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.
