David Marburger

Partner

Cleveland
T 216.861.7956  |  F 216.696.0740

 

Dave Marburger is an authority on litigating legal issues arising from the content side of communications and litigating issues of constitutional law, with Cleveland Magazine naming David as one of Cleveland's 20 "Most Interesting People." Dave is one of only 27 lawyers in Ohio certified as a specialist in appellate law and has handled more than 20 cases before the Ohio Supreme Court, the state's highest court. He has litigated more than 250 libel cases, challenged the constitutionality of more than 35 laws and court orders, defended against over two dozen prior restraints, sued for access more than 50 times to open the files and proceedings of state, local and federal government agencies and courts, and defended and pursued dozens of copyright claims. He has represented online media, major national television and radio networks, newspapers, book publishers, magazines, outdoor advertising companies and wire services. A driven competitor, Dave is unusually "hands on" in trying to deliver the full benefit of his experience developed over some 30 years of his focused practice of law. Clients who retain Dave for his specialty get Dave.

Dave co-authored Access With Attitude, a 350-page "advocate's guide to freedom of information in Ohio," published by Ohio University Press, with former investigative reporter Karl Idsvoog. About the book, retired Ohio Supreme Court Justice Andrew Douglas said, "it cannot be denied that this primer in the law of 'open records' is dynamite and is a must read . . . The authors' razor-sharp intellects come through on almost every page." Dave and his brother Daniel, a professor of economics, wrote a nationally-publicized 70-page white paper concluding that unexpected side effects of the federal copyright law have combined with the unique qualities of the Internet and inevitable laws of economics to threaten the survival of any firm that originates daily written news reports online. The Los Angeles Times published a condensed version of their analysis as a Sunday op-ed essay, and the Associated Press Society of Ohio specially recognized Dave "for serving with exceptional distinction and honor and upholding the highest ideals of journalism." The Media Institute, a policy think-tank in Washington, D.C., said that the newspaper industry "might owe a debt of gratitude" to the Marburger brothers "who have combined their expertise in economics and the law to analyze the problem and come up with a potential solution." (Providing a foundation for newspapers and other originators of daily news reports to revive their ability to profit from traditional daily news coverage Published by: David Marburger and Daniel Marburger) Dave was a journalist in a top-10 market before becoming a lawyer.

Select Experience

  • As primary draftsman of brief on the merits for Ohio's largest newspaper, persuaded the United States Supreme Court that the First Amendment constrains municipal discretion to block newspapers from placing machines on public property to distribute daily newspapers directly to the public. (City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750.)

  • Persuaded the Ohio Supreme Court to rule that Ohio's Constitution affords more protection for speech than the First Amendment does. (Vail v. Plain Dealer Pub. Co., 72 Ohio St.3d 279, 649 N.E.2d 192.)

  • Working pro bono, drafted omnibus revision to Ohio's freedom-of-information law, which the General Assembly enacted largely as drafted, and drafted other amendments to that law and to Ohio's Sunshine Law (open meetings), which the General Assembly enacted largely as drafted.
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Experience

  • As primary draftsman of brief on the merits for Ohio's largest newspaper, persuaded the United States Supreme Court that the First Amendment constrains municipal discretion to block newspapers from placing machines on public property to distribute daily newspapers directly to the public. (City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750.)

  • Persuaded the Ohio Supreme Court to rule that Ohio's Constitution affords more protection for speech than the First Amendment does. (Vail v. Plain Dealer Pub. Co., 72 Ohio St.3d 279, 649 N.E.2d 192.)

  • Working pro bono, drafted omnibus revision to Ohio's freedom-of-information law, which the General Assembly enacted largely as drafted, and drafted other amendments to that law and to Ohio's Sunshine Law (open meetings), which the General Assembly enacted largely as drafted.

  • Persuaded the United States Court of Appeals to rule that the First Amendment bars criminalizing the outdoor advertising of beer and other alcoholic beverages. (Eller Media Co. v. City of Cleveland, 326 F.3d 720.)

  • When a juvenile court judge allowed the press to attend a series of hearings in a drive-by shooting delinquency case, he barred the press from reporting each day what happened in the hearings. Representing two newspapers, Dave asked the Ohio Supreme Court to bar the judge from enforcing his order.

    The high court declined to intercede, so Dave—on the newspapers' behalf—sued the juvenile court judge in federal court, invoking the federal civil rights act. He persuaded the federal district judge to enjoin the juvenile court judge from enforcing his order and to award attorneys' fees to the newspaper, and then persuaded the Ohio Supreme Court to reconsider its refusal to interfere and to rule on the merits that the juvenile court judge violated the First Amendment. (News Herald v. Ruyle, 949 F. Supp. 519; State ex rel. News Herald v. Ottawa Cty Ct of Common Pleas, 77 Ohio St.3d 40, 671 N.E.2d 5.)

  • In his first case before the Ohio Supreme Court, the court declined to decide the merits, but ruled that the press and the public no longer could use the extraordinary remedy of mandamus to enforce the state's freedom-of-information law. Dave and the publisher of his newspaper client then personally persuaded the Ohio General Assembly to amend the state's freedom-of-information law to legislatively overrule the Ohio Supreme Court and restore the mandamus remedy. (State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass’n, 32 Ohio St.3d 327, 512 N.E.2d 1176; Am. Sub. S.B. No. 275 § 5 (eff. 10/15/87).)

    Dave then refiled the newspaper's suit and, ultimately, persuaded the Ohio Supreme Court to rule for the first time that the state's freedom-of-information law applies to private organizations that perform privatized government services. (State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass’n, 40 Ohio St.3d 10, 531 N.E.2d 313.)

  • When the United States Court of Appeals ruled that the City of Columbus violated three plain-clothes police officers' 14th Amendment privacy by granting a lawyer's request under Ohio's freedom-of-information law for personnel records of the officers, Dave noticed that the court reached its ground-breaking ruling by relying on the officers' uncontested affidavits. Doubting the truth of those affidavits, he tracked down an Ohio attorney staying in England, who provided uncontested evidence exposing that the officers' affidavits were materially false.

    Representing a group of newspapers, Dave intervened in the suit when the court of appeals remanded it to the federal district court to award damages to the three police officers. There, he persuaded the district judge to rule that 14th Amendment privacy did not apply to the City's release of the police officers' personnel records; the judge then ordered the records to be released to the press; and the judge declined to allow the officers to recover any money. (Kallstrom v. City of Columbus, 165 F. Supp.2d 686 (S.D. Ohio).)

  • After an outdoor advertising firm sued to invalidate a new Cleveland ordinance directed against outdoor advertisers, Cleveland's mayor sent a team of building inspectors to canvass the company's signs for code violations and then commenced more than 300 separate prosecutions against the firm in Cleveland's housing court. Representing the outdoor advertising firm, Dave sued the City in federal court for retaliation under the federal civil rights act and stopped the prosecutions by appealing each separate notice of violation to an administrative body before court actions could begin. The case settled with the City allowing the firm to erect a dozen new digital billboards along interstate highways and amending its zoning code to accommodate them.

  • When a Pennsylvania business owner's libel suit against a national news magazine settled during trial, a local newspaper covering the case inadvertently added as factual background that the FBI had investigated the man's company for the way it operated a casino on a Minnesota Indian reservation. The national news magazine had reported the same thing, which was at the heart of the settled libel suit, as the businessman denied that the FBI had conducted any such investigation and the magazine couldn't procure the FBI's cooperation in defending itself.

    The businessman then sued the local newspaper, and Dave retained former investigative reporter, Karl Idsvoog, who visited the Indian reservation. He interviewed locals who had worked for the casino, and discovered that FBI agents had indeed interviewed casino workers about the businessman's company and its operation of the casino.

    Armed with affidavits from the interviewed casino workers, Dave moved for summary judgment on behalf of the newspaper, but the United States Magistrate Judge recommended against granting summary judgment. Dave objected. Before the federal district judge ruled on the objections, the magistrate judge issued a superseding order that again recommended against summary judgment, but cited different grounds. Dave objected again, and immediately moved for oral argument to get the federal district judge's attention. The judge heard oral argument, and granted summary judgment to the newspaper. (Medure v. Vindicator Printing Co., 273 F. Supp.2d 588 (W.D. Pa.).)

  • When a county demanded more than $417,000 to duplicate two months' worth of compact discs on which the county stored publicly available digital copies of land-title records—about $5,000 for each CD—a land-title data firm sued over the county's demand. On the firm's behalf, Dave ultimately persuaded the Ohio Supreme Court to rule that the county could charge the firm and the public no more than $1 for each duplicate CD. (State ex rel. Data Trace Info. Services v. Cuya. Cty Recorder, 131 Ohio St.3d 255, 963 N.E.2d 1288.)

Recognitions

  • The Best Lawyers in America©
    Copyright 2013 by Woodward/White, Inc., of Aiken, SC
    • Cleveland: Communications Law (1995 to 2015)
    • Cleveland: Litigation – First Amendment (1995 to 2015)
    • Cleveland: Media Law (1995 to 2015)
    • Cleveland: First Amendment Law (2015)
  • Society of Professional Journalists "Best Defense of the First Amendment" award
  • William Maxwell Award from the Ohio Newspaper Association for outstanding support of the public's right to know
  • Inducted into the Professional Gallery at the S. I. Newhouse School of Public Communications, Syracuse University
  • Special Recognition Award from the Associated Press Society of Ohio for exceptional distinction in upholding the ideals of journalism
  • Distinguished Service awards from two chapters of the Society of Professional Journalists
  • Martindale-Hubbell: AV Preeminent
  • Ohio "Super Lawyer" (2004 to 2006, 2008 to 2014)

Memberships

  • Syracuse University's Tully Center for Free Speech: Board of Advisors

Pro Bono

  • Drafted omnibus revision to Ohio's freedom-of-information law, which the General Assembly enacted largely as drafted, and drafted other amendments to that law and to Ohio's Sunshine Law (open meetings), which the General Assembly enacted largely as drafted.

  • The Ohio Attorney General appointed him to a two-year task force to conduct a comprehensive study of Ohio's freedom-of-information laws, and he was the primary draftsman of the task force's recommendation for statutory revision.

Admissions

  • U.S. Supreme Court
  • U.S. Court of Appeals, Sixth Circuit
  • U.S. Court of Appeals, Third Circuit
  • U.S. District Court, Western District of Pennsylvania
  • U.S. District Court, Northern District of Ohio
  • U.S. District Court, Southern District of Ohio
  • Pennsylvania, 1984
  • Ohio, 1984

Education

  • J.D., University of Pittsburgh, 1983
  • B.S., Syracuse University, 1976, cum laude