Mumia Abu-Jamal, a nationally-known journalist serving a death sentence for the murder of a Philadelphia police officer, says National Public Radio violated his First Amendment rights. In a civil lawsuit filed in federal court,the former radio journalist contends that NPR decided not to run a recorded broadcast of his death-row commentary for the show "All Things Considered" because of political pressure from the Fraternal Order of Police and U.S. Sen. Robert Dole.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MUMIA ABU-JAMAL
State Correctional Institution
at Greene
1040 E. Roy Furman Highway
Waynesburg, Pennsylvania 15370
PRISON RADIO PROJECT
3502 Varnum Street
Brentwood, Maryland 20722
Plaintiffs,
NATIONAL PUBLIC RADIO
635 Massachusetts Avenue, N.W.
Washinqton, D.C. 20001-3753
SERVE:
LEE SATTERFIELD
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001
BRUCE DRAKE, in his official and
individual capacities,
Managing Editor
National Public Radio
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001-3753
WILLIAM BUZENBERG, in his official and
individual capacities,
Vice-President for News and Information
National Public Radio
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001-3753
Defendants
COMPLAINT
FOR DECLARATORY, INJUNCTIVE AND MONETARY RELIEF
SPECIFIC PERFORMANCE AND JURY DEMAND
Preliminary Statement
1. This is an action against National Public Radio and two of its
managing officials for monetary damages, declaratory judgment,
injunctive relief and specific performance to compensate plaintiff
Mumia Abu-Jamal, an inmate on Pennsylvania's Death Row, for the
injuries he has suffered as a result of NPR's cancellation of his
contract to appear as a regular Commentator on its "All Things
Considered" program and its refusal to broadcast and to return to him
and the Prison Radio Project audio tapes of commentaries that Mr.
Jamal prepared and delivered and the Prison Radio Project produced
and recorded for inclusion on "All Things Considered." Bruce
Drake, NPR's Managing Editor, cancelled Mr. Jamal as a regular
Commentator on "All Things Considered" on the eve of NPR's first
broadcast of his commentaries in response to pressure exerted by
Senator Robert Dole, the Fraternal Order of Police, and other
conservative opponents of the political viewpoints that Mr. Jamal has
expressed and that he symbolizes in the public arena.
Defendants' actions violated Mr. Jamal's right to be free from
governmental censorship under the First Amendment to the United
States Constitution, plaintiffs' rights not to be deprived of their
property without just compensation under the Fifth Amendment to
the United States Constitution, and plaintiffs' rights to be free from
arbitrary or capricious governmental action under the Fifth
Amendment to the United States Constitution. In addition, by
refusing to broadcast Mr. Jamal's commentaries, NPR willfully
breached its contract with Mr. Jamal and the Prison Radio Project,
and by refusing to return the tapes of the commentaries to plaintiffs,
NPR abrogated plaintiffs' common law rights against the wrongful
withholding and conversion of their property.
Jurisdiction
2. This court has original jurisdiction over this matter pursuant to 28
U.S.C. 1331, and supplemental jurisdiction over related claims
under 28 U.S.C. 1367. Venue is proper in this jurisdiction under
28 U.S.C. 1391(b) and (e) because defendants reside in the District
ofColumbia, a substantial part of the events giving rise to this suit
occurred in this District, and NPR is an agency or instrumentality of
the United States Government and Messrs. Drake and Buzenberg are
federal officials or employees.
Parties
3. Mumia Abu-Jamal is an African-American citizen of the United
States currently residing at the Pennsylvania State Correctional
Institute at Greene. He is an internationally known and award-
winning journalist, writer, political activist, cultural commentator,
and death row prisoner. He has dedicated the greater portion of his
adult life to engaging in political and professional activities to expose
and oppose racism and social oppression in the United States. In 1968,
Mr. Jamal became a founding member and Minister of Information of
the Philadelphia chapter of the Black Panther Party, at which time he
also became subject to years of Federal Bureau of Investigation
surveillance under its covert COINTELPRO counter-insurgency
program. In the 1970s he worked as a radio reporter in the
Philadelphia area and was widely known as a journalist willing to
investigate, expose and denounce racist, brutal and illegal practices of
the Philadelphia Police Department. His reports were aired on
National Public Radio, the Mutual Black Network, the National
Black Network, as well as local radio stations. At the time of his
arrest in 1981, Mr. Jamal was the President of the Philadelphia
Association of Black Journalists, a well-known supporter of the MOVE community,
and a vocal critic of the Philadelphia Police Department, particularly
with respect to its violent 1978 siege of the MOVE community's
Powelton Village home by more than 600 heavily armed police
officers.
4. The Prison Radio Project, a project of the Quixote Center, is a
public interest organization committed to helping powerless and
largely silenced groups in American society, particularly prisoners,
voice their views and perspectives through the medium of radio
broadcasts. It maintains its principal place of business at 3502
Varnum Street, Brentwood, Maryland 20722. Its activities include
producing radio broadcasts and serving as a research and
development resource for various media outlets interested in covering
prisons. It has achieved unique expertise in recording at a high level
of broadcast quality from within prisons. At the time of the events
giving rise to this suit, Noelle Hanrahan was the Director of the
Prison Radio Project and had the legal authority to act on its behalf.
At all times relevant to this complaint, Ms. Hanrahan had explicit
authorization from Mr. Jamal to act as his agent and representative
with respect to the subject of the recording and broadcasting of his
commentaries.
5. National Public Radio ("NPR") is a non-profit, public
broadcasting radio network incorporated under the laws of the
District of Columbia, with its principal place of business at 635
Massachusetts Avenue, N.W., Washington, D.C. 20001-3753. The
registered agent of NPR is Lee Satterfield, 635 Massachusetts
Avenue, N.W., Washington, D.C., 20001.
6. Bruce Drake was at the time of the events giving rise to this
Complaint and continues to be the Managing Editor of NPR. His
business address is 635 Massachusetts Avenue, N.W., Washington,
D.C. 20001-3753. At all times relevant to this Complaint, Mr. Drake
acted within the scope of his employment and in furtherance of
NPR's interests. As Managing Editor, he had policymaking
authority over programming decisions at NPR.
7. William Buzenberg was at the time of the events giving rise to this
suit and continues to be the Vice-President for News and Information
of NPR. His business address is 635 Massachusetts Avenue, N.W.,
Washington, D.C. 20001-3753. At all times relevant to this
Complaint, Mr. Buzenberg acted within the scope of his employment
and in furtherance of NPR's interests. As Vice-President for News
and Information, he had policymaking authority over programming
decisions at NPR.
Factual Allegations
8. Mr. Jamal was convicted in 1982 of killing Daniel Faulkner, a
Philadelphia police officer. Since his arrest in December, 1981, Mr.
Jamal has consistently maintained that he did not kill Officer Faulkner
and that he is innocent of the crime of murder. His conviction has
been the subject of intense legal and public protest centering around
the fundamental unfairness of his trial, including the lack of
competent counsel, the systematic exclusion of African-Americans
from his jury, police intimidation of witnesses and fabrication of
evidence, prosecutorial misconduct, and the prejudicial introduction
of inflammatory evidence of Mr. Jamal's past political statements and
associations, including his involvement with the Black Panther Party.
His execution has been stayed pending the resolution in Pennsylvania
courts of post-conviction petitions for a new trial based on these and
other violations of his right to a fair trial process.
9. Mr. Jamal's arrest, conviction, and death sentence have become
the focus for worldwide attention to the issues of racism in the
criminal justice system and the immorality of the death penalty. The
unfairness of his trial, incarceration, and death sentence has been
denounced by various well-known statesmen, artists, cultural figures
and intellectuals, including Nelson Mandela, Ossie Davis, Mario Van
Peebles, Whoopi Goldberg, Ed Asner, Harry Belafonte, E.L.
Doctorow, Alice Walker, Stephen Jay Gould, Tony Benn, John
Edgar Wideman, and twenty-two Members of the Congressional
Black Caucus. In addition, a wide range of domestic and
international organizations have called for a new trial for Mr. Jamal,
including the National Conference of Black Lawyers and, by
unanimous vote, the European Parliament of the European Union.
Popular rallies on his behalf have been held as far away as Germany
and Australia.
10. Mr. Jamal has also been the object of widespread public
condemnation and denunciation by proponents of the death penalty
and by various supporters of the Philadelphia Police Department,
including the National and Philadelphia Chapters of the Fraternal
Order of Police and Senator Robert Dole (R-Kansas).
11. At the time of the events giving rise to this suit and until January
13, 1995, Mr. Jamal was incarcerated at the State Correctional
Institution at Huntingdon ("Huntingdon"). During the period of his
incarceration at Huntingdon, Mr. Jamal continued to express views
against racism and bias in the criminal justice system and against the
mistreatment of prisoners in the United States through writings and
broadcast commentaries and reports. His writings have been
published in various publications, including The Nation and the Yale
Law Journal. Mr. Jamal is the author of a collection of essays, Live
from Death Row, published in 1995.
12. In July, 1992, the Prison Radio Project began recording and
producing radio commentaries written and delivered by Mr. Jamal
from his incarceration on death row for broadcast on public radio
stations in the United States and abroad.
13. On or about February 14, 1994, acting with the consent of and
on behalf of Mr. Jamal and the Prison Radio Project, Ms. Hanrahan
met with Ellen Weiss, the Executive Producer of "All Things
Considered," for the purpose of auditioning Mr. Jamal as a possible
Commentator for the "All Things Considered" program.
14. At all times relevant to this Complaint, Ms. Weiss was acting as
a representative of NPR with actual and apparent authority to enter
into legally binding agreements for NPR with respect to the
commissioning of commentaries for the "All Things Considered"
program.
15. On or about February 14, 1994, after hearing a sample of Mr.
Jamal's radio commentaries, Ms. Weiss told Ms. Hanrahan that Mr.
Jamal offered a "unique perspective" that "my audience needs to
hear." Ms. Weiss expressly promised Ms. Hanrahan that NPR's
decision whether to air his commentaries would not be affected by
the facts that Mr. Jamal was on death row, that he had been convicted
of killing a police officer, or that the broadcast of his commentaries
could create intense public controversy. Ms. Weiss stated to Ms.
Hanrahan that she was almost certain that NPR wanted to record and
broadcast Mr. Jamal's commentaries, but that as a "pro forma" matter
she needed to clear her decision with others in NPR management. In
reliance on these representations, at the conclusion of the meeting
Ms. Hanrahan left a notebook of Mr. Jamal's writings with Ms.
Weiss for consideration as part of the series of commentaries that Mr.
Jamal would record for "All Things Considered."
16. As a result of the February 1994 meeting and later in the same
month, Ms. Weiss told Ms. Hanrahan that NPR management had
agreed with her decision to broadcast commentaries by Mr. Jamal on
"All Things Considered." Ms. Weiss and Ms. Hanrahan agreed that
NPR would broadcast on the "All Things Considered" program a
series of commentaries about prison life, racial justice and crime,
written and delivered by Mr. Jamal and produced and recorded by the
Prison Radio Project.
17. In February, 1994, Ms. Weiss and Ms. Hanrahan expressly
agreed that Mr. Jamal would write several new commentaries to fit
the format for Commentator contributions on "All Things
Considered," that NPR would assist the Prison Radio Project in
recording Mr.Jamal reading his commentaries, that the Prison Radio
Project would attend to administrative matters involved in conducting
such a recording session with Mr. Jamal, produce the commentaries,
and contribute its technical expertise in recording a death row
prisoner for broadcast, and that NPR would pay specified expenses
incurred by the Prison Radio Project.
18. During the same conversation referenced in paragraph 17 above,
Ms. Weiss and Ms. Hanrahan agreed that, in consideration for the
work that Mr. Jamal and the Prison Radio Project were contributing,
NPR would broadcast at least six commentaries on "All Things
Considered," at the rate of one a month, provided that the recordings
were of sufficient technical quality to satisfy NPR's broadcast
standards. NPR further agreed to compensate Mr. Jamal according
to NPR's usual and customary rates for compensating
Commentators.
19. The terms and conditions described in paragraphs 17 and 18
above, constituted a binding contract between and among NPR, Mr.
Jamal, and the Prison Radio Project.
20. NPR's promise to broadcast Mr. Jamal's commentaries on its
"All Things Considered" program represented a unique opportunity
for Mr. Jamal to communicate his views. NPR's "All Things
Considered" program has the widest audience of any non-
commercially produced public affairs radio program produced in the
United States, reaching some seven to ten million listeners
worldwide through NPR's network of broadcast affiliates.
21. In reliance on their agreement with NPR, Mr. Jamal and the
Prison Radio Project agreed to forego any attempts to have the
commentaries in question aired on any other broadcast outlet which
were available at the time that Mr. Jamal and the Prison Radio Project
entered into their contract with NPR.
22. By letter to Mr. Jamal dated March 10, 1994, Ms. Weiss
confirmed the agreement that she and Ms. Hanrahan reached with
respect to the commentaries that Mr. Jamal would create and that the
Prison Radio Project would produce and record, and expressly
promised that NPR would broadcast one commentary a month for six
consecutive months.
23. Pursuant to the above-described agreement, between March 24,
1994, and April 10, 1994, Mr. Jamal's agent delivered a group of
five written commentaries to Laura Westley, an Assistant Editor of
"All Things Considered."
24. During the period between March 24, 1994 and April 10, 1994,
representatives of NPR selected ten of Mr. Jamal's written
commentaries to record and broadcast on "All Things Considered."
25. Pursuant to the contract described in paragraphs 17 and 18,
above, on April 15, 1994, Ms. Hanrahan, Ms. Westley, and Patricia
Gordon Hammond, an NPR engineer, met Mr. Jamal at the State
Correctional Institution in Huntingdon and recorded his reading of
the ten commentaries that NPR had selected for broadcast.
Following the recording session, Ms. Westley stated that Mr. Jamal
was "one of the three best commentators we have ever recorded."
26. On April 18, 1994, Ms. Westley called Ms. Hanrahan and
notified her that the recordings were of good technical quality and
would be broadcast on the "All Things Considered" program as NPR
previously agreed.
27. On one occasion between April 18, 1994 and April 25, 1994,
Ms. Weiss called Ms. Hanrahan and advised her that "we are very
excited about our new Commentator" and that the publicity
department would promote the commentaries for about a month
before NPR would begin to air them.
28. On or about April 25, 1994, NPR issued a press release
announcing that Mr. Jamal's commentaries would be broadcast on
"All Things Considered" and began general promotion of Mr.
Jamal's commentaries.
29. On or about May 10, 1994, Ms. Westley called Ms. Hanrahan to
notify her that NPR assigned a specific air date of May 16, 1994, for
the debut of Mr. Jamal's commentaries on "All Things Considered"
in order to facilitate promotion of Mr. Jamal's appearance on the
program.
30. Beginning on or about May 12, 1994, and continuing through
May 15, 1994, the National and Philadelphia Chapters of the
Fraternal Order of Police began issuing public denunciations of
NPR's decision to air Mr. Jamal's commentaries and engaged in
concerted and coordinated actions to contact state and federal officials
and urge them to pressure NPR not to broadcast Mr. Jamal's
commentaries by threatening to restrict the funds of NPR and its
affiliate stations.
31. Upon information and belief, police officers employed by the
Philadelphia Police Department and other police departments around
the United States engaged in concerted action to pressure NPR not to
broadcast Mr. Jamal's commentaries and to prevent Mr. Jamal from
airing his political and social views, including but not limited to
calling local and national talk radio programs expressing derogatory
opinions about Mr. Jamal, urging people to cease contributing to
NPR and its affiliates, and contacting various elected officials for the
purpose of engaging them in a campaign to threaten NPR with
funding reductions if it broadcast Mr. Jamal's views.
32. Upon information and belief, Senator Dole and other Members
of Congress and various federal and state governmental officials
contacted NPR on or before May 15, 1994, to demand that NPR not
broadcast Mr. Jamal's commentaries.
33. Upon information and belief, the actions described in paragraphs
31 and 32 above were taken because of political and ideological
disagreement with the views that Mr. Jamal expressed and the
viewpoints that he symbolized with respect to the death penalty,
police brutality and racism in Philadelphia, and police brutality and
racism in the United States more generally.
34. On or about May 15, 1994, NPR officials, including Messrs.
Drake and Buzenberg, decided to cancel the scheduled broadcast of
Mr. Jamal's commentaries on "All Things Considered," and, upon
information and belief, directed Mr. Drake, Mr. Buzenberg and
others to issue public statements-offering false and pretextual
justifications for NPR's abrupt cancellation of Mr. Jamal's
commentaries.
35. Soon thereafter, NPR permanently cancelled Mr. Jamal's
appearance as a Commentator on its "All Things Considered"
program, and refused to broadcast Mr. Jamal's commentaries, in
violation of the contract set out in paragraphs 17 and 18 above.
36. NPR's actions in refusing to broadcast Mr. Jamal's
commentaries and cancelling Mr. Jamal's appearance as
Commentator on "All Things Considered" were motivated by
improper considerations concerning the content of Mr. Jamal's
speech, his political viewpoints, and his political associations, and
were caused directly and proximately by the pressure exerted by
Senator Dole and other conservative opponents of the political
viewpoints that Mr. Jamal has expressed.
37. On May 15, 1994, and at various times since that date, Messrs.
Drake and Buzenberg and other NPR employees and officials issued
statements to the press that disparaged the quality of Mr. Jamal's
commentaries and offered false and pretextual grounds for NPR's
actions in refusing to broadcast Mr. Jamal's commentaries, all of
which directly and proximately caused damage to the professional
reputations of Mr. Jamal and the Prison Radio Project.
38. On May 17, 1994, in a speech given on the floor of the United
States Senate, Senator Dole denounced NPR and threatened closer
Congressional oversight and reduction of NPR's funding because of
NPR's initial decision to broadcast Mr. Jamal's commentaries.
39. On May 17, 1994, Ms. Weiss called Ms. Hanrahan and told her
that she was "in shock" about the cancellation of Mr. Jamal's
commentaries and that she had not considered congressional
opposition to NPR's decision to broadcast Mr. Jamal's commentaries
at the time NPR had initially agreed to broadcast his commentaries.
She further stated "this never set off any red flags for us. We had no
idea it would be censored."
40. On June 14, 1994, Ms. Weiss refused Ms. Hanrahan's request
that the audio tapes, or a broadcast quality copy of the audio tapes,
containing the commentaries that NPR recorded on April 15, 1994,
be returned to the Prison Radio Project or to Mr. Jamal.
41. In July 1994, during an interview on WNYC-AM's "On the
Media", John Dinges, then NPR's Editorial Director, admitted that
NPR cancelled Mr. Jamal's commentaries based on the content of his
speech. He stated, "[w]e in fact made a decision not to go ahead
with those commentaries because we thought it was not good
journalism to put somebody on the air in the role of a kind of
Anthony Lewis on public radio." He went on to say that Mr. Jamal's
"unique political position because of his crime and because of his
political associations" caused NPR not to broadcast Mr. Jamal's
commentaries.
42. As a result of the above-described censorship of Mr. Jamal by
NPR and the attendant publicity over Mr. Jamal's scheduled
appearance on "All Things Considered," Pennsylvania prison
officials have terminated virtually all electronic press contact for Mr.
Jamal and have refused to allow him to continue recording
commentaries for radio broadcast.
43. On June 9, 1995, in a speech delivered on the Senate floor,
Senator Dole asserted that NPR's abrupt reversal of its decision to air
Mr. Jamal's commentaries was due to pressure brought to bear by
Members of Congress, including himself.
44. Since the above-described events and continuing to the present,
Ms. Weiss and NPR have refused to broadcast Mr. Jamal's
commentaries and have refused to return to Mr. Jamal or the Prison
Radio Project the audio tapes or copies of the tapes embodying the
commentaries that were recorded on April 15, 1994, despite repeated
requests made on behalf of Mr. Jamal that the tapes be aired or
returned.
45. Upon information and belief, NPR has not subjected any other
Commentator with whom it has contracted to this type of arbitrary
and capricious cancellation of his or her contract with NPR. NPR's
actions constituted an arbitrary and capricious departure from prior
NPR policy and accepted broadcast norms.
FROM GOVERNMENTAL CENSORSHIP PURSUANT TO THE
FIRST AND FIFTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION.
46. Plaintiffs incorporate as though restated each of the factual
allegations stated in paragraphs 1 through 45 above.
47. Mr. Jamal is entitled to freedom of expression and freedom from
governmental censorship of his speech under the First and Fifth
Amendments to the United States Constitution.
48. The views contained in the commentaries at issue in this suit
constitute political speech and are entitled to the highest degree of
First Amendment protection.
49. At all times relevant to this complaint, NPR and its agents and
representatives were acting as an agency or instrumentality of the
United States government within the meaning of the First and Fifth
Amendments to the United States Constitution.
50. At all times relevant to this complaint, NPR received a
substantial portion of its funding from state and federal governmental
sources, including but not limited to direct or indirect Congressional
appropriations, grants from the Corporation for Public Broadcasting,
and funding from State-owned public radio broadcast affiliates and
member organizations.
51. NPR was created by the Corporation for Public Broadcasting,
an agency or instrumentality of the United States Government, in
order to fulfill the policies and objectives of the United States
Government and pursuant to Congressional direction as embodied in
the Public Broadcasting Act of 1967, 47 U.S.C. 396.
52. NPR is supervised and controlled by the United States
Government and its agencies, instrumentalities, and officials.
53. There is a significant and substantial nexus between NPR and
the governments of the United States and individual States and
significant and substantial involvement with and influence over the
management of NPR by the governments of the United States and
individual States.
54. The actions taken by NPR and its agents and representatives in
refusing to broadcast Mr. Jamal's commentaries were based on the
political viewpoints that Mr. Jamal expressed and symbolized and
constitute viewpoint discrimination in violation of the First and Fifth
Amendments to the United States Constitution.
55. NPR's continuing refusal to broadcast Mr. Jamal's
commentaries and to return the tapes or copies of them to Mr. Jamal
constitute attempts to suppress his political views and the viewpoints
that he publicly symbolizes, in violation of the First and Fifth
Amendments to the United States Constitution.
56. NPR's actions in suppressing Mr. Jamal's political views were
encouraged and/or authorized by agencies, instrumentalities, and
officials of the governments of the United States and individual
States.
57. NPR's actions in suppressing Mr. Jamal's political views were
taken under color of federal law.
58. NPR's actions in suppressing Mr. Jamal's political views were
taken pursuant to a policy, practice or custom requiring the
censorship and exclusion from NPR programming of political views
and commentaries that offend conservative Members of Congress
and other groups which NPR officials have concluded can and do
influence the funding of NPR.
59. At the time that defendants NPR, Buzenberg and Drake excluded
Mr. Jamal's speech from its programming, the right of a speaker to
be free from viewpoint discrimination by governmental actors was
clearly established under the First Amendment and judicial precedent.
60. The actions of defendants in refusing to broadcast Mr. Jamal's
commentaries manifested a reckless indifference to, and willful and
wanton disregard of, Mr. Jamal's clearly established constitutional
rights, and directly and proximately caused plaintiffs injury,
including the suppression of plaintiff's political views, the loss of
opportunities to communicate with the audience of "All Things
Considered," the loss of opportunities to seek other broadcast outlets
for the commentaries, and damage to plaintiffs' professional
reputations. NPR's actions enumerated herein also caused economic
loss to the Prison Radio Project.
PROPERTY WITHOUT JUST COMPENSATION UNDER THE
FIFTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
61. Plaintiffs incorporate as though restated each of the factual
allegations stated in paragraphs 1 through 60 above.
62. Mr. Jamal and the Prison Radio Project have the right under the
takings clause of the Fifth Amendment to the United States
Constitution not to be deprived of their property without just
compensation.
63. The commentaries written and delivered by Mr. Jamal and
recorded on April 15, 1994, through the production skill and
expertise of the Prison Radio Project, embody significant property of
Mr. Jamal and the Prison Radio Project in the nature of common law
or statutory copyright interests.
64. NPR's appropriation of the audio tapes of Mr. Jamal's
commentaries and its continuing refusal to return them to plaintiffs
constitute a taking of plaintiffs' property without just compensation,
which directly and proximately caused plaintiffs substantial harm.
COUNT THREE -- VIOLATION OF RIGHTS AGAINST THE
DEPRIVATION OF LIBERTY OR PROPERTY WITHOUT DUE
PROCESS OF LAW UNDER THE FIFTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
65. Plaintiffs incorporate as though restated each of the factual
allegations stated in paragraphs 1 through 64 above.
66. Mr. Jamal and the Prison Radio Project have the rights under the
due process clause of the Fifth Amendment to the United States
Constitution not to be deprived of liberty or property without due
process of law, and not to be subjected to arbitrary or capricious
government action.
67. As a result of their express contractual agreement with NPR,
plaintiffs had a crystallized and reasonably justifiable expectation that
they would enjoy the benefit of having their work broadcast on
NPR's "All Things Considered" program.
68. Mr. Jamal had a significant liberty interest not to be denied by
the government the right to express his political viewpoints on an
arbitrary or capricious basis.
69. Plaintiffs' rights not to be treated in an arbitrary and capricious
manner by government actors were clearly established under the Fifth
Amendment to the Constitution and judicial precedent at all times
relevant to this complaint.
70. Defendants' actions in refusing to broadcast Mr. Jamal's
commentaries were arbitrary, capricious, and without reasonable
basis.
71. Defendants' actions in refusing to broadcast Mr. Jamal's
commentaries were taken with reckless indifference to, and in willful
and wanton disregard of, plaintiffs' rights, and directly and
proximately caused plaintiffs injury, including the loss of opportunity
to communicate with the audience of "All Things Considered," the
loss of opportunities to seek other broadcast outlets for the
commentaries, and damage to the professional reputations of Mr.
Jamal and the Prison Radio Project.
72. Defendants' violation of plaintiffs' fundamental constitutional
right to due process caused them substantial harm.
COUNT FOUR -- BREACH OF CONTRACT AND BREACH OF
THE COVENANT OF GOOD FAITH AND FAIR DEALING.
73. Plaintiffs incorporate as though restated each of the factual
allegations stated in paragraphs 1 through 72 above.
74. The promises exchanged in February 1994 between NPR and
Noelle Hanrahan, who was acting on behalf of the Prison Radio
Project and Mr. Jamal, established an express contract between
NPR, the Prison Radio Project and Mr. Jamal.
75. Under the terms of the above-described contract, the Prison
Radio Project agreed to produce broadcast quality audio recordings
of Mr. Jamal's commentaries produced in the Huntington Prison on
April 15, 1994. Mr. Jamal agreed to write several new commentaries
and to permit NPR to select a number of commentaries from among
those he had already composed, to deliver the selected and
commissioned commentaries orally for recording by Prison Radio
Project on April 15, 1994, and to permit NPR to broadcast the
commentaries according to its usual and customary format and
scheduling of commentaries on the "All Things Considered"
program.
76. In exchange for the promises made by Mr. Jamal and the Prison
Radio project, NPR promised to send an engineer and producer to
SCI Huntingdon on April 15, 1994, to assist the Prison Radio
Project in recording Mr. Jamal delivering the commentaries that it had
chosen and/or commissioned from Mr. Jamal, to pay Mr. Jamal the
usual and customary fee for Commentators on "All Things
Considered," and to broadcast the recorded commentaries on the "All
Things Considered" program at the rate of one Commentary per
month for at least six months.
77. In agreeing to these arrangements, the Prison Radio Project and
Mr. Jamal relied on NPR's promises that its decision whether to air
the commentaries would be based solely on an evaluation of the
technical quality of the commentaries and would not be influenced by
or based upon the facts that Mr. Jamal is on death row, that he has
been convicted of killing a police officer, or that he was a
controversial public figure.
78. By the end of the day on April 15, 1994, the Prison Radio
Project and Mr. Jamal performed all of their obligations under their
contract with NPR.
79. The commentaries that were produced and recorded on April 15,
1994, satisfied any and all requirements and/or conditions that NPR
had asserted with respect to its technical sound quality requirements.
Once NPR determined that the audio tapes satisfied its technical
requirements, NPR came under a duty pursuant to the contract
between it and Mr. Jamal and the Prison Radio Project to broadcast
the commentaries on the "All Things Considered" program.
80. Defendants' decision on May 15, 1994, not to broadcast Mr.
Jamal's commentaries because of disagreements on the part of the
National and Philadelphia Chapters of the Fraternal Order of Police,
Senator Dole, and others, with the political viewpoints that Mr. Jamal
had previously expressed, and the political viewpoints Mr. Jamal
symbolized, constituted a willful, malicious, and bad faith breach of
its obligations under the terms of the express contract between NPR,
Mr. Jamal, and the Prison Radio Project, and also constituted a
breach of an implied covenant of good faith and fair dealing.
81. NPR's refusal to broadcast the commentaries as promised was
in willful and wanton disregard of plaintiffs' contractual rights, and
directly and proximately caused Mr. Jamal and the Prison Radio
Project injury, including the loss of the unique opportunity to air Mr.
Jamal's views to the "All Things Considered" audience, the loss of
opportunities to market Mr. Jamal's commentaries to other broadcast
outlets, and damage to the professional reputations of Mr. Jamal and
the Prison Radio Project.
82. Monetary damages cannot fairly compensate plaintiffs for the
wrongful denial of an opportunity to communicate their views to the
audience of "All Things Considered," as NPR promised, since such
an opportunity is a unique and irreplaceable benefit of the parties'
contractual agreement for which no comparable market substitute is
available. Monetary damages cannot adequately compensate
plaintiffs for the harm they have suffered and continue to suffer as a
result of defendants' wrongful actions.
COUNT FIVE -- CONVERSION
83. Plaintiff incorporates as though restated each of the factual
allegations stated in paragraphs 1 through 82 above.
84. Mr. Jamal and the Prison Radio Project have a property interest
in the nature of a common law or statutory copyright in Mr. Jamal's
unique delivery of his commentaries.
85. The audio tapes in the possession of NPR represent the only
embodiments of the creative and artistic expression of Mr. Jamal in
delivering the commentaries that are the subject of this suit.
86. On its own behalf and on behalf of Mr. Jamal, the Prison Radio
Project has repeatedly requested of NPR that the tapes, or copies
thereof, be returned to the Prison Radio Project and/or Mr. Jamal.
87. Defendants have willfully refused to return the audio tapes or
copies thereof to plaintiffs and continue to wrongfully detain the
property, which denies and repudiates the lawful rights of plaintiffs
to ownership and possession of the commentaries.
88. Defendants' actions in converting the property of plaintiffs to
their own use and refusing plaintiffs access to their property, in
willful and wanton disregard of plaintiffs' property rights, has
directly and proximately caused plaintiffs injury, including the denial
of any opportunity to broadcast the commentaries embodied in the
audio tapes by alternative means.
Requested Relief
NOW, WHEREFORE, plaintiff prays this court for the following
relief:
1. Issuance of a declaratory judgment declaring that defendants'
suppression of Mr. Jamal's political expression violates his
constitutional right to free speech under the First Amendment to the
United States Constitution and plaintiffs' rights to due process under
the Fifth Amendment to the United States Constitution;
2. Issuance of an order enjoining defendants NPR, Drake and
Buzenberg from suppressing Mr. Jamal's political views and
requiring that they broadcast the commentaries at issue in this suit on
NPR's "All Things Considered" program, at the frequency and times
of day that it originally planned, prior to NPR's censorship of his
views;
3. Issuance of an order enjoining defendants NPR, Drake and
Buzenberg from retaining the audio tapes of Mr. Jamal's
commentaries and requiring that NPR immediately return the audio
tapes, or broadcast quality copies thereof, to plaintiffs;
4. An award to plaintiffs of compensatory and consequential
damages in an amount appropriate to the proof presented at trial, but
in no event less than $500.000:
5. An award to plaintiffs of punitive damages in the amount of
$1,500,000;
6. Granting of specific performance of NPR's promise to broadcast
the commentaries at issue in this suit on NPR's "All Things
Considered" program, at the frequency and times of day that it
originally planned, prior to its censorship of his views;
7. An award to plaintiffs of reasonable attorneys' fees and costs; and
Respectfully submitted,
Lynne Bernabei #938936
Dana Sullivan #448930
Bernabei & Katz
1773 T Street, N.W.
Washington, D.C. 20009
202-745-1942
Respectfully submitted,
Debra Katz #411861
Bernabei & Katz
1773 T Street, N.W.
Washington, D.C. 20009
202-745-1942
OF COUNSEL:
Gary Peller
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
202-662-9122
DATED: March 26, 1996
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
MUMIA ABU-JAMAL
State Correctional Institution
at Greene
1040 E. Roy Furman Highway
Waynesburg, Pennsylvania 15370
PRISON RADIO PROJECT
3502 Varnum Street
Brentwood, Maryland 20722
Plaintiffs,
NATIONAL PUBLIC RADIO
635 Massachusetts Avenue, N.W.
Washinqton D.C. 20001-3753
SERVE:
LEE SATTERFIELD
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001
BRUCE DRAKE, in his official and
individual capacities,
Managing Editor
National Public Radio
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001-3753
WILLIAM BUZENBERG, in his official and
individual capacities,
Vice-President for News and Information
National Public Radio
635 Massachusetts Avenue, N.W.
Washington, D.C. 20001-3753
Defendants.
Civil Action No. _
JURY DEMAND
Plaintiff demands a trial by jury on all claims so triable.
Lynne Bernabei #938936
Debra Katz #411861
Dana Sullivan #448930
Bernabei & Katz
1773 T Street, N.W.
Washington, D.C. 20009
202-745-1942
OF COUNSEL:
Gary Peller
Georgetown University Law Center
600 New Jersey Avenue, N.W.
Washington, D.C. 20001
202-662-9122
DATED: March 26, 1996
