CILQ-FM re the Howard Stern Show

ONTARIO REGIONAL PANEL
(CBSC Decision 99/00-0717, -0739)
R. Stanbury (Chair), M. Ziniak (Vice-Chair), R. Cohen (ad hoc), M. Oldfield, S. Whiting

THE FACTS

In the course of the episodes of the Howard Stern Show of July 10, 11 and 12, 2000 on CILQ-FM (Toronto), the host made various remarks which complainants later characterized as racist or sexist.  These included the following statements, lengthier transcriptions of which can be found in Appendix A to this decision.

:Do you know why all the Haitians want to come here?  Economic opportunity.  Did you know that …

:Is that a bad thing?  Why did everyone else come, Howard?

Do you know why else they want to come here?  Because we are having, right now, an economic boycott against Haiti.  Does anybody know this?  Do you know this, Robin?

:Yes!

: No, you didn't.

: We have an economic boycott against Haiti now, let me tell you what should happen …

 Right.  Of course we do because they had the army overthrow the government.

: Right.  Now … but let me tell you something …

: But why did other people come here?  You think an economic reason is a bad one?

Stern: Let me tell you something …  Never mind why other people came here.  Now the country is filled up to the brim with people.  We got so many people we …

Robin: We have to change the rules.

: We have to change the rules of the game.  [Robin laughing] You know how we can help the Haitians.  Let them stay in their country and let's lift the economic boycott.  Let us make sure to help them out economically so they can live there because the alternative is they're going to come here on what they call boats, even though God only knows what those things are.

: I am against all immigration into this country.  Why, why are the Haitians the only ones who seem to be upset by my stand on this?

: Because you've been talking about them.  You didn't make it clear that you were against all immigration.

: Oh, I see.  He feels he's being singled out.

:  That's right.

: That's enough with the immigration.  Look what's going on in Los Angeles.  You've got to build a friggin'  wall around Los Angeles to keep the Mexicans out.  I've got nothing against Mexicans.  Let 'em go live in Mexico.

:No, now we're in the process of trying to make these other countries better so people will stay home.

Stern: Yeah, that's the other thing.  Now, our own country has problems.  We now got to make Haiti better so that the Haitians will be willing to stay there.  But we can't assimilate all these people.  Do you know what it takes to assimilate somebody?  First of all, a lot of people come to this country and they don't want to assimilate anymore.  That is the difference between when my grandparents came here.  Did you know that my grandparents were embarrassed because they couldn't read?  They would spend nights trying to learn how to read. They wanted to only sound like the people of this country.  Now you're saying “Gee, that's terrible, they lived their whole life embarrassed”.  It's good that they were embarrassed.  You must try to assimilate.

[Talking to Tori Spelling on the telephone]

: By the way, in the room is John Stamos … and Rebecca Romjin.  You're not the only piece of ass in the room.

[Later, talking about Spelling's appearance on Jay Leno the night before]

:… I like the, ah, I like the outfit you picked …  I'd love to marry your ass.  I swear to God …

: Just the ass, though.

:… I'll tell you something.  Your body has never looked better.  And then you had a shirt on that had spaghetti straps.  Listen to this.  You'll be interested, all you gals will be interested in this, it had, like, spaghetti straps and then just, it had this piece of material.  What was that made out of?

:  It was, like, silk.

: It was, like, silk and it just hangs and … You weren't wearing a bra, right?…  So, I mean, your breasts were jiggling around in this thing.  I was completely out of my … You know, the woman's breasts were pounding up against this silk, like there's two puppies wrestling in the shirt …  Were you aware of what was going on in your shirt?

[Talking about a Playboy model who wants to be on the show]

:  Gary comes back and says … picture of her … Gary comes in and says “Hey, you know, there's this Playboy centerfold that wants to come on the air and promote something or other.  I don't know what it was.  Even I said “You know Gary, Playboy centerfold are beautiful to look at, and, hey, I'm the first one to love a beautiful woman, but what is she going to do?”

[Stern and Robin poke fun at interviews with Playboy centerfold.]

: … So I said, you know what, “Call back her manager or whoever is in charge…”

: Her people.

: Her people [pronounced pee-pole] and tell them she can come in if we can get her naked, roll her up in a carpet, and throw her into the elevator and send her up and down in the elevator.  And then, when she's naked, we can poke her with sticks, right?

: Yeah.  Well, sort of.  They came to us and said “She'sa big fan and she's willing to do anything”.  And those are the magic words.  I said “anything”, and the guy says “anything”.  So we thought of anything.

[Later, on the phone, with the playmate's “people”]

:  [on the telephone] … Of course I went into a meeting and they came up with a list of what “anything” means. … Here's the list of “anything”.  You ready?…  Number one is she would have to, would she be … These are not what she would have to do … Would she be willing to do these things …?

:  She would have to do them, but you're nervous. I can tell.  All right, here we go.

:  [on the telephone] Sniff our underwear and guess whose belongs to who …

: [on the telephone] … Sniff underwear …

:  … and she would have to guess whose belongs to who …

:  Wouldn't that be fun?  Like, we bring in our smelliest underwear.  Oh, I've got that one pair of underwear that has the stains all over it, so I'd bring that one in.

[On the phone again]

Manager: Ok, that's an interesting one.

:  Could we get her naked, roll her in a rug and send her up and down in the elevator?

: You guys are really going to town here.

: Could we put a carrot in Howard's lap and she has to eat it while she's naked? 

:I think that one's probably the easiest one so far.

: And, would she be willing to get naked and eat food out of a dog dish.

: You guys are ****ing sick!

: I'd love to get a Playboy playmate naked eating out of a dog dish.  You know, not dog food, but you know, regular food.

: Just eating out of a dog dish on the floor.  What is it about humiliating women that excites you so much?

:  This is the coolest job in America where you can actually make calls like this and, you know, maybe get away with it.

: I have a girl on … a little bit angry … She thinks you're a pimp for having girls do this.

: Duh.  What, you just woke up?

:Hello.

: Hello, honey.

: No I've been up.  I've been taking care of my business for the morning.

: Were are you from, what country? [mimicking her accent]

:  I'm from New York.

: No, you've some kind of Puerto Rican accent?

: Yes, I'm Puerto Rican.  What's the problem?

: You should go back there where they really treat women well.

:  Howard, look man, don't even get me started, okay.  All I did …

: Listen, Ms. Fernandez …

:… call you to let you know that what you spoke about just a few minutes ago …

: Listen, Fernandez …

: … having a carrot between your lap and having this woman bend down naked and eat out of it and then you wanted her to bend down … The one that really blew my mind and got me pissed off that I had to call you was that you wanted her to bend down, eat from of a damn dog dish, ok, naked.  You know that is the lowest of the low … [while the caller is talking, there is laughter and Stern says “Yeah” throughout]

: She said she would eat anything …

: … and I told Stuttering John “You people are sick!”

: I used to live in a Puerto Rican community.  And let me tell you something, the men there tell the women what to do and when to do it.  That's why she's offended.

: Don't even go there Howard …

: Don't even go there, honey.  Don't even go there, honey.

: My husband takes care of the house.  I take care of the house.  Everybody is happy.

Stern: God forbid you should go outside the door without his permission.

: You know, I vote. … I vote, I pay my taxes, I work, so don't even try that over here.

: You come down here and eat a taco out of my crotch.

: … I'm Puerto Rican and proud.

: And another thing.  The way you treat your wife … That's, you know, … You are just disgusting …

: Yeah, well, let me tell you something, honey.  I bet you're a big fat cow.

: … rubbing up on women, touching their breasts.  Oh my God …

: I bet you're a big fat cow and I bet your husband cheats on you. [shouting]

: My husband don't cheat on me …

: Oh, I know he does.

: I take good care of my man.

: Yeah, right.

: Yes, I know I'm right.

: Nothing like piling on top of a big, fat, hairy girl.

: You pig.  Let me tell you something.  If she weighs two hundred pounds … I guarantee you if she weighs two hundred pounds, I'm at a light estimate.  This is a fat, ugly girl who can't get squat.

: I'm not a fat, ugly girl.  I am 5' 5″, I have short brown hair, light brown eyes …

: How much do you weigh?  How much do you weigh?

: I weigh 125.

: Liar. [caller keeps talking through his questions] Do you have a mustache?  Do you have hair going up around your stomach?

: No, I don't, Howard.

: You do.

: No, I don't.

: You're angry because you're flat and you have a big wide ass. [They all laugh] Go count the cockroaches in your apartment.

[Caller hangs up on Stern]

Stern: She is a filthy, lowlife, low brain power woman …  The reason she doesn't understand it is she ate lead paint chips when she was young from the housing project she grew up in.  I love all people, but I gotta tell you that woman was a pig.  A pig.  She's filthy.

Complaints regarding some of the foregoing material were sent by an individual complainant and by MediaWatch.  Each of course receive equal weight; however, it is the practice of the CBSC to not identify individual complainants.

The first complaint was sent on July 12, 2000 to the CRTC, which forwarded it to the CBSC in the normal course.  It stated in part (the full text of the letter and all subsequent correspondence is reproduced in Appendix B):

What concerns me was how Mr. Stern went off on an over-emotional tantrum, verbally assaulting a call-in listener of his show.  Not only did Mr. Stern demean the woman caller, he also attacked the woman's husband and her family's ethnic origins in an extremely racist manner.  How far over the line Mr. Stern went is up to you to decide as I do not know what the parameters are.

[T]hey started on about air-headed bimbo Barbie dolls posing for Playboy and how interviewing them was boring and basically the same interview every time.  Howard and Robin's impressions were a hoot.  They then started talking about how this one aspiring Oscar award recipient had said that she was a big fan of the show and was game to do anything.  Well let's be honest, here.  Saying the word anything to a shock jock like Howard Stern is bound to get a reaction so Howard's people phoned up her people with a list of to-dos. …  Apparently though, one listener wasn't impressed, feeling that Stern was being demeaning to women and she phoned in to confront Stern about it.   This is when things took a turn for the worse and got ugly.  Really ugly.  While the woman's perspective may have been a little out of focus of what Stern's intentions were, was it really necessary for Mr. Stern to verbally assault and rape the woman, her family and her entire race of people?  Is such behaviour within the guide lines of Canadian content?  While the woman took her shots at Howard's looks, family and character too it was more of a reflexive response sort of thing, especially since Stern was proclaiming to be intellectually superior throughout the entire exchange.

The broadcaster's response was sent on August 8.  In it, CILQ-FM's Operations Manager wrote in part (the full text of the response is reproduced in Appendix B):

I have had the opportunity to listen to the segment of The Howard Stern Show aired on July 12, 2000, to which you refer.  You noted in your complaint “I rather enjoy the way Mr. Stern pushes the envelope”.  From this statement, I can only assume that you are a listener of The Howard Stern Show and accordingly, you are probably aware that the show is intended to be funny.  We do, however, appreciate that humour is a subjective thing.

On the program in question, I believe that the essence of your complaint is that Howard Stern went too far.  Again, this is subject to interpretation, as many people who listened to this segment found it funny.  It was intended to be funny, not serious.

We recognize that the Howard Stern brand of entertainment is not everyone's taste and regret that you were offended by his comments.

The complainant declared his dissatisfaction with the broadcaster's reply in the following terms:

Neither is whether I am a fan of the Stern show or not [a relevant issue].  Fact is that a lot of Stern's act is to create a buzz by being someone that people find offensive in an effort to test the parameters of freedom of speech through his brand of humour.  The point I'm trying to make is that Howard Stern went off on an over-emotional tantrum because a female caller did not share the same perception as Howard Stern.  It's not a case of me choosing sides as to who has the “right” perception, but a matter of the mechanics that Howard Stern employed to deal with the caller.  I'll pull no punches with you, I'm exploiting Mr. Stern's fame and popularity to make a point.  That point is that although people may not share the same perception, they can still steer through situations relatively unscathed by not allowing their anger to control them and allowing their brains to reason and rationalize.

Instead of giving the woman any degree of respect, Stern resorted to slander (just another form of anger) instead of reasoning through it.  He hit the racism button too.  (Something also triggered by anger.)

The second complaint, from MediaWatch, was sent directly to the CBSC on August 4.  It was far lengthier and more specific than the first complaint and included transcriptions of material found offensive by the organization.  So much of that letter of complaint is relevant that the introductory observations are included in full here (the full letter with the transcribed portions chosen by MediaWatch is included in Appendix B below).

MediaWatch staff and volunteers have been monitoring The Howard Stern Show on CILQ-FM and are concerned about the continuing offensive remarks which are both sexist and racist, airing on Canadian airwaves. This program has been found to be in breach of the CAB's Code of Ethics and the Sex-Role Portrayal Code on two separate occasions prior to this letter. The CBSC allowed the station to continue to air the show with the condition that they use time-edit equipment to ensure the show adheres to Canadian standards. Stern's show is based on infantile humour that includes the ongoing degradation of women, the humiliation of people with disabilities, the stereotyping of homosexuals and people of colour or ethnic origin.

The continued airing of The Howard Stern Show is in direct contradiction of the intent and spirit of the Sex Role Portrayal Code and the Code of Ethics, Clause 2 (Human Rights).

Q107 allows a producer/editor to monitor the show every morning and has invested in digital time-shift equipment to edit material that does not conform to CAB Codes. WIC Radio president stated in an August 5, 1999 letter to the CRTC, copied to MediaWatch, that: “Portions of the Program are edited virtually every day with edits ranging from a few seconds of material to entire segments of the Program (although the latter is seldom necessary and when it does happen, precipitates a storm of protest from fans of the Program).”

Mr. Cohen, in your letter to MediaWatch dated February 25, 1999, you acknowledge the program is edited almost on a daily basis anywhere from a few seconds to almost two hours of time.  You also stated that “while there is always the possibility that slip-ups have occurred, it would only be fair and correct to acknowledge that, far from being a persistent offender of the codes, Q107 has been diligent in dealing with the contentious material produced out of New York.”

Both Q107 staff and CBSC council members openly acknowledge that inappropriate and offensive comments are made on a regular basis by a program that is meant to be “contentious”.  MediaWatch contends that even with the editing it is literally impossible to edit all the derogatory and discriminatory material that is included in the program every day of airplay.

By allowing Q107 the leeway of possible “slip-ups” to occur in that they may miss editing some offensive material, is not acceptable.  One comment of violence against women or one comment that stereotypes a minority group is unacceptable. Unfortunately, there are many comments made in jest that implies to the audience, who are mainly young male listeners, that it is acceptable and, since it is on Canadian airwaves, it is the “norm” to be abusive and violent towards women. The derogatory and discriminatory comments may desensitize the listener to the point where they believe it is acceptable to make fun of people with disabilities and to create bias against and hatred towards minority groups. The number of edits out of each show is not sufficient to meet the CAB Codes.

In Spring, 2000 MediaWatch commissioned a poll on community attitudes towards standards of taste with Canadian Facts, a national public opinion firm. The national sample for the survey was 750 Canadians, 18 years of age and over. When offended by media they see or hear, one in two (53%) report they will switch to another channel, 41% said that they will switch off. And fully one in three (32%) will talk to others about what they saw, suggesting negative word of mouth may carry large market clout. Just one in twenty (6%) tried to complain to someone, suggesting that a complaints-based system of regulation will catch a very small proportion of those who encounter offensive programming. This identifies why you have received few other complaints about the program – consumers are uncomfortable or unaware of the process to make complaints. At MediaWatch we have found it challenging to recruit volunteers to monitor the Howard Stern Show because they are so offended by the content of the program.1 [All the foregoing boldface emphasis is original.]

In response to this complaint, the station's Program Director wrote a lengthy reply on August 17, only part of which is cited here (the full response, including the detailed explanations provided by CILQ-FM's Producer of the Stern Show, is included in Appendix B).

It is a matter of public record that Q107 edits The Howard Stern Show forbroadcast in Canada, over and above the edits that are performed at the originating station, WXRK-FM in New York.  This is to ensure that the program conforms to the CAB broadcast Codes, which can have separate regulatory requirements from FCC broadcast regulations in the United States.  Indeed, many of the edits that are made at WXRK-FM in New York (which are made as often as the edits Q107 makes) would not be made at Q107, due to the regulatory differences between the two countries.  It is not the intent of the edits on Q107 to make the show less controversial or compelling for its listening audience, which is close to half a million men and women in the Toronto area, but to ensure that the program is in compliance with the codes.  It is also not the purpose of the broadcasting codes to make controversial programming unavailable to Canadian audiences. It is our understanding that the codes are applied with healthy respect to Canadians' right to free speech (and, as importantly, to hear free speech).

Your letter states that “consumers are uncomfortable or unaware of the process to make complaints” and that this is the reason we receive “few other complaints” about The Howard Stern Show. This is an interesting point of view, considering the fact that the broadcast of The Howard Stern Show in Canada has done more to make the public aware of the avenues open to them concerning objections they may have with regard to certain broadcasts or personalities.  In fact, Q107 continues to broadcast announcements on a daily basis, advising our listeners about the CBSC and the process available to them to make any of their concerns or comments about our broadcasts known.  However, you are correct that the amount of complaints we receive from private citizens about The Howard Stern Show is negligible and that virtually the only complaints we receive about it are from advocacy groups such as MediaWatch.

In editing the show to comply with the Codes, context is a significant issue in determining whether or not a segment or word can stay or go.  Not only is the context of a discussion in a particular show considered, but the context of the discussion within popular culture and prevailing social climates is also considered.

The letter then refers to the Producer of the CILQ-FM broadcast of the Stern Show and quotes her detailed response to each of the episodes of the show about which complaints were registered by Mediawatch.  Since these are quite lengthy, they are reproduced integrally in Appendix B; quotations from particularly pertinent parts are provided in the reasons for the decision.

A Preliminary Matter: The CBSC Complaints Process

There are some important general issues raised by the MediaWatch complaint in particular. One of these challenges the effectiveness of any complaints-driven process as a method of dealing with potentially problematic broadcast content.

In the letter of August 4, MediaWatch advised the CBSC that it had commissioned a poll relating to “standards of taste”, in which it was reported that 53% of respondents stated that they would change their channel (or station, the CBSC assumes) if they encountered offensive material and 41% would simply turn the offending material off.  Only 6% were apparently prepared to “complain to someone.”  Thus, MediaWatch concluded, “a complaints-based system of regulation will catch a very small proportion of those who encounter offensive programming.”

In the view of the Panel, this conclusion is not relevant to the CBSC's process.  In the first place, according to the MediaWatch letter, the poll itself dealt with standards of taste [emphasis added].”  The CBSC has long explained that neither its Codes nor its decisions are meant to deal with matters of taste.  Such matters, the Council has always ruled, must be resolved by audience members using their remote controls or on/off switches.  It is only when complaints rise above questions of taste alone and raise potential breaches of one of the private broadcasters' Codes that there may be cause for intervention by the CBSC.  If, therefore, the thrust of the MediaWatch poll was not focussed on weighty issues of content (which might generate Code-related breaches), it is understandable that the level of complaints to bodies like the CBSC or the CRTC might be low.  In matters of taste alone, channel-switching would be the precisely appropriate solution.

In any event, whatever the characterization of the challenged content, the MediaWatch implication appears to be that the vast proportion of offending programming will go unchallenged in a complaints-based environment.  That is not, of course, supported by the reported survey results.  To reach such a conclusion, MediaWatch would have had to conduct a poll related to programs, not to viewers. After all, the question is not how many listeners or viewers may not be actively complaining but rather how many offensive programs may be escaping the complaint net.  Only if the total universe of complainants matched an equal number of programs might the MediaWatch assertion be justified.  In any event, the CBSC's process was designed to cope with the prospect of low complaint levels in the first place.  By requiring but a single complaint in order to generate an adjudication, rather than, say, 10 or 25 or more, even one person has a disproportionate ability to trigger the process.  Following, for example, the CBSC's decision in CIII-TV re Mighty Morphin Power Rangers (CBSC Decision 93/94-0270 and 0277, October 24, 1994), which had been the result of two Ruling Requests, Maclean's Magazine titled its article on that CBSC decision “Power to the People”.  In 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), there were only four complaints filed.  In CIHF-TV and CKMI-TV re The Jerry Springer Show (CBSC Decision 97/98-1277, May 28, 1999), there were only two complainants.  In the present case, there are only two.  More often, there is only one.

The CBSC's low complaint threshold is its antidote to the apparent apathy or inertia of the populace.  It ensures that matters will be dealt with and, if necessary, adjudicated even if the number of complainants is minuscule.  The emphasis of the CBSC's process is on the correctness of the complaint raised, not on the number of persons who view the issue in the same way.  The Panel Adjudicators do not conduct polls to determine whether the complaint should be upheld; they review the programs, the Codes and the previous CBSC jurisprudence and weigh these in order to arrive at their decisions.

Moreover, the low level threshold used by the CBSC avoids two situations which would each be far worse than this accommodating option.  The first would be a monitoring system involving the Council or some other body watching or recording and reviewing programming which bothered no-one sufficientlyto move them to complain; it would be akin to censorship.  The second would be a form of polling to determine whether a program was voted in breach of a codified standard rather than a system in which a small, thoughtful and representative group of citizens measures complained of programming against an established set of common standards.  Such an approach would create great risks for the perspectives of minorities.

A Second Preliminary Matter: The Editing Solution

MediaWatch contends that, “even with the editing it is literally impossible to edit all the derogatory and discriminatory material that is included in the program every day of airplay.”  It argues that

By allowing Q107 the leeway of possible “slip-ups” to occur in that they may miss editing some offensive material, is not acceptable [sic].  One comment of violence against women or one comment that stereotypes a minority group is unacceptable.

The Panel agrees with substance of the last sentence quoted, namely, that objectionable comments are unacceptable.  The process is not part-time; it is not designed to permit occasional breaches of the Codes.  That being said, the Panel does not agree that “it is literally impossible” to succeed in the editing of the program.  Moreover, it is the view of the Panel that any broadcaster airing the show is responsible for ensuring that it meets Canadian standards.  If it cannot achieve the result, it cannot broadcast the program while sustaining the position that it is respecting those standards.  (See also “The Broadcaster's Failure to Avoid Repetitive Breaches” below.)

A Third Preliminary Matter: Desensitization of the Audience

In the association's letter, MediaWatch makes the general point that there is a risk that

derogatory and discriminatory comments may desensitize the listener to the point where they believe it is acceptable to make fun of people with disabilities and to create bias against and hatred towards minority groups.

With this assertion, the Panel takes no issue.  It is precisely the concern which the CBSC has previously expressed regarding abusively or unduly discriminatory comments, even when these are allegedly meant in a humorous vein by the broadcaster.  Those which exceed the bounds of acceptability, as these have been repeatedly defined by various CBSC Panels, run the additional risk of desensitizing the public.  In fact, this Panel considers that, while unduly discriminatory comments are never tolerable under the Code, those which are tendered to the audience in a humourous vein could reasonably be described as riskier in the sense that the levity of their presentation may suggest a higher degree of acceptance by the audience than hateful or bitter statements which may seem shrouded in negativity.  Humourous unduly discriminatory comments may, in other words, be likelier to leave an audience with the sense that they are “okay” than those which, being seriously made, leave listeners feeling discomfited.  The latter comments are less likely to be condoned, less likely to be repeated, less likely, in other words, to desensitize their audience.

THE DECISION

The CBSC s Ontario Regional Panel considered the complaint under the Code of Ethics and the Sex-Role Portrayal Code 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, 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 Sex-Role Portrayal Code – Clause 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.

The Regional Council members listened to tapes of the program episodes in question (except for the June 29 show referred to in the MediaWatch complaint for which the tapes had already been recycled – accordingly, it was not considered by the Ontario Panel) and reviewed all of the correspondence.  The Panel agreed in part with the complainants and finds that some, but not all, of the commentary underscored by them was in breach of one or another of the Code provisions.

The Panel will address the following issues from the July episodes alleged by the complainants to be in breach of one or another of the codified standards: comments relating to immigration, sexist and degrading comments, racist comments and the treatment of certain callers.

The MediaWatch complaint specifically cited the dialogue of the July 10 show with respect to the immigration issue (focussed largely on the Haitian community) as an example of racist commentary.  While the Panel accepts that Howard Stern does not practise subtlety, it does recognize that his discussion of this issue is political and not racist.  He is utterly clear in his position when he says “I am against all immigration into this country.”  That may be an unpopular position or one unpalatable to the complainant or others; however, that is not the issue.  Everyone has the right to express unpopular political positions on the airwaves provided these are not in reality unduly discriminatory commentary, which is prohibited under the human rights provision of the CAB Code of Ethics. This has always been the position of the Council.  As long ago as CKTB-AM re the John Gilbert Show (CBSC Decision 92/93-0179, October 26, 1993), the Ontario Regional Panel stated:

that an opinion on the government policy of bilingualism constituted an opinion on that issue and was not racially driven.  Nothing can be more fundamental to the principle of freedom of speech enshrined in the Charter than the entitlement of an individual to express a differing view on a matter of public concern, including government policy.

re the John Michael Show (CBSC Decision 92/93-0170, February 15, 1994), the same Panel observed:

Mr. Michael expressed his opposition to the official government policy of bilingualism and stated “nor could I give a damn if Quebec stays in this country or not.”  He added, among other things, that “We no longer wish to kneel and bow to this one province.”  With these political perspectives, the Council takes no issue.  The host also opined that Quebeckers control the civil service and generally wielded enormous political power within Canada.  These opinions may or may not be sustainable but they are at least legitimately debatable.

re The Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997), the Quebec and Ontario Regional Panels put the matter in the following terms:

The Regional Councils note the importance of differentiating between insults aimed at identifiable groups and comments related to the political or historical environment in Canada and in France.  […]  Those comments relating to the state of radio in Canada, the use of English in Quebec, the value of French culture, Canada as an appendage of the United States, the role of the vanquished French in Vichy France, the issues relating to separatism, and so on, are the host's opinions and, unless utterly and irresponsibly uninformed, […] they are his to espouse.

When MediaWatch stated that Stern says “that all minorities should go back to their own countries,” it has distorted his words.  No such language is present in his commentary.  Had it been, it is not certain to this Panel that it would have amounted to a Code breach, but that is a matter for another day.  On this occasion, the introductory comments which have been excised by MediaWatch but which are present both in the material provided in the broadcaster's response and in the CBSC's own transcription contextualize Stern's expression of opinion.  It is nothing more or less than a political perspective regarding both the issue of immigration and, it appears, the question of assimilation.  He has made no comment whatsoever suggesting that American citizens of other national or ethnic groups be stripped of their citizenship and returned to their countries of origin.  He does not wish new immigrants.  It is a defensible view in terms of the freedom of expression.  The Panel finds no breach in this part of the broadcast.

The allegedly sexist and degrading comments fall into two categories: the use of terms such as “pieces of ass” and the description of attractive guests (July 11), on the one hand, and the episode with the Playmate yearning to come on the show (July 12), on the other.

As to the use of the term “pieces of ass” on the July 11 episode, the Panel considers the response of the broadcaster to be apt.

In this segment MediaWatch seems to object to Stern's use of the term “piece of ass” to describe women. This is a term Stern often uses to describe an attractive person. This term might be vulgar but it is certainly not sexist, as it was used by Stern to describe male actor John Stamos just prior to the start of MediaWatch's transcription.  At 7:34 Stern says. “he's a really gorgeous piece of ass …”

It does appear to be a term which Stern has used on the very show which has been challenged to describe both sexes and, in that sense, cannot be said to be sexist.  It is also clear that Stern uses the word to describe the attractive actresses and models Rebecca Romjin, Tori Spelling, Shannon Doherty and Jessica Hahn.  While the Panel considers the term tasteless when applied to either women or men, it does not consider that its use in this episode is sexist in terms of the Code.  This Panel has found against the broadcaster for the very use of such terms in the past; however, it was in circumstances in which women seeking to discuss more serious subjects or who clearly wished to be seen otherwise than by virtue of their physical attributes could not succeed in achieving the emotional and intellectual equality which is their due under the Sex-Role Portrayal Code.  The comments of this Panel and the Quebec Panel in their joint decision in CHOM-FM and CILQ-FM re TheHoward Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997) illustrate this point.

It is clear to the members of the Regional Councils that Stern portrays adolescent, puerile, crude attitudes toward many sex and gender-related issues.  These, though, generally fall within the category of bad taste and are left by the CBSC to be judged […] by the marketplace.  Since, however, Stern regularly speaks his mind, his general attitude has no more bounds in this area than in others noted by the Regional Council members.  Those comments which exceed bad taste and violate Sex-Role Portrayal Code provisions fall into the area of words and expressions used, degrading remarks regarding individual callers, and comments reflecting on the intellectual and emotional equality of women generally. […]

In addition to terms such as “pieces of ass”,  “hornycow”, “dumb broads”, “dikes” (referring to women with even moderately feminist views), and “sluts”, which sprinkle the dialogue on the Stern Show, he frequently deals with female guests on the basis of their physical attributes and sexual practices rather than, or occasionally in addition to, the skills or talents which are the reason for their common recognition.

In a case such as the present one, though, the women about whom the comments were made appeared on the show fully expecting to discuss those issues and not others from which they were distracted by the host.  Where such comments have been problematic in past decisions, it has been because of the forcing of the discussion into areas neither anticipated nor desired by the women in question.  In the view of the Panel, none of the comments noted above exceeded the bounds of taste in the case of the July 11 broadcast.  They are consequently left to the listener's discretion to listen to or turn off.

The question of the degrading comments of the July 12 episode are another matter.  Notwithstanding the broadcaster's attempt to justify the comments on the grounds that “they were meant to be a joke on just how far people will go to come on the show,” the comments have, in the view of the Panel, gone too far.  The cumulative effect of the suggestions that the Playmate smell underwear, be rolled up naked in a rug and forced to ride in an elevator, eat a carrot in Stern's lap while she is naked and eat food out of a dog dish while naked is demeaning and degrading in the extreme.  Even Robin Quivers, Stern's co-host, asked “What is it about humiliating women that excites you so much?”  Stern went on to say, “This is the coolest job in America where you can actually make calls like this and, you know, maybe get away with it.”  It is the view of this Panel that the comments in question are in breach of Clause 4 of the Sex-Role Portrayal Code and cannot be “gotten away with” on Canadian airwaves.

The CBSC has been called upon to evaluate radio talk show hosts' treatment of their callers on several occasions.  In doing so, the various Panels have been extremely conscious of the disproportionate power wielded by those with the electronic platform.  In one of these instances, namely, CKAC-AM re The Gilles Proulx Show (CBSC Decision 94/95-0136, December 6, 1995), a listener had sent two letters commenting on the treatment of listeners and the use of the French language by one of the station's well-known talk show hosts. The host responded defensively, bitterly and sarcastically.  Using the power the letter-writer did not have at her disposal, he quoted from the letter on air, gratuitously adding the listener's full name and home city more than once, along with several unacceptable comments including:

Why don't you get a job, you idiot, and if you don't like it and have nothing better to do than write letters, at least send me a photograph, so I could put it on my dartboard.  You must be as ugly as sin.

The Quebec Panel found a breach of both the Sex-Role Portrayal Code and the CAB Code of Ethics.

In exclaiming, for instance, that she was a “petite niaiseuse” (dumb broad), “needs a good lay”, “as ugly as sin,” and “an idiot.” Proulx was aggressively abusive toward this female listener.  The Council believes, furthermore, that this language constituted “negative or degrading comments on the role and nature of women” in clear breach of the provisions of Clause 4 of the Sex-Role Portrayal Code.

Galganov in the Morning (97/97-0509), the Quebec Regional Panel was again called upon to rule on crude comments made by a defensive and aggressive host with respect to a letter-writer.  They held:

In this case, …  the Council must deal, not with general comments directed at an ideological group, but with strong criticism directed at a specific, identified individual who does not benefit from the same access to the airwaves.  The Council is of the opinion that the considerable power generated by the broadcast medium dictates that the person entrusted to wield this power will not abuse it by using it against relatively “defenceless” individuals.

The Council recognizes fully that critical comments can be made about individuals, particularly those in public life but also, in appropriate circumstances which it need not plumb here, with respect to private individuals.  The question for the Council will always be the weighing of the statement and the circumstances.  At its most basic level, the fairness requirement set out in the third paragraph of Clause 6 of the CAB Code of Ethics dictates that a balance must be struck between the type and extent of the criticism of an individual and the appropriateness or merit of any such criticism when measured against the individual's criticized actions or behaviour.  Propriety, a second requirement found in the same paragraph, dictates that the public airwaves will not be used for irrelevant or gratuitous personal attacks on individuals.  The Council considers that Howard Galganov's show broadcast on December 9, failed on both these counts.

In the matter at hand, the attack was on a caller rather than a writer; however, given the overwhelming power of a host with a microphone on his own territory, she could not be said to have any effective opportunity to defend herself.  Moreover, what concerns this Panel most in the matter at hand is the fact that the comments made by Stern in this case are generically so similar to those strongly condemned by the same Panel in the first CILQ-FM decision on the Stern Show.  On that occasion, the Panel observed that “Stern consistently uses degrading and irrelevant commentary in dealing either with guests or callers.”  In this case, the caller, identified by Stern as Puerto Rican, had phoned in to exclaim her disapproval of the Playmate dialogue.  Stern reacted, among other things, by suggesting that the caller “eat a taco out of [his] crotch”,calling her a “big fat cow”, then a “fat, ugly girl who can't get squat”, suggesting she had a mustache, accusing her of living in an apartment with cockroaches and so on.  In the earlier decision the Panel said:

This sort of adolescent humour may work for some in private venues but it is thoroughly in breach of Canadian codified broadcast standards.  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.

To this the current Panel adds its concern that the comments of the host are both racist and sexist.  These comments are not borderline.  They are extreme.  They have no place on the airwaves in this country.  They constitute at once a breach of Clauses 2 and 6, paragraph 3, of the CAB Code of Ethics and of Clause 4 of the CAB Sex-Role Portrayal Code.

The Broadcaster's Failure to Avoid Repetitive Breaches

The Panel is well aware of the fact that the Stern program is on the air every weekday and that the show runs at least four hours on each of those days.  There is, in other words, considerable material flowing out of the New York studio where the show originates and out of the Toronto radio station to which it is transmitted.  The CBSC also receives, on a daily basis, the edit logs which indicate just what and how much dialogue is excised by CILQ-FM's Producer in order to ensure that Canadian broadcast standards are met day in day out. The Panel does not doubt the good faith, skill and rapid judgment brought to this difficult task.  That being said, MediaWatch, the other complainant, and those who may hear the show without exercising their right to complain are entitled to expect that such glaring breaches as have occurred on the dates which are the subject of this decision shall not occur at all.  The degrading segment on July 12 and its aftermath ought not to have come to air in Canada.

The CBSC does, however, take into account the fact that new corporate owners assumed management of the broadcaster on July 6, 2000, in other words, two business days prior to the dates of the challenged broadcasts.  Moreover, the CBSC is well aware of additional collaborative efforts taken by the new management from its earliest days in control of CILQ-FM to work with the CBSC to ensure compliance with its Codes and processes.  The result of this has been that only two complaints relating to specific offensive material in episodes of the Howard Stern Show have been sent to the Council since that time, both of which have been resolved as the result of broadcaster dialogue with the complainants.  While this has been a very promising sign, in the circumstances, in addition to the required announcements of the decision, the Panel requires the broadcaster to provide a written explanation of those further steps which it has taken since the filing of the complaints dealt with in this decision as well as those additional steps which it will be putting in place to ensure that even such rare gaps as have occurred on July 12 will not recur.

In the case of every complaint, the broadcaster involved is required to provide a written response to the complainant(s) within 21 days (formerly 14 days).  Since the dialogue between the broadcaster and the complainant(s) is so important to the complaints process, the CBSC Panels review, in each decision, the quality of that reply.  Although the CBSC recognizes the hard work and thoughtfulness, as well as time consumption, which go into this process, it considers that it is reassuring for those members of the audience who have taken the time to sit and write down their concerns to know that they will be dealt with in such a fashion.  The initial letters and, as in the case of the first complainant in this file, the detailed (and unhappy) second letter equally constitute an investment of time and energy on the part of the public.

In this case, the Panel was as disappointed as the first complainant at the rather nondescript reply to his initial letter; however, it considers it appropriate to observe that the thoroughness and care of the letter sent by the Program Director (considerably aided by the show's Toronto Producer) in response to the MediaWatch letter were exceptional.

CONTENT OF THE ANNOUNCEMENT OF THE DECISION

CILQ-FM 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 Howard Stern Show; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainants who filed the Ruling Requests; and 3) 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 CILQ-FM.

The Canadian Broadcast Standards Council has found that CILQ-FM's broadcast of the Howard Stern Show of July 12, 2000 was in breach of the CAB Code of Ethics and the Sex-Role Portrayal Code. By making demeaning and degrading comments about a potential guest on the show, the broadcaster was in breach of Clause 4 of the Sex-RolePortrayal Code.  By broadcasting racist and sexist remarks about a caller to the July 12 show, CILQ-FM breached the human rights provision of the CAB Code of Ethics, as well as the requirement of that Code that the expression of opinion and comment be fair and proper and Clause 4 of the Sex-Role Portrayal Code.

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