Sound. Music. Word Is Described on the ABC S Website As: 1

Investigation Report No. 3157

File no. ACMA2013/1665

Broadcaster Australian Broadcasting Corporation

Station 2RN – Radio National

Type of service National Broadcaster

Name of program Sound. Music. Word.

Date of broadcast 8 November 2013

Relevant code Standards 7.1 and 7.2 of the ABC Code of Practice 2011 (revised 2013).

Date finalised 6 June 2014

Decision No breach of standards 7.1 (harm and offence) and 7.2 (warnings or advice) of the ABC Code of Practice 2011 (revised 2013)

ACMA Investigation Report 3157 – Sound. Music. Word. broadcast by 2RN on 8 November 2013. Error: Reference source not found

Background  In January 2014, the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a segment of the program Sound. Music. Word. broadcast on 8 November 2013 (the segment) by the ABC’s 2RN Radio National.  Sound. Music. Word is described on the ABC’s website as:1

Get through the night with Sound. Music. Word. a rich mix of great storytelling, drawn from the best of RN’s back catalogue and fresh new work.  The segment was a 55 minute feature entitled ‘You’ve Gotta Burn to Shine’, and comprised a compilation of poetry and memoirs of poet and performance artist, John Giorno.  It was preceded by a warning of ‘frequent obscenities and graphic descriptions of sex and death’ and ‘adult themes, verbs and nouns’ and introduced with a short biography of John Giorno, explaining that he was a contemporary of Lou Reed and as a close friend of artist, Andy Warhol. The feature was based on John Giorno’s book ‘You’ve Gotta Burn to Shine’, described by the program host as:

[A] series of vignettes on attitudes to death and dying, focused on his experiences with the death of close friends in the New York art scene, such as the photographer Robert Mapplethorpe and the graffiti artist Keith Haring.  The complainant’s submissions are set out at Attachment A and included the following:

[The] subject matter was gross and the language coarse beyond belief.

...

There is no way, in my opinion, that the program under discussion could be said to conform with community standards.  The ABC’s submissions are set out at Attachment B. Its response to the complainant included the following:

On review, Audience and Consumer Affairs note that this program contained coarse language, including instances of very strong coarse language along with detailed sexual references. However, we note these were presented in the context of a program featuring the poetry and memoirs of performance poet John Giorno. Having regard to this artistic context, and in consideration of the target audience and its likely expectations, we consider that the language and sexual references were editorially justified and in keeping with 7.1.

We acknowledge, however, that the content had the potential to offend some viewers. Accordingly, the program was preceded by detailed warning to ensure that listeners could make an informed decision about whether to continue with the broadcast, in keeping with 7.2.

1 http://www.abc.net.au/radionational/programs/soundmusicword/

2 Assessment  This investigation is based on submissions from the complainant and the ABC, correspondence between the complainant and the ABC, and a copy of the broadcast provided to the ACMA by the ABC. Other sources have been identified where used.  In assessing content for compliance with the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ listener.  Australian courts have considered an ‘ordinary, reasonable’ listener to be:

A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.2

 In considering compliance with the Codes, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, and any inferences that may be drawn.  Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then determines whether or not that material amounts to a breach of the relevant code provision/s.  The ACMA has considered the ABC’s compliance with standards 7.1 and 7.2 of the ABC Code of Practice 2011 (revised in 2013) (the Code):

Harm and offence

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

7.2 Where content is likely to cause harm or offence, having regard to the context, make reasonable efforts to provide information about the nature of the content through the use of classification labels or other warning or advice.  The Code includes the following provisions that are relevant to the matter raised by the complainant. 1. Interpretation

In this Code, the Standards must be interpreted and applied in accordance with the Principles applying in each Section.

[…]

The Standards in Part IV and V are to be interpreted and applied with due regard for the nature of the content under consideration in particular cases. The ABC is conscious that its dual obligations – for accountability and for high quality – can in practice interact in different ways. It can be a sign of strength not weakness that journalism enrages and art shocks. The Standards are to be applied in ways that maintain independence and integrity, preserve trust and do not unduly constrain journalistic enquiry or artistic expression.

2 Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 at 164-167 3

ACMA Investigation Report 3157 – Sound. Music. Word. broadcast by 2RN on 8 November 2013. Error: Reference source not found

 Standards 7.1 and 7.2 of the Code are applied by reference to the overarching principles of standard 7 (the principles)3. The principles include the following:

The ABC broadcasts comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. Innovation involves a willingness to take risks, invent and experiment with new ideas. This can result in challenging content which may offend some of the audience some of the time. But it also contributes to diversity of content in the media and to fulfilling the ABC’s function to encourage and promote the musical, dramatic and other performing arts. The ABC acknowledges that a public broadcaster should never gratuitously harm or offend and accordingly any content which is likely to harm or offend must have a clear editorial purpose.

The ABC potentially reaches the whole community, so it must take into account community standards. The ABC must also be able to provide content for specific target audiences whose standards may differ from generally held community attitudes. Applying the harm and offence standard requires careful judgement. Context is an important consideration. What may be inappropriate and unacceptable in one context may be appropriate and acceptable in another. Coarse language [...] may form a legitimate part of reportage, debate, documentaries or a humorous, satirical, dramatic or other artistic work. Consideration of the nature of the target audience for particular content is part of assessing harm and offence in context, as is any signposting that equips audiences to make informed choices about what they see, hear or read.

Issue: Harm and Offence

Finding

The ACMA finds that the ABC did not breach standards 7.1 and 7.2 of Code.

Reasons

The principles relating to harm and offence in Section 7 of the Code speak of content that may take risks, is innovative and which may offend some of the audience some of the time. However, the principles acknowledge that the ABC, as a public broadcaster, should never gratuitously harm or offend. Any content that is likely to harm or offend must have a clear editorial purpose. Additionally, the principles state that the ABC must take into account community standards while also being able to provide content for specific target audiences whose standards may differ. The principles emphasise the need for ‘careful judgement’ in applying standards and the importance of considering the nature of the target audience when assessing harm and offence in context. The segment contained very coarse language and explicit descriptions, and for that reason it had the capacity to cause offence. The ACMA notes the complainant’s submissions regarding community standards and target audience. As noted above, applying the harm and offence standard requires careful judgement. While the potential reactions of the target audience may be strongly influential in

3 See Standard 7 - http://about.abc.net.au/reports-publications/code-of-practice-2013/

4 considering whether offensive material is justified by its editorial context, it cannot be the only factor. Code 7.1 calls for a balance to be struck. In this case, the ACMA is satisfied that the content was justified by the editorial context. In coming to this decision, the ACMA has had regard to the following factors:  The language was not used gratuitously but, rather, in the editorial context of content which demonstrated a manifest artistic purpose and was introduced as a ‘feature’ comprising the work of poet and performer, John Giorno, and as a ‘tribute’ to Lou Reed, lead member of the band, ‘The Velvet Underground’, who had died a week earlier.  To this end it was focused on:  John Giorno’s book ‘You’ve Gotta Burn to Shine’, which was about attitudes to death and dying and articulated John Giorno’s reflections about the deaths of his close friends; and  his intimate relationship with well-known artist, Andy Warhol.  The program, as noted by the ABC is ‘essentially an arts program, providing a “rich mix of great audio storytelling, drawn from the best from Radio National’s back-catalogue and fresh new work” and ‘contributes to the ABC’s function of encouraging and promoting the musical, dramatic and performing arts’.  Generally, it features a diverse range of content, some of which can result in challenging content, and audience expectations of this program would be pitched accordingly.  It was presented at a later time slot of 9-10 pm on Friday 8 November and its target audience is adults over the age of 40 years. The ACMA notes the ABC’s submission that:

We acknowledge ..., that the content had the potential to offend ... Accordingly, the program was preceded by detailed warning to ensure that listeners could make an informed decision about whether to continue with the broadcast....

In addition to the description of the book ‘You’ve Gotta Burn to Shine’ which was provided in the introduction to the segment, the ACMA notes that the segment was preceded by the following warning:

And, I do have to warn you, if you think you’ll be disturbed by frequent obscenities and graphic descriptions of sex and death, then it’s perhaps better that you change the station now or switch off the radio for the next 50 minutes or so. If however you decide to stay with us, then, you’re in for a wild ride.

A second warning was also provided immediately prior to the offending content (at 7:18 minutes): This is the final warning, on the road ahead, adult themes, verbs and nouns. The ACMA is therefore satisfied that the ABC, having regard to the context, made reasonable efforts to provide information about the nature of the content, through the use of warnings and advice.

ACMA Investigation Report 3157 – Sound. Music. Word. broadcast by 2RN on 8 November 2013. Error: Reference source not found

Accordingly, the ABC did not breach standard 7.1 or 7.2 of the Code in relation to the broadcast.

Attachment A

The complainant submitted to the ABC:

The subject matter was homosexual encounters between the American male speaker and Andy Warhol. The subject matter was gross and the language coarse beyond belief.

...

There is no way, in my opinion, that the program under discussion could be said to conform with community standards.

The complainant submitted to the ACMA:

...

The complaint related to graphic descriptions of homosexual acts and fetishes described in the coarsest language.

...

1. [The ABC] reiterates that there were many warnings as to content and language prior to the broadcasting of the program.

A. In my letter ... I explained that I had switched the radio on some time after the beginning of the program. May I suggest such an action is perhaps more often the norm than otherwise; perhaps some listeners more regularly switch programs on only at the scheduled beginning and off at the conclusion of any program. I doubt it is the universal practice. Hence anyone can stumble upon something they would not otherwise contemplate listening to.

2. [The ABC] similarly refers to Radio National’s aiming to meet ‘target audience expectations’ and also to ‘language which reflects contemporary Australian society’.

A. I would have thought that I might be a fairly typical member of the Radio National target audience. I am tertiary educated and in my […] careers have mixed with a wide type of Australians. Thus I have an understanding of and interest in contemporary society and its mores.

[…]

Thus I would like to ask, who else specifically is ‘the target audience’ for the ‘graphic descriptions of death and sex’ from ‘a notoriously promiscuous gay man...and AIDS activist’: only other notoriously gay men, familiar with the gutter language of such sex?

I do not accept that that program is appropriate for any regular Radio National ‘targeted audience’.

...

ACMA Investigation Report 3157 – Sound. Music. Word. broadcast by 2RN on 8 November 2013. Error: Reference source not found

Attachment B

The ABC submitted to the complainant:

...

In light of your concerns, we have reviewed and assessed the broadcast against the relevant editorial standards:

7.1 Content that is likely to cause harm or offence must be justified by the editorial context.

The ABC has published a guidance note for staff on the topic of Coarse or Offensive Language on Radio,’ which states:

The context in which language is used is an important factor in establishing whether it is acceptable. Coarse or offensive language may be a legitimate part of reportage, debate, documentaries, dramatic, humorous or other artistic work, both live and pre-recorded, but audiences should be given the chance to make informed choices about whether to listen to language which is deemed to be likely to cause harm or offence.

ABC Radio’s standards relating to language aim to meet target audience expectations without impeding the legitimate use of language which reflects contemporary Australian society. The overriding principle is that coarse, offensive, stereotyping or discriminatory language must not be used gratuitously or for no other purpose but to offend.

Host Robbie Buck introduced this program as a feature ‘by turns dangerous, exhilarating, heart- breaking and very, very funny’ about the artistic works and life of performance poet John Giorno, based on the poetry, vignettes and ‘shockingly graphic’ observations presented in his book You got to burn to shine.

In the introduction it was noted that Giorno was a close friend of Andy Warhol and part of the ‘outrageous’ Factory scene, and that he went on to become ‘one of the pioneers of the performance poetry scene’. It was further explained that Giorno was ‘a notoriously promiscuous gay man and in the late 1980s became an AIDS activist’.

The program was preceded by this detailed warning from Robbie Buck:

And I do have to warn you: if you think you’ll be distracted by frequent obscenities and graphic descriptions of sex and death, then it’s perhaps better that you change the station now or switch off the radio for the next 50 minutes or so. If, however, you decide to stay with us, you’re in for a wild ride.

Further advice was provided after the introductory segment of the program: ‘This is the final warning – on the road ahead, adult themes, verbs and nouns’.

8 performance poet John Giorno. Having regard to this artistic context, and in consideration of the target audience and its likely expectations, we consider that the language and sexual references were editorially justified and in keeping with 7.1.

...

In further submissions to the ACMA, the ABC submitted:

RN is the ABC’s ‘Ideas Network, where people can hear the latest in science, books and publishing, religion, social history, the arts and current affairs’. The network’s ‘vision and purpose is to nurture the intellectual and cultural life of this country, and to be a vital element of the contemporary Australian conversation’ (http://www.abc.net.au/radionational/about/). Its target audience is adults over the age of 40 years.

In 2013 Sound.Music.Word was presented in a later evening time slot (Friday, 9-10pm, Sunday, 8pm). It is essentially an arts program, providing ‘a rich mix of great audio storytelling, drawn from the best from RN’s back catalogue and fresh new work’. (http://www.abc.net.au/radionational/programs/soundmusicword/about/). In the RN 2013 program schedule it was described as ‘adventures in radio from around the world’ (http://www.abc.net.au/radionational/features/2013-schedule/).

Sound.Music.Word is part of the ABC’s commitment to broadcasting comprehensive and innovative content that aims to inform, entertain and educate diverse audiences. Consistent with this, the program demonstrates a willingness to take risks, invent and experiment with new ideas. This can result in challenging content which may offend some of the audience some of the time. It nonetheless contributes to the ABC’s function of encouraging and promoting the musical, dramatic and other performing arts.

[...] listened to the program on Friday evening. In the 2013 program schedule, Sound.Music.Word was preceded on Friday evenings by The Live Set and followed by Friday Late: Best of Big Ideas.

Sound.Music.Word featured a diverse range of content, which varied from week to week. Some of the items that featured on the program in late 2013 include: - The Moat Farm Murder (1946): Broadcast:

Sunday 20 October 2013 8:33PM (view full episode)

The Moat Farm Murder (1946) was written by Norman Corwin—another long time Welles collaborator. It's based on the trial records of infamous English murder trail from 1903—Samuel Dougal was on trial for the brutal murder of his lover Camille Holland, found guilty & executed. The trial was a sensation—Dougal was a serial womanizer and the coverage of the trial was replete with salacious detail. And, as we find out, Dougal’s confession has more than a touch of the Gothic about it.

ACMA Investigation Report 3157 – Sound. Music. Word. broadcast by 2RN on 8 November 2013. Error: Reference source not found

- 24 Views of an Ink stain on the tatami: Broadcast: Sunday 10 November 2013 8:05PM (view full episode)

# 11: Shibuya Saxophone Party - Under the flyover at Shibuya, a famous nightlife district in

Tokyo, three boys practice their saxophone riffs. As the guide book explains, ‘Booya’ is not only

the steel ball capital of the world but the meeting place for ‘gang girls’ with white lipstick and

orange hair. A Short History of the Car Bomb: Broadcast:

Sunday 17 November 2013 8:05PM (view full episode)

September is a dangerous month in New York city. The horror of our times started on September 20, 1920, when an Italian anarchist called Mario Buda packed a horse and cart with a hundred pounds of dynamite and drove it down Wall Street. At midday a massive explosion killed more than thirty and maimed many more. It was the first act of public terror using a wheeled vehicle. With the help of author Mike Davis, Tony MacGregor investigates a century of car bombing. The feature traces the story of how various individuals and groups have used the 'informal' weapon of war over the past century.

The Sound.Music.Word website provides details of other broadcast items and is available here - http://www.abc.net.au/radionational/programs/soundmusicword/