline "A Leader in Style." On its web site, Weatherproof further identified this as “The Obama Jacket”. A billboard advertisement appeared in New York’s Times Square. The New York Times, the New York Post and Women's Wear Daily all rejected a similar ad.

Our Woody Allen example would seem to suggest, that some elements of the First Amendment bar are bent on enticing garmentos to gamble their money so that lawyers can live in luxury while playfully testing the boundaries of commercial free speech. Obama hasn't sued over the coat ad -- not yet anyway -- so there can be no certainty how a court would rule on whether the ad violated his rights. Nevertheless, the coat manufacturer, while taking its sweet time, took down the advertising billboard at the request of the White House after it objected to the ad, so we may fairly surmise that both the president and the manufacturer sensed the legal issues it raised, and that neither side to the dispute acted gratuitously.

The ad indicates the nature and quality of the garment Weatherproof sells, which is hardly surprising, as that is the goal of all commercial advertising. So, why should Weatherproof have to pay Obama a thin dime to make gazillions of dollars off of his image, and why shouldn't Weatherproof have the absolute First Amendment right to enjoy such a financial bonanza? After all, Obama didn't make that coat; he just wore it. He was photographed wearing the coat because he wanted to be photographed. That's what a "photo opportunity" is for.

On the other hand, Obama’s willing pose for this photograph hardly necessitates that he consented to its use in Weatherproof's commercial advertisement. Why should this garment manufacturer make a bundle off of the president’s image to sell his coats without the president's permission, and without compensating him, not even to the extent of offering to donate coats to the homeless and needy in the dead of winter? Why, in other words, would the White House find this advertisement objectionable, and why would the manufacturer see the sense in removing it from public view as soon as the White House protested?

President Obama is both an actor on the public stage and a symbol of his office and whatever additional values people may associate with him. While still an elected official in Illinois, he exploited his national renown and the commercial value of his identity as the author of two successful books and their ancillary audio adaptations. After leaving the presidency, Obama may do the same, as have all recently retired presidents. Does he retain any valid interest, let alone right, to control the circumstances in which his image appears, or have they evaporated for all time?

Under New York’s Civil Rights Law jurisprudence in both the state and federal courts prior to Groden v. Random House, Inc., et al., whether a plaintiff is a public figure or a private figure is irrelevant to the analysis. Titan Sports, Inc. v. Comics World Corporation, et al., 870 F.2d 85 (2nd Cir. 1989); Brinkley v. Casablancas, et al., 80 A.D.2d 428, 438 N.Y.S.2d 1004 (1st Dept. 1981); Reilly v Rapperswill Corp., 50 A.D.2d 342, 377 N.Y.S.2d 488 (1st Dept. 1975). The statute affords Mr. Obama, or almost any other plaintiff for that matter, the right to conduct and present himself to the public in such a manner as to preserve the attribute of dignity. This concept would seem to apply even more forcefully when the dignity of the individual is inextricably intertwined with the dignity of the highest elective office in the United States.

I propose to analyze the Obama ad within the same framework utilized by Judge Jon O. Newman to justify his Opinion in Groden v. Random House, Inc., et al., where Robert Groden's photograph was used without his consent in a print advertising campaign for the book, Case Closed. This is difficult, however, because totally absent from Newman's opinion (as well as that of the lower U.S. District Court for the Southern District of New York) is any weighing of the competing interests involved. For example there was no consideration of Groden's recognition value to Random House, or his interest in protecting the salability of his own competing book and video products, which Newman deliberately omitted mentioning. There was neither any nod to Groden's interest in freedom from the mental distress of being associated in the public mind through advertising with the unflattering work of another author that he did not endorse, nor even lip service paid to a person's right to control the circumstances or terms under which he may exploit his name and likeness when another seeks their use in an advertisement. In Jon Newman's universe, there were no competing interests; he is a skillful writer, as may be expected of Earl Warren’s former senior law clerk, but his Opinion merely feigned at evaluating Groden’s arguments and was, in reality, completely one-sided. As I will demonstrate in the posts to follow, his use of case precedents was also egregiously dishonest. So, in comparing and contrasting the Obama and Groden ads, I must take a different tack.

Newman's Opinion in Groden struck three main themes: (1) the fact that the assassination of John F. Kennedy is a "matter of public interest"; (2) the "emotional" context of the Kennedy assassination controversy (perhaps a significant remark in light of our discussion of bias); and (3) the questions whether the assassination was the work of only one man, and whether the critics of the Warren Commission were "guilty of misleading the American public" were purely matters of opinion, not susceptible to factual determination.

I am not citing any purported First Amendment justification, because Newman and his colleagues on the Second Circuit Court did not base their ruling on the First Amendment. When, as here, a court declares that its decision “might even be required by First Amendment considerations,” it is indicating that it did not regard such considerations as pivotal, and that doubt remains. In lay terms, it was "padding" to make the decision seem weightier. In legal terms it is called dicta, as opposed to "holding" (ratio decidendi), i.e., the essential rule of the case. Newman's First Amendment musings did not lay down a constitutional rule, thus did not have any precedential force with regard to the First Amendment, notwithstanding that some courts and commentators may find it impressive. At the same time, Newman's circumlocution around a First Amendment ruling made it less likely that the Supreme Court of the United States would accept the case for constitutional review. I will remark further on the significance of this strategic maneuver when I get around to discussing the constitutional implications of commercial advertising in a follow-up post.

There can be little dispute that the activities of President Obama, whether as president, as a husband, or as a father, but especially as a head-of-state visiting China, are all matters of public interest. The president's trip was newsworthy. He is newsworthy. Every move he makes, every breath he takes is a matter of public interest and concern. He actually wore The Weatherproof Garment Company's coat while visiting The Great Wall, and Weatherproof merely republished the bona fide news photograph to advertise the nature and quality of its products.

There also can be little dispute that President Obama is the focal point of many emotions for multitudes in the United States and around the world. He broke a long-standing color barrier to become our first African-American president, a fact of which a vast majority of Americans, particularly those of African-American descent, are justly proud. From a political standpoint, people either approve or disapprove of his performance as president, and those emotions can be equally strong. He is a target of controversy, so people may be expected to hold differing opinions of him.

Significantly, as with the Woody Allen billboards, “The Obama Coat” ad contains no hint of an endorsement of the manufacturer's product; he is simply shown wearing the coat that it makes and sells. Under the terms of Newman's Opinion in the Groden case, there is nothing false about this advertisement: the photograph is genuine and Obama actually wore the coat, which was actually produced by the ad's sponsor. It presents Obama as an attractive man dressed in a well-fitting garment, and does not overtly solicit readers to buy the coat, although that is the ad's obvious purpose and goal.

The ad makes no political argument or statement, unless one was to take it as a subtle appeal to patriotism. It is simply and starkly a solicitation to buy the same coat that President Obama is shown to have worn.

On principle, then, taking Judge Newman's purported justifications on their face, there should be little material distinction between this ad and the Random House ad for Case Closed. One might argue that a distinction lay in the products sold: a garment vis-á-vis a book. But if this were true, then why did Newman stop short of holding that advertising for a book was entitled to the same First Amendment protection as the book itself? That's the holding that the Groden defendants strenuously argued and obviously hoped for.

There is, however, a fatal flaw in the structure of Newman's argument, in particular his use of a “public interest” rationale to circumvent New York’s statute and its prior interpretation by the New York Court of Appeals:

In the literal context of the New York Civil Rights Law, the terms "advertising purposes" and "purposes of trade" are terms of art, not conjunctive but disjunctively distinct. Subject to carefully delineated exceptions that we will discuss, the violation of either prong may be sufficient for recovery. Flores v. Mosler Safe Co., 7 N.Y.2d 276, 284, 196 N.Y.S.2d 975 (1959). In the Flores case, The Mosler Safe Company reprinted a New York Times story about a building fire which mentioned the plaintiff, together with an accompanying photograph, in an advertisement soliciting businessmen to use Mosler’s product to protect their business records. Flores’ involvement in the story was merely that he happened to be visiting the tenant of the building when it caught fire. When he sued, Mosler defended on the grounds that the advertisement contained a true news account, it did not imply any endorsement by Flores, and that the mention of his name was incidental. The Court found that the story reprinted in the ad, although a news account protected under the “purposes of trade” prong of the New York Civil Rights Law, was not an item of current or general interest, but was intended solely to sell Mosler's products, therefore, Mosler’s advertisement amounted to "an advertisement in disguise" and a misappropriation of Flores’ name and photo “for advertising purposes.”

It is the dual and disjunctive nature of that statutory proscription that guided the development of the case law and two doctrinal exceptions to the statute by the New York courts throughout the twentieth century. New York courts have liberally construed the term "advertising purposes." The use of a name, portrait or picture "for advertising purposes" within meaning of the statute contemplates a use for the solicitation to patronage of a particular service or product. Pagan v. New York Herald Tribune, Inc., 32 A.D.2d 341, 343, 301 N.Y.S.2d 120 (1st Dept. 1969), aff'd, 26 N.Y.2d 941, 310 N.Y.S.2d 327, 258 N.E.2d 727 (1970).

As interpreted by the courts prior to Groden, the objects of these words are treated differently according to the respective classification under which they fall: "for purposes of trade" (under which newsworthy images contained in books, films, newspaper or magazine stories are exempted from the statutory proscription by judge-made doctrine), or "for advertising" (under which only those images that already enjoy the newsworthiness privilege may be republished in commercial advertising as an "incidental use.") The Groden case did not present any kind of penumbral accretion to the meaning of the words "advertising" or "purposes of trade."

On its face, there is no "public interest" exception to the advertising prong of the New York Civil Rights Law, since the statute expressly provides that consent is required for use of a person’s name or likeness in advertising. "Public interest", as interpreted by New York state courts, only attaches to identity uses in news reportage, periodicals, pamphlets, texts, books, theatrical performances and the like. The leading cases in New York confirm that the public interest exception does not apply to advertising, but only to use “for purposes of trade.” Beverley v. Choices Women’s Medical Center, Inc., 78 N.Y.2d 745, 587 N.E.2d 275, 579 N.Y.S.2d 637 (1991).

In Beverley, the defendant used the plaintiffs photograph, name and professional title, on a calendar disseminated by the defendant. The use of her identity was intended to illustrate milestones in the women's rights movement. The calendar, appealing to consumers, also described the medical services rendered by the defendant. The defendant's budget allocation for the calendar was described as being for "advertising and promotion." Plaintiff particularly objected that she opposed the defendant clinic's conduct of abortions. The Court held that

"[A]lthough women's rights and a host of other worthy causes and movements are surely matters of important public interest, a commercial advertiser ... may not unilaterally neutralize or override the longstanding and significant statutory privacy protection by wrapping its advertising message in the cloak of public interest, however commendable the educational and informational value."

Id, at 78 N.Y.2d 745, 752, 587 N.E.2d 275, 279,579 N.Y.S.2d 637. (citations omitted.)

Accordingly, proposing “public interest” in the subject as being a decisive consideration that warrants excusing the commercial exploitation of a victim's goodwill and popularity flies in the face of New York State’s authoritative interpretation of its own statute.

We still need to dig deeper into the scope and implications of the nebulous suggestion that “public interest” overcomes anyone’s right to be free of unwanted exploitation in commercial advertising. There are nuances to digest. Until next time, two points may stir further thought:

First, it is difficult to conjure any advertisement that could not arguably describe or represent, even symbolically, the nature and content of its subject, and to deny that proposition serves no more useful purpose than to tease the ingenuity of advertisers and lawyers, rather than to establish and maintain predictable norms of behavior.

Second, it is a short leap from saying that the product has become newsworthy by dint of the fact that Obama was photographed wearing it at a public news event, to saying that, hence, the Weatherproof advertisement for that product inherits its newsworthy properties and merits treatment as "a matter of public interest," i.e., the ad somehow inherits a penumbra of protection from the product being sold. Note as well this comment from one fashionista quoted in a dispatch by the Associated Press that was printed in The Atlanta Journal Constitution when the billboard appeared: “The ad has potential to be effective with consumers because the president and first lady both carry considerable fashion credibility.” This is the conceptual analogue of the defense put forward in Groden v. Random House, Inc. et al., and eagerly adopted by courts that were anxious to avoid a judicial trial of the JFK assassination: The newsworthiness of the subject attaches itself to the product, and an image evoking that newsworthiness may also be made to symbolize the product. Common sense tells us that creative advertisers could employ this same rationale to conscript any well-known figure against his will as a symbol for its product or service, using the thin (and circular) excuse that the product became newsworthy because the person, his photograph, and the subject they embodied were inherently newsworthy.

If the media might employ this justification scheme, why deny any marketer of a product or service that bears some relation to "a matter of public interest"? Conceptually divorcing the Case Closed book from advertising images that were not contained in the book itself, the courts effectively granted advertisers a license for symbolic expression through the use of people's names and likenesses that they had not previously enjoyed, and there appears little reason to restrict such symbolically expressive liberty to advertisers of media products. Once the exploited image is arbitrarily imbued with symbolic and expressive significance for its utility in attracting attention and promoting sales, absent some demonstrably compelling state interest there is little justification left for prohibiting the use of anyone’s image as a symbolic representation of any product in advertising, whether it is a book, a movie, a play, or a coat. I do not believe that this was the intention of New York State courts in interpreting their Civil Rights Law because the alleged “public interest exception” is thereby made to swallow the rule, and the symbolic worth of the image is left to the advertiser’s judgment. In sum, the outcome of Groden was a sub rosa assault against the United States Supreme Court's commercial speech jurisprudence, paving one road toward removing any distinction for purposes of regulation between advertising and ordinary speech by torturing common law doctrine under the rubric "matter of public interest" to forefend a potentially unfavorable constitutional (i.e., First Amendment) ruling by a Supreme Court that has shown no great sympathy for media interests.

If Obama sues, should he win or lose? If he is reduced to a trading symbol employed in advertising for his recognition value, as was Mr. Groden's involuntary fate, and if the “matter of public interest” standard prevails, and if society’s interest in protecting symbolic expression trumps the already limited and fragile proscriptions of the statute, then Obama should lose, and statutes such as the New York Civil Rights Law are effectively defunct, their protections distinguished away and whittled down by common law doctrine. The only two possible resorts remaining to plaintiffs would be the theories of "false endorsement", which may easily be subsumed by other local, state and federal trade regulations or common law causes of action, and “objectionable character,” which may be pre-empted by the traditional common law dignitary torts (e.g., defamation, false light invasion of privacy, intentional infliction of emotional distress, etc.). On the other hand, if New York's state or federal courts adhere to both the letter and spirit of the New York Civil Rights Law as it existed prior to Groden, Obama should win. That statute was not intended to permit such blatant exploitation for someone else’s profit; its purpose was the exact opposite.

New York and the rest of the nation can use another test case of the rights of privacy and publicity, and the New York courts should clarify whether the exploitation of President Obama's image for advertising purposes violated the law. If you found "The Obama Coat" ad inappropriate, you might write to the president.

Next: “Newsworthiness” and “Incidental Use”: How the Second Circuit Changed the Law

Woody Allen Takes the Money Without Breaking a Sweat

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 02 Apr 2010 20:14:00 +0000

(Introducing the concept of commercial misappropriation of name and likeness in advertising.)

The use of human model photography in commercial advertising dates back to the beginning of the twentieth century, but it has a special resonance in our own time. Since the advent of multimedia and the graphical Internet, companies large and small have been hungry to feed the beast, i.e., the voracious public appetite for photos and videos. In the context of advertising, they would like to use your image or mine -- for that matter, anyone who steps outside the private sanctuary of his home into a camera's range -- to represent whatever mood, idea, product, etc., that they wish him (or her) to represent, and they would like nothing more than to do this without having to pay for the privilege. It's a hybrid issue of human rights and dignity, unjust enrichment, property in one's own visage (or other uniquely identifiable characteristics), and one's right to be free of intrusion and exploitation. In cases of advertising a particular product, it may also be an unfair competition issue. Commonly, but not invariably, it pits an individual against a corporate concern that has attempted to capitalize on his renown for its own profit, although the victim need not be famous. While plain, ordinary people are not immune from being "ripped off" this way, we usually hear about such thefts only when they happen to celebrities. Plain, ordinary people, however, are just as vulnerable to this type of exploitation of their personas, perhaps even more so, since they lack the financial clout to fight back. In short, anyone can be recruited against his will as a model for someone else's product.

It is not my intention to explore the variety of philosophical underpinnings for the rights of privacy and publicity. For purposes of this blog, it is sufficient that New York has seen fit to recognize these rights within limitations, and I believe that this statute, the bane of a well-organized First Amendment bar that caters to wealthy corporate interests (they are not yesteryear's legendary champions of civil liberties but money whores), serves a salutary purpose. In my view, there is something pernicious about the recent trend in discussions of mass culture that see all of us (not only celebrities) as part of a pool of cultural resources available to be tapped as symbolic assets, purportedly in the service of some ideal of free expression and artistic (or political) enlightenment, but more realistically for someone else's crass profit. Take as an example this ad for a drug and alcohol treatment center that appeared in the New York Post in late September 2007, a blatant attempt to reap gain from news reports about actress Lindsay Lohan. Whatever your opinion of her, what did she do to invite this kind of exploitation and humiliation, this cruelty and finger-wagging at the expense of someone who sought nothing of the ad's sponsor, did not consent to it, and offered no endorsement of their services? Robert Groden's photograph was nowhere to be found in Gerald Posner's book, Case Closed, so what did he do to warrant Random House plastering his face on ads for the book, accusing him of misleading the American public and branding him with someone else's conspiracy theory? He contributed material to a book edited by someone who, for some reason still unexplained, managed to escape such calumny. Regardless, Groden's renown in his narrow specialty served Random's need for a prominent symbol of its publisher's bile. There would have been no Lindsay Lohan ad without Groden, and it is precisely where the implications of the Groden case have taken us. It is one of the reasons why I will show that it was more than a departure from previous legal precedent. Carefully examined, the court decisions in Groden's case have a disturbingly cynical and contemptuous character about them, as though the judges, lacking more effective tools to assist them, knew that they were twisting the meanings of the cases they purported to cite as their precedential authority, yet were so results-oriented -- so obsessed with defeasing this particular individual of his rights -- that they didn't care. As a consequence, and as the Lohan example shows, should the Groden case stand as valid legal precedent, the rights of others against what amounts to piracy have been compromised.

The gravamen of the New York Civil Rights Law §§ 50-51 is the misappropriation of a person's name or likeness "for advertising purposes" or "for purposes of trade," without consent.

New York’s Civil Rights Law, § 50 reads as follows:

§ 50. Right of privacy

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

New York’s Civil Rights Law § 51 reads in pertinent part:

§ 51. Action for injunction and for damages

Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. . . .

"I am told the settlement [that] I am being paid is the largest reported amount ever paid under the New York 'right to privacy' law," Woody Allen told reporters in May 2009, as he claimed victory over the American Apparel company for this advertisement, in which they used his image without his permission.

Allen sued American Apparel in the United States District Court for the Southern District of New York after the company erected billboard ads, and published a similar ad on its Internet web site, using images of Allen from his 1977 Oscar-winning film, "Annie Hall", dressed in character as a Hasidic Jew with a long beard and black hat. The billboards, which appeared in New York and Hollywood for less than a week during 2007, included Allen's photo, text in Yiddish that translated as "The Holy Rebbe," and American Apparel's name. Allen's claim was mainly based on the New York Civil Rights Law, §§ 50-51.

American Apparel's answer to Allen's complaint cited free speech, public interest, fair use, parody and social commentary as defenses.

It is difficult, without the aid of psychoanalysts or psychiatrists, to discern any element of parody or social commentary from the American Apparel advertisement. Aside from his celebrity, it is equally puzzling why an ad featuring Woody Allen dressed in this garb would be "a matter of public interest," besides the mere fact that, hey, it's Woody Allen! And, while defense lawyers routinely argue in New York Civil Rights Law (and analagous) cases that the statute requires false endorsement for an ad to be actionable, that is actually not a required element of the cause of action. Falsely implied endorsement may indeed lead to liability, but is not required for liability under the New York Civil Rights Law. In any case, if Allen's endorsement was meant to be implied by his mere appearance in the ad, its meaning was obscure, to say the least.

American Apparel's insurance company apparently demanded over its owner's objection that they offer Allen the settlement. Insurance companies strongly prefer collecting premiums to paying out claims, especially a large settlement as they did to Allen. When a plaintiff's lawsuit appears questionable, they are not averse to awaiting a jury's verdict unless they perceive an overwhelming chance of being hit by a large judgment. Several levels of insurance company decisionmakers and their legal advisers are involved in such decisions before they will capitulate. The American Apparel billboards came about as close as you can get to the pure hijacking of an unwilling victim's persona for financial gain in commercial advertising. There was no reasonable excuse for it, not even in constitutional protections for freedom of speech. Both the insurance company and the court were mindful that Allen had previously been successful in preventing the commercial misappropriation of his image in advertising. (Allen v. Men's World Outlet, Inc., 679 F. Supp. 360 (S.D.N.Y. 1988)). That's why American Apparel's insurance company paid.

But why would they settle with Allen on the courthouse steps when, in the mid-1990s, the same court in the same federal circuit had already denied Groden's claim for the commercial use of his image? For that matter, why didn't the U.S. District Court for the Southern District of New York simply throw Allen's case out, citing the Groden case as a precedent?

Is there an inconsistency here? Is it hard to figure out?

Maybe another example will help to clarify why Groden's matter turned out one way, while Allen succeeded in his. Then again, maybe not.

Next: Barack Obama at The Great Wall of China

In the Shadow of Kennedy's Murder (Part 3 of 3)

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Mon, 29 Mar 2010 21:18:00 +0000

If you prick us, do we not bleed? If you tickle us,
do we not laugh? If you poison us, do we not die?
And if you wrong us, shall we not revenge?

-- Shakespeare, The Merchant of Venice, III, i

I do not know Gerald Posner personally, but I know of him quite well. During the mid-1990s, I represented a client suing him and his publisher over an advertising campaign for his book. The title of the lawsuit was "Robert J. Groden v. Random House, Inc., The New York Times Company, and Gerald Posner." How the federal judiciary handled that lawsuit, how it departed from precedent, and how it affected the future course of the law, are the primary subjects of this blog.

It is an unpleasant story -- as difficult to write as it is to absorb -- about otherwise bright men (and women) who simply lacked the foresight to anticipate the rapid development of this new communications medium, and the consequences that it would portend. They apparently assumed that, in issuing their edicts, they could falsify the facts of the Groden case to conceal what actually occurred, guarantee the silence of the attorney who brought it by disbarring him, and continue to tout their falsehoods in a line of subsequent citations, confident in their self-delusion that they could never be brought to account. These are judges who, just as one example, thought it okay to decide an unfair competition lawsuit by pretending to be completely oblivious to the complaining party's injured products, not even deigning to mention them. They are the paragons of judicial excellence and virtue that America offers as an example to the rest of the world. Both individually and collectively, they exercised shockingly poor judgment.

This is the personal message I convey to them here and now:

When Mr. Groden's matter came before you, the judiciary of the Second Circuit at both the district and appellate court levels, the graphical World Wide Web was in its infancy, and most practicing lawyers derided the use of keyboards as secretarial work. Nevertheless, attorneys who had bothered to familiarize themselves with the rudimentary technology understood even then the potentialities that it would soon realize. Hyperlinked briefs in Adobe Acrobat format on CD-ROM discs; demonstrative exhibits on videocassettes or laser discs; and Harvard Graphics slideshows, for example, heralded the use of sophisticated multimedia in litigation. Back then, the major outlets controlled the media and we were all consumers, rather than creators, of content. There were no blogs. There was no YouTube. "Syndication" referred to TV stations running repeats of old shows that few people watched. The innovative tools with which individuals could create compelling content for large audiences would soon become available to anyone with a desktop or laptop workstation and access to a network.

I explicitly warned the courts then that, due to the timelessness of public curiosity about the Kennedy assassination, this matter could not successfully be swept into the dustbins of the federal court archives -- that it would resurface, I warned you that the true facts of that case would emerge without intermediation by the mainstream news media. These were my parting words to you then:

"Lying may be entrenched in public and private life, but it has no place in judicial decisions. The federal judiciary cannot and will not succeed in maintaining, protecting, nourishing and nurturing the lies that were told by judges in the case of Groden v. Random House. They are disproved by the facts of the documentary record, and those facts are uncontroverted and incontrovertible. They will emerge to the light of day, and when that happens, I believe that the prestige and credibility of this Court will incur damage."

You ignored my warning. The meaning of this technological innovation -- the Internet -- to us is that the false judicial reports of the Groden proceedings, and the judiciary's continued reliance upon them as authority in numerous subsequent citations, cannot be maintained as viable precedents any longer. Indeed, false judicial reporting is itself an artifice doomed to extinction. The formerly untrammeled power of the federal judiciary to falsify reports of judicial proceedings with practical impunity, which is precisely what occurred in the Groden litigation, is now constrained by the presence of the World Wide Web in a way that was never possible before its advent. The threat of employing Stalinist-type disciplinary tribunals to punish attorneys for criticizing judges will be insufficient to contain exposes of intentional dishonesty, deceit, and falsehood. In due time -- not merely as a result of this blog, but cumulatively from those that already exist or are bound to follow -- as more such incidents are brought to light and lawyers are emboldened to resist, rather than meekly acquiesce, neither the organized bar nor the public will stand for such underhanded, overreaching practices. And, just as the pervasiveness of the Web has altered the ways in which the public relates to mainstream media and both the legislative and judicial branches of government, so too, it will change their relationship to the judicial branch.

In today's world, no one is immune from humiliation and disgrace. No one, no matter what his station or his claim to legitimacy, authority, and deference.

Round One was yours. You had your say, and you spread your libel. On behalf of the Government of the United States, you told the press, the Bar, and the public that the critics of the Warren Commission failed to produce any evidence of a conspiracy to kill President Kennedy, which was an absolutely intentional false misrepresentation as your own court records show, and you smeared the attorney who confronted you with that evidence while representing one of those critics. On behalf of the Government, you told the press, the Bar, and the public that the dispute over President Kennedy's assassination was essentially meaningless because it was not susceptible to factual determination. And you changed the law for the specific purposes of thwarting us from proving otherwise and defaming us. However, there has been a change in circumstances. The Web has matured, with the result that you can no longer control public perception of what has occurred in a case before you. Your dishonesty and deceit cannot withstand scrutiny. No longer may you hide like cowards from the public's gaze. Now, it is my turn to respond with the facts, using the exact same court record you strained to avoid fifteen years ago. Together, we shall see whom the public chooses to believe, whom they regard as trustworthy, and who not.

I have returned to the public forum to make good on my promise to you; to ensure public access to the honest services of their judiciary; and to make actions such as those I now perform safer for those who will follow in my wake.

Not for myself, nor for Robert Groden, but for our generation, for the afterborn, for the damage that you did to their right to know, for your sanctimony and hypocrisy, for your cronyism, for your defense of the indefensible, for your complicity in the cover-up of a horrendous crime, and for your poisoning of the judicial process . . .

. . . at long last, the time of reckoning has arrived. Prepare to be judged.

Next: Woody Allen Takes the Money Without Breaking a Sweat (introducing the New York Civil Rights Law)

Coming: How they changed the law for Robert Groden; why they found it necessary to change the law; the mechanisms they employed; the evidence they ignored; the long-term consequences; and a fundamental disagreement over the role an attorney must play in the judicial process.

In the Shadow of Kennedy's Murder (Part 2 of 3)

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Tue, 23 Mar 2010 19:54:00 +0000

Today, as I write this, the Los Angeles Times carries an AP dispatch reporting the conviction by a German court of an 88-year old man for murdering three Dutch civilians in 1944, as part of a Nazi hit squad during World War II. And The New York Times reports the arrests of two men charged with murdering five teenage boys in Newark in 1978. Such "cold cases" are neither uncommon nor uncommonly reported by the American news media. Only the major political assassinations of the Sixties, including that of John F. Kennedy, are swept under the rug.

While working for CBS News during the mid-1970s, years after the assassination, I smelled the fear of it that lingered over that organization. I learned of many things that a small handful of senior news executives, under the close personal supervision of their president, Richard S. Salant, hid from most of their own employees -- including their own esteemed anchorman, the late Walter Cronkite, whom they finagled into reading before a teleprompter a script he neither wrote nor vetted -- as well as from their viewing audience, to reassure them and allay their doubts that one man, acting alone, could have wreaked such havoc. Unseen by their viewing audiences, they courted former Warren Commission member John J. McCloy's advice on their script, conscious that Lyndon Johnson and J. Edgar Hoover were watching as well. At the same time, CBS News insiders and outsiders alike encountered stone walls when attempting to call these executives' attention to evidence in conflict with the official lone assassin thesis. There was a cover-up in the Kennedy assassination and, under its original ownership and management during the Paley-Stanton era, the executive hierarchy of CBS News was a part of it. I might have pursued a career in broadcast journalism elsewhere, however, I abandoned such ambitions because I could not tolerate the painful awareness that the biggest news story of my lifetime was somehow off limits, rendered impenetrable by those invisible constraints to which I alluded earlier. Journalism, ostensibly a noble calling, does not pay well to those below the superstar level; it doesn't pay nearly enough to justify such disillusionment. Fear of the Kennedy assassination and what it actually meant still lingers over us all, whether or not we are conscious of it. It is still evident in the defensive ridicule with which the mainstream news media treats the subject.

After earning a law degree and spending nearly 20 years in practice, I saw similar fear among some of the leading icons of the law profession. As I have only begun to discuss, it is evident in the manner through which members of the federal judiciary quashed the potential for putting the assassination under a forensic microscope in a court of law. Fear of the mere potential that the federal courts might be confronted with the need to decide whether a conspiracy took the life of an American president prompted them to run like children frightened of the bogeyman. I cannot rightly call it a spectacle, because the ways in which they shunned the controversy, employing outright, lies and deceit to suppress incontrovertible record facts, went largely unnoticed by the scriveners of the law newspapers and their general media cousins, who accept court decisions as written and report them only from the official point of view, never bothering to probe the substance of an underlying court record, never raising critical questions concerning the honesty and integrity of a judge's ruling. As I also discuss in this space, the presumption of honesty that attaches to judicial rulings is one of the great blindspots and vulnerabilities of our justice system, reinforced by professional disciplinary rules for attorneys that inhibit them from exposing outright fraud and ostracize them from "the guild" if they try.

One of the aspirations of this blog is to squarely confront that fear and vanquish it because, Unless we do, it will remain with us the rest of our lives and taint whatever legacy we wish to leave to future generations. More generally, this is a case study of how -- in a noisy, distracted, and disconnected society -- dissent that poses an imminent threat to the status quo can be crushed, and the dissenters effectively discredited, without giving the appearance of violating democratic principles. In a society held together by faith rather than by brute coercion, appearances are everything, albeit they can be deceiving.

What do I mean when I write of this fear of the assassination that still hangs heavy over us? As a prime example, I point to one of the worst of the contemporary fearmongers: the self-styled journalist and former practicing attorney, Gerald Posner, author of the book Case Closed, who found his niche in public discourse on this subject as a nay-sayer.

In 1992, in response to years of quiet lobbying by Keven Walsh and other students of Kennedy's murder, and the sudden impetus given the subject by Oliver Stone's movie, "JFK", Congress passed the JFK Assassination Records Act, mandating the disclosure by government agencies of their documentary archives on the case. Posner's book was published the very day, August 23, 1993, that the first "new" batch of previously-classified documents, most of them having originated with the House Select Committee on Assassinations' investigation of the late 1970s, was released by the National Archives. The timing was not coincidental. At that time, Posner insisted that he knew what the documents contained, and that they would support his anti-conspiracy stance, even though he had not actually seen them and had no means of plowing through all of them before making that claim. The fact is, that the HSCA had determined that Kennedy was probably assassinated as the result of a conspiracy, and the secret investigative files that it unsuccessfully attempted to hide for 50 years contained evidence extremely damaging to the Executive Branch's official verdict that Lee Harvey Oswald acted solely on his own. Nevertheless, mainstream media institutions soaked up Posner's assurance because it relieved them of the burden of making their own evaluation of the evidence, and validated their own premature endorsements of the Warren Commission Report years earlier. Posner spoke irresponsibly and to protect the salability of his book, but the media gave him a pass. Moreover, they made him an instant media hero. More recently, commenting on a Freedom of Information Act lawsuit to obtain files related to Lee Harvey Oswald that the CIA has never released, Posner "said that if there really were something explosive involving the C.I.A. and President Kennedy, it would not be in the files — not even in the documents the C.I.A. has fought to keep secret." "C.I.A. Is Still Cagey About Oswald Mystery," The New York Times, October 17, 2009, pg. A11 .

Posner has shown a strange, psychic capacity to predict what the government's archives will or will not show, before having had the chance to examine them. In reality, he is an advocate for ignorance: Don't worry about the files; they won't change anything. Fearmonger in disguise, he is the media's annointed fear comforter par excellence, the anti-conspiracy "go to" guy of their first choice.

Whoa! The government is still hiding files on Oswald? All this was supposed to have been cleared up years ago. The conspiracy theorists are upsetting us. Let's go to Posner and get "the real deal." We are afraid, Gerald. Save us from those subversives who undermine our confidence. Tell us we have nothing to fear.

And, so, he complies. Equilibrium is restored. Dissent is marginalized. Our society resumes its placid existence.

Look now, captains of America's vacuous communications media, upon your damaged opportunistic hero. It was not us, but his own flaws, that ruined him. We gloat, not at him, but at you. We exult, not in his misfortune, but at your gullibility, humiliation, and discredit in the eyes of the world. Go! Feed your audiences endless retreads of the old Jack Bailey TV show, "Queen for a Day", now pretentiously disguised as the new "reality" genre yet still a haven for exhibitionists. Sell your clientele's anti-flatulence and erectile dysfunction remedies to your hearts' content. Your constituencies dwindle in number year-after-year. You can no longer afford to hire and retain credible contingents of bona fide journalists. Your new currency is amateur cellphone videos. You have run out of steam. When we want the news, we get it from the Internet.

In the Shadow of Kennedy's Murder (Part 1 of 3)

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 19 Mar 2010 20:41:00 +0000

What I have written so far is merely prologue. I am about to explore how, solely due to the nature of his work on the John F. Kennedy assassination and the threat that his lawsuit presented to the established order in America, the case of Robert J. Groden v. Random House, Inc., et al. changed two important branches of law -- indeed, the United States Court of Appeals for the Second Circuit had to invent new law -- for the exclusive purpose of defeasing one man of the entitlements enjoyed by others prior to his lawsuit, even though his case presented no novel nor especially challenging issues. This week, however, as one of the harshest winters in recent memory begins to recede, I pause briefly to begin setting that case within its larger context: What is its place in the long saga of the Kennedy assassination controversy, and why does it matter?

Living my life, I have learned at first-hand, to my great discomfort and disadvantage, that there are some news stories that the American media cannot uncover, and some legal matters that cannot be brought before an American court of law. There are, in fact, invisible constraints upon our freedom of thought, our freedom to know, and our freedom to act upon our knowledge, which constitute the unwritten rules of living in America. These constraints impair the quality of my life as a citizen of a supposedly free country. The foundation of our society is our common faith in the myths we construct of our own history and in the institutions that uphold them. We live according to these myths because we believe they help us to survive, nay, that we require them to survive. We believe in our Constitution, yet it is merely parchment encased in glass, wholly dependent upon the good faith and honest intentions of fallible men and women to honor it and imbue its values with the aura of legitimacy. That common faith is at once our greatest strength and our greatest vulnerability, for when it is grievously wounded, the basic weakness of American society is laid bare.

More than a momentary interruption of continuity and confidence, the assassination of President John F. Kennedy struck deeply at that heart of American society: our common faith, and our ability to maintain an elemental cohesiveness in that faith against all challenges. The assassination was a homicide under Texas law, preceding the enactment of a federal statute criminalizing physical assaults against high federal officers. The federal government, however, de facto revoked the jurisdiction of Texas over the crime and confiscated the evidence, repositing all further investigative responsibility in an ad hoc presidential commission, which relied upon the FBI for its leg work. Quelling rumors and suspicion assumed priority over standard legal processes, with the unhappy result that the Warren Commission settled nothing, except to validate Lyndon Johnson's ascension to the presidency. Conspiracy theories were only perpetuated and our faith in government irreparably damaged. Sober and responsible members of the first generation critics of the Warren Report were not the cause; their only transgression was to expose the weaknesses and shortcomings of the Report which, in the absence of redress, inevitably fed the growth of speculation and doubt. Our nation owes these individuals, most of whom remain obscure to the general public, a debt of gratitude for their dedication, determination, hard work and, in some instances, self-sacrifice without any promise of reward or recompense.

A man died on the streets of Dallas that day. America's involvement in Vietnam escalated within months thereafter, lasting until the war's end in 1975. Some have argued persuasively for a linkage between these events, and that Kennedy did not intend to pursue the course followed by his successor. JFK's last surviving brother, Ted, delicately affirmed this belief in his posthumously published memoir, and there is an abundance of evidence to support it. An entire generation was thrown into turmoil. Besides its toll in human lives, the deficits incurred by that war would make it more expensive for them to purchase homes, more difficult for them to find decent jobs, more doubtful of what the American dream meant to them. Job security, affordable higher education, and, for many working people, a safe pension, became quaint and outmoded notions. Increasingly, they found themselves competing for scarce resources. America became more fractious. A man died and nothing was ever the same, or as good, as it had been.

When future historians look at that period, the Sixties, perhaps they will take account of the central themes tying the Kennedy and King assassinations to each other: All three men opposed the escalation of American military involvement in the Vietnam War. All three were dead and the official "lone nut" verdicts for each murder were cast in stone by the time Lyndon Johnson left the Oval Office. Notably, before their deaths both Robert Kennedy and Martin Luther King, Jr. had positioned themselves in the vanguard of campaigns for economic and social justice in America.

Yet, there is a second discernible pattern to the events of that era. It can no longer be disputed that the original and all follow-up commissions of inquiry into President Kennedy's death were waylaid from within. Allen Dulles, a member of the Warren Commission and former Director of the Central Intelligence Agency, withheld from the Commission vital information about government assassination plots against Fidel Castro. The Rocketeller Commission was headed by one of the Agency's original creators. The House Select Committee on Assassinations' liason with the Agency had personally coordinated its anti-Castro operations, however, his role was concealed from the Committee's staff. Likewise, the Pentagon withheld information about a scheme ("Operation North Woods") to foment violent incidents on American soil and blame them on the Cuban dictator in the hope of inciting a public outcry for a military invasion. By the time the HSCA was formed, the Pentagon had already destroyed many of its records from the early 1960s, claiming routine record retention practices. Over time, it became obvious that the public's disempowered gaze alone could not be relied upon to exact from public officials the candor required to dispel the questions and doubts about Dallas.

Whatever those future historians may conclude from these patterns, their musings will come too late to bring any comfort to the survivors of the Kennedy era. As a practical matter, through no fault of their own but owing instead to official intransigence and the passing of years, they were condemned to perpetual uncertainty and mistrust because the assassination could no longer be addressed through any legal apparatus, but only through historical and political analysis. Nevertheless, that should not prevent those living today from assigning justly deserved blame and demanding accountability for their having been cast in ignorance and subservience while American blood and treasure were squandered.

Today, a majority of Americans have no living memory of November 1963. We have deceived ourselves that we survived that crisis and overcame that tragedy. It's old news. It's off the table. Worse still, it has become boring except to those few dedicated souls who persist in probing its mysteries. We are, after all, beset by urgent problems and distracted by a constant drone of non-news and the endless diversions of the entertainment world. We are absorbed by our Blackberries and iPhones. We are transfixed by the feats of wealthy athletes and the latest celebrity gossip. Contemporary everyday life is so frenetic and crowded, there is so little time to relax, to read, to think, to converse at length. Out of necessity, we rely upon our presumptions of regularity. The sun will rise tomorrow morning; someone else, somewhere, has looked at the assassinations of the Sixties; so, the sun will set again in the evening. More self-preservation than apathy, it is easier not to remember and reflect, but instead to let the past slip away.

We may have endured the Kennedy assassination, but we did not really survive it intact. Rather, we simply failed and refused to confront it. We swept it under the rug and preferred to live in denial. What those who lived through the 1960s cannot deny, however, is that America is a far different country today than it once was. Younger generations do not know -- and they may never know -- the same standard of living that the "baby boom" generation witnessed and enjoyed. A culture of greed and corruption permeates both the public and private sectors. It has brought us to the precipice of a twenty percent unemployment rate and a virtual standstill of national production. The national conversation is coarse and acrimonious. Commonly held aspirations have yielded to special interest pleading. And, as Michael Moore recently reminded us, before his latest documentary understandably disappeared from theatres in the blink of an eye, since the 1960s we have long lacked for visionary and forceful leadership at the top of our society. Hard though it may be for people under the age of 50 to grasp, today's America is not only different but diminished, and they are none the wiser for it.

Next: The mainstream media and Gerald Posner.

Recapitulation and Appraisal 1: Raising the Veil of Judicial Bias

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Sat, 27 Feb 2010 03:23:00 +0000

This blog is young, yet we have already begun to see strands of inordinate, extravagant, and consumptive bias converging in Jon O. Newman's Opinion for the United States Court of Appeals for the Second Circuit in the case of Robert J. Groden v. Random House, et al. One is almost tempted to define it, after the fashion of law professor Cass Sunstein, as a "crippled epistemology".

We have seen it in Judge Newman's presiding over Mr. Groden's appeal despite its subject matter and his past relationship with the late Chief Justice Earl Warren, who chaired the Warren Commission's inquiry into the assassination of President Kennedy.

We have seen it in the highly selective, and at times misleading, reporting of the facts of the case. Most egregiously, this included the total omission of any mention of Groden's competing book and video products, the harm to which motivated his seeking vindication of his rights in the first place.. This was no mere "out-of-sight, out-of-mind" self-deception but a deliberate refusal to acknowledge the anti-competitive nature of Random House's ad campaign for Case Closed.

We have seen that the campaign stemmed from purely commercial motives, e.g., Random House's inability to promote their book without sensationalizing their pitch, and their awareness of the impending publication of Groden's "The Killing of a President."

It is fair to conclude that Newman was unhappy with the nature of the case before him, so here is one of the ways he simply changed it: Imposing a black out of Groden's competing products enabled Newman to opine disingenuously that Random House's ad campaign said nothing false about Posner's book, while he neutralized its false attack against Groden through the complete omission of inconvenient facts. As our examination of the quote issue (here and here) revealed, this was not a conclusion reached in good faith but only by refusing to honestly and fully engage Groden's fundamental standpoint in the argumentative discourse. (In a future discussion, I will show how, according to Second Circuit and Supreme Court precedents that were raised on Groden's behalf, where an advertisement conveys two or more meanings, one of which is true and the other false. then it shall be construed against the advertiser and in favor of the complaining party, so that, even if the Random House campaign boldly stated Posner's thesis, and even if it conveyed the nature of his own book, it was nonetheless a misleading attack against a competitor and a misrepresentation of the latter's views. This is a foundational concept, a major underpinning of Groden's argument, that warrants extensive exposition.)

We have seen contradictions in the factual assertions contained in the Record on Appeal which, under circumstances involving different parties, would have mandated a reversal of the lower court's grant of summary judgment in favor of the defendants. These included evidence regarding the quote that Random House attributed to Groden in its ad campaign, and conflicting copyright notices that Newman never deigned to acknowledge.

We have seen some of the legal arguments incongruent with the Opinion omitted from the judge's discussion, while others were cavalierly dismissed by him as "fanciful" or inapposite.

We have seen some of the lower court's purported findings of fact adopted by the Second Circuit without the de novo scrutiny that the Court of Appeals' own standards of review required.

Even at this early stage, one is impelled toward grave doubts about the personal and professional ethics, character, honesty, integrity, and wisdom of Judge Jon Newman in presiding over an appeal that, while serving as Chief Judge of his court, he could well have assigned to another member, if not for any concerns over substantive fairness to Mr. Groden, then solely for the sake of public confidence in his institution. Through selective perception of a case that has not been assigned to him, but which he has specially reserved for himself to decide, a man possessed of certitude in his own prestige and credibility may nonetheless render himself vulnerable to the savagery that I am now only too pleased to perform. Mr. Groden's case came before then-Chief Judge Newman neither at random, nor in the normal course of his court's business. He reached for it, grabbed it, and held it closely to his seething breast. As we shall continue to see, this man intended to inflict grave and irreparable harm upon both Robert Groden and the attorney who represented him. He meant to make a statement about what Mr. Groden represented to him -- a howling wail of outrage against a powerless individual who had deeply offended his affection and loyalty toward a valued mentor and benefactor, Earl Warren -- a statement that betrayed his pernicious and irresistible bias.

This February 2010 cycle of “The Lies of the Second Circuit” blog has also suggested a frightening reality about the real-world functioning of the federal courts and the practice of law, one that I introduced in my “opening statement.” What happens when judges lie? When they knowingly, intentionally, and deliberately falsify the facts of their reported decisions for the purpose of deceiving the public, the press, and other courts? Beyond the obvious effects upon those entities, we must consider the effects upon the parties and attorneys immediately involved in the dispute at bar, regardless of which has emerged victorious, and upon the law profession as a whole. I have pointed to a dark secret that no trial attorney who values his license to practice law can afford to publicize, let alone protest. It is a type of official malfeasance so blatant, so obvious, as to impart a clear warning signal to attorneys that a judge's decision is neither mere error nor abuse of his discretion, but is actually intended to foreclose any attempt at remediation. It is a form of coercion. It requires the tacit acquiescence of lawyers appearing before such a judge, who realize his purpose, but who also recognize that exposing him as a liar would entail social costs that the federal judiciary is averse to to absorbing, and would further entail serious risk to their careers. Just as there are princes of Wall Street, so are federal judges the life-tenured princes of the law profession. Just as some financial institutions are deemed "too big to fail," the institution of the federal judiciary is bigger than any single party, attorney, or judge, and some judicial proceedings are too warped to be corrected without the risk of embarrassment, ridicule, and derision. Without the aid of significant political and financial resources, it is practically impossible to accuse a life-tenured federal judge of intentionally lying to shape the outcome of a case, even if an incontrovertible black-and-white court record proves that he or she did lie.

Still, we have far to go, and I regret to forewarn readers that the trend will only worsen. I have merely scratched the surface of the mentally and morally sick frolic that the federal judiciary made out of thrashing a well-known critic of the Warren Commission. The studied craftsmanship -- the self-absorbed assurance of their own excellence -- that they dedicated to this enterprise clearly entailed much advance brooding and creative energy. The case on the whole offers a master class in judicial evasion and obfuscation. It demands commensurate patience and care to dissect and expose the anatomy of a cruel hoax, and to understand that its import ranges beyond the specific outcome of one man's lawsuit. For this reason, I posted hyperlinks to the "Justice at Five Points" video series on the sidebar of this blog so that those who are impatient to confirm their fears of a conspiracy in President Kennedy's assassination may gratify themselves on that score without further delay. Since I will get to the assassination itself in due course, there is no need for haste in exposing this sham. What I am documenting here is no mere perversion of critical discussion in the context of adjudication, but a calculated scheme which, in future history's overview of the assassination controversy, may well be regarded as having deprived the survivors of that event our last opportunity to obtain a small measure of closure.

For now, I prefer to dwell upon the method, the cunning, and the preening conceit of these pompous, life-tenured pigs who sit on our most powerful courts. Having mixed the cocktails and passed around the hors d'oeuvres, having served slivers of their diseased brains for an appetizer, my intention -- figuratively speaking, of course -- is to marinate them, rub their skins with many freshly crushed cloves of garlic, roast them slowly to conserve their juices, baste them with a fruity sauce , prepare a generous array of side dishes, concoct a flavorful sherbet to refresh the palate between courses, carefully peruse my cellar to select a fine wine, ensure that the cupboard is well-stocked with after-dinner mints. I have set the table for a long and elaborate affair. Hannibal Lecter or Rachel Ray? I am merrily preoccupied with my hosting duties, so you decide. In any case, let us banquet together.

These are people who lied to you. These are people who, by consciously blocking you from discovering the difference between truth and fantasy, represent in microcosm the triumph of a secular faith over reason and discourse. These are people who, like thieves in the night, stole your right to know, to think for yourselves, to decide, and to act. In other words, they stole from you the right of self-determination that our democracy supposedly guarantees.

To this very day, they refuse to acknowledge the wrong that they did and the harm that it caused -- quite to the contrary, they proudly flaunt their little gem of legal bunkum and continue to extol the dissembler who showed them how it's done.

The Constitution of the United States provides that, once federal judges are appointed by the President and confirmed by the Senate, they may continue to serve for the duration of their lifetimes. Once confirmed, it is nearly impossible to remove them from office.

"The Lies and Fallacies of the Second Circuit" blog will return during late March 2010.

Relevant Links:

Sunstein and Vermeule, “Conspiracy Theories” (monograph)

Guilty of Misleading the American Public

"We'll Be Here For the Rest of Our Lives", Part Two

The Confession of Sir Harold Evans, Former President of Random House

What Did They Know, and When Did They Know It?

Video Exhibit 22

Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals

Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Wed, 24 Feb 2010 22:30:00 +0000

In his Opinion for the United States Court of Appeals for the Second Circuit, Chief Judge Jon O. Newman, Earl Warren's former senior law clerk, made a vague and somewhat confusing reference to the copyright ownership of High Treason having been disputed. Newman seemed to imply that Groden had somehow disingenuously attempted to evade attribution of the advertised quotation. What Newman conveniently failed to disclose, however, was that it was the defendants in Groden v. Random House et al. who had initially proposed to the lower (U.S. District Court for the Southern District of New York) court that the attribution was proper because, according to them, Groden allegedly owned the book's copyright.

Based solely on an unsworn declaration by defendants' counsel, and without any certification of copyright ownership from the U.S. Copyright Office, the district court erroneously declared that Groden "continues to holds [sic] the book's copyright jointly with Harrison Livingstone. See Defendants' Exhibit C." The defendants' "Exhibit C" to which the district court referred purported to be a photocopy (unattested as to its genuineness or validity other than by defendants' counsel) of a copyright notice from a Berkley paperback reprint of High Treason. This document, standing alone, did not constitute competent or admissible evidence that Groden had ever held a a copyright interest at all, let alone that he continued to hold the copyright to High Treason. In this deceptive manner, the defendants' standpoint on the quote was accorded a presumptive status, notwithstanding the lack of formal evidentiary qualification, as though the copyright was self-evident. On its face, however, the document indicated that High Treason was written by two authors at two different times, their contributions separated by a number of years:

(Groden v. Random House, Inc., et al., Record on Appeal Document No. 8)

Groden and his attorney countered this purported "evidence" in the lower court with an entirely different copyright notice from another Berkley paperback reprint that placed the defendants' contention, and the lower court's objectivity, into serious question. This notice claimed that sole copyright ownership resided in Livingstone:

(Groden v. Random House, Inc., et al., Record on Appeal Document No. 19)

Denied discovery and an evidentiary hearing, it was all Groden could do.

What Newman was struggling to conceal from his readers was a serious and irreconcilable conflict in the record before him -- a conflict between two different copyright notices that both he and the lower court failed to disclose but which, in any other litigation, would have virtually required reversal and remand to the Southern District Court for clarification and further proceedings, including discovery, an evidentiary hearing, and possibly a trial. Absent any reconcilation of this conflict, Newman sought comfort in the district court's finding that Groden "held himself out to the public as a co-author of the entire work." But this "finding" similarly lacked any factual underpinnings. It was a bare, conclusory statement by the district court, issued without the benefit of any evidence, discovery, or adversarial hearing, and in the face of denials by both Mr. Groden and his attorney. It was nothing more than a district judge's appraisal of what an unattested photocopy signified to him, or rather, what he wished to conjure from it.

In any event, copyright ownership is not the same as authorship. Copyright is a form of intellectual property capable of being sold, assigned, bequeathed to heirs, or relinquished to the public domain. It is pertinent, however, to the right to control whether a work is published, and the manner in which it is published. According to Groden's uncontested sworn statements on personal knowledge, it was Livingstone who retained and exercised that control over the publication of High Treason.

The salient facts are that defendants failed to submit any competent affidavits, official certificates, or other proof that Groden had actually written the statement attributed to him, or that it represented his views, and unlike Groden -- who was denied any means by which to establish the facts other than his own sworn affidavits -- they failed to produce any competent evidence contradicting him. The defendants offered no proof that Groden had ever held himself out as author or "joint author" or "the copyright holder" of the entire work, High Treason, or more specifically, that he had ever propounded a theory similar to the one they affixed to him. Moreover, the defendants produced no evidence -- either by affidavit or in any other admissible form -- that they had relied upon the quote in the good faith belief that it represented Groden's views. The argument implicit in their defense was that, if they wished to insinuate in the public mind a false picture of who Groden was, and what he represented, they were entitled to do so in service of their promotional needs for Case Closed, which in turn best suited the public interest in their own view.

It is a totalitarian idea to falsely impute opinions to someone by associating him with others, then persecute and ostracize him because of that mistaken belief about his views.

On the other hand, besides competent testimonial evidence, Groden and his attorney presented the courts with copious citations to previous "authors' rights" cases, all of them decided within the same jurisdiction, in which the courts had found the false attribution of editorial credit to be misleading and violative of the Lanham Act. And for the benefit of any lawyers reading this, Groden's appellate briefing further analogized what the defendants did in this case to . . .

. . . the gasoline misbranding cases. Amoco Oil Co. v. D.Z. Enters. Inc., 607 F. Supp. 595 (E.D.N.Y. 1985); Edward J. Sweeney & Sons, Inc. v. Texaco, Inc., 478 F. Supp. 243 (E.D. Pa. 1979), aff'd, 637 F.2d 105 (3d Cir. 1980), cert. denied, 451 U.S. 911, 101 S. Ct. 1981, 68 L. Ed. 2d 300 (1981). The "gas station owners" (defendants) decided to "draw" a quote from a "storage tank" (i.e., High Treason) used by several "refiners" (i.e., the coauthors), each owning a distinctive mark, and then "sold" it as Groden's opinion, thereby appropriating his reputation, distinctive customer recognition, and goodwill to their own commercial purposes. In short, this advertising dispenses Harry Livingstone's gas through Bob Groden's pump. Those cases did not turn on whether the owner of the mark commingled his gasoline with that of others, or upon whomever else's gasoline the dealer actually sold -- whether it was the same, any better or worse than the mark owner's -- or whether it contained the additives allegedly unique to the owner of the infringed mark, or even whether the public caught onto the scam. The mark owner was not estopped for allegedly supplying gasoline without the unique additive. It was enough that the dealer palmed-off commingled gasoline as having originated with the owner of the mark, who had the absolute right to designate the gasoline that could be sold under its name. See also Nike, Inc. v. Rubber Mfrs. Ass'n, Inc., 509 F.Supp. 919 (S.D.N.Y. 1981).

Finally, Groden challenged the Second Circuit with these questions:

Query 1: Suppose that Livingstone, now the sole copyright owner of High Treason, had "revised and updated" the work, but decided to leave Groden's name on the cover (same advertisement as now before the Court)? It so happens that defendants themselves acknowledge that the paperback printing of High Treason upon which they purport to rely is not the original edition of the book, and they introduced no evidence that the contents of both the original edition and that particular paperback printing are identical; that the paperback was not revised; or that Groden had anything to do with the paperback printing. In point of fact, the paperback edition is a revision of the original work.

Query 2: Under the district court's rationale, how much "longtail insurance" must a contributor to a literary anthology whose name is on the cover of the book purchase for himself, and for how long a term, to protect himself against all conceivable media torts committed by his co-contributors?

Legal scholarship, however, was of no avail to Mr. Groden at any point in his litigation before the federal courts. They were set in their devaluation of his particular calling, and unwilling to be constrained by mundane considerations of evidence, reason, or precedent. By fiat, the federal courts effectively declared a blatant and unresolved conflict in the record not material, and Groden unworthy of credence. Neither the defendants nor the courts were ever able to offer any authority -- any case precedent or learned treatise -- for the notion that one contributor to a collective work named as co-author of a book might be named and treated as its sole author and sponsor of its entire contents.

There was nothing "fanciful" about the issue Groden raised. His lawyer did not dream up irreconcilably conflicting copyright notices in the record that could not be resolved absent discovery and competent evidence. He did not imagine these things. Instead, they were hidden by a smokescreen of judicial dissembling -- shrouded in words that were intended to withhold information from their audience, and to deceive.

However, so long as he was able to conceal its actuality from his audience, it is not difficult to understand why, in Newman's view, the conflict in the record "need not be resolved in order to determine that the quote was properly attributed to Groden." At every point in the litigation where issues of fact existed, the federal courts treated those issues as matters of law susceptible to resolution by blithe judicial decree. For the self-styled elite of the American legal establishment, it was imperative that Groden not be seen as having raised any triable issue that might provide him with a platform before a jury. And we will see other ways in which this imperative was implemented during the weeks and months ahead.

Video Exhibit 22

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Mon, 22 Feb 2010 22:37:00 +0000

As the main Random House advertisement implied, critics of the Warren Commission's lone assassin thesis have never been able to completely agree among themselves about the exact nature of the conspiracy that took President Kennedy's life, although they agree that one man acting alone could not have been responsible. The dissension, discord, and mistrust among them has made it virtually impossible to organize an effective citizens lobby for re-opening the case. With the notable exception of the Assassination Information Bureau (AIB) during the 1970s, all other such efforts have failed repeatedly. The critics have no "platform". Most of them prefer to stand individually upon their own research and views. Many refrain from publicly advancing any theory of responsibility in the belief that the government has not succeeded in defending the Warren Report and still bears the burden of solving the crime. In his public appearances through the years preceding publication of Gerald Posner's Case Closed, Robert Groden had carefully qualified his public remarks about a conspiracy in the assassination. This was best illustrated by his participation in the original production of a widely-viewed documentary, "The Men Who Killed Kennedy" (hereafter, "TMWKK"). I raise this because Gerald Posner cited the documentary on page 468 of the original hardcover edition of Case Closed as one of his research sources.

The multi-episodic TMWKK documentary debuted on the 25th anniversary (1988) of the assassination on the Arts & Entertainment cable network, was re-run on that network before Posner published Case Closed, and was repeated many times in subsequent years on The History Channel. It has been available for many years in home videotape and DVD editions.

Groden was credited as a "senior program consultant" and was interviewed for the documentary. Here is what he said, in the episode entitled "The Witnesses":

"We can't know the truth unless we have subpoena power and people that want to know the truth. If they don't want to know the truth, whether it's because they don't believe in it, or because they feel that it's politically advantageous to themselves not to investigate it, then we'll never know the truth. But how can this country go on -- after a quarter of a century of this cover-up -- how can we build on that? We're building on a lie! We've got to know the truth."

"Given the nature of the President's most powerful enemies at that time, and who had the most to gain from the assassination, my feeling is that there are four groups that are suspect: the more militarily-oriented of the anti-Castro Cubans -- people who felt betrayed by President Kennedy after the Bay of Pigs; the Mob, who wanted the gaming rights back in Havana (they were losing millions of dollars every day) since Castro closed the casinos; the ultra-right wing who hated President Kennedy for virtually everything he stood for; and the ultra-right wing hawks within the CIA -- the ones who had been fired or people related to those politically who had been fired by President Kennedy after the Bay of Pigs. They all had a common goal. They wanted the president out of the way, they wanted Cuba clear of Castro and the communist threat in the Western hemisphere. They had the most to gain. They had the motive, the opportunity and the means to kill President Kennedy. If that is the cake, then the icing on the cake is the president's decision to withdraw the troops from Vietnam. That is the CIA's war. They wanted it. They wanted to promote it. They wanted to push it."

"The fact of the assassination conspiracy is beyond doubt; only the scope is in question."

A video of Groden's remarks during this interview was included in the official court record of Groden v. Random House, Inc. at al., ((VIDEO EXHIBIT 22) (Record on Appeal Document No. 19) (Videocassette)) and extensively discussed in the court papers on file. These excerpts are entirely consistent with the body of Groden's work on the subject. And they are furthermore consistent with his former editor's description of Groden's book, The Killing of a President as it was coming to market in the Fall of 1993: "His point is that a conspiracy occurred, but he doesn't claim to know who the participants were." (Michael Fragnito, editorial director of Viking Studio Books). Groden's reconstruction of the crime (with which I do not agree in every last detail) has led him to conclude that multiple assassins indeed performed the shooting, albeit he has refrained from theorizing who they were. There is a great difference between, on the one hand, pointing out that ordinary citizens cannot determine the truth without the power of subpoena, while outlining a generally recognized list of suspected entities, but on the other hand, flatly asserting as fact that "a combination of the CIA controlled Cuban exiles, Organized Crime, and the Ultra Right Wing, with the support of some politically well connected wealthy men." carried out the assassination. The significant difference is that, in Groden's view, either of these entities might have been responsible, while in Harry Livingstone's view, they all acted in concert. The distinction was between one who merely conjured credible investigative targets, and one who advocated a massive cabal. That difference is underscored by Groden's final remark in the broadcast: "The fact of the assassination conspiracy is beyond doubt, only the scope is in question." Since Posner cited the A&E documentary as source material in his book, it cannot be gainsaid that both he and Random House were on notice of this distinction between Groden's and Livingstone's respective viewpoints before both Case Closed and its ad campaign were published. Therefore, the Random House ad campaign was false and misleading in attributing to Groden the sole authorship of a conspiracy theory that he himself did not advance and to which he never subscribed.

The issue plainly appeared from the separately dated copyright notices in High Treason, and Livingstone's claim in subsequent editions of that book to sole ownership of the work. (I will return to this point for more extensive analysis and a wrap-up of the "quote" topic in my next post.) Since the ad campaign did not identify High Treason as the source of the quotation, readers had no way of knowing that Groden never expressed the view stated in the ads, and that the attribution was misleading. And since Groden had a more current book of his own in the distribution chain, which was well-publicized in the publishing trade press, the anti-competitive intent of the ads was manifest: Don't buy Groden's book, buy ours instead.

Some people may regard this difference as unimportant, e.g., Groden believes there was a conspiracy, therefore, he is a "conspiracy theorist", and the details of his belief system are of little consequence. However, to one who is highly concerned about appearing sober, credible, and persuasive to his audience; is vulnerable to the "assassination sensationalist" and "conspiracy theorist" stereotypes; and is also justifiably concerned about protecting the integrity of his message in the commercial marketplace of ideas, the difference in messages is quite substantial, and the same may be said of his audience and their receptiveness to the message as well. This was the heart of Groden's matter against Random House, The New York Times, and Mr. Posner. This was the essence of their misrepresentation: the presentation of Groden as "author" of a widespread political conspiracy when, in fact, he has merely demanded of the government a plausible answer to the question, "Who killed President Kennedy?"

The crux of the issue Groden raised was that, if he didn't write the words attributed to him in the advertisement, and they do not reflect his views, then the advertisement mischaracterized the nature of his commercial activities, was therefore false, and damaged him.

Next: Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals

What Did They Know, and When Did They Know It?

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 19 Feb 2010 22:49:00 +0000

Except for Bob Groden, everyone quoted in the Random House advertising campaign for Case Closed was respectively the sole author of the material attributed to him. The alleged Groden quote is nowhere to be found in the 600-plus pages of that book. Where did it come from? Did Bob Groden really say that? When? Where? The campaign only indicates "1989". In 1989, Groden appeared to the public not only as the co-author of two books about the assassination; he also made personal appearances and granted media interviews, as he had since the mid-Seventies. A reader could just as likely surmise that Groden had uttered that quote during a public appearance in 1989. In Lanham Act terms, Random House's failure to disclose the origin of the quote in its ad campaign -- a material fact of which consumers should have been made aware -- made the ads false and misleading. This is in addition to the false disparagement of the book and video products that Groden was bringing to market at the same time. Let's examine the pertinent aspects of the record in Groden v. Random House, Inc., et al.

The "record on appeal" is the record of a litigation certified and transmitted to the appellate court by the clerk of the lower court (in this instance, the United States District Court for the Southern District of New York) plus the briefs filed by the appellant (here, plaintiff Robert J. Groden) and the appellee (defendants Random House, Inc., The New York Times, and Gerald Posner, all of whom were represented by a single law firm). The record includes the pleadings, relevant motions and their appurtenant exhibits, the complete transcript(s) of lower court proceedings, and the orders or judgment appealed from. The record and briefs are usually accompanied by an Appendix, a compendium of those portions of the record that counsel wish to highlight for the benefit of the appellate court.

Normally, an appellate court will review only the lower court's conclusions of law, not its findings of fact, especially when a trial has been held on the merits. Summary judgment is an exception to this general rule. Summary judgment allows a party to prevail without a trial if a trial judge supplants the function of a jury and decrees that there are no disputed material facts, and that a binding judgment must be granted on the basis of the legal principles applicable to the dispute. Where questions of fact exist, it is not for the trial judge to resolve them: they are the province of a jury, therefore summary judgment must be denied. In theory, that is.

In The United States Court of Appeals for the Second Circuit, the standard of review for a lower court's grant of summary judgment is de novo. De novo is a Latin term literally meaning "a second time" or "afresh". In practical application, it means that the appellate court will review all of the evidence in the record without regard, and without deference, to the trial court's findings or decision, and it will review that evidence "in the light most favorable to the nonmoving party." Web surfers unfamiliar with law libraries and the commercial electronic legal databases are nonetheless now free to browse the hundreds of appellate court decision on the Web. Such an exercise would reveal that, as a matter of form, and to reassure both the parties and other reviewing courts, the Second Circuit usually announces in explicit fashion the standard of review that it is following, including illustrative "string citations" to previous cases that have employed the same standard of review.

Significantly, in the case of Robert J. Groden v. Random House, Inc., The New York Times, and Gerald Posner, the author of the Second Circuit's Opinion, Chief Judge Jon O. Newman (Earl Warren's former senior law clerk), failed when writing his Opinion to acknowledge the de novo standard of review, and the record on appeal supplies abundant evidence that he did not apply it. I have previously mentioned Judge Newman's intentional failure to mention Mr. Groden's competing book, The Killing of a President; this is another example, but hardly the last that we will encounter, of how the Second Circuit court's Opinion was deceptively framed. We will come to learn that the appellate court paid extraordinary deference to the lower court, and that serious conflicts in the record were likewise ignored. Some of these related to the Random House ad campaign's characterization of Groden's work.

Designed to highlight his main strength as a collector and analyst of photographic material relating to the assassination, Groden's The Killing of a President (TKOAP) was not a narrative work, but a photographic compilation with captions. Essentially, it conveyed in print the content of Mr. Groden's slide and film presentations to public audiences as they had evolved and matured over two decades. During the years preceding publication of TKOAP, his first solo work, Groden had collaborated with two different professional writers on each of two previous books for which he received co-authoring credit: JFK: The Case for Conspiracy (co-authored by Peter Model) and High Treason, co-authored by Harrison E. Livingstone.

The defendants in Groden v. Random House, Inc., et al. claimed to have taken the quote from High Treason, but the ads didn't inform readers of that fact, and High Treason was a collective work. (Likewise, it is also key that at no point did Posner's book accuse Groden of dishonesty, avarice, or knowing deception of the public, and it only purported to discuss his work exclusively in the context of his earlier collective work with Livingstone. Since the quote attributed to Groden was not in Case Closed, someone had to read High Treason to pull that quote for the advertisements. Who? Why? And why did they target Groden, not Livingstone, not both of them together?) Groden and Livingstone each wrote separate portions of High Treason, the latter handling the topic of alleged political conspiracies in the assassination. Groden sent his contribution to Livingstone, who assembled the completed manuscript and had it published. Livingstone was the author of the quote attributed to Mr. Groden in the ads. Both of their names appeared on the cover of the book. Separate copyright notices appeared inside. Livingstone's notice clearly indicated that some of the work included in High Treason was copyrighted solely by him in 1980, and again in 1989. Later paperback editions, which contained editorial additions and revisions written solely by Livingstone, eliminated any notice of copyright in Mr. Groden's name.

Without mentioning either Livingstone or High Treason, the Random House advertising campaign attributed to Groden a purported theory of responsibility for the assassination of the President. They quoted Groden, and him alone, as follows:

"Who killed President Kennedy? It took a combination of the CIA controlled Cuban exiles, Organized Crime, and the Ultra Right Wing, with the support of some politically well connected wealthy men to pull it off."

The record on appeal before Judge Newman and his colleagues shows what Random House, Mr. Posner, and the Second Circuit knew.

The quote does not represent my views about the assassination of President Kennedy. I wish to point out that, before these advertisements appeared, Mr. Livingstone himself had claimed substantial authorship of the book. . . . The fact is that I wrote some portions dealing with the medical and physical evidence; he wrote all of the material concerning theories of political conspiracy.

At the time these advertisements were published and distributed throughout the United States in "The New York Times", I had a new book scheduled for publication in the Fall to mark the thirtieth anniversary of the Kennedy assassination, entitled The Killing of a President. This fact was well publicized in the publishing trade press, most notably "Publisher's Weekly", which is "the bible" of the industry. I believe that the purpose of this advertising campaign was to inhibit the sales of that book, and it did inhibit the sales of both the book and a companion video, "JFK: The Case for Conspiracy." Moreover, after these advertisements were published, invitations for me to lecture, or to appear on radio and television were drastically reduced below the level of previous years. As a result, I was unable to make the personal appearances that are so essential to an author's promotion of a new book. In addition to the losses of sales that I have already sustained, I believe that such damage is likely to continue.

-- Sworn Affidavit of Robert J. Groden dated May 18, 1994 (Groden v. Random House, Inc., et al., Record on Appeal Document No. 11)

19. Finally, we have included among these exhibits VIDEO EXHIBIT 22, an excerpt from an interview of me that was contained in a 1988 British television documentary that twice aired in this country before the publication of the advertisement involved in this action. I was asked to comment upon the list of possible suspect organizations that might have been involved in the assassination, and their motives. I did not state that any single one of these groups was actually involved, neither at any time did I ever state that these groups acted in combination with each other in some vast conspiracy, and I carefully qualified my remarks by saying that the scope of the conspiracy was undetermined. This is completely consistent with my long-held and stated belief that we need to find out "the who" of the assassination. Defendant Posner was aware of this, because he refers to the British documentary in his book. The other defendants were either aware or could have become aware, had they properly investigated. This further proves that the defendants were reckless and/or malicious, and that it was entirely false, misleading, and unfair competition through advertising on their part to attribute to me the quote that accompanied my name and photograph in the advertisement for "Case Closed".

20. I repeat that I wrote a portion of the book, "High Treason," but not the one from which the quote used in the advertisement was taken. I sent my portion to Harrison E. Livingstone, who had his own separate manuscript that he had been unsuccessful in publishing since 1980. Livingstone had copyrighted his manuscript with the U.S. Copyright Office. Livingstone assembled the final manuscript of "High Treason" and took it to a publisher. To the best of my knowledge, there was never any formal registration of copyright in "High Treason" in my name with the U.S. Copyright Office, and in subsequent editions of the book all notice of my separate interest has been removed. Livingstone was unknown to the general public before the publication of "High Treason", and he had not established any credibility with the public on the subject of the assassination before that time. On the other hand, I was previously well-known in this field, and I believe this to be the probable explanation of why my name was used above Livingstone's in the authorship credits of the book.

-- Sworn Affidavit of Robert J. Groden dated October 12, 1994 (Groden v. Random House, Inc., et al., Record on Appeal Document No. 19)

In that second sworn affidavit included in the Record on Appeal, which was partly intended to qualify an annexed video exhibit as evidence, Groden demonstrated that the advertised quote purportedly setting forth his alleged "conspiracy theory" differed significantly from the consistent position he had taken both before and after the publication of High Treason. Groden was referring to a 1988 British television documentary, which Posner discusses on page 468 of the original hardcover edition of Case Closed. The documentary, "The Men Who Killed Kennedy", was shown in the United States almost simultaneously with the publication of the first hardcover edition of High Treason on the thirtieth anniversary of the assassination, with a new voice-over narration by American broadcaster Bill Kurtis on the Arts & Entertainment cable network. I will dedicate the post immediately following this one to what Groden said there because a lengthy excerpt of that video was incorporated into the record of Groden's litigation in both the United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit, and it merits its own detailed analysis. However, just as a "teaser", one of the things Groden said in that interview was: "The fact of the assassination conspiracy is beyond doubt. Only the scope is in question." (VIDEO EXHIBIT 22) (ROA Document No. 19 (Videocassette).

Suffice it to say, until my next post, that Mr. Groden had no theory about political authorship of the Kennedy assassination, and people who have been familiar with his participation in the controversy for decades were well aware that he had publicly refrained from speculating about who was responsible. The body of work for which he was principally known mainly concerned the photographic and film evidence. He is best known for revealing his optically enhanced version of the Zapruder film to the public during the 1970s. The film had previously been sequestered from public view by its former owner, Time-Life, Inc. Groden became the critics' acknowledged unofficial archivist of photographic evidence following the untimely death of collector Richard Sprague of Hartsdale, New York.

The defendants offered no proof that Groden had ever propounded a conspiracy theory similar to the one they affixed to him. They produced no affidavits by anyone possessing personal knowledge to the contrary. Indeed, besides an unsworn declaration by defendants' counsel, they submitted no competent or admissible evidence whatsoever to contradict Groden's sworn statements in the record. I will expand upon this point when I discuss the proceedings held before the trial judge in the lower court.

Let it suffice for now that the issue pertaining to the quote was not so much where it came from, but whether the manner in which Random House presented it to their audience was misleading, since it contained no reference to its source, nor any reference to Livingstone. Neither the defendants nor the courts were ever able to offer any authority for the notion that one named co-author of a collectively written book might be held solely accountable for its entire contents.

Next: "VIDEO EXHIBIT 22". Groden's interview in "The Men Who Killed Kennedy" documentary series, which Posner used and cited as a research source for Case Closed.

The Confession of Sir Harold Evans, Former President of Random House

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Wed, 17 Feb 2010 23:59:00 +0000

Gerald Posner has taken a brutal beating lately, though it doesn't quite show through the Botox. Slate columnist Jack Shafer caught him plagiarizing a newspaper reporter's work (here and here). He lost his job as blogger tycoon Tina Brown's star investigative reporter for "The Daily Beast." He's down and out in Miami. Because Bob Groden's litigation against Random House never directly concerned the substance of Posner's book, Case Closed, but only the manner in which it was advertised and promoted, my first inclination is to leave Posner to lick his wounds. Intending no condescension, Posner's perception of the Kennedy assassination suffers from the fact that he is too young to have formed any political, social or economic consciousness during the 1960s, and so did not experience viscerally the currents of that era Unfortunately, his self-professed poor tracking of research notes raises a question about whether similar sloppiness also manifested itself in that advertising campaign: Is there a logical correlation? I believe so. There is ample evidence, which I will begin to examine in my next post, that Posner was thoroughly familiar with the nature of Bob Groden's prior work on the Kennedy assassination, but that the darts he aimed at Groden landed outside their intended target. Which leads me to Tina Brown's hubby, Mr. Posner's former publisher, Sir Harold Evans. In a book recently published, Sir Harold, who is known to his colleagues as just plain "Harry", boasts that the "Guilty of Misleading" ad campaign was his brainchild. If that is indeed the case, then he may wish to lay blame on Mr. Posner for providing him with faulty information.

(Photo credit: David Shankbone - Creative Commons license)

Evans has very recently published a memoir covering his years as a newspaperman and book publisher, in which he discusses the advertising campaign for Case Closed. ("My Paper Chase: True Stories of Vanished Times," Little, Brown and Company. New York: 2009.) I report it here not because he needs the publicity -- he's more of an expert than I am on that score -- but because it establishes two points: (1) the anti-competitive nature of the campaign, and (2) the extreme handicap that the federal judiciary placed upon Mr. Groden by denying him any and all manner of discovery to buttress his case against the defendants. After a civil lawsuit commences, either of the parties may use the discovery procedures prescribed by the Federal Rules of Civil Procedure to obtain facts and information about the case from each other, or from third persons who are non-parties to the lawsuit. These procedures may include depositions; demands that the other side (or non-parties) produce relevant documents; written interrogatories; and requests for admissions. Such procedures enable the parties to prepare to make or oppose motions and, eventually, try the case before a jury. Evans' memoir makes it clear that the denial of discovery from the outset of the case essentially relegated Groden to pressing his merits with both hands tied behind his back.

A brief word about what was known in 1993-94 is in order: The field of assassination books scheduled for publication in the Fall of 1993 was crowded. In addition to Posner's book, it included Mr. Groden's first, eagerly anticipated solo effort, The Killing of a President. Pre-publication media coverage included such articles as one that appeared in The Orlando Star Sentinel: "The two titles that are likely to command the most attention take opposite points of view. . . . Look for Posner and Groden to duke it out on talk shows." (The Orlando Sentinel, July 4, 1993 Sunday, 3 Star, Arts & Entertainment; Pg. D8.) Earlier that Spring, a major feature article in Publishers Weekly, the industry bible, had previewed the assassination books scheduled for Fall publication. Groden's editor, Michael Fragnito, editorial director of Viking Studio Books, was quoted as follows: "'Robert calls this a howdunit, not a whodunit,' continues Fragnito. 'He's not one of those wacko assassination buffs. His point is that a conspiracy occurred, but he doesn't claim to know who the participants were.'" (Dahlin, Robert, "Assassination anniversary marked by 'definitive' works; John F. Kennedy," Publishers Weekly, May 3, 1993, Vol. 240; No. 18; Pg. 33.) That description of Groden's work will begin to assume large significance in my next post.

It is now evident that Evans worried over the impact of Groden's forthcoming book, and how to make Posner's stand out. He writes:

Everywhere around town when I mentioned that we had a sensation, I got the same response: "Not another Kennedy book! Give us a break!" Bookstore buyers reacted the same way. How could we make people pay attention when the sensation was that there was no sensation? Clearly we had a big marketing problem.

My Paper Chase at 527. And Evans continues:

I became so exasperated, I quite lost my temper over lunch with a publisher from London when I was told yet again that the public had passed the point of satiation on the death of Kennedy. "We're naming the guilty men!" I cried out. The publisher sat up. "You mean the men behind the killing? Wow, that is something!" No, I said, the guilty men are all those who ignored the evidence and misled the world. I was grateful to the publisher. He'd provoked me not a spur-of-the-moment response that might solve the marketing problem. On the napkin I roughed out the outline of an advertising campaign, leading off with a big GUILTY splashed across photographs of the principal propagators of conspiracy. We made that the overture to the campaign, backed up by a special U.S. News & World Report prepublication issue. The result was spectacular."

My Paper Chase at 528. Here was Evans' "overture":

And here is a representative illustration of the four subsequent ads that appeared in The New York Times:

It was all a marketing ploy because booksellers did not want to order the book, believing that the market was satiated. Evans was looking for a dramatic and attention-getting way to publicize Posner's book because Posner had no previous public association with the subject of Kennedy's assassination and was not a widely known author. The keys to Evans' mindset were his passionate antipathy toward critics of the Warren Report, and his urge to sensationalize Posner's book, because he understood there was nothing extraordinary about a book endorsing the Warren Commission's conclusion. He could not sell Case Closed without mounting a standout attack advertising campaign. Interestingly, Evans also reveals that he was warned Random House would be sued for the ads, which may imply his desperation and willingness to risk defying the law for the sake of promoting his precious book. For Evans, the ends justified the means, and he remains unapologetic. It bothers this publishing industry icon none that his despicable tactics succeeded in suppressing another writer's work, or that his outrageous publicity campaign distracted public attention away from the National Archives' release of the files of the House Select Committee on Assassinations. Were these among his conscious objectives? Where others would try to hide their shame, Evans beats his seething breast with pride. The cruel irony of it all is that Evans has been known to castigate his fellow journalists for insufficient skepticism about official pronouncements, e.g., for "drinking the Kool-Aid," yet he cannot explain why the mainstream media in the United States obsequiously adopted the Warren Report and failed to conduct their own investigations of the assassination.

"We'll Be Here For the Rest of Our Lives", Part Two

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 12 Feb 2010 21:51:00 +0000

"Jon [O. Newman] is the smartest man I have ever met, and the most supportive and helpful colleague a person can have. He is beloved by all in our Circuit."

-- Sonia M. Sotomayor, "No Lawyer, Bad Lawyer - What's a Judge to Do?," Jon Newman Annual Lecture on Law and Justice, University of Hartford, October 20, 2008. pg 1.

Last time, we considered a hypothetical in which the publisher of one author's book advertises it by attacking a competing author, using his photograph without permission, and lifting a quote out-of- context from one of the target author's prior works, which the ad does not name, and which actually turns out to have been a collaboration between the target and another writer whom the ad campaign does not identify. Prospective buyers looking at the ads have no way of knowing this, and naturally assume that the target author (me) was quoted fairly and accurately. Why did my competition attack me, instead of my former co-author? Why did they use my photograph in their ads instead of his? Because, by following the trade press in the publishing industry, they knew that my competing book was also coming out. Anticipating the upcoming Christmas/Hannukah bookselling season, they hoped to boost their own sales, while hurting mine, by attacking me.

To read Judge John O. Newman's Opinion for the United States Court of Appeals for the Second Circuit in the case of Robert J. Groden v. Random House, The New York Times, and Gerald Posner, you would not know that a case matching this hypothetical fact pattern had actually occurred. You would have no inkling that Groden and Posner had new books competing with each other in the market for books observing the thirtieth anniversary of President Kennedy's assassination. Posner's book was entitled Case Closed; Groden's, The Killing of a President. Judge Newman didn't want you to know about Groden's new book. Although we'll examine it in considerable detail as we journey together, for now take a quick look at his Opinion with the following limited objective: see if you can find any mention there of Bob Groden's book, The Killing of a President, (Viking Penguin: 1993). No? It's no surprise. Indeed, Newman didn't mention it at all. One of several things Newman didn't want the world to know, and thought he could hide because, when he wrote his Opinion in 1995, he was writing for a limited audience of lawyers and judges, and did not contemplate the impending reach of the World Wide Web, was that Mr. Groden was competing directly with Mr. Posner to sell books during the peak gift-giving season of 1993. See, Mr. Posner had emerged quite rapidly, and with great fanfare, as the "anti-conspiracy" star of the mainstream news media, and this was a case that deeply touched the legacy of Judge Newman's beloved mentor and former employer, the late Chief Justice Earl Warren, who had headed the Warren Commission's "investigation" of President Kennedy's assassination, and who had employed Newman as his senior law clerk at the United States Supreme Court.

What Random House had done, without telling its advertising audience what it was doing, was to lift a quote from a 1989 book that credited Harrison E. Livingstone and Groden as co-authors, but they omitted any mention either of Livingstone or the title of the work; neither did they inform readers of their advertising campaign about the dual authorship; nor did they inform readers the Livingstone claimed sole ownership of the copyright to the 1989 book. Groden was quoted as touting a convoluted political conspiracy theory about the Kennedy assassination that was unrelated to the new book he was bringing to market in 1993. And it just so happens that he was neither the author of the quote that Random House pinned on him, nor responsible for that quote appearing in the 1989 book, High Treason. In fact, he had no control over the final published manuscript of that earlier book.

In this blog, I will be devoting considerable early emphasis to the use of the alleged Groden quote in the advertising campaign for a reason: As I continue next week to unveil the record of the litigation pertaining to the quote, it will soon become apparent that the defendants faced a hurdle in their effort to win dismissal of the case, a serious deficiency in the form of their Motion for Summary Judgment that compelled them to risk an eleventh-hour tactic to switch the focus of the case to the substance of the Kennedy assassination controversy, thereby creating an emotional distraction from the key legal issues. I will then begin to show how the federal judges at both the district and circuit court levels helped the defendants to overcome that otherwise fatal defect in their presentation in ways that made a confrontation between Groden and the federal judiciary over the crime of the 20th century virtually unavoidable.

It would be tempting to write that the United States Court of Appeals for the Second Circuit suffered from a mental block in drawing any distinction between Groden and other so-called "conspiracy theorists" targeted by Random House's advertising campaign, but that would not be faithful to the record, and it would be the whole truth. For the Court, knowing that Groden had his own unique issues, distinct from the other targets of the ad campaign, nevertheless refused to reveal, let alone concede, any relevance to his individual standing as a direct competitor vis-a-vis the Posner book.

To the Second Circuit court, Groden occupied the status of an abstraction -- i.e., one of six so-called "conspiracy theorists" depicted in the ad campaign -- not of an individual litigant pressing his own grievance. The Court's seeming inability to transcend the pejorative "conspiracy theorist" stereotype and differentiate Groden from the others depicted in the ad campaign was quite telling. Indeed, the "conspiracy theorist" denomination was a shorthand emblem that the Court appeared unable to shake off. I will expand on this crucial point in future posts.

Both in his original and amended Complaints, Groden had more than adequately alleged the anti-competitive nature and intent of the Random House advertising campaign -- a key issue that could not be resolved without pretrial discovery and/or a trial on the merits. The Second Circuit's omission of any mention of The Killing of a President, and its omission of any allusion to the anti-competitive intent of the ads, were deliberate and instrumental in accomplishing their goals, one of which was to evade an important issue in the case: whether the Random House advertising campaign was a deceptive and misleading attack against the nature and quality of a competitor's product (i.e., Groden's book) to promote their own (Posner's Case Closed). Hiding from their readers the existence of Groden's competing book allowed the Second Circuit court to avoid grappling with Congress's intent in the Lanham Act. It was a clever bit of legerdemain. By denying its audience the contextual setting of two authors competing to sell their new releases to the relevant market, the Court not only betrayed its preference for one side of the dispute, but also threw the permissible legal boundaries of negative comparative advertising into uncertainty. That omission, however, was merely one part of a tapestry of judicial bias, fraud, multiple misrepresentations, and deceit; which form the Second Circuit's tragic legacy to the law profession and history. For what the Court was actually trying to accomplish with their Opinion in the Groden case was to conceal their true aims: to protect the reputation of Earl Warren; to protect a federal district court judge who had seriously faltered in his responsibilities to evaluate all the evidence; and, more generally, to protect the reputation of the federal judiciary, by preventing the Random House advertising campaign from becoming the focal point of a public trial to determine whether or not John F. Kennedy was assassinated by more than one man. Barring the courthouse door to Groden and his attorney would foreclose any potential threat that they might prove to a jury in a federal court the existence of a conspiracy in the assassination. Fear and dread of the mere possibility this might ensue were Groden's lawsuit to be allowed seem to have weighed heavily in the Second Circuit Court's Opinion.

Concealment of the context in which Groden v. Random House, Inc., et al. arose affords us only an introductory glimpse, however, at how Jon Newman and his colleagues on the Second Circuit court evaded their dialectical burden and employed highly questionable strategic maneuvering in attempting to justify their decision of the case.

Before fully dissecting the malice and malfeasance of the Second Circuit, it will be useful to reveal the origin of the Random House advertising campaign so as to leave no doubt as to its wrongful and injurious intent. New evidence has just emerged in this regard. It is startling, and I shall cover it in my next post -- when we return from the President's Day weekend break. Coming up next: "The Confession of Sir Harold Evans," former publisher of Random House, and the man who now claims responsibility for creating the "Guilty of Misleading the American Public" advertising campaign.

"We'll Be Here For the Rest of Our Lives", Part One

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Thu, 11 Feb 2010 20:46:00 +0000

It would be helpful in illustrating the nature and thrust of the Groden case to propose a parable that completely divorces it from the underlying subject matter, President Kennedy's assassination.

Let's say hypothetically that I'm a professional writer. Paul Shaffer, the bandleader for David Letterman's late-night talk show, comes to me and says: "Rog, I've always wanted to publish a book, even though I'm not a writer, I'm a musician. Actually, I tried my hand at this a number of years ago and produced a manuscript, but I couldn't get a publisher interested. I have lots of stories to tell about the people I've met and the experiences I've had in the entertainment business, but I'm so busy now that I need your help. You've had experience helping other people write their show business memoirs, so I'd like to give you all my material, all my recollections, and you can shape them in into a book. You won't be my ghostwriter; you'll be named on the cover of the book as my co-author."

And so, my name goes on the cover of the book, "We'll Be Here for the Rest of Our Lives" by Paul Shaffer with Roger Bruce Feinman." (In real life, Shaffer used a professional writer, David Ritz, as his co-author.) Now, I may not know Paul Shaffer as more than a mere acquaintance and ad hoc business partner. I can't vouch for the accuracy of the material he's given me; I have to take his word for things. But I'm earning money by making Shaffer's prose shine and helping him live his dream of writing and publishing a book. Did I forget to add that Paul Shaffer and his corporation own the copyright to We'll Be Here For the Rest of Our Lives? I was paid for my contributions, but the book belongs to him. For people who are interested in this sort of thing, it's both an entertaining and informative book. Shaffer's many anecdotes include his relationship with Jerry Lewis, the actor, director, and comic genius. Let's bring that aspect of the book front and center.

Several years pass, and I realize, "What am I doing helping other people write their books? I could write one all by myself!" So, I write my own show business book -- a biography of Jerry Lewis. My name appears on the cover as sole author. Now, Random House, knowing that I have a proven track record as a writer, decides to publish a competing book about Jerry Lewis. In a negative comparative advertising campaign for their book, Random House lifts a quote about Lewis from the earlier book that I wrote with Paul Shaffer and attributes that quote to me without telling their audience where it came from. In other words, neither Paul Shaffer nor the book, We'll Be Here For the Rest of Our Lives are mentioned in the ads. They quote me as having said about Lewis, "All Jerry wants is a dollar more." (By the way, that's an actual quote from Paul Shaffer's book.) Sounds cheesy, doesn't it? The way they lift that quote out of context, it appears as though I'm trashing a great show business icon. To reinforce their advertising message, Random House somehow manages to find a photograph of me and, without asking my permission, they stick my photo next to that quote in their advertisements. They identify me simply as "author". To readers of the ad, it looks as though I have written a book that demeans Jerry Lewis, which was neither my intention nor an accurate reflection of my stated views about him.

"Wait just a gosh darn minute! You're sticking what Shaffer said about Lewis on my forehead and telling people that's what I said about him. 'Don't buy Feinman's book! It's not true! It's an insult! Buy our Jerry Lewis book instead!"

Now, that is confusing. First, it's confusing because the ads don't tell the reader where the quote came from. Second, it's confusing as to the source of the quote about Lewis because, in the earlier work, I was essentially Shaffer's mouthpiece; yes, I helped him; yes, my name was on the cover of his book as the co-author; and yes, that's a verbatim quote from the book that Shaffer and I worked on together. However, I wasn't the guy who actually said what appears at first glance to be something terrible about Jerry Lewis. Third, by implication, the ads misrepresent the nature, characteristics, and qualities of my own current book about Lewis -- the one that Random House is afraid of and trying to beat -- and at the same time constitute a false and misleading attack against my individual work. I never meant to denigrate Lewis then, nor did I, nor have I done so now . The ad misrepresents what I (we) said about him, and it misrepresents the laudatory nature of my new book. Sales of my current book will suffer because people won't want to read it.

Section 43(a) of the Lanham Act provides in relevant part:

"Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which--

"(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

"(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."

15 U.S.C. § 1125(a) [15 USCS § 1125(a)].

In 2003, the Supreme Court of the United States decided that the word "origin" in sub-section (a) of the statute could not be applied to a case in which communicative products, such as film documentaries, had lost their copyright protection and fallen into the public domain. Once in the public domain, an artistic work might be subjected to successive adaptations, condensations and revisions, so as to make questionable the attribution of authorship. Such loss of copyright diluted a party's right to claim authorship of an artistic work, making it difficult to trace, and therefore made misrepresentation of authorship a problem of (in the words of Justice Scalia) "search(ing) for the source of the Nile and all its tributaries". But that is not our case here. Random has attributed a quote from a copyrighted book to a sole "author" who was actually only a "co-author" (and not the copyright owner) of another book, deliberately omitting any mention of that source product, and in a way that also misrepresented the nature, characteristics, and qualities of my work.

Again hypothetically, Random House defends itself:

"We took the Feinman quote in our advertising campaign directly from the earlier book that he co-authored with Paul Shaffer. True, we did not mention the title of that book and Shaffer, but that is of no consequence. Have you never heard of Google? Amazon? The truth is out there for people who are willing to look for it. The fact that our own book does not reproduce the same quote in text is also irrelevant. The ads themselves are relative to the subject matter of our own book about Jerry Lewis. They indicate to the prospective buyer what s/he may expect from purchasing the book. Thus, the ads cannot be deemed false or misleading, and there can be no liability under the Lanham Act."

Let's look at this hypothetical situation from slightly different angles: Does the fact that, five years ago, my name appeared with someone else on the cover of a book signify that we agreed with each other on all points, or that I adopted and agreed with every single statement that was contained within it? Even if your answer is yes, does that entitle a competitor to lift a statement out-of-context and attribute it to me alone without any indication of where he found it, i.e., his source? Now let's add a new wrinkle to the problem: Suppose that We'll Be Here For the Rest of Our Lives displayed not one but two separate copyright notices -- Paul Shaffer's bore the dates 2000 and 2009, mine bore only the date 2009. Clearly, we did not write that book together at the same time. Is it easily conceivable that two authors having limited time to spend simply decided to divide the labor between them? That they each wrote separate portions and copyrighted them separately? What if Shaffer had supervisory control and final editorial approval of the contents? Would a consumer reading Random House's ad for its Jerry Lewis book be entitled to that information when deciding which Jerry Lewis book to spend his/her money on? And, if the reader of the ads is left with a misleading, negative impression of the nature and quality of my work as a solo writer, is the Random House ad campaign underhanded in concealing that information from the prospective consumer?

Finally, I don't know where they got that awful photograph of me. They never asked my permission. It was some sort of casual snapshot taken by an amateur photographer. I hadn't shaved. My hair was unkempt and needed trimming. It makes me look as though I'm grinning like an idiot while dissing Jerry Lewis. What gave them the right to capitalize and trample upon my personality -- including my commercially valuable image -- in an advertisement to sell their book?

By now you may be thinking, "what does this have to do with the assassination of President Kennedy?" This is the story of how a real-life lawsuit over an advertising campaign for a book about the Kennedy assassination exploded into a confrontation over the truth or falsity of the Warren Commission Report, how a group of federal judges desperately fought to prevent that lawsuit from ripening, and how, with that objective, they managed to circumvent the core issues that I have managed only to introduce. It's about how a book favoring the Warren Report was promoted, while its counterpart, a book arguing that the case was not closed after all, was suppressed with the official blessing of the federal judicial branch of government. It will all unfold during the coming weeks and months. For now, let's chew on these questions about book promotion a bit and we'll pick up with Part 2.

Guilty of Misleading the American Public

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Tue, 09 Feb 2010 23:44:00 +0000

“In war truth is the first casualty.” -- Aeschylus (525 BC - 456 BC).

This blog chronicles the reception given by United States federal courts sitting in New York to the critics of the warren Commission's Report on the assassination of President Kennedy when an individual among them, Robert J. Groden, tried to prevent a publisher's profiting from his public recognition value by including Groden's name and photograph in a negative comparative advertising campaign for a book, "Case Closed" by Gerald Posner -- an ad campaign in which the publisher, Random House, claimed to have proved that President Kennedy was assassinated by a lone gunman, and that critics of the Warren Report such as Groden were "guilty of misleading the American public." If only one main idea were allowed to encapsulate this blog, it might be that public skepticism of the Warren Report's conclusions and suspicions of a government cover-up are wholly borne out by the manner in which the federal judiciary quashed this individual's attempt to vindicate the same rights accorded others -- and by the law profession's sycophantic deference toward that action -- simply because he stood as a prominent opponent of the government's official position, or as the more vulgar-minded are wont to put it, "a conspiracy theorist".

There can be no question that the purpose and intent of the advertisements were to promote "Case Closed" by discouraging public patronage of Groden as an author, lecturer and video producer and destroying the economic viability of his expressive and communicative activities. Groden was in direct competition with the Posner book as author of his own book, "The Killing of a President," (Viking/Penguin, New York: 1993) in the hardcover market for assassination books during the Fall season of 1993. Without his permission, Random House used a snapshot of Groden as one element of a "rogues gallery" array of so-called "conspiracy theorists". Groden was directly attacked by the Random House advertising campaign. It accused him of consciously misleading the American public, referred to him as an author, and invoked his identity as one who had allegedly asserted the existence of a widespread and heavily populated political conspiracy in the assassination. Falsely attributing to Groden the principal -- indeed, the sole -- authorship of the theory, the Random House ad campaign misinformed its readers of the nature, substance and main theme of Groden's body of work, and the nature of his competing book, by pinning a quote on his forehead in a manner that was misleading, untruthful, unfair, and anti-competitive: The obvious purpose of the advertisements' claim regarding Groden was to preempt and divert book sales from one author to the other. Groden was damaged in the bookselling market as a result, and sustained additional commercial damage due to the ad campaign. Finally, the campaign flatly asserted as a fact that President Kennedy was assassinated only by "One Man. One Gun," thus reinforcing its overall tenor as an attack ad against people purportedly deserving of reprobation.

When the ad campaign appeared, during August 1993, the publishing industry was anticipating the 30th anniversary of the assassination and the Christmas/Hannukah/Kwanza gift-giving season, a traditional boon to the book-selling business. (Adding interest to the anniversary, the Assassination Records Review Board, a quasi-official committee which the U.S. Congress had established via the JFK Records Act of 1992, released its first batch of declassified documents, including the investigative files of the House of Representatives Select Committee on Assassinations.) Accordingly, Groden's lawsuit against Random House, The New York Times (which published the advertisements), and Case Closed's author, Gerald Posner, was cast in the nature of unfair competition, false or misleading advertising, and misappropriation of his persona in a commercial advertising campaign whose sole objective was to sell books. The choice of these avenues toward remediation was deliberate: to maintain focus on both the commercial gain and the commercial harm intended and engendered by the advertising campaign, rather than any coincidental dignitary interests (i.e., "hurt feelings") that were implicated, such as libel, the infliction of emotional distress, or false light invasion of privacy. (Groden's domicile, Pennsylvania, recognized the latter tort; New York does not.) The fact that the ad campaign indeed defamed Groden as a person was merely collateral to the damage that had been done to him as a producer of books and videos in the commercial marketplace by unfair competition. The essence of his argument was that he was entitled not to be compelled to put his personal reputation in issue as a price for protecting his right of access to consumers in that market, but to instead focus on the commercial nature of the damage he sustained. In this way, the issues posed to the courts were direct and clear, keyed mainly to such statutory trade regulations as the federal Lanham Act Section 43(a), and the New York Civil Rights Law Sections 50-51, but also to the developing federal common law "right of publicity," which added an interpretive gloss to these statutes. Simply put, the courts were asked to decide whether literal application of the same rules that the Second CIrcuit (and New York State courts) had applied in previous cases to Mr. Groden's case would be fair and reasonable or, if not, then to please explain why his case should constitute an exception?

The overall messages of this blog are three-fold: (1) Even decades after the event, fear of the Kennedy assassination and its implications for public confidence and political stability persist as a deep-seated, reflexive, and practically pathological aversion among the power elite of the United States, and will likely endure so long as the assassination remains a subject of living memory. (2) The federal judiciary's disposition of Robert Groden's lawsuit bespeaks this ongoing dread. It was accomplished through fraudulent devices and with malicious intent. (3) Existential value, hilarity, and deep self-satisfaction are to be found in exposing to public gaze those who are truly guilty of misleading the American public, and their frustration (indeed, their impotent rage) at the inability of government and its sycophants to assuage public doubts about the assassination.

In examining how far the federal judiciary was willing to go to deprive Groden of any remedy for commercial defamation, false or misleading advertising, or the use of his image without consent to attack him and tarnish his own ability to reach the public, I will explore four broad themes: First, the courts' intentional manipulation and falsification of the procedural incidents of federal civil litigation, including but not limited to false judicial reporting of the facts of the case; intentional concealment of conflicting assertions of fact in the record that warranted a trial-by-jury of the action, rather than summary disposition by judges; their refusal to receive relevant evidence, their denial of any discovery procedures, and their dismissal of Groden's claims relying upon incompetent and inadmissible evidence proferred by the defendants; second, the courts' expansion, manipulation, and obfuscation of the substantive legal doctrines pertaining to Groden's claims, and their evasion of questions directly and unambiguously posed; third, the federal judiciary's dread of the mere potential that President Kennedy's assassination would be exposed via a jury's verdict as the result of a conspiracy that went unpunished, a last-minute alarm bell and demonic shadow that was first cast by the defendants in the U.S. district court to distract from a shortcoming in their defense that, in any other case, might have proved fatal; fourth, and finally, the federal judiciary's attempts to deflect accountability and responsibility for what, considered on the whole, constituted a fraud by the judiciary upon the public and the particular litigant involved, and a scandalous perversion of due process of law. The overall thrust of my analysis will be to show that these actions by the judiciary were purposefully directed at mischaracterizing Groden's legal claims and preventing him from pursuing any conceivable avenue to recovery that threatened to expand into a jury trial over the truth of the Warren Report, a desperate challenge posed by the defendants (we will also learn how Mr. Groden and his attorney answered that challenge, only to encounter the Second Circuit court's smug derision and contempt). To that end, the federal judiciary was fixed upon employing virtually any means necessary, no matter how devious, unscrupulous, unprincipled, and underhanded, to prevent Groden from fully presenting his claims. Since this is not intended as a blog dedicated to law, but one of general interest, I will develop these themes in terms hopefully accessible to a lay audience. Before beginning, however, it would be appropriate to contextualize my subject with two general observations:

(1) The United States Court of Appeals for the Second Circuit played a role of internationally-acknowledged significance in recognizing, as early as 1953, a common law "right of publicity" to prevent exactly the kind of commercial misappropriation of an individual's name and likeness as occurred in the Groden case forty years later. Although embraced to an extent (commercial misappropriation of name and likeness) by The New York Civil Rights Law, the right is not yet universally accepted; indeed, there remain differences even among the American state jurisdictions as to its efficacy. With the possible exception of Ontario, readers in the United Kingdom, accustomed as they may be to English common law, may find my frequent references to this "right" counterintuitive because these countries have resisted the synthesis of a comparatively recent tort out of an amalgamation of pre-existing theories of intellectual property, privacy, and dignitary interests. Nonetheless, Groden's case marked a unique disruption of the juridical development of this right in the United States, including the Second Circuit itself. This, plus the general nature of the subject matter, i.e., the controversy surrounding President Kennedy's assassination, make the case, therefore, an appropriate subject of close scrutiny.

(2) It is generally assumed that our judicial system ensures the integrity of the courts because it requires them to explain the reasons for their decisions and provides multiple levels of review. On the other hand, this blog will show how these assumptions fail completely when courts intentionally falsify the facts of their decisions. I shall prove wide and irreconcilable discrepancies between, on the one hand, the public justifications offered by the Groden courts for their decisions and, on the other, the actual, officially certified contents of the court files that these judges had in front of them at all levels of responsibility. The emphasis here is on exposing dishonesty in the manner through which conclusions were reached. There were no errors or misunderestandings of the official underlying court record; instead, deliberate, knowing and intentional lies and falsehoods about that record -- a record that exists in black-and-white (together with appurtenant video exhibits) but is available only to those who are willing to incur the time and expense to examine it -- were told by judges at both the trial court and appellate court levels.

At this point, so many years after Dallas, one must ask: Why? What are the stakes? What drives men to recklessly -- and, I would go so far as to say, stupidly -- place their own reputations at risk in order to thwart the exposure of an official fiction that has long outlived its viability or utility, and which the rest of the world regards with ridicule and derision? Whatever the answer is, it lies outside my comprehension. My only recourse, therefore, is to dissect the elements of bias, concealment, and deceit that stand as a microcosm of the U.S. government's official response to John F. Kennedy's assassination, a policy of stonewalling that has persisted forty-seven years to the present day. By implication, the Groden case emblemized that policy, a conclusion reinforced by the federal judiciary's bootstrapping of the Second Circuit's Opinion in Groden v. Random House, Inc. et al. as a purportedly valid legal precedent in subsequent cases. It is my intention to disrupt a chain of legal precedent that was corrupted from the outset by outright judicial lies and blatant fallacies. Therefore, it is apropos that, after detailing the evidence that was adduced in the official court record by Groden and his attorney in the litigation against Random House, we ought to begin the process of assigning responsibility and accountability to those public officials, living or dead, who intentionally denied the public a clear picture of (a) how their president was murdered, (b) who tried to expose the facts, and (c) who tried to cover them up.

The question what plain, ordinary citizens can do about it at this late date is somewhat more vexing, however, before I retire this blog I will attempt to propose some remedial measures. These will include constitutionally permissible legislative reforms of the federal judiciary, and the creation of a "truth commission" to settle a controversy that has poisoned public discourse in America for too long. Meanwhile, if this blog serves no other purpose than to focus public attention upon official acts of malice, malfeasance, deception, and betrayal of the public's trust, then it will have succeeded.

My policy on comments

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 05 Feb 2010 21:32:00 +0000

There are many blogs and discussion forums on the Web where people propose and debate their theories about the assassination of President Kennedy. This is not one of them. What makes this blog unique is that I will be discussing the assassination from the perspective of a lawyer who attempted to deal with that subject within the framework of America's federal judiciary and its rules of procedure and evidence while representing a real client against real adversaries in front of real judges. This is an undoubtedly controversial blog about controversial subjects: the law, the federal judiciary, and the assassination of John F. Kennedy. It is intended to be read, discussed and debated, but not necessarily in this space. To avoid spam and simplify administration, I have disabled comments, although I may open them up occasionally when a particular post invites responses. In the same manner as the early days of Josh Marshall's Talking Points Memo, I may acknowledge worthwhile e-mailed comments, links, or questions anonymously (author's initials only) within posts, so long as they include the writer's real name. I do not dispense advice on personal legal matters and will not respond to requests for same.

The "Justice at Five Points" Video Series

noreply@blogger.com (Roger Bruce Feinman, J.D.) — Fri, 29 Jan 2010 22:23:00 +0000

"Justice at Five Points" is the title of a lecture that I gave at the Duquesne University School of Law (Pittsburgh, PA) in November 2003. I have re-edited the production video and posted it on YouTube in five parts. That not only complies with YouTube's limitations on length, but also makes it more accessible to viewers with limited bandwidth. It is an "evergreen", which means that it is still up-to-date, but it was intended as an overview, not a comprehensive discussion, of the subject of this blog, where I will be expanding on the finer points of the presentation. Here are the links:

Part One

Part Two

Part Three

Part Four

Part Five and Conclusion

My voice was a bit weak from a November cold in this presentation, and I apologize for that. Dr. Randy Robertson graciously consented to let me include some snippets from his own presentation in this re-edited video, which greatly improves the clarity and continuity. I will discuss the importance of Dr. Robertson's work here in the near future. Please note that Parts 2, 3, and 4 contain graphic images pertaining to the medical evidence in the JFK assassination, and may upset young children and sensitive adults.