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May 02, 2007

Yo, Ho !

The counter argument sounds spurious to me.

Imus won't go quietly

...But Imus has hired one of the nation's premiere First Amendment attorneys, and the two sides are gearing up for a legal showdown that could turn on how language in his contract that encouraged the radio host to be irreverent and engage in character attacks is interpreted, according to one person who has read the contract.

The language, according to this source, was part of a five-year contract that went into effect in 2006 and that paid Imus close to $10 million a year. It stipulates that Imus be given a warning before being fired for doing what he made a career out of - making off-color jokes. The source described it as a "dog has one- bite clause." A lawsuit could be filed within a month, this person predicted.

...But in Imus' case, his free speech rights are tempered by the fact that he said what he said on the public airwaves - which are subject to Federal Communications Commission regulations about what is appropriate content.

"[Garbus is] a First Amendment lawyer who's argued many important cases," said Washington, D.C.-based attorney Lynne Bernabei, who has often represented plaintiffs in employment disputes. "I'm sure they're trying to make this a First Amendment case. But the airwaves are heavily regulated by the FCC.

"In my mind there is a big difference between someone who is under contract and is under FCC regulations and someone who speaks out in town hall. This is someone in a heavily regulated industry and who used the public airwaves."


"Used public airwaves"? The same public airways inhabited by "fuck the police", "bitches", "niggers" and "hos" ad nauseum, but set to "music"?

However revolting Imus is personally, your average hour of hip-hop/alternative/etc. programming has him beat to pieces for socially unacceptable airwaves anti-matter.

Posted by tree hugging sister at May 2, 2007 12:53 PM

Comments

Though a lawyer, I lay no claim to being a “premiere First Amendment” one. Having said that, based on the limited information and even more limited research, I think the argument here is not so much a free speech one as it is a contract one. The Constitution applies only to state actors, not private individuals and companies. Since a state actor was not involved in firing Imus I fail to see the 1st Amendment argument. What I do see is contract language saying he will not be fired without a warning first. I think a fair interpretation of this clause is that his employer knew the airwaves were heavily regulated and assumed the risk that Imus would say something stupid in violation of those regulations. Instead, they just fired him in contravention of the contract. That I think is the argument.

Course, Imus may stretch his legal theories to include a 1st Amendment cause of action. If he does I suspect it is more a means of forming the question and public relations than as the legal theory they expect to win on, which seems to be a contract claim.

Posted by: Mike at May 2, 2007 02:14 PM

I don't see where "regulation" had anything to do with it (did I miss something?) so the First Amendment is utterly irrelevant. He said something that got him fired. There may be a contract issue over that, but I never saw any regulatory or other government interference, only public embarrassment and scorn.

Posted by: Ken S, Fifth String on the Banjo of Life at May 2, 2007 04:50 PM