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Web Site’s Call for Boycott of Companies Advertising on Right-Wing Talk Show Is Protected by First Amendment

June 10, 2003

Web Site’s Call for Boycott of Companies Advertising on Right-Wing Talk Show Is Protected by First Amendment

Oregon Talk Radio Syndicator’s Suit Should Be Dismissed, Public Citizen Tells Illinois Court

WASHINGTON, D.C. – A Web site that urges people to boycott companies that advertise on a right-wing radio show is protected by the First Amendment, and attempts to shut it down should be dismissed, Public Citizen told a court today.

In a brief filed in U.S. District Court in the Northern District of Illinois, Public Citizen listed a host of reasons why a lawsuit filed by Talk Radio Network of Grants Pass, Ore., should be dismissed. The suit was filed against four people who operate three Web sites critical of a right-wing radio host named Michael Savage. Public Citizen is representing two of those, Thomas and Gunilla Leavitt of Santa Cruz, Calif., who created www.savagestupidity.com.

The site criticizes offensive and bigoted comments made by Savage, who rails against African-Americans, Hispanics, Jewish liberals, women, gays, liberals and a variety of other groups on his show, the “Savage Nation.” The Web site also has audio clips from the show and calls for the public to write letters to Savage’s advertisers and urge them to withdraw their support form his program. The Web site also threatens to boycott advertisers who continue to support Savage.

Talk Radio Network sued on May 12, alleging that the defendants are running commercial Web sites that make false and malicious statements about Savage and attempt to interfere with Talk Radio Network’s relationships with advertisers, specifically Culligan, an Illinois-based company. The suit asks the court to shut down the Web sites and have the operators pay several hundred thousand dollars in damages.

“Urging a boycott is a time-honored action that has long been protected under the First Amendment,” said Paul Alan Levy, an attorney with Public Citizen who is defending the Leavitts. “The claim that this is interfering in a business relationship is ludicrous. If Talk Radio Network were to prevail on that claim, it would effectively turn off a vital spigot of speech in this country.”

Much is wrong with the claims in the suit, Levy wrote. First, they were filed in the wrong court. The Leavitts live in California and have no relationship to Illinois, where Culligan is based. An Illinois court’s interest in protecting Talk Radio Network from two Californians’ exercise of their First Amendment Rights is slim.

Second, Talk Radio Network claims that statements on the Web site are false, but that claim can’t be justified. Savage is a public figure, and under established legal principles, to libel a public figure, one must not only make false statements but must do so with a reckless disregard for the truth. In this case, the Leavitts are expressing their opinion about Savage, and the statements they make about him are to their knowledge true. Further, because Talk Radio Network is the party suing, the company must show that the site says something false about the company; however, nothing like that is alleged in the lawsuit.

Third, the suit alleges that the Leavitts have wrongfully placed copies of Savage’s recordings on their Web site, which appears to be a claim for copyright violation. However, the U.S. Supreme Court has repeatedly made clear that such a “fair use” of material is protected under the First Amendment.

“The Leavitts have every right to criticize Savage and urge people to boycott his advertisers,” Levy said. “This is the wrong suit, filed in the wrong place. It should be dismissed.”

David Bradford and David Layden of the Chicago-based law firm of Jenner & Block, LLC .will be joining Public Citizen in representing the defendants.

Click here to view a copy of the brief on the Web.