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Legally Speaking - with Bob Mionske: Shock jocks

Sure they're stupid, but are they illegal?

Published: Oct. 2, 2003

Dear Bob,
My local cycling club posted a notice on its website that a chain ofradio stations was instructing their disc jockeys to tell listeners tothreaten cyclists or do violence against them. Do you know anything aboutthis, and can anyone do anything to stop them?
R.B.,
Texas

Dear R.B.
On September 22 and 23, two DJs on a morning show on radio stationWDCG ("G105") inRaleigh, North Carolina, held a listener call-in where listeners were encouraged to relate violent activities they participated in against cyclists, including running them off the road, hitting them with cars or throwing objects at them. One of the two DJs admitted that he carried empty soft drink bottles in his car to throw at cyclists. WDCG is owned by a nationwide radio and television holding company, Clear Channel Communications.

The incident is at least the fifth-such involving a Clear Channel-ownedstation in the past three years, dating back to a February 13, 2001 incidentat KSJO in SanJose, where the afternoon “shock jock” program had similar content. OtherClear Channel-owned stations have also been accused of inciting violenceagainst cyclists, including WMJI in Cleveland and KLOLin Houston.

Clear Channel’s response has been ambiguous. In Cleveland, WMJI issued an apology, donated money to local bike advocacy programs, disciplined two DJs and fired the producer. However, Clear Channel’s national director of programming is reportedly a former “shock jock,” and some industry analysts believe the chain is pushing a “lowest common denominator” strategy in hotly contested market areas.

Two legal questions are important here:
1. Are these types of broadcasts illegal?
2. If one of these broadcasts incites a listener to assaulta cyclist, can the station or its owner be sued?

As you know, free speech is protected in the First Amendment of theConstitution. It is a very broad protection, and courts have treated itaccordingly. However, as Justice Oliver Wendell Holmes famously said, theright of free speech doesn’t let you stand up in a crowded theater andyell “Fire!” There are certain limits, and three limitations are importanthere--fighting words, advocacy of lawless activity, and speech in electronicmedia.

A 1942 case, Champlinsky, defined "fighting words" as "wordswhich by their very utterance inflict injury or tend to incite an immediatebreach of the peace.” Cohen v. California (1991) made it clear thatoffensive speech isn’t the same as fighting words, and that fighting wordsmust be "directed to the person or hearer." (Cohen walked around in publicwith a jacket that read “F*** the Draft”) If not so directed, it's merelyoffensive speech, and requires a showing that the offended party has asubstantial privacy interest that has been violated—a very hard standardto meet!

As the Supreme Court put it in R.A.V. v. St. Paul (1992), “Themere fact that expressive activity causes hurt feelings, offense, or resentmentdoes not render the expression unprotected.” Considering the fact thatR.A.V. and his colleagues were arrested for burning a cross in a park ina predominantly African-American neighborhood of Minneapolis, this is stronglanguage indeed. (R.A.V. was later found guilty of juvenile crimes unrelatedto the contested “hate crime” statute.)

Until fairly recently, it was much easier to control speech advocatingor promoting illegal conduct. The original doctrine was the “clear andpresent danger” test: does the speech constitute a probable danger of anevil so great as to warrant government restraint? By 1951, the SupremeCourt further expanded the “clear and present danger” test to considerif “the gravity of the evil, discounted by its improbability, justifiedsuch invasion of speech as necessary to avoid the danger.”

The problem was that this test, called the “Dennis Doctrine” was usedto prosecute individuals who had joined the communist party. The accusedman, Dennis, never said anything about the overthrow of the government—justhis membership in the party was considered to be advocating lawless conduct.

Given the abuses of the McCarthy era, the Dennis Doctrine was no longerconsidered acceptable, so in 1969 the Supreme Court reversed itself inBrandenburg v. Ohio. The new doctrine strongly protected free speech:

“Advocacy of the idea of illegal conduct, without more, is constitutionally protected. Only where such advocacy is directed to inciting or producing imminent lawless conduct and is likely to produce such actions may the speech be suppressed.”

Today’s “shock jocks” may sound like troglodytes, but most of them knowtheir first amendment law better than most lawyers. If you were to listento a tape recording of the offending shows, you would probably never heara single sentence or string of sentences that contains the three essentialBrandenburg elements:

1) The speech must direct, not just advocate, unlawful conduct.(Do it! Go now—do it!)
2) The unlawful conduct must be imminent or at a certain time in the future, not an indefinite future. (Go out NOW! Today, this morning, on your way to work, DO IT!)
3) The speech must be likely to produce lawless action.

The best chance of success of stopping a reoccurrence of the Raleigh,Houston and Cleveland incidents is through the government power to regulatescarce electronic bandwidth. In FCC v. Pacifica (1978) the SupremeCourt upheld a Federal Communications Commission (FCC) civil fine leviedagainst a radio station that played a monologue done by the comic GeorgeCarlin, called “Seven Dirty Words,” at 2:30 in the afternoon. (The monologuecontained many obscenities, but was not itself hurtful or insulting. Carlin’sbasic premise was that there are no inherently dirty words, just unkindthoughts.)

The court agreed that of all forms of speech, electronic media is the most limited because it is "a uniquely pervasive presence in the lives of all Americans." And in a 2002 case, Planned Parenthood of Columbia v. F.A.C.E., a U.S. Circuit Court of Appeals ruled that an internet sitethat listed the names of physicians it accused of providing abortion services,and that predominantly crossed out the names of physicians that had beenrecently murdered, was illegal and could be regulated by state and federalauthorities.

What happens if someone runs you off the road or hits you with a bottle,then claims that he was encouraged by the radio station?

In general, one who commands, directs, advises, encourages, procures,instigates, promotes, controls, aids or abets a wrongful act by anotheris considered as responsible as the person who physically committed theact. The Federal Circuit Court for the District of Columbia consideredthe case of Linda Hamilton, the live-in companion of Bernard Welch. Welchwas a career burglar who, during one of his robberies, killed a man. AlthoughHamilton participated in none of her paramour’s crimes, she lived off theproceeds of his burglaries and encouraged his activities. The family ofthe murdered man sued her, and won. The Court reasoned that:

"[A] person who encourages another to commit a tortuous actmay also be responsible for other foreseeable acts done by such other personin connection with the intended act."


There have been a great number of cases where an accused criminaltried to claim he or she was “intoxicated” or “deranged” by a movie, songor exposure to violence on TV. Generally, such “media” cases have gonenowhere. However, in a 1997 case, Rice v. Paladin Enterprises, ayoung man, Perry, killed three people.

Perry admitted that he did it, and confessed that he did it because he was paid by the husband of one of the victims. But Perry also told the police that he would never have takenup the offer if he had not been inspired and instructed by two books, “HitMan” and “How to Make a Silencer” published by Paladin Press. Perry followedthe instructions in “Hit Man” when he killed his three victims. The victims’family sued the publisher for encouraging and aiding Perry in his crime.Although the trial court denied liability, a federal appeals court reversedand sent the case back to the trial court so a jury could determined howmuch Paladin Press owed the family.

The appeals court determined that freedom of speech was a non-issuein cases where a media entity aids or abets in a crime or tort. Relyingon the logic used in the Linda Hamilton case, the court formed a three-prongtest for determining if a media entity “aided or abetted” a criminal:

(1) the party whom the media outlet aids must perform a wrongfulact that causes an injury; (2) the media outlet must be generallyaware of their role as part of an overall illegal or tortuous activityat the time that they provides the assistance; (3) the media outletmust knowingly and substantially assist the principal violation.I think that a strong argument could be made that activities of thetype carried on at the Raleigh, Houston, and Cleveland radio stations couldmeet this test, especially considering that one company owns the stationsin all three markets.Good luck,
Bob
(research and drafting assistance provided by Bruce Epperson-lawstudent-Nova Southeast University)
Now read the fine print:

Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.

After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).

If you have a cycling-related legal question, please send it to info@bicyclelaw.com. Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.

Important notice:
The information provided in the "Legally speaking" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.