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STATE OF MICHIGAN
COURT OF APPEALS


THERON E. HUGHES, Plaintiff-Appellant, v ARTHUR TIMKO, Defendant-Appellee.

UNPUBLISHED February 28, 2006

No. 255229 Washtenaw Circuit Court LC No. 03-000598-NZ

Before: Sawyer, P.J., and Talbot and Borrello, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant under MCR 2.116(C)(10). We reverse. I. FACTS This case arose after defendant, the general manager of WEMU-FM (WEMU), terminated plaintiff's employment as host of an evening radio show. WEMU is Eastern Michigan University's non-commercial public radio station and is a National Public Radio (NPR) affiliate. Plaintiff, whose on-air name was "Thayrone," was an outspoken radio personality who hosted a music program called The Bone Conduction Music Show (BCMS), which aired on WEMU every Sunday evening from 7:00 p.m. to 11:00 p.m., for about fifteen years.1 Plaintiff described the BCMS as "your basic musical slug-fest consisting of roots rock, hip-shakin' soul music and the industrial-strength rhythm and blues." Plaintiff also infused his radio music show with a heavy dose of conservative political rhetoric. In March 1976, WEMU adopted a statement of purpose. As part of its purpose, the station emphasized the importance of neutrality in its programming. Specifically, the station's purpose statement contained the following statements regarding neutrality:

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WEMU hired plaintiff in January 1984. Plaintiff voluntarily left WEMU in 1985 to work for a commercial radio station and was rehired by defendant in 1989. Plaintiff hosted the BCMS on WEMU from 1989 until his employment was terminated on about April 2, 2003.

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If WEMU is to achieve [its] broad, long-range goals, it must create an open environment in which everyone in the community feels welcome and comfortable. WEMU must provide the basic services of news, time, weather, and companionship for which listeners tune to a radio station. It must avoid making any group feel unwelcome, discriminated against, or unfairly treated. At the same time, WEMU must make everyone who tunes in a little uncomfortable by exposing them to new ideas, to other people they might not otherwise meet, and to new forms of expression. WEMU is confident that listeners will choose to endure the uncomfortable for the sake of the stimulation that it can bring and in the knowledge that all groups, tastes, and ideas are fairly treated in the program service. . . . The listeners' confidence will be maintained only if WEMU maintains the highest possible standards of accuracy, neutrality, integrity, and propriety. . . . *** NEUTRALITY: WEMU and WEMU staff must maintain total neutrality in news and public affairs programs. . . . Indeed, WEMU should jealously guard its neutrality and, hence, its vitality as a place where every view and taste is respectfully heard. Further, by making WEMU open to all views and all publics without discrimination or favor, it can maintain neutrality and vitality. 1. WEMU as a broadcast station or WEMU staff members never express personal opinions or editorial views on the air. On October 16, 2001, defendant sent an e-mail to radio station employees that essentially underscored the station's neutrality policy. The e-mail asserted that it was "inappropriate for any on-air staff member to express an opinion on matters of controversy." The e-mail specifically identified the United States' retaliation against terrorists as a matter of controversy: "For example, the current armed retailation [sic] of the United States against terrorist targets is controversial. . . . Therefore, on-air staff will not offer their opinions of this action. The WEMU news department along with NPR are presenting these positions within the content of our news service. This is where the the [sic] issue will remain." On March 26, 2003, defendant sent another e-mail to radio station employees informing them that WEMU was postponing its fundraiser until April 25, 2003. According to the e-mail, an important reason for postponing the fundraiser was the station's "focus on coverage of the war in Iraq." The e-mail announced a change that would require "hourly newscasts in ALL programming" in which such newscasts would fit, and specifically included plaintiff's show in a list of shows in which the hourly newscasts were to be run. Plaintiff asserted that he never received this e-mail. Plaintiff's final BCMS show aired on WEMU on March 30, 2003. During that show, plaintiff did not run any hourly NPR newscasts. Furthermore, he stated on the air that he was not going to run the newscasts and questioned the accuracy of NPR's, as well as other news networks', coverage of the war in Iraq:

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I see right here we are supposed to be running news during the program. But that's not going to happen. Ah, we know for a fact that if you want a current and accurate assessment of what's going on, you sure as hell ain't listening to us. [O]k, you sure as hell ain't listening to us. You're going to go over to Fox News where they're not bending it one way or the other. That is a complete and accurate assessment of what's going on and they tell you right up front. They say hey man, we're pro-Americans but we're not going to lie to you. If something bad's happening over there we're going to tell you as opposed to 90% of the other reprehensible news coverage out there that's basically French. . . . The real deal if you want to get it is over at Fox News, ok? It ain't happening on NPR and it certainly ain't happening on CNN and all those other news broadcast[s] going on . . . . And it really ain't happening on the BBC. Oh, Lordy have mercy it ain't happening on the BBC. . . . *** When I said get over to the Fox News Network for your update on your news . . . don't say that I can't believe you're supporting Fox News. I get my news from. Well you know what man, it's all news ok[? G]o over C[N]N[,] NBC, MSNBC, I don't care where you go, get a big perspective on it. [O]k, don't just listen to the hammer heads to paint the picture that oh my God we made a mistake . . . we're gonna lose, we're gonna lose. [O]h, my God[.] During plaintiff's March 30, 2003, show, plaintiff also repeatedly discussed the United States' military involvement in Iraq and expressed his favorable opinion on that subject: Hey man we got a fund drive coming up, we were supposed to be fund driving this week but the valiant attempt of the coalition of the willing to liberate the Iraqi people from that insane, insane person over there that's dead by the way. I'm convinced that Saddam Hussein is dead. He's gotta be dead man. There's no way he survived the first strike. [W]e knew what the hell was going on. We'll see what happened, history will tell and it's going to be real current history by the way. But I think he's whacked. This whole thing about his bodyguard showing up [at] a press conference with the second in command. I think Saddam Hussein is walking the back streets crying, possibly room temperature[.] But any way because of that, because of that razzmatazz because of the war going on and uh because of the coalition of the willing had the cahonies [sic] to get up and do the right thing. After 18 attempts, 18 attempts at getting everybody else to come along with us for a year of playing around, screwing around, waiting a year too long to do it, losing the element of surprise but still nonetheless ready to do it and do it the right way. . . . The [postponement of the fund drive] will present some challenges but not half as much as the challenges as our brave men and women are facing over there doing the right thing. . . . *** We're doing the right thing, ok? Get use[d] to it, deal with it. Them Iraqi's [sic] are over there thanking the Lord that we came over to save their ass. Saddam has -3-


been sticking them in acid baths, ok[?] His sons are out of control, out of control, insane tyrants, man, ok[?] And we are doing them all a favor. . . . *** Hey man, Bruce just dialed in from Australia. He says he wants to play a song for all the Australian boys supporting the US action in Iraq. Thank you hey thank you guys man. You got some common sense over there. The British and Australian[s] seem to know what time it is. I'm totally ashamed and astounded and amazed that the Canadians don't know what time it is. But anyway, Tony Blair knows what time it is . . . . After plaintiff's March 30, 2003, show aired, a listener e-mailed WEMU to complain about plaintiff's on-air comments. On April 2, 2003, defendant called plaintiff on the telephone and informed him that WEMU was going to take his show off the air. Publicly, WEMU cited "creative differences" as the reason for plaintiff's termination. However, in a memorandum from defendant to Juanita Reed, EMU's Vice-President for University Relations, which was dated April 3, 2003, defendant stated that he terminated plaintiff's employment as host of the BCMS for two reasons: first, plaintiff violated the radio station's policy prohibiting employees from expressing their opinions on controversial subjects when he expressed his support for the United States' military involvement in Iraq; and second, plaintiff "denigrated" NPR news and failed to air six minute hourly NPR newscasts that WEMU had scheduled to provide its listeners with continual coverage of the war in Iraq. Plaintiff filed suit against defendant, alleging that defendant's termination of his employment violated his First Amendment right to free speech in violation of 42 USC

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