Shock Jock Crosses Line

Racism, sexism, basketball and free speech, all collided last week on radio shock jock’s Don Imus’ radio show which is simulcast on MSNBC and CBS’s radio network. Calling the Rutgers’ Women’s basketball team “nappy headed hos” following their loss in the NCAA Women’s National Championship, Imus set off a firestorm which reached it’s crescendo today when CBS fired him. It’s not the first time Imus had made racist or sexist remarks on his show. But, this time was different. He attacked members of a basketball team who are neither “nappy-headed” nor “hos”. These young women are role models. They are both intelligent and well-spoken (and they have good hair). Not one of them fits Imus’ slur.

In the age of the Internet and 24-hour media, Imus’ comment spread from coast to coast in a matter of minutes. A stunned Rutgers team spoke out against Imus. Advertisers began to pull their spots and women and black activists began to turn up the heat on Imus. MSNBC suspended Imus for a two-week period. Calls for his firing began to build. CBS finally capitulated today as the rumors of cancelled sponsorship started to climb into the 3-digit range.

But, did CBS do the right thing in firing Imus? Activists, advertisers and a portion of public opinion say “yes”. Free speech advocates say “no”. Those that favored Imus’ firing say that Imus’ hate speech has no business on the public air waves. Free speech advocates say that no matter how distasteful you may find Imus’ words, he has a right to say them. They believe that his firing is tantamount to corporate censorship. There are those among the media and the general public that argue that firing Imus will have a chilling effect on commentators, shock jocks and the press in general. Their argument is that if they have to be worried about being fired for what they say, it will result in self-censorship and a less independent media.

Others have lambasted CBS for firing Imus, saying that CBS only chose to do so for financial reasons once controversy-adverse sponsors began to pull their lucrative advertising dollars. After all they’ve left Imus on the air after other occasions he used slurs.

So, who is correct? Is a network, media company or even a Web site obligated to publish or broadcast speech that they find offensive under the rubric of freedom of speech? Unfortunately, the issue isn’t as clear cut as either side would have you believe.

Freedom of speech, expression, and the press are among the fundamental underpinnings of our society. These freedoms are among those that make us different from totalitarian societies such as Russia, Cuba, or China. First Amendment rights are sacred in this country.

But are these rights unlimited? The Supreme Court says no. You can’t yell “Fire” in a crowded theatre and so-called “fighting words” (certain utterances that are likely to provoke the average person to retaliation—Chaplinksky v. New Hampshire, 1942) are not constitutionally protected. Nor is slander. While freedom of the press is a holy grail in our society, even the press’ rights are limited. They cannot knowingly libel an individual or commercial entity. The bottom line is this--with all freedom comes responsibility.

Where the law and courts become murky is the area of hate speech. The Supreme Court has long protected speech that much of mainstream America finds offensive. In a 1989 case Johnson v. Texas the court ruled that the government can not forbid expression of an idea simply because it finds the idea offensive. While some utterances may cross the line from offensive to fighting words, the courts are very much in disagreement as to what actually constitutes fighting words. For example, calling an officer a “son of a bitch”, while offensive, does not constitute fighting words (Johnson v. Campbell, 9th Circuit, 2003). However, other lower courts have ruled that yelling racial slurs at someone (re John M., Arizona Court of Appeals, 2001) or repeatedly calling a woman at a nude beach a “whore”, among other things, (Wisconsin v. Ovadal, Wisconsin Court of Appeals, 2003) does rise to the level of fighting words.

In answer to those that say that the CBS and MSNBC were wrong to fire Imus on free speech grounds, I must respectively disagree. At least by lower court standards, Imus words rose to the standards of “fighting words”. Imus used his public bully pulpit to insult the Rutgers' women’s basketball team (none of whom he knew or with whom he’d had any personal interactions), calling them “nappy-headed hos”. While one could argue that calling someone “nappy-headed” is an offensive slur, I think it falls under the area of opinion and thus, is protected under our rules of free speech, no matter how distasteful it may be.

However, Imus’ use of the word, “ho” (slang for whore) could be ruled slanderous and not protected under the First Amendment right to free speech. All of the women on the Rutgers' basketball team denied being sexually promiscuous. Imus had no personal knowledge of their sexual habits. Should they be so inclined, they could reasonably sue Imus on the grounds of slander. It might be a tough case to prove in court because there is no legal standard for what defines promiscuity, but I think a good argument could be made that Imus attempted to ruin their reputations through his reckless on-air conduct. The Supreme Court has, in fact, differentiated between what is speech and what is conduct that can be regulated. Both CBS and MSNBC, I believe, also would be legally liable for broadcasting the slanderous content, had they not chosen to take action against Imus.

Second, in the age of easy access to Internet with its pod casts and online video-casting, one can make the argument that Imus has many forums to express his opinions, distasteful or not. No corporation should be forced to support speech that they find distasteful with their advertising dollars nor should any corporation be forced to condone conduct such as Imus’ that attempts to damage another’s reputation under the guise of free speech or freedom of the press. If Imus wants to continue to express opinions that much of mainstream America finds offensive, there is nothing stopping him from doing so on the Internet where he doesn’t have to worry about sponsors or network codes of conduct.

One can’t legislate decency, class or niceness. But, we, as a society, have an obligation to limit conduct that flies in the face of our societal norms and laws. We have an obligation to say what behavior is proper and what is not. Imus deserved to loose his job, not because he expressed an opinion that was offensive, but because his comment crossed the line from a mere offensive opinion to slanderous conduct. Imus has a right to free speech; he just doesn’t have the right to harm someone else in the process. Maybe the loss of his livelihood and reputation, even temporarily, will teach him a much needed lesson.

Selected Bibliography:
The First Amendment Center. “Personal and Public Expression in Speech—Fighting Words.” 2007. http://www.firstamendmentcenter.org/speech/personal/topic.aspx?topic=fighting_words

Mason, Alpheus Thomas and Donald Grier Stephenson, Jr. American Constitutional Law: Introductory Essays and Selected Cases, 9th Edition. Englewood Cliffs, NJ: Prentice Hall. 1990.