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.
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".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.
(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."
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.
