Avery and NZME Radio Ltd - 2018-076 (16 January 2019)
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Grant Avery
ProgrammeDays with Lorna Subritzky
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
The Authority did not uphold a complaint about the broadcast of the song ‘Hurricane’ by Bob Dylan, which contained the words: ‘And to the black folks he was just a crazy nigger’ [emphasis added], on Coast FM. The complainant found the use of the word in question to be ‘offensive, racist and unacceptable’. The Authority acknowledged the power of the word and that its use is highly contentious in New Zealand. The Authority acknowledged that its role is to reflect community standards and noted that its recent research, Language That May Offend in Broadcasting, showed a significant portion of the public find the use of this word in broadcasting to be unacceptable. However, the Authority also recognised the importance of context in determining whether a broadcast has breached broadcasting standards. In this case, it took into account well established audience expectations of Coast FM, the historical and social significance of the song and Bob Dylan as an artist, and the use of the word in the narrative of a 1970s political protest song. Taking these contextual factors into account, the Authority found that the broadcast of the word in this song was justified on this occasion.
Not Upheld: Good Taste and Decency, Discrimination and Denigration
 The song ‘Hurricane’ by Bob Dylan was broadcast at 11:50am on 15 August 2018 on Coast FM, during Days with Lorna Subritzky. The song included the lyrics:
To the white folks who watched he was a revolutionary bum / And to the black folks he was just a crazy nigger / No one doubted that he pulled the trigger. [Emphasis added]
 ‘Hurricane’ is a protest song written and released in 1975 by Bob Dylan about boxer Rueben Carter. The song describes alleged acts of racism and profiling against Mr Carter, which lead to Mr Carter’s wrongful conviction and imprisonment in 1966.
 Grant Avery complained that the broadcast breached the good taste and decency and discrimination and denigration standards of the Radio Code of Broadcasting Practice, for the following reasons:
- The use of the word in question was offensive, racist and unacceptable, considering audience expectations of Coast FM and its target audience.
- The vast majority of Coast FM listeners would never have heard of the song or appreciated its narrative context or historical timing.
- Coast FM is not ‘a niche station catering for deep and meaningful analysis of song[s]. It is an easy listening channel.’ Days with Lorna Subritzky is a relaxed, magazine style radio show, and its target audience would not expect the use of this word.
- On this occasion the following contextual factors aggravated the potential for harm:
- The likelihood that children would have been listening in the background.
- The Authority’s 2018 Language that May Offend in Broadcasting research indicates people are more sensitive to offensive language on the radio.
- The lack of a warning.
- Coast FM’s audience would not expect to hear such language.
- The song and Bob Dylan's use of this word is nearly 50 years old. The acceptability and tolerance of the word that existed 50 years ago in society does not exist today. The word in question can cause a significant amount of societal and individual harm and the broadcaster must recognise the change society has undergone since the release of this song in 1975.
The broadcaster’s response
 NZME submitted the broadcast did not breach broadcasting standards for the following reasons:
- Given the historical significance of the song, the word in question was used for artistic effect to underline the racial profiling and fraught race relations in the USA at the time. It was not used in a ‘racist’ way.
- While the complainant had never heard of the song, it is one of Bob Dylan’s biggest international hits, achieving critical and commercial success in New Zealand and abroad.
- Acceptability of language is informed by context. The context of this song is that it is, because of the subject matter, considered one of the most impactful protest songs of all time, rallying against racism in the justice system. Bob Dylan’s song describes how acts of racism and racial profiling against Mr Carter resulted in his wrongful conviction. When Mr Carter’s conviction was overturned, the judicial bench commented that the conviction had been motivated by racism. ‘Bob Dylan’s song told that story, and Coast plays the songs that tells the stories of the last 50 years.’
- Coast FM has an adult target audience who understand the cultural significance of the song, considering the time the song was written and Bob Dylan’s ‘integrity’ as a protest songwriter and Nobel Prize winner. Therefore no censoring was required.
- The word was not used maliciously or with encouragement to denigrate.
 The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence. The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress. The purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.
 The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
 We have given careful consideration to this complaint. We recognise the power of the word complained about, and the widespread offence that its use may cause. However, we also recognise the importance of freedom of expression, and when we make a decision on whether broadcasting standards have been breached, we must consider the context in which the right is exercised.
 Our task in relation to this complaint is to weigh the right to freedom of expression, which is valued highly and enshrined in the New Zealand Bill of Rights Act 1990, against the level of actual or potential harm that might be caused by the broadcast. In this case the harm alleged arises from the use of the word ‘nigger’, uncensored in the song ‘Hurricane’.
 The word in question is powerful and has a long history of being used to oppress, degrade and discriminate against people of colour both in the USA and worldwide. Its use today is highly contentious and widely considered to be offensive and inappropriate. Against this background, we have considered what level of real or potential harm was caused by its use in the context of this broadcast and whether that harm was at a level that justified the restriction of the broadcaster’s right to freedom of expression.
 For the reasons set out below, we have decided that this complaint should not be upheld. This decision has not been made lightly.
Good Taste and Decency
 In considering the good taste and decency standard, the primary question for the Authority was whether in the context of the item, the song and its lyrics would have caused widespread undue offence or distress, requiring the restriction of the broadcaster’s right to freedom of expression.
 We recognise that there are a number of factors that may support upholding this complaint. This includes the historical context of the word in question and also the significant offence it can cause when used in media and in everyday conversation. Further, the results of our recent research, Language That May Offend in Broadcasting, indicated that the 2018 social landscape and society’s expectations around the use of racist language is significantly different from that of the 1970s, when the song was released.
 In particular, our research found 62% of all participants found the use of ‘nigger’ to be unacceptable in all broadcasting scenarios, while 33% found it was dependent on the scenario and 6% found it totally acceptable in all scenarios.1 77% of participants found the use of the term unacceptable in a song played on the radio.2
 The role of the Authority is to reflect community standards and attitudes. Our research tells us the public recognise the level of harm this word can cause in broadcasting and the subsequent care broadcasters must take to mitigate or avoid that harm. However, the research is not definitive and we must consider each complaint and broadcast individually.
 In making our assessment of whether the broadcast undermined widely-shared community standards, the context in which the word is used is also highly relevant.3 We found this to be the case in this instance:
- The song is a well-known protest song and has been for 40 years.
- The song itself has social and historical significance and tells a story of racial injustice and inequality experienced by African Americans in the 1960s. It could be argued that the song itself is an example of the power of the right to freedom of expression. The language and expressions used is integral to the narrative of the story told through the song.
- The word in question was only used once in the song, as part of the account of the important historical events described through the lyrics.
- Bob Dylan is well known for using his music to address issues of social injustice and inequality.
- The song was broadcast at 11:53am on a weekday during school term time, when children are unlikely to be listening to the radio.
- Coast FM has an adult target audience.
 In our view, these significant contextual factors mitigate the potential harm that may be caused by the use of this word in ‘Hurricane’. We consider that the broadcast of the word in this song is justified, given the social and historical significance of both the song and Bob Dylan as an artist, who gives voice to social issues, and given the well-established audience expectations of Coast FM. We therefore find that, on this occasion, the broadcast of the song did not reach the threshold required to justify limiting the broadcaster’s right to freedom of expression. However, in making this decision, we do not condone the use of this word in every day usage – it is powerful and offensive. Broadcasters must take care and recognise that in many contexts it has the power to cause significant harm.
 Accordingly, we do not uphold the complaint under the good taste and decency standard.
Discrimination and Denigration
 Taking into account the contextual factors referred to above, we do not consider that this word was used with condemnation or malice. It was part of the narrative of the song and we therefore we do not uphold the complaint under the discrimination and denigration standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 January 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Grant Avery’s formal complaint – 15 August 2018
2 NZME’s response to the complaint – 20 August 2018
3 Mr Avery’s referral to the Authority – 10 September 2018
4 NZME’s response to the referral – 1 October 2018
5 Mr Avery’s further comments - 8 October 2018
6 NZME’s final comments – 9 October 2018
7 Mr Avery’s final comments – 11 October 2018
1 Language That May Offend in Broadcasting (Broadcasting Standards Authority, June 2018), page 7
2 Above, page 30
3 Guideline 1a