THE FACTS
On April 24, 1998, shortly after 11 pm in Winnipeg, Showcase Television aired a controversial theatrically-released feature film entitled Kids as part of its Showcase Revue series. Kids is best described as a "docu-drama" about inner-city teenagers and the controversy surrounding it stems from its depiction of teenagers (most of whom are young teenagers, stated to be in the 13 to 15 year old age range) as being heavily involved in drugs and actively and frequently engaging in sexual activity.
The movie is a montage of scenes which are intended to provide "glimpses" into the world of these teenagers. One such glimpse records a young girl’s first sexual encounter and another depicts the viciousness of a group of teens as they beat a man in the park. Among other things, the movie "documents" the story of a boy who, despite being infected with the AIDS virus, continues to indulge his primordial passion, which is having sex with virgins. It also documents the story of one of his "victims", an unpromiscuous girl, who, after a single incautious act, must come to terms with suddenly becoming HIV positive so early in life. In the last "active" scene of the movie, this young girl is raped by one of her friends at a party while she is unconscious as the result of an excessive indulgence in drugs and alcohol.
The airing of the movie was both preceded and followed by a sober discussion of the realities depicted in the film between the host of the Showcase Revue series and various authorities on teenage sexual practices, drug use and AIDS. The broadcast of the film was preceded by the following audio and on-screen viewer advisory: "The following contains nudity, sexuality, violence and coarse language. Viewer discretion is advised." Moreover, an on-screen icon shown at the beginning of the movie rated it as "18+". During the course of the broadcast of the movie, a short audio advisory was repeated after each of the seven commercial breaks. It stated simply: "We now return to Kids. Viewer discretion is advised."
The Letter of Complaint
On May 8, a viewer sent the same complaint to the CBSC, the CRTC and Shaw Communications stating that:
I wish to bring to everyone’s attention the choice of programming made by the SHOWCASE network recently. On Friday, April 24th at 11pm (Winnipeg time), SHOWCASE aired a film titled Kids. I had heard of the storyline in the local movie reviews last year when it made the rounds in theatres and couldn’t believe they were going to show it unedited at a relatively accessible hour for young viewers. SHOWCASE prides itself in its "art films" which are usually cheaply made exercises in soft core titillating tripe (my opinion), but this time they’ve gone right off the deep end into the swamp known as child pornography. I do not use this phrase lightly; "kiddie porn" is a criminal offense and a major plague on the Internet. I believe SHOWCASE has entered this market, probably unwittingly, in their zeal to be seen as the "film noir" king of the hill.
The storyline of the film is moronically simple: a few days in the life of teenagers in a large metropolitan area. There’s one problem; these kids are heavy into sex, drugs and wasting time, which the film-maker painstakingly details throughout. The central characters are all mostly under eighteen, one of whom states he is "crazy about f**king virgins" and is shown graphically acting out his desires at the beginning and end of the movie. In between these two low points is a non-stop barrage of teenagers talking sex and drugs, thinking sex and drugs and doing sex and drugs. Most of these kids appear or are stated to be underage. At one point everyone ends up at a house party where children as young looking as ten are present and participating. The finale features one male youth raping his friend’s girlfriend (graphically) while she is passed out and a ten year old sleeps on the couch next to them.
I suppose the underlying theme of this piece of garbage (my opinion) is the seriousness of urban moral decay and teenagers’ careless attitude toward sexually transmitted diseases, etc., etc., but that is something for the ticket buying adult public to decide. SHOWCASE has no right to place this movie at the disposal of the general public and their innocent children, who believe me are losing their innocence faster and faster in a world that has to shock you harder just to get your attention.
The Broadcaster’s Response
The Viewer Relations Coordinator of Showcase replied to the complainant on May 15 in the following terms:
Thank you for expressing your concerns about SHOWCASE Television’s programming to the CBSC.
While we agree with you that this is a disturbing film on a controversial topic, we must stress that Kids is a work of dramatic fiction. The cast was composed of a number of convincing young non-actors who appear to be improvising their lines. The naturalistic screenplay was written by nineteen-year-old Harmony Korine, a real inhabitant of the skateboarding world that the film describes. Its deadpan "cinéma-vérité" style has led many viewers to mistakenly believe that Kids is a documentary.
In fact, with Kids the filmmaker has made a filmed, fictional warning of the extreme consequences of several disturbing trends that he observed among young people around him: risky sexual behaviour, substance abuse, violence and severe apathy. It is a nightmarish vision of what may happen in the future. It condemns, rather that condones, the behaviour exhibited by the film’s young, but not innocent, characters.
Because of the subject matter, we made every effort to schedule and program this film in the most responsible manner possible.
First, SHOWCASE preceded this controversial film with a frank introduction by host Chas Lawther and guest Janet Rowe, a representative of the AIDS Committee of Toronto, in order to provide viewers with a meaningful context for some of the important issues raise in the film. Ms. Rowe provided an expert’s perspective on the actual behaviour of Canadian teens in an effort to dispel some of the commonly-held myths about the risky behaviour portrayed in the film.
On September 27, 1997, the Ottawa Citizen wrote: "Wisely, SHOWCASE has combined the broadcast with commentary by Toronto AIDS activist Janet Rowe in order to give the film some context."
Second, the film was programmed at an hour when younger viewers were least likely to be watching without adult supervision, on a night before school. The broadcast hour, 11pm, was a full two hours after the "watershed" hour that the CRTC mandates as the cutoff time for adult-oriented programming.
Third, as described below, audience advisories were shown at every appropriate point to warn any new viewers about the mature content of the film.
Critics have labelled Kids "A profoundly important utterly compelling masterpiece" (Gavin Smith, Film Comment), "A wake-up call to the world" (Janet Maslin, The New York Times) and "A masterpiece. The kind of film that pulls the ground out from under you." (Amy Taubin, the Village Voice). Leonard Maltin describes the film: "A telling portrait of 90s style hedonism and the result of kids growing up without parents to guide them. Utterly matter-of-fact and nonjudgmental..." (1997 Movie and Video Guide). Kids also met with great acclaim at the Sundance and Cannes Film Festivals in 1995. As Pulitzer-Prize winning film critic Roger Ebert has written, "Kids is the kind of movie that needs to be talked about afterwards. It doesn’t tell you what it means." (Roger Ebert’s Video Companion).
Kids is a film preceded by a very distinguished critical reputation. It enjoyed a successful commercial release and is available in many video stores.
Given your concerns, we would like to take this opportunity to explain SHOWCASE’s programming policy. It is our programming mandate at SHOWCASE Television to offer an alternative to other broadcasters’ offerings. One way that we have achieved this distinction is to broadcast high quality, festival-style dramatic films in our late night movie series The Showcase Revue.
Each film that is aired on SHOWCASE Television is considered very carefully. Before we decide to broadcast a film, our Programming Department screens it to ensure that it is suitable for broadcast. The determination of suitability includes ensuring that the broadcast would not contravene the Canadian Association of Broadcasters’ "Sex-Role Portrayal Code for Television and Radio Programming", the "Broadcasters’ Code for Advertising to Children" or the "Voluntary Code Regarding Violence in Television Programming". Controversial programs are also screened by members of our senior management group in order to double-check compliance with the Codes.
Once we decide to broadcast television programs, our Programming Department then schedules them at a suitable time. For example, we air series which contain scenes of violence or have content intended for adult audiences only after 9pm, according to these Codes. A number of the movies shown on The Showcase Revue, many of which are critically acclaimed award-winners from international film festivals, are definitely meant for an adult audience, and are shown at 11pm (Eastern).
In order to assist our viewers in making their viewing choices, we run a viewer advisory before such programs indicating whether they contain scenes of violence, nudity and/or coarse language. If appropriate, a "viewer discretion is advised" advisory is shown before the broadcast begins and after commercial breaks. The following is an example of one of our viewer advisories run throughout a program’s broadcast: "The following program contains scenes with nudity, sexuality and coarse language. Viewer discretion is advised."
In the case of Kids, this practice was followed scrupulously, and the introduction by our movie host also advised our audience of what lay ahead.
But SHOWCASE Television is more than a network showing only movies with adult interest. SHOWCASE is a general interest specialty channel which offers all-fiction (drama and comedy) programming consisting of movies, made-for-television production and mini-series, from Canada and from around the world. A significant portion of our programming week is also dedicated to family and children’s programming. We believe that our programming mix offers viewers an exciting alternative to the other television services available to them.
It is certainly not our intention to offend our viewers but to introduce them to the wealth of quality, unique drama that has been pioneered in Canada and around the world. Not all shows will suit all tastes, but we have tried to construct the SHOWCASE schedule to deliver something for everyone - children, adults and families.
Thank you for taking the time to express your views. We do appreciate feedback and hope that this letter had addressed your concerns. Given the wide variety of Canadian and international programming available on SHOWCASE, we hope that you will find programs within our schedule that suit your viewing tastes.
The complainant was unsatisfied with the broadcaster’s response and requested, on June 8, that the CBSC refer the matter to the appropriate Regional Council for adjudication. This request was accompanied by the following letter:
I am writing to continue the process of my complaint regarding the airing of the program Kids which was seen on the SHOWCASE Network the night of April 24, 1998. I have received the network’s response and had dialogue with them on the phone. I am not satisfied with their explanations and would like my complaint sent to the Regional Council.
The program in question was a fictional drama set in a documentary format, meant to show the viewer a disturbing picture of life on the street for inner-city teenagers. It details the attitudes and actions of a couple of young men in particular, one of whom states early on that he "loves to fuck virgins" and spends time in between doing drugs and spewing testosterone making sure he accomplished [sic] his mission. The opening scene, in fact, is him wooing and then bedding a very naive, very naked underage girl. The bulk of the film is a portrayal of his and his peers reckless, apathetic action and attitudes, culminating in a non-supervised house party where kids as young looking as 10 are exposed to an orgy of drugs, sex and violence, the highlight of which is the graphic raping of an unconscious 17 year old girl while a small boy sleeps on the couch next to her.
My complaint was not the making of the movie. Any movie should be shown to adult, interested parties who are willing to pay for the right to see it. I object to the presentation of this film on regular television, albeit cable, where it is subject to viewing by minors. SHOWCASE has clearly ignored your code regarding violence in television programming: section (4) exploitation - "The sexualization of children through dress or behaviour is not acceptable."
The letter I received from SHOWCASE went through great pains explaining how they had made every effort to comply with the codes, stating (quote) "Before we decide to broadcast a film, our Programming Dept. screens it to ensure ... that (it) would not contravene the CBSC’s ‘Sex-Role Portrayal Code for TV and Radio Programming’. Controversial programs are also screened by members or our senior management group in order to double-check compliance with the Codes." I decided to phone the author of the letter and challenge her on this point. She proceeded to repeat virtually everything in the letter but would not admit that the station had contravened section 4. The letter also made another falsehood: (quote) "The film was programmed at an hour when younger viewers were least likely to be watching without adult supervision, on a night before school." When I challenged her with the fact it was shown on Friday, April 24th, she responded that I had seen the repeat broadcast and that the original had been shown in mid-week. Apparently, repeat broadcasts don’t fall under the same iron-clad scrutiny as originals with SHOWCASE.
My point is this film should never have been aired. I don’t believe in censorship, but neither do I believe in unaccountability. I believe SHOWCASE should be held accountable for contravening your guidelines, and the punishment should send some message that your group means business. If SHOWCASE honestly believes in their right to show whatever they want, let them move to pay-per-view and see how many people are anxious to view them. Otherwise make them obey the rules or our children will be the losers.
THE DECISION
The CBSC’s Ontario Regional Council considered the complaint under the Canadian Association of Broadcasters’ (CAB) Violence Code and Sex-Role Portrayal Code. The relevant provisions of these Codes read as follows:
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. Modes of dress, camera focus on areas of the body and similar modes of portrayal should not be degrading to either sex. The sexualization of children through dress or behaviour is not acceptable.
Guidance: "Sex-ploitation" through dress is one area in which the sexes have traditionally differed, with more women portrayed in scant clothing and alluring postures.
Violence Code, Clause 1 (Content)
1.1 Canadian broadcasters shall not air programming which:
• contains gratuitous violence in any form*
• sanctions, promotes or glamorizes violence
(*"Gratuitous" means material which does not play an integral role in developing the plot, character or theme of the material as a whole).
Violence Code, Clause 3 (Scheduling)
3.1 Programming
3.1.1 Programming which contains scenes of violence intended for adult audiences shall not be telecast before the late evening viewing period, defined as 9 pm to 6 am.
3.1.2 Accepting that there are older children watching television after 9 pm, broadcasters shall adhere to the provisions of article 5.1 below (viewer advisories), enabling parents to make an informed decision as to the suitability of the programming for their family members.
Violence Code, Clause 5 (Viewer Advisories)
5.1 To assist consumers in making their viewing choices, broadcasters shall provide a viewer advisory, at the beginning of, and during the first hour of programming telecast in late evening hours which contains scenes of violence intended for adult audiences.
The Regional Council members viewed a tape of the program in question and reviewed all of the correspondence. The Council is of the view that the broadcaster has not breached any of the aforementioned provisions.
Freedom of Expression as a Starting Point
The Council agrees with the complainant that the subject matter of the movie in question is quite disturbing. It does not, however, conclude that, on that account, a violation of broadcast standards has occurred. In many ways, this complaint is similar to the complaint dealt with in CITY-TV re "Eclipse" (CBSC Decision 97/98-0551, July 28, 1998). In that decision concerning a movie dealing with such themes as homosexuality, prostitution, adultery and juvenile sexuality, the Council stated the following:
The Ontario Regional Council has no difficulty in concluding that Eclipse was controversial, both in its subject-matter and in its presentation. By accepting this as a fair characterization of the movie, the Council does not, however, conclude that the film should not have been aired. In general, the CBSC has long held that the basic general principle of freedom of expression will militate in favour of a broadcast, whether controversial or otherwise, except in those circumstances in which some overriding standard imposed by the private broadcasters in their Codes supersedes. In a decision of the Quebec Regional Council which also dealt with a controversial documentary film with a sexual theme, namely, CFJP-TV (TQS) re "Quand l’amour est gai" (CBSC Decision 94/95-0204, December 6, 1995), the Quebec Regional Council expressed this perspective in the following terms:
The recognition of this influential role of broadcasters has resulted in burdens imposed both from the heights of Parliamentary statute to the broadcasters’ own self-regulatory instruments. Thus the Broadcasting Act provides, among other things, in Section 3(1)(d) that
the Canadian broadcasting system should
...
(ii) encourage the development of Canadian expression by providing a wide range of programming that reflects Canadian attitudes, opinions, ideas, values and artistic creativity...
That encouragement of diversity is also reflected in Article 7 of the CAB Code of Ethics which encourages the "presentation of news and opinion on any controversy which contains an element of the public interest." That same article provides that such "healthy controversy is essential to the maintenance of democratic institutions" and the Regional Council has little difficulty in concluding that the subject of the documentary program in question falls into the realm of "healthy controversy". The Council further acknowledges that this program will not be everyone’s "cup of tea" and it assumes that some members of society would be offended by the film. That is not, however, the criterion by which the program must be judged. It is rather that the film discusses a controversial subject which is an acknowledged component of Canadian society. By the nature of the medium, this discussion occurs in images rather than in words alone. Nothing else could be expected and the broadcaster can hardly be faulted on this account.
The Quebec Regional Council confirmed Canadian private broadcasters’ right to cater to the tastes of some with programming which may be offensive to others in CFJP-TV (TQS) re été sensuel (CBSC Decision 95/96-0233, August 14, 1998). In that decision, the Council considered whether an erotic film aired as a part of TQS’s late-night series Bleu Nuit was exploitative.
The Quebec Regional Council takes no issue with the assertion by the complainant that the film in question is an erotic film. The only question, however, which it is called upon to decide here is whether the film is exploitative. The other contentions of the complainant which relate to whether this film or other such films are "idiotic" and whether or not the broadcasting of such a film is "disrespectful of people like myself" are marketing questions. They relate to the broadcaster’s choice of material to air. If there is no breach of a Code (or, of course, the Broadcasting Act or Regulations or other laws of the land), the broadcaster is entitled to put the film on its airwaves. In a world which has become increasingly oriented toward niche broadcasting, any station or network appreciates that its choices will never appeal to everyone. This does not mean that such choices should not be made but only that, in making such choices, the broadcaster knows that only some, but not all, of the public will be pleased. It goes without saying that the broadcaster hopes always to make the correct choices but, where no Code is breached, the viewer is always free to go elsewhere. That is, in the end, the viewer’s only option and it is, from society’s perspective, a fair option, provided that society’s codified values have not been breached.
In this case, while the Ontario Regional Council understands that the complainant was offended by the explicitness of some aspects of the film, it cannot find that there is any way in which the broadcast of Eclipse has violated any broadcaster Code provision. It is explicit but not exploitative. As to the aspersions regarding the quality of the film, the Council does not ever comment. Such matters are, of course, purely subjective and beyond the purview of the Codes and the Council. They must, in fairness, be solved by the on-off switch in circumstances in which, as here, the broadcast comes well within the purview of the broadcaster’s freedom of expression.
The foregoing lengthy quotation describes the general freedom enjoyed by broadcasters to air any programming, so long as that programming does not, in whole or in part, violate any provision of the Codes (or, of course, the Broadcasting Act and the associated regulations). Applying those principles to this case, the Council finds no breach of any of its Codes. While it understands that the situations portrayed will be unsettling to many, if not most adults, and likely to the vast majority of teenagers either, the Council does not share the complainant’s view that the material is pornographic in any public law sense. While it has more to say on this issue in the two following sections, the Council wishes to state at this point in the decision its view that the broadcaster played the film at an extremely discreet hour, well after the watershed in the originating time zone thereby avoiding the likelihood that any unsupervised children would see the film. Furthermore, the the broadcaster was extremely responsible in its presentation of the film in a context with panel discussion before and after the screening of the film. In these respects, Showcase exercised its freedom of expression in a thoughtful and responsible way and not in an exploitative or prurient manner. While the Council expresses no viewpoint on the broadcaster’s entitlement to air the film at 9 pm, on the cusp of the watershed, where it would obviously have been more enticing and accessible to the young people about whom the complainant is justifiably concerned, the fact is that Showcase did not push that envelope.
Moreover, a reason for the existence of reasonably broad latitude with respect to broadcasters’ programming freedom is that the fullness of its exercise is balanced in the Codes by requirements relating to scheduling, rating and the provision of viewer advisories, which enable viewers to make informed choices as to what may or may not be palatable for them and their families. The Council considers that Showcase did everything necessary through scheduling and advisories to ensure that the movie would not be likely to reach anyone other than its target audience.
The Sexualization of Children
The complainant argues that the movie Kids constituted "child pornography". Without getting into any analysis of the criminal aspects of "pornography" (over which the Council has no jurisdiction in any event), the Council notes that the sexualization of children is prohibited by Clause 4 of the Sex-Role Portrayal Code but it is not convinced that this provision is triggered in this case.
In the one previous case in which the Council has had to deal with the issue of the sexualization of children, namely, CILQ-FM re the Howard Stern Show (CBSC Decision 97/98-0487, 488, 504 and 535, February 20, 1998), the Ontario Regional Council considered the comments made by the radio show host regarding children’s participation in sexual activities. The Council stated:
The Regional Council has not previously been called upon to assess the content of talk radio programming of a more serious nature than that involving the participation, real or imagined, of children in sexual acts. However permissive the view of society may be toward consensual sex among adults, there is no tolerance in civilized societies for child pornography in any form. As the Supreme Court put this point in defining the three categories of pornography in Butler v. R., it explained that "explicit sex that is not violent and neither degrading nor dehumanizing is generally tolerated in our society and will not qualify as the undue exploitation of sex unless it employs children in its production. [Emphasis added.]"
The comments at issue in the CILQ-FM case included the following dialogue between Howard Stern and his side-kick Robin Quivers:
Robin Quivers : In the State of New York, there’s an alarming rate of syphilis among babies, Howard.
Howard Stern: Who are they getting it on with?
Robin Quivers: Ah, ah, ah, ah, ah! I don’t know. Ah, ah, ah, ah, ah! Could you imagine?
Howard Stern: Yeah, nothing better than a good baby!
Robin Quivers: Ah, ah, ah, ah, ah!
Howard Stern: Yeah, I mean, I don’t like to talk about it that much on the air because people think I’m sick. You know what the worst thing about having sex with your sister is?
Robin Quivers: Oh, please!
Howard Stern: Breaking the crib.
That case presented a clear violation of Clause 4 of the Sex-Role Portrayal Code. The host was, after all, albeit in jest, advocating the sexual abuse of children.
This case is not so clear. While young persons are depicted in the movie as involved in sexual activity, the movie is about the dangers of such promiscuity, among other things. The Council does not believe that the restriction on the sexualization of children was meant to prohibit all programming dealing in any way with child sexuality. For example, the Council does not expect that a violation of Clause 4 of the Sex-Role Portrayal Code would result from the broadcast of programming (whether documentary or dramatic) which deals with the sexual abuse of children. In this regard, the Council notes that the Special Committee on Pornography and Prostitution (chaired by Paul Fraser, Q.C.), in its report titled Pornography and Prostitution in Canada, stated the following:
Child pornography epitomizes the difficulty we face in defining pornography and in deciding what action if any, is appropriate. Whether or not someone considers a work pornographic depends on the subjective assessment of the viewer and is often a question of the intent of the user.
In the Council’s view, the movie Kids is not the type of programming which the drafters of the Sex-Role Portrayal Code sought to prohibit.
Gratuitous or Glamorized Violence
While the movie is not particularly violent, it does include a lengthy scene which depicts the rape of a young girl while she lies unconscious on a couch amidst dozens of sleeping/passed out teenagers. This is not the first occasion on which the Council has had to deal with complaints about programming containing rape scenes. In CTV re Complex of Fear (CBSC Decision 94/95-0022, August 18, 1995), the Council dealt with a complaint about a movie of the week which told the apparently true story of a series of rapes in an apartment complex. The Council stated:
The Regional Council noted four rape scenes in the film. While any scene depicting rape is necessarily awful, the members remarked that no scene lasted more than several seconds, none depicted the actual rape, and none glamourized the rape. In fact, scenes following the rapes depicted the consequences of the rape: the shock and despair of the victims as they related the event to the police; the occasional refusal of police to accept the characterization of the event as a rape; victims’ self-doubt as to blame for the occurrence; the imputed role of previous victim behaviour as a contributing factor; and so on.
In no way did these scenes encourage or glorify violence against women. While the film dealt with a form of crime that is defined by violence against women, the film itself did not depict gratuitous, or unnecessary, violence against women. In other words, the Council affirmed that a film about rape does not necessarily condone rape.
In this case, the rape scene is quite lengthy, lasting close to five minutes. It is the final "active" scene of the movie. While, as stated in the decision excerpt quoted above, rape scenes are always disturbing, the Council notes that this particular scene is neither graphicin the sense that sex organs were not shown, nor agitated by violent action or sounds, but rather is depressingly slow moving and silent and, on another level, haunting. The young girl who is raped is the one who, throughout the movie, has been coping with the knowledge that she is carrying the AIDS virus. However unpleasant the rape scene, by virtue of what it represents, the Council does not consider it violates the Codes. In the Council’s view, despite its length, this scene was integral to the plot’s development, including the irony of its setting and the twist of the plot, in the sense of the viral nemesis which will ultimately be suffered by the rapist. For these reasons, coupled with the absence of a graphic or explicit presentation of this scene, the Council considers that it not gratuitous, and that it did not otherwise sanction, promote or glamorize violence.
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 this case, the Council commends the broadcaster on its thorough and detailed response. Although the complainant was not convinced by the arguments of the Showcase representative, the Council does believe that the broadcaster addressed fully and fairly all the issues raised by the complainant and, consequently, has not breached the Council’s standard of responsiveness. Nothing more is required.
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.