|Opie and Anthony
- whose responsibility, and what action should be taken?
This month we could hardly escape commenting on the "Sex for
Sam" stunt in St Patrick's Cathedral in New York that has led
to Viacom taking the Opie and Anthony Show of the air and Westwood
One taking it out of syndication.
The question at the heart of this matter is to us, that of where responsibilities
should lie, to what extent there should be regulatory sanctions and
what other sanctions are reasonably permissible in a fairly open society;
we do not use the word "Free" is it is has about the same
level of clear meaning as terms like "Fascist" when used
as general abuse rather than with a specific political meaning.
The first level at which we would pose the question is that of the
star host himself or herself or the company that employs them.
If we are talking about a sanction that a company applies of its own
volition because of standards it has set and publicized, it seems
to us the star can have no complaint about being dumped.
On the other hand, where the company has knowingly hired a name or
names with a particular reputation to attract a particular audience
and knows exactly what it is paying for, and then dumps the star when
the flak starts flying, the issue becomes rather more murky.
We'd certainly expect in such cases that there
will be clauses in the contract that allow get-outs for a company
should actions by the name bring disrepute to the company and
equally that the name's agents will have done their best to
ensure that any action taken to end a contract should a row
develop will bring the maximum pay-off to their client or clients.
We'd also expect regulators, who are by their nature susceptible
to public and political pressures, to bend their rules to a
degree one way or the other in various cases.
What we would not consider reasonable is that the individual
who has been hired to be outrageous should become a scapegoat
when the flak is too heavy and be let off lightly for a similar
offence when no such outrage has arisen from actions that are
part of the job they have been hired to carry out in the pursuit
Legally such an outcome may be considered perfectly normal but,
we would suggest, in ethical or moral terms, it might offend
against any sense of fair play.
So what do we think is allowable as fair play?
We think it reasonable and normal reaction for an individual who
has suffered from stunts carried out in pursuit of ratings to be
allowed civil remedies such as a claim for damages and the same
should apply in general to companies but with rather wider considerations
coming into play here to prevent companies using such legal action
or threats of it to hinder disclosures about them that are in the
wider public interest (A prime case of this was the policy adopted
by the late Robert Maxwell to use the over-restrictive English libel
laws to prevent disclosures that might have stopped him stealing
large sums from his employees' pension funds as well as various
Within this framework, we would generally prefer damages to be just
that - linked to the actual damage and distress caused with no major
punitive element; say a limit to a maximum of thrice actual damage
shown to be caused/probably caused or a year's income for an individual
for hurt feelings. We would not rule out the idea of punitive damages
but think that the individual should not benefit from them: they
should be to punish the offender because the wider public interest
so demands not to provide a bonus to the complainant albeit we would
think it satisfactory, for example, that the amounts involved should
go to a recognised charity with the complainant being able to indicate
the charity or charities that should benefit.
As far as the offenders are concerned, there are two elements at
issue. They are those of the act itself and the effect it has on
others and the wider public interest in terms of whether such acts
should be forbidden.
In these terms, much to our chagrin, we find Anthony and Opie, or
even Bubba the Love Sponge, much less objectionable than much of
the bile that spews from commentators such as Anne Coulter or hosts
like Rush Limbaugh, but we would uphold the latter's right to make
their comments, even if they are on the level of calling for attacks
on Islamic countries and forcible conversions to Christianity.
We would take the same view of some of the, to us equally biased
and unpleasant commentators in many Islamic authorities but note
that the latter often ensure by force that no countervailing arguments
can be aired whilst in the US anyone who wants to can read a little
more widely on the topics raised by radio hosts and nail down some
of the nonsenses for what they are.
Opie and Anthony, as an example.
So where do we stand on Opie and
Anthony? We have no time for their stunt, consider that to offend
the faithful in a place of prayer is action that well lead to
breaches of the peace and would have no problem with a law that
were to take punitive action against them on this basis, including
Equally, since the stunts had been going on for some time and
had been sponsored by Boston Beer, we see no problems in legal
boycott and protest action by individuals expressing to both Infinity
and Boston Beer their disapproval of such stunts.
As far as the individuals and companies involved are concerned,
they should all be big enough to accept the consequences of their
In this case, the hosts may consider themselves as being treated
as scapegoats, but they would appear to have a long-term contract
that will keep them well away from destitution.
On the company side, Infinity has presumably long ago run the
calculations on the financial pluses and minuses of penalties
v profits involved with airing shock-jocks (Howard Stern has attracted
rather a lot of money in personal remuneration, Infinity income
and FCC fines over the years.).
We thus cannot become outraged at plight of either nor particularly
concerned over the suspensions of the station's general manager
and program director although it would seem unfair should they
be dumped without pay-offs.
We are opposed, however, to the institution of a new round of
punitive regulatory action in this particular case, although had
the Federal Communications Commission previously taken harsher
action and laid out more clearly that such stunts were to be
severely, we would take a different view.
However they didn't and thus to us, the fair course of action
is for the FCC to judge and penalize infinity in terms of their
previous public policies and actions. This will not be severe
enough for many people but the answer is not to rush to judgment
on this one case but use it to reconsider what regulators should
be penalizing and how severely.
After suitable public debate and, if need be, allowing legal challenges
on First Amendment grounds, we would not object to the most severe
penalties including loss of licences should they be accepted as
reasonable to avoid repetitions and proportionate to the need
to so do.
Until then, however, we have no doubt that the former rules should
be applied, whatever the outcry.
Any views? Please comment
on the above. For that matter, if you can put the time aside,
we'd like your "Guest comment" pages this year to stimulate
more feedback and dialogue.