Kansas TV producer fights for the right to picket

Tuesday, June 2, 1998

Although her lawsuit against a Topeka, Kan., TV station was dismissed Monday, a producer's First Amendment challenge to an order that prohibits her and her husband from picketing WIBW advertisers continues.

The now-defunct lawsuit stems from Ola Drake's time as a co-producer for the show Culturally Speaking in 1994. According to that suit, the station agreed to give her “producer's pay,” but never did. Her “reputation in broadcasting was damaged,” the suit alleged, and Ola was harassed at work and eventually forced off the job. She then sued the station for more than $100,000.

In early March 1997, the Drakes began picketing and sending letters and faxes to 10 or 15 of the TV station's advertisers including car dealers, travel agencies and other local businesses in high-traffic areas.

The Drakes' protest lasted about five or six weeks, until April 1997 when Judge James Buchele issued a temporary restraining order preventing the couple from picketing the station's advertisers. In November, that order was made permanent.

Ola Drake's appeal of that injunction was filed in December. She and her husband are awaiting a decision from the 2nd U.S. Circuit Court of Appeals.

“I'm fairly optimistic. I think we have a really strong case,” said John Simpson, an attorney representing the Drakes and affiliated with the American Civil Liberties Union. “I think the Drakes were exercising their First Amendment rights within the limits set by previous court cases.”

Simpson said: “As long as you don't trespass or hurt people, you have a right to picket to further your political or social beliefs.

“If you're trying to affect a political or social change, then you've got the right to picket wherever you want as long as you don't disrupt things,” Simpson said. “It's the same as abortion protesters, as long as they don't scare people to death and leave them a reasonable way to get into the abortion clinics.

“The unique thing about this case is that the Drakes decided the best way to get WIBW-TV to change their personnel policies was to put pressure on advertisers. It's clear that you can picket people and cause them economic harm—or threaten to—and you're still O.K.”

The station's owner, Benedek Broadcasting Corp, had filed a counter claim against the Drakes seeking damages for interference with advertisers. Both parties decided on Monday to dismiss the counter claim with prejudice, meaning the station can't re-file the claim at a later time.

“They had an awfully weak case on the counter claim,” Simpson said. Attorneys for the station have said that the Drakes were acting with malice, but “they've presented no evidence,” he noted.

Mike Merriam, an attorney representing Benedek, did not return phone calls. In previous conversations, however, Merriam said: “You don't have a First Amendment right to blackmail people and pull their business. Advertising clients have nothing to do with the case and should not be threatened by the plaintiffs.”

Benedek's motion to collect attorney fees has yet to be argued. No hearing date has been set.