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BSA fucks up

By Steven | February 23, 2010

The Broadcasting Standards Authority has upheld a complaint against the radio broadcast of Lily Allen’s song “Fuck You”, broadcast on Sunday and Tuesday afternoons on The Edge. I think they were wrong to do so, and I think it demonstrates that they still don’t really understand the Bill of Rights Act.

If it were just a straightforward example of a vapid pop song with some swearing in it, fine. That’s the way the BSA treated it. (And in fact, it’s the way the broadcaster argued it). But this song has more going on. It is making a political statement and that means that a higher threshold is required to justify restricting it.

Here are the lyrics:

Look inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbour

So you say
It’s not okay to be gay
Well I think you’re just evil
You’re just some racist who can’t tie my laces
Your point of view is medieval

Fuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touch

Fuck you
Fuck you very, very much
Cause your words don’t translate
And it’s getting quite late
So please don’t stay in touch

Do you get
Do you get a little kick of being slow minded?
You want to be like your father
It’s approval your after
Well that’s not how you find it

Do you
Do you really enjoy living a life that’s so hateful?
Cause there’s a hole where your soul should be
You’re losing control of it and it’s really distasteful

Fuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touch

Fuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touch

Look inside
Look inside your tiny mind
Now look a bit harder
Cause we’re so uninspired, so sick and tired of all the hatred you harbour

Fuck you
Fuck you very, very much
Cause we hate what you do
And we hate your whole crew
So please don’t stay in touch

Fuck you
Fuck you very, very much
Cause your words don’t translate and it’s getting quite late
So please don’t stay in touch

That’s clearly a song with a political message about hate speech, racism and homophobia. Russell Brown has more on how the song has been appropriated by the gay community, underscoring its political nature.

But the BSA doesn’t mention that. It effectively bans the airing of the song at most times because children might hear the word “fuck”. (In fact, the word was even partly fuzzed out in the song, rendering it as “uck”.)

This might usually be a demonstrably justified limitation on freedom of expression, given the BSA’s mandate to enforce community standards. But the BSA must do so in a proportionate way, and that involves assessing the significance of the speech and weighing it against the harm done to the community standards. (Claudia and I discuss this process, and the reasons why the BSA has to undertake it, in an article which has now been cited three times by the High Court in BSA cases: click on “BORA and the BSA” in the toolbar on the left.)

The BSA makes no attempt to distinguish this song from other songs that have much less political significance, and so require a less robust justification to restrict. It doesn’t address the well-recognised arguments that people making political statements often use colourful and even offensive language, and need to be given latitude to do so.

This is reinforced by the fact that the broadcasting standards themselves explicitly reflect the values of anti-discrimination that this song promotes. Arguably that heightens the social significance of the song. This is a song that speaks to young people about bigotry. And the BSA has effectively banned them from hearing it on the radio. (Libertarians might point out that this approach would be favouring a particular viewpoint. That’s problematic from a free speech point of view. Indeed it is. But it is a favoured viewpoint that Parliament has endorsed in the very legislation that governs the BSA).

On the other side of the proportionality balance, one can question whether the odd use of the word “fuck” (or even “uck”) really does that much harm to community morals these days. It’s not as if children aren’t exposed to the word in other places. The BSA routinely accepts its use after 8:30pm and occasionally during children’s listening time, when justified by the context: such as on the Kim Hill show, during the news, and in a live interview, for example.

So, despite the BSA’s improved process for dealing with Bill of Rights issues these days, they’ve dropped the ball on this one, I think. But then again, so has RadioWorks. The broadcasters really need to be making better arguments if they want to bed in Bill of Rights values.

Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | 24 Comments »

24 Responses to “BSA fucks up”

  1. mattb02 Says:
    February 23rd, 2010 at 3:39 pm

    Steven, I always come away from your blog feeling like I have learned something. What you do here is outstanding.

    But it bothers me immensely that so much time and effort is put into analysing things like whether a particular Lilly Allen song has enough political content in it to be broadcast without penalty.

    That strikes me as an extraordinarily trivial question. It is also transparently obvious what is going on: this is protection for the ideas of politically-favoured groups, which is the opposite of free speech. Political speech is not more worthy of protection out of principle – why should one’s desire to comment on government be preferred to one’s desire to comment on, say, a company’s performance in equally strong terms – but because an identifiable group of people with political clout demand it. And so the machinery of government acts to protect them. This, in other words, is populism, and defence of political speech on this basis is in some sense the opposite of freedom. Freedom won only because its particular defenders are organised enough to return fire isn’t a desirable kind of freedom. It is spotty, for one thing, encouraging these sorts of meaningless boundary tests which are very costly, and arbitrary for another.

    Call me cynical but what I see being tested in this article is whether the content of that song is close enough to the ideals of some set of defined political insiders as to be worth defining an exception for.

    What I am saddened by is that speech is the last cab off the rank. I guess that will always be true so perhaps what I am saddened by is the length of the line in front: offend almost anybody and your right to speech is immediately questioned, either directly, or indirectly via pressure for sanctions. Speech should not be so cheap.

    On the other hand, 10 minutes in Iran might make me grateful for the rights we do have…

  2. Steven Says:
    February 23rd, 2010 at 5:15 pm

    mattb02, always nice to hear from you.

    I have to say, you’re rather swimming against the tide if you argue that political speech should not be given more protection than other types of speech. Surfing on that tide are, amongst others, the US Supreme Court, the European Court of Human Rights, the Canadian Supreme Court, the UK courts, the NZ courts, and pretty much every free speech theorist who’s ever put pen to paper.

    Yes, that favours people who engage in political speech particularly. That’s because they are saying things that play right into the reasons that (most people and courts accept) we protect speech in the first place: that it is the lifeblood of self-government; that it helps in the advancement of knowledge (the marketplace of ideas if you will); it acts as an outlet for hostility that might otherwise be acted out physically; it puts a check on those in authority; it helps develop values of tolerance and character that underscore a democracy; and, by the by, it also helps us fulfil our potential as human beings by respecting our autonomy as moral agents. Not all of those reasons protect political speech exclusively, but put together they are a strong reason to protect political speech particularly.

    That doesn’t mean that other speech, eg commercial speech, doesn’t also deserve protection. It too requires justification to restrict. But there’s less reason to regard commercial speech as particularly special.

    But your real concern seems to be that I’m concerned to protect a particular stripe of political speech. Well, yes, I agree with the song. But it would still be political and therefore requiring compelling justification to restrict if the song were “fuck you, all you liberal tree-huggers”.

    There’s debate about whether it should be equally protected if it was called “Fuck you all you blacks and poofters”. Some would argue that “hate speech” like this is of little value and undermines the values that a democracy is founded on, so it can be restricted quite readily. That’s the Canadian and ECHR approach. Other would say that speech is just as political as Lily’s song. That’s the US approach. Personally, I’m a bit torn on that. I’m inclined to think that hate speech may be a little bit country and and a little bit rock and roll.

    I did point out that the statutory provisions do call for standards to include controls on speech that encourages discrimination. I do think that’s plainly relevant to the BSA’s assessment of proportionality: Parliament has signalled that those values are significant. I’ve acknowledged that this favours the interests of (largely disadvantaged) minorities. I’d argue that this may be what democracy requires. It happens to reflect our international commitments. If you want to include equal protection for people calling for gays to be bashed, I’m not sure I’m going to agree with you.

    I don’t think these boundary tests are arbitrary, though they can be applied inconsistently. They are applied in courts overseas every day. There are some hard cases in the middle, as there often are in law. And it’s hardly populism, in that protected political speech usually calls for very unpopular speech to be protected – such as, dare I say it, flag-burners at Anzac Day ceremonies. The Society for the Promotion of Community Standards thinks the BSA is bizarrely permissive.

    Is the song issue trivial? I don’t think so. But even if it were, important values are often at stake in apparently trivial cases. The modern law of negligence was created because someone said she found a snail in her bottle of ginger beer. (The actual presence of the snail was never definitively established.)

  3. Justin Says:
    February 24th, 2010 at 9:53 am

    We seem to accept there is a need to balance one persons rights of free speech with the rights of the people being spoken to.

    The right to free speech should take priority over being offended of course. But there is a point where you can say someone is being over the top in the way they present a message. So its OK to shout out a political message in a public place, but painting a huge penis on the side of a kindergarten with the same message underneath is not OK.

    So in this case would it be fair to argue there were equally valid ways to make the same political statement without being overly offensive to those receiving it. The BSA makes the point that the time of broadcasting was a problem, that children (and parents) may be listening and thats what made it so offensive. I’m not sure I’d want my 6 year old daughter singing along to the chorus.

    There was obviously a implicit acceptance the song was “over the top” in the use of fuck by the attempt to mask it, albeit a poor attempt.

    In fact you could argue the attempt to mask the work showed the word was not actually required to make the political statement, that the political statement was obviously accepted to be just as strong without the word. That the use of the word fuck was just there to tittilate.

    You could argue someone has the right to change the channel and not listen. But often by the time you do that it’s too late, and there is also the case that once it is accepted on one station others may follow suit… then where do you turn.

    Finally even if we agree the word fuck was an important part of the statement would it not be for Lily Allen to argue it was her freedom of speech being impinged? Would Radioworks have to argue they (or their DJ) was making the political statement and therefore within his rights to play the song? Would his banter each side of the song mean that was a hard case to argue?

    Anyway, I accept I’m probably way wrong here and I actually like the song. I find it funny the BSA objects to it when other songs are allowed (“If You Seek Amy” anyone?)

  4. Steven Says:
    February 25th, 2010 at 4:12 pm

    What’s more, it’s an insanely catchy tune, so I can imagine young children, to their parents’ ire, happily parroting it.

    But I still stick to my guns. (And it makes no difference to my BORA arguments that the radio station may have acknowledged an issue by semi-sanitised it. They don’t understand BORA either.) At the very least, the BSA needed to grapple with the political dimension in their justification.

    It is always easy to make the argument that “they could have said this another and less offensive way.” I think that’s a dangerous argument, and many courts have rightly been suspicious of it. It can be used to restrict almost any speech. It doesn’t allow for the fact that the language was deliberately provocative for effect; that the song has more impact with it; that it talks to young people better because of it; that it reflects the way Allen actually likes to speak; and that if you insist on political speech being civil (and impose your definition of “civil”) you may prevent some people from speaking at all. She may not have written this song if she couldn’t write it the way she wanted to, for instance.

    And no, the speech does not have to be the DJ’s.

    I don’t think “If you seek Amy” has ever been before the BSA. It’s powers are triggered by complaints.

  5. Justin Says:
    February 25th, 2010 at 5:21 pm

    Thanks Stephen, I feel a little more enlightened.

    I do agree that forcing a “civil” speak standard onto people is a seriously dangerous and slippery slope. However, I do think there needs to be a clear line between the language supporting a message or just being there to be offensive. I guess that is the line that the BSA attempts to define.

    This line tends to move over time as society develops, I remember the complaints here about the “bugger” ad, which probably wouldnt happen now (nor did they in Australia at the time). Perhaps in a few years time the BSA will move the line a little. Perhaps radioworks needs a new legal team first.

    I do wonder if she’d said “your a bunch of c***s” over and over again if we’d accept that as being political speech? Maybe not just yet, but I wont be removing Lilly from my iPod any time soon.

  6. JB Says:
    February 26th, 2010 at 12:39 pm

    Stephen, broadening this a bit….. The long standing convention is that employees in the State sector (particularly the public service) need to exercise care in the way they express political opinions, doing nothing to lessen Ministers’ confidence in their agencies. There is no enactment establishing a duty of political neutrality, so the BORA principles appear unconstrained. Can there be any lawful constraint on the freedoms of expression and political activity of state employees? And can any employer lawfully stop their employees saying what they like about their organisation? ie is sacking a “disloyal” employee who bags the business justifiable? How do the freedom rights and fidelity duties stack up?

  7. Steven Says:
    February 26th, 2010 at 1:05 pm

    Eep, JB, where did that come from? That’s not “broadening this a bit”, that’s heading off on a whole different topic. I really don’t have time to go into it now. Absolutely it raises BORA questions, and to some extent that’s recognised in the code of conduct for civil servants. But there’s an unresolved tension in it: from memory, it blythely says that public servants rights to expression must be recognised, then elsewhere says they can’t do anything to undermine political neutrality.

    Neutrality can plainly justify a degree of limitation on civil servants’ speech, particularly where their job includes close involvement in politically sensitive matters, and they want to speak out about those particular issues in ways that might undermine Ministerial confidence in the government agency. But that’s a far cry from all speech. In the normal course of things, for instance, there should be nothing to stop an official in the Ministry of Education, say, from attending a protest about the foreshore and seabed, on one side or the other. My impression is that neither the civil service, nor the employment authorities, have been very robust about these matters.

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