‘If Thomas McGowan is punished for sending these faxes to WABC, what does this do to the expressive nature of talk radio? It chills speech for sure. Talk radio is great, even though I get a licking on those shows. They’re the last people in the world who should be threatening people whose views they don’t agree with. It could haunt them in the long run.’
—Norman Siegel, executive director of the New York Civil Liberties Union
When Thomas McGowan–after having been arrested and salted away in a cell for nine hours–was brought before Criminal Court Judge Eileen Koretz, McGowan’s lawyer, Tom Monaghan, asked for dismissal of the charges.
He pointed out that his client, like many New Yorkers, is addicted to talk shows and takes seriously the urging of all the hosts to call or fax in his or her own opinions, however contrary. WABC’s phone and fax numbers are repeatedly given on the air.
McGowan started to fax his views after he was told by various WABC stars to stop calling. His spoken criticisms were annoying them. So he faxed.
His lawyer told the judge that “none of his faxeswere obscene and none reached a level of criminalityas required by New York’s harassment statute. Thomas McGowan never threatened any physical violence and all his faxes had communicative value.”
Under the law (Article 240.30, Aggravated Harassment in the Second Degree, Offenses Against Public Order), there has to be an intent to “threaten.” Not just contentious, as in this McGowan fax: “Ron Kuby is a corporate commie bigot, shill & shyster.”
Furthermore, as emphasized in William C. Donnino’s Practice Commentaries on the harassment law, “The basis of the crime of harassment–a penal sanction that punishes the exercise of speech–is
that the proscribed conduct is likely to lead to a breach of the peace.”
The only breach of the peace in this case was that–on the complaint of WABC talk-show hosts Steve Malzberg and Sean Hannity–three cops with 9mm guns went to Thomas McGowan’s place of work and arrested him, to the astonishment of his fellow workers. “It’s about faxes?” one of them asked.
Moreover, the statute before Judge Koretz also makes clear that you can’t be busted for phoning or faxing unless “there is no purpose of legitimate communication” in your message. WABC greatly encourages its listeners to communicate, and that was precisely what McGowan was doing.
But Judge Eileen Koretz refused to dismiss the charges, and furthermore–without her seeing a single one of the faxes to verify the defense lawyer’s statement that none included threats–she issued an order of protection on behalf of Malzberg and Hannity.
“Do not have any contact with them,” she commanded. “Do not send any faxes to WABC radio. No phone calls. Don’t go there.” If McGowan had sent one more fax to WABC, he would have been subject to up to seven years in prison for contempt of court.
Judge Koretz is clearly no William O. Douglas or William Brennan. Or even Antonin Scalia.
Assistant District Attorney Seth Davis, who appeared “For the People”–that’s you and me–was satisfied with her excessive order. And Thomas McGowan was further trapped in the minefields of “justice”–as so grimly depicted by Charles Dickens in Bleak House.
I have what I consider a cordial relationship with Philip Boyce, WABC’s program director. Recently I tipped him to a good story–the American Bar Association was about to honor a lawyer fined by a federal judge for obstruction of justice and perjury. That disgraced lawyer is the president of the United States–who was about to give the keynote address to the ABA’s annual meeting in Atlanta.
Sean Hannity reported that story a few hours later when he was substituting for Rush Limbaugh on the network.
Earlier, when I called Boyce about McGowan’s arrest, he told me that Malzberg had been receiving threats of death and other harm not only to him but
also to his family. Another source at the station informed me that Sean Hannity had also received such threats.
So Malzberg, with Hannity signing on, called the cops. When they came, Malzberg showed them faxes that had been sent by Thomas McGowan. But there were no threats on McGowan’s faxes. Yet the police, toting guns, acted on the complaint against McGowan and arrested him.
To this layman, this seems like wrongful arrest and abuse of process. Lawyers for the Disney Company–owners of WABC–should be alerted for a possible subsequent lawsuit.
The first time I talked to Phil Boyce, he said, “I knew that Steve Malzberg was calling the police and I did not interfere. A host has a right to protect himself against harassment.”
A couple of days later, Boyce told me he had no idea that Malzberg was calling the police. Boyce repeated, however, that he saw “nothing wrong” with bringing in the police and the subsequent arrest and imprisonment of Thomas McGowan. Even though, as I reminded him, there were no threats in any of the faxes McGowan had sent. But two of the four counts in Malzberg’s and Hannity’s complaint were of aggravated harassment in the second degree.
If convicted on those two counts, McGowan can serve a year in prison on each.
Now, Boyce tells David Hinckley (Daily News, August 11): “I don’t know if this guy is involved in any threats–I hope he’s not–or if what he did is harassment, legally.”
And Hinckley was told by Boyce that “WABC is not involved” in the criminal complaints against McGowan–that Malzberg and Hannity are responsible. But Boyce did not stop there. Is he now throwing them over the side? Next week: what Boyce could–and should–have done.