By ELLEN DAVIS & CHRIS FRANCESCANI
ABC News Law & Justice Unit
May 3, 2007
Radio host Don Imus is going to sue CBS for $120 million, according to a draft copy of the complaint obtained by ABC News’ Law & Justice Unit.
The suit is expected to be filed next week.
Former FCC commissioner Kathleen Abernathy said Imus’ comments were “definitely in bad taste and inappropriate language.”
“But in order to prohibit such language, it has to rise to the level of being legally profane, and I do not think that it rises to that level because of our legal history of protecting free speech.”
A draft copy of Imus’s lawsuit says that the network expected him to be controversial and irreverent under the terms of his contract. And he claims Imus’s show was on a five second delay that allowed the network to censor him if they wanted.
The draft points out that Imus wasn’t fired for two weeks after the remarks were made.
Meanwhile, four former FCC commissioners contacted by ABC News say they do not believe that the speech was actionable under current federal guidelines that prohibit profanity or indecency on public airwaves.
Imus was fired April 12, after he made insensitive remarks about the Rutgers women’s basketball team.
Martin Garbus — a powerful First Amendment lawyer who represented controversial comedian Lenny Bruce — said he would file a complaint against the network in the days ahead.
In a statement released by CBS in response to news stories about the impending lawsuit, CBS said that “We terminated Mr. Imus for cause. Based on the comments in question and relevant contract terms, we believe that the termination was appropriate and CBS would expect to prevail in any attempt by Mr. Imus to recover money for his actions.”
The network is expected to rely on a clause in the radio talk show host’s contract that says he can be terminated for ‘just cause’ if CBS determines that he used “distasteful or offensive words or phrases, the broadcast of which [CBS] believes would not be in the public interest or may jeopardize [the networks’s] Federal license to operate…”
But Garbus, who has successfully defended hundreds of high profile First Amendment cases, said CBS still breached Imus’ contract when the company fired him.
He cited a section of his client’s employment contract today that says Imus’ “services to be rendered … are of a unique, extraordinary, irreverent, intellectual, topical, controversial and personal character … and … these components are desired by Company and are consistent with Company rules and policies.”
While the lawsuit focuses on the contract, hovering above the dispute is the question of whether Imus’s comments put the network in jeopardy with the FCC – which has been uncharacteristically aggressive in policing the airwaves in recently years.
One former FCC commissioner who spoke to ABC News suggested that CBS had gotten exactly what it had bargained for.
“The issue is one more of extremely poor judgement than it is an FCC issue,” said ex-commissioner Harold Furtchgott-Roth. “That’s what Imus’ schtick has been for years.”
Former commissioner James Quello concurred, telling ABC News that he thought “it was a mistake and that [Imus] had a First Amendment right to be wrong.”
And former commissioner Gloria Tristani said she did “not believe that what [Imus] said would rise to the level of what [the FCC] has found profane of late. … But they are very fact-specific inquiries.”
Was Imus Warned?
Imus’ contract also stipulated that he must be given a warning in writing before being fired for stepping over the line.
It’s unclear whether CBS had privately warned the radio talk show host about his language. Garbus says Imus wasn’t warned. And it’s also unclear whether the FCC would actually penalize CBS and/or its affiliates over Imus’ comments remains unclear.
Current FCC chairman Kevin Martin told a congressional panel last month that “Imus’ comments were obviously very, very offensive and were indeed more offensive than some of the indecency remarks that have been made that the commission has fined people for in the past. But I think it’s important to understand that the commission doesn’t fine any broadcaster for anything related to how offensive what they say is.”
However, Martin also indicated that these kinds of issues could be raised in the context of a station’s license renewal.
“When stations have their license coming up for renewal, the community that they serve has an opportunity to complain about the broadcasters and how they’ve used their license,” he said.