January 21

Freedom of Speech & Defamation

Our last article concerned the First Amendment, specifically the freedom of speech, and the standard of proof to establish whether someone runs afoul of the First Amendment. Today we’ll focus on the issue of defamation, and discuss when untruthful publications fall outside the First Amendment’s scope of protection. Consider the highly publicized case of defamation, based on a fictitious sexual assault, alleged to have occurred in 2012 at a University of Virginia fraternity. A brief background follows.

“Jackie,” an 18-year-old freshman at UVA, claimed she was invited to a fraternity party where she alleged to have been gang-raped for several hours by seven male college students. According to her initial account of the incident, Jackie’s friends convinced her not to go to the hospital, and she did not immediately report the supposed rape. In fact, according to her first version of the story, two weeks thereafter, Jackie ran into her perpetrator and thanked him for inviting her to the party. Near the end of her freshman year, Jackie did report the allegations to UVA’s administration, though she declined to pursue criminal charges.

By 2014, in her junior year, Jackie still had yet to file a criminal complaint. Around that time, a reporter for Rolling Stone magazine, Sabrina Erdely, made contact with Jackie. Ms. Erdely heard of Jackie’s story and subsequently published an article purporting to expose a ‘rape culture,’ and an indifferent administration at UVA. Soon thereafter, Rolling Stone found itself under scrutiny by journalists who identified glaring discrepancies and inconsistencies in Jackie’s story. Rolling Stone was later forced to concede they never interviewed the friends who supposedly came to Jackie’s aid, nor did they interview the alleged male offenders. No one from Rolling Stone even attempted to do so. Remarkably, however, Rolling Stone, stood by Ms. Erdely’s article, insisting Jackie’s story was legitimate and was adequately fact-checked. According to The Washington Post, however, Jackie’s story was simply not credible, and contained conspicuous irregularities that were demonstrably false.

After the story was shown to be a fabrication, and Rolling Stone exposed for journalistic sensationalism, the magazine eventually issued an apology. The Columbia University Graduate School of Journalism conducted an independent review of the magazine’s reporting. It was determined that Jackie lied about the rape story for her own benefit. Columbia University called out the article’s many conflicts and Rolling Stone’s journalistic misconduct, naming the story the winner of “this year’s media-fail sweepstakes.” Finally, five months after publication, Rolling Stone retracted the article in its entirety.

Several people then sued for defamation. On May 12, 2015, Nicole Eramo, UVA’s associate dean, who at the time handled sexual assault issues at UVA, filed a $7.5 million lawsuit against both Rolling Stone and Ms. Erdely. Ms. Eramo claimed damage to her reputation and emotional distress, and claimed that both Rolling Stone and Ms. Erdely acted willfully and wantonly by publishing the article. On November 4, 2016, a jury found Rolling Stone and Ms. Erdely liable for defaming Ms. Eramo, and awarded damages of $3 million.

The First Amendment’s free speech protections have limits. Ms. Erdely published a damaging story about a sensitive topic, without fact checking or interviewing individuals with supposed direct involvement in the story. All of which goes against everything the First Amendment stands for. The First Amendment protects individuals’ right to free speech, but it does not protect assertions of objectively false facts, nor does it protect statements made with knowledge that they are false or made with reckless disregard for whether they are false or not. It is not o.k. to merely hear a scandalous story, then publish it without verification. To do so can have devastating consequences for innocent people.

Ms. Erdely relied solely on the unverified story of a 20-year-old student, and published her story for millions of people to read. Her conduct grossly violated the most basic of journalistic standards, and violated the rights of others. The First Amendment cannot and will not protect people who blatantly disregard the truth. Absent these limitations, anyone willing to engage in falsehoods might otherwise do unanswerable harm to the lives of others.

July 19

Update – The Legalization of Medical Marijuana in Ohio

A few weeks ago we wrote an article that detailed the various levels of legalization of marijuana in the United States, and focused on the trend toward legalization of marijuana overall. At the time, Ohio had just voted down Issue 3, and was without any form of legalized marijuana. Within the past couple of months, however, there’s been a change of events. In May, Representative Stephen Hoffman of the Ohio House of Representatives, proposed House Bill 523, called “Marijuana- Authorize Use for Medical Purposes.” The overwhelming majority, in both the House and the Senate, voted in favor of passing the bill, after which Governor John Kasich signed and approved the bill.

House Bill 523 will go into effect on September 18, 2016, at which time the state of Ohio will commence the process of creating a Medical Marijuana Control Program, which will regulate the medical marijuana industry.

The bill calls for the formation of a 14-member Medical Marijuana Advisory Committee, that will advise the Department of Commerce and the Pharmacy Board as they set up all aspects of the bill. The Advisory Committee will expire within 5-years, and 30-days of the bill’s effective date. With the Advisory Board’s guidance, the Department of Commerce and Pharmacy Board, will create the Control Program through rules that must be established within 1-year of the bill’s effective date. After the rules are established, the Department of Commerce and Pharmacy Board will set up cultivators and the other aspects (dispensaries, laboratories, etc.) needed to help the bill function properly.

Once the bill is in effect, it will allow physicians who wish to prescribe medical marijuana to their patients to participate in a program to become certified. After a physician is certified, they will be able to prescribe marijuana to their patients who qualify for medical marijuana treatment. The list of diseases and ailments that will qualify includes both mental and physical illnesses, and ranges from Crohn’s disease and post-traumatic stress disorder, all the way to cancer and AIDS.

Qualifying individuals will not be able to access medical marijuana in Ohio until the Control Program and all of the steps outlined in the bill have been completed, but there is a deadline in place. The state of Ohio must have the Control Program, and everything else established and in place, within 2-years of the bill going into effect. Essentially, the bill will be effective in its entirety on or before September 18, 2018. Further, on September 18, 2016, individuals with medical conditions listed in the bill will legally be allowed to travel to a state with an already established medical marijuana system, purchase marijuana, and transport it back to Ohio.

House bill 523 places other restrictions on medical marijuana. There will continue to be a ban on smoking marijuana, and also on growing marijuana at home; both of these will continue to be illegal. Those using medical marijuana will be able to use marijuana oils, edibles, patches, and other methods approved by the Board of Pharmacy. Another restriction of the bill is the fact that the bill will allow employers to enforce a drug-free workplace and will also allow employers to legally terminate an individual for a violation of the employer’s drug-free policy, due to the legal use of medical marijuana.

House Bill 523 in its entirety is over 80 pages, but it boils down to pretty simple terms. Ohio has a few hoops to jump through, and a few timelines to meet, prior to having medical marijuana regularly accessible in Ohio; however, House Bill 523 will ultimately lead to a legal and safe method for qualifying individuals to receive a prescription to treat their conditions with medical marijuana. House Bill 523 will give thousands of Ohio residents the option to legally treat with marijuana, if they wish to do so.

June 1

After A Car Accident

No one prepares for a car accident, but accidents are a common everyday occurrence. According to the National Highway Traffic Administration, car accidents occur every minute of the day, and over five million driving related accidents take place each year. While no one wants to think about getting in a car accident, it is something you should at least mentally anticipate. It is important to be prepared, and to know what to do should an accident occur.

If you are involved in a car accident, first check to make sure everyone in your vehicle is okay and able to respond. Next, pull your vehicle over to a safe spot on the side of the road, out of the way of traffic. If it is a possibility, it is very important to move the wreckage out of the way of traffic. An associate clerked for a personal injury firm during law school, and a surprising number of severe accidents resulted from vehicles running into other vehicles that were stopped, due to already having been involved in an accident. Moving your vehicle and your passengers to a place away from traffic is important, for your safety and for the safety of others. It is also important to stay at the scene of the accident; fleeing the scene prematurely or without stopping could cause you to be charged with a misdemeanor or even a felony, depending on the severity of the crash.

Once you and your passengers are safe from oncoming traffic, call the police. The police should be called to the scene of every car accident, even if the accident is only minor in nature. The police will document the accident and create a crash report, which will officially document who was at fault, the extent of the damage, and other important information. Depending on the nature of the accident, police may cite the individual who caused the accident. Having the police present will help to keep the parties involved responsible and will create credibility should the accident become the subject of litigation.

After the police have been called, it is important to contact your insurance company, as well as the other driver(s) insurance company(ies). Keeping insurance companies informed is important and will allow for a speedy recovery in terms of property damage. Your insurance company should provide you a list of body shops from whom they accept estimates. Your insurance company may also provide a rental car. If another driver was at fault, your insurer will recover these costs from that driver’s insurance carrier.

If you were hurt in the accident, seek medical treatment. Going to the emergency room, or to your family physician is always a good idea, even if you’re not sure the severity of your injuries. Be sure to keep track of your medical treatment; keeping a journal of your medical visits and your diagnoses can prove useful. Medical providers can give you itemized copies of all bills and records, which will save time and expense later, if you need to hire an attorney who would otherwise need to send requests and submit authorizations.

If you believe that you or anyone in your vehicle was hurt in the accident, even if you were at fault, contact an attorney. The sooner you contact an attorney the better. We’ve handled cases where clients waited months, or even a year to contact an attorney, significantly decreasing their settlement offer. While Ohio has a two-year statute of limitation to file a lawsuit concerning a car accident, three neighboring states, including Kentucky, have only a one-year statute of limitation. Be sure to check the law in your state for the relevant statute of limitation.

If you decide to hire an attorney, you should be prepared to pay a contingency fee of between one-third and forty-percent of any settlement or award, plus expenses. You should not owe any fee if your attorney fails to recover from the defendant(s). After hiring an attorney, you’ll need to participate in your case, though your primary job is only to get better.

Most personal injury cases do not go to litigation; in fact the vast majority of car accident cases are settled through negotiations between an attorney and the insurance company. A good attorney and a smart insurance adjuster will know what a case is worth, and will be able reach an agreement as to a fair resolution. Being prudent after an accident, and timely consulting with an attorney, will go a long way to making you whole again.