BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Willie and JT Show – hosts discussed industrial dispute at Ports of Auckland – host Willie Jackson made controversial comments in support of striking workers, for example, “I hope they get aggressive down there at the wharf”, “Go and bust your pickets over some of these scabs”, and, “I am into militant action” – comments allegedly in breach of law and order and responsible programming standards

Findings

Standard 2 (law and order) – taken in context, the comments amounted to the host’s vehemently expressed opinion – listeners would not have taken the comments seriously – broadcast did not encourage listeners to engage in unlawful activity, taking into account clarifications and retractions – high value protest speech was engaged so upholding the complaint would unjustifiably restrict freedom of expression – not upheld

Standard 8 (responsible programming) – subsumed into consideration of Standard 2

This headnote does not form part of the decision.

Introduction

[1]  During the Willie and JT Show, broadcast on Radio Live on 12 March 2012 between 12pm and 3pm, the hosts Willie Jackson and John Tamihere discussed an industrial dispute at the Ports of Auckland. Willie expressed his support for striking workers, and in doing so, made a number of controversial comments, for example, “I hope they get aggressive down there at the wharf”, “don’t stand by and wave your flags. Go and bust your pickets over some of these scabs”, and, “I’m into militant action”.

[2]  Aaron Bhatnagar made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the host’s comments incited physical violence and the destruction of personal property.

[3]  The issue is whether the programme, and specifically the host’s comments, breached Standards 2 (law and order) and 8 (responsible programming) of the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about, as well as a broadcast from the following day (see paragraphs [15] to [16]), and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. We acknowledge the importance of the values underlying that right. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant standards (proportionality assessment).

[6]  The comments subject to complaint were made during a heated discussion about the Ports of Auckland dispute, a highly charged industrial dispute that had attracted widespread media coverage and a high level of public interest. Willie expressed his views in support of the strikers in an emotional, passionate, and hyperbolic way. As a counterbalance, his co-host, JT, criticised what he described as the “union movement”. In calling for “militant action” and “aggression” at the wharf, Willie was putting forward the idea, based on his experience as a former union official, of using extreme and combative activity, to stand up for one’s rights and ultimately to create change. The speech was provocative and designed to attract attention and generate debate.

[7]  We are concerned here with protest speech which is seen to be of high value. It is a subset of political speech which is important in our democratic society.¹ We are therefore cautious about interfering with the broadcast and reception of this programme.

Did the programme, and specifically the host’s comments, encourage listeners to break the law or otherwise condone or promote criminal activity?

[8]  The intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.² The words “encourage”, “promote”, “glamorise” and “condone” are strong words, requiring a high threshold before a broadcast will be considered to have supported criminal activity in breach of the standard. The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.³

[9]  Mr Bhatnagar argued that Willie made “personal attacks” against Ports of Auckland management and incited striking workers to “militant action”, and to “bust” placards over people and their cars. He wrote, “At its worst, Jackson’s comments could well start a riot or widespread violence in a precinct that has inflamed tensions and sporadic examples of physical intimidation.”

The broadcast

[10]  In evaluating speech which is the subject of a complaint under this standard we need to do more than assess the literal meaning of the words used. We need to look carefully at the context in which the words were used and then judge the likely consequences as best we can. If speech inciting violence is being seriously addressed to an audience that is likely to respond, then clearly that would amount to a breach of the standard. On the other hand, if words which on their face encourage violence but are delivered in a flippant or humorous way and would never be taken seriously, these would not amount to a breach. There is a wide area between these two points where speech will sometimes offend a standard and sometimes it will not.

[11]  Willie made the following comments during the broadcast:

• “I’m talking about your [co-host’s] dirty, filthy, rotten mates like that chairman, that slickchairman, who you took four calls with the other day, who was in here on Thursday…”
• “I hope they get aggressive down there on the wharf. I hope they block them out. You know, if you want to win something you’ve got to get a bit physical here. Come on you wharfies, don’t stand by and wave your flags. Go and bust your pickets over some of these scabs going in there. Take some action you mugs… See, one of the problems is, if you really want something you’ve got to act… you don’t go ‘stop’, then the scabs go in and they take your jobs. Go and bust your picket or your placard on their cars. I support that action.”
• “Look, I’m into militant action [laughter], go and occupy. If I was them I’d go and sit on that [name]’s car. I’d sit on his car, occupy his car, occupy his office, occupy everywhere. Do what   you have to do.”
• “If I was on a picket and somebody drove through the picket and it was my job they were driving through to get, I’d smack them with the – not necessarily hit them, but I’d certainly whack their car. I wouldn’t just say ‘oh come on through, come on through and take my job’.”

[12]  RadioWorks accepted that Willie’s comments, when considered in isolation, encouraged a specific group of people to “bust [their] pickets” over people described as “scabs”. However, the comments did not have this effect when considered in context, it argued. The broadcaster referred to the robust nature of talkback radio, and Radio Live’s target audience.

The retractions

[13]  RadioWorks also noted that Willie sought to clarify his position near the conclusion of the programme just before 3pm, within approximately 15 minutes of his earlier comments. For example, he said:

• “Well wharfies [have] got to fight for their jobs. So I’m not telling them to go beat anyone up or kill anyone but they should occupy offices, they should try…”
• “I’m not a thug, I’m advocating for those picketers to get a bit more aggressive down there. I don’t want them to beat anyone up, but they should also make it clear these are our jobs…”
• “…but no violence, but you know what to do, do the bizzo…”

[14]  In addition, it referred to a press release issued by Radio Live on the afternoon of 12 March 2012, which further clarified Willie’s comments, as follows:

Radio Live broadcaster Willie Jackson wishes to make it clear that he does not advocate violence of any kind. Jackson says his comments on Radio Live today were made in the context of a heated debate with co-host John Tamihere on the Ports of Auckland industrial dispute, an issue he feels passionately about, and they should not be taken as a call for violent action.

He says, “I want to make it clear that when I say ‘militant action’, I’m talking about taking a stance on an issue in a strong but non-violent manner, in the way that [named activist] took a stance recently with Greenpeace. As I said very clearly in today’s broadcast, I do NOT advocate violence.”

[15]  The next day on 13 March 2012, Willie made the following comments on air at around 11.50am:

…And I said I’m not into any violence, I got a little bit carried away earlier on, and I regret that. But, apart from that I’m a passionate man. I’ll make it clear to you Michael Laws and John Tamihere, I am not a violent man, as you both know. In the old days, Michael, I was a union president at 21, alright, 21 – and that’s very young as a union president – and I ran a lot of pickets, so there was a lot of different tactics in those days that you obviously can’t use today, and I say my heart goes out to those watersiders, you know…

[16]  The following exchange then took place at around 12.15pm during the Willie and JT Show:

Willie:      When you and I talk about issues we get a bit too, sometimes we get a bit carried
              away, get a bit passionate, get a bit excited. Yesterday I said a couple of things early
              on that I clearly recanted later on. You kept saying, “Do you believe in violence on
              the wharf?”, and I said, “No, I don’t, I don’t want anyone beaten up on the wharf”…

JT:         You only wanted their cars smashed up a bit.

Willie:      Well, I said [that] early on, but I don’t want anyone hurt or beaten up at the wharf…
              That dispute on the wharf, I’ve said all along, is not going to be won – and I said it
              yesterday – by violence… You can’t do that these days, you can’t do the stuff we used
              to do on pickets 30 years ago, but it will be won if they get a bit creative on the picket,
              they need get creative…

Our views

[17]  Some of the words used by Willie were extreme and advocated strong industrial action. On the face of it, some of the words encouraged physical violence and damage to property, which ordinarily would breach the law and order standard. While Willie’s later retraction and explanation could be seen as an acknowledgement that the first part of his speech was unacceptable, it can also be seen as a counterbalance. In determining whether or not there has been a breach of the standard, we need to look at the whole broadcast and not at segments of the broadcast in isolation. We have had regard to the press release issued on the same day and to the exchange between the hosts in the following day’s programme, but these are of secondary importance to the initial broadcast taken as a whole.

[18]  We have considered what harm would flow from allowing speech of this kind. It could be said to inflame a situation where tensions were already high and could potentially lead to public disorder and unlawfulness. Here, no violent response arose at the Ports of Auckland and so it cannot be said that this speech in fact stimulated unlawfulness. While the absence of actual unlawfulness is not determinative of a finding under the law and order standard, it is relevant in assessing the effect of the alleged encouragement of criminal activity.

[19]  In reaching our conclusions we have been influenced by the tone and style of the programme. The back-and-forth banter between the hosts was typical fare for this programme, in which the hosts often engage in robust rant and light-hearted argument, with the usual underlying tone of goodwill in their speech. Importantly, JT challenged Willie on every point and provided counter arguments, enhancing their discussion of a subject matter which was controversial and emotionally charged.

[20]  Taken in context, Willie’s comments amounted to his vehemently expressed opinion, which advocated strong protest action at the wharf. Regular listeners would have been aware of his union background and would have understood that he was speaking in an emotional and forceful way in support of the position of the protestors. Overall, and notwithstanding the literal words used, we find that listeners would not have been encouraged to act against the law. Rather, the comments gave vent and a verbal outlet to a particular voice in the Ports of Auckland dispute. The broadcast was an example of how free speech can be pacifying. It allows one to speak with aggression but it also allows that aggression to be countered with argument, amendment, correction and apology if necessary. It may stir up strong feelings but it may also disseminate them equally effectively. In the context of this broadcast all of this occurred.

[21]  Taking all these considerations into account, we have reached the conclusion that this broadcast did not breach the standard for the following principal reasons:

• those parts in which violence was advocated were counterbalanced by another comment which was firmly against violence;
• Willie, very soon after having spoken the words which on their face advocated violence, spoke against violence;
• the speech was uttered in the context of what was good natured banter, of a kind that was not inflammatory;
• taken as a whole, the broadcast did not incite violence although parts of it, if taken literally, did;
• no violence occurred which goes some way towards indicating that the broadcast was not inflammatory; and
• most importantly, there are relevant freedom of expression values which have to be respected. We do not wish to choke off freedom of expression or dampen the free exchange of ideas   even where they become provocative.

[22]  Finally, we think that most listeners would have judged this broadcast to be good humoured, provocative, verbal sparring. It was a kind of letting off of steam. It was not serious advocacy of violence. It was the sort of ranting that our society is willing to allow and not take seriously, particularly on talkback radio.

[23]  For these reasons, and giving full weight to the importance of the speech and the requirements of the New Zealand Bill of Rights Act 1990, we find that upholding the complaint would be an unjustifiable limit on the right to freedom of expression.

[24]  Accordingly, we decline to uphold the Standard 2 complaint.

Was the programme socially irresponsible?

[25]  Standard 8 requires broadcasters to ensure that programme information and content is socially responsible.

[26]  In our view, the complainant’s concerns have been adequately and appropriately addressed under Standard 2. We therefore subsume our consideration of responsible programming into our consideration of the law and order standard.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 November 2012

Appendix

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

1           Aaron Bhatnagar’s formal complaint – 13 March 2012

2          RadioWorks’ response to the formal complaint – 13 April 2012

3          Mr Bhatnagar’s referral to the Authority – 14 April 2012

4          RadioWorks’ response to the Authority – 27 July 2012

¹See, for example, Phair and Radio One, Decision No. 2011-140 at paragraph [7]

²See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

³Hunt and Māori Television, Decision No. 2009-010