CANADIAN BROADCAST STANDARDS COUNCIL

BRITISH COLUMBIA REGIONAL PANEL

CHMJ-AM re Tom Leykis Show (Valentine's Day)

(CBSC Decision 02/03-0673

Decided July 22, 2003

S. Warren (Chair), R. Cohen (ad hoc), P. Gill, G. Leighton, M. Loh and E. Petrie

THE FACTS

At the time of this complaint, CHJM-AM (MOJO Radio, Vancouver) was broadcasting the American-originating program The Tom Leykis Show, a call-in program geared primarily towards young males, weekdays from 3:00 to 7:00 pm.  The program features an opinionated host who discusses issues such as sex, women, money and pop culture with his callers.  The challenged episode was broadcast on February 14, 2003, and the general subject matter was a combination of sex and relationship advice in the context of Valentine's Day.  The host took calls from male and female listeners during a live broadcast from a Hollywood, California bar.  The show was preceded by the following audio advisory:

The Tom Leykis Show on MOJO Radio may contain content of an adult nature and is intended for mature audiences only.  Please listen responsibly.

The same advisory was repeated coming out of nine of the 14 breaks for commercial blocks and news updates during the first three hours of the show.

In order to avoid lengthy repetition, no portion of the transcript is cited at this point in the description of the facts giving rise to this decision.  Those portions only which illustrate the matters dealt with in this decision can be found under the various headings below.  The extensive transcript of major sections of the program is found in Appendix A.  Those matters of particular concern to the complainant are found in the letter she wrote to the CBSC on February 18.  She said in part (the full text of this letter and all other correspondence can be found in Appendix B):

In my view, Mr. Leykis is a misogynist, and his show promotes the objectification and hatred of women.  His main theme is that women are nothing but objects to be f.ed and treated badly.  They should never be married, because, as I have heard on an earlier program, they'll never "put out" for their husband, but "just lick it around the edges".

MOJO radio is subject to the Canadian Broadcast Standards Council's Code of Ethics, which states that your programming is to contain no abusive or discriminatory material based on, among other things, sex and marital status.  Further, you are subject to the standards and principles established in the Broadcasting Act and the Radio Regulations.  Section 3 of the Regulations provide that a licensee (i.e. MOJO radio) shall not broadcast anything in contravention of the law (i.e. The Broadcasting Act and The Human Rights Act), any abusive comment that, when taken in context, tends to or is likely to expose an individual or a group or class of individuals to hatred or contempt on the basis of sex, and any obscene or profane language.  In my view, your radio station is in contravention of all of these provisions.

The station's Program Director responded on March 10 as follows, in part:

In particular, your email sets out your concerns regarding some comments made by the Program host that you felt promoted the objectification and hatred of women.

[.]

We appreciate that a number of the Program host's comments may seem derogatory when reviewed in small sound bites.  However, we believe that a reasonably frequent listener to the Program will come to understand this as the host's "shtick" and not a full representation of his beliefs.  For example, on February 14, 2003, the date noted in your e-mail, frequent listeners to the Program would have appreciated that through his often-outrageous comments, the Program host was making observations on the types of people who would poison relationships and he referenced such people as "gold-diggers", etc.  Many of his comments are based on his own life experiences.

However, he often balances his outrageous opinions with counter arguments.  For example, he frequently espouses the value of a strong family unit and the importance of making responsible decisions.  He is a champion of Planned Parenthood and marital fidelity.  His negative stance on unprotected sex between unmarried partners is well known and frequently revisited.  He is also a harsh critic of drunk drivers and regularly urges his younger listeners to complete their education.

We recognize that some listeners may not agree with the Program host's choice of words or find them to be offensive or in poor taste.  In particular, your e-mail refers to the use of the terms "bitch" and "slut".  We appreciate that these words may offend some listeners.  However, the Canadian Association of Broadcasters codes (the "Codes"), administered by the CBSC have clarified that "the broadcaster's programming responsibility does not extend to questions of good taste".  The CBSC applies current social norms in its interpretation of the Codes.  In previous decisions, the CBSC has acknowledged that "crude or vulgar language is not necessarily obscene or profane" and therefore not in violation of the Codes.  The CBSC has also noted "some language which may at another time have been broadly considered obscene or profane had now slipped into common and marginally acceptable usage."

The complainant was dissatisfied with the broadcaster's response and returned the CBSC's Ruling Request, which has the effect of triggering the adjudication process, on April 2.  The Ruling Request was accompanied by a short note that read as follows:

I wish to advise you that I am not satisfied with MOJO's response to my complaints about the Tom Leykis Show.  In fact, the response was generic, addressed comments I did not make, and did not respond to the issues I raised in the letter.

At some point subsequent to the broadcast of this episode, station management pulled the Tom Leykis Show from CHMJ-AM's schedule.

THE DECISION

The CBSC British Columbia Regional Panel examined the complaint under clauses 2 and 9 of the CAB Code of Ethics and under Articles 2(c) and 4 of CAB Sex Portrayal Code, which read as follows:

CAB Code of Ethics, Clause 2 - Human Rights

Recognizing that every person has the right to full and equal recognition and to enjoy certain fundamental rights and freedoms, broadcasters shall ensure that their programming contains no abusive or unduly 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 disability.

CAB Code of Ethics, Clause 9 - Radio Broadcasting

Recognizing that radio is a local medium and, consequently, reflective of local community standards, programming broadcast on a local radio station shall take into consideration the generally recognized access to programming content available in the market, the demographic composition of the station's audience, and the station's format.  Within this context, particular care shall be taken by radio broadcasters to ensure that programming on their stations does not contain:

(a)        Gratuitous violence in any form, or otherwise sanction, promote or glamorize violence;

(b)        Unduly sexually explicit material; and/or


(c)        Unduly coarse and offensive language.

CAB Sex-Role Portrayal Code, Article 2(c) - Diversity

Television and radio programming shall respect the principles of intellectual and emotional equality of both sexes and the dignity of all individuals.  Television and radio programming should portray women and men as equal beneficiaries of the positive attributes of family or single-person life.  Women and men should perform in a range of occupations and function as intellectual and emotional equals in all types of thematic circumstances.  This should be the case for both work and leisure activities requiring varying degrees of intellectual competence.

CAB Sex-Role Portrayal Code, Article 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.

The Panel listened to a recording of the broadcast and reviewed all of the correspondence.  The B.C. Regional Panel concludes that the broadcast violates each of the foregoing Code provisions.

The Objectification of Women

This Panel considers that the host's comments about women in this program are problematic.  Playing to his location audience at a local tavern, Tom Leykis consistently characterized women as gold-diggers, emphasized that they merited no special treatment or acknowledgment on Valentine's Day, underscored only their worth as objects for male gratification, and put breasts on display, as best he could in a radio context.  His contemptible declarations regarding women were manifest in many ways, among which were those that follow.  He continually used, or condoned the use by others of, the word "bitch", or employing the definite article, "the bitch" in a frequent spoken equivalent of finger-wagging.  He also used "whore" and "vagina" in reference to women and did not hesitate to adorn the panoply of offensive words with adjectival phrases such as "god awful big fat bitch", "money whore", "another illiterate ignorant vagina", "stupid bitch", "money greedy bitch", "pathetic chicks" and so on.

If the foregoing use of description were insufficient (and, in the view of this Panel, it is not), the dialogue of the host and callers frequently reflected, in even more emphatic form, the diminution, degradation and objectification of women.  Pieces of that dialogue are cited here, punctuated (as is noted) by the mindless cheers and catcalls of the audience at the tavern from which the show was broadcast.

Tom:     If you are not stuck with some bitch for Valentine's Day, if you are not out Friday night picking up poo' then you're a foo'.

Tom:     With a six figure bank balance.  Poon.  You're absolutely right, Sir.  You're absolutely right.  You're gonna get laid with this bank balance.

Tom:     You don't know the meaning of the word.  You're another illiterate ignorant vagina calling in here [crowd cheers] and trying to tell me off.  You use big words, you don't even know what they mean, do you, darling?

Andrew: I tell her, all right, let's go to Santa Monica, we'll take a nice little walk       own the beach.  The first words that came out of her mouth "oh you're so romantic, oh I wish more guys were like you."  Dude, I'm gonna take that to the beach and beat it up. [Tom laughs]  That's my standard.  As soon as we get far enough from the pier, where it's just darkness, I'm gonna take her to one of them lifeguard towers and just tear it.

Tom:     I love that!

Sergio:  Hey, Tom, I just want to say to the boys out there that they better hook up with some 'ho' tonight and just tack their ass. [crowd cheers]

                        [...]

Sergio:  But yeah, you know, I just think that Valentine's Day is just totally overrated.  I just think there's no need to spend money on the bitches.  If she doesn't give it up when you at least take her for a drink, the hell with her.

Tom:     That's right.  Dump that bitch.

[Fred says his fiancée's sister then called him and asked him to go out tonight.]

Tom:     Oh really!  The sister's been waiting, warmin' up in the bull pen, waiting for you!  So are you goin' out with her tonight?

Fred:     Yeah, I'm gonna go out with her tonight.

Tom:     You know what?  I think you should take her sister and bang her so god damn hard. [crowd cheers]  You should plug her like a god damn leak, you know what I'm sayin'?

Tom:     There's a lot of women, a lot of women did not get flowers today.  Did not get, you know, roses or candy or phone calls or engagement rings and they're gonna be out getting hammered.  And these women are available for you to exploit.  And I hope you boys are all gonna go out, if not here at the Pig 'n' Whistle, I hope you boys will spread out and find these chicks and nail every one of them tonight. [crowd cheers]  Then dump them like the used Kleenex that they really are.

Tom:     How many of you boys left the bitch at home on Valentine's Day, how many?  [crowd cheers]

Tom:     I'll tell you what, boys.  I am going to be signing a rack within the next 10 minutes.  Right here on stage, I'm gonna sign a rack right here.

Bob:     Oh yeah, what you say is exactly true.  You can see the facial expressions on these girls who think they're nines and tens and fifteens get chopped down to nothin' and it's great once you say it.  Once you chop 'em down, they are down to a zero.

April:     I have told every single guy, my brother, my friends, every single guy I've ever met to listen to you, Tom, and not put up with some girl's [bleeped word].  Just get as much poon as you can, baby.

Tom:     That's right.  Then toss 'em to the curb.  Kick 'em thru the uprights.

April:     Hell yeah.  'Cause you know what?  These bitches don't deserve it.

Tom:     Crumple them up like a Kleenex and toss 'em.  Right.

April:     That's what I'm sayin', Tom.  You're the man.

[A woman calls about her impending marriage and the discussions she was having with her fiancé about the prospect of a pre-nuptial agreement, which he had proposed be capped at $100,000 with respect to his earnings.  Leykis characterized it as "vaginimony" and said that, if he were her fiancé in such a context, he would give her zero in the agreement.]

Tom:     I mean what am I, what is he paying for exactly?  He's paying to rent your vagina?  What is, what exactly is he paying for?

Crystal:  No, but, you know, I been with him for a long time, blah, blah, blah.

Tom:     So what?  And he's been with you for a long time.  Why don't you pay him for servicing you all the time?

Tom:     The real earnings are, he's the guy makin' the money.  And he's paying for the exclusive rights to your vagina.  That's it.

Mike:    Tom, I just wanted to tell you that in honour of your Valentine's Day show, I dumped my bitch last night.

Tom:     You dumped your bitch on Valentine's Day!  Congratulations!

[In one of the relatively few calls dealing with a non-sexual substantive matter, Michelle said that she wanted to be Tom's sidekick on his bilingual show.  She said that she was hot and able to speak Spanish.  Leykis's reply: "And do you have a nice ass?"]

Tom:     There are Mari's bitches right there, everybody.  There they are.  Take a look.  Oh look at the flash bulbs going off.  You'd think this was the Super Bowl.  Look at this.  That's the Super Bowl of breasts.  Look at that. [audio clip of cameras clicking]  East is playin' West here.  Look at that.  These are amazing breasts.  And if you didn't come down and hang out with us today, you're really missing the two best breasts of the day.  Look at these.  [clip of cameras clicking] Unbelievable.  And Mari is just soaking up the attention.

            [...]

Tom:     The boys would like to see her ass, though.  Look at that.  Mari, the boys want to see your ass.  Oh my god.  You know what?  People hear me describe this stuff on the air, they think I'm makin' it up. Look at this body.  Look at this woman.  Look at this. [crowd cheers]

Just as time marches inexorably forward, new types, styles and limits of program content are encountered.  When Howard Stern came to the Canadian airwaves in September 1997, his sexist commentary left previously unacceptable language of this nature in his chariot's dust.  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 Panels said:

The unrelenting use of terms such as "pieces of ass", "dumb broads", "fat cow", "dikes" (to refer to women because they may have even moderately feminist views), and "sluts" and the like are exploitative and unacceptable. [.]

Stern consistently uses degrading and irrelevant commentary in dealing either with guests or callers.  The CBSC understands, by his demeanour and laughter, that he and, presumably, Quivers [his sidekick] and others on his show find such comments amusing.  It may well be the case that many in his audience find such comments entertaining.  This sort of adolescent humour may work for some in private venues but it is thoroughly in breach of Canadian codified broadcast standards.

The Panels drew the conclusion, which has since stood as the ruling principle for CBSC Panels when such matters arise, that

Women in this country are entitled to the respect which their intellectual, emotional, personal and artistic qualities merit.  No more than men.  No less than men.  But every bit as much as men.

The challenged Leykis broadcast is, in the Panel's view, in its own way, at the level of Stern's comments.  It continues, in its style, the boys-in-the-locker-room banter and the Panel does find that the extent of its disrespect for women and sweeping generalized disregard for their equality are astonishing.  As the CBSC has observed in previous decisions, programming that may be acceptable in the United States may not meet the more respectful standards in the Canadian corner of the global village.  The desensitization that such broadcast mockery of women may generate in Canadian audiences should not be underestimated.  Nor does it bring benefit to our airwaves.  While freedom of expression is a cherished value, the exercise of that freedom without limits does not strengthen Canada's social fabric.  The passages referred to above constitute a breach of Clauses 2 of the CAB Code of Ethics and 2(c) and 4 of the CAB Sex-Role Portrayal Code.

Unduly Sexually Explicit Comments

The principle applied by the Panel is that found in the 2002 CAB Code of Ethics, which prohibits the broadcast of unduly sexually explicit material.  Although the clause is new, it reflects previous CBSC jurisprudence on the point, which has also established the principle that the broadcast of mere sexual innuendo is acceptable in terms of private broadcaster standards.

In CFMI-FM re Brother Jake Morning Show (CBSC Decision 00/01-0688, January 23, 2002), for example, this Panel examined episodes of the station's morning show which featured the usual songs, news, traffic, etc., as well as discussions and comedic sketches that contained sexual innuendo and more explicit sexual content.  While the Panel ruled that those comments that could be categorized as innuendo or double entendre were merely in bad taste, it found that the more explicit segments were inappropriate for times of the day when children could be listening.  Thus, a lengthy conversation in which one host recounted his date of the previous night where he was "givin' it to her" on a workbench and "she's goin' nuts grabbin' my nuts" as well as a comedic sketch in which a woman with a Mexican accent was clearly in the throes of passion yelling out things like "oh the tongue", fell into this category.  In CFNY-FM re The Show with Dean Blundell (CBSC Decision 01/02-0267, June 7, 2002), the Ontario Panel concluded that certain discussions of fellatio and the sex lives of the hosts and celebrities were too sexually explicit for times of the day when children could be expected to be listening.

In the matter at hand, there were also certain examples of broadcast dialogue that the Panel considers unduly sexually explicit.  Several examples follow.

Jayme:  Tom, I'm wondering if you have a, uh, gushing orgasm for me?

Tom:     A gushing orgasm?

Jayme:  Nice and wet.

Tom:     Well, let's see.  Brad, do you have anything moist there, whaddya have?

[audio clip of woman groaning & saying "Oh honey"; ends with sound of splash]
           

Terry:    Well I found out that my previous boyfriend used to give himself b.j.s to completion.

Tom:     Noooo. [Terry laughs]  I'll bet he could do, I'll bet he could do a thousand crunches, right?  At the gym.  That's a man who's in shape.  A man who can give himself a b.j.

Terry:    Well, you know, he didn't think [there was] any problem, you know, with it.  And I thought there was a problem because, you know, I can suck a watermelon through a garden hose and I couldn't complete him.

Tom:     But he could do it.  He could get the job done.

Terry:    He could do it, yeah.  I was no competition to him.

Natasha:So you stimulate a woman's C-spot the way I tell you to and, you do circles and figure-eights around it, okay?  And then you, when you have knowledge of where the G-spot is, you stimulate the G-spot and you go back and forth and back and forth until she has the big O culminating from both areas.  It'll be the most intense orgasm she will ever have.  She will love you.  And you know that oral sex thing you've been begging for?  She will do it over and over and over. [laughs]  It's amazing.

Tom:     Well, you know, these boys are here, these boys are here.  They're hiding out.  It's Valentine's Day and they were trying to get away from whoever they were with today.  You know that.

Natasha:  I know.  But so when they're, you know, when they hook up with their special ladies or whatever, or if you have a one-night stand and you really want to do something different and be the best that she's ever had.  You know, 'cause, I mean, let's face it.  When you make love, you don't wanna suck.  I mean, you don't wanna be the worst lay she's ever had, you wanna be the best, right?

Tom:     You want her to suck, that's what you want.

Natasha:  You can see all my videos by joining Love Teacher.  Love teacher dot com.  It's a video site, adults only.  It's very graphic, okay?  [crowd cheers]  But this woman, this woman puts a camera the size of this Sharpie and it's a camera, though, and she actually puts it right on her G-spot and she shows you a G-spot orgasm from arousal to climax.  It's the hottest footage you will ever see. 

The Panel considers that the foregoing examples were unduly sexually explicit and in breach of Clause 9 of the CAB Code of Ethics.

The Role of Listener Advisories on the Radio

The Panel has rarely had the opportunity to deal with audience advisories in the radio context.  First, unlike the situation in television broadcasting, where viewer advisories are frequently a required component of the broadcast of mature material, or material inappropriate for children, they are not required in the radio context.  (Among other things, because of the difference between the two types of media, it has been thought that they were not likely to be as effective and dependable an audience tool in the radio context.)  Second, it follows that they have been so rarely used that there has not been an opportunity to say much about them.  In the case of 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 Panels did

applaud the broadcasters for ensuring that listeners are constantly alerted to the nature of the Howard Stern Show.  Moreover, the broadcasters have not been reluctant to use material critical of Stern in those advisories and this is to their credit.  The CBSC must, however, underscore the fact that the use of advisories never relieves broadcasters of their responsibility to adhere to the standards in the Codes.  Ultimately, of course, the issue is the content of the episodes which must be measured against the Codes.

In the case of the current broadcast, the advisory warns that the program "may contain content of an adult nature and is intended for mature audiences only."  As in the Howard Stern Show decision, the Panel here commends the use of the listener advisory by CHMJ; however, it is also constrained to observe that no advisories, whether in the television or the radio context, can have the effect of absolving a broadcaster from a breach of standards (except, of course, for the circular circumstance in which a breach would occur by reason of the failure to run a required viewer advisory).  The point in the television context is that one type of programming, namely, that intended for adult audiences, is relegated to post-Watershed airing.  Programming of that type must be broadcast with audio and video advisories not because it cannot be broadcast but because there are persons in the audience who might be offended by such material.  This is also true of pre-Watershed programming that can be broadcast but is inappropriate for viewing by children.  In neither circumstance is there any opening for the broadcast of content that breaches a standard.  Nor does a radio advisory render unairable program content passable.  If it fails the standards test, it fails.  Period.  If, on the other hand, it passes the standards test, a thoughtful broadcaster wishing to alert its audience of potentially offensive material, may let the listeners know what is coming.

Broadcaster Responsiveness

In all CBSC decisions, Adjudicating Panels consider the broadcaster's responsiveness to the complainant.  While it is understood that the broadcaster is under no obligation to agree with the complainant, it is expected that its representatives charged with replying to complaints will address the complainant's concerns in a thorough and respectful manner.  The B.C. Regional Panel concludes that CHMJ-AM has met its responsibilities of membership in this regard on this occasion.  Moreover, the broadcaster has taken the more significant step of entirely removing the program from its airwaves.

ANNOUNCEMENT OF THE DECISION

CHMJ-AM is required to:  1) announce this decision, in the following terms, once during peak listening hours within three days following the release of this decision and once more within seven days following the release of this decision during the time period in which The Tom Leykis Show had previously been broadcast; 2) within the fourteen days following the broadcast of the announcements, to provide written confirmation of the airing of the statement to the complainant who filed the Ruling Request; and 3) at that time, to provide the CBSC with that written confirmation and with air check copies of the broadcasts of the two announcements which must be made by CHMJ-AM.

The Canadian Broadcast Standards Council has found that, in its broadcast of the Valentine's Day episode of the Tom Leykis Show, CHMJ-AM has breached certain clauses of the Canadian Association of Broadcasters' Code of Ethics and Sex-Role Portrayal Code.  By using offensive words and expressions, on the one hand, and applauding the recounting of stories demonstrating disrespect for women and sweeping generalized disregard for their equality,  on the other, MOJO radio has breached the Code provisions which prohibit unduly discriminatory comment on the basis of gender and the making of negative or degrading comments on the role of women in society.  By also airing sexually explicit content in that February 14 episode, MOJO radio breached Clause 9 of the Code of Ethics, which prohibits the broadcast of unduly sexually explicit material.

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