CHMJ-AM re Tom Leykis Show (Valentine’s Day)

BRITISH COLUMBIA REGIONAL PANEL
(CBSC Decision 02/03-0673
S. Warren (Chair), R. Cohen (ad hoc), P. Gill, G. Leighton, M. Loh and E. Petrie

THE
FACTS

At
the time of this complaint, CHJM-AM (MOJO Radio, Vancouver)
was broadcasting the American-originating program The Tom
Leykis Show
, a call-in program geared primarily towards
young males, weekdays from 3:00 to 7:00 pm.
The program features an opinionated host who discusses issues
such as sex, women, money and pop culture with his callers.
The challenged episode was broadcast on February 14, 2003, and the general subject matter
was a combination of sex and relationship advice in the context
of Valentine’s Day. The host took calls from male and female
listeners during a live broadcast from a Hollywood, California bar. The show was preceded
by the following audio advisory:

The
Tom Leykis Show on MOJO Radio may contain content of
an adult nature and is intended for mature audiences only.
Please listen responsibly.

The same advisory was repeated coming out of nine
of the 14 breaks for commercial blocks and news updates during
the first three hours of the show.

In
order to avoid lengthy repetition, no portion of the transcript
is cited at this point in the description of the facts giving
rise to this decision. Those portions only which illustrate
the matters dealt with in this decision can be found under the
various headings below. The extensive transcript of major sections
of the program is found in Appendix
A
. Those matters of particular concern to the complainant
are found in the letter she wrote to the CBSC on February 18.
She said in part (the full text of this letter and all other
correspondence can be found in Appendix
B
):

In
my view, Mr. Leykis is a misogynist, and his show promotes
the objectification and hatred of women. His main theme is
that women are nothing but objects to be f.ed and treated
badly. They should never be married, because, as I have heard
on an earlier program, they’ll never “put out” for
their husband, but “just lick it around the edges”.


MOJO radio is subject to the Canadian Broadcast Standards Council’s
Code of Ethics, which states that your programming is
to contain no abusive or discriminatory material based on, among
other things, sex and marital status. Further, you are subject
to the standards and principles established in the Broadcasting
Act
and the Radio Regulations. Section 3 of the
Regulations provide that a licensee (i.e. MOJO radio)
shall not broadcast anything in contravention of the law (i.e.
The Broadcasting Act and The Human Rights Act),
any abusive comment that, when taken in context, tends to or
is likely to expose an individual or a group or class of individuals
to hatred or contempt on the basis of sex, and any obscene or
profane language. In my view, your radio station is in contravention
of all of these provisions.

The
station’s Program Director responded on March 10 as follows,
in part:

In particular, your email
sets out your concerns regarding some comments made by the
Program host that you felt promoted the objectification and
hatred of women.


[.]

We
appreciate that a number of the Program host’s comments may
seem derogatory when reviewed in small sound bites. However,
we believe that a reasonably frequent listener to the Program
will come to understand this as the host’s “shtick”
and not a full representation of his beliefs. For example,
on February
14, 2003
, the date noted in your e-mail, frequent
listeners to the Program would have appreciated that through
his often-outrageous comments, the Program host was making observations
on the types of people who would poison relationships and he
referenced such people as “gold-diggers”, etc. Many
of his comments are based on his own life experiences.

However, he often balances his outrageous opinions with counter
arguments. For example, he frequently espouses the value of
a strong family unit and the importance of making responsible
decisions. He is a champion of Planned Parenthood and marital
fidelity. His negative stance on unprotected sex between unmarried
partners is well known and frequently revisited. He is also
a harsh critic of drunk drivers and regularly urges his younger
listeners to complete their education.

We recognize that some listeners may not agree with the Program
host’s choice of words or find them to be offensive or in poor
taste. In particular, your e-mail refers to the use of the
terms “bitch” and “slut”. We appreciate
that these words may offend some listeners. 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”.
The CBSC applies current social norms in its interpretation
of the Codes. In previous decisions, the CBSC has acknowledged
that “crude or vulgar language is not necessarily obscene
or profane” and therefore not in violation of the Codes.
The CBSC has also noted “some language which may at another
time have been broadly considered obscene or profane had now
slipped into common and marginally acceptable usage.”

The
complainant was dissatisfied with the broadcaster’s response
and returned the CBSC’s Ruling Request, which has the effect
of triggering the adjudication process, on April 2. The Ruling
Request was accompanied by a short note that read as follows:

I
wish to advise you that I am not satisfied with MOJO’s response
to my complaints about the Tom Leykis Show. In fact,
the response was generic, addressed comments I did not make,
and did not respond to the issues I raised in the letter.

At some point subsequent to the broadcast of this episode,
station management pulled the Tom Leykis Show from CHMJ-AM’s
schedule.

THE
DECISION

The CBSC British Columbia Regional Panel examined
the complaint under clauses 2 and 9 of the CAB Code of Ethics
and under Articles 2(c) and 4 of CAB Sex Portrayal Code,
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
9 – Radio Broadcasting

Recognizing
that radio is a local medium and, consequently, reflective
of local community standards, programming broadcast on a local
radio station shall take into consideration the generally
recognized access to programming content available in the
market, the demographic composition of the station’s audience,
and the station’s format. Within this context, particular
care shall be taken by radio broadcasters to ensure that programming
on their stations does not contain:

(a)
Gratuitous violence in any form, or otherwise sanction, promote
or glamorize violence;

(b) Unduly sexually explicit material; and/or


(c) Unduly coarse and offensive language.

CAB Sex-Role Portrayal Code,
Article 2(c) – Diversity

Television
and radio programming shall respect the principles of intellectual
and emotional equality of both sexes and the dignity of all
individuals. Television and radio programming should portray
women and men as equal beneficiaries of the positive attributes
of family or single-person life. Women and men should perform
in a range of occupations and function as intellectual and emotional
equals in all types of thematic circumstances. This should
be the case for both work and leisure activities requiring varying
degrees of intellectual competence.

CAB Sex-Role Portrayal Code,
Article 4 – Exploitation

Television
and radio programming shall refrain from the exploitation
of women, men and children. Negative or degrading comments
on the role and nature of women, men or children in society
shall be avoided. Modes of dress, camera focus on areas of
the body and similar modes of portrayal should not be degrading
to either sex. The sexualization of children through dress
or behaviour is not acceptable.

The
Panel listened to a recording of the broadcast and reviewed
all of the correspondence. The B.C. Regional Panel concludes
that the broadcast violates each of the foregoing Code provisions.

The
Objectification of Women

This
Panel considers that the host’s comments about women in this
program are problematic. Playing to his location audience at
a local tavern, Tom Leykis consistently characterized women
as gold-diggers, emphasized that they merited no special treatment
or acknowledgment on Valentine’s Day, underscored only their
worth as objects for male gratification, and put breasts on
display, as best he could in a radio context. His contemptible
declarations regarding women were manifest in many ways, among
which were those that follow. He continually used, or condoned
the use by others of, the word “bitch”, or employing the definite
article, “the bitch” in a frequent spoken equivalent of finger-wagging.
He also used “whore” and “vagina” in reference to women and
did not hesitate to adorn the panoply of offensive words with
adjectival phrases such as “god awful big fat bitch”, “money
whore”, “another illiterate ignorant vagina”, “stupid bitch”,
“money greedy bitch”, “pathetic chicks” and so on.

If
the foregoing use of description were insufficient (and, in
the view of this Panel, it is not), the dialogue of the host
and callers frequently reflected, in even more emphatic form,
the diminution, degradation and objectification of women. Pieces
of that dialogue are cited here, punctuated (as is noted) by
the mindless cheers and catcalls of the audience at the tavern
from which the show was broadcast.

Tom:
If you are not stuck with some bitch for Valentine’s Day,
if you are not out Friday night picking up poo’ then you’re
a foo’.

Tom:
With a six figure bank balance. Poon. You’re absolutely
right, Sir. You’re absolutely right. You’re gonna get
laid with this bank balance.

Tom:
You don’t know the meaning of the word. You’re another illiterate
ignorant vagina calling in here [crowd cheers] and trying
to tell me off. You use big words, you don’t even know what
they mean, do you, darling?

Andrew: I tell her, all right,
let’s go to
Santa Monica,
we’ll take a nice little walk own the beach. The first
words that came out of her mouth “oh you’re so romantic, oh
I wish more guys were like you.” Dude, I’m gonna take that
to the beach and beat it up. [Tom laughs] That’s my
standard. As soon as we get far enough from the pier, where
it’s just darkness, I’m gonna take her to one of them lifeguard
towers and just tear it.

Tom:
I love that!

Sergio:
Hey, Tom, I just want to say to the boys out there that they
better hook up with some ‘ho’ tonight and just tack their
ass. [crowd cheers]


[…]

Sergio:
But yeah, you know, I just think that Valentine’s Day is just
totally overrated. I just think there’s no need to spend
money on the bitches. If she doesn’t give it up when you
at least take her for a drink, the hell with her.

Tom:
That’s right. Dump that bitch.

[Fred says his fiancée’s
sister then called him and asked him to go out tonight.]

Tom:
Oh really! The sister’s been waiting, warmin’ up in the
bull pen, waiting for you! So are you goin’ out with her
tonight?

Fred:
Yeah, I’m gonna go out with her tonight.

Tom:
You know what? I think you should take her sister and bang
her so god damn hard. [crowd cheers] You should plug her
like a god damn leak, you know what I’m sayin’?

Tom:
There’s a lot of women, a lot of women did not get flowers
today. Did not get, you know, roses or candy or phone calls
or engagement rings and they’re gonna be out getting hammered.
And these women are available for you to exploit. And I hope
you boys are all gonna go out, if not here at the Pig ‘n’
Whistle, I hope you boys will spread out and find these chicks
and nail every one of them tonight. [crowd cheers] Then dump
them like the used Kleenex that they really are.

Tom:
How many of you boys left the bitch at home on Valentine’s
Day, how many? [crowd cheers]

Tom:
I’ll tell you what, boys. I am going to be signing a rack
within the next 10 minutes. Right here on stage, I’m gonna
sign a rack right here.

Bob:
Oh yeah, what you say is exactly true. You can see the facial
expressions on these girls who think they’re nines and tens
and fifteens get chopped down to nothin’ and it’s great once
you say it. Once you chop ’em down, they are down to a zero.

April:
I have told every single guy, my brother, my friends, every
single guy I’ve ever met to listen to you, Tom, and not put
up with some girl’s [bleeped word]. Just get as much poon
as you can, baby.

Tom:
That’s right. Then toss ’em to the curb. Kick ’em thru the
uprights.

April:
Hell yeah. ‘Cause you know what? These bitches don’t deserve
it.

Tom:
Crumple them up like a Kleenex and toss ’em. Right.

April:
That’s what I’m sayin’, Tom. You’re the man.

[A woman
calls about her impending marriage and the discussions she
was having with her fiancé about the prospect of a pre-nuptial
agreement, which he had proposed be capped at $100,000 with
respect to his earnings. Leykis characterized it as “vaginimony”
and said that, if he were her fiancé in such a context, he
would give her zero in the agreement.]

Tom:
I mean what am I, what is he paying for exactly? He’s paying
to rent your vagina? What is, what exactly is he paying for?

Crystal:
No, but, you know, I been with him for a long time, blah,
blah, blah.

Tom:
So what? And he’s been with you for a long time. Why don’t
you pay him for servicing you all the time?

Tom:
The real earnings are, he’s the guy makin’ the money. And
he’s paying for the exclusive rights to your vagina. That’s
it.

Mike:
Tom, I just wanted to tell you that in honour of your Valentine’s
Day show, I dumped my bitch last night.

Tom:
You dumped your bitch on Valentine’s Day! Congratulations!

[In one
of the relatively few calls dealing with a non-sexual substantive
matter, Michelle said that she wanted to be Tom’s sidekick
on his bilingual show. She said that she was hot and able
to speak Spanish. Leykis’s reply: “And do you have a nice
ass?”]

Tom:
There are Mari’s bitches right there, everybody. There they
are. Take a look. Oh look at the flash bulbs going off.
You’d think this was the Super Bowl. Look at this. That’s
the Super Bowl of breasts. Look at that. East is playin’ West here. Look at that. These
are amazing breasts. And if you didn’t come down and hang
out with us today, you’re really missing the two best breasts
of the day. Look at these. [clip of cameras clicking] Unbelievable.
And Mari is just soaking up the attention.


[…]

Tom:
The boys would like to see her ass, though. Look at that.
Mari, the boys want to see your ass. Oh my god. You know
what? People hear me describe this stuff on the air, they
think I’m makin’ it up. Look at this body. Look at this woman.
Look at this. [crowd cheers]

Just
as time marches inexorably forward, new types, styles and limits
of program content are encountered. When Howard Stern came
to the Canadian airwaves in September 1997, his sexist commentary
left previously unacceptable language of this nature in his
chariot’s dust. In CHOM-FM and CILQ-FM re the Howard Stern Show
(CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997),
the
Quebec and Ontario Panels said:

The
unrelenting use of terms such as “pieces of ass”, “dumb
broads”, “fat cow”, “dikes” (to refer to women because
they may have even moderately feminist views), and “sluts”
and the like are exploitative and unacceptable. [.]

Stern
consistently uses degrading and irrelevant commentary
in dealing either with guests or callers. The CBSC understands,
by his demeanour and laughter, that he and, presumably,
Quivers [his sidekick] and others on his show find such
comments amusing. It may well be the case that many in
his audience find such comments entertaining. This sort
of adolescent humour may work for some in private venues
but it is thoroughly in breach of Canadian codified broadcast
standards.

The Panels drew the conclusion, which has since stood as the ruling
principle for CBSC Panels when such matters arise, that

Women
in this country are entitled to the respect which their intellectual,
emotional, personal and artistic qualities merit. No more
than men. No less than men. But every bit as much as men.

The
challenged Leykis broadcast is, in the Panel’s view, in its
own way, at the level of Stern’s comments. It continues, in
its style, the boys-in-the-locker-room banter and the Panel
does find that the extent of its disrespect for women and sweeping
generalized disregard for their equality are astonishing. As
the CBSC has observed in previous decisions, programming that
may be acceptable in the United States may not meet the more
respectful standards in the Canadian corner of the global village.
The desensitization that such broadcast mockery of women may
generate in Canadian audiences should not be underestimated.
Nor does it bring benefit to our airwaves. While freedom of
expression is a cherished value, the exercise of that freedom
without limits does not strengthen Canada’s social fabric.
The passages referred to above constitute a breach of Clauses
2 of the CAB Code of Ethics and 2(c) and 4 of the CAB
Sex-Role Portrayal Code
.

Unduly
Sexually Explicit Comments

The
principle applied by the Panel is that found in the 2002 CAB
Code of Ethics
, which prohibits the broadcast of unduly
sexually explicit material. Although the clause is new, it
reflects previous CBSC jurisprudence on the point, which has
also established the principle that the broadcast of mere sexual
innuendo is acceptable in terms of private broadcaster standards.

In
CFMI-FM re Brother Jake Morning Show (CBSC Decision 00/01-0688,
January 23, 2002), for example, this Panel examined episodes
of the station’s morning show which featured the usual songs,
news, traffic, etc., as well as discussions and comedic sketches
that contained sexual innuendo and more explicit sexual content.
While the Panel ruled that those comments that could be categorized
as innuendo or double entendre were merely in bad taste, it
found that the more explicit segments were inappropriate for
times of the day when children could be listening. Thus, a
lengthy conversation in which one host recounted his date of
the previous night where he was “givin’ it to her” on a workbench
and “she’s goin’ nuts grabbin’ my nuts” as well as a comedic
sketch in which a woman with a Mexican accent was clearly in
the throes of passion yelling out things like “oh the tongue”,
fell into this category. In CFNY-FM re The Show with Dean
Blundell
(CBSC Decision 01/02-0267, June 7, 2002), the Ontario
Panel concluded that certain discussions of fellatio and the
sex lives of the hosts and celebrities were too sexually explicit
for times of the day when children could be expected to be listening.

In
the matter at hand, there were also certain examples of broadcast
dialogue that the Panel considers unduly sexually explicit.
Several examples follow.

Jayme:
Tom, I’m wondering if you have a, uh, gushing orgasm for
me?

Tom:
A gushing orgasm?

Jayme:
Nice and wet.

Tom:
Well, let’s see. Brad, do you have anything moist there,
whaddya have?


Terry:
Well I found out that my previous boyfriend used to give himself
b.j.s to completion.

Tom:
Noooo. [Terry laughs] I’ll bet he could do, I’ll bet he could
do a thousand crunches, right? At the gym. That’s a man
who’s in shape. A man who can give himself a b.j.

Terry:
Well, you know, he didn’t think [there was] any problem, you
know, with it. And I thought there was a problem because,
you know, I can suck a watermelon through a garden hose and
I couldn’t complete him.

Tom:
But he could do it. He could get the job done.

Terry:
He could do it, yeah. I was no competition to him.

Natasha:So
you stimulate a woman’s C-spot the way I tell you to and,
you do circles and figure-eights around it, okay? And then
you, when you have knowledge of where the G-spot is, you stimulate
the G-spot and you go back and forth and back and forth until
she has the big O culminating from both areas. It’ll
be the most intense orgasm she will ever have. She will love
you. And you know that oral sex thing you’ve been begging
for? She will do it over and over and over.
[laughs] It’s amazing.

Tom:
Well, you know, these boys are here, these boys are here.
They’re hiding out. It’s Valentine’s Day and they were trying
to get away from whoever they were with today. You know that.

Natasha:
I know. But so when they’re, you know, when they hook up
with their special ladies or whatever, or if you have a one-night
stand and you really want to do something different and be
the best that she’s ever had. You know, ’cause, I mean, let’s
face it. When you make love, you don’t wanna suck. I mean,
you don’t wanna be the worst lay she’s ever had, you wanna
be the best, right?

Tom:
You want her to suck, that’s what you want.

Natasha:
You can see all my videos by joining Love Teacher. Love teacher
dot com. It’s a video site, adults only. It’s very graphic,
okay? [crowd cheers] But this woman, this woman puts a camera
the size of this Sharpie and it’s a camera, though, and she
actually puts it right on her G-spot and she shows you a G-spot
orgasm from arousal to climax. It’s the hottest footage you
will ever see.

The
Panel considers that the foregoing examples were unduly sexually
explicit and in breach of Clause 9 of the CAB Code of Ethics.

The
Role of Listener Advisories on the Radio

The
Panel has rarely had the opportunity to deal with audience advisories
in the radio context. First, unlike the situation in television
broadcasting, where viewer advisories are frequently a required
component of the broadcast of mature material, or material inappropriate
for children, they are not required in the radio context. (Among
other things, because of the difference between the two types
of media, it has been thought that they were not likely to be
as effective and dependable an audience tool in the radio context.)
Second, it follows that they have been so rarely used that there
has not been an opportunity to say much about them. In the
case of CHOM-FM and CILQ-FM re the Howard Stern Show
(CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997),
the
Quebec and Ontario Panels did

applaud
the broadcasters for ensuring that listeners are constantly
alerted to the nature of the Howard Stern Show. Moreover,
the broadcasters have not been reluctant to use material critical
of Stern in those advisories and this is to their credit.
The CBSC must, however, underscore the fact that the use of
advisories never relieves broadcasters of their responsibility
to adhere to the standards in the Codes. Ultimately, of course,
the issue is the content of the episodes which must be measured
against the Codes.

In
the case of the current broadcast, the advisory warns that the
program “may contain content of an adult nature and is intended
for mature audiences only.” As in the Howard Stern Show
decision, the Panel here commends the use of the listener advisory
by CHMJ; however, it is also constrained to observe that no
advisories, whether in the television or the radio context,
can have the effect of absolving a broadcaster from a breach
of standards (except, of course, for the circular circumstance
in which a breach would occur by reason of the failure to run
a required viewer advisory). The point in the television context
is that one type of programming, namely, that intended for adult
audiences, is relegated to post-Watershed airing. Programming
of that type must be broadcast with audio and video advisories
not because it cannot be broadcast but because there are persons
in the audience who might be offended by such material. This
is also true of pre-Watershed programming that can be broadcast
but is inappropriate for viewing by children. In neither circumstance
is there any opening for the broadcast of content that breaches
a standard. Nor does a radio advisory render unairable program
content passable. If it fails the standards test, it fails.
Period. If, on the other hand, it passes the standards test,
a thoughtful broadcaster wishing to alert its audience of potentially
offensive material, may let the listeners know what is coming.

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. Moreover, the broadcaster has taken the more
significant step of entirely removing the program from its airwaves.

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 The Tom Leykis Show had previously been 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
Canadian Broadcast Standards Council has found that, in its
broadcast of the Valentine’s Day episode of the Tom Leykis
Show
, CHMJ-AM has breached certain clauses of the Canadian
Association of Broadcasters’ Code of Ethics and Sex-Role
Portrayal Code
. By using offensive words and expressions,
on the one hand, and applauding the recounting of stories
demonstrating disrespect for women and sweeping generalized
disregard for their equality, on the other, MOJO radio has
breached the Code provisions which prohibit unduly discriminatory
comment on the basis of gender and the making of negative
or degrading comments on the role of women in society. By
also airing sexually explicit content in that February 14
episode, MOJO radio breached Clause 9 of the Code of Ethics,
which prohibits the broadcast of unduly
sexually explicit material.

This
decision is a public document upon its release by the Canadian
Broadcast Standards Council.