Abu-Jamal sues NPR to force broadcast of commentaries

By Jacqueline Conciatore

Death row inmate, journalist, and international cause celebre Mumia Abu-Jamal has filed a $2 million censorship lawsuit against NPR over the network’s 1994 decision not to air his commentaries recorded for All Things Considered.

The suit, filed by Abu-Jamal and the Prison Radio Project in U.S. District Court in Washington, D.C., argues that NPR nixed the commentaries under pressure from Sen. Bob Dole (R-Kan.), other members of Congress and the Fraternal Order of Police. In addition to seeking damages, Abu-Jamal asks the court to force NPR to air the essays on ATC and then turn over the tapes to him.

NPR and the Prison Radio Project recorded 10 of Abu-Jamal’s essays in Pennsylvania’s Huntingdon prison in April 1994. He was convicted in 1982 of killing Philadelphia police officer Daniel Faulkner.

The suit accuses NPR of bowing to critics who oppose Abu-Jamal’s political positions, which he disseminates effectively despite imprisonment. The former public radio journalist has written from prison about race, crime and the death penalty for The Nation, Yale Law Journal, and many other publications. He is also author of a book of essays about to be released in a paperback edition. In the years before his arrest, Abu-Jamal reported on police brutality and supported the radical group MOVE.

As a young adult, he helped found a Black Panther chapter in Philadelphia. Now, he and his lawyers allege that Dole and other members of Congress demanded NPR trash plans to air his commentaries. Says attorney Debra Katz: “Dole made phone calls threatening budget reduction.” The day after NPR’s cancellation announcement, Dole did say on the Senate floor that “closer oversight” by Congress might be the only way to keep NPR in line. In June, he said that “if it had not been for members of Congress,” prompted by angry citizens, NPR would have aired Abu-Jamal. Says Katz: “I’m confident we will find illuminating things in discovery. I don’t think Dole would have taken credit for it on the floor” if he hadn’t intervened.

NPR news chief Bill Buzenberg says it is “absolutely not true” that Dole demanded the spots be pulled. And Dole spokesperon Clarkson Hine says Dole made no calls to NPR: “The first thing he said about it was on the floor.”

Abu-Jamal’s law firm is Bernabei & Katz, which has represented several women in bias cases involving NPR, including a suit by former reporter Katie Davis — the only case that went to court.

NPR says, as it said in 1994, that it canceled Abu-Jamal’s commentaries for purely editorial reasons. The company also objects to the suit as an attempt to interfere with its independent editorial decision-making. “We do not make decisions … based on the criticisms or pressure from politicians, police or prison advocacy groups,” NPR said in a release. Retaining the tapes is its usual practice, but Abu-Jamal “has been free to use his commentaries in various forms,” and did include transcripts of them in his book Live From Death Row.

NPR announced its decision not to use Abu-Jamal as a commentator on a Monday in May 1994, following a weekend of media reports in which police and others blasted the network for giving a forum to a convicted cop killer.

Much of the negative press was generated by Officer Michael Lutz, then head of the Philadelphia Fraternal Order of Police and former partner of Officer Faulkner. At the time, Managing Editor Bruce Drake said it was inappropriate to air Abu-Jamal when he had an appeal pending and when the network hadn’t scheduled any other commentaries pertaining to crime and punishment to provide context or competing viewpoints. And the pieces “were not of such a compelling nature as to overcome these misgivings,” he said. But ATC Executive Producer Ellen Weiss, who commissioned the commentaries, had stipulated that Abu-Jamal was not to discuss his case on the air. Rather, she had wanted a prisoner’s view of life on death row and of issues such as three-strikes-and-you’re-out legislation.

Drake told Current at the time that he wasn’t aware of plans to air the pieces until he read about them in the trades. But the adversaries argue that Weiss had management’s approval and that she was surprised when management changed its mind. Lawyer Katz offers a hearsay remark, allegedly made by Weiss to Hanrahan: “I’m as stunned as you are. I’m shocked. I don’t think about editorial decisions in terms of how they’ll play in the Capitol. … I didn’t know we’d be censored.” Weiss declined to comment about the quote.

In August 1995, NPR’s Scott Simon did a 17-minute Weekend Edition report on the Abu-Jamal case. The network also broadcast a series about life on death row, and, according to Buzenberg, is following death-row issues in Pennsylvania, including the Abu-Jamal case. But, he says, Abu-Jamal’s attorneys and supporters want only to hear Abu-Jamal’s voice alone, unchallenged; “They do not want balanced reporting on Mumia Abu-Jamal.” He accuses the attorneys of using the suit to gain publicity for the prisoner.

Abu-Jamal is currently appealing Pennsylvania Judge Albert Sabo’s refusal to grant him a new trial.

The suit makes the claim that NPR is a government actor and therefore barred by the Constitution from censoring political speech. The Supreme Court ruled in a case involving Amtrak that any entity the government creates for its purposes is not permitted to restrict speech under the First Amendment. In that case, the high court cited CPB as another agency subject to the First Amendment. Because CPB created NPR, the lawyers argue, NPR is bound by the First Amendment. But the genesis of NPR is not so clear, according to John Witherspoon, author of The History of Public Broadcasting. CPB, which is prohibited by law from creating programming, convened a group of radio managers in 1970 and out of that meeting NPR was born, he says. “It’s not quite accurate to say CPB did it, but without CPB it wouldn’t have been done.”

Abu-Jamal’s lawyers also use two other arguments to justify their claim NPR is bound by the First Amendment. Because the network is overseen by CPB, it is sufficiently entangled with the government to be subject to the freedom of speech laws, they say. And secondly, the government itself–in this case Dole and other members of Congress–encouraged NPR to ban Abu-Jamal from the air, they argue.

According to Rodney Smolla, director of the Institute of Bill of Rights Law at the College of William & Mary, even if plaintiffs can convince the court that NPR is subject to First Amendment laws, they may have trouble getting a judge to order NPR to put Abu-Jamal on the air. NPR has its own legislative protections from editorial interference, Smolla observes. “I think in reality it will come down to factual issues,” says Smolla. “And I think the factual issues will favor NPR.” Unless, he says, the plaintiffs unearth proof beyond circumstantial evidence — something like a memo that points to viewpoint discrimination.

Public broadcasters — especially state-owned stations — may well be concerned that their editorial decisions will be restricted by the First Amendment if the suit succeeds and it becomes a precedent. Pacifica Radio, for example, like NPR, has taken individuals off the air after controversies reached Capitol Hill. But Abu-Jamal’s lawyers say there are factors that make this case unique. First, it’s unusual for broadcasters to say that program material meets their standards, to publicize it, and then change their minds after a public outcry, says lawyer Gary Peller. Secondly, he says, other networks and stations weren’t created by CPB.

“We are not contending in this suit that people have the right to dictate what goes out on public broadcasting,” says Katz. “What we contend is that the government doesn’t have a right.”

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