Atlanta-based talk radio host Neal Boortz of WSB 750AM appears to have used the end of Arbitron’s spring ratings season to test the limits of the First Amendment. In mid-March, Boortz engaged in on air behavior so outrageous it’s reasonable to wonder if he was hoping to create enough controversy to influence his ratings.
The more recent of two incidents involved a March 14 anti-war protest by the Pittsburgh Organizing Group, or POG. POG had announced that it would picket a military recruiting office that evening. Just after noon EST on March 14, Boortz demonized POG and its activities and then encouraged anyone on hand for the protest to “Shoot those leftist bastards dead.”
Boortz, who holds a law degree, must know that the First Amendment doesn’t protect speech intended to incite violence. In Schenck v. United States, the Supreme Court ruled that reasonable limits on freedom of speech are constitutional:
…the character of every act depends upon the circumstances in which it is done. Aikens v. Wisconsin, 195 U.S. 194, 205, 206. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 439. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
The legal question is whether or not encouraging someone among Boortz’s hundreds of thousands of listeners to “Shoot those leftist bastards dead” created a clear and present danger to members of POG.
What’s most interesting is that the members of POG were clearly exercising their First Amendment rights by holding a peaceful protest, which calls Boortz’s motives into question. In addition to potentially creating a clear and present danger to POG, an incitement to violence could reasonably be expected to create a chilling effect on similar protesters, that is, to infringe on their right to free expression. It appears that Boortz was concerned with ratings and not principle.
(Ironically, Schenck v. United States involved incendiary language used by leftists protesting the draft.)
The more disturbing incident occurred a week before, when, beginning at approximately 10:35am EST, Boortz repeatedly played audiotape of a nine-year-old child and mocked and ridiculed the child’s speech patterns. Legal precedent makes such behavior, while reprehensible, protected speech when aimed at adults. One legal issue to be determined is whether such behavior aimed at a child is also protected.
To compound Boortz’s malevolence, both he and WSB General Manager Dan Kearney were advised that the child in question suffers from at least one disability. Even without having been notified, the audio speaks for itself; Boortz listeners commenting at this blog suspected some disability. Subsequently, posts at Newsprism.com that addressed the disability were referred to by Boortz on air, and the Boortz Show emailed Newsprism several times. One such email specifically addressed the question of the child’s disabilities: “In your blog you seem to be backing off your claims that Lil’ Buford has some sort of a disability...”
Nonetheless, Boortz, clearly with the knowledge and permission of WSB management, continued to humiliate the child up until Thursday, March 13. A second legal issue to be determined is whether a broadcaster has a responsibility to consider the psychological and/or emotional state of the target of such humiliation. If, for example, someone with schizophrenia were to be humiliated publicly over an extended period of time, would it be foreseeable that psychological damage might be done?
Boortz went so far as to publish the following additional insults towards the boy on his web site, www.boortz.com, on March 13, well after having been informed of the child’s disabilities: “…looks like we’ve really twisted a few knickers out there with our panning of Lil’ Buford’s communications skills. You remember Lil’ Buford, don’t you? The 10-year-old kid who can’t speak the English language? Yeah .. that one, the future worm farmer.”
A well-publicized case involving an adult harassing a teenager online in 2006 did not lead to criminal charges being filed despite the fact that the harassment appears to have contributed to the teenager’s suicide. However, public outrage made the adult harasser a pariah after a blogger published her name and address on the Internet. Wired.com notes that “few can imagine an offense more egregious than a trusted adult preying on the emotions of a vulnerable child.” No civil suit was filed, and the question remains open whether such circumstances would support an intentional infliction of emotional distress suit. Update: legal action has been taken as of May, 2008…
By March 14, the web post in question was removed from www.boortz.com. On that very same day, Boortz made his “Shoot those leftist bastards dead” comment; was this coincidence, or did he simply choose another tactic in a cynical attempt to generate controversy and increase ratings?
The privilege of broadcasting carries with it a fiduciary duty (an assumption of trust) and a mandate to act in the public interest. Broadcasters, then, are subject to the same or more stringent limits as private citizens—there is no “extra” protection afforded them. The law on intentional infliction of emotional distress, while vague, involves behavior so outrageous that it “shocks the conscience” and therefore doesn’t have a place in a “civilized society.” Standards have also been created that address “depraved indifference” towards a victim or the “reckless disregard” of another’s well-being.
The family of the child Boortz humiliated appears to be pursuing a lawsuit in which these and similar issues could emerge. It’s worth noting that the issues in these cases don’t involve mere content, such as indecent or obscene statements, but rather the infliction of damages on specific listeners and the duty of the broadcaster to mitigate such damages.
It’s clear that neither Boortz nor WSB management was operating in the public interest, in the best interest of POG or the young child, or in the best interest of the First Amendment. The timing of the incidents suggests an attempt to improve ratings and increase advertising rates at the expense of the First Amendment.
Boortz and WSB will argue that Boortz was simply exercising his First Amendment rights. Hogwash. Hopefully, a jury (or two) will get to decide the reasonable limits of those rights.
April 11, 2008 at 5:59 pm |
Let’s set the record straight about Boortz’s Law License!
He received a law degree from a nigh-time law school that wasn’t accredited by the American Bar Association. The John Marshall School of Law was a known as a diploma mill. The school recently (2005) received a Provisional Accreditation from the ABA. He can’t practice in another state, or before the Georgia Supreme Court!
He was a Real Estate Attorney, nothing more, nothing less, the closing attorney on house sales!
April 14, 2008 at 8:41 pm |
hey professor (deleted)…your forgot to mention that the left wing elitist group said they were planning to go into the recruting office and tie up and threat the soldiers…so yes i would have shot them myself if they said they were going to do that…your right first amendment doesnt protect violence but the leftist started the violence…but good job on your wanna be radio talk shot host bias reporting…be sure to write about u to cnn.
April 15, 2008 at 10:29 am |
I think that Boortz has no right to be criticizing children on how they speak or whatever the disability may be. It is childish, rude, and uncalled for. I also think the reason he does this is he has run out of that same old bullshit to talk about and cant find anything else better to do. Well he needs to find something better than this, i know, he can go to the green and work on his putz!
April 16, 2008 at 11:00 am |
I would ahve to completely agree that Boortz was beyond out of control with these remarks. Any recognized news broadcaster should know that any and everything they say will be used against them. In Boortz’s case, he did not need anyone to use his words against him becasue he had already done more than that for himself. Everyone is entitled to their own opinion, but there is a limit to what should be considered appropriate or not. Boortz was deffinately acting inappropriately, and this should not go unrecognized.
April 16, 2008 at 12:48 pm |
Chuck,
What are babbling about, seriously what are you talking about?
April 16, 2008 at 12:55 pm |
Royal, we have to be compassionate towards Chuck. He managed at least ten grammatical, spelling, punctuation and capitalization errors in one short post, plus all those factual errors. I suspect he suffers from some kind of learning disability, and he definitely suffers from EDD—Empathy Deficit Disorder—just like his hero, Neal Boortz. Is there such a thing as Viagra for the soul?