Monday, December 10, 2007

Imus vs. Hip-Hop

The following article was one that I wrote right around the time that Don Imus was fired. Now that he is back, I thought that some reflection would be good.

Once and for all: DO NOT equate the disparaging words of fallen radio/TV host Don Imus with the disparaging words emanating from SOME of the lyrics in Hip-Hop music. They are NOT the same animal. As Russell Simmons recently indicated on Oprah Winfrey’s show, the rappers in the Hip-Hop community are poets who depict the world that THEY come from and their censorship ought not even be discussed. I DO have issues with the misogynistic and race-deprecating lyrics prevalent in Hip-Hop songs, but I will address that in a different discourse that I can hopefully share with you shortly.

Parallels have been drawn between the comments of other “shock jocks” and Imus’ comments. They have been drawn between Imus’ comments about Rutgers’ women’s basketball team and other comments made by Imus. There was even an example given of some journalist calling Barbara Walters a “mind slut”. None of these comparisons hold water. They don’t compare because none of these other comments open up the speaker or their employer to slander and defamation of character lawsuits. The comments Don Imus uttered about the Rutgers basketball team DO expose Imus, MSNBC, and CBS to such a lawsuit -- one the plaintiffs could easily win.

Journalists and radio/TV talk show hosts/commentators are allowed to give their opinions about public figures/celebrities rather freely -- even when such remarks are somewhat disparaging. The legal rationale is that these public figures/celebrities depend on media exposure for their livelihood and thus have to take the bitter with the sweet. The media helps them make money and so the media is also allowed to cost them money via the opinions of these media personalities. All exposure for them isn’t going to be good and they just have to grin and bear it. The additional rationale is that they have access to other media outlets by which they can and do give their side of the story -- as with Barbara Walters, for example.

Don Imus uttered slanderous and defamatory remarks about non-celebrities/public figures. They may enjoy some notoriety because of their athletic accomplishments, but their livelihood does not depend on public exposure. They are not professional athletes. They are student-athletes. Therefore, MSNBC and CBS fired Don Imus because his comments opened them up to legal liability that could cost them -- and Imus -- millions of dollars. If they had let him stay on they would be showing tacit approval for his antics. Letting him go shows that such defamation is not condoned by them. And yet, they still could be held liable simply because Imus has a history of making similar racist statements on air. This means that it could be found by a court of law that they “knew or should have known” that he had the potential to expand his comments to specific non-celebrities -- especially if there exist no written prohibitions in this area that Imus could be deemed well aware of at the time of his defamation.

There may even be absolute liability imposed on a media conglomerate for the uttering of its on-air employees regardless of their admonitions. I’m not sure of that. It’s been almost seventeen years since I graduated from law school and my career choices took a different turn. A licensed practicing attorney can give the specifics in that area but the fact remains that the Rutgers basketball team has a veritable “slam dunk” of a lawsuit at their disposal that can make them very rich, compliments of Don Imus.

By no means do I intend to devalue the efforts of those voices across America calling for Imus’ firing. Nor am I overlooking the withdrawal of sponsors from Don Imus’ show. I merely submit that the legal liability was the countervailing reason that MSNBC and CBS fired Imus. The voices of outrage probably scared the sponsors who feared boycotts. These same voices probably led MSNBC and CBS to conclude that the issue wouldn’t go away and that the constant rumblings would likely end in a lawsuit. I am certain that these media outlets, thus, consulted with in house counsel who advised them to distance themselves.

Granted, keeping Imus on the air also opened MSNBC and CBS to FCC fines as well. But, media conglomerates usually stand by their “shock jocks” despite FCC fines and lost sponsorship when they determine that the money made from their on air presence significantly outdistances the money lost. With Imus they lost sponsors, probably had no new sponsors waiting in the wings, and had to consider the looming threat of FCC fines and lawsuits. Keeping him was, therefore, not economically viable.

In contrast, Hip-Hop lyrics in some songs DO NOT expose the artists or their distributors to lawsuits nor FCC fines. The lyrics are not considered defamatory because they aren’t directed at specific non-celebrity personalities. They are generalized statements. For the most part they aren’t subject to FCC censorship because they are already censored. The abusive language is usually bleeped, and even the videos usually have the nudity and thonged behinds blurred beyond recognition.

So calling for Hip-Hop artists to be fired in not an option. Their music is considered protected artistic expression. Some of us may not like it, but they can’t be successfully sued for their expressions neither are they nor their distributors likely to incur FCC fines. Although there are some videos that skirt the line of decency, my sense is that they are probably still within the realm of FCC regulations. Thus, rather than dwelling on unfruitful strategies for purging Hip-Hop music, we need to concentrate on strategies likely to work.

Strategies likely to work are demanding the adherence to rating systems for the music, pressuring the FCC to change their decency standards, and boycotting companies associated with distribution -- including the sponsors that enable said distribution. But we must keep in mind that we are not likely to force the eradication of sexually and racially disparaging music. America frowns on efforts at censoring artistic expression. That battle cannot be won absent a complete change in American philosophy. What we can do is force more parity within the Hip-Hop industry -- something that many Hip-Hop artists themselves seek. We need to join their fight.

And getting back to the term “mind slut”, I can’t help but question whether or not the term applies to CNN. I offer that analysis because all I heard CNN report on relative to the Don Imus controversy (as well as MSNBC -- I’m an avid viewer of both) was the blaming of Hip-Hop for his comments and the need for national healing. But I don’t recall any mention of the possibility that these accomplished student athletes at Rutgers might sue for damages. In contrast, April 18th -- two days after the incident -- Lisa Bloom stated on CNN that lawsuits at Virginia Tech University were probable in the aftermath of the brutal massacre there.

Ms. Bloom stated that if the university knew that Seung-Hui Cho was a threat to himself and others and failed to act, it might be culpable. Others on CNN and MSNBC hinted that lawsuits might emanate from the Virginia Tech tragedy. So we have to question why no one gave even a passing thought to the possibility that the Rutgers ladies might sue. We have to question why the emphasis in the Imus debacle was on forgiveness and not retribution through the courts. Granted, the massacre was an infinitely more devastating occurrence. And yet money is much more likely to adequately compensate the loss suffered by the ladies of Rutgers than it would the losses incurred by the families at Virginia Tech. The loss of life is immeasurable. An assault on one’s dignity isn’t. The price is high, but it can be measured.

I contend that the media shied any from the subject of lawsuits against Imus because they are hesitant to even tacitly encourage anyone to sue one of their own. But Imus -- and possibly CBS and MSNBC -- should be sued to ensure that this kind of thing doesn’t happen again. I am aware that Coach Vivian Stringer reported that the team accepted Imus’ apology and was in the process of forgiving him. But, I also recall the poignant testimony she related of her decision to become a cheerleader. She did so to empower the Black women who came behind her. The situation is the same here.

The Rutgers team needs to sue Imus in order to empower those who will come behind them. The dynamic of considering the next generation has always been a hallmark of the civil rights struggle and it always will be. Suing Imus is necessary because in a capitalistic society, financial pain is the only LASTING deterrent to these kinds of egregious acts. If MSNBC and CBS aren’t sued, there will likely be another Don Imus on their airways in the future. If they are sued, it’s not as likely to happen.

H. E. Barrett, Jr.
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