Judge: Leykis case may not go to jury

Posted: Monday, February 04, 2002

JUNEAU (AP) -- A woman's lawsuit against radio talk-show host Tom Leykis pits the constitutional right to speak freely against the common law right to be left alone, the judge said Saturday.

The judge said she is considering a motion from Leykis and his production company to dismiss the charges altogether instead of allowing the jury to begin deliberations on the matter Monday.

Juneau Superior Court Judge Patricia Collins said at a hearing Saturday that she is concerned the jury could award Karen Carpenter money simply because it doesn't like what Leykis said about her.

Carpenter, of Juneau, sued Leykis and Westwood One, his production company, charging that they intentionally inflicted severe emotional distress on her and intentionally destroyed tapes of the disputed broadcast that she needed for evidence.

Defense attorney Leslie Longenbaugh, in arguing for a dismissal of both charges, said Carpenter hadn't proved her case.

But Judge Collins on Saturday sketched out broader reasons not to let the jury consider the charges. Collins said she was concerned ''whether and to what extent we risk having a verdict of money damages based on (constitutionally) protected speech because the jury doesn't like its content.''

The jury is scheduled to begin deliberations Monday. The judge met Saturday with lawyers for Leykis and Carpenter to work on the jury instructions.

Leykis derided and lewdly taunted Carpenter on the air on his nationally syndicated show July 24, 1998, the last day it aired in Juneau. Carpenter had sent a letter two days earlier to local station KJNO-AM saying she had contacted advertisers about the show's vulgarity and wanted it off the air.

Leykis read Carpenter's letter on the air and named her. A caller from Juneau gave out Carpenter's home fax number and urged people to contact her. Leykis, about an hour after mentioning Carpenter's name, said the show would return to the air in Juneau and ''we're going to make that woman's life a living hell.''

Judge Collins said Saturday the case had a ''high percentage of unique and unusual issues,'' and it touched on gray areas in the law.

Collins said a claim of intentional emotional distress can't be based on speech protected by the First Amendment. So the question is whether Leykis broadcast anything that isn't protected free speech.

Collins in late October dismissed several of Carpenter's claims, including one of defamation.

Leykis' statements about Carpenter were ''pure insult and opinion, incapable of reasonably being understood as a factual assertion,'' Collins wrote.

But even if Leykis' statements were opinion, Collins opened another door to a successful emotional-distress claim. She said Carpenter might be able to argue that private facts about her were publicly disclosed, which is a recognized cause for lawsuits, and that such disclosures weren't protected by the First Amendment.

Still, that standard can be a high hurdle to get across, Collins suggested Saturday. The U.S. Supreme Court has ruled twice that disclosure of a rape victim's name was protected speech as long as it was true and the information was legally obtained, even if it caused emotional distress.

Collins on Saturday said it was a ''very close question'' whether Leykis' comment about making Carpenter's life a living hell was ''an exhortation of immediate violence,'' which would be unprotected by the Constitution.

Leykis has testified that he meant the show would be a living hell to Carpenter just by being on the air in Juneau. The defense has argued that Carpenter's personal information was available in the phone book, and that the show's comments about her were meant as entertainment.

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