BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Warning: This decision contains language that some readers may find offensive

Summary  

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

The Authority has declined to determine a complaint that a hip hop song contained racial slurs (including the n-word). The Authority noted the broadcaster apologised to the complainant for the offence caused and removed the song from its playlist. The Authority considered this action was sufficient and, in all the circumstances, it was not necessary to determine the complaint.

Declined to Determine (section 11(b) of the Broadcasting Act 1989, in all the circumstances): Good Taste and Decency, Programme Information, Children’s Interests, Violence, Law and Order, Discrimination and Denigration, Privacy

The broadcast

[1]  At 1.13pm on Wednesday 7 April 2021, RDU 98.5FM broadcast a hip hop song by Benny The Butcher & Harry Fraud, When Tony Met Sosa, that contained a stereotype about Jewish people, nigger¹ 14 times, and references to criminal activity and violence:

Ay yo, you know every time I come back my shit A1
N***** be like, "Yo, ay yo, you saved this Rap shit"
I be like, "Nah, this Rap shit saved me though"

Uh, when n***** say they need less trappers and more poets
I kept talking to hustlers that's more heroic
It's a difference when you rise out a ghetto, come back and grow it
The game broke my heart in three places I never show it
Close my eyes and a voice in my eardrums tell me 'fore the feds come
To turn these breadcrumbs to a hedge fund
Y'all the type to change your life when n***** survive shootings
You made it out alive, retired and drive Uber
…
Y'all dumb n***** broke 'cause money and accidents don't mix
Traffic my flows just like I'm back to my old tricks
Been a young legend I caught flashes in '06
…

I let n***** talk all last year I was too modest

Whole gang up and my safe stuffed like a Jew wallet, uh…

…

The Butcher coming, n****
Fuck n***** talking 'bout?
Every time I come back my shit A1
That's why the n***** in the jails fuck with me
That's why the n***** in the offices fuck with me
Ayo Fraud this shit crazy
This nostalgic, n****
Shit felt like when Tony met Sosa
…

The complaint

[2]  Tyrone Foster complained the song was offensive to him and his children:

• ‘Not only does the song include racial slurs, there was no content warning before the show aired.’
• ‘This aired during the school holidays and the song encourages violence, encourages people to disrespect authority, and by using the n-word over 10 times, including twice in a derogatory manner, it discriminates against marginalised people and youth.’

[3]  Mr Foster subsequently specified his complaint as being made under the good taste and decency, programme information, children’s interests, violence, law and order and discrimination and denigration standards. He also complained the broadcaster breached his privacy by informing its announcers of his complaint.

The broadcaster’s response

[4]  RDU did not uphold Mr Foster’s complaint for the following reasons:

• ‘The music in question is from the “Hip Hop” genre. This music has grown out of African American street culture and extreme poverty in modern western society. The language of this music is indicative of its background. Words such as ‘n*****’ have been re-appropriated by black culture as a way of affirming a sense of pride and place. The violence of the dialogue must be interpreted as narrative. These raps are stories of a street culture that is very real if very removed from life in New Zealand.’
• ‘Hip Hop music is popular with our audience and RDU decides to playlist the genre as it is artistically and culturally interesting. The song in question has no narrative around White Supremacy or racism.’
• ‘RDU is cautious with its selections and songs that make it on to our playlist, however, we will not compromise on playing music which RDU consider[s] is of artistic merit.’

[5]  However, RDU apologised for any offence caused and subsequently advised, ‘we have withdrawn the [song] from [our] playlist to display our willingness to resolve [the matter]’.

Outcome: Declined to determine

[6]  Section 11(b) of the Broadcasting Act 1989 authorises the Authority to decline to determine a complaint if it considers, in all the circumstances of the complaint, it should not be determined.

[7]  We decline to determine Mr Foster’s complaint for the following reasons:

• While we acknowledge this song will be offensive to some, the Authority is charged with achieving an appropriate balance between the important right to freedom of expression and the avoidance of harm. We are particularly conscious of the context in which the song was broadcast:
  • RDU is an alternative radio station. It has a target audience of young adults. The demographic breakdown of its audience at the time of the broadcast was 60% male and 80% student or under the age of 45. Hip hop music is popular with RDU’s audience and is a regular feature.
  • The use of the n-word by African American hip hop artists is widespread and well discussed. For example, a study has found hip hop is the most ‘profane’ genre of music, with an average of 1 profanity every 47 words, and the most common profanity is the n-word.²
  • The song When Tony Met Sosa tells the story of the artist’s ‘ascent to rap stardom and how it was a long road’,³ and his ‘rise out a ghetto’, within the context of its genre and a particular street culture and experience.
• Ultimately, however, the broadcasting standards regime provides a means of recourse when broadcasters fail to respond to complaints in a satisfactory manner. In this situation, we have seen the broadcaster work with the complainant to resolve his concerns. Consistent with the broadcaster’s approach in a similar case which the Authority declined to determine,⁴ RDU apologised to the complainant and, eventually, removed the song from its playlist.

[8]  In these circumstances, we consider any harm potentially caused by the broadcast has been mitigated by the broadcaster’s actions such that regulatory intervention by the Authority is unnecessary.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

11 August 2021    

Appendix

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

1  Tyrone Foster’s original complaint correspondence – 7, 12 April 2021

2  RDU’s decision on the complaint – 7, 9, 13 April 2021

3  Mr Foster’s referral to the Authority – 13 April 2021

4  RDU’s response to the referral – 15 April 2021

5  Mr Foster’s further comments – 21 April 2021

6  Mr Foster’s clarification about ‘racial slurs’ – 11 June 2021

7  RDU’s response regarding ‘racial slurs’ – 18 June 2021

¹ We have included this word in full on one occasion, for accuracy of reference purposes, but subsequently censored the word, in recognition of its offensiveness.
² “Profanity in lyrics: most used swear words and their usage by popular genres” Musixmatch (online ed, United States, 17 December 2015)
³ Jacob Sullivan “Review: Benny the Butcher and Harry Fraud deliver their best on ‘The Plugs I Met II’” Daily Aztec (online ed, San Diego, 24 March 2021)
⁴ O'Callaghan and Radio Active Ltd, Decision No. 2004-063 at [24]