A Free Speech Warrior

'Sure, We Get People Angry'

Ron Kuby first became widely known as a defense lawyer during his years of working with William Kunstler, the most resourceful, irreverent, and impassioned defense lawyer since Clarence Darrow. Kunstler was a man of such sudden wit that when he appeared before the Supreme Court, the justices—even dour Chief Justice William Rehnquist—sometimes smiled in anticipation of his argument. kuby is very much a free spirit, in the tradition of Kunstler. In recent months, he has become the most unguarded and greatly entertaining talk-show host in the business. He is heard on WABC radio weekday evenings at six with Curtis Sliwa, the founder of the Guardian Angels and the champion of working folk who have no regard for what used to be called "limousine liberals."

When the celebrated case of the felonious faxer, Tom McGowan (a/k/a Danny From New York) broke into the news, Kuby was on vacation. McGowan was arrested on the criminal complaint of WABC talk-show hosts Steve Malzberg and Sean Hannity for sending hundreds of faxes, some of which the complainants said were threats. McGowan was busted by three armed cops with 9mm guns and held in a holding cell. He now faces trial on, among other things, two charges of aggravated harassment in the second degree, which could put him in prison for two years.

During the six months of faxes cited in the complaint, no police reports have been filed accusing McGowan of any type of threat.

On Saturday morning, September 4, Ron Kuby, back from vacation, said on WABC radio: "I was
appalled to hear that McGowan had been arrested for the content of his speech."

In saying that, Kuby disagreed publicly and unequivocally not only with two of his colleagues but also with the management of WABC. A more prudent (read cowardly) employee would have kept
his mouth shut. Although Kuby is a very active attorney-taking many cases in which the odds are formidably against his clients-his gig at WABC is one I think he'd hate to lose. Not only because of the money but because he has a powerful forum for his decidedly left-wing-and civil rights and civil liberties-convictions. Kuby also uses his Saturday-morning space as a way to communicate by name with his variously incarcerated clients.

Over the Labor Day weekend, I talked to Kuby about the arrest of the felonious faxer. What Kuby said should be posted on the bulletin boards, or their equivalents, of every talk-show radio station in the nation, beginning with WABC. This is Ron Kuby:

"I've seen hundreds of McGowan's faxes. They range from irritating to entertaining. The same thing can be said about us talk-show hosts on WABC. I say this as a civil rights attorney and as a talk-show host.

"The leading case on threats in New York-decided by the Court of Appeals, this state's highest court-was the Dietze case. The court held that for an arrest to be lawful in this context, there had to be a specific and immediate threat.

"A woman had been arrested for yelling at another woman, 'One of these days, I'm going to beat the crap out of you.' The conditional phrase, "one of these days," took what she said out of the realm of an actionable threat.

"Again," Kuby continued, "I've read hundreds of McGowan's faxes, and clearly none of them could even remotely pass the test under the Dietze decision.

"More fundamentally, there is something profoundly wrong with people being arrested for the content of their speech when that speech is directed against those of us who are on talk radio. By its very nature, talk radio is contentious, disputatious. Sure, what we do gets people angry. And we ask them to call and send faxes.

"Callers and faxers say all kinds of things-sometimes tongue-in-cheek and sometimes very seriously. What they say ranges from wanting to assassinate the president on down.

"That's the medium in which we work. We have tremendous public power. And if we're going to work in that medium-and be public figures-we ought to realize that we engender antagonism among people. And we ought to be less ready to do what was done to Tom McGowan.

"On the bright side, statistics are in our favor. Only one talk-show host has ever been killed for the contents of hisspeech: Alan Berg in Colorado."

But, as Kuby might have added, Berg was not shot to death by a lone, indignant listener who snapped. Alan Berg was Jewish and was the target of a right-wing, indeed fascist, group who were out to get him-both because of his views and because they were murderous anti-Semites.

Ron Kuby is aware, as am I, that Sean Hannity and Steve Malzberg felt threatened because both had received faxes threatening death. Hannity and his new child were the objects of some of those threats. So were Malzberg, his wife, and his parents.

But none of Tom McGowan's faxes, as Kuby said, came anywhere close to being actionable under the Dietze case. The complainants now claim that they have dug up maybe three such McGowan faxes. But none of those faxes were produced when he was arrested or at the two hearings held so far on this case.

I have seen two of these alleged "threatening" faxes. Neither one is an actual threat under the Dietze criterion-or under the criterion of plain common sense.

As I said during a two-and-a-half-hour debate on WABC with Hannity and his sidekick, the self-aggrandizing lawyer Mark Levin, I know what it feels like to be seriously threatened. For a while, after a death threat, I saw terminal danger in the face of every stranger on the street. (That radio debate has been subpoenaed by McGowan's attorney in this case.)

But to drag McGowan into a cell and cause hima hell of a lot of emotional distress-when he did not send any unlawful threats-is something Hannity, Malzberg, and the management of WABC should apologize for. On the air. And not only once.

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