Editorials
WBEN's Tom Bauerle can dish it, but apparently can't take it.
By Daniel T Warren
Jan 18, 2020, 15:35

Tom Bauerle a longtime radio personality on WGR and now WBEN has a history of stirring up the emotions of his listeners for his, and his station's, monetary gain. For example, in 2001 when he worked for WGR as a co-host with Chris "The Bulldog" Parker in a program entitled "Bauerle and the Bull Dog". His stint on this show earned them at least one complaint to the FCC ( PRESS STATEMENT OF COMMISSIONER GLORIA TRISTANI ). Tom Bauerle while trying to be WNY's alt-right shock jock tries to foment political hate through skewed commentary. He even calls people that do not agree with him names and attempts to minimize their credibility while purposely depriving them of an opportunity to defend themselves. For example, in 2009 Bauerle attacked Alen Bedenko, a local attorney and blogger, "personally on-air as being 'insane' and the 'worst' 'psychotic asshat', and that this was evident from all the 'drivel' I write on this site all day". When Mr. Bedenko attempted to call into Bauerle's show to discuss this Bauerle hung-up on him, and then apparently instructed the phone screeners to not let Mr. Bedenko's calls through as they hung up on him as well. In fact, this exchange then continued on-air and on Facebook. According to Mr. Bedenko Bauerle's "final response, which he echoed on the air: 'Coward? I can kick your ass lib' He repeated that one on the air, too". ( Tom Bauerle Goes Full Wingnut ).

First, it is ironic that Bauerle calls anyone insane given his apparent mental health issues ( WBEN host Bauerle’s behavior raises concerns of neighbors, police ). Second, Bauerle recently filed a complaint in which he seeks to have a person charged with aggravated harassment for a Facebook post ( Buffalo Radio Host Bauerle Pressing Charges Over Facebook Posts ).

We are not talking about a private citizen blocking a person from a group or a page (an option that was always open to Mr. Bauerle as he did to Mr. Bedenko). We are talking about the government punishing a person by potential deprivation of his freedom by incarcerating him for what was said, not done. This is why the First Amendment and the Free Speech Clause of the New York Constitution is of prime consideration. More Importantly this statement was not in person, but in a Facebook post. Add on top of that that the complainant is a public figure who makes a living by a talk show that incites strife and drama and monetizes it. Is this Bauerle's way of using political connections to get the government to silence his critics? Why did this prosecution get this far and overcharged?

The New York Court of Appeals in 2014 struck down this very statute for being unconstitutionally vague in People v. Golb ). Shortly thereafter our State Legislature amended this law to purportedly fix its Constitutional infirmities. The Court of Appeals in that case said “any proscription of pure speech must be sharply limited to words which, by their utterance alone, inflict injury or tend naturally to evoke immediate violence.” People v. Golb, 23 NY3d 455, 467 (2014) (quoting People v. Dietze, 75 NY2d 47, 52 (1989)).

I do not believe that whatever was said to Mr. Bauerle rises to the level of a true threat that can be Constitutionally criminalized, i.e., one that “an ordinary, reasonable recipient familiar with the context of the communications would interpret as a true threat of violence.” People v. Lewis, 52 Misc 3d 134(A), *2 (App. Term, 2d Dept. 2016) (citing Virginia v. Black, 538 U.S. 343, 359 (2003)) and one that “present[ ] a clear and present danger of some serious substantive evil” (see People v Golb, 23 NY3d 455, 467 [2014]; People v Dietze, 75 NY2d 47, 52 [1989]).

This case is going to a jury trial in West Seneca Town Court on April 22, 2020. It will be interesting to see Tom Bauerle cross-examined on the witness stand in this case. Interestingly, since this issue has become public Bauerle has unpublished/deleted his Facebook page "Tommy Nerd".

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