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Imus in the Mourning

by Mark I. Schickman

I’ve received lots of e-mails recently about the major conflict still waging over the recent firing of eight U.S. attorneys. You wrote that the U.S. government, as an employer, should be able to fire any employee, so what was wrong if the Attorney General or the President had them fired? That observation is exactly right legally: A political appointee like a U.S. attorney can be fired at any time.

Indeed, newly released White House memos discuss performance issues that any of us might have commented on. For example, a March 5, 2006, memo from Monica Goodling (the Justice Department’s White House liaison) refers to fired Northern District of California U.S. Attorney Kevin Ryan as having “significant management problems” and running “one of the most fractured offices in the nation,” marked with high turnover and low morale.

As a pure employment issue, those are common reasons to fire a top regional manager. So is the issue that they were fired for their politics? That, too, is as common as sand. Witness the demise of Assistant Secretary of Defense for Detainee Affairs Cully Stimson.

On January 11, 2007, Stimson went on a radio show and named the major law firms that had been donating their time and resources to provide a defense to detainees held at our Guantanamo naval base in Cuba. After accusing those pro bono volunteer lawyers of defending terrorists, Stimson named their clients and asked corporate CEOs “to make those law firms choose between representing terrorists or representing reputable firms.”

The tactic backfired. The corporate clients publicly defended and applauded the practice of pro bono representation, backed by the American Bar Association and editorial boards across the country. When an apology failed to calm the waters, Stimson was forced out of his position. No congressional hearing was called when his head fell for taking a stance that his employer didn’t like. From a legal and policy perspective, his fall passed scrutiny.

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Was shock jock’s firing shocking?
The most recent example of this mix of policy and personnel law is Don Imus. For 30 years, Imus has been the third-most-obnoxious shock jock on American radio. Even when he was named one of Time magazine’s “25 Most Influential People in America,” he made a career out of viciously insulting gays, Jews, people of color, women, foreigners, the disabled, and any other group I may have missed.

Recently, he and his producer disparaged the Rutgers women’s basketball team (the NCAA championship runner-up) in a sexist and racist insult typical of his show. Within a week, he moved from riding high to being suspended and finally to being terminated and reviled.

Why did that particular racist, sexist slur take Imus down? Maybe it’s because college sports is the last icon of innocence in our society. Maybe it’s because YouTube has made every passing comment permanent and spreadable. Maybe it’s because the Rutgers team was so classy and Imus was so typically crass.

Personally, I think the exodus of his corporate sponsors did the trick. But for whichever reason, the broadcast corporations that were making $20 million a year on Imus now find him to be a commercial liability, so he is off the air.

But a couple of nagging questions remain. First, as bad as Imus’ last insult was, much worse examples of xenophobic, misogynistic, and downright misanthropic shock jocks and popular music remain on the airwaves.

Mainstream rapper Snoop Dog bridles at any comparison to his genre’s violent and offensive songs as “coming from our minds and our souls and relevant to what we feel.” So is that what made Borat’s viciously anti-Semitic, sexist, racist, boorish film OK and Imus’ similarly obnoxious comment the kiss of death? Or is Imus just not funny enough?

Finally, before they stop Imus’ paychecks, CBS and MSNBC better have some good contractual language to protect them. Over the past 30 years, they have made over $100 million by airing Imus’ obnoxious garbage.

In the Rutgers insult, he did nothing that his employers couldn’t expect (and didn’t encourage) at the moment his current contract was signed; being obnoxious, crude, and offensive was likely at the top of his job description.

Imus has hired a prominent attorney and appears ready to file suit against CBS Radio over his firing. So this controversy isn’t going away anytime soon.

Employment law and public policy: Sometimes they intersect, but not often.

Mark I. Schickman is a partner with Freeland Cooper & Foreman in San Francisco and the editor of California Employment Law Letter. You can reach him at (415) 541-0200.

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