Former DJ's First Amendment lawsuit can move forward, appeals court rules

MICHIGAN -- A former disc jockey at a university-run public radio station can have his day in court after being fired for expressing controversial opinions on air, according to a state court of appeals ruling.

In a decision released last week, the Michigan Court of Appeals reversed a trial court decision that sided with station manager Arthur Timko when he fired station employee Terry Hughes in April 2003 after Hughes voiced on-air support for the war in Iraq and refused to run hourly NPR newscasts.

The radio station, WEMU-FM, is licensed to Eastern Michigan University in Ypsilanti, Mich. Neither Hughes nor Timko are students at the university.

In a transcript for the March 2003 broadcast that prompted Hughes' termination, the disc jockey said he would not be running news during his program and urged listeners to ''go over to Fox News where they're not bending it one way or another.''

In the same broadcast, he expressed support for U.S. military involvement in Iraq, saying, ''We're doing the right thing, OK? Get use[d] to it, deal with it.''

After listeners contacted the station to complain about Hughes' comments, Timko fired him. Hughes then filed suit against the station, alleging the termination of his job was a violation of his First Amendment right to free speech.

A state trial court sided with the station, and determined that because Hughes was a state employee, the station's interest in efficiently running its services outweighed Hughes' interest in speaking out on issues of public concern.

The appeals court decision said the lower court erred on that subject. As a government employee, Hughes' speech qualified as a ''matter of public concern'' and was therefore protected by the First Amendment, the court concluded.

Hughes, who now produces a talk show and music program in the Ann Arbor area, said he was pleased with the appeals court ruling.

''They yanked my show off the air because I voiced an opinion on a controversial issue, and that's coming out against my First Amendment rights,'' he said.

Ken McKanders, general counsel for Eastern Michigan University, said he was disappointed with the appeals ruling, and that university attorneys had felt they ''were on solid ground.''

According to McKanders, the strongest case for the university was the issue of Hughes' insubordination in refusing to run the NPR newscasts.

The appeals court ruling noted that Hughes claimed he never received a station-wide e-mail sent by Timko that required broadcasters to air hourly newscasts for all programs. But McKanders said there was proof in the transcript that Hughes had received the e-mail when he said on-air, ''I see right here we are supposed to be running news during the program.''

''It's clear from his own words that he was aware of the obligation and that he refused to honor it,'' McKanders said. ''The station has the right to require its employees to run newscasts.''

He said attorneys for the university are trying to determine if there is sufficient evidence to emphasize Hughes' insubordination and take the situation out of a First Amendment context.

McKanders said the university is considering a move to ask the state Supreme Court to review the appeals court decision. He said there is also a chance the case will return to a lower court to be heard by a judge or jury.

Eastern Michigan University, Michigan, news, WEMU-FM

More Information

Case: Hughes v. Timko, No. 255229, 2006 WL 473762 (Mich. Ct. App. Feb. 28, 2006) (unpublished).