The Felonious Faxman
On July 30, Thomas Mcgowan was arrested and charged with four counts of harassment and aggravated harassment in the second degree. His crime: sending faxes to free-speech radio WABC-AM. (to the station's listeners, he is known as Danny from East New York.) His Lawyer, Tom Monaghan, told the New York Post (august 9): "My god, they sent out three cops with 9-millimeter guns and put my client in jail for nine hours. Have we come to the point where somebody can use the NYPD to be somebody's private thought-police force?" Monaghan is now handling this case without charge.
The complainant was Steve Malzberg, whose talk show is on WABC weekends; he occasionally pinch-hits for other hosts. Also on the complaint is Sean Hannity, who is heard every afternoon and sometimes ascends to the big leagues by substituting for Rush Limbaugh on the network.
After nine hours in a cell, this felonious faxman was arraigned, and then ordered by a New York County Criminal Court judge not to contact the station in any way or Malzberg and Hannity until the case is resolved. This dangerous faxer has never been arrested before.
According to the criminal court record of the case, Malzberg and Hannity claim that "said faxes caused them substantial annoyance and alarm, both because of the large number of . . . faxes and because the faxes typically contained obscenities and insults . . . to wit, you lowdown hypocrite backstabbing punk windsucking pussy bitch dog and you jerk each other off."
As for the "large number" of McGowan's faxes, the complaint says there were 300 to Malzberg and 200 to Hannity over a period of six months. Phil Boyce, WABC's program director, told me there had been "thousands." Nor were all of McGowan's faxes to WABC directed solely at Malzberg and Hannity. Most of the other hosts also received critiques of their performances from McGowan, and his language was not always as gamy as the carefully selected encomiums I've already quoted. And it is not clear whether the 500 number in the complaint didn't also include faxes to the other hosts.
This criminalization of language reminded me of how then assistant district attorney Richard Kuh, prosecuting Lenny Bruce in New York, would shout out in court only those words from Lenny's act that were likely to inflame the judge. Like Kuh, the Malzberg complaint jams inflammatory words together that McGowan never used consecutively in any of his faxes.
I listen often to WABC and, like all listeners, am invited by the hosts to call or send in faxes. They broadcast the fax number. I sometimes do call, usually when defense attorney Ron Kuby and Curtis Sliwa have their very enjoyable Punch and Judy show at 6 p.m. and on Saturday mornings.
Except for Kuby, Lynn Samuels, and Matt Drudge (the latter two are only on for a few hours each week), the hosts are resolutely conservative. But Limbaugh and Hannity do make a point of encouraging dissent from listeners and Limbaugh often instructs screeners to put opposing views to the head of the line. Malzberg, however, is not as open to contrary views, often acting like vintage Bob Grant. But unlike most talk-show tribunes, Malzberg does have a quick wit. Sometimes.
As I shall indicate, even if there was a legitimate harassment case against caller McGowan and the clear evidence is there was not Malzberg, Hannity, and WABC could have brought a civil complaint against McGowan, which would not have required armed cops and nine hours in the slammer.
As Norman Siegel, executive director of the New York Civil Liberties Union, said, "It's surprising that McGowan's is a criminal prosecution especially in the context of a radio station openly soliciting faxes. It's unusual and troubling that cops went and arrested somebody, especially if there were no actual threats."
And there were no actual threats in McGowan's hyperbolic comments. He can serve a year in prison on each of the two aggravated-assault charges.
The New York Post article, breaking the story, was written by John Mainelli, who does hard news reporting for the paper's entertainment section and is also a widely respected consultant for radio stations in various cities.
Mainelli was not identified in the Post in terms of his previous occupation. He used to be program director at WABC and therefore has inside knowledge of its operations. In the interest of full disclosure, I should say that years ago, he was uncharacteristically reckless enough to put me on the air as a substitute host one morning.
There were a number of insistently hostile calls some readers of the Voice have long memories but I didn't call the cops.
In his report on the McGowan case, Mainelli referred to another illuminating case history of how this free-speech station has, in the past, responded to callers with complaints.
"Eileen from Forest Hills who didn't want her last name revealed said: 'I'm blind and I called Malzberg's show (several times) to challenge another blind caller who talks about blindness in a pathetic and helpless way.
" 'His call screener said the station has my name and number and will call the police if I don't stop 'harassing them." It's frightening and offensive just because you don't agree with his views.' "
The felonious faxman in the present case was so up-front with his philippics that his faxes gave his phone number and an address.
And this is one of the faxes that landed McGowan in Criminal Court: "Phil Boyce, just to keep you informed a phone call was received at Tri State Supply Co. of N.Y. yesterday and the caller said his name was Sean Hannity. The caller then threatened to send the police over. Something about faxes."
Next week: Phil Boyce's response and then mine. Meanwhile, if you send a fax to WABC, keep another copy for your lawyer.
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