CANADIAN BROADCAST STANDARDS COUNCIL

ONTARIO REGIONAL COUNCIL

CFYI-AM re the Dr. Laura Schlessinger Show

(CBSC Decision 99/00-0005)

Decided February 9, 2000

R. Stanbury (Chair), P. Fockler (Vice-Chair), R. Cohen (ad hoc),
M. Hogarth and M. Oldfield

CANADIAN BROADCAST STANDARDS COUNCIL

ATLANTIC REGIONAL COUNCIL

CFYI-AM re the Dr. Laura Schlessinger Show

(CBSC Decisions 98/99-0808, 1003 and 1137)

Decided February 15, 2000

C. McDade (Chair), Z. Rideout (Vice-Chair), R. Cohen (ad hoc) and K. MacKaulay

 
THE FACTS

CFYI-AM (Toronto) and CJCH-AM (Halifax) broadcast the daily call-in show hosted by Laura Schlessinger out of California. The host of the show responds to callers’ queries on issues of varying kinds, dealing generally with questions relating to family, children, morality and religion, delivering what she describes as "thoughtful information, positive advice and time-honored solutions" to their concerns. She also frequently reads letters from listeners and articles from newspapers and other periodicals (including many which are critical of her views), commenting and reacting in accordance with the issues encountered. Although she is technically not rendering on-air therapeutic services, her advice can easily be understood by listeners to be of a psychological, if not pop psychological, nature. Perhaps because of this, although she is neither a medical doctor nor the holder of a Ph.D. in psychology, she characterizes herself as Dr. Laura on the basis of the Ph.D. in physiology which she earned at Columbia University in 1974.

The complaints which arose in the matters before the Ontario and Atlantic Regional Councils resulted from the positions expounded by the host on a theme common to the complaints raised in the files dealt with in this decision, namely, her treatment of gays and lesbians. These complaints related specifically to the broadcasts of April 12, 14 and 16, June 2, 10, 22 and 30, and July 1, 1999 in the case of the Atlantic Region and August 13, 19 and 24, 1999 in the case of Ontario. While full transcripts of the relevant portions of the programs in question are supplied in  Appendix B hereto, examples of the most pertinent comments are provided within the body of this decision under the individual headings to which they relate.

This decision results from four complaints which were sufficiently specific to be adjudicated by the CBSC’s Regional Councils (the CBSC received other complaints about the show which made no mention of specific broadcast dates or times, or sometimes even of the particular broadcaster, the show being syndicated on a number of Canadian stations, and thus could not be handled by the CBSC as a part of its complaints resolution process). One of the complaints related to the broadcast of the Schlessinger Show on CFYI-AM in Toronto while the three other complaints related to CJCH-AM’s broadcast of the show in Halifax. The full text of the correspondence relating to these four complaints can be found in Appendix A but the Council finds that the following summary, taken from one of the letters, is particularly well-focussed and articulate as well as knowledgeable regarding previous CBSC jurisprudence and, consequently, provides a concise representation of the several complainants’ concerns regarding the show.

The "Dr. Laura" program contains regularly made abusive and discriminatory comments about gays and lesbians, ranging from frequent characterization of sexual behaviour as "deviant", to implied and explicit comments linking homosexuality to paedophilia, to describing children being raised by lesbian parents as "victims", to frequent comments of a gay "agenda" to, among other things, get access to children for propaganda purposes in schools. There are also comments made that somehow gays can "change" their sexuality, comments made which were tantamount to professional opinion without any fair presentation of opposing views. I ask the CBSC to find that the program is in breach of Clauses 2 (Human Rights) and 6 (Presentation of News, Comment, Opinion, and Editorial) of the CAB Code of Ethics.

Moreover, given the fact that I have only listened to approximately eight to ten hours of the program this year, given the frequency and regularity which these comments have come up over relatively few broadcasts, in particular, terms sexually "deviant" and "gay agenda", I ask that the CBSC consider a determination that the program is of the "Ongoing breach by a series" types and warrants appropriate action.

CFYI’s response to the complainant stated in part:

You may not share the moral views of Dr. Laura Schlessinger. However, she is entitled to express her opinion. Furthermore, her moral views are popular as evidenced by her significant and loyal listening audience.

I believe we do a very good job of providing balanced opportunity to present all sides of an issue, which will allow our audience to make up their own minds on the matter under discussion.

For its part, CJCH generally held that

We appreciate that a certain number of the issues that Dr. Schlessinger addresses on her program can be controversial. She is well-known for expressing strong opinions on issues that are politically, socially and religiously sensitive. Indeed, certain of her views on some of these controversial issues may at times, be offensive to some radio listeners.

...

We respect Dr. Schlessinger's right to express views and opinions that may be inconsistent with the opinions of station management, with those of some of our listeners, and which may even be considered to be politically incorrect.

... Given the state of the political debate in Canada, we believe it is important and necessary that all views on the issue are heard in as open a forum as possible.

The Ontario and Atlantic Regional Councils both agree that the facts and issues raised by the complaints in each region, as well as the substance of the challenged episodes of the program, are sufficiently similar and based on the same Code principles and Council reasoning that the Councils’ respective decisions could logically be presented as a joint decision of both Councils.

 
THE DECISION

The Councils reviewed tapes of each of the shows emanating from their respective areas and considered the complaints under Clauses 2 and 6 of the Canadian Association of Broadcasters (CAB) Code of Ethics. They conclude that, although the focus of many of Laura Schlessinger’s comments in the challenged episodes are of concern, when these are carefully analysed, most do not amount to a breach of either provision of the CAB Code of Ethics. They also conclude that those of her comments characterizing the sexuality of gays and lesbians as "abnormal", "aberrant", "deviant", "disordered", "dysfunctional", "an error" or the like and her generalized statements that paedophilia has to do with being gay and is more common among members of the gay community than the heterosexual community, are in violation of the human rights provision of the CAB Code of Ethics (Clause 2) and also constitute an unfair or improper expression of opinion or comment pursuant to Clause 6 of that same Code.

The terms of the foregoing standards established by Canada’s private broadcasters are, in pertinent part, as follows:

CAB Code of Ethics, Clause 2

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.

CAB Code of Ethics, Clause 6(3)

It is recognized that the full, fair and proper presentation of news, opinion, comment and editorial is the prime and fundamental responsibility of the broadcast publisher.

Sexual orientation has been "read in" the human rights provision of the CAB Code of Ethics since 1994. The Councils do not consider it necessary to review at length the CBSC decisions which have carefully explained and restructured Clause 2 so as to ensure that it reflects sexual orientation as one of the grounds of protection in the Code as it is in the Canadian Charter of Rights and Freedoms, the Radio Regulations, 1986, the Television Broadcasting Regulations, 1987, the Canadian Human Rights Act and all other relevant federal and provincial human rights legislation, as required by the Supreme Court of Canada. Those who wish to consult any of the previous CBSC decisions on this subject may consider, among others, CHQR-AM re Forbes and Friends (CBSC Decision 92/93-0187, August 8, 1994), CJRQ-FM re Opinion Poll (CBSC Decision 94/95-0135, March 26, 1996), CHCH-TV re Life Today with James Robison (CBSC Decision 95/96-0128, April 30, 1996) and CKRD-AM re Focus on the Family (CBSC Decision 96/97-0155, December 16, 1997).

 
Freedom of Speech in Canada

While the position of the CBSC on freedom of expression has been firmly established in its previous jurisprudence, it cannot be assumed that every person reading this decision will be familiar with what has gone before. Consequently, a brief review of this issue is merited here, particularly since this program originates in the United States and is broadcast in Canada. In other words, it originates in a jurisdiction subject to one constitutional legal regime and is re-broadcast in another jurisdiction with a constitutional legal regime which is not identical. (Nor, it should also be noted, ought one to assume that the cultural regimes in the originating and receiving countries are identical either. There is further discussion of this issue below.)

In a not dissimilar circumstance, that is to say, the consideration of an American-originating program being syndicated in Canada, namely, CHOM-FM and CILQ-FM re Howard Stern Show (CBSC Decision 97/98-0001+, October 17-18, 1997), the Quebec and Ontario Regional Councils highlighted distinctions between the Canadian and American approaches to the free speech issue which might result in the acceptability of a broadcast in one country and the non-acceptability of the same program in the other. To do this, they compared the American Bill of Rights and the Canadian Charter of Rights and Freedoms, the American Communications Act of 1934 and the Canadian Broadcasting Act; as well as the CAB Codes. The latter have no equivalent in the United States. The Councils said:

In broadest terms, the texts of the First Amendment in the American Bill of Rights and the first and second sections of the Canadian Charter of Rights and Freedoms are materially different. The American approach is far more sweeping. It provides that

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

In Canada, freedom of expression is nowhere declared to be as absolute. In the Canadian Charter of Rights and Freedoms, Section 2(b), which declares the existence of the fundamental freedoms "of thought, belief, opinion and expression, including freedom of the press and other media of communication", is expressly declared to be subject to the limitation imposed in Section 1, which declares:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The Councils elaborated on the special role of private broadcaster Codes in Canada and their recognition by the CRTC in the broadcast regulator’s elaboration of the responsibilities of the CBSC and the broadcasters themselves.

[A]ll Canadian broadcast licensees know perfectly well that there are public rules in Canada to which broadcasters must adhere as well as others to which private broadcasters have chosen to adhere. In this latter category fall the Canadian Association of Broadcasters Codes, of which there is no equivalent in the United States. These are, however, viewed by Parliament and the CRTC as a necessary and integral component to our broadcasting system. As the CRTC said in its opening words to the Public Notice approving the creation of the Canadian Broadcast Standards Council (PN CRTC 1991-90),

The purpose of this public notice is to advise licensees and the public that the Commission fully supports the objective of the Canadian Broadcast Standards Council (the CBSC), which is to encourage high standards of professional conduct on the part of private radio and television broadcasters by ensuring that social concerns and values are reflected in their programming decisions. The Council administers specific codes of broadcast conduct and provides a means of recourse for members of the public regarding the application of these standards.

In the Stern decision, the Regional Councils also focussed on the CBSC’s specific approach to freedom of expression.

The CBSC has frequently observed that freedom of expression is the basic rule which it applies in the rendering of its decisions but it believes that this principle is not absolute. It is and must be subject to those values which, in a free and democratic society, entitle all members of society both to speak and to be free from the abridgment of those other values in which they and other Canadians believe. Free speech without responsibility is not liberty; it is licence. The freedom to swing one’s arm ends where it makes contact with one’s neighbour’s nose. The length of that arc is what the CBSC determines from case to case.

The CBSC has also previously stated its position that, in Canada, we respect freedom of speech but do not worship it. It will be one of the societal values to be weighed against others. It is significant but not absolute; material, to be sure, but not free of that compromise essential to ensure a balanced and free democracy for all who dwell there. It would be no consolation for those in pain that the inflictors induced that agony in the presumed legitimate exercise of their freedom. It follows that the CBSC focusses on a balance of values in its decisions and that the Council considers that it is essential that Canadian standards continue to be applied to programs aired by Canadian broadcast licensees, whatever the country of origin of the programs which they broadcast. As the Councils put this point in the Stern decision:

The globalization of the late twentieth century village does not mean the abdication of the maintenance of order within its Canadian borders. The existence of other standards in other parts of the global village cannot weaken the need to apply home-grown standards within the Canadian bailiwick. The bar should not be lowered in Canada just because it is set at a lesser height elsewhere in the village. There is no need for the chain of vigilance here to be as weak as its weakest links elsewhere. If, however, an alert to the re-definition of principles is called for by what is created in other parts of the village, Canadian broadcasters have consistently shown their willingness and skill to rise to such challenges.

The Councils do consider that CFYI was fair in stating its obligation to "provid[e] balanced opportunity to present all sides of an issue" and that CJCH was equally reasonable in declaring that "it is important and necessary that all views on the issue are heard in as open a forum as possible." This is, of course, true until such time, if any, as the full-blown exercise of that right clashes with the right of individuals to be free from abusively discriminatory comment based on the enumerated and implied characteristics delineated in Clause 2 of the CAB Code of Ethics. Freedom of expression does not, in the view of the Councils, impinge upon the right of persons in Canada, as in this case, to be free from abusively discriminatory comment based upon their sexual orientation. The onerous duty of the Councils is to determine whether that line has been crossed in the various episodes of the Dr. Laura Schlessinger Show to which reference has been made above.

 
The Host’s Credentials

The Councils are troubled by the host’s generalized approach to the question of gay and lesbian rights and culture and will have more to say about this issue following their findings with respect to a number of specific matters discussed immediately below. They have another threshold concern, though, before embarking on the specific issues raised by the complainants and it relates to how the host describes herself, namely, as "Dr. Laura". It would be one thing for her to hold the opinion that the lifestyle which she criticizes is sinful; whether that perspective is reasonable or not, no particular qualifications are required to hold and express such a view. Indeed, the question of sinfulness has previously been found by the CBSC to be a matter of opinion and, in that case, the CBSC has supported a broadcaster’s right to air this point of view on the airwaves. In CHCH-TV re Life Today with James Robison (CBSC Decision 95/96-0128, April 30, 1996), the Ontario Regional Council expressed its position in the following terms:

In this case, it appears to the Council that is was the host’s point of view with which the complainant took issue. The host’s message was that monogamous heterosexuality was the "right" lifestyle. He expressed the view that a proper interpretation of the Bible leads to the conclusion that homosexuality is an unacceptable lifestyle (as is also the case with adulterous heterosexuality, according to his interpretation). It is not the Council’s mandate to determine the correctness of the views presented, but only whether the views were presented in a non-abusive, legitimate manner. In a contrary circumstance, they would be in breach of the Code; however, in this case, the Council finds that the host’s statements were expressed as his moral position, presented in a legitimate manner and not at all as hateful commentary.

On the other hand, the use of terms such as "aberrant", "deviant", "a [biological] error", "disordered" and dysfunctional", which appear to have a medical connotation to them, is exacerbated by the host’s insistence on describing herself as Dr. Schlessinger, when the degree which she has earned has no relevance to the opinions which she expresses. Schlessinger may have a technical entitlement to so describe herself. Nonetheless, it is the Councils’ view that it is the societal cachet of the term "Dr." which Laura Schlessinger chooses to exploit with a view to adding weight to the positions she espouses. She may, by virtue of other training, be qualified to speak to the issues which she regularly addresses; however, it is an exaggerated, if not manipulative or misleading, choice which she makes to underscore the "Dr." association on a constant basis (even using it as a part of the access number which she gives out to potential callers, namely, "1-800-D-R-L-A-U-R-A"). Moreover, the Councils were particularly struck by the statement made by the host in her monologue of April 12 (cited in full in the Appendix) in quoting something written by the spokesperson for the American Psychological Association: "[T]his was the original comment by ... the APA spokeswoman. She said ‘Mrs. Schlessinger,’ and that’s my mother; I’m Dr. Schlessinger." The Councils regret the deceptive effect that this must have on her audience, particularly in the context of the gay and lesbian issue at hand, but acknowledge that there is nothing in that choice which per se constitutes a breach of the broadcast Codes.

 
The Issues

While the Councils are very conscious of the cumulative water-dripping on a stone effect of the host’s perspective on the various gay and lesbian issues which she broaches on an ongoing basis, they consider that it is important to deal with them one by one before concluding with some general observations. That being said, not every gay and lesbian issue raised by the complainants will be dealt with. Nor do the Councils consider this to be necessary since their concerns have more to do with the treatment of the various matters than any resolution of whether Schlessinger is technically right or wrong on each or, indeed, any of them. The Councils’ concerns are whether the host’s comments are abusively discriminatory or constitute the opposite of "full, fair and proper presentation of news, opinion, editorial and comment." The Councils will, consequently, limit themselves to the host’s comments on the gay agenda, the gay culture, fatherless homes, paedophilia, the murder of Matthew Shepard and her generalized allegations of sexual deviancy, aberration and dysfunction.

The Councils must also reiterate that the CBSC is not an evidence-gathering body. The consequence of this fact is that the Councils’ responsibility is not to adjudicate between the two sides of the various issues treated in these broadcasts or even to sort out the preponderance of the political, scientific or medical argument. That is the responsibility of the two sides themselves in the public marketplace of ideas. In that exchange, the proponent of one perspective may hold sway from time to time but, in a democracy, the pendulum of ideas may at other moments swing in favour of the other protagonist in the debate. In the Canadian democracy, it is the responsibility of broadcasters to ensure that their programming, on an overall basis, presents such balance that all significant sides to an issue may be heard. It is not their responsibility, or even entitlement, to cut one side or the other off. As long as no Code is breached in that process, the intellectual jousting is to be encouraged. Although it is not otherwise directly material in this decision, the principles of Clause 7 of the CAB Code of Ethics should be borne in mind:

Recognizing in a democracy the necessity of presenting all sides of a public issue, it shall be the responsibility of member stations to treat fairly, all subjects of a controversial nature. Time shall be allotted with due regard to all the other elements of balanced program schedules, and to the degree of public interest in the questions presented. Recognizing that healthy controversy is essential to the maintenance of democratic institutions, the broadcast publisher will endeavour to encourage presentation of news and opinion on any controversy which contains an element of the public interest. [Emphasis added.]

In the case of the broadcasts at issue here, it is the Councils’ view that, with respect to most, but not all, of the issues, the broadcasters have complied with their established standards. With respect to one critically important element, however, it is the view of the Councils that the show has gone too far and that the controversy has, as a function of those standards, become unhealthy and its treatment unfair.

 
The Gay Agenda Issue

Laura Schlessinger has dealt with topics related to the "gay agenda" in many of the broadcasts reviewed by the Council. Examples include the April 14 show, during which she dealt with the response of Bakersfield, California, parents to a gay teacher. They had asked that their children be removed from his class because they claimed that he was discussing his sexual orientation during the class. The host said, among other things:

[T]he issue is not, from what I read in the papers, the issue is not that he was homosexual. Period. It was that that was creeping into the classroom. So it sounds like he made it an issue. The teacher. From what I read in the papers. ... I find that outrageous. We have the right to remove children from sex education classes we think are inappropriate. Isn’t that a form of indirect sexual education? ... [M]y question is: Why are we doing that? Why do you want to teach 6 year_olds about two men having sex with each other? If you’re just trying to ... and you know, it isn’t about tolerance, it’s about acceptance. ... That’s a big difference from "don’t hurt anyone’s feelings" because they have a problem, or they look different, or whatever. Somebody’s in a wheel chair; you don’t make fun. Somebody has a sexual identity problem; you don’t make fun. I mean, that’s sort of standard but that’s not what’s happening. What’s happening is that there are programs all over the country now on TV trying to teach children that two men together is equivalent to their mommy and daddy. What is that? And if you say that’s not a good thing, then you wanted Matthew Shepard killed.

Schlessinger then returned to the point of the gay teacher in the classroom, concluding:

But when people now are starting now to propagandize in the classrooms, that has to be stopped. So there’s a difference between an individual who happens to be gay with a brilliant teacher who is teaching a subject. If people were hauling their kids out of that person’s class, I’d be the first one telling them they were idiots. But there’s a big difference between that and somebody bringing their homosexuality into the class and propagandizing it in any way. Then I would tell that person they’re [sic] an idiot. I hope you’re real clear on that. Now how can that be phobic and hateful and hostile? I just don’t want our kids propagandized that what is abnormal is normal. I don’t think it helps their growth, their psyche and civilization.

The challenged segments of the August 13 episode related essentially to the contents of a fax which the host had received and read in bits and pieces with her contrary arguments interspersed as she went. The author of the fax observed that Schlessinger had "increasingly become the mouthpiece for the religious right on the topic of homosexuality. I notice you are always careful to say homosexual instead of gay." The host’s position on that was explained as follows:

When we have the word homosexual, we are clarifying the dysfunction, the deviancy, the reality. We change it to the word gay, it makes it more difficult to pinpoint the truth. So one of the things that the homosexual agenda did was to change the name. Just like somebody complained to me yesterday about ethnic cleansing, that it sounds like washing machine as opposed to murder. They were right. Ethnic cleansing sounds nice. Murder is the truth, homosexuality is the truth. Gay isn’t.

She then dealt with the question of a gay agenda in the following terms:

She [the letter writer] says "No. 1, there is no organized gay agenda." I mean, I don’t know what to say. The organized gay agenda writes me all the time. They have web sites everywhere. They’re mobilized, they’re unified. They’re strong. They’re well funded.

The Councils consider that Schlessinger’s reluctance to use the appellations "gay and lesbian", which have been a proper part of the lexicon for years, says more about her reluctance to enter the current era than it does about gays and lesbians. As to the issue of her treatment of the so-called gay agenda, the Councils do, however, believe that Schlessinger’s comments are themselves quite balanced. Her stance appears principally to relate to the fact that there are organizations with a point of view to espouse and defend. She refers to some of them specifically, such as GLAAD (Gay and Lesbian Alliance against Defamation) and NAMBLA (North American Man/Boy Love Association), and says that, in general terms, "They have web sites everywhere. They’re mobilized. They’re unified. They’re strong. They’re well funded." These do not seem, to the Councils, to be disparaging observations. They constitute a recognition that the associations are strong, positive and effective. In this case, the Councils have the sense that it is she who, in espousing her perspective, may be having to swim upstream. In any event, there is no way that she has made a generalized negative observation regarding the gay agenda. Grudging recognition perhaps of their effectiveness but nothing like the attribution of insidiousness and malevolence which the Prairie Regional Council believed was evident in CKRD-AM re Focus on the Family (CBSC Decision 96/97-0155, December 16, 1997).

Here Laura Schlessinger has referred to the odd individual example of a particular teacher’s views on gay issues being expressed in a classroom but she has not even generalized this case to the gay and lesbian association level. Moreover, she represents unequivocally that she would take strong issue with anyone who tried to keep a teacher out of the classroom on the basis of his or her sexual orientation. She is equally clear that she opposes the importation into the classroom (presumably by either a homosexually or heterosexually oriented teacher) of views regarding this aspect of sexual education. This is not to say that her opinion is or is not pedagogically correct but only that, here, the Councils consider that she is entitled to express that view without, on that account, being considered as expressing abusively discriminatory comments on the basis of sexual orientation.

 
The Gay Culture Issue

On the April 16 show, the host stated the following regarding "gay culture" (in response to an article in the Deseret News which dealt with a high school presentation about the gay community and gay culture):

The gay culture? I’m trying to understand, what is that? I remember the 70s and 80s that the line was that this is only about sex, it’s not about anything else, right? So what’s the gay culture? Is that where we get into the promiscuity and the paedophilia? Or are these just regulation human beings, who somehow have an error in their sexual orientation but otherwise are seriously regulation human beings? I’m confused. First I’m told for 20 years that it’s only about sex. Now I’m told it’s a whole culture. So what’s in the culture? What is it? If it’s just about sex, then the culture must only be about sex. Otherwise you’re American culture. But listen to this. "They presented a slide show, Friday, during the school’s popular culture assembly which also features dances from Polynesian, African and Latin countries." That’s culture. Sexual deviations are not culture. They’re sexual deviations.

In the Council’s view, while the host’s views on this issue appear to be out-of-step with the times, they do not contravene any Code provision. That she opines that, because in the 70s and 80s, "the line was that this was only about sex" (if indeed it was ever so stated on a generalized basis), hardly means that a quarter of a century later nothing has changed. Culture has since been broadly applied to define various groups in society which share common interests, values and goals; hence, the burgeoning, in Canada at least, of a plethora of cultures which unite discreet groups in society today.

The host’s monolithic approach to the subject (if the culture is not "only ... about sex, ... [it’s] otherwise ... American culture") is clearly narrow and conservative. More to the point, though, this is only a statement of her opinion. It carries no more weight than the opinion of those she hopes to contradict, and possibly less. Even if this perspective is also anachronistic, Schlessinger is as entitled to express that perspective as those who, for example, have views which do not reflect a 21st century perspective on the role of women or any other societal issues. In either case, the expression of such views might, in some circumstances, go too far, exceeding the bounds of the human rights provision of the CAB Code of Ethics. It is not, however, the opinion of the Councils that the host has gone too far in this case.

 
The Fatherless Homes Issue

The host’s position on fatherless homes was made clear on June 22nd when she stated:

And then they tell me they are going to have a beautiful child and be a great mother, to a kid condemned to no two-parent home, with a dad. In spite of some stupid trash that comes out of the psychological community that says dad is not necessary, which I think is a plot for two women to have kids and to justify it. ... How can anybody in their right mind, with over forty years of concrete evidence on the devastation wrought to children, both male and female, with no dad, not see the psychological community publishing trash that minimizes or discounts the importance of fathers?

She then dealt with the same issue via a call from Christine, whose cousin, a lesbian, was at the point of adopting a child. She advised her that

That is the basic, central point. Whether it be two lesbians, a single heterosexual woman, to intentionally make or get a child and raise them in a situation, to obligate them destructively to a family situation with no husband and wife, no father is a travesty and it ought to be illegal.

After some intervening dialogue, Schlessinger took the following position:

You have a moral obligation to save this potential child so it will be directed towards a heterosexual family where it is the most ideal situation for the psychological development of a human being. This is, as I said, a travesty, a moral travesty filling in for the power of the particular ideology that doesn’t give a damn about the kids, only about what we adults want. That’s typical. That’s not, that’s not a gay agenda thing, that’s more an adult agenda thing but particularly speaking there is a powerful, gay, ideological activist power group that makes it an issue of discrimination against them when in reality, it is a destructive reality for children.

On the August 19 show, she referred to NARTH (the National Association for Research and Therapy of Homosexuality) and then took a call from a woman whose sister was living with a lesbian partner who was then pregnant.

Julie: My husband and I since two years ago have become Christians and have strong Christian beliefs. My sister is living in a gay lifestyle. Her live-in girlfriend is pregnant. This is a choice they have made. They are already mad at me because I will not congratulate them on that choice.

The Host: What, of robbing a child of a father? You should congratulate them for that?

Julie: Of what?

The Host: Of robbing a child of a father?

Julie: Right.

The Host: Doesn’t seem like a reason to congratulate anybody.

...

The Host: I can’t celebrate people robbing, two men robbing a child of a mommy or two women robbing a child of a daddy.

Julie: I can’t either.

The Host: It’s as though it were irrelevant. As though it were a fact that a penis and a vagina, male and female, were somehow irrelevant and makes no difference to children. It’s bizarre thinking. It’s self-centred thinking on rights and not thinking what’s in the best interest of children. It horrifies me, so I can’t tell you what to do. I really rail against "You tell me if I should do this." I can’t do that for your life. I could say that, you know, you don’t have ill will toward an innocent child but you don’t have to participate in things you find unholy, immoral, whatever.

While there is also significant medical literature regarding the normalcy of children raised by gay and lesbian couples, that is not the issue here, since, in the Councils’ view, there is no point made by the host which is even directed at gays and lesbians in particular. Schlessinger makes it perfectly clear that, in her view, any child without one parent of each gender, which includes single parent children, will suffer on that account. In the circumstances, no argument of discrimination, much less abusive discrimination, can be sustained.

 
The Paedophilia Issue

The challenged segment of the broadcast of April 12 consisted of a monologue dealing with the publication in the American Psychological Association (APA)’s monthly journal of an article critical of Schlessinger’s views on the relationship between homosexuality and paedophilia. In her comment, she said, among other things:

[U]nfortunately, what the APA says people take as actual science or it’s a final word, like "homosexuality is now normal." How can that be? When a man cannot make love to a woman, how can that be normal? But since they dropped it out of the book of diagnostics, the general public has been made to accept that it is normal, but how can that be? Just use common sense. We’re not talking about the entire person. We’re only talking about the sexual orientation. ... Paedophilia, sexual sadism and such are no longer disorders, according to the APA. They’re only disorders if the person who is sexually masochistic or sadistic is upset about it or it’s ruining their [sic] work. You understand and that’s exactly how homosexuality got normalized [sic] so to me it’s the first step. ... Then it [the article] goes on to say "The bridge Mrs. Schlessinger builds between this study and the so-called attempt to normalize paedophilia is ridiculous."

It is unclear why Schlessinger would make the statement that "Paedophilia ... and such are no longer disorders" unless it was for some dramatic effect, in order perhaps to mock the view of the professionals with respect to a matter of such obvious societal concern. Paedophilia has been, and remains, a mental disorder in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (in DSM-III, 1980, DSM-III R, 1987, and DSM-IV, 1994).

On the June 2 episode, the host talked of a Media Release by the Iowa Association of Chiefs of Police which stated that their association had passed a resolution condemning the American Psychological Association for their then recently published article on paedophilia.

I’m very proud of you guys. Independently and across the country, there are studies which come to the same conclusion that the APA is standing behind, that it is sort of doing an "out of each side of the mouth": "We are completely against child molestation but we’ve examined this piece of study and say it is science." Well, if it’s science then I guess you have to go along with paedophilia. You know? You can’t have it both ways. We’re really good people but we’re leaving this door open. Maybe it’s because they don’t want to look like they made a booboo. You expect more from professionals. There will be much more to this story. This story is not going away until we make sure that this piece of trash cannot be used to hurt children. And it is a piece of trash. The primary person I know of who would be in a position to call this trash is the past president of the American Psychiatric Association. Of course the current Psychiatric Association president has not come to the table on this except in some indirect, insubstantial way. But the past president of the American Psychiatric Association says this is virtually non-science.

On June 10, the host said:

Well, according to Dr. Aarden VanWeg [ph.], an expert in homosexuality and other forms of deviant sexual behaviour in Holland, that although numerically there are more paedophiles that are heterosexual, percentage wise in a population, it is much greater in the homosexual community. So there is some relationship. No, not every homosexual is a paedophile. Obviously not. But it is a greater percentage, much greater.

On August 13, responding to a fax, the host stated:

It goes on and says "Paedophilia and child molestation have zero to do with being gay, homosexual orientation" and that’s not true. That is not true. How many letters have I read on the air from gay men who acknowledge that a huge portion of the male homosexual populus is predatory on young boys. There is nothing new here.

The link apparently drawn by the host between male homosexuality and paedophilia seems tenuous. To suggest that homosexual paedophilia is more prevalent than heterosexual paedophilia is not supported in a significant way by the authorities which she has cited, despite the implication to that effect in what she has said. Moreover, the position is not supported in any of the recent editions of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) referred to immediately above. For example, the third edition (DSM-III, 1980) states that "Adults with the disorder are oriented toward children of the opposite sex twice as often as toward children of the same sex" as does the third revised edition (DSM-III R, 1987), "Attraction to girls is apparently twice as common as attraction to boys." DSM-IV (1994) puts the issue in similar, although not quantitatively identical terms: "Pedophilia involving female victims is reported more often than pedophilia involving male victims."

To the extent, however, that Laura Schlessinger’s argument is only that some individuals, groups or associations may take the APA journal’s article and use it to promote their perspective regarding sexual relationships between adults and children, she does bring the example of NAMBLA and, in the view of the Councils, is entitled to make that point. To the extent, however, that a broadcaster might air any generalized allegation by this or any other host that, at the broader level, paedophilia is more common among members of the gay community than the heterosexual community, without some support or substantiation of that position, there would be a risk that such broadcast could be in breach of Clauses 2 and 6 of the CAB Code of Ethics. Her straightforward assertion on August 13 that the statement that "‘Paedophilia and child molestation have zero to do with being gay, homosexual orientation’ ... is not true" is an inaccurate and prejudicial statement. Paedophilia is a disorder relating to the molestation of prepubescent children, whether male or female, by an individual 16 years or older, who is at least five years older than the child. Without getting into the relative numbers issue, the effective assertion by the host that paedophilia has to do with being gay is, in the view of the Councils, an abusively discriminatory comment based on sexual orientation in violation of the CAB Code of Ethics.

 
The Issue Surrounding Matthew Shepard’s Death

On April 16, following some comments relating to a high school presentation about the gay community and gay culture, Schlessinger reverted to the issue of the relationship between the position taken by persons like herself and Dr. James Dobson of Focus on the Family and the murder of Matthew Shepard.

Now every time I hear that I get crazed and enraged. It is not open season on homosexuals in this country and the rare time there is an event it’s usually some backwards idiot ... some redneck, skinhead mentality guys but it certainly isn’t regulation members of society and it certainly isn’t how after the Matthew Shepard thing, everybody went after Dr. James Dobson and Focus on the Family because he takes a position against homosexuality being taught in the schools etc. He was viciously attacked after the Matthew Shepard tragedy because they, the gay activists, were saying somehow that the Christian community was largely responsible for that guy’s death. You know what was largely responsible for that guy’s death? Those two guys who killed him did not go out looking for a homosexual to kill that night. They were shooting pool. He went to the bar. He left with two guys he thought he was gonna have sex with. He got murdered. How many women has that happened to? How many women have left bars thinking they were gonna get some action with some guy who raped and murdered and tortured and murdered them? Far more women than homosexual men have ended up dead that way, I would guess. Is that a hate crime against women? I think so but they specifically picked the woman who was willing to leave for sex. If Matthew hadn’t been willing to leave for sex, he might still be alive. That certainly doesn’t make him responsible for his own death but when you put yourself into a situation of going off to have anonymous sex with people you meet at a bar, what kind of person is gonna leave with you? Usually scum.

She concluded:

[T]hat’s just why most people are afraid to speak anymore ’cause you’re told you wish people dead. You’re phobic, you’re hateful, you’re murderous, you’re inspiring death. Wrong. Mainstream America is not out shooting anybody. Skinhead mentalities are doing Jews and blacks and gays and, who knows, Asians. But that is a minute, but dangerous, group. But it isn’t mainstream Christian America. Don’t go there. Don’t play that game. I’m calling you on it. This was a terrible tragedy but it’s also one that might have been avoided if he had simply gone home with his friends instead of thinking he was gonna get a little.

It is not reasonable for the complainants to fault Schlessinger on this point. She is absolutely unequivocal that murder is the worst of all crimes and that there are no circumstances in which she or any conservative Christians would support it as a solution. She argues quite fairly, it would appear, that the fact that she holds some views which do not accord with those of the gay and lesbian population does not mean that she can reasonably be viewed as homicidal. She states, and the Council agrees, that it is totally unjustified for people to assert that, because of the position which she takes on gay and lesbian issues, that she "want[s] gay people killed in the street." She put the generic point as follows:

That’s how bizarre and insane and irrational it gets. Nobody wants anybody killed in the street. But most people do not want an aberrant sexual orientation taught as normal to children.

As to Matthew Shepard, in particular, she asserts that his death did not result from his sexual orientation but rather that he went off with the wrong people for the wrong purpose, namely "to get a little", much as she has often argued that women have done and also ended up dead. Whether she may or may not be right regarding the motivation of the killer is not the issue; it is, to a reasonable listener, clear that she did not will things that way. The Councils can find no fault with the broadcasts in this regard.

 
The Sexual Deviancy Issue

It is, however, the view of the Councils that the host’s statements on the sexual deviancy issue are qualitatively different from those on matters where the Councils have found no breach. They are also, it should be understood, presented on a cumulative foundation, built by the host, of critical and discriminatory (although not abusively discriminatory) comment made about gays and lesbians in virtually every program listened to in the context of this decision. In the case of this aspect of the nature of gays and lesbians, it is not merely the words used, but their cumulative effect and the admittedly pejorative perspective of the host regarding the sexual practices which she describes which are at issue. As a result, with respect to this issue, it is the view of the Councils that what the host may innocently describe as "opinion" in fact and in law amounts to abusively discriminatory comment based on the sexual orientation of the identifiable group about which those statements were made. The standards established by Canada’s private broadcasters represent the limit of permissible expression and, in the view of the Councils, the host has, to the extent described below, exceeded the codified bounds of freedom of expression.

In the first place, the CBSC is well aware of the fact that both the American Psychiatric Association and the American Psychological Association have not for many years considered either homosexual or heterosexual proclivities of any diagnostic significance. Although, as long ago as 1952, the first edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders even codified such current generally accepted behaviours as masturbation and fellatio, as well as homosexuality, as pathological, homosexuality ceased to be viewed by the psychiatric profession as a disease, illness or even psychiatric disorder as least as long ago as DSM-II in 1973. Laura Schlessinger herself recognized this on several occasions in the program episodes reviewed. She challenged the position of those Associations on homosexuality, to be sure, but she did acknowledge it. That being said, the host consistently and vehemently asserted, on numerous occasions in the episodes complained of, that the sexual behaviour of gays and lesbians is either abnormal, aberrant, deviant, disordered, a biological error or dysfunctional, despite the fact that the professional associations responsible for such issues do not consider that homosexuality is even sufficiently abnormal to be characterized as pathological or diagnostically relevant.

Without being exhaustive regarding those instances, on April 12, she challenged the characterization of homosexual love as "normal". On the 14th, she referred to it as a "disordered behaviour" and as an "aberrant sexual orientation". On April 16, it was framed several times as "sexual deviation" and on June 10 as "sexual deviancy" and frequently as "deviant sexual behaviour". On August 13, in explaining the use of the term "gay", she said:

One of the first things you do is rename behaviours or what have you. Once you rename it... It’s like in Vietnam, I remember quite clearly. Instead of calling them North Vietnamese, South Vietnamese, Communist or what have you, they started calling the Vietnamese agents gooks. One of the reasons you call them gooks is because it’s easy to kill a gook, harder to kill a person. So in changing the name of the thing, it changes how we perceive it and how we can behave toward it. When we have the word homosexual, we are clarifying the dysfunction, the deviancy, the reality.

On the same show, she stated where she would stand on the civil rights aspect of the issue, were she faced with it (she concluded that this was not such a situation):

Please, this is not about civil rights ’cause I would be the first one in the front of that line and I’m here to tell you that right now. I’d be the first one in the front of that line. But this is about taking a deviant behaviour, a dysfunctional behaviour, normalizing, sexualizing our kids. [Emphasis added.]

On the August 24 episode, the host disputed a position taken by Joan Garry, the Executive Director of GLAAD. She argued:

I have never called homosexuals biological mistakes. I have said the sexual orientation is clearly an error. With penises and vaginas we were meant for heterosexual sexual acting out in order to procreate the species. I mean that is just irrefutable. But she is outright lying by distortion. There are different ways to lie. This one is by distortion and misrepresentation. I have never called homosexuals errors. I have called the sexuality an error. ... I want you to know that Joan Garry completely misrepresented my presentation. I have never called a people an error. I have called the sexuality, orientation, an error. And I think that is irrefutable and obvious. It’s dysfunctional, it’s deviant. According to religion it is not moral. But biologically it is clearly an error. What causes the error, I can’t argue about. A lot of professionals in the field believe it is psycho-social. Whatever the issues are, I have never called homosexuals errors. That’s a misrepresentation. [Emphasis added.]

She also described (on August 13) the point at which she turned from the issue as a civil rights issue. Her assertion was that she dealt only with the sexual behaviour and not with the individuals otherwise in their social and human roles:

Where I turned is when the compassion and the basic civil rights turns into the destruction of the family, the manipulation of children to accept deviancy as diversity. That’s where I turned. That’s where the worm turned. And don’t tell me it’s not there. [...]That they can be great veterinarians, great plant growers, great anything is a fact. I’m talking about the sexuality.

The extent of her abnormality and dysfunction argument can also be appreciated in the context of her position that reparative therapy is required to restore gays and lesbians to "normalcy":

I would like homosexuals to have the ability to get reparative therapy so they could live quote "normal lives" and have the benefits of a heterosexual relationship.

The host’s perspective is clear and unambiguous. Whether the terms she uses are "abnormal", "aberrant", "dysfunctional", "disordered", "deviant", "an error" or the like, her terminology is clearly pejorative. She is unhesitatingly critical, negative and unambiguous and her words are as critical and unrelenting as she can make them. In the end, she is utterly rigid about a fundamental issue which goes to the nature, the essence of gays and lesbians. It is the view of the Councils that the host’s argument that she can "surgically" separate the individual persons from their inherent characteristics so as to entitle her to make comments about the sexuality which have no effect on the person is fatuous and unsustainable. As the Supreme Court has said, where an identifiable group of persons is "defined by an innate or unchangeable characteristic", it will be protected by the human rights provision of the broadcasters’ Code of Ethics in Canada just as all Canadians are protected by the Canadian Charter of Rights and Freedoms. The sexual practices of gays and lesbians are as much a part of their being as the colour of one’s skin or the gender, religion, age or ethnicity of an individual. To use such brutal language as she does about such an essential characteristic flies in the face of Canadian provisions relating to human rights.

Whether or not Americans are so protected in their country is a non-issue for the CBSC. Gays and lesbians are so protected in this country. Whether it is or is not the case in the United States, gays and lesbians constitute a group benefiting from overwhelming judicial and legislative acknowledgment of gay and lesbian rights, not to mention popular support, under the human rights provisions in this country. The words of Supreme Court Justice La Forest cited in the previous paragraph from his opinion in Egan v. Canada [1995] 2 S.C.R. 513 were applied by him in the context of a decision on the constitutional validity of a statute challenged as being in breach of the Charter’s protection of individuals based on their sexual orientation. He also held:

I have no difficulty accepting the appellants’ contention that whether or not sexual orientation is based on biological or physiological factors, which may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs. [Emphasis added.]

Since the sexual practices of gays and lesbians define them as homosexuals and are inseparable from their personas, any attempt by the host to justify her statements on the basis that she is speaking about the practices rather than the individuals must fail. In other words, the Councils have no hesitation in concluding that the statements are discriminatory vis-à-vis gays and lesbians on the basis of their sexual orientation. While there may be uses of the terms "abnormal", "aberrant", "dysfunctional", "disordered", "deviant", "an error" and so on which could, in some circumstances, be reasonable, their sheer weight in these programs and the host’s unremittingly heavy-handed and unambiguously negative characterisation of those sexual practices is abusively discriminatory and in breach of the Code.

 
A General Perspective

Although it is the view of the Councils that, when her positions are analysed one-by-one, most are not in breach of the Code, despite the fact that some of these may be unenlightened and anachronistic, the Councils are left with the uneasy sense that there is an understandable cumulative effect of Schlessinger’s positions on so many matters which concern the gay and lesbian communities. The result of this perspective may well be that, while she does not herself advocate any of the homophobic hostility or, worse, brutality, which can be found in criminal corners of society, from her powerfully influential platform behind a very popular microphone, Schlessinger may well fertilize the ground for other less well-balanced elements, by her cumulative position, to take such aggressive steps. With the power emanating from that microphone goes the responsibility for the consequences of the utterances. It is for such reasons, among others, that the respect of Canadian broadcast standards assumes such great societal importance.

 
Ongoing Breach by a Series

This is the fourth occasion on which the CBSC has had to consider the prospect of recurrent breaches by a radio or television program. In the first such case, namely, CIII-TV re Mighty Morphin Power Rangers (CBSC Decision 93/94-0270 and 0277, October 24, 1994), the two weeks of episodes reviewed were thought to be a fair reflection of the type of approach and attitude which the show could be expected to reflect on an ongoing basis. In that case, the Ontario Regional Council concluded:

that their observations entitle them to take the generalized position that the approach of the entire series is such that it would likely be in breach of those articles of the Violence Code in the same manner as the episodes which the Council members viewed in order to render this decision.

Then, in CHOM-FM and CILQ-FM re the Howard Stern Show (CBSC Decisions 97/98-0001+ and 0015+, October 17 and 18, 1997), the Quebec and Ontario Regional Councils, faced with a substantially similar situation in terms of that show, stated:

[T]he Councils are of the view that, while the subject matter of the daily Howard Stern Show episodes of course varies from day to day, the presentation of the content which is the principal subject matter of this decision remains systematically similar in approach from one day to the next.

Most recently, in CIHF-TV and CKMI-TV re The Jerry Springer Show (CBSC Decision 97/98-1277, May 28, 1999), the Atlantic and Quebec Regional Councils concluded that:

it is their common view that the Canadian private broadcasters must, in this case, as private broadcasters have successfully done in the past, find a way over the course of the next 30 days to ensure that their future broadcasts not include those ... elements of the episodes which would otherwise be in breach of the Code.

It is clear that, in the case at hand, the broadcasters must equally find a way of ensuring, as broadcasters have successfully done in the past, that this show not continue to make abusively discriminatory comments on the basis of sexual orientation.

 
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 these cases, the Council considers that the broadcasters’ responses, while not nearly of the length and detail of those of the complainants, adequately addressed the generic issue raised by the complainants. Moreover, the Councils do not consider that it is reading too much into some of those replies, at least, to sense that the broadcasters may have had more sympathy with the perspective of the complainants, while not thereby weakening in their resolve to defend the right of their program host to express her points of view, even if controversial. That is their right and nothing more is required of them in terms of their replies. Consequently, the broadcasters have not breached the Council’s standard of responsiveness.

 
CONTENT OF THE ANNOUNCEMENT OF THE DECISION

CFYI-AM and CJCH-AM are required to announce this decision forthwith, in the following terms, during peak listening hours and, within the next thirty days, to provide confirmation of the airing of the statement to the CBSC and to the complainants who filed the Ruling Requests.

In the case of CFYI-AM,

The Canadian Broadcast Standards Council has found that CFYI has breached provisions of the Canadian Association of Broadcasters Code of Ethics. The Council found that, in episodes of the Dr. Laura Schlessinger Show broadcast on August 13 and 24, 1999, the broadcaster aired comments by the host which were abusively discriminatory with respect to gay and lesbian persons on the basis of their sexual orientation, in violation of the human rights provision of the CAB Code of Ethics. By broadcasting comments of Laura Schlessinger describing the behaviour of gays and lesbians as aberrant, an error, deviant and dysfunctional, and by making a generalized allegation concerning a link between homosexuality and paedophilia, CFYI breached the provisions of Clauses 2 and 6 of the CAB Code of Ethics.

In the case of CJCH-AM,

The Canadian Broadcast Standards Council has found that CJCH has breached provisions of the Canadian Association of Broadcasters Code of Ethics. The Council found that, in episodes of the Dr. Laura Schlessinger Show broadcast on April 12, 14 and 16 and June 10, the broadcaster aired comments by the host which were abusively discriminatory with respect to gay and lesbian persons on the basis of their sexual orientation, in violation of the human rights provision of the CAB Code of Ethics. By broadcasting comments of Laura Schlessinger describing the behaviour of gays and lesbians as aberrant, deviant, disordered and dysfunctional, CJCH breached the provisions of Clauses 2 and 6 of the CAB Code of Ethics.

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