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

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

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

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

(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)

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)

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)

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.