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 not upheld a complaint an episode of So Dumb its Criminal broadcast at 9.30pm on Duke breached the offensive and disturbing content and discrimination and denigration standards. The broadcast, hosted by Snoop Dogg, featured a panel of Black comedians commenting on clips of criminals making ‘dumb’ mistakes. The commentary by the panel included multiple uses of the n-word, jokes about white people and ‘white privilege’, and what appeared to be a reference to a fictional kung fu character when describing one of the people featured. While the Authority acknowledged the potential harm in the use of the n-word, it noted this word has been ‘reclaimed’ by the communities affected by it, and was used in the broadcast by Black comedians joking amongst themselves. It also noted that while the jokes made by the presenters had the potential to offend some people, they were a legitimate expression of humour and/or satire, and were not made with malice or nastiness. Ultimately, taking into account other contextual factors including the programme’s 16LC rating, the time of the broadcast, and an explicit preceding warning that the programme contained frequent use of coarse language and content that may disturb some people, the Authority found the broadcast did not contain material of a level reaching the high threshold for finding a breach under the offensive and disturbing content and discrimination and denigration standards.

Not Upheld: Offensive and Disturbing Content, Discrimination and Denigration

The broadcast

[1]  So Dumb It’s Criminal is a comedy show hosted by Snoop Dogg (and a changing panel of comedian presenters), who review and comment on clips of ‘criminals’ caught doing ‘dumb’ things on camera. The episode on 20 February 2023, at 9.30pm, included a panel featuring comedians Tacarra Williams, Affion Crockett and Godfrey.

[2]  Elements of the broadcast relevant to the complaint include:

• A clip of an Asian woman pretending to be hit by a truck, where Crockett pretends to be an observer of the incident, and says what appears to be: ‘Kwai Chang¹, at it again, man she at her bullshit’.
• Approximately 17 uses of the word ‘n-word’² by the host and panellists when talking between themselves, and when referring to people featured.
• Jokes about white people and white privilege in relation to a clip of a man being arrested for having an offensive sticker on his car:
  
  Godfrey:         I kinda like to see a white guy getting arrested, it’s about time. I don’t give a shit what he gets arrested for. Now you know how we feel.
  Crockett:        You know what, case closed.
  Godfrey:         Case closed. I’m just happy to see that. He goes “what I do?” Who gives a shit. Story of my goddamn life. Black Lives Matter. Yours don’t, let’s go.
•  Jokes about white people dancing, and using the name Josh as a stereotypical ‘white’ name in relation to an off-duty FBI agent whose gun went off accidentally when doing a backflip while dancing at a night club:
  
  Crockett:        And the funny thing is, he was killing it for a white party.
  Snoop Dogg: He was fucking it up, the way his legs move.
  Godfrey:         They were like Josh, do the knee thing again… Good moves Josh… do a flip bro.
• Jokes about white privilege in relation to a man who begins dancing while being made to do a field sobriety test by a police officer:
  
  Godfrey:         That was just an example of white privilege.
  Crockett:        He’s not going to jail.
  Godfrey:         He’s like, you’re not going to arrest me.
  Snoop Dogg: And that’s what you call a DWI. A dancing white idiot.

The complaint

[3]  Charles Kerr complained the broadcast breached the offensive and disturbing content and discrimination and denigration standards of the Code of Broadcasting Standards in New Zealand on the basis the programme was racist, contained multiple uses of the n-word, and was derogatory toward white people and Asian people.  

[4]  The complainant further stated in response to TVNZ’s decision: ‘to justify the word n****r regardless of the race of the person saying it is still racism and even [though] society is trying to normalise the word it is still offensive and shouldn’t be blatantly used on public television.’

The broadcaster’s response

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

• ‘So Dumb it’s Criminal is an irreverent, satirical show’. It was certified 16LC; was preceded by the written warning: ‘This programme is rated 16. It contains frequent use of coarse language’; and aired at 9.30pm on Duke, ‘a channel aimed at mature audiences’ which ‘often targets niche audiences with an appetite and tolerance for challenging or edgy content.’ 
• The programme contained a ‘considerable amount of explicit language, as viewers would expect both from this show, or indeed most content involving Snoop Dogg, a rapper well renowned for both explicit lyrics and drug use.’ Further, ‘it is not unexpected for high levels of explicit language or illegal behaviour to be depicted in a 16LC certified programme.’
• ‘Both the title and choice of host give a clear idea of the likely nature of the programme so that viewers can make an informed decision about whether they wish to see such material or not…’
• ‘The episode opens with a guest host of Nigerian descent making a joke at the expense of Nigerians, light-heartedly demonstrating the indiscriminate nature of the programme’s selection of subjects for ridicule.’

The n-word

• TVNZ recognised that there are contextual scenarios when the n-word will cause offence and when its use could be in breach of the standard. It also argued the n-word is acceptable in some contexts. It referred to the following:
  • ‘Use of the [n-word] is very often castigated as slurring the referent, but this ignores the context of use. For many people the word itself is a slur no matter what the context, and such people argue for its eradication from the English language. Eradicationists confuse the form of the word with its frequent use as a slur that discredits, slights, smears, stains, besmirches people of black African descent.
    
    Within many minorities and oppressed groups a term of abuse used by outsiders is often reclaimed to wear as a badge of honour to mark identification with and camaraderie within the in‑group. … To this end, many African-Americans have adopted the term n****r, often respelled n***a (which remains homophonous).’³
  • ‘The n-word is unique in the English language. On one hand, it is the ultimate insult - a word that has tormented generations of African Americans. Yet over time, it has become a popular term of endearment by the descendants of the very people who once had to endure it.’⁴
• TVNZ stated ‘it is widely recognised that when Black Americans use the n-word, in the manner used throughout So Dumb It's Criminal, it is an expression of identity and community; it is not pejorative or “hate speech”’.

White jokes and Asian joke

• TVNZ did not consider any of the jokes in the programme breached the offensive and disturbing content and discrimination or denigration standards, considering the context and classification of the programme.
• ‘The comments made regarding white and Asian people are not malicious; they are clearly intended to be humorous as is expected within the format of the show.’
• TVNZ considered ‘it to be well established - particularly in the USA, where So Dumb It's Criminal is filmed - that people of colour are treated differently by police. The panellist who joked I kinda like to see a white guy getting arrested and Black Lives Matter was clearly intending to draw a humorous comparison between the man's actual treatment, a fairly subdued arrest, with what could potentially be expected to occur if the offender was a person of colour.’

The standards

[6]  The purpose of the offensive and disturbing content standard⁵ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁶ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[7]  The discrimination and denigration standard⁷ protects against broadcasts which encourage the discrimination against, or denigration of, 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.

Our analysis

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

[9]  Our starting point is to consider the right to freedom of expression. When we determine a complaint, our task is to weigh up the right to freedom of expression – which includes both the broadcaster’s right to offer a range of content and information, and the audience’s right to receive that content – against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint when the resulting limitation on the right to freedom of expression is reasonable and justified in a free and democratic society.⁸

Offensive and Disturbing Content

[10]  We acknowledge the complainant found the language used in the broadcast to be offensive. However, attitudes towards taste and decency differ widely and continue to evolve in a diverse society such as ours.⁹ The standard does not prohibit challenging material, but rather ensures that broadcasts fall within the broad limit of not causing widespread disproportionate offence or distress or seriously undermining widely shared community standards.¹⁰

[11]  Where broadcasters provide reliable information to audiences about the nature of their programme, and enable them to exercise choice and control over their own viewing, they are less likely to breach standards.¹¹

[12]  Context is always relevant when determining a complaint under this standard.¹² In this case, the following contextual factors were identified:

• So Dumb It’s Criminal is a comedy show, broadcast on Duke. Duke is described as ‘the go to channel for those who are looking for something awesome and a bit unexpected,’ and featuring content with ‘an edge.’¹³ It has a male target audience aged 18 to 38.¹⁴
• The programme was classified 16LC (People under 16 years should not view / Content that may offend / Language that may offend), and was preceded by a full-screen warning stating ‘This programme is rated 16. It contains frequent use of coarse language and scenes that may disturb some people.’
• The programme played at 9.30pm, which is a time when stronger content and a greater degree of offensive language is allowed.¹⁵
• The show is hosted by Snoop-Dogg, a Black rap artist well known for using the n-word in his songs and in interviews.¹⁶
• The other panellists featured on the show who used the n-word were also Black Americans.
• The panellists’ use of the n-word, and their jokes on the show were intended to be humorous.
• The panellists’ jokes about white people satirised well known stereotypes that white people can’t dance, and are treated preferentially by the Police.

[13]  With these contextual factors in mind, we go on to consider the complainant’s specific concerns.

Use of the n-word

[14]  The difference in meaning and impact between the use of the n-word by a Black American person, and its use by someone else, is well articulated and the subject of ongoing discussion. For example, Black hip hop artists have told white fans not to sing the n-word,¹⁷ concerts have been preceded with advisory messages to this effect,¹⁸ songs have been written about this very topic,¹⁹ and high profile commentators have discussed it.²⁰

[15]  Notwithstanding this distinction, some people consider the use of the n-word by anyone to be offensive.²¹ The NAACP (The National Association for the Advancement of Coloured People) has long advocated for a ban on the word, and has attempted to ‘persuade Black Americans from using it in hip-hop music, comedy and casual conversation.’²²

[16]  The Authority’s 2022 research, Language That May Offend in Broadcasting, found the n-word ranked first on the list of unacceptable words with 65% of those surveyed finding this particular word unacceptable in ‘any context’.²³ However, many respondents also raised the point some words may be ‘reclaimed’. Respondents felt the n-word was less likely to be considered offensive when used by a Black American, than by a white person.²⁴

[17]  Having regard to the above factors, along with audience expectations of Duke, So Dumb It’s Criminal, and Snoop Dogg as a host, we do not consider the occurrences of the n-word in this context were likely to cause widespread undue offence or distress or undermine widely shared community values. We consider the broadcaster provided reliable information to indicate the programme would feature strong content and coarse language that may offend – we note the rating 16LC was appropriate, and the full-screen warning preceding the programme indicating there would be frequent coarse language. It also aired later in the evening, at a time when stronger content and a greater degree of offensive language is allowed.

[18]  While we understand many people consider the n-word should be banned in all contexts, we acknowledge the importance of freedom of expression as outlined above, and note that although the use of the term in the way expressed in the broadcast may not be familiar to a New Zealand audience, the right to freedom of expression allows ethnic minorities to reclaim such terms for themselves.²⁵

[19]  Our finding above is not an indication that all content containing the n-word will not breach the offensive and disturbing content standard. With the level of offensiveness of the word, complaints of its use will, naturally, always be carefully considered in their own context. The word is a potentially harmful one with a history of oppression, and we note broadcasters should exercise caution when airing content that includes this word.

Jokes about white people and use of a stereotypical Asian name

[20]  We acknowledge the complainant’s concerns in relation to one of the panellist’s jokes about an Asian woman featured in the programme. Regardless of whether the comedian was referencing a fictional kung fu character or was using a stereotypical Asian name, the joke had the potential to be offensive.

[21]  However, applying the same contextual factors at para [12], we do not consider this joke, or the panellists’ comments about white people, to have the potential to cause harm at a level meriting restriction of the broadcaster’s right to freedom of expression. The jokes were made as part of an edgy comedy show, were a legitimate attempt at humour, and were made without malice or nastiness. Further, they featured on a programme rated 16LC at 9.30pm, and were preceded by an explicit warning that strong content and coarse language would be featured.

[22]  Additionally, the joke using the name of a fictional kung fu character was not repeated or sustained, and some of the jokes about white people were made in the context of satirising the different treatment of Black and white people by the police in the US, which is a topic of public interest and concern.

[23]  While acknowledging the complainant’s concerns, we find the broadcast was not likely to cause widespread disproportionate offence or distress or seriously undermine widely shared community values in breach of the standard.

Discrimination and Denigration

[24]   'Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.²⁶  The importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a broadcast encouraged discrimination or denigration in breach of the standard. Broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered.²⁷

[25]  The Codebook recognises that comments will not breach the discrimination and denigration standard simply because they are critical of another group, because they offend people, or because they are rude.²⁸ Further, the standard is not intended to prevent the broadcast of material that is factual, a genuine expression of serious comment, analysis or opinion, or legitimate humour, drama or satire.²⁹

[26]  As discussed above, the use of the n-word in the broadcast was as a ‘reclaimed’ word, in the context of Black American comedians joking amongst themselves. It was not used with malice or condemnation. We note the Authority has previously recognised some words – even if not said with malice – have the power to embed negative stereotypes, and may therefore breach the standard.³⁰ In many scenarios, the use of the n-word, regardless of malice, would reach this threshold due to its pejorative nature, history of harm, and ability to embed negative stereotypes. However, we do not consider the comedians’ use of the n-word, in the context of the broadcast as outlined above at [12], had such an effect.

[27]  Further, for the same reasons outlined at [21] above, we do not consider the joke using the name of a fictional kung fu character or the jokes about white people would have had the effect of ‘encouraging’ discrimination or denigration against these groups, or embedding negative stereotypes. These jokes were a legitimate expression of humour and/or satire, and while they had the potential to offend some people, they were made without malice or nastiness, in the context of an edgy late-night comedy show.

[28]  Overall, considering the importance of freedom of expression, the lack of malice, the context of the broadcast, and the legitimate attempt at humour in the broadcast, we have not found harm at a level that justifies restricting freedom of expression.

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

Susie Staley
Chair
9 August 2023    

Appendix

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

1  Charles Kerr’s formal complaint to TVNZ – 20 February 2023

2  TVNZ’s response to the complaint – 16 March 2023

3  Kerr’s referral to the Authority – 16 March 2023

4  TVNZ’s confirmation of no further comment – 2 May 2022

¹ The broadcaster submitted the name used was ‘Quiet Ching’. The Authority, on viewing the broadcast, believed the name to be ‘Kwai Chang’ (the name of the fictional protagonist in the 1970s and 1990s TV show ‘Kung Fu’). It is difficult to state with certainty what name the comedian used when describing the person featured, however for consistency, we have chosen to refer to it as the ‘fictional kung fu character’ throughout the decision.
² We have chosen to refer to the word as the ‘n-word’ throughout our decision, due to its offensiveness.
³ Keith Allan “Contextual determinants on the meaning of the N word” (2016) 5 SpringerPlus 1141
⁴ Sean Price “Straight talk about the n-word” Learning for Justice (2011)
⁵ Standard 1, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁷ Standard 4, Code of Broadcasting Standards in New Zealand
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
¹⁰ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
¹¹ Guideline 1.3
¹² Guideline 1.1
¹³ “About TVNZ – Duke” TVNZ (accessed 1 July 2023)
¹⁴ “About TVNZ – Duke” TVNZ (accessed 1 July 2023)
¹⁵ Guideline 1.4
¹⁶ See for example popular Snoop Dogg songs: ‘Drop it like it’s hot’; ‘Who Am I? (What’s My Name’; and ‘Gin and Juice’
¹⁷ “Kendrick Lamar stops white fan using N-word on stage at concert” BBC (online ed, United Kingdom, 22 May 2018)
¹⁸ Chase Reed “Reed: Disregard of N-word warning at A&O Blowout disgraceful” The Daily Northwestern (online ed, Illinois, 16 October 2017)
¹⁹ The Genius Test “F.U.B.U.”, Solange” <genius.com>
²⁰ German Lopez “Ta-Nehisi Coates has an incredibly clear explanation for why white people shouldn’t use the n-word” Vox (online ed, United States, 9 November 2017)
²¹ David Aldridge “Aldridge: Kyrie Irving says it’s time for all of us to retire the N-word — and he’s right” The Athletic (online ed, United States, 16 April 2021); Britt Julious “The N-word might be part of pop culture, but it still makes me cringe” Guardian (online ed, London, 24 June 2015)
²² Kevin Krolicki “U.S. civil rights group hold funeral for “N-word”” Reuters (10 July 2007); “NAACP Official Position on the Use of the Word “Nigger” and the “N” Word” (2014) NAACP <naacp.org>
²³ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho  Language That May Offend in Broadcasting (17 February 2022), page 11
²⁴ As above, page 13
²⁵ Morris and Television New Zealand Ltd, Decision No. 2022-051 at [13]
²⁶ Guideline 4.1
²⁷ Guideline 4.2
²⁸ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
²⁹ Guideline 4.2
³⁰ Waxman and Television New Zealand Ltd, Decision No. 2020-042