On the morning of July 3, 1997, between 8:15 and 9:00 a.m., The Lowell Green Show,an open-line show broadcast daily on CFRA-AM (Ottawa), dealt with the controversysurrounding the findings of the Commission which had been inquiring into eventssurrounding the killing of two Somali teenagers by Canadian military personnel on apeacekeeping mission in Somalia. In what may have appeared to frequent listeners of TheLowell Green Show to be a tongue-in-cheek approach to the issue, Mr. Green stated thefollowing:
I don't understand what all the fuss is about. Headlines everywhere about the SomaliaInquiry Commission. The Commission should have been shut down a long time ago. Look, ArtEggleton is right. The government is right for a change. I mean after all, let's face it,it was only a couple of Somalis. What's all the fuss about? I mean we're talking about acouple of Somalis here, for God's sake. Okay? Come on, come on, come on. All this fuss,all this expense, over a couple of Somalis.
And as for this crazy business about a cover-up. Let's get real, okay. Just for achange, let's get real. What do we civilians know about the stresses and strains of highcommand? Look, this thing is a military matter, better left to the military to resolve.Military high command should be left alone to handle the situation. The command knows verywell that things like this are commonplace in a theatre of war. What do you expect? Wetrain these guys to kill. We train these guys to do our dirty work for us, and then, whenthey do it, we get all upset over a couple of Somali teenagers, for God's sake. I mean,let's face it, they were trying to steal stuff from us, okay? Let's be honest aboutsomething else here. This country would be a heck of a lot better off if we didn't have abunch of wimpy news people hanging around trying to pry into things that are none of theirbusiness, creating problems. And as for the Commission itself, well, let's have a lookhere. No question, Art Eggleton is right. The Commission is the real problem. These guysjust don't get it. These guys don't understand. The Commission should have left wellenough alone, okay. That was the intention, I mean, find a few people at the lowerechelons, guilty of excessive zeal, that's what's involved here, and then let the militaryhigh command handle it. Come on. I mean, we already jailed Kyle Brown. Why do we have togo any further than that? If there's anything wrong here, it's a couple of over-zealoussoldiers who succumbed to front line stress. Let's leave it at that.
And let's not forget something else. The Canadian public has spoken on this matter. TheSomalia Inquiry was cancelled by Doug Young. The Canadian people approved of that. TheCanadian people re-elected the Liberal Government to another majority government. Theentire Somalia issue wasn't even a campaign issue at all. The public understands verywell. There's been far too much fuss and bother over a couple Somalis, for God's sake.
You know one of the things that really bothers me as well? This claim by the Commission— did you hear that? — that the officers lied to them. Of course they lied. Itwas their duty to lie, to protect national security. Officers are trained to revealnothing, except their rank and serial number. The idea that well-trained military officerswould reveal crucial, vital military secrets, to three blinking civilians, is ludicrous.God bless Art Eggleton. God bless Jean Chrétien and the Liberal Government. Theyunderstand what the public wants. All this fuss over a couple of Somalis. Couple of wogs.Come on, give us a break here. Couple of flip flops. Give us a break; nonsense. Let's geton with something that's really important in this country, okay? Do you agree with me? Fartoo much concern over a couple of Somalis?
Let's get on with the real problems in this country. I mean, there's a front pageeditorial, or at least a leading editorial, in the Ottawa Citizen today deploringthe fact that Heritage Minister Sheila Copps didn't give the Queen a curtsy yesterday.Others are upset because Preston Manning took his jacket off. Now those are the realproblems. Perhaps we should have some sort of an inquiry under that kind of thing.
Okay folks, you won't hear what I have just said any place else in this country. Whatdo you think? Are you with me, are you applauding Art Eggleton, the Government? Have theydone the right thing here – leave these things to the military? I mean, after all, it'sonly a couple of Somalis. I don't understand all the fuss. Do you understand what all thefuss is about? … Those three Commissioners, they're the problem here, no question aboutit. Can you imagine, all this fuss over two Somalis? Come on.
At least one of the show's listeners was unclear as to Mr. Green's intent, as isevident from the following dialogue:
Ashouk in Ottawa, good morning.
Good morning Lowell. Huh, are you really serious of what you're saying?
Listen, this is what Art Eggleton is saying: the people of Canada have spoken here. Thepeople of Canada approved the cancellation of the Somalia Inquiry. The people of Canadahave said that the death of a couple of Somali teenagers, or whatever, is of noconsequence, and Art Eggleton absolutely agrees with them. The real problem here is theCommission. No question about it. How do you feel, Ashouk?
I feel like, I don't know, I mean, I think this is… How can you say something about twopeople who just got killed? How can you say that?
They're only Somalis. Ashouk, I mean, they're only Somalis.
They're human beings. They're human beings.
They're only Somalis. I mean, I mean, wait a minute. This is in the best tradition. Imean, no, no, let's call a spade a spade here, okay. You think that that's the first timethat people, I mean, do you think that British troops didn't kill a few Indians when theywent in there? Do you think, I mean, look at what we did to the native Indians in thiscountry and in the United States. It's in the best tradition, no, it's in the besttradition of the military. Nothing wrong with this. All that I'm saying, Ashouk, is thatthe people of Canada have deemed that this is of no consequence — it was only a couple ofSomalis — and that the military should be left alone — let the high command look afteritself.
Mr. Green. You have said in the past that human life has no value, huh, cannot be put aprice…
Listen, I am a man that believes in democracy and the people of Canada. The people ofCanada have spoken. People of Canada have ruled.
So what. So just 'cause the people of Canada, just because the majority of Canada andCanadian people are kind of foolish doesn't mean you have to accept that.
Yeah, but Ashouk, we are civilians. We couldn't possibly know. We couldn't possibly know.How could we understand the stresses and strains of high command?
Ah, come on!!!
No we can't, we can't and it's only a couple of Somalis. We'll be right back.
The Letter of Complaint
On the date of the program, July 3, 1997, a listener sent a complaint to the CRTCstating that:
I am writing to complain about an episode of racism and incitement I heard this morningon the radio.
Mr. Lowell Green's opening remarks dealt with the Somali [sic] Commission Report. Mr.Green stated that Somalis are “Wogs”. Mr. Green also said it was notobjectionable to kill Somali youth because they are not white. These remarks were repeatedduring his introductory remarks and later, when speaking to a caller.
The complaint was forwarded to the CBSC, which remitted it to the broadcaster forresponse.
The Broadcaster's Response
CFRA's News Director responded to the complaint in a letter dated July 17, 1997. Hestated:
Further to your complaint letter regarding “The Lowell Green Show” of July 3,1997, I have now had the opportunity to review a tape of the program segment in question.
Mr. …, CFRA couldn't agree with you more. To hold the view that killing anyonebecause they are of a particular colour or creed is reprehensible. To whitewash a federalinquiry looking into two such deaths, unconscionable.
The Oxford dictionary defines a cynic as one who “shows contempt for ease andpleasure,” and it says a critic is one who “censures, or criticizes harshly,reproves.”
The program in question dealt extensively with the top news story of the day, namelythe federal government's dismissal of the Somalia Inquiry findings, the Defence Minister'sstatement that the military is best left to handle its own affairs, and the Commissioners'comments on CFRA that the cancellation of the Inquiry just as it began to investigate thedeaths of two Somali teens amounts to a cover-up.
Lowell Green has a well-established history of speaking up for the underprivileged, theunderdog, the discriminated against. Spending countless hours talking about the greatnessof Canada, even producing a nationally syndicated feature called “Lowell Green'sCanada,” he went on to do a facetious, cynical program on “why he is packing upand moving to the US.” It was one of his most successful programs, prompting peopleto react strongly. But most important, prompting them to think about and talk about theissue of the day.
This … is exactly the same issue. Federal regulations refer to a reasonablyconsistent listener over a reasonable period of time, and anyone who has heard even afew episodes of the Lowell Green Show knows he has been an adamant critic of thegovernment's cancellation of the Somalia Inquiry. He has thoroughly denounced thegovernment on numerous occasions for “using its power to hide the truth,” andfor pretending nothing unacceptable ever happened in Somalia.
Hearing the tape of the program, Mr. …, and putting it in its proper context, it isabundantly clear that Lowell was being facetious when he made the remarks in question, andthroughout the remainder of his three-hour program.
“I'm with Eggleton, I mean, c'mon eh, just a couple of Somalis. I don'tunderstand this. This is the best tradition of the military. The military should beallowed to look after itself… It was only a couple of Somalis. I don't understand whatall the fuss is about… If Larry Murray is good enough for Sheila Copps, if Larry Murrayis good enough for Jean Chrétien, Doug Young and Art Eggleton, he's good enough forme…”
During the introductory remarks to his show, to which you refer…
No question Art Eggleton is right. The Commission, is the real problem here. Theseguys just don't get it. These guys don't understand. The Commission should have left wellenough alone. That was the intention: Find a few people at the lower echelons guilty ofexcessive zeal. That's what's involved here. Then let the military high command handle it.Come on! We already jailed Kyle Brown, why do we have to go any further than that?…
… [I]f anyone still has not understood the criticism being levelled at the governmentand its response to the Inquiry findings, Mr. Green makes it obvious when he says”God Bless Art Eggleton,” and he further “criticizes” by saying “andthis idea that the military is subject to the same kinds of laws that apply to the rest ofthe country is absurd. Of course they aren't.”
In CBSC decision 95/96-0064 [CHUM-FM re Sunday Funnies, March26, 1996], the Standards Council made it clear that “it is essential to drawa distinction between a broadcast which is intended to be serious … and one whichclearly does not.”
The tone, delivery, style and context in which these statements were made make itabundantly clear that Lowell was being harshly critical — underscoring the value of humanlife, and criticizing the government's whitewash — through his use of appropriatelycynical commentary.
The complainant was unsatisfied with the broadcaster's response and requested, on July23, 1997, that the CBSC refer the matter to the appropriate Regional Council foradjudication. He added the following note to his Ruling Request:
CFRA maintains that Lowell Green attempted to be facetious in his remarks. If so, atsome point in his broadcast, Mr. Green would have had to indicate that, in fact, he does notsupport the murder of Somali youth. This he fails to do. When talking with callers whosupport his stated views, Mr. Green does not argue with their perspective or condemn it.At best, Mr. Green's position is ambiguous – but in truth, he has taken an extremeposition, called for murder, called people “Wogs” and done nothing to clarifyhis position.
According to CFRA's defence, Hitler could not be accused of making anti-Semiticspeeches: he was just being “facetious”.
The CBSC's Ontario Regional Council considered the complaint under Clause 2 of the CABCode of Ethics, which reads as follows:
CAB Code of Ethics, Clause 2 (Human Rights)
Recognizing that every person has a right to full and equal recognition and to enjoycertain fundamental rights and freedoms, broadcasters shall endeavour to ensure, to thebest of their ability, that their programming contains no abusive or discriminatorymaterial or comment which is based on matters of race, national or ethnic origin, colour,religion, age, sex, marital status or physical or mental handicap.
The Regional Council members listened to a tape of the program in question and reviewedall of the correspondence. The Council finds that the program contravenes Clause 2 of the CABCode of Ethics.
The Content of the Program
On the surface, this matter may appear straightforward. It does, after all, involve theuse of terminology which has every appearance of being abusively discriminatory; however,the broadcaster posits that its well-known on-air host was merely being facetious andcynical, characteristics of the host which, it argues, are well-known to his listeners.The matter is thus necessarily more complex than it may at first appear for its resolutioninvolves the consideration of irony, sarcasm, facetiousness and the limits, if any, whichmay accompany these rhetorical tools.
First, the words themselves. If they would not, on their own, be viewed as abusivelydiscriminatory, there would be no other issue to discuss. The Council must initially,therefore, turn its attention to Lowell Green's words. Stripped of the rhetorical overlayfor the sake of this preliminary part of the discussion, the Council has no hesitation infinding that the use of the term “wogs” to describe persons of Somali origin isabusively discriminatory and has no place on Canadian airwaves. This is the moreso true inthe context of remarks which disparage the value of the Somali lives destroyed by Canadianmilitary personnel.
That matter having been decided, the crucial issue for the Council must relate to pertinenceof the broadcaster's argument that its talk-show host was merely being facetious andcynical, that he has an extensive track record “of speaking up for theunderprivileged, the underdog, the discriminated against” and that “he has beenan adamant critic of the government's cancellation of the Somalia Inquiry.” While theCBSC is not entitled to express an “official” view of the contribution made byLowell Green to talk radio in Ottawa and beyond, it has no hesitation, for the purposes ofevaluation of this three-hour program, in accepting the CFRA-AM News Director's contentionthat Green has been a strong and significant voice in dealing with important publicissues. This does not, however, answer the question raised by the complaint since the NewsDirector's argument goes to the issue of balance and not to the point ofabusively discriminatory comment alleged in this case. As the Ontario Regional Councilobserved in CHOG-AM re the Shelley Klinck Show (CBSCDecision 95/96-0063, April 30, 1996), there is an important distinction to be drawnbetween the two issues
which relates to the nature of the remedial action which may be taken by thebroadcaster. Abusive comments are, in and of themselves, a breach of the Code, if not alsoof the Radio Regulations, 1986. They, unlike an unbalanced or biased presentation ofviews, cannot be remedied by an offer of “rebuttal time”, which is, in effect, amethod of redressing balance. The Council is mindful of the CRTC's pronouncement in PublicNotice CRTC 1985-236 censuring CKNW of New Westminster, B.C. for racially abusive commentsmade against the Nishga Tribal Council and the Musqueam Indian Band. In that PublicNotice, the Commission stated that
It is completely inappropriate to request the native groups to “balance”racially abusive remarks. The Commission agrees with the complainants who stated thatabusive comments cannot be justified by offering equal time to the abused.
Thus, the News Director's argument regarding the host's track record cannot render himimpervious to any claim that he has, in a particular instance, overstepped thebounds of Canada's broadcast standards.
Moreover, while the Ontario Regional Council considers that the rhetorical tools ofsarcasm, parody, facetiousness, irony, hyperbole and the like may be an effective means ofexpressing an editorial perspective, the News Director's argument regarding the use ofthese devices does not either render the user impervious to any claim that the host has,in a particular instance, overstepped the bounds of Canada's broadcast standards.
It should also be noted that CFRA's News Director referred to a previous CBSC decision,namely, CHUM-FM re Sunday Funnies (CBSC decision95/96-0064, March 26, 1996), explaining that “the Standards Council made it clear [inthat decision] that it is essential to draw a distinction between a broadcast which isintended to be serious … and one which clearly does not.'” Although he was correctto do so, it is the view of the Council that there was another decision of that same datewhich is closer in principle to the matter at hand.
The Case of the Jewish Mothers
The case of CHUM-AM re Brian Henderson Commentary(CBSC Decision 95/96-0008, 0060 and 0061, March 26, 1996) is so relevant to this matterthat a review of its facts is appropriate. In the CHUM-AM decision, thecommentator took aim at the legal community and legal aid problems in Ontario. To make hispoint, he used terminology which several complainants found offensive. The pertinent partsof his Commentary are as follows:
Provincial Attorney General Charles Harnick may not realize it but the root cause ofthe crisis in the Legal Aid system is Jewish mothers. I don't ever recall my parentssuggesting a career choice for me but, rightly or wrongly, Jewish mothers are infamous foradvising their offspring to become doctors or dentists or lawyers, or marry a doctor ordentist or lawyer, and the result is we have too many of all three in this province …most especially lawyers.
And even a bad lawyer can make a good living through Legal Aid. …
We also have too many laws, which may actually be the real problem but for now it'smore convenient to just blame the lawyers.
There's a Jewish proverb about two farmers who both claim to own the same cow. And sothere they were: one farmer pulling the cow's head, the other man yanking the cow's tail,with a lawyer right in the middle — milking the cow for all he's worth.
Something like legal aid.
I'm Brian Henderson.
The outcry was immediate and significant and the CBSC received a substantial number ofcomplaints about the anti-Semitic nature of the comments. It should be noted that few, ifany, of these accused the commentator of being anti-Semitic. Furthermore, thePresident of CHUM Group Radio immediately made the unequivocal point that “BrianHenderson is in no way anti-Semitic and has, in past commentaries, been very supportive ofthe Jewish community.” The issue there, as here, was focussed on the message, ratherthan its messenger. As one of the complainants put the matter, “Brian Henderson …is entitled to think what he likes. However, he should not abuse his position andpower as a public figure on the radio to spew racist garbage.”
There was no doubt in the CHUM-AM case that Brian Henderson was attemptingto be funny. He tried to use a rhetorical tool to achieve a serious goal but hefailed. He acknowledged as much in his on-air apology a week later. He himself put theissue in the following terms:
On my Commentary last Thursday, I made some remarks that justifiably raised the ire ofboth Jewish and non-Jewish members of our community.
My attempt, to preface a serious topic, with a not so subtle bit of ethnic humour, wasclearly poorly conceived because it was not only misunderstood by many of our listenersbut created an atmosphere of ill-will and mis-trust.
One thing that must be made perfectly clear….
I came up with the idea for that commentary… I wrote it… I read it … and so, ifthere's any blame to be assigned, for the pain and in some cases even fear, that myobviously misguided attempt at making light of a serious situation caused, lay it on mydesk.
I can't take it back (live radio doesn't allow for that), but I can offer a sincere andheartfelt apology, for an insensitive error in judgment. No excuses. I did it. I'm sorry.
Application of the Henderson Principles to This Case
The Ontario Regional Council understands perfectly well that Lowell Green was trying toridicule the decision of the Federal Government to disband the Somalia Inquiry. It isapparent that he was trying to achieve this result by being sarcastic and facetious. TheCouncil does not consider that his attempt to achieve his goal was poorly conceived but itdoes consider that it was poorly executed. Careful thought before the fact would have ledthe host to understand that his comments would likely offend not only the brunt of hisbarbs, namely, the Federal Government, but also persons of Somali origin, as well as thoseright-minded Canadians who are sensitive to racial slurs about any identifiablegroup. It is hardly necessary to say that the Council has no quarrel with the offence thatmight have been taken on the political side of the issue but it does considerthat Lowell Green's failure to defuse at any point the racially offensive component of hisremarks put him in the same situation as Brian Henderson in the CHUM-AM case.
The effect of his rhetorical attempt to skewer the political decision-makers was not,as it could have been, moderated so as not to skewer the compatriots of the slainteen-agers. He thus undermined the legitimacy of his own argument in that aspect of itwhich offended Clause 2 of the CAB Code of Ethics. This was made the moreso trueby his repetition of the offensive statements without, at any time in the show,offering any mitigation which would have left the sarcastic element operational vis-à-visthe actual target but not vis-à-vis the unintended target. Moreover, he had theperfect opportunity to offer that mitigation or at least some moderation of his positionin his response to the caller Ashouk, who, after all, had missed the irony and could havebeen assumed not to be the only such listener in that position.
The Special Role of Open-line Programming
In CFRA-AM re the Steve Madely Show(CBSC Decision93/94-295, August 3, 1994), the Ontario Regional Council underscored the role played byopen-line programming in fostering discussion about important public issues. The Councilquoted the CRTC's statement in its Public Notice CRTC 1988-121: Policy RegardingOpen-Line Programming, to the effect that open-line programs “offer… anopportunity for lively public discussion…” by providing “the public with anoutlet for the expression of a wide range of differing views.” In some respects,open-line programming is, or at least has the potential to be, the 20th centuryapproximation of pure Athenian democracy, as close as we can often get to the essence ofthe town square meeting. It is not, however, without some reasonable restrictions. In the Madelydecision, the Council recognized that such programming “require[s] … broadcastersto balance freedom of expression against abuses of that freedom.” The Councilconsiders that the broadcaster failed to achieve this delicate balance on The LowellGreen Show of July 3, 1997.
A Word about the Comedic Defence
In raising the matter of CHUM-FM re Sunday Funnies (CBSCdecision 95/96-0064, March 26, 1996), CFRA's News Director assimilated the Lowell Greencomments to rather straightforward comedy, which, in the view of the Council,they are not. There is, as the Council noted in that case, a
fundamental difference between the Smyth matter and cases of the nature of the SundayFunnies broadcast. It is as follows. There is an essential distinction to be drawnbetween the serious and humorous dialogue. Each has its content limitations but whatthose limitations are will vary according to the nature of the broadcast inquestion. The Ontario Regional Council was, in fact, quite clear about the serious natureof the Smyth commentary although it did note an apparent distinction between theoriginal Brian Henderson Commentary and the Dick Smyth Commentary.
In the Henderson matter, the newscaster had made, as he later admitted, a poorlyconceived attempt at ethnic humour. In the Smyth case, the broadcast was not humorous inintention but nonetheless a poorly executed attempt to support a beleaguered colleague. Inradio, where there is no video component, words are, if not everything, nearlyeverything.
As it happened, it was not the view of the Council that the Henderson matter washumorous. The Council stated that, in that case,
[T]he newscaster and editorial commentator, Brian Henderson, was attempting to addressa valid, indeed important, public concern, namely, the state of the legal aid system inthe Province of Ontario. As the announcer himself admitted, his choice of example was a”clearly poorly conceived” attempt at “ethnic humour”, which had theeffect of undermining the legitimacy of his commentary and, further, violated clauses 2and 6(3) of the CAB Code of Ethics.
The CHUM-FM decision emphasized the relevance of the difference between theserious material dealt with in CHUM-AM re Brian HendersonCommentary (CBSC Decision 95/96-0008, 0060 and 0061, March 26, 1996) and CFTR-AM re Dick Smyth Commentary (CBSC Decision 95/96-0062,March 26, 1996) and the comedic material dealt with in the CHUM-FM matter. It isthat very difference which is applicable here. Lowell Green was trying to be facetious,not comical. The Council is not called upon to consider whether such comments would havebeen acceptable in the latter environment; they do not believe that they were in theformer.
In addition to assessing the relevance of the Codes to the complaint, the CBSC alwaysassesses the responsiveness of the broadcaster to the substance of the complaint.In this case, although the Council's conclusion is not that of CFRA's News Director, itconsiders that the broadcaster addressed fully, thoughtfully and fairly all the issuesraised by the complainant. Nothing more is required. Consequently, the broadcaster has notbreached the Council's standard of responsiveness.
The station is required to announce this decision forthwith, in the following terms,during prime time and, within the next thirty days, to provide confirmation of the airingof the statement to the CBSC and to the complainant who filed a Ruling Request.
The Canadian Broadcast Standards Council has found that CFRA breached provisions of theCanadian Association of Broadcaster's Code of Ethics in its broadcast of anepisode of the Lowell Green Show of July 3, 1997. In the Council's view, LowellGreen's apparent attempt to use sarcasm and facetiousness to criticize the actions of theFederal Government in shutting down the Somalia Inquiry resulted in abusivelydiscriminatory comment against persons of Somali nationality contrary to the human rightsprovision of the CAB Code of Ethics. While the Council found no fault with LowellGreen's rhetorical device, the CBSC considered that the host's failure to defuse theracially offensive component of his remarks at any point in his show resulted in a Codeviolation.
This decision is a public document upon its release by the Canadian BroadcastStandards Council.