‘Free speech’ wins in KQRS case

by Melanie Evans

Supporters called it an olive branch. Critics labeled it a sell out, or a buy off, or censorship.
But media law specialists agree: KQRS-FM’s recent apology, over radio host Tom Barnard’s refusal to apologize for statements he made about the Hmong community, did not violate the local radio host’s First Amendment rights.
“It is an issue of the radio station’s community sensibilities and commercial considerations,” said Arthur Eisenberg, legal director of the New York Civil Liberties Union. “It is not a First Amendment issue.”
In a June 9 broadcast, Barnard sparked controversy by mocking news reports of a 13-year-old Wisconsin Hmong girl who was accused of killing her baby.
Minnesota’s Hmong community responded with outrage to Barnard’s comments, which concluded, “either assimilate or hit the … road.”
The resulting uproar pitted Barnard against station policy, station managers against community activists, and community activists against Barnard.
The one winner, media law specialists argue, was free speech.
Heated responses from the station’s owners, outraged activists, supportive citizens or newspapers’ editorial boards constitutes a healthy public debate, not muzzling the host’s constitutional right to free speech, said retired University media law professor Donald Gillmor.
“That’s not censorship, that’s dialogue,” he said.
Arguing the show’s purpose was entertainment, Barnard responded with an Oct. 20 broadcast stating, “I will attack who I want to attack.”
Activists countered that the severity of the crew’s remarks qualified them as racial slurs, not comedy. Attracting an impressive number of media outlets to cover their cause, Community Action Against Racism demanded the radio station apologize for the comments.
A letter-writing campaign ensued, followed by a 500-person march in mid-August. Minnesota Sen. Paul Wellstone attended a protest, weighing in behind the activists to denounce the morning show host and his colleagues.
As station managers at KQRS-FM grappled with their dilemma, companies across the nation sided with Minnesota’s Hmong community. Texaco, Mystic Lake Casino and Hotel, the Mall of America, U.S. West, Perkins Family Restaurants and Norwest Corp. pulled their advertisements in October.
The Bill of Rights outlaws government-sponsored censorship, Gillmor said. Over time, the definition of government expanded from Congress, which the founding fathers singled out, to include any government agency or employee.
The definition does not include companies or private citizens, he added.
Absent from KQRS-FM’s Nov. 5 apology was the cause of the controversy: Tom Barnard’s voice. That is his right and his choice, Eisenberg said. And the station could fire him for it; as a private company, that is their right, he added.
“The talk show host, in the ordinary course, has the right to express his own views, subject to the restraints of the news director,” Eisenberg said.
It is a matter of exercising editorial control over an employee, he said.
“It is not censorship for the program manager to apologize, it is, in some sense … editing.”
Mark Steinmetz, president of the ABC Radio Group, which owns KQRS-FM, and Amy Waggoner, the station’s manager, declined to comment for the article.
“Both feel that this is a time for KQRS-FM to begin healing right now, kind of move forward, move in a more positive direction,” said Kate Bendell, public relations director for KQRS-FM.