Thread: Legal questions linger past J.D. Hayworth's KFYI exit

Legal questions linger past J.D. Hayworth's KFYI exit
by Dan Nowicki - Jan. 27, 2010 12:00 AM
The Arizona Republic

Former Rep. J.D. Hayworth is off the air in Phoenix, but questions remain about his blurring of the lines between conservative talk-show host and campaigning politician as he appears to make final preparations to plunge into the primary race against Sen. John McCain.

Although others have traded jobs as broadcasters for jobs as elected officials, media-law experts interviewed this week struggled to point to another example in which a potential candidate so explicitly used a program to target a political rival and, as now appears likely, launch a political campaign against him.

Hayworth, who on Friday gave up his weekday program on Phoenix radio station KFYI-AM (550), has indicated for months that he intends to run against McCain in the 2010 GOP primary but has not formally declared his candidacy. In an appearance Tuesday on MSNBC's "Hardball," Hayworth said he was "99 and 44/100ths percent certain" he would get into the race.

But as a KFYI host, his relentless on-air criticism of McCain as too liberal - usually in conjunction with hints about his own possible Senate candidacy - generated complaints to the Federal Communications Commission and Federal Election Commission. KFYI is owned by San Antonio-based Clear Channel Communications.

Hayworth, who was a Valley TV sportscaster before running for Congress in 1994, took the radio job in 2007 after losing his House seat to Rep. Harry Mitchell, D-Ariz., in the 2006 election.

Hayworth said legal viewpoints differed among the various attorneys with whom he discussed his status as a not-yet-announced candidate. But Clear Channel counsel was cautious. As a federal licensee, KFYI must offer equal time and reasonable access to all candidates, which in the case of this year's Republican Senate race would include not only McCain but lesser-known GOP challengers Chris Simcox and Jim Deakin.

"If I was the station management, I would have been nervous, too," said Matthew Spitzer, a professor of law at the University of Southern California and an expert on federal broadcasting law. "If the guy has essentially become a candidate, then there are a ton of rules that you have to follow."

Joseph Russomanno, an associate professor who teaches media law at Arizona State University's Walter Cronkite School of Journalism and Mass Communication, said he was unaware of any other examples similar to the Hayworth case. Hayworth's giving up of the show "morally and ethically" was probably the right thing to do, he said. "It sure makes for interesting discussion in the classroom," Russomanno said.

On Jan. 20, after months of talking about the possibility of a Senate run, Hayworth read a statement on the air from Clear Channel attorneys that said he could no longer discuss the McCain candidacy or the Senate race on his 4 p.m.-to-7 p.m. show. Two days later, Hayworth and KFYI mutually agreed to cancel the program.

"We understand the real world, and I don't fault Clear Channel," Hayworth said Monday in an interview on KFYI rival KTAR-FM (92.3). "They were being pestered by attorneys, and after awhile, that legal meter keeps running."

The first complaint was filed in December with the FEC by former Arizona Attorney General Grant Woods, a McCain ally. Woods alleged that Hayworth was a de facto Senate candidate and that by allowing him to stump three hours a day on the air, Clear Channel was providing him with an illegal corporate in-kind contribution.

On Jan. 20, two attorneys for McCain's re-election campaign wrote to the FCC to ask that it deem Hayworth a "legally qualified candidate" under the Federal Communications Act, arguing that the agency's most recent interpretation of what makes such a candidate predated "the advent of 'advocacy journalism' practiced by Mr. Hayworth and many others."

"Mr. Hayworth is clearly operating outside the FCC's conceived framework," McCain attorneys Paul Charlton and Joseph Abate wrote. Even though Hayworth no longer is on KFYI, the complaints are still pending with the two federal agencies, which could still take action to clarify some of the questions surrounding the case or possibly even determine that Clear Channel must offer McCain and the other candidates airtime.

"Did the FEC and FCC complaints have something to do with him stepping down? They may well have because the law is pretty clear here that you just can't use the public airwaves to run for public office," Woods said.

Smokey Rivers, Clear Channel's director of programming and operations in Phoenix, acknowledged that Hayworth's quasi-campaigning raised legal questions.

But because stifling Hayworth's on-air commentary in deference to federal rules and regulations would have hurt his on-air performance, the station and Hayworth decided to end the show, Rivers said.

"KFYI has a reputation for being brash and upfront and speaking its mind," Rivers said. "I don't believe that J.D. was in a position to be at his best at speaking his mind because of rules that prohibited him from doing so. It wasn't his style; it wasn't our style."

Ed Phillips, a former meteorologist who gave up on-air jobs for a state Senate seat in 1990, said, "Broadcasting, to my knowledge, still is the only profession that you have to give up in order to run for political office."


http://www.azcentral.com/news/articles/ ... h0127.html

What this article didn't mention is that McCain was running mud slinging ads about JD Hayworth on KFYI-AM that were being run during JD's own show, and JD hadn't even declared he was running. Can you imagine being host on a radio show, then they go to commercial break whereby McCain states: "JD is not right for Arizona." Well, JD is a lot better for Arizona than McCain. McCain is a progressive RINO, and he's pretending to be a conservative, just to get re-elected.

I live in AZ. While McCain was campaigning for president, he neglected his duties as our senator. That's two years of pay that he collected while he campaigned for a different office. I think if you are campaigning for a different office, you should step down from your present position. McCain was totally ineffective as my senator during the campaign. And now that he is in campaign mode again, he will have to neglect his senatorial duties again.


AZ Republicans voice disdain for McCain at state GOP meeting:

http://seeingredaz.wordpress.com/2010/0 ... p-meeting/

Sounds like the McCain gang is getting desperate.
If Hayworth was employed for his radio show, and if his contract as an employee did not limit actions after his employment ended (like a non-compete clause), once he and the station agreed to end the show, he is technically a non-employee and the station has no right to decide his next moves.
Sounds like he did the right thing by not announcing his candidacy while an employee, but as a free agent, not beholden to the previous employer.
Let's just hope that this, if it comes down to a suit, will be heard by a judge with some sanity.

now as a talk show host, does he not have the job to tell his listeners what is happening in DC, what the elected officials are doing or are not doing?