Tuesday, May 31, 2005
C.A. Rejects Age Bias Suit Over Exclusion From Radio Talk Show
By KENNETH OFGANG, Staff Writer/Appellate Courts
A California civil rights law does not prohibit a broadcaster from screening out callers to a talk show on the basis of age, the Court of Appeal for this district has ruled.
Div. Four Thursday affirmed the dismissal of actor Marty Ingels’ suit against talk show host Tom Leykis and Westwood One Broadcasting Services, Inc., which produces Leykis’ radio program.
The controversial Leykis show is heard in the late afternoon in Los Angeles and enjoys high ratings among its target audience, men between the ages of 25 and 34. Ingels is a veteran of more than a dozen films, but is best known for his portrayal of a blue-collar bachelor in the early 1960s sitcom “I’m Dickens, He’s Fenster”—Ingels was Fenster—and has been a successful agent in recent years, also doing voiceover work.
The lawsuit grew out of another pastime of Ingels, calling radio talk shows using an assumed name. Two years ago, Ingels—who is married to actress Shirley Jones—took umbrage at dating advice Leykis was giving a caller and decided to call the show.
Ingels told the screener who took the call that his name was Paul Russo and that he was 60 years old, although Ingels was at least 65 at the time. (The Web site imdb.com says he was born in 1936, which would have made him 67 at the time of the radio show.)
In his complaint, Ingels said the screener made fun of his age, but eventually put him through to Leykis, who spoke to him briefly before cutting him off. When Ingels complained about being mistreated because of his age, Leykis told the caller “you’re not just older than my demographic, you’re the grandfather of my demographic,” “we’re not aiming at people your age, Pops,” and “I’m not in the business of trying to appeal to people like you calling from a rest home or a card room,” and suggested he call a big band station because the program was for people who “go out and ride motorcycles and drive expensive cars and drink beer.”
Unruh Act Claim
Leykis’ conduct, Ingels alleged in his complaint, violated the Unruh Civil Rights Act, which prohibits invidious discrimination in economic transactions not involving housing or employment. He claimed that he was berated and humiliated by the host, that he was not allowed to state his opinions because of his age, and that he was emotionally distressed as a result.
Los Angeles Superior Court Judge Ernest Hiroshige granted the defendants’ motion to strike the complaint under the anti-SLAPP law. He found that the complaint implicated the defendants’ First Amendment rights and that the plaintiff was unlikely to prevail on the merits because he “has not made a prima facie showing that he was treated any differently than any other caller” and because the Unruh Act “cannot be applied to impose upon broadcasters a viewpoint unwanted in their message to targeted audiences.”
Justice J. Gary Hastings, writing for the Court of Appeal, said the trial judge was correct.
The justice cited Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, which held that a woman who was called a “loser,” “a chicken butt,” and a “skank” on a San Francisco “shock” radio program after she refused to go on the air to discuss her experiences on the television reality show “Who Wants to Marry a Multimillionaire” lacked an actionable claim for defamation.
Like the Seeling plaintiff’s refusal to participate in the program, Ingels’ participation or non-participation on the Leykis program due to his age was a matter of public interest within the meaning of the anti-SLAPP statute, shifting the burden to Ingels to prove that he was likely to prevail on the merits, the justice said.
Ingels could not prevail on the merits, however, because the Unruh Act, while applicable to age discrimination in other contexts, does not prohibit a broadcaster from selecting participants in call-in shows based on age, Hastings wrote.
The Unruh Act, he explained, must be given a limited reach when the public interest in protecting individuals from bias is outweighed by considerations of free speech.
1993 Case Cited
Hastings cited Hart v. Cult Awareness Network (1993) 13 Cal.App.4th 777, in which the court held that the Cult Awareness Network, an organization describing itself as being opposed to “mind control as practiced by destructive cults and...the unethical or illegal practices they employ” did not practice religious discrimination in violation of the Unruh Act by excluding members of the Church of Scientology from joining the network.
Members of the network, the court held in that case, had a right under the First Amendment to freely associate with each other in order to carry out the group’s purposes and to exclude those whose beliefs were in conflict with theirs.
While the issues raised by Ingels are different, Hastings reasoned, “the principles are the same.” Leykis and Westwood One, the justice said, “have a First Amendment right to control the content of their program.”
Attorneys on appeal were Robert G. Klein for Ingels and Bernard M. REsser of Berman, Mausner & Resser for the defendants.
The case is Ingels v. Westwood One Broadcasting Services, Inc., 05 S.O.S. 2557.
Copyright 2005, Metropolitan News Company