BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority did not uphold a complaint an item on 1 News reporting on the verdict of the Kyle Rittenhouse trial in the United States breached broadcasting standards. The complainant considered the item inaccurate and unbalanced as it allegedly misrepresented events around the trial including the origins of the protest, the presiding Judge, and the public’s response to the verdict. The Authority considered the broadcast was materially accurate given its focus on the verdict from the trial. Any inaccuracies were unlikely to significantly affect viewers’ understanding of the item. The balance and discrimination and denigration standards did not apply, and the fairness standard was not breached.

Not Upheld: Accuracy, Balance, Discrimination and Denigration, Fairness

The broadcast

[1]  An item on 1 News, broadcast on 20 November 2021, reported on the acquittal of Kyle Rittenhouse. The item was introduced as follows:

A teenager who shot dead two people at a Black Lives Matter protest in the U.S. last year has been cleared on all charges. The trial of Kyle Rittenhouse has gripped and divided the nation, with even the President commenting on the outcome.

[2]  The reporter noted:

• As the verdict was read out, ‘Kyle Rittenhouse broke down in relief. The crowd outside the courthouse, in disbelief’ (transitioning from footage of Rittenhouse’s reaction to the verdict, to footage showing a crowd outside the courthouse with protest signs such as ‘Justice for the victims’).
• The protest occurred as a result of ‘another shooting, that of unarmed black man Jacob Blake last August. As protesters took to the street, Rittenhouse went on patrol armed with an AR-15, the then 17-year-old claiming he killed in self-defence.’
• ‘Kyle Rittenhouse has become the poster boy for far-right vigilante groups’, transitioning to an excerpt from an interview with President Joe Biden where he was asked if he stood by his ‘past comments equating [Rittenhouse] to white supremacy?’ Biden responded ‘I stand by what the jury has concluded. The jury system works and we have to abide by it.’
• The Judge presiding the trial was ‘also attracting attention, refusing to allow the dead men to be called victims and sparring with the prosecution’. The item then cut to footage from the trial where the prosecutor states ‘my understanding…’ but is cut off by the Judge who says sternly ‘you should have come and asked.’

[3]  The reporter concluded the item stating ‘Rittenhouse was trialled by a legal system, whether justice was delivered, is still being debated.’

The complaint

[4]  Robert Chapman complained the broadcast breached the accuracy, balance, discrimination and denigration, and fairness standards of the Free-To-Air Television Code of Broadcasting Practice on the basis:

Accuracy

• The broadcast was inaccurate in relation to:
  (a)  Jacob Blake being unarmed when he was shot by police. In fact, Blake was armed with a knife.
  (b)  Its description of the public’s reaction to the verdict of Rittenhouse’s trial (“The crowd outside the courthouse, in disbelief”). In fact, ‘half were cheering and the others were booing’.
  (c)  Its representation of the Judge presiding over the Rittenhouse trial. The complainant alleged ‘there was a suggestion that the Judge was biased against the prosecution’.
  (d)  Rittenhouse’s depiction as the ‘poster boy for white supremacists’. The complainant considers this was inaccurate, as Rittenhouse is not a white supremacist.

Balance

• The broadcast lacked balance, for example in its portrayal of the public’s reaction to the verdict (‘The crowd outside the courthouse, in disbelief’) as it ignored the reaction of Rittenhouse supporters. The complainant considered Rittenhouse’s verdict was an issue of public importance as required for the balance standard to apply, as people in NZ took notice of the trial, and our Prime Minister had commented on other US cases, such as the Dobbs v Jackson Women’s Health Organization case overturning Wade v Roe.

Discrimination and Denigration

• The statement that Rittenhouse is a ‘poster boy for far-right vigilante groups’ was discriminatory.

Fairness

• It was unfair to suggest the Judge was biased by berating the prosecution.

[5]  Chapman also noted ‘Three clear instances of Rittenhouse being attacked can be viewed’ in video footage presented at the trial in support of Rittenhouse’s defence of self-defence and requested the Authority ‘get the footage of the events of that night’ in order to properly consider the complaint.

[6]  When requested to confirm the standards Chapman would like the Authority to consider on referral, they noted ‘all of them’. We are only able to consider standards raised in the original formal complaint (or could reasonably be implied in that complaint). Therefore, we are unable to consider this complaint under additional standards.

The broadcaster’s response

[7]  TVNZ did not uphold the complaint for the following key reasons:

Accuracy

• While accepting it was inaccurate to describe Jacob Blake as being ‘unarmed’ when he was shot by police, TVNZ did not consider this inaccuracy would ‘significantly affect the audience’s understanding of’ Rittenhouse’s trial. Further, it was not ‘material to the discussion of the Rittenhouse verdict that viewers are informed about Jacob Blake’s alleged criminal offending.’
• ‘The description of how the crowd outside the courthouse reacted is not a matter which is regulated by this standard.’
• It was ‘correct to say sparring took place between the Judge and the Prosecution.’
• The broadcast ‘made no claim Mr Rittenhouse was a member of any extremist group, or that he [was] a white supremacist. However, it has been widely reported in the US… that Mr Rittenhouse was observed drinking with the Proud Boys, a recognised far-right organisation. He was pictured at that time flashing a hand sign that has been designated [a] hate symbol by the Anti-Defamation League’.¹

Balance

• The balance standard only applies when a ‘controversial issue of public importance’ is discussed. TVNZ did not consider ‘criminal court proceedings of US citizens in the US is such an issue in New Zealand. While the Court case touched on issues which are of interest to the international community, it did not elicit the level of ongoing public debate which is required for broadcasts to be subject to this standard.’

Discrimination and Denigration

• ‘White supremacists’ were not a ‘section of the community’ for the purposes of this standard.

Fairness

• The brief comment that the presiding Judge was ‘also attracting attention, refusing to allow the dead men to be called victims and sparring with the prosecution’ does not mischaracterise the interaction and so is not unfair to the Judge.

[8]  There was a delay by the broadcaster in responding to Chapman’s complaint, which was the subject of a complaint to the Office of the Ombudsman | Te Tari o te Kaitiaki Mana Tangata. Following resolution of the complaint regarding the delay, the broadcaster provided a response to Chapman’s complaint about the broadcast, which was then referred to us.

The standards

[9]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁴ Programmes may be misleading by omission.⁵

[10]  The balance standard⁶ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁸

[11]  We consider the accuracy and balance standards are most relevant to Chapman’s concerns, and have focused our consideration on these standards accordingly. We deal with the remaining standards briefly at paragraph [24].

Our analysis

[12]  We have watched the broadcast and read the correspondence listed in the Appendix.

[13]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁹

[14]  While the complainant has requested we view footage from the night of the protest, the footage is not required to properly consider this complaint, which is focused on a report on the verdict in the trial of Rittenhouse. It is not the Authority’s role to determine whether Rittenhouse’s defence of self-defence should have been successful. Rather, our role is to determine whether the specific broadcast breached the applicable broadcasting standards in the context in which it was broadcast.

Accuracy

[15]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁰

[16]  Further, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment, or opinion, rather than statements of fact.¹¹ 

[17]  In this instance, we did not consider the alleged inaccuracies would have significantly affected viewers’ understanding of the item as a whole. The item reported on Rittenhouse’s acquittal. It did not discuss the substantive merits of the case or detail the events leading up to the trial. Therefore, we do not consider the alleged inaccuracies material in this context.

[18]  Regarding each alleged inaccuracy:

• Blake being armed – Blake was briefly mentioned in the item, to provide context as to the beginning of the protest Rittenhouse attended. Whether he was armed does not affect viewers’ understanding of the item, which focused on the verdict in Rittenhouse’s trial.
• Crowd reaction – We accept the crowd outside the courthouse was divided in their opinion on the verdict¹² and the broadcast may have suggested the crowd was solely in opposition. However, as the item was introduced as noting the trial had ‘gripped and divided the nation’ and included comment from President Biden standing by the jury’s conclusion, viewers would have understood the verdict was nevertheless contentious.
• Judge bias – The broadcast did not state the Judge was biased by berating the prosecution. It stated the Judge attracted attention and was ‘sparring with the prosecution’, including footage from the trial. This was a detail open to the broadcaster to include as part of its editorial decision-making.
• White supremacist – the broadcast did not state Rittenhouse was a white supremacist, but rather that he had become the ‘poster boy for far‑right vigilante groups’. The broadcast transitioned to a question posed to Biden, asking if he stood by comments associating Rittenhouse with white supremacy.¹³ In this context, viewers would have understood the statement had backing, at least through Biden’s previous comments.

Balance

[19]  The first question for the Authority is whether the balance standard applied to this broadcast. A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance,’ it must be ‘controversial,’ and it must be ‘discussed’.¹⁴

[20]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹⁵  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁶

[21]  The Authority has found, in some cases, court decisions in the United States may be such issues, recognising the potential international implications.¹⁷

[22]  We do not consider this item, however, amounted to a ‘discussion’ of a controversial issue of public importance. Rather, it was a straightforward news report on the verdict of the Rittenhouse trial.¹⁸ While there has been wider debate around the trial,¹⁹ this item only briefly referred to that debate. Therefore, the standard does not apply.

[23]  We also consider the complainant’s concerns regarding the crowd’s reaction to the verdict better addressed under the accuracy standard, above, as the specific reaction following the verdict is also not an issue of public importance.

Remaining standards

[24]  The remaining standards either did not apply or were not breached:

• Discrimination and Denigration:²⁰ This standard only applies to broadcasts directed at ‘recognised sections of the community.’ It is not applicable to Rittenhouse as an individual,²¹ or to white supremacists, who are a group of people holding similar views.²²
• Fairness:²³ This standard requires broadcasters to deal fairly with any individual referred to in a broadcast. The complainant’s key concern under this standard is that it was unfair to suggest the Judge was biased by berating the prosecution. The standard is not directed at addressing whether facts are ‘fairly’ or misleadingly conveyed (which are matters for the accuracy or balance standards) and is therefore not applicable to these concerns. In any event, as the Judge holds a public office, there is a higher threshold in finding unfairness.²⁴ Further, the trial was televised²⁵ and both the trial and the Judge himself attracted a fair degree of public attention.²⁶ Robust scrutiny of his actions in these circumstances is expected.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
8 February 2023    

Appendix

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

1  Robert Chapman’s formal complaint to TVNZ – 20 November 2021, 17 January 2022

2  TVNZ’s decision on complaint – 28 October 2022

3  Chapman’s referral to Authority – 7–14 November 2022

4  TVNZ confirming no further comments – 7 December 2022

¹ Citing Wilson Wong “Kyle Rittenhouse, out on bail, flashed white power signs at a bar, prosecutors say” NBC News (online ed, 15 January 2021); Corrinne Hess “Prosecutors Ask Court To Ban Kyle Rittenhouse From Going To Bars, Associating With Proud Boys” Wisconsin Public Radio (online ed, 14 January 2021); and Katie Shepherd “Kyle Rittenhouse flashed hate symbols, posed with Proud Boys in a Wisconsin bar, prosecutors say” The Washington Post (online ed, 14 January 2021)
² Standard 9, Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁶ Standard 8, Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above
⁹ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
¹⁰ Guideline 9b
¹¹ Guideline 9a
¹² See CBS Mornings “Opposing crowds protest outside Wisconsin courthouse awaiting Kyle Rittenhouse trial verdict” YouTube (18 November 2021)
¹³ Presumably a reference to comments made shortly after the events: Cat Wise “In Buffalo, Biden condemns ‘poison’ of white supremacy” PBS (online ed, 17 May 2022)
¹⁴ Guideline 5.1
¹⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁶ As above
¹⁷ Watkin and Radio New Zealand Ltd, Decision No. at [10]; and Pask and Mediaworks TV Ltd, Decision No. 2019-057 at [19]
¹⁸ See Young and Television New Zealand Ltd, Decision No. 2021-093 at [24] for a similar finding regarding a report on centenary celebrations of the Chinese Communist Party
¹⁹ For examples of Rittenhouse as a public figure throughout this period, see Paige Williams “Kyle Rittenhouse, American Vigilante” The New Yorker (online ed, 28 June 2021); Julie Bosman “What to Know About the Trial of Kyle Rittenhouse” The New York Times (online ed, 19 November 2021); Ray Sanchez, Eric Levenson and Brad Parks “’‘Self-defense is not illegal’: Kyle Rittenhouse tells Fox News after not-guilty verdict” CNN (online ed, 19 November 2021)
²⁰ Standard 6, Free-to-Air Television Code of Broadcasting Practice
²¹ Moselen and Television New Zealand Ltd, Decision No. 2020-058 at [14]
²² See Arps and Television New Zealand Ltd, Decision No. 2019-073A at [8] where we found people holding anti-Islamic views did not amount to a ‘recognised section of the community’ for the purposes of the standard.
²³ Standard 11, Free-to-Air Television Code of Broadcasting Practice
²⁴ See: “Complaints that are unlikely to succeed” Broadcasting Standards Authority | Te Mana Whanonga Kaipāho <www.bsa.govt.nz> at ‘Fairness applied to politicians/public figures’
²⁵ Ashley Collman “The Kyle Rittenhouse trial has been streaming live for anyone to follow. The judge is no longer a fan of cameras in the courtroom, but legal experts say he's got it wrong.” Insider (online ed, 20 November 2021)
²⁶ Regarding the trial, see Wisconsin Public Radio’s reporting throughout, eg Corrinne Hess “Jury chosen for Kyle Rittenhouse trial in Kenosha; Opening arguments start Tuesday” (online ed, 1 November 2021), and Corrinne Hess “Prosecutor in Kyle Rittenhouse case says judge is not holding defense and state to the same rules” (online ed, 11 November 2022); regarding the Judge, see Ray Sanchez “‘His word is final.’ Judge in Kyle Rittenhouse trial is viewed as tough jurist” CNN (online ed, 10 November 2021), Nicholas Reimann “Judge In Rittenhouse Case Slammed With Accusations Of Bias—Here’s Why” Forbes (online ed, 11 November 2021), and Ron Filipkowski “Rittenhouse legal expert: I've never seen a judge act like this in a criminal trial.” USA Today (online ed, 12 November 2021)