September 2002
Opie and Anthony - whose responsibility, and what action should be taken?

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.

Legalities or morality?

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 of ratings.

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.

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 other skullduggery).

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 jail sentences.

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 actions.

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 penalized 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.

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