On July 7, 2000, CFYI-AM (Toronto, also known as TALK640) broadcast an episode of the American religious program Focus on the Family, a “paid program” (in broadcast industry terms), rather than original programming of the station itself. This episode was apparently the third and final instalment in a series entitled “Hope for the Homosexual” on the American-originating program. While the full transcript of the relevant portions of the July 7 program is provided in Appendix A hereto, certain excerpts which provide a sense of the issues about which the complaint was written are provided here. Others are provided in the context of the decision itself.
Question4: […] How can the Christian community be on guard against improper attitudes or responses to homosexuals because of the gay militant side of things where the Christian community is often times under attack? There's a danger of some kind of response to that.
Dr. Nikolosi: Well, I think that the Christian community has traditionally been making two mistakes. Either they believe that there are gay Christians. I don't believe … I believe that gay and Christian is a contradiction in terms. It's a philosophy, it leads to a gay anthropology which is to say that some of us are just born this way and that it's totally against the natural law and biblical teachings. However, we have to …. Now, the other mistake is that we tend to be condemning and rejecting of people who have a homosexual condition. We have to walk that boundary between accepting gay and rejecting the person. Rather we accept the person, we are with you, you are part of our Church. However, your homosexuality is something to be worked on. It's something that is not part of the Christian Church. And we support you in your attempts to diminish it.
Comment from Host: That's a chalk line some people have a hard time walking. Compulsions for the evils of that lifestyle which are just as wicked as heterosexual promiscuity. You know, from a moral point of view, the homosexual is in exactly the same situation from my view as the unmarried heterosexual. The Lord calls us to a life of morality and abstinence and it's tough for both. But that's … I don't know how to change the scripture. […]
Question10: […] I have a friend who has been a homosexual and who is now completely recovered and healed by the grace of the Lord. Does Mr. Smith…would he think of himself still as a homosexual with no tendencies or would someone like that think of himself as “I was but by the grace of God I am no longer and that's just how I see myself”?
Alan Smith: I do not see myself as a homosexual any longer. I don't see myself as finished with what I am going through, meaning that if there are times where I'm going to feel inferior where I'm going to start being interested, I want to find out why. Once I find out why, I can put that in check. So, I'm not finished but I never really labelled myself a homosexual. When you put that label on yourself you're doing yourself a disservice. I see myself as a man with a homosexual condition or a man who had a homosexual condition and with the help of a great therapist worked his way out of it…and with the Lord, of course.
Comment from Host: Joe, would the analogy to an alcoholic fit here a little bit? That you'd always have a little predisposition there, you've got to recognise your weaknesses and stay away from it…not do things to put yourself at risk?
Dr. Nikolosi: Exactly. We have a man who did a very beautiful recovery and is now married and has two kids. And he was interviewed and I said to him “can you honestly say that you have no more homosexual feelings” and he said “when I have a homosexual feeling it tells me that I'm not taking care of myself.” And it's exactly true for the alcoholic. Some kind of stress or tension or an emotional issue is not being addressed and the old tendency is to get gratification from homosexual fantasies.
On July 18, the complainant sent a letter to the CRTC regarding the episode that he had heard. That letter was subsequently forwarded to the CBSC. He said in part (the full text of the letter is reproduced in Appendix B):
Although I was only tuned into this broadcast for the final ten minutes, the hosts of the broadcast referred to homosexuality as a “problem”.
I found this broadcast to be extremely offensive, prejudicial, and bigoted in their characterization of gays and lesbians. Contrary to their stereotypical views homosexuality is not the problem: homophobia is.
The broadcaster's Operations Manager replied on August 8. He said in part (the full text of his letter is included in AppendixB):
[T]his was part of a series dealing with homosexuality. It is our opinion that this programming presented a discussion about homosexuality. Dr. Dobson, who hosted the program interviewed homosexuals who had, in their opinion, converted to being heterosexuals. The program centred on the various possible reasons that determine whether someone is either heterosexual or homosexual.
It is our opinion that the broadcast was sensitive and non-confrontational. I do not believe that your comments that the broadcasts were extremely offensive, prejudicial and bigoted are true.
As you are probably aware, TALK640 is a talk, news-based, information station. Part of our local programming includes discussion amongst our announcers and listeners on many topical and controversial issues. We believe we do a very good job of providing balanced opportunity to present all sides of an issue, which will allow our audience to make up their own minds on the matters under discussion.
The complainant was not satisfied by this response and, on August 17, requested that the matter be sent to the Ontario Regional Panel for adjudication.
The CBSC s Ontario Regional Panel considered the complaint under the Code of Ethics of the Canadian Association of Broadcasters (CAB). The relevant clauses read in pertinent part as follows:
CAB Code of Ethics – Clause 2 (Human Rights)
Recognizingthat every person has a right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall endeavour to ensure, to the best of their ability, that their programming contains no abusive or discriminatory material or comment which is based on matters of race, national or ethnic origin, colour, religion, age, sex, [sexual orientation], marital status or physical or mental handicap.
CAB Code of Ethics, Clause 6, Paragraph 3 (Full, fair and proper presentation)
It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.
CAB Code of Ethics, Clause 7 (Controversial Public Issues)
Recognizingin a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of member stations to treat fairly, all subjects of a controversial nature. Time shall be allotted with due regard to all the other elements of balanced program schedules, and to the degree of public interest in the questions presented. Recognizing that healthy controversy is essential to the maintenance of democratic institutions, the broadcast publisher will endeavour to encourage presentation of news and opinion on any controversy which contains an element of the public interest.
The Ontario Regional Panel listened to a tape of the broadcast and reviewed all of the correspondence. The Panel considers that the broadcast in question is not in breach of any of the foregoing provisions.
Previous CBSC Decisions on Broadcast Treatment of Gay and Lesbian Issues
As long ago as the Prairie Regional Panel decision in CHQR-AM re Forbes and Friends (CBSC Decision 92/93-0187, August 8, 1994), protection against abusively or unduly discriminatory comment on the basis of sexual orientation has been read into the human rights provision in the CAB Codeof Ethics. Since that time, though, the CBSC has been called upon on numerous occasions to determine which comments regarding gays and lesbians amounted to unacceptable comment under that provision and which did not. It should be remembered that gays and lesbians, like all other identifiable groups, are subject to commentary, observation and the expression of opinion which may not always feel entirely comfortable. When, however, a CBSC Panel considers that comments exceed those bounds, it draws a line which must for future broadcasts not be crossed. Since, on almost every occasion when such assessments must be made, the wording or circumstances of the broadcast will differ to some extent from previously considered programs, there are nuances to be considered.
In a previous decision involving Focus on the Family, namely, CKRD-AM re Focus on the Family (CBSC Decision 96/97-0155, December 16, 1997), the Prairie Regional Panel found that the show had treated all research supporting homosexuality as “flimsy” and ruled that the show had “attributed to the gay movement a malevolent, insidious and conspiratorial purpose, a so-called ‘agenda'” and that this collectively constituted abusively discriminatory comment. In another decision dealing with commentary about gays and lesbians, CFYI-AM and CJCH-AM re the Dr. Laura Schlessinger Show (CBSC Decisions 99/00-0005 and 98/99-0808, 1003 and 1137, February 9 and 15, 2000), the Ontario and Atlantic Regional Panels jointly concluded that the talk show host's consistent characterization of the sexual behaviour of gays and lesbians as “abnormal”, “aberrant”, “deviant”, “disordered”, “dysfunctional”, “an error” clearly exceeded the level of permissible comment under the human rights provision. Despite the host's argument that she was not disparaging the persons but only their sexuality,the Panels characterized that reasoning as fatuous. They concluded that the sexual practices of gays and lesbians were “asmuch a part of their being as the colour of one's skin or the gender, religion, age or ethnicity of an individual” and that the two could not be “surgically” separated so as to justify the host's comments.
The foregoing being said, there have been statements made in other programs which CBSC Panels have not found to be abusively or unduly discriminatory. In CHCH-TV re Life Today with James Robison (CBSC Decision 95/96-0128, April 30, 1996), the Ontario Regional Panel did not find that simply describing “the gay lifestyle” as “sinful” breached the Codes. As the Panel said,
Life Today hosted by James Robison is a program which, by its very nature, involves the presentation of opinions and presupposes a moral bias. It does not purport to be objective, as is made clear by the introduction … Accordingly, such a program should not, indeed, cannot be judged using the criteria of accuracy and fairness that would be applied to news or public affairs programming. Rather, when dealing with the expression of opinions, the Council must merely determine whether these opinions are expressed in a manner that is abusive or discriminatory. […]
The host's message was that monogamous heterosexuality was the “right” lifestyle. He expressed the view that a proper interpretation of the Bible leads to the conclusion that homosexuality is an unacceptable lifestyle (as is also the case with adulterous heterosexuality, according to his interpretation). It is not the Council's mandate to determine the correctness of the views presented, but only whether the views were presented in a non-abusive, legitimate manner.
In a later decision relating to the Laura Schlessinger Show, CJCH-AM re the Laura Schlessinger Show (CBSC Decision 99/00-0652, February 14, 2001), the Atlantic Regional Panel found that the broadcaster could not be faulted for any of the comments made during the show episodes under consideration in that decision. For a start, the Panel found that the host's approach to the subject had changed radically.
The Panel has no doubt but that both the tone and tune of the host have changed. Perhaps as the result of the previous CBSC decision, perhaps as the result of other public commentary, perhaps on the basis of matured reflection alone, in the examples raised here, she is not as aggressive in dealing with the issues of deviancy as she had been. She is cautious, perhaps even defensive, but certainly quite limited and careful in dealing with that theme, an approach which the Atlantic Regional Panel applauds.
To be specific, the Panel reviewed the substance of the challenged remarks by the host on the various dates, occasionally referring back to the first CBSC decision relating to her program, on which it had not fared as well.
On June 13, the host's monologue was entirely dedicated to the reading of Michael Medved's article in USA Today. She was not making accusations. Nor was he. To the Panel, she seemed relieved that she had found such a well-known person writing a piece in what appeared to be her defence. … In the end, though, Schlessinger is merely reviewing someone else's commentary and comparison on a controversial issue. Moreover, her comments are quite narrow and restricted. They relate solely to the biological issue of “relating normally to the opposite sex” and the discussion of the “religious notion that the most profound, timeless purpose for all sexuality is procreation.” Citing Medved, she asks, “Is this line of argument so hateful and dangerous, that it can't even be discussed?”
Now, limited to this issue, the Panel finds nothing inappropriate in the broadcast of June 13. It is undeniable that she has said that “it's a biological error that inhibits you from relating normally to the opposite sex” and that “The error is in your inability to relate sexually, intimately, in a loving way to a member of the opposite sex.” That point is immediately qualified by the next passage which she cites from the Medved article will relates that issue solely to procreation. The error, as established in the context of that broadcast, is religious and is limited to the inability to procreate by such sexual relations. In that limited sense, it may be seen to be assimilated to the Catholic view that contraception is immoral, wrong and against the precepts of the Church. It approaches the areas of concern previously underscored by the CBSC but walks the line without so falling over it that the Atlantic Regional Panel is unwilling to conclude that it constitutes abusively discriminatory comment. If anything, it appears to the Panel that the host has gone out of her way to accommodate the concerns of the Atlantic and Ontario Regional Panels expressed in their previous decision.
On August 15, her discussion was again limited to the question of the “manyforms of sexual behaviour that are unacceptable.” She gave examples of parents having sex with their kids or having sex “with your dad's new wife.” She put homosexuality in the same category. Now, the question again is limited to that specific area of sexual activity which could be evaluated as a religious or moral matter, something which the CBSC has previously acknowledged as discussable within the bounds of the codified standards.
In the case at hand, it is the view of the Panel that the host has not gone too far, indeed, that she has not gone nearly as far as she had in the earlier CJCH decision referred to above. As she said at one point in her monologue here, “if you call me for a moral framework, I can only give you the ultimate moral framework, as best I understand it.” She elaborated, but carefully, and in a fashion limited to reproductive issues.
Human beings do it heterosexually. That's how were geared. Eggs, sperm, penis, vagina. That's just how the biology of it goes. What I did say is that when an individual is not so drawn to a member of the opposite sex, in biology, that is some kind of error because it doesn't result in reproduction.
In that regard, the Panel considers that she is entitled to her opinion. She was quite careful to restrict her comments to that issue in a context which was not sweeping. It was more than the complainant wanted to hear, to be sure, but less, far less, than she had said before and not directed to the group of persons on the basis of their sexual orientation. There was no characterization of the group. There was no use of any of the offending adjectives: abnormal, aberrant, deviant, dysfunctional. Such limited opinion as was expressed here falls within the protected bounds established in the earlier decisions noted above. The broadcaster has done its job. There is no breach here.
Where, in other words, the challenged comments are “not directed to the group of persons on the basis of their sexual orientation,” where there is no offending characterization of the group, where the comments are limited to a moral or religious assessment of practices alone, the comments will be unlikely to be viewed as abusively or unduly discriminatory.
The Application of the Principles to the Matter at Hand
The discussion in this episode of Focus on the Family never descends to the unacceptable levels of either the previous episode broadcast by CKRD-AM or the Laura Schlessinger shows broadcast by CFYI-AM and CJCH-AM. The remarks fall very much into the category of the broadcast commentary dealt with in CHCH-TV re Life Today with James Robison (CBSC Decision 95/96-0128, April 30, 1996). They go to “lifestyle” issues, “root causes of homosexuality”, the morality of single gender sexual relationships, the “distinction between homosexual and gay”,the raising of children in gay or lesbian households, the relationship between homosexuality and Christianity, and so on. There are also references to homosexuality as a “condition” but these, in a sense, fall into the unresolved debate about whether being gay or lesbian is innate or learned, which is not a matter of moment for this Panel. There are otherwise only two places in the entire program where the word “problem” is even used in what appears to be a relevant context but these are so incidental to the entire issue and so far from the centre of any portion of the dialogue that they are, in terms of this decision, irrelevant. The only other potentially offensive statement in the entire program, involving the use of the words “agenda” and “disorder”, was made by one of the panellists, Dr. Nikolosi, who said
I do not want my child exposed to an agenda which teaches the child that homosexual relationships are equal to heterosexual relationships. I want to be able to preserve the right to see it as a disorder.
The Panel does not find the use of either of the two terms problematic in the context of this program. In the first place, as used here, “disorder” carries no cumulative weight, as it did in the Schlessinger show. It is used on a single occasion in the context of a rather clinical discussion and forms no part of an adjectival list of pejorative terminology. The Panel also considers the use of the term “agenda” to be far removed from the conspiratorial implications of the host and guest in the earlier Focus on the Family decision, which appeared to relate to the recruitment of new members to the gay movement. Here the meaning of the term, at worst, relates to gay teachings in school and can as reasonably be understood as referring to the school's agenda as the gay movement.
In other words, at the end of the day, there is no place in this entire episode where discriminatory comments about persons in a group identifiable on the basis of their sexual orientation can be found. There is discussion about homosexuality but not about homosexuals and then it consists of legitimate points of discussion or debate. It was not, in the view of the Panel, “bigoted in its characterization of gays and lesbians,” as argued by the complainant. It did not even go there. It was not “hate propaganda”. It was a point of view on a lifestyle subject, not on its practitioners. It was a very conservative religious view. It was, it may fairly be observed on the basis of years of CBSC decisions, a view not shared by any Panel of the CBSC, but a view which its supporters were free to espouse in the terms in which they dealt with the issue. There is no breach of Clause 2 of the CAB Code of Ethics here.
There is no doubt but that the challenged program has a point of view; specifically, it is partial to a conservative Christian world view. This does not, however, mean that it fails the balance test on that account since it is not necessary to have balance within a program. In CTV re an episode of The Shirley Show (CBSC Decision 93/94-0261, August 18, 1995), the Ontario Regional Panel referred to paragraph 3(1)(i) of the Broadcasting Act, which is often referred to by communications specialists as the “balance requirement”, and to the CRTC's interpretation of this “requirement” in Public Notice CRTC 1988-213, Policy regarding Open-Line Programming (December 23, 1988).
Reflecting the CRTC's policy, it has been the view of the CBSC that a program dealing with a controversial issue need not have built-in balance. Broadcasters are entitled to balance biased programming by presenting the other side of the issue on other programs dealing with the same issue. If an individual program is not internally balanced, the Council may need to look at the overall programming provided by the broadcaster in order to see whether the broadcaster has met its responsibility pursuant to Clause 7 of the Code of Ethics.
In any event, the Council does not consider that a breach of Clause 7 occurs as soon as a host, commentator or moderator “shows his or her colours”. The Council notes in this regard that, in a June 12, 1989 letter to a complainant regarding the CBC program “Edmonton AM”, the CRTC stated that “the use of a commentator who is not totally impartial, … is not something which is directly covered by the Broadcasting Act or the regulations. A licensee is free to use whomever he wishes, provided that the balance and equitable requirements are met.” While matters did not unfold precisely as the complainant would have preferred, the Council has no doubt that the host acquitted her responsibility regarding the presentation of a diversity of views on the complex subject of doctor-assisted suicide.
No suggestion has been made that, in the remainder of its programming, CFYI-AM does not offer the necessary balance to the conservative Christian perspective of Focus on the Family and that is the issue. The conservative expression should not be penalized but is equally part and parcel of presenting balanced points of view. Had the discussion become confrontational, abusive, or predatory, the Panel would likely have come to a different conclusion. It did not. There is no breach on this account.
In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In this case, the Council considers that the broadcaster's initial response fully and fairly addressed the issues raised by the complainant. The broadcaster's representative did not rely on a boiler-plate style of response; he specifically pointed to the non-confrontational nature of the program as well as to its contribution to a balanced presentation of all sides of the issue. Nothing more is required. Consequently, the broadcaster has not breached the Council's standard of responsiveness.
This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.