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Imus and the Legal System: Protecting Racists against Lawless Firings and Meritless Lawsuits


Friday, Aug. 17, 2007

When Don Imus reached a confidential settlement with CBS over his termination, you could almost picture him channeling Richard Nixon in 1960: "You won't have Imus to kick around anymore!" I've criticized confidential settlements in the past for concealing serious wrongs that lawsuits can uncover, like exploding mass-produced tires, wide-ranging discrimination, and clergy sex abuse. But Imus's breach of employment contract claim against CBS may be the exception to the rule: The world really wouldn't be better off had Imus gone ahead with litigation against CBS.

Imus's Surprisingly Strong Breach of Contract Claim

For all the controversy, Imus's breach of employment contract was fairly humdrum: He could be fired only for "good cause," he alleged, and for an employee hired specifically to be "shock jock," offending people isn't "good cause" for termination.

It's hard to argue, as a policy matter, that firing a racist like Imus was a mistake. As a legal matter, however, Imus's argument was at least half-decent - and our legal system protects even racists when their legal rights are violated. The key argument in Imus's favor is that he may have had no reason to suspect that shock jock on-air offensiveness would be deemed cause for termination at CBS Radio. After all, CBS Radio in 2006 had hired "Opie & Anthony," who had previously been fired from a Boston radio station for a "gag" report of the fiery death of Boston Mayor Thomas Menino, and later fired from satellite radio for an on-air gag involving sex that took place, at the duo's behest, in New York City's St. Patrick's Cathedral. The same station that so recently welcomed Opie and Anthony might have a hard time claiming that it needed to fire Imus to preserve its pristine image and avoid offensive content.

In any event, the Imus-CBS settlement moots whatever arguments the parties might have levied against each other, so now we can move on to . . . the new Imus lawsuit.

The Defamation Suit: Sympathetic, But Ultimately Meritless

This second suit was brought by Kia Vaughn, a star on the championship Rutgers women's basketball team whose members Imus called "nappy-headed hos" on the air. Vaughn has sued Imus for defamation; I certainly can understand Vaughn's wanting to nail Imus for his heinous, racist insult, which seemed to be motivated by nothing other than disdain for black women. But while I can understand Vaughn's upset, I can't justify her meritless lawsuit, even if I don't have a lot of sympathy for the lawsuit's target.

Vaughn's lawyer said at his press conference, "There's no way these bigoted remarks should have seen the light of day." But that's theater, not law; I'll give him the benefit of the doubt and assume he knows that you can't sue racists just for saying racist things. Rather, to sue for defamation, you have to prove that a false factual statement was made.

What's the factual statement in calling an entire women's basketball team "nappy-headed hos"? It's another paraphrase from Nixon, who made "I'm not a crook" famous; Vaughn is alleging, "I'm not a ho" (the actual words she used were, "that's not what I am"). Here's what Vaughn's lawyer wrote about Imus's insult in the complaint he filed in court: "The . . . false, defamatory, sexually denigrating and slanderous statements and comments against the women athletes of said basketball team were heard, believed and understood by millions of listeners . . . as factual pronouncements concerning the character, chastity and reputation of the plaintiff."

Raise your hand if, when you first heard of the Imus remarks, you actually thought Imus was an investigative journalist who made his comment after discovering that the championship Rutgers women's basketball team was a prostitution ring. Of course, that's not what any reasonable person understood: From racists cheering him on to fair-minded people who were appalled, we all understood that Imus was just insulting a newly famous group of young black women.

Vaughn and her lawyer might argue, in the alternative, that "ho" could be taken figuratively to mean a woman who is simply promiscuous, not an actual prostitute for hire, and it's true that imputations of unchastity are classic defamation. Nevertheless, it's just as implausible that listeners thought Imus was reporting factual information about a basketball team's sexual practices, as that they thought he had infiltrated and exposed a prostitution ring.

The Lawyer's Burden: Turning Away Clients Who, While Wronged, Do Not Have a Case

This is a classic case of a plaintiff who's justifiably enraged about something that's not illegal (racist insults) and therefore filed a lawsuit dubiously asserting something that is illegal (false factual statements about sexual practices).

When I was a full-time plaintiff's lawyer, I often had to talk clients off the ledge when they were upset at serious mistreatment but simply didn't have any real legal claim to file in court, telling them, "Look, I know you're upset about X, but you can't sue for X; you can sue only for Y, and you can't prove Y." (I'm paraphrasing for brevity; I usually tried to express a little more empathy in such situations).

Sadly, the worst possible outcome would be if the case isn't promptly dismissed, as it should be. That outcome is entirely possible, given the questionable state of the New York State judiciary, which the New York Daily News memorably criticized for "how political bosses in New York turn their handpicked cronies into [unqualified] judges - particularly state Supreme Court justices"- criticisms echoed by many leading legal and news figures. If the judge assigned this case bows to political pressure not to dismiss the case, the result could be a big verdict from a sympathetic Bronx jury, though one that might be reversed on appeal.

It's a Strange World Where Imus Is Right and Vaughn Is Wrong (on the Law)

These cases offer a striking illustration of the difference between the outcomes the law requires and the outcomes we might like to see. Even though I was glad to see Imus off the air, I have to admit that he had a real legal claim that CBS's firing of him was unlawful. Even though I think Imus wronged Vaughn badly, I have to concede that she has no real legal claim against him.

Don't get me wrong: I'd love to see Imus penniless and Vaughn thriving - but just not at the expense of warping our justice system into a tool of lawless revenge. Verdicts have to be based on law, not on our value judgments about whether we like the plaintiff or the defendant better.

Those cheering on Vaughn's lawsuit in the name of fighting racism should keep in mind that crony judges bowing to political will have often been the enemy of civil rights, and unbiased letter-of-the-law courts have often been the ally. Is a high-profile, legally-questionable verdict against Don Imus really worth getting in bed with the ugly side of the judicial system?

Scott Moss is a professor at the University of Colorado Law School.

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