The Radio Equalizer: Brian Maloney

02 May 2007

Imus Lawsuit, CNN, Imus Contract, Drudge


Fortune: Network Could Have Strong Case Against Payout

*** Boston Updates Here ***

It looks like Imus really is headed for a courtroom showdown with his former employers.

As we reported 10 days ago, Imus has hired a high- profile attorney with a history of free speech cases in his professional background. Now, a new report by Fortune Magazine (also a screaming Drudge Report headline), indicates a suit is likely.

And according to Fortune, based on his contractual terms, CBS may have a slam dunk case against a mega- payout to the I-Man:

For Imus, who made a career out of operating in the murky space between sophomoric humor and high-brow political talk, there is the little matter of about $40 million left on his contract with CBS Radio - whose boss Les Moonves fired the shock jock on April 12. CBS' lawyers contend Imus was fired for cause and not owed the rest of the money.

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.


Imus has hired Martin Garbus, a New York-based attorney at the law firm Davis & Gilbert who is widely recognized as one of the country's most able First Amendment lawyers. Time Magazine, for one, has called him "legendary, one of the best trial lawyers in the country." He's successfully represented the comedian Lenny Bruce against criminal charges on First Amendment grounds, and the writer Robert Sam Anson in a lawsuit filed by Walt Disney trying to halt the publication of a book critical of the media giant.

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."

Bernabei also said that any contract stipulations that allow for provocative content on Imus' show are probably balanced by "something in the contract about appropriate content."

She said, "I'm sure CBS has something about conduct - that he can't use profanity and has to abide by FCC regulations."

So under this argument, the case could turn on whether Imus' comments - which referred to members of the Rutgers women's basketball team as "nappy-headed hos" - meets the definition of profanity under FCC guidelines. The FCC, on its Web site, defines profanity as "including language so grossly offensive to members of the public who actually hear it as to amount to a nuisance."

In some people's minds, CBS (Charts, Fortune 500) would have a slam dunk in making that case. Then there would be the matter of whether or not Imus ever quietly received warnings for previous offensive racial remarks. And there were several, including once referring to the New York Times African-American sports columnist Bill Rhoden as a "quota hire" and PBS anchor Gwen Ifill, who is black, as a "cleaning lady."

Without an insider's view of exactly how this was handled by network execs, it's hard to assess the strength of his contentions. But your Radio Equalizer does find it interesting that Imus isn't fighting to get back his job.

Otherwise, the FCC argument is absurd, as there's no way in the world that "nappy- headed hos" violates any of their standards. Keep in mind that the agency is not currently investigating the network over this incident.

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  • In some people's minds, CBS would have a slam dunk in making that case. Then there would be the matter of whether or not Imus ever quietly received warnings for previous offensive racial remarks.

    CBS had better be prepared to explain why that they just signed Mr. Imus to a 5 year contract, years after the Ifill/Rhoden comments were made (and explained). Unless warnings were issued since the last contract signing, it will be a tough sell to convince a jury that CBS, et al, were unaware of what kind of comedy show they had signed.

    Long time fans of Imus - myself, a devoted 12 year daily listener and a fan for nearly 30 years - remain surprised that the phrase that was made the keystone of his firing was mild, compared to so many others ever uttered on those microphones.

    Take, for example, Prof. Doris Kearnes-Goodwin quoting Sen. Barry Goldwater using the word c%^&*-sucker on the air.

    Or MSNBC's own Chris Matthews dropping the F-bomb (YouTube has several uploads of this).

    It should be noted that in both cases, while the radio staff was able to bleep the offending words, MSNBC's own staff didn't. Granted, cable isn't as restricted as radio; but isn't surprising MSNBC chose this opportunity to shocked at the show's content?

    And who would argue that MSNBC was the first dominio to tip in Imus' downfall?

    To many, the phrase 'nappy-headed ho' - while wrong and worthy of rebuke and an apology - does not sound at all like an affront to the FCC regulations. I find it difficult to find more than a few who would say the same about what Dr. Kearns-Goodwin or Mr. Matthews said.

    By Blogger Charlie on the PA Turnpike, at 03 May, 2007 08:26  

  • I think Imus should sue. He got treated differently than other employees.

    By Blogger PCD, at 03 May, 2007 10:33  

  • sue, sue, sue, so typical

    By Blogger hashfanatic, at 03 May, 2007 21:14  

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