Recapitulation and Appraisal 1: Raising the Veil of Judicial Bias

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

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

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

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

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

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

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

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

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

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

Still, we have far to go, and I regret to forewarn readers that the trend will only worsen. I have merely scratched the surface of the mentally and morally sick frolic that the federal judiciary made out of thrashing a well-known critic of the Warren Commission. The studied craftsmanship -- the self-absorbed assurance of their own excellence -- that they dedicated to this enterprise clearly entailed much advance brooding and creative energy. The case on the whole offers a master class in judicial evasion and obfuscation. It demands commensurate patience and care to dissect and expose the anatomy of a cruel hoax, and to understand that its import ranges beyond the specific outcome of one man's lawsuit. For this reason, I posted hyperlinks to the "Justice at Five Points" video series on the sidebar of this blog so that those who are impatient to confirm their fears of a conspiracy in President Kennedy's assassination may gratify themselves on that score without further delay. Since I will get to the assassination itself in due course, there is no need for haste in exposing this sham. What I am documenting here is no mere perversion of critical discussion in the context of adjudication, but a calculated scheme which, in future history's overview of the assassination controversy, may well be regarded as having deprived the survivors of that event our last opportunity to obtain a small measure of closure.
 
For now, I prefer to dwell upon the method, the cunning, and the preening conceit of these pompous, life-tenured pigs who sit on our most powerful courts. Having mixed the cocktails and passed around the hors d'oeuvres, having served slivers of their diseased brains for an appetizer, my intention -- figuratively speaking, of course -- is to marinate them, rub their skins with many freshly crushed cloves of garlic, roast them slowly to conserve their juices, baste them with a fruity sauce , prepare a generous array of side dishes, concoct a flavorful sherbet to refresh the palate between courses, carefully peruse my cellar to select a fine wine, ensure that the cupboard is well-stocked with after-dinner mints. I have set the table for a long and elaborate affair. Hannibal Lecter or Rachel Ray? I am merrily preoccupied with my hosting duties, so you decide. In any case, let us banquet together.

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

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

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

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

Relevant Links:

Sunstein and Vermeule, “Conspiracy Theories” (monograph)

Guilty of Misleading the American Public

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

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

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

Video Exhibit 22

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

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

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

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

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

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

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


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

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

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

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

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

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

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

Finally, Groden challenged the Second Circuit with these questions:

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

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

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

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

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

Video Exhibit 22

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

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

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

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


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


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

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


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


Some people may regard this difference as unimportant, e.g., Groden believes there was a conspiracy, therefore, he is a "conspiracy theorist", and the details of his belief system are of little consequence. However, to one who is highly concerned about appearing sober, credible, and persuasive to his audience; is vulnerable to the "assassination sensationalist" and "conspiracy theorist" stereotypes; and is also justifiably concerned about protecting the integrity of his message in the commercial marketplace of ideas, the difference in messages is quite substantial, and the same may be said of his audience and their receptiveness to the message as well. This was the heart of Groden's matter against Random House, The New York Times, and Mr. Posner. This was the essence of their misrepresentation: the presentation of Groden as "author" of a widespread political conspiracy when, in fact, he has merely demanded of the government a plausible answer to the question, "Who killed President Kennedy?"
 
The crux of the issue Groden raised was that, if he didn't write the words attributed to him in the advertisement, and they do not reflect his views, then the advertisement mischaracterized the nature of his commercial activities, was therefore false, and damaged him.
 
Next: Copy-Right, Copy-Wrong, and Intentional Fraud by the U.S. Court of Appeals

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Photo credit: David Shankbone - Creative Commons license)

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

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

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

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

My Paper Chase at 527.  And Evans continues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again hypothetically, Random House defends itself:

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

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

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

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

Guilty of Misleading the American Public

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

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

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

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

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

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

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

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

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

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

My policy on comments

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