CJOB re the “Adler on Line” and “Afternoons with Larry Updike” Talk Showse

PRAIRIE REGIONAL COUNCIL
(CBSC Decision 99/00-0092)
S. Hall (Chair), D. Braun (Vice-Chair), D. Dobbie, V. Dubois,R. Gallagher and D. Ish

THE FACTS

During several days of CJOB (Winnipeg)’s broadcasts of the Adleron Line talk show, hosted by Charles Adler, and Afternoons with Larry Updike,hosted by Larry Updike, on April 6, 7 and 8, 1999, comments were made by the hosts andcallers relating to the role of First Nations representatives in a demonstration at theManitoba Legislature as well as to more general issues relating to the First Nations.While some of these comments are reproduced later in this decision, more detailedtranscripts of all of the episodes in question may be found in Appendix A attached hereto.

On September 30, the Grand Chief of the Assembly of Manitoba Chiefsfiled a complaint with the CRTC, which forwarded it to the CBSC in due course, relating tothe three episodes of the shows mentioned above. While the complaint was filed well afterthe period of time during which broadcasters are required to retain logger tapes,fortunately, a totally separate complaint of April 13 (from another individual) withrespect to the April 6 and 7 shows had been filed and, although that complaint never movedforward in the CBSC’s adjudication process due to the fact that the complainant inthat file never returned the “Ruling Request” form, the CBSC had requested theretention of those logger tapes, which remained available to the Council as a part of theadjudication in this case. In addition, although there is only a small part of theApril 8 episode which is contentious, the complainant himself provided a transcript of theshow (prepared by a third party transcript service) on which all the parties have beenprepared to rely.

In his letter of complaint, which is reproduced in full in Appendix B here to, the Grand Chief referred to Section3(b) of the Radio Regulations, 1986, which reads: A licensee shall not broadcast

(b) any abusive comment that, when taken in context, tends to or islikely to expose an individual or a group or class of individuals to hatred or contempt onthe basis of race, national or ethnic origin, colour, sex, sexual orientation, age ormental or physical disability.

He added that freedom of expression “is not absolute” andproceeded to detail examples in which he alleged that statements promoting hatred had beenmade on the three shows in violation of that Regulation.

CJOB’s News and Program Director responded to the Grand Chiefon November 15. While the full text of his letter is also provided in Appendix B hereto,and individual responses to specific points raised by the complainant are also referred tolater in this decision, a few of his general points are appropriate to note here.

Let me assure you at the outset that CJOB in no way fosters hatred,prejudice, ill will or contempt. Nor does CJOB attempt to deliberately turn a listeningaudience against First Nations people, specifically the Chiefs of Manitoba. CJOB allowsfor fair public comments, learned opinions, and the reporting of the facts. You may or maynot agree on the seriousness of the event which occurred on April 6 with a large group ofpeople breaching security measures at Manitoba’s Legislative Buildings.

Sir, I strongly suggest that the demonstration itself goes muchfurther in promoting the ill will, the prejudice, the contempt, that you so easily blameupon CJOB. We, here at CJOB, take great pains to assure that our news is delivered in anethical, responsible manner with the facts verified. Our open line talk show hosts areCJOB’s editorial columnists, where they have the right to voice opinion and offerlearned comment. CJOB allows the listening public their right for freedom of speech and toalso offer comment and opinion on the daily occurrences that affect their lives and theircommunities.

Mr. …, I hope this letter addresses most of your concerns. As youknow, CJOB has offered on numerous occasions the opportunity for you to address Aboriginalissues. Sometimes you respond to our requests but most of the time, such calls are rarelyreturned form the Assembly of Manitoba Chiefs.

Any time that you, or any of the Chiefs of The Assembly, feel theyhave been misrepresented or false information is being disseminated, then the opportunityis always offered for the Chiefs to air clarification or verification of the facts beingreported.

The complainant was unsatisfied with this response and requested, onNovember 19, that the CBSC refer the matter to the appropriate Regional Council foradjudication.

THE DECISION

The CBSC's Prairie Regional Council considered the complaint underClauses 2 and 6, paragraph 3, of the Code of Ethics of the Canadian Association ofBroadcasters (CAB), which read in pertinent part as follows:

CAB Code of Ethics, Clause 2

Recognizing that every person has a right to full and equalrecognition and to enjoy certain fundamental rights and freedoms, broadcasters shallendeavour to ensure, to the best of their ability, that their programming contains noabusive or discriminatory material or comment which is based on matters of race, nationalor ethnic origin, colour, religion, age, sex, [sexual orientation], marital status orphysical or mental handicap.

CAB Code of Ethics, Clause 6(3) It is recognized that the full, fair and proper presentation ofnews, opinion, comment and editorial is the prime and fundamental responsibility of thebroadcast publisher.

The Regional Council members listened to tapes of the programs ofApril 6 and 7 and reviewed the transcript of the program of April 8 as well as all of thecorrespondence. The Council is of the view that the program is not in breach of either ofthe Code provisions noted above.

The Essence of the Complaint

It is of the essence of the Grand Chief’s complaint that theaccumulated effect of the statements made on the shows in question, if not the individualstatements, amounts to abusively discriminatory comment on the basis of race, national orethnic origin, the CAB Code of Ethics’ equivalent to “incitement tohatred or contempt” under the Radio Regulations.

The CBSC, through its jurisprudence, has developed three differentways of assessing abusively discriminatory comment. The first of these is reflected in thedecision in CKTB-AM re the John Michael Show (CBSC Decision 92/93-0170, February15, 1994), which dealt with a collection of misstatements relating to French-Canadians andthe Government of Canada made on a St. Catharines radio station talk show. In that case,on the general principle, the Ontario Regional Council said:

The CBSC is conscious of the importance of free debate and theentitlement of a host to express politically contentious points of view on air. Thatliberty does not, however, extend to the expression of gross and multiple misstatements offact which are calculated to distort the perspective of the listener.

The Council then dealt directly with the misstatements themselvesand concluded that they were in breach of both provisions of the CAB Code of Ethicswhich are at play in the present decision.

The CBSC does, however, not believe that the public debate in Canadais furthered in any way by the broadcast of such accumulated misinformation as was emittedby Mr. Michael on June 1. To provide an inexhaustive list of such misinformation, it isnot true, as Mr. Michael alleged, that: Canada alternates Prime Ministers fromEnglish-speaking Canada to French-speaking Canada; all of Canada's government buildingsare in Quebec; Canada's civil service is all in Quebec; this country's headquarters is notin reality in Ottawa; English is not spoken in Cabinet meetings (much less that itis not spoken “in the inner circles of the [other] governments of thiscountry”); ninety per cent of Cabinet Ministers are French-Canadians; ambassadors ofCanada going abroad do not speak English; ambassadors to “important” countriesare always French-Canadian; and so on.

It is the view of the Council that accumulated misinformation, andcollective unresearched and inaccurate statements constitute a breach of high standardunder the Broadcasting Act and a breach of the responsibility of the broadcaster toensure the “full, fair and proper presentation of news, opinion, comment andeditorial” as required by Clause 6(3) of the CAB Code of Ethics. The Councilfurther considers that the goal of the host was to use this misinformation to conduct anattack on a group, which constitutes a further breach of Clause 2 of the CAB Code ofEthics.

A second approach to a series of statements was taken by the Ontarioand Atlantic Regional Councils in CFYI-AM and CJCH-AM re the Dr. Laura SchlessingerShow (CBSC Decisions 99/00-0005 and 98/99-0808, 1003 and 1137, February 9 and, 2000).In that case, the Council found reason to accept that only one or some of thegenres of statements made by the hosts were unjustifiable pursuant to broadcast standards.

Finally, CFUN-AM re The Pia Shandel Show (Native Land Claims) (CBSC Decision 98/99-0147, October 14, 1999) exemplifies a third way in which the CBSC hasconsidered a complaint of abusively discriminatory comment. In that decision, the B.C.Regional Council concluded that none of the statements, even when considered individually,constituted a breach.

In this case, the Council considers it appropriate to adopt,organizationally at least, the approach of the Ontario and Atlantic Regional Councils indealing with complaints concerning the Dr. Laura Schlessinger Show. Accordingly,the Council has grouped the principal statements complained of by genre of issue, ratherthan by date, since some of the issues repeat themselves over the three days at issue. Onthis basis, the Council would categorize the issues as follows: allegations regarding theviolent nature of the Chiefs, allegations relating to the instigation of the actions atthe Legislature, allegations relating to the use of pepper spray by the police,allegations relating to the inappropriate dealing with money by the Chiefs and other Bandmembers, allegations relating to the governing of the Chiefs and, in general, togovernment on the reserves. The Council will deal with each of these issues under aseparate heading.

The Allegations of Violence

Regarding the first of the issues, namely, the allegations ofviolence on the part of the Chiefs, the Grand Chief has alleged that one of the hostsstated that “you will ‘get a bullet’ if you engage in any form ofinvestigation [emphasis added].” He states that “[i]n essence, Mr. Adler isstating that First Nation Chiefs will engage in lawless activity and depicts Chiefs asbeing criminals, murderers, and killers.”

In fact, the transcript of the April 8 show provided by the GrandChief indicates that the wording was

And my … feeling on this is that, a lot of media people want tostay away from the subject. I mean, look, if you investigate the chances of Tories andReformers getting together, regardless of what you write, nobody’s going to accuseyou of being a bigot. Nobody’s going to accuse [you?] of being a racist. And nobodyfrankly is going to threaten your life. But, if you want to get down deep into the bowelsof the politics of reserves, who’s running the show, where’s the money going,what about responsibility, accountability, are people being intimidated… That’s thekind of stuff that might get you an award in journalism, on the other hand, it mightget you a bullet… [Emphasis added.]

While it cannot be denied that the host’s language wasprovocative, it differed meaningfully from what the Grand Chief had alleged, namely, that”you will get a bullet” and one can reasonably conclude, as does theCouncil, that the statement is exaggerated and is hardly to be taken literally. At least,there is nothing else in the programs reviewed which suggests that the hosts arealleging such a violent approach on the part of either the Chiefs or the Bands.

As to the allegation concerning the Larry Updike Show, namely that “Larry Updike allowed a caller named ‘John’ to state that we‘have to use deadly force’ against the First Nations demonstrators.” Thehost appears to ignore it as a serious suggestion in this case. He clearly does notdeal with the issue of violence in a way even remotely related to the suggestion of theGrand Chief. In fact, the exchange was as follows:

John: … You want to put a point across, do it legally andwithout violence. I mean, they start doing that, you got to use deadly force. That’sthe only way you can stop this group. If you’ve ever been involved in a riot, and Ihave, and I know what it’s like, it can be deadly.

I was caught unwittingly in the middle of theVancouver riot, and watched a man fall to his death.

John: Yes, yes.

There is no reason to attribute to the broadcaster the assumptionthat this was a call to actually employ such methods against the Indians. In fact,Rick, the immediately preceding caller, suggested that the action be taken in a judicialforum, when he said “I hope the Court just lay the lumber at these clowns.” Allin all, the Council finds the issue of violence both by and against the Chiefs to beexaggerated, isolated and overstated in the complaint.

The Question of Instigation or Incitement

Regarding the second issue, the complainantalleges that “Caroline Siefert states that one Chief, Chief Stevenson,‘instigated a riot’. It is totally irresponsible for a reporter to makestatements like that. Adler states that the Chiefs have a conspiracy.” It appears tothe Council that the Chief is not denying the reporter’s statement so much as he isreferring to the fact that it is “irresponsible” for a reporter to make suchstatements. Here again it does not appear that the words used by the reporter included”instigate”, although she did say that “Chief Louis Stevenson was talkingto this 500, about 500 native members [and he then said] ‘We have a right to be inthere; let’s go.’” In fact, parenthetically, the Council has found a coupleof occasions on which Carolyn Siefert, the reporter, appears to have been expressing herown opinion (without so identifying it), rather than strictly reporting the news (as when,on April 6, she said that “it was just absolutely ludicrous the way they ranto the Legislature demanding to get in” and “I mean, the public was not invited;why should they have the right to go in?”). The News and Program Director’sresponse does, however, reiterate the reporter’s position that she

saw and heard Chief Louis Stevenson when he stood in front of thelegislature demanding that they had every right to enter the building and he ordered thepeople to go inside.

While it is a fine line as to whether or not the reporter was in effect saying that Chief Louis Stevenson had instigated the action, much of thediscussion during the programs in question related to who had the right to access theLegislature for the reading of the Throne Speech and in what circumstances. It isabsolutely clear that native representatives were agitating to enter the Legislature andthat some did so. Nor does the issue relate to whether they did or did not genuinelybelieve that they had the right to be there. There may be more than one side to thatdiscussion. The question for the Council is to determine whether the use of suchterminology was inappropriate. On this point, the Council does not agree with thecomplainant. Apart from the small lapses noted above between news reporting and theexpression of opinion (which do not go to the allegations of human rights violations), thereporter’s statements relating to the motivation and instigation of the disturbancedo not appear to be improper.

The Use of Pepper Spray

The whole question of the use of pepper spray may involve suchfactual elements that the Council could not possibly be expected to know for a certaintywhat transpired; however, there is not necessarily any discrepancy between thereporter’s allegation and the Grand Chief’s complaint. The Grand Chief statesthat

In listening to this tape, it is clear that Carolyn Siefert, areporter for CJOB has misled the public by stating facts that are indeed not factual anderroneous. She went on to say that pepper spray was not used directly at the demonstratorswhich is a complete falsehood. Demonstrators were hospitalized for being pepper sprayed inthe eyes.

The News and Program Director’s letter states, in giving thereporter’s explanation in writing,

I witnessed the police shooting the pepper spray at the ceilingabove the demonstrators and the resulting mist falling down upon the protesters resultingin the eye irritations.

And during the show of April 6, Larry Updike’s dialogue withone of the reporters on the scene went as follows:

Larry: Now, the reports of the use of pepper spray may bemisconstrued out there because people can hear something or be in on the way and hearpepper spray and then go “Oh, my God” [sic], but the truth of the matter iswhile pepper spray was utilized, it was not sprayed on anybody directly. Can you confirm?

Chuck: Yeah, that’s one of the things that has confirmedas well. I noticed the pepper spray when they were coming up the stairs because whathappened is that the Premier was supposed to give a press conference at 12:30. That wasdelayed. All the media was [sic] downstairs waiting. Then, all of a sudden, we could hearsomething was going on upstairs. Everyone rushed upstairs. The Premier didn’t talk,in fact. But what the pepper spray, what happened is, the crowd was getting so unruly,they were crawling over top of the security guards, they were crawling over the guys inriot gear and getting on to the floor. It was a tug-of-war between the two sides, pushingthrough. You’ve got to imagine these doors. It’s just two doors, the normal sizeyou might have in your house. Maybe three, three-and-a-half feet wide. So there’s nota lot of room for people to get through. (…) So, what happened was, they pepper-sprayedup into the air, just so it would get into the air and be more of a deterrent. It ended upbeing a lot of a deterrent to the media who were behind the police. We got a good brunt ofit because it would come back in from the wind blowing in. So I don’t know how muchactually got outside, but a lot did get inside.

Larry: So it did its job essentially. Chuck Exactly. The pepper spray wasn’t intended to …[I]t wasn’t sprayed directly into the eyes of the protestors.

The point is, in any event, a small one. After all, pepper spray isacknowledged to have been used. Whether initially on a horizontal or a vertical plane canhardly be said to be a determinative issue in the greater scheme of abusivelydiscriminatory or improper comment.

The Use of Money by Chiefs and on Reserves

The Grand Chief’s allegations regarding the use of money byChiefs and on Reserves included the following:

Larry Updike allowed a caller by the name of “Norm” tostate that millions of dollars are being squandered by the Chiefs”.

[A] caller named John states that Chiefs are embezzling money. Adler allows one caller by the name of “Craig” to statethat First Nation people don’t want to work and only want money.

From the Council’s perspective, any discussion of this issueconstituted a strict question of political opinion. In the following commentary of one ofthe callers, for example, the question of the large sums which had been provided to thenative population was raised in the following way.

John: This topic really makes my blood boil, Larry, becauseyour second to last caller said he wanted respect for his people, but I remember readingan article in the paper a little while ago where his own chief (…) taking money,embezzling money from his own people and walking off with it. And now they want respectfrom us. Take a look at themselves. How much money have we as a nation given to the nativepeople? (…) It’s time to say “Hey, stand up on your own feet and supportyourself; we’re not going to give you any more money.” What do they think aboutthat? He wants respect. Well, how about we cut off all the money we’ve been givingthem? We’re giving millions and millions of dollars every year to them, and then theywant more and want respect and break our laws and think it’s not good enough. It justmakes my blood boil.

Another exchange provided a different perspective on this veryissue.

Jeff: If you were an aboriginal and your people in thiscountry were treated unfairly, let’s just say unfairly, I don’t want to delveinto all the specific issues , but let’s just say unfairly for hundreds of years, andyou found out that the Canadian government was ready to bring over 5,000 refugees from acountry thousands of miles away and were prepared to spend in excess of $100 million tobring these people here for 6 months, short-term stay, six months, what would you thinkabout that, if they had $100 million to drop at the drop of a hat, but they weren’tready to help you with housing and jobs and the other problems you have.

: I’ll try to answer it on a couple of fronts.Number one, it’s a hypothetical question that I can’t answer, so I’llspeculate with you. My recollection is that in the last year the federal government made aformal apology for their treatment the aboriginal people to the tune of $750 million, thaton top of the millions and millions that go unaccounted for. That is one of the problems– accountability among some of the aboriginal leadership itself and I’m hearingthat from aboriginal people.

The point is that the use and accountability regarding money is assubject to the expression of opinion in the case of the native population as it is, forexample, in the case of criticism of Government misspending, so recently the subject ofconsiderable publicity with respect to HRDC granting procedures.

Comments re Governing of and on the Reserves

The Grand Chief further alleged the following: Adler begins his open season on First Nations by describing them as”intellectually moribund”. This is augmented with a host of negative descriptiveterms used to denounce First Nation peoples, (i.e. Architects of Anarchy, etc.).

Adler makes reference to Chiefs as being dictators even though theChiefs are elected through a democratic process. He states that the Chiefs are boneheadsand are oppressing their people. … Adler again states that reserves are run like mostother dictatorships.

Adler … states that law and order does not exist on reserves andthat responsible government does not exist at reserves.

It is hardly necessary to observe that those who choose to governthe reserves are not, on account of their racial or national origin, thereby removed fromthe critical optics of the media. As the Ontario Regional Council said in CJXY-FM rethe Scott and Lori Show (CBSC Decision 96/97-0239, February 20, 1998), in analogouscircumstances, when dealing with a mild epithet hurled at a group of Southern Baptistsbased on the stance that group had taken against the Disney Studios for their support ofthe television series Ellen, in which the star had come out of the closet:

That stance by the Baptists was, in the Regional Council’sview, purely political. There is, of course, no doubt whatsoever regarding the entitlementof the Southern Baptists to hold and to express political views. The point is only that,if they choose to do so, they render themselves fair game on the public playing field ofpolitical controversy. They cannot expect that they have the right to publiclyexpress controversial political opinions and to be sheltered from the resulting falloutfrom the ideological seeds which they have sown by reason of the fact that they are a religiousgroup.

The present case is no different. Those who occupy positions ofpower on the reserves may legitimately be described, on account of the decisions whichthey make, as “boneheads” or “intellectually moribund” byopinion-holders in the media. As Charles Adler was quoted as saying in the News andProgram Director’s letter, “I have never said the ordinary native isintellectually moribund.” Had he taken that position, the attitude of thisCouncil would likely have been different. In the circumstances of these criticisms, theCouncil can only consider them fair political commentary, which is unrelated to anyone byreason of his membership in any of the identifiable minorities entitled to protectionunder Clause 2 of the CAB Code of Ethics.

The Broadcaster's Response

In addition to assessing the relevance of the Codes to thecomplaint, the CBSC always assesses the responsiveness of the broadcaster to thesubstance of the complaint. In this case, the Council considers the broadcaster’sresponse to be exemplary, reminiscent of the offer of CFOX-FM in CFOX-FM re the Larryand Willie Show (CBSC Decision 92/93-0141, August 30, 1993). In that case,representatives of the Irish community were offered the opportunity to appear on air toexplain their perspective on a week of Irish jokes broadcast in conjunction with St.Patrick’s Day. The B.C. Regional Council concluded, in this respect:

In the present case, the Regional Council considers the steps takenby the General Manager of CFOX-FM to be of a thoughtful and collaborative nature and,indeed, exemplary in the fulfilment of broadcaster responsiveness to a complainant,despite the fact that the station itself did not consider that it had acted in a racist oroffensive manner.

In this case, as is noted in the excerpt from letter of the News andProgram Director quoted above, the station had “offered on numerous occasions theopportunity for you to address Aboriginal issues” and he again extended the offer forthe future, at “[a]ny time that you, or any of the Chiefs of The Assembly, feel theyhave been misrepresented or false information is being disseminated.” Moreover, theletter was a thoughtful and full response to the complainant, apart from the additionaloffer regarding air time. Nothing more could possibly have been expected in terms of thecollaborative nature of the broadcaster’s reply. Consequently, the broadcaster hasnot breached the Council’s standard of responsiveness.

This decision is a public document upon its release by the Canadian Broadcast Standards Council. It may be reported, announced or read by the station against which the complaint had originally been made; however, in the case of a favourable decision, the station is under no obligation to announce the result.