Free Speech Isn’t Always Pretty

| January 31, 2013

By Steven J. J. Weisman
TALKERS 
Legal Editor

TAMPA — The circus has left Tampa, Florida.  Four years after statements by Tampa talk show host Bubba The Love Sponge (Todd Clem) ignited a lawsuit by rival morning show host MJ Kelli (Todd Schnitt) and two weeks of trial, a jury took a mere three hours to reject Schnitt’s and his wife’s claims of defamation and dismissed all 24 counts of  the complaint.

The bizarre case became even more bizarre when during the trial, one of Schnitt’s lawyers, Charles Campbell Jr., was arrested for driving under the influence of alcohol.  A motion for a mistrial was denied when the judge was satisfied that the jury had not heard of the charges.  It was even alleged by the Schnitt legal team that Campbell had been set up for the arrest after drinking with a paralegal who unknown to him worked for the law firm that represented Clem.

Schnitt’s lawyers had argued to the jury that as a result of Clem’s verbal assault on Schnitt over the airwaves, Schnitt suffered attacks from Clem’s fans including having his house egged and even an attempt, he claimed, by one of Clem’s fans to run him off the road in his car.  Regardless of whether these events were tied to Clem’s actions or not, the legal basis of the lawsuit was simple defamation.  Had Clem made false statements about Schnitt that harmed his reputation?  The burden of proof was higher for Schnitt than in an ordinary defamation lawsuit because Schnitt, by being a public figure himself, had to prove that Clem made false statements knowing they were false or with a reckless disregard for the truth.  In the end, the jury just didn’t believe that the statements qualified as defamation or that Schnitt’s reputation was harmed by such statements.

In his defense, Clem’s attorney argued to the jury that the case was a matter of free speech and that no one listening to a radio talk show host who specializes in bombastic rhetoric would take what is said as a serious representation of fact.  According to Clem, “None of it was malice, none of it was intended to hurt – it was classic radio war 101.”  This argument has been used successfully in previous defamation cases against talk radio hosts.  According to Clem’s lawyer, the statements alleged to be defamatory were merely opinion, hyperbole or satire, all of which are protected by the First Amendment.

Particularly in the context of this type of talk radio, this jury as have appeals courts who have dealt with similar cases, said that no one expects objective facts from this type of talk radio.  They expect to be entertained.  I don’t know how entertaining the trial was, but success by the plaintiffs certainly appeared all but doomed from the start.

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Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine. He can be e-mailed at: stevenjjweisman@aol.com.

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Category: Legal