CHMJ-AM re Tom Leykis Show (Drunk Driving)

BRITISH COLUMBIA REGIONAL PANEL
(CBSC Decision 02/03-0423)
S. Warren (Chair), R. Cohen (ad hoc), P. Gill, G. Leighton, M. Loh and E. Petrie

THE FACTS

The Tom Leykis Show originates in Los Angeles and was, at all material times, being carried by CHMJ-AM (MOJO Radio, Vancouver) in December 2002, weekdays from 3:00 to 7:00 pm. The Tom Leykis Show is a call-in program geared primarily towards young males. It features an opinionated host who discusses issues such as sex, women, money and pop culture with his callers. Although it is not material to the matter at hand, it should also be noted that the broadcaster included the following advisory at the beginning of the program and coming out of the first commercial break during the 5:00-6:00 pm segment:

The Tom Leykis Show on MOJO Radio may contain content of an adult nature and is intended for mature audiences only.  Please listen responsibly.
And for those of you calling to yell and scream at me about this, let me just remind you of why we do it.  We do it to prove that despite all of the public service announcements and all of the warnings about driving drunk and all of the claims that they've increased enforcement, that many of you are still doing it right now.  And we've been proving this point every year for years.  So those of you who say “oh, drunk driving is on the decline, people are doing less of it”, I don't believe it.  And I'll prove it to you right now.  Toll free at 1-800-5800-TOM.  Dial us right now.
By the way, I want to say this also 'cause we have a number of people in the law enforcement community who listen to this show.  This is no fault of cops, highway patrol people or anybody like that.  Uh, believe me, these boys do the right thing.  You know the problem is that we are ambivalent in our society about punishing drunk driving.  On the one hand, we talk tough and say “oh yeah, yeah, throw the book at him.”  On the other hand, I think we're all worried that we're the ones who're gonna get caught.  And the result is that we have these laws that let people get out time and time and time again and keep driving drunk.  And most people know that even if they get caught, yeah they'll spend some money, but the reality is you're not going to be doin' ten years in prison.  It's just not gonna happen.  So that's my point of proving all of this here on the air.  I happen to know that the cops do the right thing.  I happen to know that beer, wine and liquor distributors all want you to, you know, be responsible with their product.  They don't want to get in any trouble.  But we keep saying that we're doin' something about this and we don't.  Bottom line.

During the hour, Leykis took calls from a number of people who said they were driving drunk. The host asked each of them what they had consumed, how much, what motivated them to drink and drive, what freeway they were on and how far they had to go. Most of the callers insisted that, although they had consumed a significant quantity of alcohol, they were still able to control their vehicles. Some even revealed that they were drinking while driving. The first of the callers was Jim:

Um, all right.  I just left the bar.  I've had about four schooners of Budweiser and, uh.
     Four.  Tell everybody what a schooner is.
      Schooner?  A schooner is about 32 ounces of beer.
     So you've drunk a gallon of beer?
      Basically.  I guess.
     A gallon.
      Yeah.
     […]  What, what freeway are you on right now?
      I'm on the 7-10 South headed toward downtown Long Beach.
With a gallon of beer in ya?  […]  Now you know what they say, they say that three, um, three beers can make you impaired enough that they could arrest you.  Are you worried about that?
      Uh, no sir, I'm not.
     No?  Do you do this often?
      Uh, no I'm not.  It's a special occasion.
     Special occasion?  Is it the holidays or something else?
Uh, just, uh, I got in a fight with my old lady and, uh, I decided to go get hammered and then, uh, meet up with a friend of mine.
     And how far was this bar from your house?
      Umm, it's about a mile from my house.
  Okay, so you're driving a mile home with a gallon of beer in ya.
      Yep.
All right, now you've never been pulled over, never been caught doin' this?  Have you ever done it before?
Uh, yeah, I've done it before.  I've never been caught.  Um, I'm pretty good at it, I guess.
     Pretty good at it?  You're a pretty good drunk driver?
[laughs] Yeah, I know it sounds stupid, but, I don't know.  I do it every once in a while and .
Do you, uh, are you one of the people who believes that there are some who are better at it than others?
      Ah, yes sir, I do.
     Yeah, so you're one of those?
      Yes.
     Okay.  Just checking.  [Jim laughs].  All right, Jim.
Dude, everybody and Mike, including Mike, are friggin' morons for drinking and driving.  You can kill somebody!  You can kill a child!  An innocent little child!  And you're gonna friggin' sit there and say “I'm proud of drinkin' and drivin'”?  You're a moron!
    Hey, I never said I was proud of it.  I never said I was proud of it.  I got a problem.
Dude, you're drinking and driving, bro!  Dude, you're drinking and driving, bro!  If you kill a child, do you know how, that just kills you inside!  But I don't know.  Because you're drinking and you're drunk, so I guess you really wouldn't know what you did, huh?!  You're a friggin' moron, bro!
  I just stopped.  But you know what?  When there's nobody to help you out when you have a problem like so many people out there like us in California
I don't, I deliver food all day long for 12 hours a day, okay?  And I don't drink and I don't do drugs, okay, during the time that I'm workin' because I know that the car can be a vehicular killing machine!  Okay?!
    [mocking voice] A vehicular killing machine.
I go home, I go home and I do it at home when I'm done with everything.  When I know I'm not gonna go out anymore.  You guys are friggin' morons for drinking and driving or doing, being stoned and driving and whatever!  You guys are friggin' morons!
When you're 21 in this country you can do what you please, believe it or not.  Unless you get caught –
  If I was behind you, I'd friggin' pull your ass over and I'd knock the [edited word] outta you.  You're a friggin' moron, bro!
Well if I was in front of you, I'd step on the gas and run you over.  Run your fat ass over, son.
No, you're horrible.  Do you have kids, bro?  Do you have kids?
    I got three of 'em.  I got three of 'em.
Now, do you drink, do you drink and drive with your kids in the car?
    Yeah.
So let's say you get into an accident and maybe one or two or maybe all three of them get killed and you survive.  What're you gonna feel like then?  You're a moron!
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.
We do it to prove that despite all of the public service announcements and all of the warnings about driving drunk and all of the claims that they've increased enforcement, that many of you are still doing it right now.
This is no fault of cops, highway patrol people or anybody like that.  Uh, believe me, these boys do the right thing.  You know the problem is that we are ambivalent in our society about punishing drunk driving.  On the one hand, we talk tough and say “oh yeah, yeah, throw the book at him.”  On the other hand, I think we're all worried that we're the ones who're gonna get caught.
But we keep saying that we're doin' something about this and we don't.  Bottom line.

A listener filed a complaint on the date of the broadcast (the full text of that complaint and all other correspondence can be found in Appendix B). He wrote that the host had “urged callers who [were] drinking and driving to call in and congratulated them on their great abilities in drinking, driving, shifting, use of a cell phone. This is unacceptable radio programming urging young people to drink and drive.”
MOJO Radio responded to the complainant on January 3, 2003. The Program Director’s letter indicated that the station targets an audience composed of males aged 25 to 54 and “offers frank and open debate on diverse and often controversial issues.” With respect to the December 10th episode of the Tom Leykis Show, MOJO stated that the host was “trying to demonstrate to the listeners that we are ambivalent in our society about punishing drunk drivers” and that, as his explanation revealed, “he was merely making a point and encouraging people to think about their actions, and not encouraging people to drink and drive.” They allowed that the discussion may have been controversial, but that it was presented in an acceptable manner.

The complainant wrote back to the CBSC on January 3, indicating his dissatisfaction with MOJO’s response. The complainant insisted that the “true intention of this yearly gala is to glamorize drinking and driving and a sure way for listeners to get their 15 minutes of fame on air so long as they are drunk and driving. End result being great ratings and huge advertising Dollars for the radio stations, at the expense of victims in the ensuing carnage on our roads.” He concluded his letter by stating that radio stations must understand their social responsibility and that this episode showed a lack of judgment.

THE DECISION

The CBSC’s British Columbia Regional Panel examined the complaint under Clause 6 (Full, Fair and Proper Presentation) of the Canadian Association of Broadcasters’ (CAB) Code of Ethics which reads as follows:
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 did not violate Clause 6 of the CAB Code of Ethics.
Promoting Irresponsible Behaviour?

The CBSC has no precedents which it can apply to the appreciation of the nature and purpose of this annual Leykis show. Moreover, the Panel’s determination must be made in the context of the underlying right to freedom of expression. The complainant asserts that the host was urging listeners to behave irresponsibly in the sense that he was allegedly applauding their “multi-tasking” ability to drink, drive, shift and use a cell phone. In his second letter, he contended that the “true intention of this yearly gala is to glamorize drinking and driving” and he observed that it was a sure way for callers to attain the Andy Warhol prediction of achieving 15 minutes of fame “on air so long as they are drinking and driving.” The cynical goals he attributed to the broadcasters of the show were “great ratings and huge advertising dollars [.] at the expense of victims in the ensuing carnage on our roads.”
The Panel wishes it to be perfectly clear that it has no stomach for the promotion of drinking and driving. Accordingly, the Adjudicators have very carefully scrutinized the words exchanged in the broadcast to evaluate their direction and import. Having done that analysis, they come to the conclusion that the goal of the show was decidedly not irresponsible and that an objective listen to the tape (or read of the transcript) will lead a fair-minded person to that conclusion.

The Panel considers that this broadcast sought to criticize “societal ambivalence” on the issue of drinking and driving. That preambular point was made in concrete language by the host himself at an early point in the show. Following the first commercial break, the host stated that the purpose of the show was, to some extent, to prove the futility of the system and the hypocrisy of public attitudes regarding drinking and driving, particularly at the festive time of year. He said, in part:

We do it to prove that despite all of the public service announcements and all of the warnings about driving drunk and all of the claims that they’ve increased enforcement, that many of you are still doing it right now.
He then agreed that law enforcement representatives are doing the right thing. The problem, he said, is public equivocation on the issue.
This is no fault of cops, highway patrol people or anybody like that. Uh, believe me, these boys do the right thing. You know the problem is that we are ambivalent in our society about punishing drunk driving. On the one hand, we talk tough and say “oh yeah, yeah, throw the book at him.” On the other hand, I think we’re all worried that we’re the ones who’re gonna get caught.
He returned to that point in concluding his introductory remarks:
But we keep saying that we’re doin’ something about this and we don’t. Bottom line.
Thereafter, the program made its point by not giving the outrageous callers a free ride. Without calling them on their drinking allegations himself, Tom Leykis basically relied on pit bull counterpoint delivered by other callers. For Chuck, there was Erin, who spent approximately twice as long in dialogue with Chuck than Tom Leykis had. For Mike, there was Steven. There was then further counterpoint for Steven in Kenny. The point, from the Panel’s perspective, is that the anti-drinking and driving advocates had the upper hand. The advocates of drinking and driving (whether they were or were not, in fact, practitioners) were, to the Panel, unconvincing in their assertions. At worst, though, even if a listener’s assessment was that it was a draw, there was clearly no advocacy or promotion of drinking and driving by the Leykis show itself.
The Panel understands that the complainant does not believe that the broadcast of Leykis’ method of dealing with the issue of drinking and driving was the correct approach to solving the problem. In any event, in attempting to assess the realistic significance of the complainant’s concern with “the ensuing carnage on the roads” resulting from this broadcast, the Panel notes that there is no way to be certain that the callers had actually drunk anything before calling in or that they were actually driving while impaired. While it is, of course, possible that some or all of them had been drinking, it is equally possible that, consistent with the complainant’s observation that the more “outrageous” callers were likelier to get on the air, the most outlandish concoctions of “facts” would win the day with the producers, whether or not they were accurate.

In the end, therefore, the critical issue is the impression left by that annual episode of the Leykis show. The CHMJ broadcast was a legitimate way of treating the issue and within the boundaries supported by the principle of freedom of expression. It goes without saying that the Panel’s determination takes into account the fact that the advocates of drinking and driving were not given an uncontested or unchallenged platform from which to broadcast their views. Had the presentation been unbalanced in that way, this decision would almost certainly have been different. Accordingly, there is no breach of Clause 6 of the Code of Ethics here.
Broadcaster Responsiveness

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. The B.C. Regional Panel concludes that CHMJ-AM has met its responsibilities of membership in this regard on this occasion.

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.