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Not too old to sue Tom Leykis

Times Staff Writer

Throughout American history there have been landmark court decisions that have shaped a nation and a society: Marbury vs. Madison. Plessy vs. Ferguson. Miranda vs. Arizona.

But is America ready for Marty Ingels vs. Tom Leykis?

Comedian Ingels, who costarred in the 1962 ABC sitcom “I’m Dickens, He’s Fenster” and is married to actress Shirley Jones, has petitioned the California Supreme Court to review two lower court decisions that went against him after he sued radio talk-show host Tom Leykis and Westwood One Broadcasting Services Inc. in 2003, claiming age discrimination stemming from a call he made to Leykis’ show.

Leykis and Westwood One have fought back, calling the suit an attack on the media’s 1st Amendment rights.

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Ingels and his attorney, Robert G. Klein, say if they lose at the state Supreme Court, they will file a direct appeal to the U.S. Supreme Court.

“I’m going to be the most famous senior citizen in the world,” Ingels said. “We’re going to make law.”

It all began on June 25, 2003, when Ingels, who makes a practice of calling talk shows using assumed names, was listening to the “Tom Leykis Show” as the host was dispensing dating advice that Ingels found offensive. Ingels decided to confront Leykis on the air and “challenge him on his beliefs and win a moral argument,” according to the suit. The show, which is geared to younger singles, promotes “Leykis 101,” an on-air “adult education course” that claims to teach men how to get sex without spending a lot of time and money on dates, and to teach women how men think.

Ingels told the show’s screener that his name was “Paul Russo” and that he was 60, although Ingels was actually 65 at the time. The screener made a few jokes about Russo’s age and told him he didn’t belong on the show but eventually put the call through to Leykis.

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In the on-air exchange that followed, Leykis told the caller he didn’t fit with his show’s demographic.

“You’re way too old, Pops,” Leykis said. “You don’t belong on the air. Call a big-band station. Call somebody else, please. Don’t call here. It’s called targeted demographics.”

The call is recounted in a 25-page opinion issued May 31 by the California 2nd District Court of Appeal, including the following excerpts:

The announcer: This is “The Tom Leykis Show.”

Tom Leykis: From Los Angeles, 1-800-580-OTOM. Are men shallow? Should we be looking for inner beauty? Ha, ha. Paul, on “The Tom Leykis Show.”

Caller [Marty Ingels]: Hey, Larry, are you there?

Leykis: Larry? You’re calling for Larry?

Caller: Yeah.

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Leykis: All right. Hold on a second, will you? (pause)

The announcer: This is “The Tom Leykis Show.”

Leykis: Yes. 1-800-580-OTOM.

Caller [Ingels]: Tom?

Leykis: Oh, I thought you were calling for Larry.

Caller: No. I made a mistake. I have been waiting three years. I am surprised I know my own name, OK?

Leykis: I am surprised too.

Caller: Are you there?

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Leykis: No. I left the room.

Caller: Hey, Tom, I hope you got an answer for me. I had to actually muscle my way in here, because I am older than your demographic.

Leykis: You’re not just older than my demographic, you’re the grandfather of my demographic.

Caller: What’s that got to do with what’s in my brain and what I have to say?

Leykis: Because we’re not aiming at people your age.

Caller: What does that mean, ‘aiming at?’ I --

Leykis: Very simple: It’s called targeted demographics, pal.

Leykis’ parting words included a discourse on the economics of his show: “I don’t really care how smart you are, pal. You know what, we have a targeted demographic on this program; you don’t fit it, period. You’re way too old, Pops. You don’t belong on the air. Call a big-band station. Call somebody else, please. Don’t call here. It’s called targeted demographics.

”... Do you hear how many commercials are on this show? We sell lots of advertising because we have got a targeted demographic that people want to buy, and it doesn’t include people who don’t go out and ride motorcycles and drive expensive cars and drink beer. Ha, ha, ha.”

Leykis’ afternoon talk show is heard Monday through Friday from 3 to 8 p.m. in Los Angeles on radio station KLSX-FM (97.1) and has a national weekly audience of 600,000 adult listeners. The show reaches 7.8% of the men ages 25 to 34 in the L.A.-area radio audience.

Attorney Bernard M. Resser, who represents Westwood One, filed legal briefs calling Ingels’ suit a “direct attack on the First Amendment rights of producers to make programming and content decisions, including decisions on whom to put on their radio show.” Under “newfangled theory,” the court briefs stated, “any individual who merely claims to be within a protected class would have the right to participate in [Leykis’] radio talk show, imposed by court order.”

Leykis, through his producer, referred calls to Westwood One’s attorney, who declined to be interviewed for this story but referred, instead, to the legal briefs filed in the case.

In November 2003, Los Angeles Superior Court Judge Ernest Hiroshige ordered the case dismissed after Westwood One filed a motion to end the lawsuit under the state’s anti-SLAPP statute, which protects the public from lawsuits that threaten 1st Amendment rights. Justice J. Gary Hastings, writing for the California 2nd District Court of Appeal, upheld the ruling for Leykis and Westwood One last month.

“The trial court recognized [Leykis and Westwood One] have a First Amendment right to control the content of their program,” Hastings wrote. " ... Here, the broadcaster’s choice of which callers to allow on the air is part of the content of speech.” Two other justices concurred in the opinion.

Despite his legal setbacks, Ingels is vowing to press on.

In Ingels’ petition to the California Supreme Court, attorney Klein lists two key issues in dispute: Can a radio talk show that invites callers to participate in a public debate preclude callers from participating simply because of the caller’s physical characteristics such as age, race, religion, national origin or sexual orientation? And does the 1st Amendment give the media the right to “discriminate based upon age” when there are laws designed to prohibit that sort of discrimination?

“If he had listened to my attitude or I had gotten into an argument [with him on the air], he would be totally allowed to cut me off,” Ingels said. “The minute he knew I was 60, he wouldn’t allow me to speak. An old person cannot get on that show.”

But Resser, in his legal briefs, noted that Ingels did get on the show. The attorney also argued that Ingels “improperly seeks to limit radio producers’ discretion in screening calls, making programming choices and speaking on the air about those choices during [Leykis’] popular syndicated radio talk show.”

After losing at the trial court level, Ingels was ordered to pay $25,000 in attorney’s fees to the opposing side and could have to fork over more money because he lost at the appellate level.

“Now they are going to sanction me some more because I lost the second time,” Ingels said. “I think my wife is about to file [divorce] papers because she thinks the whole thing is crazy. She’s a sweet, lovely person who thinks you shouldn’t fight for everything. I said, ‘Remember Rosa Parks? Remember Martin Luther King Jr.?’

“She said, ‘Yes, but you’re not Rosa Parks or Martin Luther King Jr.’ ”


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