Thursday, April 12

Not Another Imus Story - almost.

First of all, this is not another Imus Diary - but I do want to point out something that seems to be completely missing in this entire Imus Kerfuffle.

It's not about race.

It's not about gender.

It's not about free speach.

It's not about political correctness.

No, the issue I want to raise that has been completely overlooked so far, is the issue of Defamation! and the indencency of what has been occuring on our airwaves for quite some time.

Why hasn't the FCC come down on Imus' (and others) for their profane and hurtful comments, because it can't possibly be argued that what he did to the Rutger's B-ball players was decent can it?

Ever since Justin Timberlake revealed Janet Jackson's tit during the Superbowl -- (yeah, that's right the guy whose hosting this years Kid Awards is the one who did the dirty deed, not Janet) -- the FCC has been running around fining people hog-wild for their on-air statements. In this particular case CBS was fined $550,000.

April 2004 - Howard Stern fined $495,000 and Clear Channel for an indencent comedy routine performed during his show. Clear Channel then proceeded to dump Stern based on his violation of their "zero-tolerance decency standards".

Oct 2004 - Fox TV was fined a record $1.2M for showing scenes of bachelor and bachelorette parties during it's reality show - "Married By America".

Just under a year ago even with these record fines already on the books, Congress voted to increase the fines by ten times.

November 2006 - Viacom settled a series of fines to the tune of $3.5 million.

Last month the FCC threatened to fine Amp'd mobile $100,000 for failing to protect their customers phone records. (Why they haven't gone after AT&T yet for sharing their phone records illegally with the NSA and FBI remains a mystery)

These changes have even created a chilling effect on PBS. "Masterpiece Theater" added at least a dozen bleeps to the broadcast of "Every Child Is a Poet: The Life & Work of Piri Thomas" - in order to Sanitize it for PBS's protection.

I find much of this rather odd.

It's odd that the FCC hasn't gone after CBS for Imus' comments in this case or in the previous occasions where he's been forced to apologize for comedy routines that have gone horribly off kilter.

March 16th - "the whole nation is talking about" reports of a "[b]that young colored fellah pretty much deckin' the old bag from New York[/b] and takin' away some of her money." [Imus Producer Bernard] McGuirk Who continued : "I'm speaking, of course, about [Sens.] Barack Obama [D-IL] and Hillary Clinton [D-NY]."

March 6th - McGuirk : "[Clinton] will have cornrows and gold teeth before this fight with [Sen. Barack] Obama [D-IL] is over."

February 8th - Both Imus & McGuirk : "Besa mi culo ... Gordo" said to Governor Bill Richardson, who mother is mexican. Translation : "kiss my ass, fat one"

February 6th - Imus on why he supports Giuliani: "if we're gonna be fighting these terrorists through the lives of [8-year-old son] Wyatt Imus' children," then "it might be good to start with somebody who is willing to take three big ones and drop one on Mecca, one on Jeddah, and one on Saudi -- one on Riyadh,"

February 2nd - McGuirk : Sen. Barack Obama (D-IL) has "a Jew-hating name."

December 8th - McGuirk : "Even if you wear a beanie, how can you not love the Blind Boys?" Imus continued, "I said, 'They're handicapped, they're black, and they're blind. How do we lose here?' And then a light bulb just went off over [the jewish managers of CBS radio] scummy little heads."

Last night in response to their own internal integrity concerns, MSNBC has dropped the Imus simulcast and as I type this I can hear Nora O'Donnel report that when Imus comes back from vacation some CBS stations will not be continuing his broadcast.

I also see as I watch that Al Sharpton has begun to make arguments in the same direction as this post - (ie "Where's the FCC in all this?")

My basic point however probably isn't what you might expect. I don't neccesarily appload the actions taken against Imus. I don't think he should be black-listed or banned from the air. However, MSNBC has a right to decide what they want to broadcast and what they don't.

I feel that MSNBC made their decision on the best basis possible, they as an organization simply didn't want to be associated with those kinds of sentiments. There's little evidence they did it in response to advertiser or public pressure - but they may have. There is even less evidence that they implemented "self-censorship" pre-emptively to avoid the kinds of fines that I note above - because the likelyhood that they would have been on the receiving end of such fines are non-existent.

Imus may ultimately have to follow Stern into alternative radio, and I'm ok with that - but in his case, it certainly won't be because the FCC forced him to. Not hardly.

We haven't seen the FCC stand up against Ann Coulter when she called the Jersey Girl's "Harpies" on national TV did we?

We didn't see any action taken against Rush Limbaugh for accusing Michael J. Fox of exaggerating his disease in order to gain more sympathy for the stem-cell cause.

We didn't see anything done to Dennis Prager for saying that Rep. Keith Ellison was "imperiling America" because he choose to do a photo-op with the Quran after being sworn in to the Congress, or Rep. Virgil Goode who stated ..."If American citizens don’t wake up and adopt the Virgil Goode position on immigration there will likely be many more Muslims elected to office and demanding the use of the Quran" and also that opposing the surge would "aid and assist the Islamic jihadists who want the crescent and star to wave over the Capitol of the United States and over the White House of this country.”

And we didn't see the FCC jump to the task when Neal Boortz called Rep Cynthia McKinney a "ghetto slut", and "welfare drag-queen" who'll "show her ass again".

The common issue here is that all of these cases are acts of defamation.

Generally speaking, defamation is the issuance of a false statement about another person, which causes that person to suffer harm. Slander involves the making of defamatory statements by a transitory (non-fixed) representation, usually an oral (spoken) representation. Libel involves the making of defamatory statements in a printed or fixed medium, such as a magazine or newspaper.

Typically, the elements of a cause of action for defamation include:

1. A false and defamatory statement concerning another;
2. The unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement);
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and
4. Damage to the plaintiff.

Most jurisdictions also recognize "per se" defamation, where the allegations are presumed to cause damage to the plaintiff. Typically, the following may consititute defamation per se:

* Attacks on a person's professional character or standing;
* Allegations that an unmarried person is unchaste;
* Allegations that a person is infected with a sexually transmitted disease;
* Allegations that the person has committed a crime of moral turpitude;

We have to realize that ALL OF THIS IS HATE SPEECH!

The way things are today, the individual(s) who has been defamed as the result of such hateful comments have the responsibility to take legal action themselves. We do not currently have a Criminal Libel Law as some countries do.

But what happens when an entire group of people are defamed? Who should stand-up when women are debased? Blacks? Jews? Or how about the most defamed group in America right now - Liberals?

The next time Bill O'Reilly says something about "Far-Left Bomb-Thrower Smear-Sites" should we at Kos go to the FCC Complaint Page and explain in detail just how offensive, profane and defamatory his comments are to us?

Would they even listen? Well first we need to see what is "Obscene, what is Indecent and what is Profane" at least according to FCC guidelines.

Indecent Broadcast Restrictions

The FCC has defined broadcast indecency as
language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Indecent
programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.

So basically we're talking here about the Seven Deadly Words: Shit, Piss, Fuck, Cunt, Cock-sucker, Mother-Fucker and Tits!
Apparently "Bitch, Crap and Ho" aren't currently on the No-No list even though the difference between Crap and Shit or Bitch and Cunt are pretty much negligible.

But again, these are "contemporary community" standards - so if you're community argues that calling a woman a "Whore" is offensive, you just might have an argument. But then again, it doesn't have to be sexual or about excrement to be "profane."

Profane Broadcast Restrictions

The FCC has defined profanity as “including
language so grossly offensive to members of the public who actually hear it as to amount to a nuisance.

Obscenity as defined, is not protected by the First Amendment and is banned from FCC regulated air at all times. However Indecent and Profane speech has been restricted to the hours between 10pm and 6am by the FCC. This wouldn't require that someone who wishes to push the envelope like Imus would be taken off the air, rather they would simply be moved to night shift, rather than spewing all this stuff during the morning or the middle of the day.

In Ann Coulter's case she may not be obscene or indecent, but she's certainly profane because I'm fairly sure I'm not the only one that considers her a right bloody nuisance. Particularly since many of her comments are blatantly defamatory. An FCC crack-down on profane hate speech wouldn't cause her to be banned, she could still say whatever she wanted to on TV, it just couldn't be with Matt Lauer at 7am or CBS would feel the heat where it counts - in the pocket book.

Even after-hours, under the law, John Edwards has every right to sue Ann Coulter for her "faggot" comments.

Except that he won't.

There is the issue that those who fight back this way are sometimes characterized as "cry-babies", just like when Fred Barnes argued that the Rutger's Girls "acted like victims" and should "Flicked Imus off their shoulder like a moskito".

Barnes also echoed the lame Imus defense that "nappy headed Ho's orginated in the black community". Frankly speaking that isn't true - the Word "Whore" is of English/German extraction.

[Middle English hore, from Old English hōre; see kā- in Indo-European roots.]

Whore: Derivatives of Indo-European roots have often acquired starkly contrasting meanings. A prime example is the case of the root kā-, "to like, desire." From it was derived a stem kāro-, from which came the prehistoric Common Germanic word hōraz with the underlying meaning "one who desires" and the effective meaning "adulterer." The feminine of this, hōrōn-, became hōre in Old English, the ancestor of Modern English whore.

Also the word "Nap" as in "Nappy" derives from:

[Origin: 1400–50; late ME (Middle English) noppe, OE -hnoppa (as in wullknoppa, mistake for *wullhnoppa tuft of wool), c. MD, MLG noppe; akin to OE hnoppian to pluck]

Unfortunately Niger Innis and other promenent Black spokesmen (I'm black and they Don't speak for me) have been echoing this ridiculous Imus defense by claiming that it's somehow the fault of Black Rappers that this type of terminology is being used while ignoring the long history these English based verbal slurs being used against black people in America through-out their history.

Why is being "nappy-headed" even an issue? Because it's NOT LIKE WHITE HAIR! And who would've thought to take a word from the 1400's and make it an insult in the first place, hmm? Trust me, it wasn't black people.

Snoop Dogg has responded saying that the "Ho's" their talking about aren't young women like these college students. They're actually real life Whores! They do exist, y'know. Rapper's don't use the words to describe everyone they meet, just certain one who actually fit the description.

Sometimes you really do have to "call a spade - a spade." Or a "Ho" (groan), as the case may be. Defamation? Not exactly.

Also I want to point out that the FCC restrictions I'm talking about here already apply to these rappers. Their records are already stickered and restricted. Instead of addressing the issue of why some women are whores, and why some young men are assholes - and whether or not the characterization is, at times, accurate we are instead seeing people use this situation to put forth their own politically correct agenda to restrict discussion of some serious issues.

Dragging them into this is nothing more than a red-herring, a ruse by those who wish to continue spewing baseless attacks against large swaths of the public whom they dislike and disagree with.

Countering this by arguing that it is Profane Speech and forcing the FCC to get involved is a two-edge sword. Just as statements against minorites could induce fines, so could statements against "white-haired fat-cats on wall street".

I might suggest that we push for a Criminal Libel Law so that the victim of such slurs doesn't have to shoulder the burden of repairing their reputation alone (where you get all the Justice you can Pay For!), but I'm not entirely that's a wise path considering how Federal Prosecutors can be politicized leaving open the door for selective and malicious prosecution of such charges.

The best we could hope for is that our public discourse over gender, racial, ethnic and political issues begins to regain some of it's civility and rationality.

What we don't want is for no one to be able to speak freely and honestly.


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