Disgusting, but not illegal

A lot of people are criticising the Human Rights Commission (HRC) for rejecting a complaint against Senator David Burch for using the term "house niggers" on his radio show last year.

I defended the HRC's decision last December, when it was first (erroneously) reported that they had thrown out the complaint. I still don't see how they could have come to any other conclusion.

The Human Rights Act does not categorically state "that it is illegal to intentionally excite or promote ill-will or hostility against anyone based on race", as claimed in today's Royal Gazette. Such behaviour is only prohibited in "written matter", "in any public place or at any public meeting", or if done "with intent to incite another to commit a breach of the peace, or having reason to believe that a breach of the peace is likely to ensue". The definition of a public place and a public meeting comes from the Public Order Act and would not seem to include radio broadcasts.

Senator Burch's comment was disgusting. But unfortunately not illegal.

Comments

[Tiger Bay on 17.05.06 at 21:10]

This indicates that our Human Rights Act is poorly written and out-of-date.

Of course, I would argue that the radiowaves are a public place. If they are not, then why are they regulated?

Bermuda sloppiness: some times it works in your favor, sometimes against, sometimes it's just damn embarrassing.

[Tiger Bay on 17.05.06 at 21:16]

The actual text is:

8A (1) No person shall, with intent to excite or promote ill will or hostility against any section of the public distinguished by colour, race or ethnic or national origins— (a) publish or display before the public, or cause to be published or displayed before the public, written matter which is threatening, abusive or insulting; or (b) use in any public place or at any public meeting words which are threatening, abusive or insulting, being matter or words likely to excite or promote ill will or hostility against that section on grounds of colour, race or ethnic or national origins.

How is the radio not a "public place"? Is the internet also exempt?

[Phil on 17.05.06 at 21:24]

See my previous post here for the definition of "public place" and "public meeting".

[Zoom on 17.05.06 at 21:31]

Radios and televisions ..... which are far more available to the public than some idiot talking trash in a "public byway" .. existed at the time this law was written. Of course, they probably assumed that the Broadcast Commissioners would handle abuses in those media sources. Which they won't because, surprise, they are all PLP insiders.

[Martin on 18.05.06 at 07:36]

The real problem is that if radio/tv is not covered, it is tantamount to giving people like Burch a licence to continue in the same vein, without the legal ability to stop him.

Very worrying.

[Phil on 18.05.06 at 08:00]

Martin

There may well be other laws covering radio and TV but as I understand it, the HRC's mandate is solely to enforce the Human Rights Act.

If Burch's comments were in breach of broadcasting standards (which it seems that they could very well be), then I would expect the Broadcasting Commission to find against him. Does anyone know if those standards are online anywhere?

[Tiger Bay on 18.05.06 at 08:36]

The Broadcast Commissioners Act includes the following:

8 (1) No programme or other matter intended to be broadcast by any broadcasting undertaking shall contain anything which offends against good taste or decency or is likely to encourage or incite to crime or lead to disorder or to be offensive to public feeling or which makes any offensive reference to any living person or which is likely to violate this Act or any regulations or directions made thereunder and if, in the opinion of the Broadcasting Commissioners, any programme or other matter contains anything which is offensive or otherwise undesirable as
aforesaid, or which violates this Act or any regulations or directions made thereunder they may direct that such programme or other matter
be changed or modified.

The Political Broadcast Directions include a few gems: 4(1) government "informative" programming should last no longer than 15 minute intervals and should be balanced by equal access by the Opposition.

5(1) Reporting of news and public affairs shall be factual and presented without local political bias. There shall be no political broadcasting during any news or public affairs programme.

I'd certainly call the Colonel's show a public affairs programme.

[ken on 18.05.06 at 09:00]

The decision released on Wednesday was that of the Human Rights Commission, and they found that Col. Burch wasn't in violation of any Human Rights Acts.

From my understanding Mrs. Gordon-Pamplin has also filed a complaint with the Broadcasting Commission, regarding his comments as they were over the airwaves. The RG spoke to the chairman and apparently they had a hearing and are deliberating their decision, which will be made public once it is compiled.

They are potentially two different resolutions due to 2 different acts - the Human Rights Laws and the Broadcasting Commission Laws.

[laughing all the way on 18.05.06 at 11:02]

If a black member of the UBP had called another black guy a house nigger on the radio all hell would have broken loose, there probably would have death threats. A couple of months ago members of the PLP tried to raise hell because Grant Gibbons used the term whipping boy. Truth is that the majority of the blacks on this island are willing to let the PLP get away with anything. When I see articles in the newspaper with blacks going on about plantation days I laugh. To all the blacks you all got yourselfs new masters in the form of the PLP, they just happen to be the same colour as you, they say jump and you ask how high, its a joke.

[Ex Limey on 18.05.06 at 12:49]

Disgusting, but not unexpected.

Let's see what the broadcast commission says.

Don't hold your breath tho...

[TJL on 18.05.06 at 13:11]

Everyone seems to be concerned with whether or not the radio is a public place - no-one has yet questioned whether Senator Burch's comments meet the standard of demonstrating "intent to excite or promote ill will or hostility against any section of the public distinguished by colour, race or ethnic or national origins".

I doubt very much you could argue that the Senator sought to stir up anti-black sentiment with his comments. He took a political stance against a group of Opposition Parliamentarians, and decided (unwisely) to include in his opinions a disgusting and insulting term. But we don't need the Human Rights Commission to protect us from being insulted - if we did, then most rappers and comedians would be in breach of the law. Restrictions on freedom of speech should not be taken lightly, and are only justified when to do otherwise severely jeopardizes the safety of a group within a community - disgust alone has never been a suitable benchmark.

Taking the Limey's argument a step further, Senator Burch's comments were disgusting, but should not be illegal.

[SmokingGun on 18.05.06 at 13:35]

Personally I think the HRC should have waited until the BBC had reviewed and decided if the language and commentary went against commision rules. If the Broadcasting Commission ended up condoning the kind of language that the Colonel uses then I think HRC would have an interest in looking at what exactly is their agenda.

Any who how, just like with the moronic gangsta/rap songs, I just turn Burch off before he get's the chance to do the same to me.

[Yet Another Limey on 18.05.06 at 16:05]

If it’s only wrong in ‘written matter’ could someone take the RG to task today for its opinion piece where it racially discriminated against the black members of both main political parties and all white Bermudians.

i

[Ex Limey on 18.05.06 at 16:44]

We the people put these racist bastards where they are. Enough already, lets take em down.

[Ex Limey on 18.05.06 at 16:47]

If a white guy so much as leans too far to starboard he's accused of being a racist. These people just take the piss.

[Ex Limey on 18.05.06 at 16:52]

Yet another Limey.

Today's editorial was written in the context of the HRC decision - so no.

[sandgrownan on 18.05.06 at 16:54]

It will be interesting to see if there's going to be a reaction to the editorial from the knuckle draggers.

[Chris Broadhurst on 18.05.06 at 17:09]

I am dying to see how the Broadcast Commission will wriggle out of this (and I'm sure they will). But in doing so they will be saying that its OK to say the N word on radio. Unfortunately with radio you can't distinguish colour so they wont be able to get away with the crap that its oK for a black guy to say it but not a white.

But I'm sure they'll give it a try.

[ken on 18.05.06 at 17:56]

Chris

The Broadcasting Commission and Human Rights Commissions are made up of totally different people and have totally different mandates.

According to the paper they met on this issue and are deliberating. Let's see what they do. By condemning them before they have ruled is a bit pessimistic don't you think?

[Full Fullish on 18.05.06 at 18:06]

According to the paper they met on this issue and are deliberating. Let's see what they do. By condemning them before they have ruled is a bit pessimistic don't you think?

Why are they JUST deliberating on this? Shouldn't they have been on this as soon as the offence occured? The BC don't need a complaint brought to them about this, they have the authority to presecute or fine on their own accord. Oh yeah, doesn't Scott Simmons have a hand in this....(sigh)

[Chris Broadhurst on 18.05.06 at 19:52]

Ken: He said the word NIGGER on the air. What is to discuss and why shoulfd it take 6 effing months???

Remember Janet Jackson showing her tit on TV. They acted pretty quick as I recall.

I am being 'pessimistic' because the Broadcast Commission has been unable to decide since last November if the word NIGGER should be allowed on the radio.

Burch should have been banned the very next day IMHO.

The fact that he is still on the air is disgusting, but not surprising.

[Slowhand on 18.05.06 at 20:26]

Listening to Hott 107 this morning, I heard both hosts (can't for the life of me think of how to spell either of their names correctly, and I have know Dill from when he was born) talking about the editorial in today's paper. 'T' said he was "Pissed" with repetitive emphasis mainly because of the reference or analogy to the rapist and victim, and the other host 'N' referred to how ignorant it was. Their take on it, in my simplified terms, is that it happened.... it was found not to be contravening any laws.... so get over it.
The Irony of the whole thing? They were complaining about how the Editor had said something!

[Chris Broadhurst on 18.05.06 at 20:55]

It is typical of Theo & his sidekick to say 'get over it' since it is their station in question. If the Broadcast Commission does find that there is no problem with the word NIGGER over the air, then I will be recording a song, with the word NIGGER in it and will submit it for them to play.

I assume they will have no problem with this.

Right! HA

[SmokingGun on 18.05.06 at 21:07]

Introducing Chris Broadhurst & The House N@*$%# Band.

[ken on 18.05.06 at 21:12]

Chris,

And if the Broadcast Commission rules that it was inappropriate and in contravention of the broadcasting rules, what will you say then?

I am sure you will still have a problem. You will complain that it took too long.

Some of you all are never pleased.

In the meantime though, lets wait to see what the Broadcasting Commission says and then go from there.

[Chris Broadhurst on 18.05.06 at 21:22]

Ken: If the commission finds the word NIGGER offensive then I will applaud them.

I will not complain that it took too long - it is what I have come to expect from this PATHETIC government.

[Chris Broadhurst on 18.05.06 at 21:28]

Ken:

Please consider that there are only 3 words in the English language that are considered so offensive that they are referred to by the first letter:

The F word
The C word
The N word.

Would it honestly take you 6 months to figure out if either of these should (or should not) be uttered on the radio???

6 seconds would be too long !!!!!

[George Carlin on 18.05.06 at 21:34]

You missed S P _ _ CS MF and T.

[SmokingGun on 18.05.06 at 21:37]

Unfortunately by the simple fact that the BC has taken so long to just come out with a verdict having already had their meeting it would appear they aresquiming to come up with something that is OK with the PLP (Burch's boss).

My verdict: Made same day as the meeting: Six month suspension of the Burch Radio Hour. Next....

[Chris Broadhurst on 18.05.06 at 22:21]

The fact that the BC took more than 24 hrs to take action on this smacks of a cover up.

Do you honestly think that if I was interviewed by David Lopes and I let the word NIGGER out accidentally, that I'd EVER be allowed on ZBM again???

Kenny??

[SmokingGun on 18.05.06 at 23:29]

Especially as they new this had blown up into such a major issue in Bermuda. Don't these people read the papers? This is a credibility blunder on both HRC and BC accounts.

The fact that Burch used incendiary comments is just one reason to shut him down, the fact that he can continue to use his show for political purpose is another reason to dismiss him.

[Emerging Marketer on 19.05.06 at 08:16]

Burch should be fined and banned from the airwaves, plain and simple. Hott107 should be fined as well. I can't see how profanity could be a punishable offence, but house nigger wouldn't be.

[ken on 19.05.06 at 08:44]

Chris,

I wasnt online last night, so thats why I hadn't responded. Yes perhaps the BC has taken too long to come up with a resolution. I cannot argue with that fact. However that doesn't automatically mean there is a coverup or that they are trying to come up with something to satisfy the Colonel.
I would hope they are not trying to satisfy anything other than what is the correct thing to do.

[observor on 19.05.06 at 08:49]

EM - you are absolutely correct.

[Chris Broadhurst on 19.05.06 at 10:09]

Ken,

Perhaps you are right.

However, if they take this long to decide whether calling someone a NIGGER on the radio is acceptable, it seems to imply that our Broadcast Commission is somewhat ineffective.

Burch should have been banned the next day, the station should have been fined immediately.

The inaction of the Commission seems to suggest that they could not organize a piss up at Goslings.

[ken on 19.05.06 at 11:07]

Chris,

While I have conceded that it has taken too long, remember that an investigation had to occur to satisfy the complaint, and give both the complainant and the defendant an opportunity to speak on it. Yes, of course it could've been done in a more expedient manner, but i think at this point it would be interesting to see the resolution that they come up with.
Will they follow the ruling of the HRC, or will they adjudicate on this issue separately and come to their own conclusions. I am not sure who all the members of the Broadcasting Commission are, but I don't believe they are the same as sit on the HRC, and therefore we cannot automatically assume they will come to the same conclusion. Likewise, the two different commissions are bound by different regulations and look at things differently.
I personally think the statement is offensive and does offend public decency. I do not however think it is a Human Rights Violation. I think the two issues are separate and distinct.

[observor on 19.05.06 at 11:49]

an investigation had to occur to satisfy the complaint ... which should have taken no time at all to complete:

1. Receive complaint together with supporting documentation (if applicable);

2. Send out a meeting notice to the Broadcast Commission ("BC") members & participants - give them minimum 4 weeks notice;

3. On the morning of said meeting date order some sandwiches (as evidenced by the BIC meetings and corresponding north of $50k catering budget, this government loves a free meal, well by free I mean we the taxpayer shoulder the burden ... again);

4. An hour before the meeting chill the sodas;

5. Ten minutes before the meeting plug in vintage boom box (you know ... the one that requires 14 'D' cell batteries, has tons of lights and embellished plastic chroming) as this government certainly doesn't spend any money modernising the A/V equipment as that would end up providing clear accountability and a record of their (poor/mis) conduct;

6. As most (if not all) of the BC members are PLP insiders wait at least 30 minutes after the planned start of the meeting to actually begin proceedings as they were all over at Alaska Hall and the Cabinet Office ahead of time developing a game plan for rejecting the complaint and lost track of time;

7. Call the meeting to order;

8. Insert tape;

9. With two hands press remind button;

10. After a loud bang indicates the tape has been successfully rewound use two hands again to press play;

11. Listen;

12. Rewind;

13. Listen again;

14. If necessary read the Act (which hopefully shouldn't be necessary as they guys are supposed to know what they're doing - I mean after all the PLP wouldn't appoint partisan yes men to the BC would they ... yeah right);

15. Listen to the tape again;

16. Consider contacting Bill Clinton for a better (i.e. politically expedient) definition of broadcasting standards;

17. After 1 week of back and forth behind closed door deliberations issue a statement along the lines of:

"Our perception of the suitability of these remarks is strictly limited to the extent of our involvement and accordingly we reject same in favour of accepted broadcasting standards in as much as they are in use today."

... wtf ...?

[SmokingGun on 19.05.06 at 12:02]

observer - it probably took you longer to type said satire than it should have to make the decison. ;-)

My prediction is that the Colonel will be let off because it will be determined that the term he used was simply a reference to a historical fact. In reality rather than being offended we should all appreciate the good Colonel for his willingness to offer us local history lessons on his own time.

Howard Stern would have a field day down here.....

[Phil on 19.05.06 at 13:21]

In today's Mid Ocean News ("Burch remark 'distasteful' says HRC"), lawyer Tim Marshall of law firm Marshall Diel and Myers says:

"The Act doesn't include anything broadcast as being in a public place and it would therefore be very difficult for anyone to argue that what was said was said in a public place.

"This type of case brings to the forefront imperfections in the law and it should be changed."

[Uncle Elvis on 19.05.06 at 14:47]

A field day or a house day?
Which one's the bad one again?

Observor, thanks for the chuckle.

So here's the question for all of us.

What do we do if and when this is over and nothing happens? When Burch gets lauded for his bravery for speaking out against injustice and hypocricy?
I say we call up Desmond and get him to do a sculpture of Col. Burch entitled "Proud to be in the field." Hmm.. maybe "A Man Out Standing In His Field", to rehash an old joke.
Surely this brave, brave man who has the balls, nay, the courage to stand up to those who disagree with him by calling them vile names and hanging up the phone on them, refusing to listen to their point of view... surely this bastion of broadcast brilliance deserves a tribute of some sort!

Perhaps we should all get tshirts defining our historical roles. Some white folks could get "Slave Owner", others, both black and white, could get "Slave Traders", There could be two for black folk to pick from, "House, and proud of it" and "Field, and proud of it". Irish folks could have "Field, House, we did it all". Welsh, too, for that matter.
Come on, folks. This paradigm of equality has shown us the way. Wear your banner proud! Let your freak flag fly!

[Rossini on 19.05.06 at 15:26]

Just out of curiousity...why are all you white people so outraged by this remark ?

[SmokingGun on 19.05.06 at 15:36]

Allow me. Because it's a demeaning and racist remark. Why shouldn't we find it offensive? Do you think we're all still living on the plantation?

[Uncle Elvis on 19.05.06 at 16:07]

Thank you Smokes.

Rossini,

Why are we outraged by this remark? Because it is wrong, it is demeaning and it is sickening that anyone would say it, especially a member of our Government.
In your opinion, would you say that we shouldn't be? If so, why not? Aren't we working towards equality and the betterment of EVERYone?
Or is it that a black man said it that we shouldn't be outraged. If a white man had said it and we were this outraged, would you still ask that question?

Personally, I am outraged because I hate that word, I do not use that word. It offends me and it disgusts me and the fact that someone used it in a public broadcast and hasn't been punished for it in any way shape or form makes me very sick and very sad.

So, out of curiosity, Why shouldn't we be?

[Rossini on 19.05.06 at 16:08]

I know that's what you think, but how does it enrage you when it can never be said about you...can never pertain to you....nor can you muster any outrage but the superficial for those reasons.... I am genuinely curious as I don't think I would be as upset as you all are if someone called a white person a honky, a cracker or whatever else is out there...

[loki on 19.05.06 at 16:11]

"Just out of curiousity...why are all you white people so outraged by this remark ?"

I think, really, that there are a few reason, if one takes time to think about it:

1. The word 'nigger' is about as offensive and demeaning a term as one can use. Burch's use of it is just disgusting;

2. Because he used it in the context of politcal discussion and was essentially pointing his finger at the UBP, the implication is a racist one: blacks in the UBP are in the service of 'the man'. He's pitting white against black and, speaking as someone who's white, I'm offended by the PLP's racial politics. The implication is that, "if you're in league with whites, you are a traitor". In the context of Burch's quote, it's offensive to whites, as well;

3. The double standard: if a member of the UBP or, for that matter, a white person, called any black or any member of the PLP a 'nigger', they would be villified, quite rightly. Burch not only got away with something that no white person could have, he was rewarded for his nasty little rant with a seat in cabinet.

[Fool's Gold on 19.05.06 at 16:22]

Rossini

Would you be upset if someone called your mother (or any woman) a bitch or a whore? You are not a woman so the insult could never pertain to you or be about you but surely you would be offended.

[SmokingGun on 19.05.06 at 16:23]

Rossini - you are deliberately playing to the damned if you do damned if you don't on this. If you really do not want white people to empathize with you then please just say so. Stop asking for an apology and allow us to throw out our history books. And when the predjudiced bigots come gunning for you - don't expect anyone to be there to help you.

The fact that we all know your comments are just to be spiteful and inflammatory doesn't take away from the fact that you might actually be somewhat ignorant. :-)

[Uncle Elvis on 19.05.06 at 16:26]

Just because it cannot be applied to us personally doesn't mean we shouldn't be offended. It can be used against our friends, our families, our loved ones.
And, for the record, honky, cracker, whiteboy, melanin-impaired, whatever... none of those have the weight, the history, the meaning that the N-word does.
You tell me a word that's anywhere NEAR as offensive as that word and I'll give you five bucks.
Mick? Spick? Wop? Dago? Kraut? Eye-tie? Guinea? Frog? Chink? Jap? Nip? Paki?
Nothing comes close.
Hell, even the other slurs for Black folk are nothing compared to that one. The only one even REMOTELY close to it, and only in Southern Africa, is the K word.

Find me one. There's $5 in my gallery for you.

[silencedogood on 19.05.06 at 16:47]

Smoking Gun--big ups to you!

I think Rossini just doesn't understand how things work in a country that isn't "real" according to his standards.

How could whites possibly give a shit about anyone outside their race???? Gasp! The world might end if we didn't hate each other over something like skin tone. This is 2006, not 1706. Wake up!

P.S. Rossini, I think you have established that you could care less what negative things are said or done to white people. Just trying to keep it "real" I guess.

[Rossini on 19.05.06 at 16:51]

Geeeesh guys...I was just asking....sorry....In any event,I think this is the wrong site to descend into a discussion about the history of the terms "house nigger" and "field nigger".As usual my ignorance is cited as the reason for my banter. Well get this guys....your reaction to the word nigger in Col. Burch's comment is precisely why I know you don't get it. The term used was "house nigger" which in the black experience means something. This is not about the use of the word "nigger" on its own. Your comments are the patronising ones....suggesting that you are qualified to tell me as a black man at what I should be outraged. Trust me, I don't need you, nor do any other blacks, to tell me when someone is being racist...I know it when I see it, hear it, smell it and sense it. You as white people shouldn't even be participating in this discussion. What Col. Burch said is between black people and is for us to resolve.Further, his comment is a testament to the legacy of slavery and speaks more about the true power of white people to divide us. The term house nigger wasn't invented by us it was invented by the masters to inspire greater loyalty from those who were closer to them...who nursed their babies, who cooked their food and fanned them day and night.....it refers to blacks who were grateful for the whip and were reared on a steady diet of "well, it could be worse, we could be in the fields...". Don't lecture me on what is offensive when you do so without historical context.My explanation should reveal now why it is that only SOME blacks chose to complain about the comment. A cliche about shoes and them fitting comes to mind.