[Editor's Note: Mumia Abu Jamal, a nationally known journalist convicted in 1992 for the murder of a Philadelphia police officer, is bringing suit against National Public Radio. Abu Jamal claims that the cancellation of a series of commentaries he had contracted for with NPR before they were broadcast amounts to censorship by the publicly funded news network. Jamal claims that the network chose not to air the commentaries under pressure from Sen. Robert Dole and the Fraternal Order of Police. In a public statement, NPR officials replied that the decision not to air the commentaries was editorial discretion, not censorship.] 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 8PECIFIC 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 of Columbia, 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