[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
