MICHIGAN — Eastern Michigan University’s radio station did not violate a former disc jockey’s First Amendment rights after firing him for making controversial on-air comments, the Michigan Court of Appeals ruled Aug. 2.
After hearing the case for a second time, the appellate court affirmed the trial court’s decision, siding with Arthur Timko, the station manager at WEMU-FM. Timko fired disc jockey Terry Hughes after Hughes made comments supporting the war in Iraq on air and failed to run hourly National Public Radio newscasts during his show. Neither Hughes nor Timko are EMU students.
James Fett, Hughes’ lawyer, said he will appeal to the state supreme court, and to the U.S. Supreme Court if necessary.
Court documents state that during a March 30, 2003, broadcast Hughes said “we are supposed to be running news during the program. But that’s not going to happen. … We know that if you want a current and accurate assessment of what’s going on, you sure as hell ain’t listening to us.”
Hughes instead urged listeners to tune into Fox News for information on the unfolding conflict in Iraq.
Timko fired Hughes from the university-run radio station after listeners called in to complain about his comments, citing a failure to run the newscasts as well as a violation of the station’s policy requiring on-air personnel to maintain a neutral position on controversial issues.
Hughes filed a lawsuit against the station, saying his termination was a violation of his First Amendment rights.
The trial court granted a summary disposition in favor of Timko, saying that Hughes’ refusal to air NPR broadcasts constituted insubordination, for which the station had a right to terminate him. The court said that, as a public employee, Hughes’ interest in speaking out on a public concern was outweighed by the station’s need to run efficiently.
In Hughes’ first appeal, however, the court found that the trial court erred, and reversed its ruling. The appeals court said that Hughes’ pro-Iraq war comments constituted “a matter of public concern,” and were protected under the First Amendment.
In the ruling, the court also said that Hughes might have been unaware of his obligation to run NPR newscasts, citing claims that he never received a station-wide e-mail instructing employees to do so.
The radio station appealed to the state supreme court, which remanded the case back to the appellate court for reconsideration in light of a recent U.S. Supreme Court decision in Garcetti v. Cebllos.
Garcetti reaffirmed prior rulings that public employees maintain some First Amendment protections when speaking as citizens addressing matters of public concern. But the ruling goes on to state that those protections do not cover speech that is made pursuant to an employee’s official duties.
In a two-to-one decision, the appellate court affirmed in August the trial court’s ruling, saying that because Hughes’ “comments and refusal to run NPR broadcasts constituted part of his official job duties he was not entitled to First Amendment protections.”
In his dissenting opinion, Judge Stephen Borrello argued that there was an issue of fact as to whether or not Hughes’ speech was made pursuant to his duties.
“Due to the nature of his job as host of the music show, plaintiff’s on-air speech was an integral part of his job,” Borrello said. “Nevertheless, the fact that speaking on the air was generally part of his job duties does not compel the conclusion that the specific speech at issue was made pursuant to his employment duties.”
Borrello criticized the majority decision as analytically flawed and a blow to free speech.
“By providing this Court’s judicial stamp of approval on defendant’s violation of plaintiff’s First Amendment rights, this Court has created a further erosion of the protections guaranteed by the First Amendment,” Borrello said in his opinion.
James Fett said Hughes plans to file a motion for reconsideration soon, but it is unlikely to succeed.
“He’s got the wrong political orientation and he got whacked,” Fett said. “The politics of the case has been very interesting.”
Arthur Timko, who still manages WEMU, said he was surprised by the split decision but was pleased with the results nonetheless.
“It seemed quite obvious to me that the decision was fairly clear,” Timko said. “The complaintant was clearly working as an employee of the station, and violated station policy and disobeyed directive.”
While the lawsuit has not sparked a change in policy at the station, Timko says they have reaffirmed their neutral stance on contentious issues.
“We believe that we represent all the people, regardless of all political affiliation,” Timko said. “We don’t have any business taking one side over the other.”
For More Information:
Hughes v. Timko, No. 255229, 2007 WL 2214147 (Mich. App. Aug. 2, 2007).