Comedy Network re Open Mike with Mike Bullard (Leah Pinsent film)

NATIONAL SPECIALTY SERVICES PANEL
(CBSC Decision 99/00-0482)
R. Cohen (Chair), P. O'Neill (Vice-Chair), S. Crawford, M. Hogarth, E. Holmes,H. Pawley, S. Teicher

THE FACTS

During the course of the March 17, 2000 broadcast of the Open Mike with Mike Bullardshow on the Comedy Network, the host’s interview with actress Leah Pinsent led to adiscussion about the release of Ms. Pinsent’s latest movie, in which she plays aserial killer who preys on paedophiles. During that discussion, the following dialoguetook place:

Leah Pinsent: Serial killer. I kill paedophiles [laughs and gives the “twothumbs-up”].

Mike Bullard: You kill paedophiles!

Leah Pinsent: Yeah. I felt completely justified.

Mike Bullard: I don’t see any harm in that.

Leah Pinsent: I didn’t either.

Mike Bullard: [Laughing] I think it’s a public service [then shakes her hand].

On April 12, a viewer sent a letter of complaint to the CRTC, which was forwarded tothe CBSC in the normal course. It stated, in part, that he considered Mike Bullard’scomment regarding paedophiles to be “a very inappropriate comment – derogative [sic],prejudice [sic] and inhumane”. Further, the complainant stated: “I do notcondone paedophilia, nor do I condone killing anyone who may be afflicted with any suchtendencies.” The full text of this complaint and the broadcaster’s response areprovided in the Appendix to this decision. TheVice-President of Programming and General Manager of The Comedy Network replied in thefollowing terms:

First, we regret that you were offended by Mr. Bullard’s commentconcerning paedophiles. Mike Bullard’s approach to comedy is to poke fun at theheadlines and newsmakers of the day, and to him all topics represent potential material,despite possible controversy. While we appreciate that the subject matter is one of aserious and sensitive nature, his remark was not meant to be a commentary or socialstatement on the issue, but only a comedic response to one of his guests when sheindicated that she was playing a role in a movie which involved the killing ofpaedophiles. I agree that perhaps Mr. Bullard could have said something different but hiscomments on his shows are largely spontaneous – not scripted – and this was a spontaneouscomedic remark consistent with his approach to comedy.

The viewer was unsatisfied with this response, and requested on April 25 that the CBSCrefer the matter for adjudication by the appropriate Adjudicating Panel.

THE DECISION

The CBSCs National Specialty ServicesPanel considered the complaint under the Canadian Association of Broadcasters’ (CAB)Code of Ethics. The relevant provisions of the Code read as follows:

Code of Ethics, Clause 2 (Human Rights)

Recognizing that every person has a right to fulland equal recognition and to enjoy certain fundamental rights and freedoms, broadcastersshall endeavour 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, marital status or physical or mentalhandicap.

Code of Ethics, Clause 6, Paragraph 3

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

The National Panel Adjudicators viewed a tape of the program in question and reviewedall of the correspondence. The Panel does not consider that the challenged episode of OpenMike with Mike Bullard breaches either of the foregoing Code provisions.

The Panel does not suggest that the complainant has proposed or alleged thatpaedophiles are entitled to protection against abusively discriminatory comments under thehuman rights provision of the Code; however, it considers that a brief discussion of thispoint is appropriate. Since it is obvious that paedophiles as a group are not anticipatedby Clause 2, the question is whether one might argue that they ought to be protectedagainst discriminatory comments made on the basis of their “mental handicap”.The Panel does not think that the codifiers had such a prospect in mind. The term”mental handicap” cannot, in the view of the Panel, be used to protect those whocommit crimes against society from commentary related to those sociopathic activities. Thepurpose of the human rights provision is to protect those who may be subject to abusivelydiscriminatory comment made as a function of who they are by reason of: 1) innatecharacteristics, such as their gender, the colour of their skin, their nationality, theirethnicity, their age, or a physical or mental disability; or 2) other characteristicswhich are changeable only at great personal cost, such as their religious affiliation ortheir marital status. The protection is not accorded to persons by reason of whatthey do, even where such activities or actions are lawful. It will no more be applied toprotect comments made regarding those whose activities or actions are unlawful, even wherethe reason for such unlawful acts may be a mental illness.

It remains for the Panel to consider whether the commentary falls afoul of therequirement that the expression of opinion, editorial or comment be “full, fair andproper”. Such comments would likely be in breach of the provision if they couldreasonably be understood as being an incitement to violence.

In many ways, the Panel considers this matter similar to CKAC re an episode of theGilles Proulx Show (CBSC Decision 98/99-1108, February 21, 2000), in which the host”advocated” the dropping of an atomic or a neutron bomb on the home of thehost’s radio arch-rival André Arthur. After reviewing the CBSC’s jurisprudenceon the use of sarcasm to deal with such situations, the Quebec Regional Panel said:

The Council does not for a moment believe thatthere was any intention on the part of the host to advocate violence. In a way, itsconclusion is simplified by the exaggerated nature of the host’s “violent”suggestion. Had it been a realistic suggestion, it might have beenreasonable for the Council to conclude that the host had in fact been advocating acriminal act; however, the utter absurdity of the “suggested” use of nuclear orneutron bombs, which are obviously inaccessible weapons, makes it clear that this issimply a hyperbolic device used as a part of the well-known rivalry between the two Quebecradio hosts.

In another matter in which the “proposed” level of violence was lessfar-fetched, namely, CIQC-AM re Galganov in the Morning (CBSC Decision, 97/98-0473,August 14, 1998), the Quebec Regional Panel had to rule on the comment “we have to… beat the crap out of all these … crapheads” spoken by host Howard Galganov,well-known activist, anti-separatist campaigner and advocate for the rights of AnglophoneQuebeckers. Despite the fact that one might reasonably conclude that such acts of violencewere more plausible in nature, the Panel did not conclude that the host, in making thestatement, had seriously advocated violence against whoever he considered to be the”crapheads” at the time. The Panel stated:

Leaving aside for the moment the issue of vulgarlanguage …, the Council does not find the statement “we have to … beat the crapout of all these … crapheads” to be in breach of the fairness requirement of theCode. The Council does not view this statement as “[translation] a call toviolence”, as contended by the complainant. While the meaning sought to be conveyedby Mr. Galganov in making this pronouncement is ambiguous, to say the least, the Councildoes not consider this isolated comment to be more than an unpleasant, tasteless, juvenilecomment, but not a genuine pre-meditated attempt to encourage the commission of a criminaloffence.

The Council considers this example to be analogous, to some extent, to the statementsdealt with in CIWW-AM re the Geoff Franklin Show (CBSC Decision 92/93-0181, October26, 1993). In that case, the Ontario Regional Council also dealt with an allegation thatthe host of an open-line radio show was advocating violence. In that case, the host hadresponded to a case of animal cruelty by encouraging callers to suggest methods of”getting even” with the perpetrator of the crime. The Council did not find anybreach of a Code.

It determined that the host had, as a dog-lover himself, been motivated by anger inmarshalling the listeners’ calls but that he had not ever meant to be taken as aserious advocate of criminal activities. In the result, it considered Mr. Franklin’scomments to be in poor taste but not constituting a breach of any of the provisions of theCode of Ethics.

Similarly, in this case, the Panel finds that Mike Bullard was trying to be funny andcould not reasonably be understood to be seriously advocating violence againstpaedophiles. Any such suggestion is, in fact, a further step away from reality when oneconsiders that the statement was made with reference to a film rather than afactual circumstance. The film which, like most other such cinematic endeavours, requiresthe willing suspension of disbelief, was the source of the dramatic concept which, onemight imagine (without having seen the film), posits that the serial killing (customarilyviewed as an antisocial activity) might be morally justifiable where juxtaposedwith paedophiles as victims. Such dramatic tension would not be unlike that created by theJohn Grisham book (and film) A Time to Kill, to name but a single example of asympathetic killer and unsympathetic victims. The host carries that dramatic proposition asmall step further by making light of the idea. The dialogue between the host and guest isa flippant look at the moral dilemma posed by the dramatic thesis of the film itself, amatter wholly outside of their own creation.

While being comedic is not an absolute defence to comments made in breach of one of thebroadcaster Codes, the Ontario Regional Panel has said that it is reasonable to draw adistinction between a broadcast which is intended to be taken seriously and one which isnot. Thus, in CHUM-FM re Sunday Funnies (CBSC Decision 95/96-0064, March 26, 1996),the Panel held,

There is an essential distinction to be drawnbetween the serious and humorous dialogue. Each has its content limitations but whatthose limitations are will vary according to the nature of the broadcast inquestion.

The Council believes that it is essential to draw a distinction between a broadcastwhich is intended to be serious or at least leaves the impression that it intendsto be serious and one which clearly does not. It is not that the standard tobe applied to the potentially offending statement will be different. It is rather thequestion of audience perception. The Brian Henderson and Dick Smyth commentaries founderedon that rock.

The situation is different where the context is clearly comedic. After all, where theaudience is given no reason to expect that the substance of the comments made is serious,their attitude could reasonably be expected to be different. A remark which mightreasonably be assessed as abusive in a serious context and thus in breach of the Codeof Ethics may not be so viewed in the comedic environment.

The National Specialty Services Panel finds that there was noserious intention to advocate violence by the host and his guest. The Panel considersthat, at worst, Mike Bullard’s comments may be taken to be in bad taste, which, asthe CBSC Panels have always said, is a matter to be regulated by the viewer’s use ofthe on/off switch. The CBSC’s sanctions are reserved for the more serious breaches ofCanada’s private broadcasters’ own Codes and standards. Taste, by itself, is amarketplace issue.

In addition to assessing the relevance of the Codes to the complaint, the CBSC alwaysassesses the responsiveness of the broadcaster to the substance of the complaint.In this case, the Council considers that the broadcaster’s response addressed theissues raised by the complainant in a detailed and personalized way. The response wasthorough and touched on relevant issues although the outcome was not to the liking of thecomplainant. That is necessarily the case, it should be remembered, on every occasion whena CBSC Panel is called upon to adjudicate a matter. There would otherwise be no reason forthe adjudication. In any event, the Vice President and General Manager of the service hasprovided a thorough reply. Consequently, the broadcaster has not breached theCouncil’s standard of responsiveness. Nothing more is required.