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

MICHIGAN — Aformer disc jockey at a university-run public radio station can have his day incourt after being fired for expressing controversial opinions on air, accordingto a state court of appeals ruling.

In a decision released lastweek, the Michigan Court of Appeals reversed a trial court decision that sidedwith station manager Arthur Timko when he fired station employee Terry Hughes inApril 2003 after Hughes voiced on-air support for the war in Iraq and refused torun hourly NPR newscasts.

The radio station, WEMU-FM, is licensed toEastern Michigan University in Ypsilanti, Mich. Neither Hughes nor Timko arestudents at the university.

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

In the same broadcast, he expressed support for U.S. militaryinvolvement in Iraq, saying, ”We’re doing the right thing, OK? Getuse[d] to it, deal with it.”

After listeners contacted thestation to complain about Hughes’ comments, Timko fired him. Hughes thenfiled suit against the station, alleging the termination of his job was aviolation of his First Amendment right to free speech.

A state trialcourt sided with the station, and determined that because Hughes was a stateemployee, the station’s interest in efficiently running its servicesoutweighed Hughes’ interest in speaking out on issues of publicconcern.

The appeals court decision said the lower court erred onthat subject. As a government employee, Hughes’ speech qualified as a”matter of public concern” and was therefore protected by the FirstAmendment, the court concluded.

Hughes, who now produces a talk showand music program in the Ann Arbor area, said he was pleased with the appealscourt ruling.

”They yanked myshow off the air because I voiced an opinion on a controversial issue, andthat’s coming out against my First Amendment rights,” hesaid.

Ken McKanders, generalcounsel for Eastern Michigan University, said he was disappointed with theappeals ruling, and that university attorneys had felt they ”were on solidground.”

According toMcKanders, the strongest case for the university was the issue of Hughes’ insubordination in refusing to run the NPRnewscasts.

The appeals courtruling noted that Hughes claimed he never received a station-wide e-mail sent byTimko that required broadcasters to air hourly newscasts for all programs. ButMcKanders said there was proof in the transcript that Hughes had received thee-mail when he said on-air, ”I see right here we are supposed to berunning news during the program.”

”It’sclear from his own words that he was aware of the obligation and that he refusedto honor it,” McKanders said. ”The station has the right to requireits employees to run newscasts.”

He said attorneys for theuniversity are trying to determine if there is sufficient evidence to emphasizeHughes’ insubordination and take the situation out of a First Amendmentcontext.

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