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Road Rights- Kornheiser

By Bob Mionske

Imagine you’re listening to the radio one day, as you always do, and the radio personality is on a tear about how annoying the local softball league is. Those ridiculous jerseys they wear, how ridiculous with their guts hanging out, haha, who do they think they are, professionals? Haha. And what about those weekend basketball games? Hockey? Rugby? All wannabes, haha.

“So next time you see some of these weekend warriors, here’s what you do, you run ’em down. Drive onto the field of play with your car, chase them around a little, make them run for their lives, and run ’em down. Don’t kill them, but let ’em know who’s boss.”

Is it still funny? Still just a joke?

Maybe the character the radio personality is playing is not meant to be himself, but “an old curmudgeon,” and his rants are intended to be humorous. Or maybe the character the personality is portraying is a rageaholic with anger-management issues. Maybe nobody really expects somebody to drive onto the local flag football field and start running players down, haha.

But what if the character’s wrath is directed at a group that has historically been the target of violence? Suppose, for example, that the character expresses his dislike of women by telling listeners to go home and beat their wives? Or to go out and find a stranger to rape? Is his act still funny? Or suppose he goes on a rant about how much he dislikes gays, and tells his listeners to go out cruising with some friends looking for gay men to bash—is it still humorous? What if the rant is urging listeners to burn down a synagogue? Or suppose the target of his wrath is African-Americans, and the radio personality is urging a lynching? Is anybody still laughing? ((Of course not (or at least I certainly hope not). Nobody would consider those to be jokes or satire or entertainment, because the subject matter of the alleged entertainment is indistinguishable from real acts of violence, historical and contemporary, threatened and actual.

Reasonable people would rightly be appalled by such offensive and dangerous hate speech masquerading as entertainment, and would expect that the personality be removed from the air, and even that the station be disciplined by the FCC—particularly if the station had done nothing to prevent the foray into this type of humor, or winked at the jokes afterward.

And yet, as we all know, every now and then, some radio personality goes on a tear about cyclists, and inevitably, tells listeners to lob drinks at them, door them, and of course, run them down. Now, if the radio personality was ranting about Little Leaguers, the incongruity of the rant might seem humorous to some. But Little Leaguers aren’t subjected to threatened or actual acts of violence every day; cyclists are.

Daily, cyclists have drinks lobbed at them, have doors maliciously opened by passing motorists, are run off the road, and even run down, simply because they are on a bike. Sometimes, they’re even “just tapped,” as ESPN’s Tony Kornheiser recently urged . Perhaps the most common threat of violence against cyclists is one we’re all too familiar with—the buzz, where the driver passes within inches of us at high speed. Occasionally, a driver may truly have miscalculated the distance, or just plain didn’t see the cyclist. More often, I believe, the driver is intentionally threatening the cyclist. You can be sure it’s intentional when the driver checks his rear-view mirror for your reaction. In fact, I’m convinced that some “accidents” are buzzes gone awry—the driver intended to scare the cyclist, but didn’t expect that the close pass would result in a collision. And New Zealand police say that drivers are intentionally targeting cyclists. I’m convinced that’s a problem that’s not just limited to New Zealand (or Australia). It happens here too.

So the violence is real, and virtually every cyclist has experienced some aspect of it. This is why entertainment stirring anti-cyclist hatred and urging violence against cyclists is akin to hate speech urging violence against groups that are actually subject to real violence, rather than humor that wasn’t meant to be taken seriously.

Alleged humor aside, what is the excuse these entertainers use to justify their rants? Spandex. Scofflaws. The fact that somebody is riding a bike and the radio personality isn’t. Yes, some of us wear spandex—and some of us don’t. Some beer leagues wear their team’s uniforms too, and nobody has suggested that they be murdered for it. Some of us break the law, and some of us don’t. Most drivers break the law too, and no radio blatherer has urged his listeners to go out and start slaughtering drivers at random. Some of us slow down automobiles when we ride, because it’s often unavoidable; but more commonly we don’t. And if you really want to get to the root cause of traffic jams, it’s all the single-occupant motor vehicles on the road. But when was the last time you heard an entertainer tell listeners to go out and commit homicide because other drivers are “in the way”?

All of the things that annoy us in our daily lives might be legitimate topics for humor. Sometimes they might even be the subject of legitimate grievances. But none of these facts are reason to resort to violence, let alone urge radio listeners to resort to violence. And let’s be clear about this—radio personalities who stoke the fires of violence against cyclists are not being funny or humorous or making jokes. They are targeting a group that is targeted for violence every single day, and urging that the violence continue.

Ironically, three weeks after Kornheiser’s urged his listeners to run cyclists down, it was revealed that ESPN reporter Erin Andrews had been the subject of death threats delivered via email. Predictably, Kornheiser did not make jokes urging listeners to send more death threats to Andrews (let alone the sexually threatening emails that had been sent over the course of the last six months). Why? Because the threat is real, and jokes urging more threats, or worse, urging that the threats be carried out, aren’t funny. But apparently, jokes urging that listeners engage in the kinds of violent acts that cyclists are subjected to every single day are considered funny.

So what was it that triggered Kornheiser’s murderous rant?(( A bicycle lane.

Yes, a bicycle lane. Recently, Washington D.C. announced a plan to extend bicycle lanes currently existing on 15th Street to Pennsylvania Avenue, and along Pennsylvania Avenue, from the White House to the Capitol. Because of this, Kornheiser urged ESPN listeners to go out and murder cyclists at random. Or at least, give them “a tap.”

Never mind that the physically separated lanes that Washington is installing keep cyclists out of the way of drivers, and vice versa. Never mind that the random cyclists who would be the victims of the violence Kornheiser was advocating had nothing to do with the bicycle lanes in the first place. Never mind the fact that cyclists are just people—friends, neighbors, family—trying to get somewhere safely, just like everybody else. Facts and logic have never dissuaded the irrational rageaholics who attack cyclists, and they had no place in Kornheiser’s reasoning either.

However, facts and logic did appear on Kornheiser’s show, when none other than Lance Armstrong called in to Kornheiser’s show a week later to discuss the rant, eliciting an apology from Kornheiser.

This wasn’t the first incident in which a radio station used the public airwaves to encourage motorists to use violence to remove us from the public roadways, and unfortunately, it won’t be the last. Although the airwaves are publicly owned, and therefore subject to federal regulation, in practice the FCC rarely penalizes stations for this kind of on-air abuse—and the stations know it. Therefore, unless the FCC actually starts holding stations accountable for on-air incitement of violence, our most effective recourse will likely continue to be confronting the stations with facts and logic. Lance, who related his own encounter with confronting road rage in my book Bicycling & the Law, has now shown just how effective that approach can be.

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(Research and drafting provided by Rick Bernardi, J.D.)

This article, Kornheiser, originally appeared on Bicycling on April 15, 2010.

Now read the fine print:
Bicycle and the Law, Bob MionskeBob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske's practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).
Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem.
 
If you have a cycling-related legal question, please send it to mionskelaw@hotmail.com Bob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at www.bicyclelaw.com.
Important notice:
The information provided in the "Road Rights" column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.

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