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Court Rules Fair Use, Dismisses Radio Host's Suit
MediaPost.com ^ | July 29, 2008 | by Wendy Davis

Posted on 07/31/2008 11:56:25 AM PDT by Jim Robinson

A federal judge has dismissed radio host Michael Savage's copyright infringement lawsuit against the Counsel on American-Islamic Relations, which had posted excerpts of one of his programs online.

Judge Susan Illston in San Francisco ruled that the clips, totaling four minutes out of the two-hour Savage Nation program that ran on Oct. 29, 2007, constituted a fair use.

"Defendants used plaintiff's material in order to criticize and comment on plaintiff's statements and views," Illston wrote in the 21-page ruling.

Savage filed suit for copyright infringement and racketeering last December. Among other allegations, Savage asserted that the CAIR took his statements out of context in order to harm his public image as well as to help the organization raise funds. The clips were excerpted from a program in which Savage said, "The Quran is a document of slavery and chattel," and that Islam is "a religion that teaches convert or kill, a religion that says oppress women, kill homosexuals."

Illston discounted both arguments. She ruled that even if the organization used the clips to raise money, doing so would have been a fair use of Savage's work. "The sum of plaintiff's allegations and evidence demonstrate that there will be no actual or potential market impact on the original work," she wrote. "The audience that might donate and listen to the audio segment on defendants' Web site is separate from the audience that plaintiff possibly could stand to profit from in using his Web site to sell the audio content at issue."

(Excerpt) Read more at mediapost.com ...


TOPICS: News/Current Events
KEYWORDS: copyright; fairuse; intellectualproperty; savage; talkradio
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"She also ruled that the organization didn't violate his copyright by presenting the snippets in a way that misrepresented his views. "Plaintiff's allegation that defendants repackaged the original, misportraying its meaning and message, creates a presumption that the work is transformative," she wrote. Copying material for transformative purposes, such as commentary, is generally considered fair use."
1 posted on 07/31/2008 11:56:26 AM PDT by Jim Robinson
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To: Jim Robinson

Well Jim, this opens up a lot of possibilities on FR.


2 posted on 07/31/2008 11:59:37 AM PDT by Westlander (Unleash the Neutron Bomb)
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To: Jim Robinson
"Susan Yvonne Illston is a San Francisco, California-based judge for the United States District Court for the Northern District of California. She was nominated by President Bill Clinton on January 23, 1995 and confirmed by the Senate on May 25, 1995. Prior to her appointment, she had served in private practice in Burlingame, California. She is a graduate of Duke University and Stanford Law School. She is considered to be a liberal activist judge."

Of course...

3 posted on 07/31/2008 11:59:50 AM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Abathar

Are you in disagreement with the ruling?


4 posted on 07/31/2008 12:05:33 PM PDT by trumandogz ("He is erratic. He is hotheaded. He loses his temper and it worries me." Sen Cochran on McCain)
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To: Jim Robinson

I love it. Take that Weiner. Now you can get back to stabbing conservatives in the back and being jealous of other talk show hosts that have more talent than you.


5 posted on 07/31/2008 12:14:05 PM PDT by Long Island Pete
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To: trumandogz

It’s a grey area.

Rebroadcast an NFL highlight and the league is all over you like white on rice. We here at FR use quotes and copy parts of copyrighted material all the time, so I think a lot depends on who is using what, and whether they are benefiting from it financially is key also.

In this case though I think this judge would have sided with the defense considering who the plaintiff was if she had even the tiniest bit of ambiguity.

Perhaps another judge would have decided differently, I can’t rule out a little prejudice from this lady at all.


6 posted on 07/31/2008 12:20:46 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Long Island Pete

why do you love a victory by CAIR?


7 posted on 07/31/2008 12:23:02 PM PDT by miliantnutcase
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To: trumandogz

As far as this site is concerned though it would set a nice precedence for our use of broadcasts to refute statements.

That begs a question, if we are having a Freepathon and asking for donations on the page along with a copyrighted posted material does that open the site up for the monetary benefit laws on fair use?


8 posted on 07/31/2008 12:28:17 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Jim Robinson

I am shocked! Shocked I tell you! To think that an honorable Klinton appointee would treat Savage that way!

/saracasm off


9 posted on 07/31/2008 12:33:17 PM PDT by Old Mountain man (Official FR PITA)
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To: Long Island Pete

So you’re in favor of terrorists? Interesting.....


10 posted on 07/31/2008 12:45:22 PM PDT by rockabyebaby (PLEASE PRAY FOR OUR INFIDEL STEPHENJOHNBANKER)
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To: Long Island Pete

“I love it. Take that Weiner. Now you can get back to stabbing conservatives in the back and being jealous of other talk show hosts that have more talent than you.”

Savage fully expected to lose this one. Can’t say I agree with your characterization of the guy, either. He’s been far more of a conservative than a party hack.


11 posted on 07/31/2008 12:47:29 PM PDT by CaspersGh0sts
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To: Jim Robinson

Michael Sewage lost? Thank God he didn’t waste his own money!


12 posted on 07/31/2008 12:51:39 PM PDT by Soliton (Investigate, study, learn, then express an opinion)
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To: Jim Robinson

Whoa! Holy blockquote, Batman, does this open us up for embedded commentary for AP work product?


13 posted on 07/31/2008 12:52:38 PM PDT by NonValueAdded (College kid: "Do you have a minute for Obama?" NVA: "Not now or ever.")
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To: Long Island Pete
Pop Quiz:

Who is more Conservative, Michael Weiner or Juan McAmnesty?

14 posted on 07/31/2008 12:53:52 PM PDT by TexasCajun
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To: Long Island Pete

Savage knew he was going to lose in the end ,, you always do when you’re going up against Saudi oil money ,, the funny thing is that he got his point out , the long excerpts used by CAIR spell out clearly why CAIR and fanatical Muslims in general are so very dangerous, everything in the audio is TRUE and CAIR couldn’t refute it with facts.

We now have it on the record that CAIR raised money for terrorist orgs and that itself is a victory and will be a great tool in the future.


15 posted on 07/31/2008 12:54:35 PM PDT by Neidermeyer
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To: miliantnutcase; Long Island Pete
why do you love a victory by CAIR?

Tough call. It's like rooting for the Nazis against the Soviets or vice versa. Pox on em all.

16 posted on 07/31/2008 12:55:37 PM PDT by sam_paine (X .................................)
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To: Abathar
“That begs a question, if we are having a Freepathon and asking for donations on the page along with a copyrighted posted material does that open the site up for the monetary benefit laws on fair use?”

No. As long as Jim is using acceptable excerpts and the intended purpose is discussion and analysis, it makes it a transformative work.

In other words, Jim is not making money off the original excerpt, but primarily the discussions that follow. This is actually an important ruling for FR because it establishes a precedent for the “transformative” argument, which was used by Jim's counsel “Clarity” in the trial long ago.

But it never got that far because at the time Jim/FR wanted to use full text articles, a no-no.

The Fair Use clause relies on three major “tests”. The amount of original material being used, it's intended use and how much it impact the authors ability to derive income from that work..

In this case the court ruled the suit had no merit because 1. the plaintiffs only used 4 minutes of the show (which I think is questionable. As far as a newspaper is concerned the court sees each individual article as a separate “work”. I don't see why this same standard wasn't applied to Savages segments), 2. it was for discussion and analysis, and 3, it ultimately had little impact on the income of the author (which I also disagree with. The judge goes through some legal esoteric contortions to claim that the readers at the CAIR site would not benefit Savage anyway, but if they had posted a shorter excerpt and a link, Savage WOULD have benefited from that traffic.

IMO Savage has grounds for an appeal on 2 of the three “tests” that the judge may have ruled on incorrectly.

17 posted on 07/31/2008 12:56:20 PM PDT by Bob J
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To: Abathar
In this case though I think this judge would have sided with the defense considering who the plaintiff was if she had even the tiniest bit of ambiguity.

"Susan Yvonne Illston is a San Francisco, California-based judge for the United States District Court for the Northern District of California. She was nominated by President Bill Clinton on January 23, 1995 and confirmed by the Senate on May 25, 1995"

Compadre Judge Illston (following orders) as expected

18 posted on 07/31/2008 1:05:49 PM PDT by whatisthetruth
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To: Abathar

Savage needs to file for appeal based on the contention that a substantial portion of “the work” was used and that he did lose income by not getting linked from CAIR and lost noT ONLY THAT TRAFFIC BUT potential new readers/listeners.

To prove the second point all he has to do is show all the calls or comments he gets from adversaries and opponents.
A case could be made that a significant (20-30%?) portion of his audience and customers are people that disagree with his views.

He’s a shock jock, that’s what he does and that’s how he derives his income. This judge basically ruled he has no copyright protection based on that, but it was a Clinton appointed judge.

IMO, if it had been a liberal show host the ruling would have been different. But that’s what liberal judges do and one more reason why we need to make sure Obama doesn’t get into the White House.


19 posted on 07/31/2008 1:08:01 PM PDT by Bob J
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To: Long Island Pete
Lol. Don't spill any water your carrying.
20 posted on 07/31/2008 1:11:12 PM PDT by BGHater (It is easy to be brave from a distance.)
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To: Bob J

Thanks, I’m not a lawyer but I know that as soon as even the slightest mention of money is involved it can cause quite a stir with copyrighted works verses Fair Use.

Personally I do think the decision as it stands is a plus for us here to use as a precedence for the likes of AP and Gannett.

I would be standing on the sidelines and watching the debate from the balcony section of course, my wife gets mad if I stay at the Holiday Inn too often anymore...


21 posted on 07/31/2008 1:11:36 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: Long Island Pete
RE: "Now you can get back to stabbing conservatives in the back . . . "

You mean you want him to stop speaking out against radical Muslims?

I honestly believe that radical Muslims have attacked our Country and will continue to do so. You don't make a lick of sense!

22 posted on 07/31/2008 1:11:48 PM PDT by WilliamofCarmichael (If modern America's Man on Horseback is out there, Get on the damn horse already!)
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To: sam_paine
Tough call. It's like rooting for the Nazis against the Soviets or vice versa. Pox on em all.

You don't make a lick of sense.

23 posted on 07/31/2008 1:15:16 PM PDT by whatisthetruth
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To: Long Island Pete
"I love it. Take that Weiner. Now you can get back to stabbing conservatives in the back and being jealous of other talk show host yadda, yadda."

You "love it" that Mike took it in the chops from a Clinton appointee? That terrorist-front CAIR won an apparent victory? Don't you have your priorities a little unhinged?

You're schadenfreuding for the wrong party, my friend. I've listened to Savage countless time, and never felt "stabbed in the back" even when I disagreed vehemently with him.

Let me tell you, there's more figurative stabbings in the back, front and sideways going on these days on some hot Veep and religion FR threads than I hear on the Savage Nation.

He's jealous of other hosts? Give me a break. Mike's #3 in the nation, behind only Rush and Hannity. Maybe YOU'RE the one that's jealous of Mike's success in this tough world.

Leni

24 posted on 07/31/2008 1:20:10 PM PDT by MinuteGal ( Hottie Contest In Progress for Freepathon. See # 28 on FreepathonThread. Be a WINNER for FR!)
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To: Abathar

Money complicates the issue but it is not definitive. If someone created a site that did nothing but post excerpts with no links to copyrighted works, no discussion and made money off it, it is a debatable fair use.

As long as Jim keeps excerpting (within reason), linking and sports the reader acessed bulletin board, he is in good shape.

I think his decision about the AP was more out of emotion than reality. The AP can puff all they want but the courts decide fair use. The downside is the AP could use FR as it’s test case and Jim doesn’t have the money nor probably wants to fight another lawsuit, even if the chances of winning were pretty good.

But I doubt the AP would do that, there are bigger fish and more important targets than FR>


25 posted on 07/31/2008 1:20:22 PM PDT by Bob J
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To: Abathar
We here at FR use quotes and copy parts of copyrighted material all the time, so I think a lot depends on who is using what, and whether they are benefiting from it financially is key also.

Not if the quotes are from AP! I hope you are aware of that:)

26 posted on 07/31/2008 1:31:45 PM PDT by calex59
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To: Jim Robinson

2 Attorneys dissagree.

http://www.youtube.com/watch?v=gjy-sWJCZxA


27 posted on 07/31/2008 1:32:20 PM PDT by camerakid400
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To: Jim Robinson

So Wiener got slapped....


28 posted on 07/31/2008 1:33:58 PM PDT by rottndog (Government is a necessary evil, but as with all evils, the less of it the better.)
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To: Long Island Pete

Go CAIR!

????


29 posted on 07/31/2008 1:50:40 PM PDT by Bradís Gramma (Typical Whitey Gramma just like Obamies!)
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To: Long Island Pete

The only one I see here stabbing conservatives in the back is you. That you would side with the terrorist shagging CAIR over Michael Savage is sickening.


30 posted on 07/31/2008 2:05:31 PM PDT by Tamar1973 (Catch the Korean Wave, one Bae Yong Joon film at a time!)
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To: Long Island Pete

how has he stabbed conservatives in the back. I bet you are one of the butt monkeys that voted for mccain in the primaries, or wanted RUDY....talk about back stabbing


31 posted on 07/31/2008 2:19:59 PM PDT by Liberty2007 (Here's Dr. Savage's analysis on the POTUS race"The Afro-Leninist vs The Sarcophogus)
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To: Tamar1973

yobosayo TSN QUEEN


32 posted on 07/31/2008 2:26:51 PM PDT by Liberty2007 (Here's Dr. Savage's analysis on the POTUS race"The Afro-Leninist vs The Sarcophogus)
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To: Liberty2007

He Gave Jerry Brown $2000


33 posted on 07/31/2008 2:30:37 PM PDT by cmsgop ( Axis of Evil = Iran , North Korea , Rob and Amber)
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To: Liberty2007

Annyonghaseyo, Liberty!!!!!


34 posted on 07/31/2008 2:39:20 PM PDT by Tamar1973 (Catch the Korean Wave, one Bae Yong Joon film at a time!)
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To: calex59

Yep. I paraphrase everything off of an AP story now just to be on the safe side, with some spelling errors thrown in for good measure.


35 posted on 07/31/2008 2:39:24 PM PDT by Abathar (Proudly posting without reading the article carefully since 2004)
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To: cmsgop

holy smakies, he gave moonbeam 2g? I heard he had chuckie shumer on his show. I hear he also hate autistic children...............STFU


36 posted on 07/31/2008 2:52:14 PM PDT by Liberty2007 (Here's Dr. Savage's analysis on the POTUS race"The Afro-Leninist vs The Sarcophogus)
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To: lormand

liberal Weiner gets slapped down


37 posted on 07/31/2008 2:55:51 PM PDT by Checkers (McCain: "Hillary Clinton would make a good President.")
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To: Liberty2007
Awe Poor Baby!!!!

Why did he give Jerry Brown (DEM) $2000 ?

Is that your Conservative Value?

Are you going to give $2000 to Obama tough Guy?
38 posted on 07/31/2008 2:57:40 PM PDT by cmsgop ( Axis of Evil = Iran , North Korea , Rob and Amber)
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To: Jim Robinson

And AP will, of course, stop threatening lawsuits over copyright infringement, right?/sarc

(As a Savage fan, I still expected this. Fair use should cover a lot of ground. I still wanted to see CAIR dragged thru court via discovery, though.)


39 posted on 07/31/2008 3:01:29 PM PDT by dynachrome (Henry Bowman is right)
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To: Checkers
Thanks I missed this thread, and now it looks a bit stale.

Check out the status-quo Weiner responses to the Weiner/Moonbeam-Brown critics on this thread. (maybe Weiner can hyphenate his name Weiner-Moonbeam)

If you don't like that faux conservative Weiner-Moonbeam, then you are a McCain voting, CAIR membership, GOP tool.

40 posted on 07/31/2008 3:02:03 PM PDT by lormand (Don't vote democRAT, from either party.)
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To: miliantnutcase; rockabyebaby; CaspersGh0sts; TexasCajun; Neidermeyer; sam_paine; ...

Oh I knew I was going to hear from a lot of people on this on. First lets go through them. I didnt vote form McLame and I am no fan of Rudy. I voted for Thompson. I am not siding with CAIR, I am speaking out against a little troll who felt the need to bring a frivolous lawsuit into court. And yes, Weiner does stab conservatives in the back. Have you heard how he talks about Rush and Hannity and his little sophmoric names for them. Weiner is not #3 and his ratings are declining. Levin beats him in every market Levin is in. Weiner better pray Levin doesnt pick up anymore affiliates. Speaking of Levin, Weiner should have taken Levin advice on how to go about his lawsuit. Weiner just might have won. And to top it all off, a guy that makes his kind of money has to ask his listeners help him out monetarily with his lawsuit? Very liberal of him. As far as Weiner being a conservative, well I guess the same could be said about Ruth Bader Ginsberg. He is no conservative. He is a hack. He found a niche and it makes money for him. He would rather skinny dip with a gay poet. He has sucked up to the likes of Chuck Schumer and has contributed to Democrats. I dont think a true conservative would do that.


41 posted on 07/31/2008 3:17:51 PM PDT by Long Island Pete
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To: Long Island Pete

Ahem - we are not discussing who SAVAGE contributes money to, we are discussing the fact the his case against TERRORISTS has been thrown out, something you seem to be overjoyed about.......make all the excuses you want, the fact remains you prefer TERRORISTS over an American citizen.


42 posted on 07/31/2008 3:20:10 PM PDT by rockabyebaby (PLEASE PRAY FOR OUR INFIDEL STEPHENJOHNBANKER)
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To: Long Island Pete
Thank you for responding with specifics.

You say Savage trashes conservatives and include examples. I will address one (and the others if you choose).

I am doing this hoping that others who may not know the facts see this. I have listened to Savage for more than 12 years.

Schumer opposed handing over our ports to a Middle Eastern country to manage. Conservatives were against handing over our ports to a Middle Eastern country to manage. Many Republicans wanted to hand over the management of our ports to the UAE.

Schumer was on for that one reason and that one reason only: defeat the Republicans, et al who wanted to hand over the management of our ports to the UAE. Schumer acknowledged that the invite surprised him because Savage always bashed him on all other issues and, in fact, Savage still does that.

Savage bashes some Republicans as does another favorite of mine, Mark Levin.

43 posted on 07/31/2008 4:13:20 PM PDT by WilliamofCarmichael (If modern America's Man on Horseback is out there, Get on the damn horse already!)
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To: Long Island Pete

Hannity plays nice with liberals alot more often than Savage does: he frequently allows Sharpton, Schumer and other liberals to take up airtime a lot more than Savage ever does. By your logic, Hannity is the liberal, not Savage.


44 posted on 07/31/2008 4:15:58 PM PDT by Tamar1973 (Catch the Korean Wave, one Bae Yong Joon film at a time!)
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To: Jim Robinson

I love Michael Savage.


45 posted on 07/31/2008 8:20:58 PM PDT by Saundra Duffy (For victory & freedom!!!)
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To: Long Island Pete; NYC Republican
And yes, Weiner does stab conservatives in the back. Have you heard how he talks about Rush and Hannity and his little sophmoric names for them.

Correction, Savage stabs Republicanism in the back when it deserts conservative principles and all those who in the name of conservatism continue to carry the water for them as Rush and Hannity both have done.

Weiner is not #3 and his ratings are declining.

Correction, Savage by all radio industry accounts still ranks #3 unless you have stats to back up your wishful thinking.

Levin beats him in every market Levin is in.

Correction, Levin beat Savage in N.Y., you have no evidence that he beats Savage in every market that they're both in, again wishful thinking on your part.

Weiner better pray Levin doesnt pick up anymore affiliates.

Levin can only gain affiliates if Savage loses his and there's no evidence save one or two that Savage will be losing his.

As far as Weiner being a conservative, well I guess the same could be said about Ruth Bader Ginsberg. He is no conservative. He is a hack.

Last time I looked FreeRepublic was one of the premier conservative forums in the country and Savage, NOT Air America has a daily thread on it, think about it.

He would rather skinny dip with a gay poet.

Since you're in Long Island why don't you go seek out NYC Republican and the both of you go skinny-dipping in the sewers of Greenwich Village somewhere, you both sound identical in thought, I would almost think you were bed-mates err, I mean soul-mates but I digress........

46 posted on 07/31/2008 8:21:51 PM PDT by whatisthetruth
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To: rockabyebaby; Tamar1973; MinuteGal; dynachrome; WilliamofCarmichael; lormand; Checkers; ...
.......make all the excuses you want, the fact remains you prefer TERRORISTS over an American citizen.

With all the problems this country is faced with, enemies both foreign and domestic, certain freeper 'useful idiots' seem to think that Savage is the enemy so they get in bed with CAIR and Media Matters, La Raza, and other devious liberal organizations trying to get the 'liberal' Savage off the air for making conservatism look bad, just how much effin' sense does that make? If it wasn't so nauseating it would be laughable.

47 posted on 07/31/2008 8:34:54 PM PDT by whatisthetruth
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To: Saundra Duffy; All
I love Michael Savage.

And Savage loves America


48 posted on 07/31/2008 8:46:06 PM PDT by whatisthetruth
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To: whatisthetruth
Your nos. 46 & 47......your double-header nailed it.

Leni

49 posted on 07/31/2008 9:09:11 PM PDT by MinuteGal ( Hottie Contest In Progress for Freepathon. See # 28 on FreepathonThread. Be a WINNER for FR!)
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To: Bob J

I think he should have tired RICO on them and fleshed out a little bit, maybe he could find the proof, tho surely it exists.


50 posted on 07/31/2008 9:44:21 PM PDT by Liberty2007 (Here's Dr. Savage's analysis on the POTUS race"The Afro-Leninist vs The Sarcophogus)
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