(LEGAL) Was Tampa Trial Really About 1st Amendment
by John Garziglia
The Bubba/MJ trial brings to mind the too-often quoted observation attributed to George Bernard Shaw “never to wrestle with a pig. You get dirty, and besides, the pig likes it.” There is no doubt in my mind that both Bubba and MJ, at least during some phases of their legal fiasco, both had moments of ecstatic enjoyment over the woes being inflicted upon the other. Indeed, what could be more fun than competitive air personalities extending a radio war into a trial that is covered by all of Tampa media.
Before launching into more somber observations about this lawsuit and trial, and the lessons it holds for radio (if any), I have to commend Bubba’s attorneys. Bubba’s legal team was obviously able to communicate to the jury that what went down between Bubba and MJ was part of radio’s competitive landscape, and not horrible acts that needed to be redressed through a lawsuit.
I also have to confess that I am not at all sure that both Bubba and MJ were not punking us all into believing in the legitimacy of their lawsuit, and that it was not just a ratings stunt. I suspect that at least at some points in the saga, each was egged on by the prospect of more listeners and notoriety. Keep in mind that this is the case that produced newspaper headlines during the course of the trial such as “Attorney arrested for DUI claims he was victim of honey-trap after paralegal from other side bought him drinks and asked him to move her car”.
Bubba was quoted after the trial that “[t]his is a landmark case for media. This is for Saturday Night Live and Rush Limbaugh and Glenn Back and, oddly enough, MJ himself.” Somehow, I am not so sure of that. No new law was created. The case, on its facts, went to trial and went to the jury. The jury made factual determinations that what was alleged did not constitute defamation and that there were no damages. This is not new law. This is applying existing law to the facts. It tells us what we already know, which it is difficult, at best, for a public figure such as a radio air personality and his wife that had commensurate notoriety to claim defamation when each appeared to willingly engage in the mud fight (see the pig lesson above).
There is a fine line in any entertainment endeavor between the boring and the exciting, the uninteresting and the captivating, and the forgettable and the memorable. Any performer that goes too far over the line toward being exciting, captivating and memorable may run the risk of legal consequences. Just look at Lenny Bruce and Howard Stern as examples. Entertainment is always a double-edged sword.
The Bubba/MJ trial is just a variation of the risk that every radio station, and every air personality, incurs every day with most elements of programming. Yes. Surprise! Radio station air personalities can be sued for defamation for what they say.
So, rule number one for any air personality that engages in programming elements that might conceivably engender a lawsuit is to have as much liability insurance as can be afforded. In the facts of the Bubba and MJ case, we have a pretty good example of programming elements that might engender a lawsuit (hint: Bubba calling his competitor’s wife a “whore” is a good example). With defamation actions, it is the cost to cover the defense of any lawsuit that is one of the primary purposes of insurance.
Bubba prevailed and won with a jury verdict. But the trial itself likely cost Bubba hundreds of thousands of dollars in legal fees to reach that result. As for MJ, for the sake of his attorneys, I hope that he was current in his payment of legal bills as it appears that MJ just threw a lot of money and many moments of his life down a deep litigation hole without any recovery, either for his pocketbook or to his presumed reputation.
So what is next? Will Bubba and MJ now get together and make a TV reality series out of the legal proceedings films to recoup some of their legal fees. Will each ultimately have a return on their investment because of all of the resulting TV and media exposure?
There will be many in our industry that will decry the baseness and vulgarity of the radio programming that was put on trial. Ultimately, of course, it is not the decision of the air personality, but rather the decision of the radio licensee, that controls such radio programming. The FCC continues to have a heavy hand on certain elements of programming such as hoaxes, rigged contests, vulgarity and indecency. The reckoning for radio stations comes every eight years at license renewal time.
Allegations of offensive programming, even if not ultimately actionable by the FCC under its license renewal standards, have the potential to hold up a license renewal grant for months or years. It is the prospect of such delayed license renewal action, and not a lawsuit between competing air personalities, that is possibly the ultimate check on such radio war mayhem getting completely out of control.
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 email@example.com. Have a question for our "Ask The Attorney" feature? Send to firstname.lastname@example.org.
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