The First Amendment to the Constitution provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for redress of grievances.” In modern society, the First Amendment safeguards Americans’ rights in profoundly important ways. The freedom of speech is inherently counter-majoritarian, because popular speech rarely needs protecting in the first place. Americans enjoy the right to free speech, a free press, and to practice religion, or not at all. Even so, courts sometimes impose limits to the scope of protections. The recent case of “ Bollea v. Gawker ” is one example. Better known to WWE fans by the name “Hulk Hogan,” Terry Gene Bollea filed suit against the online company, Gawker Media. For those unfamiliar with the case, Gawker Media was sued in Florida, for publishing portions of a sex tape depicting Mr. Bollea with a married woman. Among his claims, Mr. Bollea alleged invasion of privacy, and intentional infliction of emotional distress. Attorneys for Gawker argued that First Amendment guarantees of a free press protected their client’s actions. Gawker’s attorneys tried making the case that a decision for Mr. Bollea would fundamentally change the application of First Amendment law in later cases. The procedural history of Bollea v. Gawker is a little confusing. The case was initially filed in federal court, then dismissed and re-filed in Florida state court. Before trial, Mr. Bollea asked the federal court for a preliminary injunction that, if granted, would have forced Gawker to take down the sex tape until the conclusion of the case. The federal court applied a high standard and said, “publication must threaten an interest more fundamental than the First Amendment itself.” Examining Mr. Bollea’s lifestyle, the federal court also determined that Mr. Bollea failed to prove that he’d suffer irreparable harm unless the video was taken down; the court held 2that embarrassment and economic harm did not meet the standard for irreparable harm. Moreover, the court was not convinced that taking down the sex tape would serve the public interest, and the request for a preliminary injunction was therefore denied. When the case was later re-filed in Florida state court, Mr. Bollea’s second attempt at a preliminary injunction was granted. When Gawker appealed the decision, however, the Florida Court of Appeals reversed on First Amendment grounds. At trial, Gawker argued that its actions were Constitutionally protected. Mr. Bollea argued that Gawker violated his right to privacy by circulating the sex tape. And a jury agreed, awarding Bollea compensatory and punitive damages of more than $130 million. Gawker declared its intention to appeal, but was forced into bankruptcy before it could do so. Shortly thereafter, Gawker and Bollea agreed to settle the judgment for only $31 million.  The case is significant, if only to illustrate the very high standards of proof in cases involving the First Amendment. Bollea v. Gawker did not set any new precedent, but the case is a reminder that First Amendment protections are indeed limited, and that consequences for unprotected speech can be severe.

According to the National Multifamily Housing Council, over 35% of the U.S. population, 111 million residents, rent rather than own their home. That hefty figure means there are a lot of “landlords” and even more “tenants.” In Ohio, there are rules in place to protect the rights of both landlords and tenants. Chapter 5321 of the Revised Code contains Ohio’s landlord tenant laws. Section 5321.04 covers a landlord’s duties and obligations. Among them, landlords must ensure the rental property is safe, and must keep all common areas habitable. Landlords must also allow a tenant quiet enjoyment of the rental premises, which means giving 24 hours’ notice before entering the property, and means only entering the property for reasonable issues and at reasonable times. Likewise, section 5321.05 covers a tenant’s obligations, including to keep the rental premises in a clean and habitable condition, and allowing the landlord reasonable access to the property. Tenants cannot damage or destroy the premises (obviously), and must conduct themselves so as not to disturb the neighbors. If either the landlord or the tenant fails to comply with their statutory obligations, the law provides for remedies. In the event a landlord is noncompliant, section 5321.07 specifies that a tenant must first give written notice of the problem to the landlord. If the landlord doesn’t remedy the issue within a reasonable time (usually 30 days, unless an emergency), then the tenant may do one of the following; place the monthly rent payment into escrow through the court, or ask the court to order the landlord to remedy the situation at hand, or terminate the lease. In the event a tenant is noncompliant, section 5321.11 permits a landlord to give written notice to remedy the violation. If unresolved within 30 days, the landlord then has the option to terminate the rental agreement. Moreover, if a tenant is not paying rent, or is damaging the property, a landlord may seek eviction. Upon filing an eviction, the court will set a court date, two weeks from the date of filing. Both parties may appear before the court to give their version of events. The court will usually grant a tenant a one-time 7-day continuance, for good cause shown. If the court decides eviction is proper, the tenant will then be given a date by which he or she must vacate. If the tenant does not vacate, the landlord may then pay for a set out, whereby a bailiff comes to the rental property to supervise, while the landlord removes from the premises the tenant’s personal belongings. Hiring an experienced attorney can help the process go more smoothly. It’s worth noting, however, that most landlord/tenant disputes can be solved by open communication. Sometimes the decision to file an eviction is impulsive, and a better outcome could easily be reached through open discussion. If you have a landlord tenant law question, contact your attorney to ensure that your rights are protected.

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’s Story “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. The Aftermath 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.

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.

Please drink responsibly tonight. Four DUI checkpoints planned across Central Ohio

Facing a criminal charge on your own is scary; facing a criminal charge with an attorney by your side can make the process less frightening. Criminal charges range from low-level misdemeanors to high-level aggravated felonies. Having a criminal charge on your record can be detrimental to many aspects of your life, including finding a job, finding a place to live, and even to your Constitutional right to possess a firearm. As someone facing a criminal charge, it is important to have a clear understanding of the criminal justice system, and to understand the entire process; from arrest through the final disposition of your case. The first thing that happens, generally, is an arrest. Often times the police will arrest you at the scene of the alleged crime. Other times the state will issue a warrant for your arrest, based on facts alleged against you. If you have a warrant issued for your arrest, it is best to consult an attorney before turning yourself in, in order to decide the best plan of action for your case. After you have been arrested, you will be brought to the local jail or courthouse. There you will be placed in a holding cell. You have the Constitutional right to be seen by a judge within a certain amount of time, post-arrest. Certain crimes will go in front of what is called a grand jury, which is a secret process where select individuals decide whether the state will charge you for the alleged crime, and what charges to bring based on the facts of your case. The next step is an arraignment, which is essentially the first step to getting your case resolved. At your arraignment you’ll appear in front of a magistrate or judge who will listen to your attorney (or public defender) as they present your credentials and community ties to the court. The judge will weigh several factors, including past criminal history, the severity of the charge, threat of danger to the community, the likelihood of you fleeing the jurisdiction, and so on. Based on these circumstances, and based on a scale set by the state, the judge or magistrate will set bond. There are several types of bond, but the most common types are recognizance and surety bonds. A recognizance bond (also referred to as R.O.R.), means you’ll be released on your signature, and you will not owe any money for bond, unless you fail to appear for a future court date. Recognizance bonds are usually reserved for misdemeanors and lower level felonies, or for individuals with a relatively clean prior criminal history. A surety bond is a surety (someone paying your bond) promising to pay the court if you fail to keep up your end of the bargain (aka you skip town and fail to show up for your next court date). If the judge sets a surety bond, you will likely have to pay 10% of the total amount to get out of jail. However, in 2014 the Supreme Court of Ohio found that courts also must accept a surety bond with 0% down. Typically, if your surety bond is set at $100,000, you or a bail bondsmen will need to pay the court $10,000 before you’ll be released. Bond companies are available to help you or your family sort out the details and put up a bond. Bonds can range from as little as $500 to $1.5 million or higher. After your arraignment, if you haven’t done so already, you’ll need to hire an attorney. You might also check to see whether you qualify for a Public Defender at no charge. Only certain individuals who fall below a certain income will qualify for Public Defender representation. If you’re above the set income level, you have the choice to hire an attorney or to represent yourself, also referred to as “pro so.” It’s highly advisable to have an attorney help you, as a good lawyer will protect your rights, advise you, and advocate for best interest. Attorneys have relationships with prosecutors and judges, and can help you obtain the lesser of a recommended sentencing. Often, a good lawyer makes the difference between acquittal and time in prison. After you’ve been arraigned, and after hiring an attorney, the court will set a date for pre-trial. At pre-trial, your attorney will discuss your case with the prosecutor. You’ll also likely be offered a plea bargain, in exchange for a guilty plea. The prosecutor will usually offer a “deal” to save time and expense for both the court and the taxpayers. If you are in fact guilty, accepting a plea deal might also save you time; time that might otherwise be spent in jail awaiting trial. Accepting a deal also eliminates uncertainty, since you’ll know the punishment in advance. If you decide not to accept a plea bargain, or if the prosecutor doesn’t offer a deal, then the court will set a date for trial. Unless you waive the right, you have a Constitutional right to a speedy trial. This right means the court must get you in front of a judge and jury (if you choose a trial by jury) within a limited time. At trial, which can be either a bench trial or jury trial, the prosecution bears the burden to prove their case beyond a reasonable doubt. In the criminal system you’re innocent until proven guilty. That standard means you don’t necessarily have to prove your innocence; rather it’s the State who must prove the charges alleged. After trial, the judge or jury will find you either guilty or not guilty. If found not guilty, you will be free to go. If found guilty, the court will impose a sentence. Sentencing may be handed down the same day, or the court may set a date for a sentencing hearing. Judges frequently include probation, to encourage compliance on threat of extended jail time. This article offers only a brief glimpse of the criminal process. If you face a criminal charge, it’s important to gain a thorough understanding of the specific allegations and circumstances of your case. You have rights, and you should consult with a lawyer to preserve those rights. Criminal charges are very serious, but with a proper understanding, and with an attorney on your side, criminal charges don’t necessarily have to be so detrimental to your future.

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.

Marijuana is legal, in at least some sense of the word, in 24 states, and in the District of Columbia. These 24 states have passed laws legalizing marijuana for medical purposes. Among the 24 states, Colorado, Alaska, Oregon, and Washington have all legalized marijuana for recreational purposes. In other states, marijuana has been decriminalized, meaning generally that the government substitutes a modest fine in lieu of jail time. In today’s criminal justice system, more than half of all drug related charges involve marijuana. Between the years 2000 and 2010, over seven million people were arrested or cited for marijuana related offenses. Economists conducted a study in 2010 that found marijuana related crimes currently cost state and federal governments upwards of 20 billion dollars per year. The same study concluded that the government would save over eight billion dollars per year if marijuana were legalized in all 50 states. Moreover, legalizing marijuana would generate tax revenue of over eight billion dollars per year. In combination, legalizing marijuana would make or save over 17 billion dollars per year. In November 2015, Ohio voted on Issue 3, which would have legalized the limited sale and use of marijuana, while creating exclusive commercial rights for only ten growing facilities. Issue 3 faced off against Issue 2, which legislators added to the ballot to avoid a monopoly. Issue 3 would have allowed individuals, age 21 and older, to purchase a license allowing use, possession, growth, or cultivation of up to eight ounces of marijuana, and up to four flowering marijuana plants. Individuals, age 21 and older, without a license, could lawfully have purchased, possessed, transported, used and shared up to one ounce of marijuana. Issue 3 would also have provided for medicinal use. Despite a 20 million dollar campaign, Ohio voters rejected Issue 3. A Gallup poll found that 58% of people support legal marijuana use, so why did Issue 3 fail? Experts offer a few theories. First, the concern over “monopolies” worried voters more than proponents of Issue 3 anticipated. The notion that only ten growing facilities would have had exclusive commercial rights turned off many of Ohio’s voters. Voters also likely took issue with the scope of the bill, including medical marijuana use, recreational use, and the ability to obtain a license to grow marijuana. Experts suggest the expansive nature of the bill was simply too much too fast, and believe that a more acceptable path to legalization will start with medicinal use. It didn’t help either that 2015 was an “off year” election, when voter turnout is typically lower. A group calling itself Legalize Ohio 2016 is already taking measures to place a similar bill on the 2016 ballot. Legalize Ohio 2016 is on its way to collecting over 300,000 signatures that would allow another vote to legalize marijuana in the state. Whether or not the issue is on the 2016 ballot, it’s likely only a matter of time before Ohio legalizes marijuana. If nothing else, the government’s sizeable financial stake in the issue, and the promise of a reduction in the prison population, will surely cause Ohioans to rethink their position on marijuana.

Last week’s post covered the Rules of Professional Conduct, for both licensed attorneys and aspiring attorneys alike. The ethical rules have much to do with whether a person will be admitted to the practice of law, and govern for the duration of an attorney’s career. The rules can also impact the personal lives of, not only attorneys, but those of families, friends, and colleagues. Unethical conduct sometimes has an even greater impact on associates than on an attorney individually. In my time practicing law, I’ve seen the devastation stemming from unethical conduct. A case that’s garnered recent media attention is the Franklin County civil case (previously a criminal matter) against the late local attorney Paul S. Kormanik. Mr. Kormanik was once a prominent Columbus attorney, very influential and respected in the Franklin County Probate Court. During Mr. Kormanik’s 30-plus-year career, he was appointed guardian of several hundred (over 400) elderly individuals. Ohio Revised Code § 2111.02 provides authority for a Court to declare an individual incompetent, and subsequently to appoint a guardian for that individual. Commonly referred to as “wards,” these individuals no longer possess the state of mind to care for themselves or for their financial affairs. The purpose of the court appointed guardian is to act as a non-interested party, to advocate for the ward’s best interests. Guardians have a special job, and must be sufficiently trustworthy. Unfortunately for Mr. Kormanik’s wards, Mr. Kormanik took advantage of his position of trust and power. Prior to his death, Mr. Kormanik was indicted on multiple felony charges, ranging from theft from the elderly, to corruption. Mr. Kormanik was found guilty on a number of the charges, and Franklin County Common Pleas Judge Holbrook was to sentence Mr. Kormanik to 25 years in jail. Mr. Kormanik likely would have faced additional criminal charges over time, as more victims are discovered. Due to his unethical behavior, Mr. Kormanik’s estate and his widow, Nancy Kormanik, now face extensive litigation. The case of Marcia Pendleton, et al. v. the Estate of Paul S. Kormanik, et al. was brought on behalf of one of Mr. Kormanik’s former wards. The case alleges various causes of action, including legal malpractice, negligence, breach of fiduciary duty, and others. The case seeks over $500,000 in damages and legal fees, and has undoubtedly made an impact on his spouse and the other surviving members of his family. The family home had been in contract for sale, but is now the subject of a lis pendens notice, clouding the property’s title and obstructing the sale. Mrs. Kormanik must also pay attorney’s fees pursuant to the ongoing litigation, to say nothing of the publicity and scorn. While Mr. Kormanik is gone, his victims will continue to suffer his transgressions. And his widow and children are left with his shameful legacy, and to pay for his wrongdoing.