CTV re an episode of Open Mike with Mike Bullard

NATIONAL CONVENTIONAL TELEVISION PANEL
(CBSC Decision 01/02-0783+)
R. Cohen (Chair), S. Gouin (Vice-Chair), P. O'Neill (Vice-Chair), E. Holmes and J. Levy

THE FACTS

The April 24, 2002 episode of the late night talk show Open Mike with Mike Bullard, broadcast by CTV beginning at 12:04 am, contained a number of references to Roman Catholic priests (a transcript of all the relevant comments from that episode of Open Mike can be found in Appendix A).  The first reference occurred in the host's opening monologue when he told a story about “an American rabbi, this is very strange folks, who's now accused of sexually exploiting members of his congregation. [.]  So yesterday while the Cardinals were all meeting with the Pope in Rome, the chief rabbis have been called to a hastily arranged meeting at Streisand's house.”

The second reference, which involved a set-up early in the program, was part of a conversation between Bullard and the show's resident band leader, Orin Isaacs, who asked Bullard how he had been able to deter some boys from hanging outside the studio and terrorizing guests.  The host replied that he “took care of if the best way I know how;” the camera then cut to two young actors dressed up as priests who were standing around outside the television studio.  Bullard explained the gag by saying, “I hired a couple of Catholic priests.  Good work, fellas.  Today I haven't seen a young guy within ten blocks of here.”

The actors dressed up as priests are shown again approximately 20 minutes into the program.  When a young man walked past them, the actors looked him up and down and smiled approvingly.  The third bit with “the priests” was broadcast shortly thereafter.  Bullard introduced the clip, saying, “I hear the priests are really working out there.  Let's go have another look.”  The scene then showed the two “priests” handing out candy to a young man.  Bullard reacted to the scene with the following lines:

Hey, hey, they're handing out candy!  No, no, that's not right!  Don't hand out candy!  No candy!  Man, I think these guys have an ulterior motive.  No more candy.  Pull away, pull away. Pull away.

[T]he episode of Open Mike with Mike Bullard exploited the seriously damaging Boston paedophile priest scandal and the recent Vatican meeting with the American Cardinals to heap further shame on Catholics and to defame Catholic priests.  [.]

These two actors mocking priests in public were used many times throughout the show and also prior to going to commercials to depict various scenarios.  In one scene they were “luring people in with bags of candy and lollypops”.  In another they were shown playing musical instruments for money on the same street corner.  The entire effort was in no way humorous and was disgustingly offensive.

It is beyond our comprehension how CTV could believe this to be acceptable.  This stunt was obviously conceived in malice to denigrate and reinforce an abusively discriminatory and negative stereotype of Catholic priests.

To add insult to injury, Bullard told a clergy paedophile joke during the monologue and show guest Rick Green bragged of his Catholic bashing on his “History Bites” television show and the complaints that the show had gotten to broadcast regulators.  Was his point to say how proud he was of shoving more in Catholics' faces?

[.] Why should all clergy suffer and have to be ridiculed and similarly shamed for the actions of a tiny minority, a minority scientifically proven to be no greater than any other faith group or even society at large.

This may have aired after 11pm at night, but the physical antics of those hired actors mocking the Catholic clergy were taking place on a public street in plain view of rush hour traffic before 7 pm.

The paedophile-priest stereotype, though baseless, is something that has been reinforced by humorists who came before Bullard.

We demand an immediate investigation.  An immediate apology must be forthcoming.  A public display which ridicules an identifiable group borders on a hate crime.

We strenuously urge that this program be removed from the library immediately so that in [sic] can never be rebroadcast.

First, let me say that I am very sorry that you found the episode's skits and Mr. Bullard's comments insulting and defamatory to the Catholic clergy.  It is never our intention to offend our audience.  Mike Bullard's approach to comedy is to poke fun at the headlines and newsmakers of the day, and to him all topics represent potential material, despite possible controversy.  Comedy has always drawn material from all aspects of society including politics, culture – and religion.

We appreciate that the subject matter of paedophiles in the priesthood is a serious and sensitive one currently causing Catholics great pain.  But the skits and comments on Open Mike were in no way conceived with malice to denigrate the Catholic Church nor to reinforce a negative stereotype of Catholic priests.  Rather they were simply a comic response to the news headlines of the day, not intended to be taken seriously by the audience or viewers of Open Mike.

Recognizing that 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, [sexual orientation], marital status or physical or mental handicap.

A work or composition in prose [.] which (usu. humorously) exposes prevailing vices or follies or ridicules an (esp. prominent) individual; a lampoon; a performance or broadcast of a similar nature.

Religion is not, after all, immune from farce, sarcasm or parody.  The issue to determine is whether the barb has become a poison arrow, and whether, in other words, the humoristic device has stepped over the farcical threshold and into the bitter and nasty territory of abusively discriminatory comment.  Disrespectful and even apparently harsh words may be on the safe side of that threshold despite the sensitivity of the listener of the same religious persuasion or even the listener who is sympathetically inclined.

that the humour in Dieu reçoit is undeniably irreverant, certainly impious and arguably, at times, in bad taste.  It is casual and flippant with respect to certain traditional Catholic practices, even as to the undeified appearance and nature of God.  It is not, however, in the Council's view, at any time, bitter, nasty, disdainful or hateful about Catholicism and certainly never about individuals on the basis of their religion.  Accordingly, the Council does not find that a breach of Clause 2 of the CAB Code of Ethics has occurred in this case.

In the matter before the Panel on this occasion, there are, to be sure, poor taste and that puerile elitism that finds foreign accents, particularly those coupled with halting English, invariably funny.  The comments are mocking and jeering but silly; they reflect far worse on the persons who uttered them than those who are their brunt.  They are, in the view of the Panel, unpleasant, desensitizing and unreflective of the public responsibility that those seated at the microphone ought to carry but not so hateful, demeaning or degrading as to be considered to be abusive or unduly discriminatory.

The Council has also pointed out that different considerations may well be at play when the broadcast commentary is clearly intended to be humorous.  In such circumstances, there will be a different level of audience expectation and it is entirely fair for the broadcaster to expect that it should have some leeway.  The question is, “How much is some?” or, correspondingly put, “How much is too much?”  While fraught with difficulty, this is the question which the CBSC Panels must put and to which they must, from case to case, find a reply.  Moreover, the problem is exacerbated by the likelihood, if not the certainty, that some one or more members of the affected identifiable group will be offended by the type of ethnically-pointed “humour” as is present in the case at hand.

Whether intended seriously or in jocular fashion, the use of that term in reference to this or any ethnic, racial, national or other discernible group was derogatory, abusive and discriminatory and in violation of clause 2 of the CAB Code of Ethics.

The jokesters [.] did not joke with Hindus; they laughed at Hindus; they made fun of Hindus. They demeaned and denigrated the objects of their “humour”.  This was “grit your teeth”, “cringe in discomfort” mockery; it had no cuteness or levity to offer.  It did not belong on the public airwaves of Canada.  The broadcast of this sketch constituted abusively or unduly discriminatory comment, in breach of the human rights clause of the CAB Code of Ethics.

Nor did he [the broadcaster's Vice-President] address the extremely public nature of the defamation that took place on a public intersection in a very busy area of Toronto during rush hour.  It is a pre-watershed hour visually offensive presentation which has been reported to the police.  No care was taken to protect children walking by the building from the depiction.  These men dressed as 'Catholic priests' were outside the building for more than an hour while the show was being taped for a later rebroadcast.

Why is it that anti-Catholic anti-clericalism remains so broadly acceptable and is defended by Canadian broadcast regulators.  The defense [sic] argument that [the] CBSC chair [.] uses is that Christians are the 'largest identifiable group' and is itself a Charter violation.

This may result from the case that Christianity in its broadest sense is the dominant religion in Canada, therefore, the religion best known to the population and the one which would be likeliest to be publicly parodied.  Quite simply, the parodying of less representative religions may not reach the lowest familiarity level of a broad enough segment of the population to “work” with the target audience.

It does not in the end matter why this is the case since the principles established in the various CBSC decisions on the subject would be as applicable to any religious group.  What matters ultimately relates to the clash of the right of freedom of speech and the right of broadcast audiences to be free from abusively discriminatory comment on the basis of religion, as well as other grounds enumerated in Clause 2 of the CAB Code of Ethics.

In light of some of the comments made in the complaints, the Council considers it appropriate to note that, in coming to the above conclusion, the Council has not considered the mocking of certain attitudes, traditions or practices of the Christian faith, and Catholicism in particular, as any less serious than the mocking of any other faith or religion.  [.]  Any careful review of the jurisprudence of the Canadian Broadcast Standards Council will immediately reveal that it has been as substantively protective of any religious, ethnic, linguistic, national or cultural group as any other or, when appropriate in the other direction, as willing to permit justifiable (that is, non-abusive) discriminatory comment regarding any religious, ethnic, linguistic, national or cultural group as any other.  The CBSC's issues are always treated at the underlying macro level and not at a micro level associated with any religious, ethnic, linguistic, national or cultural group.

THE DECISION

The National Conventional Television Panel considered the complaint under the human rights provision of the Canadian Association of Broadcasters’ (CAB) Code of Ethics, which reads as follows:

Recognizing that 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, [sexual orientation], marital status or physical or mental handicap.

The National Conventional Television Panel read all of the correspondence and viewed a tape of the April 24 episode of Open Mike with Mike Bullard. The Panel concludes that it does not disclose a breach of the human rights clause.

Satirical Treatment of Matters of Public Interest

As a general principle, those news issues that are reported in the written and electronic media already are or soon become matters of public interest. They may be political, civic, social, religious, economic, financial, scientific, or sports or entertainment-related, to name some only of the categories or areas that may be said to be of such a nature. In any such categories, they may also be local, provincial, national or international in scope. Some may, by their nature, be humorous, others serious or tragic. Almost all matters of public interest are subject to becoming fodder for the pen, keyboard or microphone of the social commentator or satirist.

The Panel must ask itself when, if at all, such matters of public interest should be immune from satirical observation. In Clause 7 of the CAB Code of Ethics, the “necessity of presenting all sides of a public issue” is recognized; however, there is a limitation, namely, “to treat fairly all subjects of a controversial nature. [Emphasis added.]” In Clause 2 of the CAB Code of Ethics, it is provided that neither abusive nor unduly discriminatory material “based on matters of [.] religion” shall be broadcast. This would, the Panel believes, be another limiting constraint. There may be others; however, there is no need in the circumstances of the present complaint to seek these out. In any case, whether the satirically treated subject is judged to fall on the protected or the unprotected side, the Panel understands that the individuals or groups on the receiving end of the satirical commentary are likely to feel discomfited by the exposure. That is, after all, the nature of satire. The Shorter Oxford English Dictionary defines ‘satire’ as:

A work or composition in prose [.] which (usu. humorously) exposes prevailing vices or follies or ridicules an (esp. prominent) individual; a lampoon; a performance or broadcast of a similar nature.

Whether the individual or group exposed or ridiculed has been ashamed of the activity that has given rise to the satire is not generally the concern of the humorist. Indeed, the humorist is entitled to make the comments, subject to the limits noted immediately above, as he or she is the beneficiary of the principle of freedom of expression in his or her satirizing.

The foregoing being said, this Panel does agree with the President of the CCRL when he states that the “comedic defense [sic] is not absolute!” The comedic defence will not override the breach of a specific code provision (such as those cited above). The question in every case is whether or not the comedic commentary has done so.

The Application of the Principles of Satire to the Matter at Hand

It thus remains for the Panel to examine the broadcast of April 24 in the light of the foregoing observations. In so doing, it should be noted that, in the view of the Panel, satire is not per se unfair. This is especially true when, as in this case (to use the words of another CBSC decision, namely, CHFI-FM re the Don Daynard Show (CBSC Decision 94/95-0145, March 26, 1996), “It poked fun but did not bludgeon. It tickled but was not nasty.” Clearly, the complainants were offended by the satire, as were the complainants about the Jewish joke in the CHFI-FM decision, the Polish jokes in CHUM-FM re Sunday Funnies (CBSC Decision 95/96-0064, March 26, 1996) and the Irish jokes in CFOX-FM re the Larry and Willie Show (CBSC Decision 92/93-0141, August 30, 1993). Nor should it be forgotten that the opening monologue made as much fun of the philandering rabbi and the Jewish religious hierarchy answering to Barbra Streisand as of the problems facing the the Catholic priesthood.

The various CBSC Panels have previously understood the sensitivities of the religious or national groups in the foregoing matters. Furthermore, in the case at hand, the National Conventional Television Panel disagrees with the argument of essentially all of the complainants requesting this adjudication to the effect that the reaction would have been different had the comments been directed toward other ethnic or religious groups. As one complainant put it, had “this negative portrayal [.] been directed towards African-Canadians, Protestant ministers, Jewish rabbis or Moslem imams, can you imagine the reaction of the media [.]?” As noted earlier in this paragraph, various CBSC Panels have dealt with other such groups which have been the brunt of pointed humour and they have generally sided with the broadcaster’s position. The issue is, after all, not the identity of the group but rather the nature of the comments made. Those which are light, rather than heavy, tickling rather than bludgeoning, will, even if distasteful to some (or many) pass muster. As the Ontario Panel further explained in the paragraph concerning the lightness of the humorous touch in the CHFI-FM decision, “The CBSC does not expect that the airwaves will be pure, antiseptic and flawless when society is not.” Furthermore, as the Ontario Panel explained in CFNY-FM re Humble & Fred (“Danger Boy on a Cross”) (CBSC Decision 97/98-0644, February 3, 1999),

Religion is not, after all, immune from farce, sarcasm or parody. The issue to determine is whether the barb has become a poison arrow, and whether, in other words, the humoristic device has stepped over the farcical threshold and into the bitter and nasty territory of abusively discriminatory comment. Disrespectful and even apparently harsh words may be on the safe side of that threshold despite the sensitivity of the listener of the same religious persuasion or even the listener who is sympathetically inclined.

In judging a weekly religious satirical show in TQS re Dieu reçoit (CBSC Decision 98/99-0402+, June 23, 1999), the Quebec Panel found

that the humour in Dieu reçoit is undeniably irreverant, certainly impious and arguably, at times, in bad taste. It is casual and flippant with respect to certain traditional Catholic practices, even as to the undeified appearance and nature of God. It is not, however, in the Council’s view, at any time, bitter, nasty, disdainful or hateful about Catholicism and certainly never about individuals on the basis of their religion. Accordingly, the Council does not find that a breach of Clause 2 of the CAB Code of Ethics has occurred in this case.

In CFYI-AM re Scruff Connors and John Derringer Morning Show (CBSC Decision 01/02-0279, June 7, 2002), the Ontario Regional Panel was called upon to deal with the use of accents and tasteless commentary affecting the Chinese community. Clearly uncomfortable with the unpleasantness of the “humour”, the Panel nonetheless concluded that the comments did not go so far as to exceed the protection of the principle of freedom of expression.

In the matter before the Panel on this occasion, there are, to be sure, poor taste and that puerile elitism that finds foreign accents, particularly those coupled with halting English, invariably funny. The comments are mocking and jeering but silly; they reflect far worse on the persons who uttered them than those who are their brunt. They are, in the view of the Panel, unpleasant, desensitizing and unreflective of the public responsibility that those seated at the microphone ought to carry but not so hateful, demeaning or degrading as to be considered to be abusive or unduly discriminatory.

Once again, the Panel distinguished between audience expectations in a comedic and a non-comedic environment.

The Council has also pointed out that different considerations may well be at play when the broadcast commentary is clearly intended to be humorous. In such circumstances, there will be a different level of audience expectation and it is entirely fair for the broadcaster to expect that it should have some leeway. The question is, “How much is some?” or, correspondingly put, “How much is too much?” While fraught with difficulty, this is the question which the CBSC Panels must put and to which they must, from case to case, find a reply. Moreover, the problem is exacerbated by the likelihood, if not the certainty, that some one or more members of the affected identifiable group will be offended by the type of ethnically-pointed “humour” as is present in the case at hand.

Despite that plethora of CBSC decisions supporting specific examples of the broadcast of ethnic humour, it should not be assumed that, simply, any ethnic humour will be acceptable to CBSC Panels. When it bludgeons, it will not be. When it is nasty, it will fail the test. When Newfoundlanders were described as “assholes” in CKTF-FM re Voix d’Accès (CBSC Decision 93/94-0213, December 6, 1995), it was considered seriously excessive. As the Quebec Regional Panel said,

Whether intended seriously or in jocular fashion, the use of that term in reference to this or any ethnic, racial, national or other discernible group was derogatory, abusive and discriminatory and in violation of clause 2 of the CAB Code of Ethics.

More recently, in CKTF-FM re comments made on Les méchants matins du monde (CBSC Decision 00/01-0705, April 5, 2002), the dialogue concerned the allegedly humorous but barbaric notion of hunting Hindus. Not stopping there, the comments targeted that ethnic community’s “alleged habits, practices and conventions.” The Quebec Panel concluded:

The jokesters [.] did not joke with Hindus; they laughed at Hindus; they made fun of Hindus. They demeaned and denigrated the objects of their “humour”. This was “grit your teeth”, “cringe in discomfort” mockery; it had no cuteness or levity to offer. It did not belong on the public airwaves of Canada. The broadcast of this sketch constituted abusively or unduly discriminatory comment, in breach of the human rights clause of the CAB Code of Ethics.

This Panel considers the humour in the challenged episode of Open Mike as sufficiently gently satirical (and related to a very publicly debated controversy) to be acceptable. No breach of the provision of the human rights clause of the CAB Code of Ethics is disclosed.

“Priests” on the Street

The complainant League also expresses its concern regarding the presence of the actors dressed as priests in the street. The President of the CCRL put this aspect of his complaint in the following terms:

Nor did he [the broadcaster’s Vice-President] address the extremely public nature of the defamation that took place on a public intersection in a very busy area of Toronto during rush hour. It is a pre-watershed hour visually offensive presentation which has been reported to the police. No care was taken to protect children walking by the building from the depiction. These men dressed as ‘Catholic priests’ were outside the building for more than an hour while the show was being taped for a later rebroadcast.

While there is no doubt that people passing by would, as the complainant’s President has observed, have seen the events in the street; however, there are two points to note. First, there would have been a fraction only of the people who might have seen the broadcast. Second, it is unlikely that people would have known what was going on in the absence of the accompanying on-screen dialogue. In the light of the complainant’s reference to the Watershed hour, it should be noted that, unlike sexual content and certain types of violent content broadcasts containing abusively or unduly discriminatory comment are unacceptable at any time of day; the question for the CBSC is not whether such content is acceptable (whether before or after the Watershed hour), but rather if it reaches the level of abuse that constitutes a breach of the Code. In any event, the street scene raises no broadcast issue. The CBSC has no jurisdiction to deal with the non-broadcast aspects of the complaint.

An Incidental Misunderstanding: Majorities and Minorities

In the CCRL letter, the President states, inter alia:

Why is it that anti-Catholic anti-clericalism remains so broadly acceptable and is defended by Canadian broadcast regulators. The defense [sic] argument that [the] CBSC chair [.] uses is that Christians are the ‘largest identifiable group’ and is itself a Charter violation.

The CCRL President has taken a statement of the Ontario Regional Panel in an earlier decision out of context and distorted its import. In CFNY-FM re Humble & Fred (“Danger Boy on a Cross”) (CBSC Decision 97/98-0644, February 3, 1999), that Panel was reviewing a broadcast which, the complainant alleged, had targeted the Catholic Church. In its analysis, the Panel noted that, in almost all CBSC files involving the “parodying of religious practices or icons, if not religion itself,” the “religion in question has been a Christian religion, whether Protestant or Catholic.” It was a simple empirical observation, not a value judgment. In asking why this might be the case, the Panel added, as a possible explanation:

This may result from the case that Christianity in its broadest sense is the dominant religion in Canada, therefore, the religion best known to the population and the one which would be likeliest to be publicly parodied. Quite simply, the parodying of less representative religions may not reach the lowest familiarity level of a broad enough segment of the population to “work” with the target audience.

In other words, the speculative reasoning of the Panel was that humorous reflection on any unknown subject might fall on deafer ears than on a better-known subject. There was not a smidgeon of a suggestion that this would render it acceptable; it was only an attempt to understand why it might have occurred thus. In any event, the most critical part of that explanation was that Code-unacceptable humour would not be rendered acceptable if aimed at the larger religious group than at smaller communities. In the very next sentences, the Panel explained this point:

It does not in the end matter why this is the case since the principles established in the various CBSC decisions on the subject would be as applicable to any religious group. What matters ultimately relates to the clash of the right of freedom of speech and the right of broadcast audiences to be free from abusively discriminatory comment on the basis of religion, as well as other grounds enumerated in Clause 2 of the CAB Code of Ethics.

In TQS re Dieu reçoit (CBSC Decision 98/99-0402+, June 23, 1999), the Quebec Regional Panel, in reviewing a weekly religious parody, said:

In light of some of the comments made in the complaints, the Council considers it appropriate to note that, in coming to the above conclusion, the Council has not considered the mocking of certain attitudes, traditions or practices of the Christian faith, and Catholicism in particular, as any less serious than the mocking of any other faith or religion. [.] Any careful review of the jurisprudence of the Canadian Broadcast Standards Council will immediately reveal that it has been as substantively protective of any religious, ethnic, linguistic, national or cultural group as any other or, when appropriate in the other direction, as willing to permit justifiable (that is, non-abusive) discriminatory comment regarding any religious, ethnic, linguistic, national or cultural group as any other. The CBSC’s issues are always treated at the underlying macro level and not at a micro level associated with any religious, ethnic, linguistic, national or cultural group.

The CBSC is, and will be, as protective of majority communities as of minorities. In order for it to render such decisions, though, there must be a Code breach. Merely feeling offended is insufficient grounds to impinge on freedom of expression. Being an identifiable group (envisaged by the human rights clause) which becomes the brunt of abusive or unduly discriminatory comment is sufficient.

Broadcaster Responsiveness

In addition to assessing the relevance of the Codes to the complaint, the CBSC always assesses the responsiveness of the broadcaster to the substance of the complaint. In the present matter, it is clear that the broadcaster’s Senior Vice-President of Comedy and Variety Programming provided an extensive and thoughtful letter to each of the complainants, varying those letters to be responsive to the individual concerns of the various complainants. Nothing more could be asked of the broadcaster, which is in full compliance with the obligation of responsiveness in connection with the present file.

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.