Can Morning Show Banter Result in a Lost Lawsuit?
You read about the Clear Channel Detroit morning man Mojo (pictured) of Mojo in the morning who may be eing sued by one of his cast members. We wanted to know what our legal eagle John Garziglia thought of the entire situation so we threw it at him. We asked Garziglia: Can a morning man and parent company really be sued - and lose - over something that was said in a back and forth between two co-workers in a morning show setting? Is there any radio precedent case where this has happened before, and has gone to trial?
Garziglia: Gotta admit, this was a great bit. Right? A morning personality chides his co-host for an allergy to a scarecrow, the co-host gets mad, quits on the air, and the bit gets coverage on the local ABC TV affiliate! But, it looks like each of Mojo, his employer, and the co-host may be spending money on lawyers.
There are some gaping holes in the facts now reported so it is difficult to say whether Mojo’s co-host has any legal claim whatsoever. The only facts we have now are those that are most favorable to the co-host who is doing the accusing. The co-host’s lawyer letter opens by accusing Mojo of an “on-air constructive termination of [his co-hosts] employment and claims both Mojo and the radio station licensee violated Michigan public policy and disability discrimination statutes. The co-host’s lawyer accuses Mojo of pressuring the co-host to “violate intellectual property laws by posting copyrighted materials on the Mojo in the Morning website”. The letter goes on to state that Mojo “illegally revealed [the co-host’s] confidential medical information” over the air, violating the Americans with Disabilities Act (“ADA”), the Michigan Persons with Disabilities Act, and “HIPPA” (we assume the attorney meant “HIPAA,” the Health Insurance Portability and Accountability Act!). The co-host’s attorney closes the letter by calling the radio show bit a “surprise attack”.
It is not clear whether Mojo was a managerial employee and a superior to his co-host, or whether both were simply employees. The co-host’s lawyer reportedly stated that an employer cannot go on the air and talk about its employees’ private medical conditions. With all due respect to Mojo, suggesting that Mojo was the co-host’s employer likely elevates this Detroit market morning show host to a far greater status than even his ego would imagine.
Even assuming that Mojo and the co-host were in a supervisor-subordinate relationship, from the what is known about the case, one should be skeptical of the co-host’s legal theories about the disclosure of medical information. The co-host and his lawyer assert that Mojo revealed confidential medical information on air, in violation of the ADA and HIPAA. Without bogging down on the fine details, the ADA only protects medical information that is disclosed during certain employment-related medical examinations or inquiries. This appears to exclude on-air dialogue. HIPAA, as a general proposition, does not apply to employers in the first place, and even it did, HIPAA does not allow individuals (like the co-host) to file their own lawsuit as a remedy.
More fundamentally, it is not clear whether the co-host voluntarily revealed his own medical information or consented to its publication on-air. If the co-host voluntarily shared his own medical condition with the audience, it would be difficult to bring any legal claim for it. That may be why the co-host’s lawyer is characterizing the escapade as an “ambush” in which, even though the co-host’s reason for being there was to participate in the on-the-air banter, the co-host it is argued was nonetheless an unwilling or coerced participant.
Further, while there are a variety of new state law causes of action for invasions of privacy, it is doubtful at best whether revealing that a co-host has allergies from working on a scarecrow would rise to such a level as to be a violation of one’s right of privacy. This is particularly so if the co-host himself revealed such information to others and both were on-air performers who routinely spoke of personal information in an attempt to provide entertainment.
The item in the attorney’s letter that is most interesting is the allegation that the co-host was asked to “steal” copyrighted materials and post them on the station’s website. It looks like he is claiming that Mojo was forcing him to break copyright laws over his objection. Most states prohibit employers from retaliating against employees who object or refuse to participate in illegal conduct. If it turns out that the co-host was making objections to forced illegal behavior, the employer might have to do some explaining to show that the “ambush” and “constructive termination” of the co-host had nothing to do with those objections. Further, it is a wise reminder to radio stations that, in almost all states, asking an employee to do something against the law can have significant legal repercussions particularly if that employee is terminated or quits for something related to such a request.
Rather than comment exactly upon which way this case will go, it is useful to reflect more generally on advice to managers and radio stations in avoiding such on-air situations from getting out of hand. It is unlikely that the relationship between Mojo and his co-host was smooth up until the point that the co-host quit. Rather, it is likely there were hints both on and off the air of significant friction between these two radio personalities. While the content of their morning show may very well have been predicated in part upon the humor that arises from such friction, it is the job of station management to be attuned to when such friction or other lack of harmony is likely to lead to an undesired result. Here, no matter how unfounded the threat of a lawsuit might be, the undesired result of a threat of a lawsuit as well as the unanticipated loss of part of a morning team possibly might have been avoided by a better management sense of workplace harmony issues.
Another aspect to this situation which is instructive in radio station operations is a sense with both management and air personalities that certain program content is likely to be offensive or harmful. This type of offense or harm can occur in on-air pranks, on-air commentary and as we have seen with Mojo and his co-host, in morning show banter. Something ceases to be funny, for example, if a person is highly offended or has a reputation harmed, or there is a business that has its economic prospects damaged. It is these types of situations, where someone is belittled, a business is disparaged, or a person is made to look like a fool, that leads to lawyers and lawsuits. Huge red flags should go up with both management and air personalities regarding such on-air content.
This is not to suggest that radio content should shy away from controversy or other biting commentary. Rather, the admonition is that on-air content that has the potential to offend or harm should be fully vetted prior to broadcast by management so that an out-of-control radio host does not embroil a station in a lawsuit or other public relations fiasco that could have been avoided. And, as a final reminder, be sure that the station’s error and omissions insurance fully covers all conceivable claims that could be made regarding both on-air content, and in today’s world of social media any other media content that may be generated by station employees.
John F. Garziglia is a Communications Law Attorney with Womble Carlyle Sandridge & Rice in Washington, DC and can be reached at (202) 857-4455 or firstname.lastname@example.org. Have a question for our "Ask The Attorney" feature? Send to email@example.com.
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