CHMJ-AM (MOJO Radio, Vancouver) broadcast an episode of the American-originating show Loveline between
10:00 pm and midnight on December 23, 2002. The hosts, “Dr. Drew” and Adam Carolla, took calls from listeners seeking advice about sex, relationships, drugs and also discussed current events and pop culture. The format of the program frequently included a celebrity guest in the studio. The late in the year episode that is the subject of this decision was a “Best of” show, featuring highlights from programs of the past year. The guest involved in the challenged segment of the show, which was aired at approximately 11:15 pm, was the well-known television and film actor Tom Arnold.
The following is an abbreviated version of the transcript of the segment (the full transcript can be found in Appendix A):
Is thatLorraine:Adam: Hi
LorraineLorraine:Well, I'm a phone actress. My problem is my callers are coming way too fast. And in order for me to make any kind of dough, I need to keep a seven minute minimum with each caller.Adam: Oh my god.LorraineWhat do you guys like to hear on the phone? How can I keep these guys –Adam: Lemme, lemme get this straight. You do [he plays an audio clip of a woman seductively saying “Are you hot daddy?”] [ Lorrainelaughs] Oh, I thought you were doing like Man of La Mancha and stuff over the phone for, like, people that were bed-ridden or something like that and couldn't get to the theatre. But you're just, you're just doin' the sex talk, huh?LorraineAdam: How do you describe yourself? Because I think they do a little too good a job sometimes and then it's like [he puts on a seductive voice] “I'm 5'9”, I'm a 38 double D, I have -“. Phltt [noise intended to represent ejaculating] [he laughs].LorraineI say I'm about 5'7″, long dark hair, green eyes, 36C, 24-inch waist.[.]Adam: [.] So, LorraineLorraineAdam: Okay. And, and, uh, what, what do you do? Like is the talk, you're saying the talk
is, like, extra naughty, extra good? Like, talk to Tom. See if you can, uh …[.]Lorraine:Tom: Tom.Lorraine How're you doin'?Tom: Good, good, Sugar. What's goin' on?Lorraine' a bit on my bed.[.]LorraineWell, I say my nipples are a bit hard and I'm wearin' a black thong and I'm touchin' myself.Adam: Mm hm.Tom: Yeah that.Adam: That's sweet. Yeah, well listen. Why don't you, why don't you sort of work, like, you know what you oughta do?Lorraine: What?Adam: Here's what you oughta do. 'Cause you don't, you don't want to be too mundane and you want to be sexual, but maybe if she did it in a sort of subliminal way, she could add a little time. Like, you go like, the guy will go “what're you wearin'?”Drew: [??] favourite sports team.Adam: No no, she'll go like “I'm wearin' a lacy black teddy, Holocaust, with a long, Hitler, camisole [Tom & Drew laugh]. You know, cancer, and” [Adam laughs] just see, like, see if you could just slide in like “cancer”, “Holocaust”, “grandparents” and see what you could do.Tom: That's good.Adam: And I bet it would add some time. The mind works, the mind is very interesting that way.Drew: She'll be a subliminal porn phone sex operator.Adam: Right, right.[.]Adam: So here's what you do. I ask you what you're wearing and somewhere you work in “
Vietnam” very quickly. Very quickly. All right?LorraineAdam: All right, here we go. And what are you wearin', Sugar?LorraineAdam: Yeah, yeah.Lorraine: Mmm. How's that?Adam: Yeah, but, you know. It was almost perfect.Drew: Where's the, where's the “ VietnamLorraineAdam: Okay so. It's my fault for attempting to communicate with people that call the show.Tom: You, I was amazed. I thought that you had pulled that off with her, that she was, like, right on it.[.]Adam: Yeah. Okay, lemme explain. I have this subliminal suggestion idea.Drew: Don't use that word. It's too, too –Adam: I have this quick word thing that's gonna hurt the guys' penises, okay?LorraineAdam: Now, when you describe what you're wearing, I want you to very quickly work in the word “Holocaust”.Lorraine: “Holocaust”?Adam: “Holocaust”.Lorraine: “Holocaust”. Okay.Drew: Give her an easier word: “cancer”.Adam: Do you know what the Holocaust is?LorraineAdam: Oh, okay. All right.Drew: Oh boy. Oh boy.Adam: All right, that's all right. Hey, by the way, L.A.unified schools district everybody. I'm a product. God bless you guys. You're really doin', you're really doin' a job over there. [Drew & Tom laugh]LorraineAdam: Subliminal Holocaust. Okay, okay. Work in “cancer”. Work in “cancer”.Drew: Do you know what cancer is?LorraineAdam: All right. Work in the word “cancer” when you're describing what you're wearing. All right?LorraineAdam: All right, you ready? Ring ring.LorraineAdam: All right. What's your name?LorraineAdam: Sugar. I'm Ace.LorraineAdam: Yeah. What're you wearin'?Lorraine: Mmm. Well I'm wearin' a nice black garter. Mmm just thinkin' about the Holocaust right now. [Adam, Tom & Drew laugh] Oh this is too much.Adam: [in mock aroused voice] Yeah, yeah, burn those Jews. Gas 'em in the shower, baby. Yeah, yeah.LorraineAdam: [continuing with mock aroused voice] Yeah, yeah, send 'em on the train to Krakow. Lorraine, we may need to tweak this just a little bit more. [.]This letter is to represent a formal request for an investigation to be carried out immediately in connection with a broadcast on CJNW [sic] (MOJO radio 730 AM) inI believe that such an investigation may find violations of broadcasting standards and/or federal or provincial legislation. In my opinion the offending broadcast ridiculed the holocaust experience and was racist in its content.
Your email sets out your concerns regarding a comment made by a listener [.] that you felt was offensive, racist and that ridiculed the Holocaust experience. [.] On , the Program, which airs on MOJO Radio, Sunday to Thursday, between 10:00 pm and midnight, did a taped program replaying some of the year's highlight moments. In this case, a female listener who works as a telephone sex operator, called the Program. Her “problem”, as she put it, was that she was so good at her calling that men did not stay on the line long enough for her to make money. She was therefore in search for what she could do so as to make her callers stay on the phone longer. The hosts, with guest Tom Arnold, suggested she slip in subliminal messages as she did her work. Some examples suggested by the host were words such as “cancer”, “grandparents” and “Holocaust”, to name a few. They then asked her to practice this method on the air.The “humour” surrounding the segment dealt with the woman's lack of understanding of what they were suggesting she do and had nothing to do with the Holocaust other than its representation as a word conjuring up horrible images.We appreciate that you may find the comment to be in poor taste. However, the Canadian Association of Broadcasters codes (the “Codes”), administered by the CBSC have clarified that “the broadcaster's programming responsibility does not extend to questions of good taste.”Let me further state that I have repeatedly requested a copy of the tape and transcript of the radio broadcast in question, but to no avail. My requests have been made to both your office and the CRTC. I find it quite surprising that I am suppose [sic] to pursue this complaint, and respond to the broadcaster's response, while being prohibited from reviewing the offending comments on tape and transcript. Meanwhile the broadcaster has access to the tape in preparing his response. I must rely totally on my memory of the show while the broadcaster has access to study the tape in detail. I find this process totally unacceptable and unfair. I wish to again request that the tape and transcript of the few minutes that I am focusing on be made available to me.Lastly let me state that the broadcaster's response states that my concerns were “regarding comment made by a listener….” Not so. My complaint relates in particular with the comments made by a number of people hosting or being present in the studio or online while receiving this call from a listener. From my memory there is great laughter heard throughout in the context of the holocaust. Only the tape will reveal the true nature of these comments.Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly 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 disability.It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
The CBSC’s British Columbia Regional Panel examined the complaint under Clauses 2 and 6 of the Canadian Association of Broadcasters’ (CAB) Code of Ethics, which read as follows:
CAB Code of Ethics, Clause 2 – Human Rights
Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly 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 disability.
CAB Code of Ethics, Clause 6 – 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 each broadcaster. This principle shall apply to all radio and television programming, whether it relates to news, public affairs, magazine, talk, call-in, interview or other broadcasting formats in which news, opinion, comment or editorial may be expressed by broadcaster employees, their invited guests or callers.
The Panel listened to a recording of the broadcast and reviewed all of the correspondence. The B.C. Regional Panel concludes that the broadcast of December 23 is in breach of Clause 6 of the CAB Code of Ethics; however, it does not consider that it contravenes Clause 2 of that Code.
A Preliminary Issue: The Furnishing of Tapes
The complainant has stressed the fact that the broadcaster refused to furnish him a tape of the program. In his view, this had the effect of disadvantaging him in terms of the preparation of his complaint and the advancing of further argument since, after all, the broadcaster alone had full access to the logger tape in order to facilitate the presentation of its response. The complainant considered this “totally unacceptable and unfair.”
The CBSC has previously been called upon to deal with this issue. In CKVR-TV re News Item (Car Troubles) (CBSC Decision 97/98-0235, July 28, 1998), the Ontario Regional Panel explained the question of tape access in the following terms:
The Panel considers it appropriate to note, however, with respect to the complainant’s request for a copy of the broadcast tape in question, that broadcasters are not required, either by law, by any broadcast code or by virtue of their membership in the CBSC, to provide tapes of their programming to complainants or any other member of the public upon request. Each broadcaster’s fundamental legal obligation (under the Broadcasting Act) and its CBSC membership obligation is to retain logger tapes of the programming broadcast on their station for a period of 28 days (some broadcasters choose to keep logger tapes for longer periods) and to provide copies of these logger tapes to the CBSC, if requested by it for the purposes of adjudicating a complaint. While it goes without saying that a broadcaster may at any time provide a logger tape copy to a complainant or other individual, broadcasters are under no obligation to do so. Moreover, once the CBSC complaint process is engaged, it is the moreso appropriate for the involved broadcaster to respond to any such request by saying that the matter is in the hands of the Council and will be dealt with there.
It is beyond dispute that complainants are almost invariably filing their complaints on the basis of having, without prior notice, “caught” something offensive on radio or television as it was being broadcast. They must then rush quickly to a pad or a computer to reconstruct the content as best they can before the offending content slips further from memory. It follows that the Panel has no disagreement with the complainant’s contention that his accurate recollection of the program content was compromised by his inability to listen on a more careful planned basis, with the benefit of rewind and playback buttons, to the logger tape of the broadcast. Nonetheless, it is the position of the B.C. Regional Panel that the refusal of the broadcaster to supply a copy of the tape is fair and reasonable.
If, after all, every complainant had the right to obtain a tape from the broadcaster solely because an individual had lodged a complaint, this would constitute a considerable burden on the broadcaster. Nor, in an important sense, is the provision of tapes to the individual complainant even necessary, since the broadcaster does, as noted above, furnish the requisite tapes to the CBSC, which, at the end of the day, is responsible for adjudicating the complaint. In fact, the CBSC takes on the burden of raising the appropriate issues and arguments on its own. It does not require, or even expect, that complainants have any burden to argue their case extensively; rather, the Council views the complaint more as a trigger of a process that is both adjudicative and investigative. Moreover, it is the practice of the CBSC to publish transcripts of all relevant portions of a challenged program which is the subject of an adjudication, in order to facilitate the understanding of the substance of the decisions rendered by its Panels. It should also not be forgotten that any insistent complainant can have access to the tape by contacting any of the commercial enterprises that make it their business to sell tapes or transcripts of programs.
In the matter under consideration, the broadcaster has, in full compliance with the CBSC’s rules, preserved the logger tape for adjudication purposes. There has been no breach of CHMJ’s membership obligations.
The Panel has carefully considered the complainant’s allegation that the program “was racist in its content.” It disagrees with the complainant’s view on this point. As will become clear in the following section, the Panel does have a problem with the segment but it is not on this basis. It does not find that any of the comments quoted above were advocating violence toward the Jewish population. It does not consider that any of those comments were directed at that identifiable group. It does not believe that there was any attempt to denigrate or insult Jews. In short, the Panel does not find a scintilla of racist commentary in the remarks of either the co-hosts or their celebrity guest. To the contrary, their collective suggestion regarding the use of the terms cancer, Vietnam and Holocaust is that these are reminders of significant unpleasantness and societal distress. Even the critical comment directed at the L.A.
unified school system implies a failure on the schools’ part in not teaching the relevance of the Holocaust to young students. There is no suggestion whatsoever of even a word or tone reflecting unfavourable comment directed at the Jewish community. There is no breach of Clause 2 of the CAB Code of Ethics on this account.
The Panel draws a significant distinction between its conclusion in the previous section regarding the nature of the hosts’ remarks about the Holocaust and their use of those references in their humorous dialogue. The issue in the previous section was racism. The Panel found none. The issue here is the employment of the apocalyptic historical event as a humorous crutch. The Panel readily understands the suggested dampening effect of such non-risible concepts as cancer, Vietnam (in reference, of course, to the 1960s war) and the Holocaust on Lorraine’s yearning telephone clients. It equally understands the intended humour in the ludicrous concept of the sexual purveyor “subliminally” mouthing such words in the midst of her erotic discourse. It also understands the mockable inanity of the intellectually hapless Lorraine. When, however, the hosts progressed to the level of “Yeah, yeah, burn those Jews. Gas ’em in the shower, baby,” and so on, even in aid of their sarcastic view of the ignorant “telephone actress”, they exceeded any reasonable level of propriety. The laughter of the hosts directed at the notion of the concentration camp trains and lethal “showers”, which combined to exterminate six million Jewish persons, accentuated the inappropriateness.
The humorous constructs erected here on the base of great tragedy constitute improper comment. The broadcast of this segment of Loveline constitutes a breach of the standard requiring the “full, fair and proper presentation of news, opinion, comment and editorial.”
In all CBSC decisions, Adjudicating Panels consider the broadcaster’s responsiveness to the complainant. While it is understood that the broadcaster is under no obligation to agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant’s concerns in a thorough and respectful manner. In this case, the B.C. Regional Panel concludes that CHMJ-AM has met its responsibilities of membership in this regard on this occasion.
ANNOUNCEMENT OF THE DECISION
CHMJ-AM is required to: 1) announce this decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which Loveline was broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CHMJ-AM.The Panel considers it appropriate to note, however, with respect to the complainant's request for a copy of the broadcast tape in question, that broadcasters are not required, either by law, by any broadcast code or by virtue of their membership in the CBSC, to provide tapes of their programming to complainants or any other member of the public upon request. Each broadcaster's fundamental legal obligation (under the Broadcasting Act) and its CBSC membership obligation is to retain logger tapes of the programming broadcast on their station for a period of 28 days (some broadcasters choose to keep logger tapes for longer periods) and to provide copies of these logger tapes to the CBSC, if requested by it for the purposes of adjudicating a complaint. While it goes without saying that a broadcaster may at any time provide a logger tape copy to a complainant or other individual, broadcasters are under no obligation to do so. Moreover, once the CBSC complaint process is engaged, it is the moreso appropriate for the involved broadcaster to respond to any such request by saying that the matter is in the hands of the Council and will be dealt with there.The Canadian Broadcast Standards Council has found that CHMJ-AM has breached the clause of the Canadian Association of Broadcasters' Code of Ethics which requires that broadcasters respect the standard requiring the “full, fair and proper presentation of news, opinion, comment and editorial.” By building a humorous segment dependent on details relating to a tragic historical event, namely, the Holocaust, in its broadcast of December 23, 2002, MOJO Radio has breached the provisions of Clause 6 of the CAB Code of Ethics.