By Michael Miner
On November 11, 1994, radio personality Mancow Muller stepped off an elevator at five o'clock in the morning and found himself face-to-face with Keith Van Horne. Muller had been riding Van Horne on the air, and Van Horne wasn't happy about it.
At the time Muller had been in town about three months hosting Mancow's Morning Madhouse on WRCX FM. WRCX expected big things from its new DJ. "We're letting Mancow drive the bus," the station's marketing director told the Tribune. Van Horne, a stalwart tackle on the great Bears teams of the 1980s, was cohosting a late-night sports talk show on WLUP FM. Both stations were located in the John Hancock Center.
Van Horne had just finished his shift; Muller was just arriving. As one of Van Horne's attorneys tells the tale today, the "colloquy" at the elevator was a brief one, with "no threats, no chasing, no physicality attended to it. As you may recall, there had been some publicity about Keith's encounter with a young female at a convenience store." Van Horne had been charged with battery. "That encounter proved ultimately to have been precipitated by a young woman. The young woman refused to prosecute. Muller seized upon that incident and mischaracterized it."
According to the lawsuit Van Horne promptly filed, Muller proceeded to the WRCX microphone and for the next four hours defamed him. Statements allegedly made by Muller on the air that morning take up six pages of Van Horne's suit. They include these:
"He chased me down the hall, he threatened me."
"This guy is--is a trained professional. He, you know, he is trained in killing people. Well, he's trained at killing his brain cells, obviously he's been working at it. But he's--he's trained at, you know, inflicting pain."
"He is Charles Manson who works out. That's kind of the comparison I want to make. OK?"
"His body is a weapon. This is a trained man who hurts other people. He is trained in pain, that's all he does....This is not like a quarterback or a halfback or something like that. This is just a--piece of meat. This is a large, dumb individual coming at me. His body is a weapon."
"I believe he's, he's psychotic. And I think, look, I don't care about me....I'm worried about the family that he's gonna hurt. I saw it today. I saw the evil."
"If they find my body in a sewer in the next 24 hours, somebody say it could be Van Horne. The man is nuts."
In addition, says the lawsuit, Mancow's sidekick Irma Blanco led off her hourly "news reports" all that morning with the Van Horne story: "Rock on the 103.5, good morning. It is now 6:01. For Mancow's Morning Madhouse, I'm Irma Blanco and here's the latest brought to you by Circuit City. Keith Van Horne's violent side was shining through this morning shortly after 5 AM..."
And at 7:28 AM, the suit further alleges, Muller aired a recorded song:
Guess who attacked Mancow today?
Keith Van Horne, yeah, he should be put away.
Slapped a bitch the other day.
Man, that big hairy ass is crazy...
Van Horne sued Muller, Blanco, WRCX, and Evergreen Media Corporation, then the owner of WRCX (and WLUP), for defamation. He also sued WRCX and Evergreen for negligently and recklessly hiring Muller, and for negligently and recklessly supervising and retaining him. These last charges contend that the company should have known better than to hire Muller and that once it did hire him it should have recognized its mistake and fired him.
The lawsuit presumes that WRCX and Evergreen knew exactly what they were doing by giving Muller a job. "Indeed, Muller's past conduct served not as a beacon of warning, but as a promise of higher ratings and revenues," argues one of Van Horne's briefs. "Evergreen enjoyed the benefits of Muller's broadcast activities in the form of increased ratings and profits, now it must answer for the foreseeable harm those activities proximately caused."
Must it? WRCX and Evergreen might be socked plenty if one day a judge or jury finds that Muller defamed Van Horne. But should they be made to dig even deeper because they failed to head off trouble they should have seen coming? Yes, say Van Horne's lawyers. No way, responds a daunting alliance of media heavyweights who argue in the name of the First Amendment.
Here's who lined up against Van Horne: the Tribune Company, the National Association of Broadcasters, the Illinois Broadcasters Association, the CBS Corporation, Cox Radio, Clear Channel Communications, Fisher Broadcasting, Emmis Communications Corporation, Greater Media, the Illinois Press Association, and the Reporters Committee for Freedom of the Press.
Most of these friends of the court own radio stations of their own. They would be horrified by a ruling that penalized owners for the pernicious blatherings of "shock jock" broadcasters on grounds that they never should have been hired in the first place.
In 1995 a circuit judge threw out more than half of Van Horne's suit, dismissing the negligent and reckless hiring, supervision, and retention counts against WRCX and Evergreen and the defamation count against Irma Blanco. But last year a state appellate court reinstated all of them. At this point the media groups intervened, filing an amicus brief with the Illinois Supreme Court. If permitted to stand, this brief argued, the appellate court decision "is likely to inhibit media entities of all stripes--including television and radio stations, newspapers, and book and magazine publishers--from broadcasting or publishing the work of controversial persons. Such a powerful disincentive to free expression is antithetical to the First Amendment."
The intervenors insisted on their own dignity. "Amici do not wish to be understood as endorsing the means by which Muller has drawn attention to himself," a footnote to the brief assured the court. But speech can't be curtailed before it's spoken.
Afterward? "Amici express no view with respect to plaintiff's causes of action for defamation." Muller, WRCX, and Evergreen are on their own.
Van Horne's suit offered some lively reasons why WRCX and Evergreen had fair warning that hiring Muller was hiring trouble. For example, on his last job he'd been responsible for:
"Causing a three-hour traffic jam involving 35,000 commuters" on the San Francisco Bay Bridge in 1993 by stopping a van on the bridge so his radio sidekick on station KSOL could get a haircut. "Muller was fined $500, sentenced to 100 hours of community service, and sentenced to three years of probation."
And for "dropping cinder blocks off a California Bayshore overpass and causing damage to cars parked below."
And "designating 'Alzheimer's Awareness Day' and visiting a geriatric center in San Francisco to mock aged individuals with the debilitating illness by asking them trivia questions they were unable to answer over the public airwaves."
Not to mention "hanging a 'Welcome to Chicago' banner over the receiving gates during the Christmas rush at San Francisco International Airport and watching travelers panic as they deplaned."
Van Horne's suit contends that "Muller's history of outrageous, irresponsible, reckless, malicious, and illegal conduct was given extensive media coverage before WRCX and Evergreen hired Muller." And in his first weeks in Chicago, Muller again showed his true colors by:
"Declaring a day 'Roadkill Tuesday' and offering $103.50 to WRCX listeners who left dead animals at Frankfort's Town Center mall....As a direct consequence of Muller's conduct, the city had to flush the area with chlorine and 3,000 gallons of water to prevent possible outbreaks of disease; WRCX was fined $500 and charged $505 for the cleanup."
Then "directing his sidekick, Turd, to stand on the North Avenue bridge over Lake Shore Drive...with a sign that read 'Honk and we'll drop a cinder block'; police stormed the WRCX studio and stopped Muller's show; Turd was arrested, fined $800, and sentenced to 120 hours of community service and one year supervision."
Have you ever marveled at the way notorious media personalities chased out of one market soon show up in another? Have you ever asked yourself how they keep getting jobs? Well, they wouldn't if a radio or TV station or newspaper ran a legal risk by the very act of hiring somebody who'd disgraced himself at his previous stops. The Illinois Supreme Court found itself contemplating the many citations of tomfoolery in Van Horne's suit and asking whether they justified something uncomfortably close to prior restraint.
"Defendants argue that holding employers liable for hiring or retaining employees who may make defamatory statements in the future would require employers to determine, essentially, whether an employee is 'fit to speak,'" wrote Justice Michael Bilandic. "Employers would therefore be reluctant to hire any person who has engaged in controversial speech or conduct in the past, leading to a chilling effect on free speech."
Bilandic didn't go so far as to say that the First Amendment categorically rules out that kind of liability. But he did set exacting standards for the prior behavior. Van Horne needed to show that Muller's new bosses "knew or should have known that Muller was likely to make false, defamatory statements during his radio show if he was hired." And say what you will about tying up bridges and dropping cinder blocks, they're not defamatory.
It certainly can be argued--and was, by Van Horne's suit--that a known bridge-tier-upper and cinder-block dropper isn't likely to weigh his words on the air. But Bilandic imposed a narrow, exacting standard of fair warning "because of the first amendment concerns which arise when liability is predicated on speech."
So late last year Bilandic, writing for a unanimous supreme court, reversed the court of appeals by again dismissing the reckless and negligent hiring and retention counts against WRCX and Evergreen. Van Horne's attorneys at the Chicago firm of Deutsch, Levy & Engel have petitioned the court to rehear the question. "As it now stands," attorney Brian Saucier wrote me, "the case will resume in the trial court. However, we are weighing all of our options, including the possibility of asking the United States Supreme Court to hear the negligent-hiring issue."
Saucier's letter invited me to visit the firm's Web site, "which includes an area about our law firm's First Amendment practice." It turns out the firm is usually on the other side of First Amendment debates. "We have successfully defended defamation and invasion of privacy actions filed by Frank Sinatra, Judith Exner, Heather Thomas, Dionne Warwick, Cat Stevens, Joan Collins, Tom Selleck and other celebrities," the site boasts. "On occasion, we have represented defamation plaintiffs."
One was Johnny Carson. "More recently, we successfully represented former Chicago Bear Keith Van Horne in a defamation action against Chicago 'shock jock' Mancow Muller."
To call successful a lawsuit that to the untutored eye has gone nowhere in four years sounds like a stretch. I asked Saucier what the firm meant. So far so good, he said, since the courts have refused to dismiss the defamation counts. As for the other counts alleging reckless hiring and retention, "If you read the supreme court opinion, they declined to say you cannot bring the cause of action. They said it has to be based on prior defamation. That opens the door to pursuing that objection in the future."
On the strength of that crack in the door they've declared some sort of victory. But so have journalists. Imagine if the court had ruled the other way. The Reader, for example, depends on the submissions of freelancers, some of them new to town and unknown to us. It's one thing to be diligent about the articles they submit--it would be another to have to ask for references and run background checks on the writers.
A Siskel Moment
Michael Jordan scored 53 points the night Gene Siskel and I and our daughters went to see the Bulls. Before the game Siskel hadn't attracted gawkers, and I had decided his was a modest fame. But on the way out something strange happened. The multitudes who had just been stirred by works of wonder were departing in a state of receptive awe. Jordan, the author of their mood, had vanished for the night. No one expects to spot God leaving the building by the public gates.
And so, in what looked for all the world like a kind of mass displacement of adoration, Gene Siskel became the man. Somehow everyone knew he was there; he turned heads and parted crowds. Strangers who needed to be noticed by him noticing him called his name. The faces of children shone. Siskel moved forward with aplomb. If there'd ever been a time when so much attention made him uncomfortable--and there probably wasn't--he'd long ago outgrown it. He didn't exactly accept the clamor as his due. But he clearly understood the truth about celebrity, which is that when it isn't ravaging our selfhood, it's delicious.
Art accompanying story in printed newspaper (not available in this archive): Mancow Muller, center, with Turd and Irma Blanco photo by Kathy Richland; Keith Van Horne photo by Ellen Domke--Chicago Sun-Times.