Kearney and Television New Zealand Ltd - 2002-200
- P Cartwright (Chair)
- J H McGregor
- R Bryant
- W J & J A Kearney
BroadcasterTelevision New Zealand Ltd
Holmes – interview – inappropriate reference to Noam Chomsky – "he should be shot"
Standard 2; Standard 5; Standard 6 – colloquialism – contextual factors – no uphold
This headnote does not form part of the decision.
 An interview with forensic anthropologist Kathy Reichs was broadcast on Holmes on TV One at 7.00pm on 2 September 2002. Having ascertained that Ms Reichs knew Noam Chomsky, described as an anthropologist (sic), the interviewer (Mr Holmes) commented; "he should be shot".
 The Kearneys complained to Television New Zealand Ltd, the broadcaster, stating that in the context in which it was spoken the comment "constituted the worst and most disgraceful abuse of the position of an interviewer".
 In declining to uphold the complaint, TVNZ said the remark carried no malice and was simply a figure of speech, spoken in jest. However, TVNZ did acknowledge that the jest did not quite come off because too much was left unexplained.
 Dissatisfied with TVNZ’s decision, the complainants referred their complaint to the Broadcasting Standards Authority under s.8 (1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a tape of the interview complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 An interview with forensic anthropologist Kathy Reichs was broadcast on Holmes on TV One at 7.00pm on 2 September 2002. According to Television New Zealand Ltd, the broadcaster, the following brief exchange occurred:
Interviewer (Paul Holmes): Do you know Noam Chomsky? He’s an anthropologist…
Interviewee (Ms Reichs): Yes
Interviewer (Paul Holmes): He should be shot. (Ms Reichs laughs, Mr Holmes smiles…)
 The Kearneys’ complained to TVNZ that in the context in which it was spoken, the comment "He should be shot" constituted the worst and most disgraceful abuse of the position of an interviewer.
 TVNZ assessed the Kearneys complaint against Standard 2, Standard 5 and Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standards (and relevant Guidelines) provide:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6g Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:
i) factual, or
ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or
iii) in the legitimate context of a dramatic, humorous or satirical work.
The Broadcaster’s Response to the Complainants
 In declining to uphold the complaint, TVNZ said the remark carried no malice and was simply a figure of speech, spoken in jest. It was also of the view that the remark could be interpreted as a common colloquial expression meaning that someone, in this case Chomsky, should be reprimanded or put in his place. However, TVNZ did acknowledge that the jest did not quite come off because too much was left unexplained.
 In relation to Standard 2, TVNZ stated it was satisfied that the comment did not seriously suggest any sort of threat to Mr Chomsky and therefore there was no issue relevant to "the maintenance of law and order".
 In respect of Standard 5, TVNZ concluded that the comment was presented as a light-hearted aside and delivered strictly and transparently as an expression of opinion. Accordingly, TVNZ declined to uphold this aspect of the complaint.
 In relation to Standard 6, TVNZ was of the view that Mr Chomsky was not treated unfairly. TVNZ stated:
He is a controversial figure who has frequently been on the receiving end of jibes and criticism in learned articles and publications. This remark carried no malice and was simply a figure of speech delivered in a spirit of good natured mischief.
Accordingly, TVNZ also declined to uphold this aspect of the complaint.
The Referral to the Authority
 Dissatisfied with TVNZ’s response, the complainants referred their complaint to the Authority and also drew the matter to the attention of Professor Chomsky.
 In relation to TVNZ’s view that the comment in question was delivered "tongue in cheek" the complainants stated:
There are many reasons why an interviewee would laugh when suddenly faced with such an unexpected comment … Certainly, it seems to us that, taken by itself, the combined effect of the reaction of Ms Reich and the actual facial expression of Mr Holmes at the time form a quite unsafe basis for a conclusion that this completely "unexpected" and "unexplained" comment … was "clearly delivered "tongue in cheek". It seems [TVNZ] also thought so, for it clearly approached Mr Holmes and sought an explanation as to "what was going through [his] mind when he made the comment. It is the fact that [TVNZ] thought it relevant and proper to do so, in going about its decision-making task, that we consider to be wrong-headed, and prompted us to refer the matter to the Broadcasting Standards Authority.
 In respect of TVNZ’s comment that the phrase "he should be shot" was a common colloquial expression the complainants stated:
The meaning of the phrase, whether literal or colloquial, depends on the context in which it was used; in this case the most startling feature is that there was absolutely no context at all for these words, and certainly nothing to suggest (apart from the significance of the reaction of Ms Reichs, and Mr Holmes "beaming") that a colloquial use was intended.
The Broadcaster’s Response to the Authority
 TVNZ reiterated its earlier views and stated, in respect of a comment made by the complainants, that few people, at the time of the interview or subsequently, could follow the interviewer’s somewhat tortuous thoughts:
…every viewer of Holmes, or listener to his morning radio programmes – is familiar with the unique style of this presenter and his propensity for dropping in mischievous remarks seemingly apropos of nothing. It is part of the appeal of the presenter …Remarks which are obviously mischievous need not amount to a breach of programme standards and in our view did not do so on this occasion.
The Complainants’ Final Comment
 In the Kearneys’ view the broadcaster’s response did not address the issue. They wrote:
Mr Edmunds clearly characterises what Mr Holmes said on this occasion as "obviously mischievous". In a sense it was, but not on the sense that Mr Edmunds is using the word "mischievous". It was mischievous in that it baldly asserted to the viewing audience that Professor Chomsky should be shot; a word other than "mischievous" would better describe that assertion at that time and place.
The Authority’s Determination
 In the Authority’s view there are often items broadcast on the Holmes programme which are perceived by the public as being somewhat controversial. However, of particular relevance in this instance is the Authority’s view that the remark "he should be shot", is clearly a recognised colloquialism.
 In the Authority’s opinion, when it takes into account the nature of the remark and the manner in which it was used, the type of programme and character of the interviewer it is most unlikely that the remark would ever be taken seriously. It was clearly delivered tongue in cheek and apropos of nothing and although the Authority considers additional information concerning the remark may have been useful, its use fell well short of advocating shooting. Accordingly, the fairness standard has not been breached.
 The Authority also concurs with the broadcaster that the remark was obviously and transparently presented as an expression of opinion. As a result Standard 5 of the Code is not relevant.
 In the Authority’s view, the remark was a random colloquialism delivered as an expression of opinion with no malice intended and as such, there had not been a breach of Standard 2, Standard 5 or Standard 6 of the Television Code of Broadcasting Practice.
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the reasons given above, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
17 December 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- The Kearney’s Formal Complaint to Television New Zealand Ltd – 2 September 2002
- TVNZ’s Response to the Formal Complaint – 2 October 2002
- The Kearney’s Referral to the Broadcasting Standards Authority – 19 October 2002
- TVNZ’s Response to the Authority – 30 October 2002
- The Kearney’s Final Comment – 10 November 2002