In a “talk show tort” case, an Internet porn model is claiming that Sirius Satellite Radio is vicariously liable for injuries she suffered when she was forced to perform a sex act on Bubba “The Love Sponge” Clem's show.

Talk show torts are a relatively recent phenomenon, allowing plaintiffs to use theories other than defamation in suing broadcasters. Hope Miller, who goes by “Brooke Skye” on her adult Web site, may be the first talk show guest to allege an on-the-air sexual assault.

According to her suit, Bubba, a notorious “shock jock” who broadcasts from a Tampa studio, invited Miller to appear on his June 12 show with another porn performer, Melissa Harrington (aka “Melissa Midwest”).

The appearance allegedly turned hardcore after the host told Miller that “short of fucking a dog he and his staff could do anything they wanted on the show” and threatened her with financial ruin. While Bubba and others held her legs, Miller alleges, Harrington penetrated her with a “strap-on” dildo.

The complaint, filed earlier this month in Hillsborough County (Fla.) Circuit Court, names Bubba and Harrington as defendants. But it also makes the claim that liability for the alleged assault extends vicariously to Sirius, which hired Bubba as a host in January on one of Howard Stern's channels.

Under Florida law, "If the tort is activated by a purpose to serve the master or principal, then he is liable. Otherwise he is not."

Bubba and his staff, Miller says, were “motivated at least in part by [their] desire, while in the course and scope of their responsibilities in airing the Bubba the Love Sponge Show, to serve Defendant Sirius Satellite Radio.”

None of the few talk show tort precedents (see table) has defined the scope of a host's employment. But Miller argues that

The actions and conduct described [in the complaint] are the type of conduct and actions for “shock radio” that Bubba and Bubba the Radio Show Staff were employed to perform.

During his colorful career, Bubba has featured such on-air bits as “No Panties Thursday” and administering electric shocks to the testicles of male guests. Clear Channel Communications fired him in 2004 after the FCC sanctioned the company for indecent content on his syndicated show.

Nevertheless, assuming Miller's allegations are true, could Sirius reasonably have expected Bubba to take his antics as far as a sexual assault?

By Matthew Heller
10/17/06