THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, June 28, 1996 TAG: 9606280450
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: 134 lines
Disc jockey Henry ``The Bull'' Del Toro has a message for Tommy Griffiths, his former radio partner, now rival, who is suing him in a million-dollar slander suit:
Lighten up, pal. It was a joke.
That's Del Toro's legal defense to a lawsuit that says The Bull and his current radio partner, Perry Stone, slandered Griffiths on the air for four months, repeatedly calling him a drug addict and once calling him a homosexual.
Del Toro's attorneys argue that you can say almost anything in morning drive-time radio and listeners know it's a spoof.
``The morning program hosted by Stone and Del Toro . . . represents a daily, determined effort to be funny at all costs and at the expense of virtually everyone,'' their legal brief says. ``And, while not all listeners may savor this abrasive brand of humor, many do.''
Griffiths' reply: It's not funny.
``Defendants fail to state in their (brief) how referring to someone as a `coke head,' `whiff king,' `snort boy,' `cokey boy,' `Mr. Toot,' etc. is funny,'' Griffiths' brief says.
Today, a Virginia Beach judge will hear those arguments in Circuit Court. He can throw out the lawsuit or order Del Toro and others to stand trial.
At stake is $1.15 million - the damages that Griffiths seeks from Del Toro, Stone, WROX-96X general manager Robert Sinclair and station owner Sinclair Communications.
A separate issue - did Griffiths really use cocaine? - will not be discussed today. Del Toro, Stone and Sinclair claim that their broadcasts were essentially true because Griffiths has used cocaine. Griffiths denies it.
The key issue today will be: How far is too far in the irreverent world of morning drive-time radio?
It began when Del Toro, the reigning shock-jock of Hampton Roads, left Griffiths and WNOR last June. That ended the popular radio team of Tommy & The Bull.
In his new job, Del Toro was paired with Stone, another DJ with an abrasive reputation. Griffiths got a new partner at WNOR.
That made Del Toro and Griffiths head-to-head rivals in the lucrative morning rush hour.
Right away, Del Toro and Stone began kidding Griffiths on the air - sometimes by name, sometimes just as ``Tommy,'' almost always with loud snorting noises. The lawsuit says this was a reference to snorting cocaine. It went on from August to December 1995.
In his lawsuit, Griffiths cites 35 to 39 broadcasts. For example, according to on-air transcripts attached to the lawsuit:
On Oct. 5, Del Toro impersonated Griffiths and said, ``It's me, Tommy. Over at WNOR. . . . Hold on, I'm just doing this rail,'' then made loud snorting noises.
On Oct. 10, Del Toro said, ``All I wanted to say is that nothing could have been worse than having a partner who was Mr. Toot,'' and then made snorting noises.
``Are you speaking about Tommy?'' Stone asked.
``Shh, shh, I didn't say any names,'' Del Toro replied.
On Oct. 12, Stone said of a rock star, ``He was snorting.'' Del Toro replied, ``Kind of like Tommy . . . I would say exactly like Tommy.''
``Tommy who?'' a newscaster asked.
``My old partner,'' Del Toro said. ``Tommy the whiff man. Whiff king.''
Griffiths sued in March. He argued that the insults were part of a calculated plan to hurt his reputation among listeners and broadcasters, to embarrass him and hurt his ability to work.
Del Toro, Stone and Sinclair filed a 28-page demurrer motion in April, saying the lawsuit has no legal basis. Griffiths filed a 16-page reply in May.
Stripped of legalese, Del Toro's position is simple: I'm a comedian. Don't take me seriously.
His attorney, Jay Brown of Washington, argues that the broadcasts are ``obvious expressions of hyperbolic humor,'' not statements of fact that can be proved true or false.
``However coarse and offensive the jokes and ridicule visited upon Griffiths by the defendants may have been, the words used are not thereby rendered actionable as defamation,'' Brown wrote in his brief.
``Each and every one of the excerpts . . . represents a humorous exchange among the disc jockeys and, on occasion, third-party guests or callers. Most of them are obviously and expressly skits or comedic dialogues involving impersonations of famous people and, frequently, of Griffiths.''
Brown argues that the lawsuit is a gross overreaction.
``Griffiths, perhaps understandably, did not share the amusement of Stone and Del Toro and their listeners at the coarse, on-air ridicule that he suffered,'' Brown wrote, ``but his remedy properly lies in his own station's microphone, not in this defamation claim.''
To support this argument, Brown cites a 1990 Richmond case involving another radio spoof, a song poking fun at a prominent Richmond man in bankruptcy.
A federal judge ruled that listeners could clearly see the song was a joke. ``The nonsensical nature of the lyrics would have alerted even the most careless (listener) to its comedic content,'' the judge wrote.
Brown also cited a 1991 New York case involving shock-jock Howard Stern.
In that case, a state judge ruled that even though Stern's comments were ``unpleasant at best and gross or vulgar at worst,'' listeners understood that, taken in context, they were ``purely nonsensical entertainment.''
To which Griffiths says: Bull.
``The numerous 96X broadcasts . . . were not humorous, were never intended to be humorous, but were in fact intended to be malicious attacks on Griffiths' character,'' wrote Griffiths' attorneys, Stephen Swain and Robert Samuel Jr. of Virginia Beach.
For example, the lawyers wrote, ``There is nothing humorous about Del Toro's statement about Griffiths that `Nothing could have been worse than having a partner who was Mr. Toot.' ''
They said listeners did believe the cocaine references.
``The average 96X listener knew Griffiths and Del Toro were former partners at FM 99 and, accordingly, Del Toro would have been in the position to know whether Griffiths was a cocaine user,'' Swain and Samuel wrote.
Also, they said, there was a history of ill will between the two disc jockeys.
In one radio broadcast, the lawyers wrote, Del Toro said he wanted to kill Griffiths in a gun duel. In another, he said he hoped Griffiths would die, then changed his mind and said he hoped Griffiths would be paralyzed in a car crash.
It is not enough, the lawyers wrote, to say Del Toro and Stone were joking.
``Whether shock jocks will do just about anything to get the attention of their audience with phony phone calls, weird pranks and insult-laden barrages leveled at the callers does not make the statements non-defamatory,'' Swain and Samuel wrote.
Judge Kenneth N. Whitehurst Jr. will hear the case. He may rule today or wait for more research. ILLUSTRATION: Photos
Henry Del Toro
IT WAS A JOKE
Tommy Griffiths
IT'S NOT FUNNY
KEYWORDS: LAWSUIT SLANDER RADIO by CNB