Below The Beltway

It looks like Don Imus is going forward with the lawsuit against CBS Radio I wrote about earlier this week. More importantly, though, it’s beginning to look like he actually has a very good case:

The uproar over Don Imus appears headed to court, as lawyers for the ousted radio host and his former network prepare for what could be an ugly battle by seizing on selected phrases in his $40 million contract.

Imus plans to sue CBS early next week for killing his radio show, invoking a contract clause that encouraged him to be controversial, his attorney, Martin Garbus, said yesterday. Garbus, a prominent First Amendment specialist, said the contract also required a written warning of unacceptable conduct — and the granting of a second chance — before Imus could be fired.

But sources familiar with CBS’s legal strategy say that other contract language allowed for the nationally syndicated host to be dismissed without warning. If Imus goes to court, they said, CBS will file a countersuit demanding compensation for lost advertising revenue and fees from radio stations and MSNBC, which paid to carry “Imus in the Morning.”

The dueling arguments made clear that the Imus imbroglio, which created a media frenzy last month after he called the Rutgers women’s basketball team “nappy-headed hos,” is about to erupt again. Imus repeatedly apologized for the slur — the Rutgers team accepted the apology after a meeting — but has made no public comment since then.

“CBS wanted him to do it,” Garbus said of the locker room humor — interspersed with interviews with politicians and journalists — that made Imus controversial for years. “CBS wanted to encourage him and wanted him to feel totally protected.” He said the company never used a five-second delay to delete questionable material from the program.

Agents and media lawyers say one clause in Imus’s contract, highlighted by Garbus, is highly unusual. It says his services “are of a unique, extraordinary, irreverent, intellectual, topical, controversial and personal character” and that programs containing these elements “are desired” by CBS and “are consistent with company rules and policies.”

There is a point to this. When CBS hired Imus, they wanted him to be controversial That’s what drives ratings. Heck, in that week long period after he said what he said and before he was fired, I’m willing to bet the show was getting higher ratings than it had in quite awhile.

There is another side to this argument of course:

[O]ther contract language, obtained by The Washington Post, will be used by CBS lawyers to argue that the company had “just cause” to dump Imus. These clauses cover “any distasteful or offensive words or phrases” that CBS believes “would not be in the public interest” or could jeopardize its broadcast license, as well as language that brings the company or its advertisers “into public disrepute, contempt, scandal or ridicule, or which provokes, insults or offends the community or any group or class thereof.”

A CBS spokesman declined to comment, but two people familiar with the company’s strategy, who asked not to be identified discussing possible litigation, said the Rutgers comments were so outrageous as to trigger several clauses that they maintain did not require a warning to Imus.

Without looking at the contract, it’s hard to say who has the better argument. On the surface, though,? it looks like Don Imus may end up succeeding in turning the tables here.