BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Newstalk ZB – offensive language – socially irresponsible – racist – cocky nigger

Findings
Principle 1 – majority finding that broadcast breached good taste – uphold

Principle 7 – broadcast did not encourage denigration of/discrimination against Africans/African-Americans – no uphold

Order
No penalty

This headnote does not form part of the decision.

Summary

Newstalk ZB’s morning talkback show on 15 September 2000 included an item about a press conference with boxing legend Muhammad Ali, held at the Olympic Games in Sydney the previous day. During the item, the host used the words "cocky nigger" when referring to Muhammad Ali at the time of his gold medal win at the Rome Olympics in 1960.

Jason Ake, Lewis Scott and Mrs A Reeves complained to The Radio Network Limited, the broadcaster, that the words "cocky nigger" breached standards of good taste and decency, and were derogatory and socially irresponsible.

TRN responded that, in the context of referring to how Muhammad Ali had been described forty years ago, the words used were factual and did not breach standards.

Dissatisfied with TRN’s decision, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority upholds the aspect of the complaints that Principle 1 was breached, and the Authority unanimously declines to uphold the Principle 7 aspect of the complaints.

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence listed in the appendices. The Authority determines these complaints without a formal hearing.

On 15 September 2000, Leighton Smith’s morning talkback show on Newstalk ZB included an item reporting on a press conference with boxing legend Muhammad Ali, held at the Olympic Games in Sydney the previous day. The host noted that, forty years after winning gold at the Rome Olympics, Muhammad Ali was "the biggest sensation and drawcard" at the Rosehill races. After describing how the international media had "created mayhem as they greeted him", the host referred to Muhammad Ali as "one of the greatest stars the world has ever known." He then went on to say:

But when you think about it, you know, if you were around at the time and you remember this cocky, this cocky nigger – because that’s what he was, at the time – who had a mouth that could utter things like Robin Williams can and defy everybody … that you couldn’t dislike him, you know.

The Complaints

Jason Ake’s Complaint

Jason Ake complained to The Radio Network Limited, the broadcaster, that the host’s use of the word "nigger" was "extremely offensive" and "totally out of place" in any context.

Referring to public controversy over the word "holocaust" [being used to describe the experience of Maori under colonisation], Mr Ake said he believed the word "nigger", with its surrounding negative connotations, fell into the same category. He suggested there would have been a "justified furore" had a politician used the word "nigger" in the same context, and asserted that for a senior radio host to use such a "disgusting term" demonstrated a "clear lack of responsibility and judgement". He stated:

It is my view that the offending quote is structured in such a way as to present Mr Smith’s personal opinion because he did not in any way attempt to attribute this remark in any ensuing commentary.

Mr Scott’s Complaint

After reading an article in the Sunday Star Times in which Mr Ake outlined his reasons for complaining to TRN, Mr Lewis Scott wrote to the broadcaster requesting that it take "the severest action" in relation to the host’s statement. He said that, as a member of the African/African-American community and a person active socially in both the Maori and Pakeha communities, he would encourage the widest possible boycott of the station if action was not forthcoming.

Mrs Reeves’ Complaint

Mrs Reeves also acknowledged she had not heard the broadcast herself, but complained to the broadcaster that she was "shocked and sickened" to know that the expression had been used by "a broadcaster of Mr Leighton Smith’s long experience." She said she felt "a sense of great shame" to know that someone of the host’s standing in the community could "possibly think that this language would be acceptable in our society." She requested a public apology, in particular to all African-Americans.

TRN’s Response to the Complaints

Mr Ake

TRN advised Mr Ake that his complaint had been considered under Principle 7 of the Radio Code of Broadcasting Practice. Principle 7 and Guideline 7a read:

Principle 7

 In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

7a  Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

i.   factual; or
ii.  a genuine expression of serious comment, analysis or opinion; or
iii.  by way of legitimate humour or satire.

In its response, TRN agreed that the word "nigger" had been an unacceptable term for many years, with extreme racist overtones. However, it explained that the presenter had used the expression as part of a "long and glowing soliloquy" which sought to place Muhammad Ali in the context of his early rise in boxing and that it represented how "a wide section of the global community" had sometimes referred to Muhammad Ali. In support of that contention, TRN included a copy of an unattributed magazine article in which Muhammad Ali’s contemporary, boxer Sonny Liston, had been described as a "bad nigger". TRN went on to say:

The reference, therefore, to "cocky nigger" places Cassius Clay in the way he was described by many, 40 years ago.

The broadcaster acknowledged the sensitivity of the complaint and said it had talked the complaint through with the host. However, it declined to uphold the complaint on the basis that, in context and because of its "factual nature", the statement did not breach Principle 7 of the Radio Code of Broadcasting Practice.

Mr Scott

TRN advised Mr Scott that the matter was already the subject of [Mr Ake’s] formal complaint and was being dealt with accordingly under the Radio Code of Broadcasting Practice.

Mrs Reeves

TRN questioned the appropriateness of Mrs Reeves’ complaint, saying that because the host’s show was not broadcast in the Wellington area it was difficult to see how the complainant could have been offended by the broadcast. The broadcaster said it presumed Mrs Reeves must have heard about the matter from the Sunday Star Times article. Having already rejected Mr Ake’s complaint under Principle 7 of the Code of Broadcasting Practice, the broadcaster also declined to uphold Mrs Reeves’ complaint.

The Referrals to the Authority

Dissatisfied with TRN’s response, all three complainants referred their complaints to the Broadcasting Standards Authority under section 8(1)(a) of the Broadcasting Act 1989.

Mr Ake’s Referral

Mr Ake argued that by turning down his complaint, Newstalk ZB supported Leighton Smith’s use of the word and that this "[did] not demonstrate the actions of a responsible broadcaster".

Mr Ake expressed strong disagreement with the broadcaster’s contention that the word had once been used by a wide section of the community. He said this argument implied the term had been generally accepted during the 1960s. He wrote:

This is certainly a generalisation and a hopelessly flawed assertion. My complaint relates to Mr Smith using this term in the year 2000, not a perceived acceptance of it in the 1960s.

Mr Ake reiterated what he called his main concern, that the host’s sentence structure demonstrated it was his own personal opinion about Muhammad Ali. He rejected the broadcaster’s explanation that he had taken the term out of context, stating that "[w]hen used in this context ‘nigger’ remains extremely offensive nowadays as it did then."

Mr Ake was dissatisfied with the broadcaster’s complaints procedure, suggesting TRN ought to have provided him with a summary of clarification from the host. Instead, he wrote, "Newstalk ZB chose to produce an unsourced printed article to support its tenuous claims." In addition, the article quoted a police officer’s opinion of Sonny Liston, not Muhammad Ali, and did not reflect the view of a "wide section of the global community".

Mr Ake reminded the Authority that the host had made "no attempt immediately after making this comment to attribute it to any particular source." Finally, as a former broadcaster himself, he said he upheld the virtues of free speech but argued that a person in "such an influential position" needed to balance that right with a fair degree of responsibility.

Mr Scott’s Referral

In his referral to the Authority, Mr Scott took exception to TRN’s failure to treat his letter as a formal complaint. He noted there was nothing in the Broadcasting Act to suggest that a complaint could be dismissed on the grounds that it was not the first complaint received on a particular matter. He also noted that TRN’s response to him did not advise him of his right to seek investigation and review of the decision.

According to Mr Scott, the host’s remark was:

a serious breach of good taste and decency. His remark is deeply offensive and fails to meet programme standards required under the Act.

It also breached the requirement that broadcasters provide safeguards against portraying people in a manner that encourages denigration of, or discrimination against, sections of the community on account of race, he wrote.

Mrs Reeves’ Referral

Mrs Reeves also contended that the comments breached Principle 7 and Guideline 7a of the Radio Code of Broadcasting Practice.

She disagreed that the remarks were acceptable in their context, arguing that even if the term had been in more widespread use at the time of Muhammad Ali’s rise to fame, locating the comment in the past did not lessen the insult. She said:

However, in applying the label "nigger" today, even when referring to the past, I believe the statement is still objectionable. It cannot, by any stretch of the imagination, be regarded as "factual" as is maintained by the station. Mr Smith did not say that others at that time might have used the term, which might have been regarded as factual. He applied the term.

By refusing to apologise, the broadcaster had associated itself with this "derogatory term" and had "displayed an attitude of institutional racism that is very disturbing," she said.

TRN’s Responses to the Authority

In support of its contention that use of the term "cocky nigger" was factual in the context of the early 1960s, TRN enclosed a boxing magazine article published in the early 1970s as well as an extract from a biography on Muhammad Ali. Both used the word "nigger" in the context of the world of boxing, the broadcaster claimed.

TRN expressed its concern about Mrs Reeves’ ability to "bandwagon" off the back of newspaper publicity, given that she had not heard the broadcast and, according to the broadcaster, had taken the comments out of context and not been personally affected by them.

TRN supplied the Authority with a transcript of the host’s comments on the matter. In his explanation, the host denied any intention of racial offence and denied that he was trying to be provocative. He explained that the item complained about was a "tribute to Muhammad Ali". He said the item questioned whether young people today fully appreciated just how magnificent Muhammad Ali had been and contrasted Muhammad Ali’s position today with his image in the late fifties and early sixties. To put the words in their context, the host stated:

It was before Martin Luther King’s 1963 "I have a dream" speech. It was before John F Kennedy’s education reforms. There were still segregated schools, kids had golliwogs and Joseph Conrad’s classic "The Nigger of the Narcissus" was my English Curriculum.

The word "nigger" is not part of my normal vocabulary, but all words have contextual value. While it’s not a word to be bandied about, neither should the promoters of political correctness be permitted to betray reality.

To emphasise his point that context was all important, the host included an article from the internet of a speech given in 1999 by Harvard University Law Professor Randall Kennedy, tracing the use of the word nigger, in which Professor Kennedy said:

The meaning of words – all words, including "nigger" – is contingent, changeable and context-specific.

The host cited other examples of contextual use of the word "nigger" and stated that young African Americans now frequently use the expression as a term of "defiant pride".

He pointed out that of the "tens of thousands listening, no one else even rang my producer or myself, something they are prone to do in numbers when I sin." He questioned Mr Ake’s motives in complaining.

Final Comments

Mr Ake

Mr Ake said that he was dissatisfied with the broadcaster’s action in having talked the issue through with the host and that the host should have been censured. Mr Ake denied any personal agenda in his complaint and drew attention to the Broadcasting Standards Authority’s research showing that the public found the word "nigger" one of the three most unacceptable terms to use on air. He reiterated that the host had not attributed the comment to any particular source. While agreeing that the meaning of words depended on their context, he said "nigger" was unacceptable in the context in which the host used it.

Mr Scott

Mr Scott criticised the broadcaster’s contention that the host’s use of the words "cocky nigger" was "factual". He said:

What is factual is that it was then, and is now, used as a derogatory term to refer to African Americans and expresses racist attitudes. It is not a simple descriptor.

Mr Scott argued that the host did not say that Muhammad Ali had been called a "cocky nigger". Rather, the host had said "that’s what he was at the time". He added:

If it is [the host’s] position that he did not intend this meaning and any misunderstanding as to his intention is just a matter of semantic argument, this seems to me an unacceptably casual attitude in a public broadcaster and deserving of censure.

Mr Scott questioned the host’s understanding of American history, and American race relations in particular, and suggested the host was not equipped to express himself on the issue without causing offence. Additionally, he explained:

it is for me to say, as an African American, what I feel is or is not offensive in relation to the way members of my race are referred to, not someone else.

Finally, Mr Scott argued that the word "nigger" could not be separated from its associations with slavery, racism, oppression and suffering and its use in any context was a matter of "extreme sensitivity requiring the exercise of considerable understanding and care." He concluded:

In my opinion [the host] did not exercise sufficient understanding or care in considering his use of the term "cocky nigger". He may be sincere in stating that he intended no racial offence, but he gave it none the less.

Mrs Reeves

Mrs Reeves denied that the item had not personally affected her, repeating her "personal sense of shame" that a leading broadcaster could make such a statement. She said she had found it difficult to accept the broadcaster’s contention that the broadcast had been "totally in praise of Ali" and stated:

Surrounding the derogatory term with praise does not make it less denigrating.

TRN

TRN expressed disquiet about an article published in New Zealand Truth on 3 November 2000 which it said contained information from the broadcaster’s submission to the Authority about the complaint. The broadcaster said release of the information to the news media was "highly unusual" and seemed prejudicial to a fair consideration of the matter. The question of the release of the information needed to be placed before the Authority for it to "determine the desirability of such material being aired in public while supposedly a determination of the complaint is taking place," it said.

The Authority’s Findings

The Authority addresses first the broadcaster’s concern that publicity in relation to the Authority’s investigation of the complaints may have been prejudicial to a fair consideration of the matter. The Authority was unaware of the Truth article until advised of it by TRN. Therefore the Authority is satisfied that the Truth article had no influence whatsoever in its determination of the complaints.

Initially the broadcaster dealt with the complaints under Principle 7 of the Radio Code of Broadcasting Practice. However, noting that the complaints and the broadcaster’s responses also canvassed issues relating to good taste, the Authority invited the broadcaster to respond to the complaints under Principle 1, which states:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guidelines

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast (eg time of day, target audience).

In its response, TRN advised that the same arguments it had outlined in relation to Principle 7 were applicable. In context, there was no breach of good taste or decency, the broadcaster said. It reiterated:

In the context of the delivery of the words "cocky nigger", the expression was allowable.

The piece by [the host] (one of praise) also sought to show Clay as he was in the 1960s – accurately portraying him as he was often described.

The Authority invited final comments on Principle 1 from the complainants.

Mr Scott indicated that, if anything, the broadcaster had exacerbated the offence originally caused by the host’s remarks. He said that Muhammad Ali, who changed his name from Cassius Clay in 1964, considered Clay his slave name and any reference to him by that name was insulting and offensive. He said he would be surprised if the broadcaster could produce any evidence that the expression "cocky nigger" was often used to describe Muhammad Ali, reiterating his concerns that the broadcaster did not understand the political context of race relations in 1960s America. He considered that the term was so inherently offensive that only "the most qualified and carefully considered use would not contravene standards of good taste and decency." He concluded:

It has been stated more than once that [the host] spoke in praise of Muhammad Ali in that broadcast. He spoke in praise, perhaps, but not with respect.

Mrs Reeves repeated her earlier argument that locating the comment in the past did not lessen the insult.

Principle 1 – good taste and decency

When considering alleged breaches of Principle 1, the Authority is required to take into account the context in which the language complained about took place. As a general principle, the Authority notes, the more offensive the language, the more important the context becomes in determining its offensiveness. In this regard, it points to its own research in which members of the public identified the word "nigger" as the third most unacceptable word they could imagine being used in broadcasting.

The Authority has carefully considered the broadcaster’s argument that the host’s description of Muhammad Ali was intended to reflect the way in which some members of the community may have described him at the time of his gold medal win at the Rome Olympics in 1960. Although it questions the appropriateness of labelling the offending words as "factual" in the context of the 1960s, the Authority does not dispute that the host intended no offence and that the comment was part of a glowing tribute to the boxer.

However, taking into account the context, the Authority is divided as to whether the host’s comment breached standards of good taste and decency. In the majority’s view, the word "nigger" is emotionally charged to such a degree that it should be used only with the most extreme care. The word’s inherent meaning, with its historical connection to slavery, and as a symbol of racism and oppression, must be balanced with the context in which it was used. In the majority’s view, it is not enough in hindsight for the broadcaster to explain what was really intended. While acknowledging the lack of intent to cause offence, the Authority points out that intent is irrelevant to a breach of Principle 1. The fact remains that the words caused offence and, in the majority’s view, on an objective test taking both community values and the context into account, they breached the requirement for good taste in Principle 1.

A minority disagrees. It does not dispute the inherent potential for the words complained of to offend, but it considers the host’s intention was clear and his purpose in using the words could not reasonably be deemed to be offensive. In reaching this conclusion, the minority accepts that the host was referring to historic racist views which formed a large part of the obstacles Muhammad Ali had to overcome in his career. It also notes that the words were used in the context of an emotional and unscripted spontaneous eulogy. Accordingly, the minority finds no breach of good taste and decency.

Principle 7 – broadcasters required to be socially responsible

When it considers the comments under Principle 7, the Authority is unanimous in holding that no breach occurred. In order to breach that principle, it would have been necessary for the broadcast to portray Muhammad Ali in a manner which encouraged denigration of or discrimination against African-Americans. When it takes into account the comment’s context as part of a glowing tribute, the Authority is unable to find this principle transgressed.

For the reasons given, a majority of the Authority upholds the complaint that a broadcast by The Radio Network on Newstalk ZB on 15 September 2000 breached Principle 1 of the Radio Code of Broadcasting Practice.

The Authority declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may make orders under ss. 13 and 16 of the Broadcasting Act. On this occasion, considering all factors relevant to the complaints and comments made by the broadcaster in response, the Authority finds no penalty warranted.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
29 January 2001

Appendix 1

The following correspondence was received and considered by the Authority when it determined this complaint:

1. Jason Ake’s Complaint to The Radio Network Ltd – 15 September 2000
2. TRN’s Response to the Formal Complaint – 22 September 2000 (plus attachment)
3. Mr Ake’s Referral to the Broadcasting Standards Authority – 26 September 2000
4. TRN’s Response to the Authority – 18 October 2000 (plus attachments)
5. Leighton Smith’s Response to the Authority – 20 October 2000 (plus attachments)
6. Mr Ake’s Final Comment – 30 October 2000
7. TRN’s Further Comment – 3 November 2000
8. TRN’s Further Response to the Authority – 20 November 2000

Appendix 2

1. Mrs A Reeves’ Complaint to The Radio Network Ltd – 3 October 2000
2. TRN’s Response to the Formal Complaint – 5 October 2000
3. Mrs Reeves’ Referral to the Authority – 13 October 2000
4. TRN’s Response to the Authority – 19 October 2000
5. Mrs Reeves’ Final Comment – 30 October 2000
6. Mrs Reeves’ Final Comment – 25 November 2000

Appendix 3

1. Lewis Scott’s Complaint to The Radio Network Ltd – 26 September 2000
2. TRN’s Response to Mr Scott – 28 September 2000
3. Mr Scott’s Referral to the Authority – 3 October 2000
4. TRN’s Letter to the Authority – 6 October 2000
5. TRN’s Response to the Authority – 25 October 2000 (plus attachments)
6. Mr Scott’s Final Comment – 7 November 2000
7. Mr Scott’s Final Comment – 29 November 2000