Home / Education / Law / Use Internet to fight for your rights

Use Internet to fight for your rights


HOW YOU CAN USE THE INTERNET
TO FIGHT ON-AIR IDIOCY
By Steven M. Magas, Ohio’s Bike Lawyer

First, a history lesson.  Remember 2003?  Some of you do, I know… Well, 2003 will go down as the “Year of the Idiot DJ”.

 In Cleveland, Ohio, DJs on a drive-time show start bashing cyclists for taking up the roadway, slowing down traffic and such. They then entertain comments on how to take them out. In Houston a similar show aired a month or so later and in Raleigh, NC, the same thing has happened.  All the shows were broadcast on the Clear Channel family of radio stations.

 Are these antics legal? Can the radio personnel be prosecuted? Can someone sue the radio station? What can a simple cyclist do to help out? How can you find out more?

 

LEGALITY OF ON AIR CYCLE BASHING – BANNING SPEECH

On Oct. 2, 2003, Bob Mionske published a wonderful piece on the Velo News webpage about the legalities of radio “shock jocks.” This is a First Amendment issue first and foremost. Our country prides itself on permitting speech in virtually every form.

However, there are certainly limits to free speech. The “FIRE” in a crowded theater example leaps to mind, but the test is broader than this. In Brandenburg v. Ohio, a 1969 U.S. Supreme Court case, the court said: “Advocacy of the idea of illegal conduct, without more, is constitutionally protected. Only where such advocacy is directed to inciting or producing imminent lawless conduct and is likely to produce such actions may the speech be suppressed.”

So, three things are required in analyzing what a shock jock says to determine if it is actionable or prohibited;

  1. Direction – A “Do It Now” idea;
  2. The directed conduct must be imminent – “Call us as you are running that cyclist off the road”;
  3. The DJ’s talk must be “likely” to produce action: ["Throw a Yoohoo bottle at that cyclist in front of you and see what happens." "If you drive up behind her and blast the horn, you can watch her fall into the ditch."]

 Can a DJ’s words measure up to constitutional scrutiny? If not, they can be banned under the First Amendment.

CRIMINAL PENALTIES – The Sex In The Church case

New York DJs thought it would be fun to have people call them when they were having sex in odd places. One couple called from St. Patrick’s Cathedral in NYC. One of New York’s finest heard the broadcast and arrested the couple. The radio show producer was charged, and is expected to plead guilty to “disorderly conduct.” Of course, no one was hurt in this stunt. If the producer had asked people to call in as they ran bikes off the road, the charges could have run up to manslaughter or murder!

FCC FINES AND PENALTIES

Another way to curb radio DJs is to fight through the FCC. The FCC has the power to fine or sanction radio stations. In the infamous Seven Dirty Words case, the Supreme Court in 1978 upheld the FCC’s power to fine the radio station for broadcasting George Carlin’s monologue at 2:30 in the afternoon. In 2002, the court found that a website that listed the names of physicians who did abortions and then crossed out the names as the physicians were murdered was illegal and could be regulated by the state. Thus, if “shock jocks” violate FCC standards, the FCC can regulate, fine or shut down the station if need be.

CIVIL CASES – MONEY DAMAGES

In a civil case, can a radio station by sued by a cyclist if a motorist who is listening to, or encouraged by the DJ runs down the cyclist? The answer is clearly YES. “Freedom of speech” is a non-issue if the speech is the encouragement of the commission of a crime. A three-prong test has been developed in federal court, as follows:

  1. The party whom the media outlet aids must perform a wrongful act that causes an injury;
  2. The media outlet must be generally aware of their role as part of an overall illegal or tortuous activity at the time that they provide the assistance;
  3. The media outlet must knowingly and substantially assist the principal violation.

 Could a radio station be liable to an injured cyclist? Absolutely, under the right set of facts. This test has not yet been adopted in Ohio, but if DJs continue to urge listeners to throw things at cyclists, shoot them with pellet guns or run them off the road, it is probably just a matter of time.

WHAT CAN YOU DO?

So what can YOU do… the average cyclist who joins the cycle club, rides a few rides, hears about injustice against cyclist and owns a computer with access to the internet? The internet, you say. Hey, you’re not only able to help, but you can help in a BIG way!

Cyclists have used the Internet as a communication tool ever since PCs have become popular. I wrote an article in 1995 or so, on my 386-SX computer that talked about how a high school girl’s article in a school newspaper which discussed bumping cyclists with a car to get them out of her way, generated hundreds of e-mails from irate cyclists around the world. The same thing has been happening today. If you log onto any of the many excellent internet bicycle forums such as “crankmail” or “OhioBike” or the League of American Bicyclists sites, you will be among the very first to hear about these issues. I have heard that the Cleveland station received THOUSANDS of e-mails about the anti-cycling DJ’s.

It only takes a FEW letters to get a station’s attention. I sent letters in each case to the bosses of each station.  It’s funny, but the Houston, Cleveland and Raleigh stations each responded exactly the same to my e-mail… at first. They accused me of being, basically, a humorless moron who didn’t get the “joke.” However, I kept pounding, as did others. Eventually, the stations caved, apologies were issued, people were fired and monies are now being spent on education on bicycling issues.

Personally, I sent letters to the radio stations in Cleveland, Houston and Raleigh as soon as I read about the DJ’s misconduct. I copied the cycling bulletin boards and the Clear Channel bosses as well as the local club representatives to show support from Southern Ohio. In Raleigh, I added a complaint to the FCC.

In Raleigh a local cycling club also targeted sponsors of the radio show and, as of this writing at least two major sponsors pulled ads from the show. [I sent them a thank you note.]

I also circulated a story about the Church Sex Case, discussed above, under the heading “Oh Gee, LOOK, a wacky radio stunt goes awry & a radio producer pleads guilty to a crime….” That too was sent to the radio station, all of the various Internet groups, the FCC, a Raleigh newspaper reporter, sponsors and the Clear Channel bosses.

2009 – THE FACEBOOK INCIDENTS

Fast forward to 2009, an age of enlightenment?  Hardly. In 2009, the digital bashing of cyclists continues.  On the popular social networking site, FACEBOOK, a group arose with the provocative title “There’s a perfectly good path right next to the road you stupid cyclist!”  The group publishes anti-cycling commentary, but also has grisly photos seemingly glorifying cars smashing into cyclists!  The group has more than 30,000 members.

 In response, another group sprung up called “HELP Remove This HATE GROUP Against Cyclists.”  This group’s membership reported the hate group to FB’s management to try to get it removed. That failed, but membership jumped to almost 44,000 members in a few days.  Many members of the pro-cycling group also joined the “hate group” and began spreading messages of love and joy for cycling on the hate group pages!!

 All of this advocacy was done from a computer on-line in a manner of minutes, without ever using that part of a tree that produces a single piece of paper… amazing…don’t ever think that little ole YOU can’t make a difference… you CAN!