CHUM-AM re Brian Henderson Commentary

ONTARIO REGIONAL COUNCIL
(CBSC Decision 95/96-0008)
A. MacKay (Vice-Chair), R. Cohen, P. Fockler, T. Gupta, R. Stanbury, M. Ziniak

THE FACTS

The chronology of events in the present matter is rather more complicated than is customarily the case. Moreover, both the broadcast in question and that which gave rise to the Council’s decision in CFTR-AM re Dick Smyth (CBSC Decision 95/06-0062, March 26, 1996) are substantively linked, further complicating the chronology.

In the circumstances, the facts may be best understood by dividing them intotwo phases, the first associated with the broadcast itself and the initialreaction of CHUM-AM and the second associated with the steps taken by thebroadcaster and Jewish community representatives thereafter.

Provincial Attorney General Charles Harnick may not realize itbut the root cause of the crisis in the Legal Aid system is Jewishmothers. I don't ever recall my parents suggesting a careerchoice for me but, rightly or wrongly, Jewish mothers areinfamous for advising their offspring to become doctors ordentists or lawyers, or marry a doctor or dentist or lawyer, andthe 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 LegalAid. …

We also have too many laws, which may actually be the realproblem but for now it's more convenient to just blame thelawyers.

There's a Jewish proverb about two farmers who both claim toown the same cow. And so there they were: one farmer pullingthe cow's head, the other man yanking the cow's tail, with alawyer right in the middle milking the cow for all he's worth.

Something like legal aid.

I'm Brian Henderson.

The outcry was immediate. It appears that there were numerous calls to thestation and that a tape of the Commentary was played on CHUM's publicaccess telephone line for a period following the broadcast. The Director ofCommunity Relations of the Ontario Region of the Canadian Jewish Congress(CJC) spoke with a CHUM representative and a letter was forwarded by theCJC to Allan Waters, the President of CHUM, Inc. The CJC's legal advisorsforwarded a letter to the CRTC and numerous other individual complainantsalso wrote the Commission. In all, the CBSC received 40 letters complainingabout the commentary, more than in the case of any previous program. Allsuch letters were forwarded by the CRTC to the CBSC, although not all theinitial complainants ultimately requested that the Council proceed to anadjudication. Jim Waters, President of CHUM Group Radio, issued a writtenapology later that day. Excerpts of some of the foregoing letters orstatements follow.

One complainant who ultimately requested a ruling, whose letter included fourother signatures, put her complaint in the following terms:

The anti-Semitic comments made by Brian Henderson at yourstation last week were unacceptable and appalling. He isentitled to think what he likes. However, he should not abuse hisposition and power as a public figure on the radio to spew racists[sic] garbage. In fact, Henderson needs a few lessons in historyand sociology.

Another couple wrote the station a succinct letter, saying: “In view of yourclear anti-Semitic views you should not be allowed to broadcast, i.e. yourlicence should be revoked.”

The CBSC was also forwarded a copy of a letter from the CJC's lawyers,which alleged breaches of sub-sections 3(a), (b) and (d) of the RadioRegulations, 1986. The law firm characterized the issue in the followingterms:

The thesis of the Commentary was that the problem with LegalAid goes back to “Jewish mothers”, who are described as”infamous” and are held responsible for encouraging their children “to become” or “to marry” doctors, dentists or lawyers. The suggestion is then made, and the unequivocal impressionleft, that there are “too many” Jewish doctors, dentists, andlawyers altogether, and most particularly Jewish lawyers. … TheCommentary then proceeds to analyze the province's justicesystem, concluding with a “Jewish” proverb, thus tying the entirepiece back to the Jews.

Under the heading “Complaint”, the lawyers concluded:

In our view, the Commentary is more than tasteless; it isantisemitic and has no place on the public airwaves. ThisCommentary expressly blamed members of the Jewishcommunity for a serious societal problem, and it did so byinvoking a litany of offensive stereotypes. Although Congresshas responded to racist and antisemitic comments aired by radioand television stations in Canada in the past, this is withoutdoubt the most explicit incident in recent memory.

On the day of the broadcast, the President of CHUM Group Radio issued aMedia Release, which stated:

Today, in his commentary, Brian Henderson made remarks thatwere interpreted as being anti-Semitic.

I must first make the point that, as far as we at CHUM areconcerned, Brian Henderson is in no way anti-Semitic and has,in past commentaries, been very supportive of the Jewishcommunity.

We at CHUM Group Radio are very concerned about any feelingthat we or our employees harbour any anti-Semitic feelings. Such is just not the case.

We are deeply concerned that the remarks made on our radiostation may have offended any of our listeners.

We can only ask those who were offended by the remarks toaccept our most sincere apologies.

This apology was also read on air by Jim Waters and re-broadcast at 5:00p.m. that afternoon and again at 7:00 a.m. and 5:00 p.m. the following day inlieu of Brian Henderson's Commentary. The apology was also played on thesame CHUM access line which had played the original Commentary. Thecontroversy did not disappear.

What is stunning is that these comments come from a morningpersonality working for a high profile radio station whose morninglistener audience is surely in the tens of thousands, if nothundreds of thousands.

He reacted to the CHUM Media Release in the following terms:

It warms my heart, however, to read your comment thatHenderson has “in past commentaries, been very supportive ofthe Jewish community.” … If Henderson is “in no way anti-Semitic” as you say, his comments most certainly are!

The matter did not disappear from sight. The reason may, in part, have beenexplained in the B'nai Brith Media Release of September 21. (B'nai BrithCanada is an organization representing the Canadian Jewish community.) Inits Media Release of September 21, it stated:

Rather than calming a volatile situation, however, the statementkindled new flames as listeners felt that the station was notexpressing a feeling of true remorse.

Instead of condemning the remarks, the CHUM apology had declared thatthey were not anti-Semitic and only offered an apology to those who tookoffence. As one Toronto newspaper observed, “By refusing to send a clearmessage, he allowed the virus to spread. …”

On September 18, CFTR-AM's commentator Dick Smyth went to the rescueof his “old friend” Brian Henderson (as he described the CHUM newscasterin his own Commentary) with some on-air comments which exacerbated thesituation and are themselves the subject of a further complaint and decisionof the Ontario Regional Council (CFTR-AM re Dick Smyth, CBSC Decision95/96-0061, March 26, 1996).

On the 18th, CHUM Group Radio President Jim Waters and Brian Hendersonmet with senior representatives of B'nai Brith in Toronto and established aconsensual arrangement with them which included the following elements (asdescribed by Waters in his letters to the complainants):

1. The broadcast by Mr. Henderson of a mutually agreedupon apology.

2. An invitation to members of B'nai Brith Canada to come tothe radio station to conduct a human rights educationalprogram for the entire staff.

3. The agreement by 1050 CHUM to provide public serviceannouncements addressing human rights issues.

4. An ongoing dialogue regarding the co-sponsorship of aprogram which would run in elementary and secondaryschools across Canada promoting human rights.

Mr. Henderson's on-air apology was broadcast on the 21st of Septemberfollowing the 5:00 p.m. newscast and again on four occasions the followingday. It was also aired on CHUM-AM's sister station, CITY-TV, at 6:00 p.m. onthe 21st. The apology was also made available on the CHUM telephoneaccess line from the 21st until the morning of September 25. The text of thatapology follows:

On my commentary last Thursday, I made some remarks thatjustifiably raised the ire of both Jewish and non-Jewish membersof our community.

My attempt, to preface a serious topic, with a not so subtle bit ofethnic humour, was clearly poorly conceived because it was notonly misunderstood by many of our listeners but created anatmosphere of ill-will and mis-trust.

Upon noting, the somewhat heated response, CHUM GroupRadio President Jim Waters immediately sought to reassure ourlisteners that I am not an anti-Semite nor have I ever given anyindication of being one, in more than 18 years on this station.

However, the apology was not well received either. (It was takenas being self-serving and defensive.) And so we consulted withleaders in the Jewish community and basically admitted “we'vereally made a mistake here…could you please help us right aterrible wrong”.

And, to their credit, rather than condemning our actions theywere most eager to do so.

One thing that must be made perfectly clear….

I came up with the idea for that commentary…I wrote it…I readit…and so, if there's any blame to be assigned, for the pain andin some cases even fear, that my obviously misguided attemptat making light of a serious situation caused, lay it on my desk.

I can't take it back (live radio doesn't allow for that), but I canoffer a sincere and heartfelt apology, for an insensitive error injudgement.

No excuses.

I did it.

I'm sorry.

And, now I hope we can get on with being friends again, workingtogether, towards a Canada that is free of racial and ethnicbigotry.

I'm Brian Henderson

Following Henderson's on-air statement, B'nai Brith Canada issued a pressrelease praising the apology and looking positively toward the future. ItsPresident stated in part:

Brian Henderson has expressed his regret at beingmisunderstood. He realises that his attempt at humour wasinsensitive and ill-advised. We are convinced that BrianHenderson did not knowingly wish to advance racist and anti-Semitic views.

While there is no way to erase the damage, it is possible to beginto mend fences. B'nai Brith Canada is looking forward to thisopportunity to work with CHUM not only to try to rectify thistroubling situation, but to prevent such situations from occurringagain.

On the following day, B'nai Brith issued a second Media Release in which theyexplained their meetings with CHUM officials and provided details of the stepstaken to “make this city a fair and equitable place for all residents of Toronto.”

The letter began with a clear and unequivocal apology regarding the originalbroadcast. The General Manager expressed that repentance in the followingwords:

First of all, on behalf of 1050 CHUM, may I apologize for theremarks that led to your complaint. As outlined below, we havetried to respond to the situation in a constructive fashion that will,we hope, lead to increased tolerance. At the same time, Iacknowledge that the remarks were insensitive and caused suchpain and distress, a situation that we sincerely regret.

He then provided a background statement of Brian Henderson's history withthe station and a chronology of the events leading from the broadcast of the14th to the news releases from B'nai Brith. He concluded with the followingstatement:

In particular, the dialogue in which we have engaged with leaders of the Jewish community has, it is hoped, resulted inpositive steps that will assist in the advancement of toleranceand racial harmony.

Once again, please accept my apologies on behalf of 1050CHUM for the events that gave rise to your letter.

Three of the complainants were not satisfied with the broadcaster's responseand requested that the Ontario Regional Council adjudicate the matter.

Clause 2, CAB Code of Ethics (Human Rights)

Recognizing that every person has a right to full and equalrecognition and to enjoy certain fundamental rights andfreedoms, broadcasters shall endeavour to ensure, to the best oftheir ability, that their programming contains no abusive ordiscriminatory material or comment which is based on matters ofrace, national or ethnic origin, colour, religion, age, sex, maritalstatus or physical or mental handicap.

Clause 6(3), CAB Code of Ethics (News, etc.)

It is recognized that the full, fair and proper presentation of news,opinion, comment and editorial is the prime and fundamentalresponsibility of the broadcast publisher.

The Council also considered the provisions of section 3(b) of the RadioRegulations, 1986. As in previous decisions, the Council felt it relevant toapply “the principles established in the Broadcasting Act and the RadioRegulations as a part of the standards by which it expects that broadcastersgovern their on-air activities.” (CKTB-AM re the John Michaels Show, CBSCDecision 92/93-170, February 15, 1994). In CJMR-AM re the Voice of Croatia(CBSC Decision 92/93-0205, February 15, 1994), the Ontario RegionalCouncil used the following terms in dealing with the applicability of Section3(e) of the Radio Regulations:

The Council is comfortable taking notice of a principleestablished in the Radio Regulations, since it is no more or lessthan a part of the standards by which it expects thatbroadcasters govern their daily on-air activities. While it isevident that the enforcement of the federal statute andregulations is the responsibility of the Commission, the CBSChas previously applied certain of the principles established inthese public instruments in its decisions. … Surely, the entirepremise of a self-regulatory code is that those who adhere to itwill first obey the law which is the cornerstone of their activities.

The text of Section 3(b) of the Radio Regulations, 1986, which the Councilapplied to this case, reads in pertinent part:

A licensee shall not broadcast

(b) abusive comment that, when taken in context, tends or islikely to expose an individual or a group or class of individuals tohatred or contempt on the basis of race, national or ethnic origin,colour, religion, sex, age or mental or physical disability;

The Regional Council members listened to a tape of the program in questionand reviewed all of the extensive correspondence and related documentation. The members agreed that the program had breached the provisions of theCode.

This matter is, in the view of the Regional Council members, pivotal in theunderstanding of the CBSC's attitude toward questions of human rights andracism. In their view, it brings together many of the issues which the Councilhas touched upon in one way or another over the preceding three years. InCFOX-FM re the Larry and Willie Show (CBSC Decision 92/93-0141, October7, 1993), the British Columbia Regional Council laid down two guiding and yetconflicting principles which this and other Regional Councils of the CBSChave weighed from time to time since then:

The CBSC is vigilant in its application of Clause 2 to all formsand levels of programming in the sectors of the industry to whichthe Code applies but it is equally conscious of the countervailingimportance to the public of the fullest expression of the freedomof speech. It is not any reference to “race, national or ethnicorigin, religion, age, sex, marital status or physical or mentalhandicap” but rather those which contain “abusive ordiscriminatory material or comment” based on the foregoingwhich will be sanctioned.

On that occasion and on several others since that time, the Council has, inmeasuring those conflictual principles, concluded that the references found offensive by listeners did not constitute “abusive or discriminatory material orcomment” (see, for example, CHTZ-FM re the Morning Show, CBSC Decision92/93-0148, January 27, 1994, CKTB-AM re the John Gilbert Show, CBSCDecision 92/93-0179, October 26, 1993, CHOG-AM re the Jessie and GeneShow, CBSC Decision 93/94-0242, November 15, 1994, and CKVR-TV re”Just for Laughs”, CBSC Decision 94/05-0005, August 23, 1995).

On the other hand, in CKTB-AM re the John Michael Show (CBSC Decision92/93-0170, February 15, 1994), where the facts, but not the applicableprinciple, differed slightly, the Ontario Regional Council decided that

the multiplicity of inaccurate statements of the host were used byMr. Michael to disparage or abuse the reputation of French-speaking Canadians as a group or expose them to the contemptof other listeners. Consequently, the Regional Councilconcluded that the statements collectively amounted to a breachof Clause 2 of the Code of Ethics.

Similarly, in CKTF-FM re Voix d'Accès (CBSC Decision 93/94-0213,December 06, 1995), the Quebec Regional Council concluded that the verycrude attempt at humour at the expense of Newfoundlanders constituted adiscriminatory and abusive comment in breach of the same section of theCode of Ethics. In CFRA-AM re Lowell Green (CBSC Decision 93/94-0295,November 11, 1994), the open line host had cut the caller off the air after shehad described herself as “a practising Christian”. The Ontario RegionalCouncil concluded that this constituted a breach of the Clause.

Once she had identified herself as a Christian, she wasimmediately cut off, as though her religion made her unqualifiedto speak on the subject at hand. The Regional Councilunanimously decided that the host's treatment of the caller, aswell as his comments after cutting her off did, indeed, constitutea breach of clause 2 of the CAB Code of Ethics, regarding”…abusive or discriminatory material or comment… based onmatters of religion.”

In the case at hand, the newscaster and editorial commentator, BrianHenderson, was attempting to address a valid, indeed important, publicconcern, namely, the state of the legal aid system in the Province of Ontario. As the announcer himself admitted, his choice of example was a “clearlypoorly conceived” attempt at “ethnic humour”, which had the effect ofundermining the legitimacy of his commentary and, further, violated clauses2 and 6(3) of the CAB Code of Ethics. To illustrate his point, he had reachedfor an unrelated, irrelevant and factually unsupportable claim. His originalcommentary was incorrect and inappropriate, a textbook case of whatCanada's private broadcasters sought to avoid when they mandated in the Code of Ethics which they created for themselves that “their programmingcontain no abusive or discriminatory material … based on matters of race,nation or ethnic origin [or] religion”.

The wording chosen by the private broadcasters parallels, not inadvertently,the Council believes, that used in the Radio Regulations, 1986. Whetherintended to be humorous or serious in tone, programming, whether live or pre-recorded, which “tends or is likely to expose an individual or class ofindividuals to hatred or contempt on the basis of [their] race, national or ethnicorigin, colour [or] religion” is not tolerable on Canadian airwaves. While eachindividual must determine his or her limits of tolerance at home, themanifestation of such intolerance on the publicly-owned airwaves isunacceptable. The freedom to speak or express does not include the freedomto defame.

In an era when the airwaves are transformed more readily and frequently frommusic and drama to talk and comment, there are, as a matter of fact, moretalk and comment and more words on the air. Consequently, on a simpleproportionate basis, there are more opportunities to err regarding the socialresponsibilities and community values ensconced in the Code of Ethics. Morecare is, therefore, required by broadcasters to ensure that the Code provisionsare respected.

In the result, the letters of response to the complainants were later in arrivingthan would normally be the case. There has not, in the experience of theCouncil, been a more evident need for such a delay. Where a broadcaster istaking such significant steps on a macro level to respond to a concern at thattier, the Council considers it entirely justifiable that the response to individualsawait the resolution on the community level.

Furthermore, the delay meant that the response could be expected to be moresubstantive. It was. Although there were individuals who requested anadjudication, despite the steps taken by the broadcaster both in dealing withtheir complaints and with those of B'nai Brith Canada, representing thecommunity, the Council considers that the broadcaster's response fromSeptember 18 on was exemplary. The Council specifically refers to theunequivocal on-air statement by Brian Henderson, the repetition of thatstatement on numerous occasions both on radio and on television, theavailability of the statement on the station's telephone access line on fivesuccessive days, the proposed meeting of CHUM Radio Grouprepresentatives with community representatives at large and theestablishment of an anti-racist program of activities extending beyond theJewish community and the City of Toronto. In this respect, the CBSCconsiders that the station amply fulfilled its obligations of effective dialoguewith its listener and the offended community.

Furthermore, with respect to the broadcaster's obligation to be responsive toits listeners, the Council found, as indicated above in some detail, that CHUM-AM had amply fulfilled its obligations of effective dialogue with itscomplainants and with the community at large.

This decision is a public document upon its release by the CanadianBroadcast Standards Council and may be reported, announced or read by thestation against which the complaint had originally been made; however, in thecase of a favourable decision or this unusual case of an unfavourabledecision, the station is under no obligation to announce the result.