ESPN, Freedom of Speech, and Jeremy Lin

by Joseph Miller, Esq

When ESPN suspended Max Bretos and fired Anthony Federico for using the phrase “chink in the armor” in their coverage of Jeremy Lin and the New York Knicks’ loss to the New Orleans Hornets last Friday, righteous indignation about the dwindling First Amendment ensued.  That predictable response is a symptom of the low standard that is set for hosts and pundits.  But the First Amendment has nothing to do with this.  ESPN’s decision was more likely motivated by the fact that it wanted to avoid an employment discrimination charge by its Asian-American employees.

Kevin Ota, ESPN Digital’s Director of Communications said as much:

“We again apologize, especially to Mr. Lin. His accomplishments are a source of great pride to the Asian-American community, including the Asian-American employees at ESPN.” [emphasis added]

Incendiary talk show host Glenn Beck, who left Fox News after his primetime show lost 400 advertisers and suffered a nearly 40 percent ratings decline  following efforts to boycott the show, took to his internet tv station, Glenn Beck TV (GBTV), to defend Mr. Bretos and Mr. Federico.

“Freedom of speech … What they do is they slowly but surely take away … they make you afraid to say something,” Mr. Beck said about “the left.”

“Freedom of speech is in danger here more than anyplace in the world.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees on the basis of “race, color, religion, sex, or national origin” with respect to their “terms, conditions, or privileges of employment.”  When Congress proscribed discrimination with respect to the “terms, conditions or privileges of employment,” it intended to prevent all forms of workplace discrimination, including discrimination creating a hostile or abusive working environment (Meritor Savings Bank v. Vinson).  A workplace “permeated with discriminatory intimidation, ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment” creates a hostile or abusive working environment and thus violates Title VII.  However, there is no requirement that the discrimination lead to serious physical or psychological harm to the employee (Harris v. Forklift Systems, Inc.).  Whether a working environment is indeed hostile or abusive is determined from the perspective of a reasonable person (i.e. a jury).  The same standard applies in the context of race (National R.R. Passenger Corp. v. Morgan).

Eighteen eighty-four in Tennessee—during the Jim Crow era—that’s the earliest case I could find saying that employers, as long as they don’t break the law, can fire employees for any reason (Payne v. The Western & Atlantic Railroad Company).  That far predates the start of Mr. Beck’s vast, left-wing conspiracy, which he usually says came about around the time of Hitler.

ESPN was enforcing the law.  Employers are not subject to the free speech provisions of the First Amendment, which prohibits the government from abridging the freedom of speech.  ESPN was free to interpret the law in any way it thought prudent to prevent the creation of a hostile work environment that would lead to an Equal Employment Opportunity Commission (EEOC) charge.  For example, if ESPN had taken no action, it ran the risk that supervisors would have felt emboldened to harass their Asian-American employees. In that case, ESPN would have done nothing to prevent creating a hostile and abusive work environment and would therefore have exposed itself to vicarious liability for the subsequent acts of the supervisor.

ESPN was following the letter of the law and the EEOC’s guidelines for Title VII compliance.  After the Supreme Court’s decision in the now infamous Citizens United v. Federal Election Commission, in which it rejected corporate spending limits in political campaigns, its tolerance for hate speech (Snyder v. Phelps), and the fact that Mr. Beck lasted at Fox News as long as he did, it is doubtful that Mr. Beck is really concerned about the United States’ place in the world when it comes to free speech.  Perhaps it was Emancipation that Mr. Beck and others think was the catalyst of the vast plot they can’t seem to define.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director of the Media and Technology Institute of the Joint Center for Political and Economic Studies in Washington, DC.  More information on Joseph Miller and his work can be found at the Joint Center website.

This is Inner City…

by Joseph Miller, Esq.

“Don’t take away the music.  It’s the only thing I’ve got.  It’s my piece of the rock.” 

-        From the lyrics of Don’t Take Away the Music by Tavares.

“[T]he market shapes programming to a tremendous extent. Members of minority groups who own licenses might be thought, like other owners, to seek to broadcast programs that will attract and retain audiences, rather than programs that reflect the owner’s tastes and preferences.”

-        From Justice Sandra Day O’Connor’s Dissenting Opinion in Metro Broadcasting Inc. v. FCC, 497 U.S. 547 (1990)

When the walls started shaking at the Joint Center’s offices during last week’s earthquake, I was faced with one question: leave the building or stay inside?  Similarly, the seismic transformation of the broadcasting industry brought on by mobile devices, personal computers, and digital video recorders has presented new problems for broadcasters.  But Black-owned radio stations targeting African-American audiences are faced with their own fight or flight question:  Can they stay profitable by offering black-only programming?  What is the tipping point at which diversifying their programming will begin to alienate their listener base?

Earlier this week, Inner City Media Corporation’s creditors filed an involuntary Chapter 11 bankruptcy petition against it. Inner City Media Corporation is the holding company of Inner City Broadcasting, one of the nation’s leading black-owned broadcasters and owner of WBLS-FM/WLIB-AM in New York City.  Inner City’s creditors claim that it owes some $254 million.

Inner City Broadcasting is rooted in the civil rights movement.  The late Percy Sutton, former attorney to Malcolm X and a former Manhattan Borough President; and Clarence Jones, former publisher of The New York Amsterdam News, one of the oldest black-owned newspapers in the United States, founded the company in 1970.  WBLS has been home to legendary black radio personalities like Hal Jackson, Frankie Crocker, Wendy Williams and DJ Red Alert.  WLIB has changed formats many times over the years, but it too has featured notable personalities including Betty Shabazz, Malcolm X’s widow; and Rev. Al Sharpton.  Inner City owns 15 other stations in San Francisco, CA, Columbia, SC, and Jackson, MS.

Inner City’s failure to repay its debt could be attributed to any number of causes, such as poor financial management.   But saying that poor financial management is the sole culprit, and leaving it there, does little to address the issue of why Inner City’s stations have failed to generate enough revenue to pay the bills.

Let’s take WBLS as an example.

WBLS’ Glass Ceiling

WBLS has hit a glass ceiling.  Barring a complete revamping of its format to include more mainstream content, it appears that WBLS has attained the highest ranking possible with an urban adult contemporary (Urban AC) format in New York.  According to Arbitron, the Urban AC format is the most popular format among African-Americans.  It features music by artists such as Maze Featuring Frankie Beverly, Earth, Wind & Fire Marvin Gaye, R. Kelly, Alicia Keys, Eric Benet, Ne-Yo and Usher.  The “average quarter hour” (AQH) rating of a radio station is the average percentage of a population being measured listening to a radio station for at least five minutes during a 15-minute period.  With a 3.6% AQH overall rating, WBLS is the number one station in New York targeting a predominantly black audience.  It also ranks #8 among all radio stations in the New York metro area.  WLIB, WBLS’ sister station, ranks 34^th, with a .4 AQH rating.

WBLS’ closest competitor, Emmis Communications’ WRKS-FM (98.7 Kiss FM)—the only other Urban AC station in the market—is ranked at a distant #16 overall.  But Kiss is half of Emmis’ combo which includes WQHT-FM (Hot 97), an urban station that skews toward the 18-34 demographic with hip-hop and r&b artists.  Hot 97 posted a 3.3% AQH share in July, placing it at #12 in the overall rankings.  But with the ratings of Kiss and Hot 97 combined, Emmis is actually pulling a 6.2% AQH overall rating, compared to a 4.0 combined rating for Inner City’s WBLS/WLIB combo.

Further, Inner City has been hauled into bankruptcy, while its publically traded counterpart is carrying a similar long-term debt load without repercussions.  The $254 million that Inner City owes to Yucaipa Cos. and others does not appear to be that unusual.  Not taking into account other liabilities, Inner City’s debt-per-station based on the $254 million alone is $14.9 million. At the end of 2Q’11, Emmis held long term debt obligations of $327.2 million.  Spread across Emmis’ 22-station portfolio, its debt-per-station is $14.8 million, just $100, 000 shy of Inner City’s obligation.

Should WBLS Change Formats to Increase Inner City’s Revenue?

Radio stations change formats all the time.  If a particular format is not working, most station owners are generally not averse to abruptly switching formats.  For example, the radio station at 101.9 FM in the New York Metro area, also owned by Emmis, has changed formats four times over the past seven years.  In 2004, the station switched from Smooth Jazz (Kenny G, Sade, Yellowjackets, Anita Baker) to an electronic/ambient music format (Massive Attack, Thievery Corporation).  It switched back to Smooth Jazz in 2005 and, in 2008, flipped to Rock (Kings of Leon, Pearl Jam, Black Crowes, Blink 182).  Finally, on August 12^th of this year, the station changed formats (and owners) yet again, switching to an all-News format.

Inner City is no stranger to programming formats targeting non-African-American audiences.  Among Inner City’s 15 other stations, only 6 target African-Americans specifically.  Inner City’s station portfolio also includes progressive talk, rock, classic rock (Allman Brothers, Rolling Stones, The Beatles, the Yardbirds), oldies (Elvis Presley, The Beach Boys, The Supremes, The Four Seasons, and Sam Cooke), Chinese-language, Vietnamese-language, and two sports talk, ESPN Radio affiliates.

But what is often a business-as-usual decision to change formats carries an additional layer of complexity for black-oriented stations.  As in the case of WBLS, radio stations targeting a predominantly African-American audience are often intimately tied to the very heritage of the communities they serve.  In our communities, having the ability to listen to black music, on radio stations owned by people who look like us, with credible air personalities we can relate to, is often about much more than entertainment.  In an era of high unemployment, mortgage foreclosures, disproportionate incarceration rates, and widening achievement gaps in education, listening to black-oriented radio has a cathartic effect.

WBLS could change formats, but why should it?  Arbitron reports a .5 percent increase in the number of African-Americans who listen to Adult Contemporary radio stations (Eric Clapton, Whitney Houston, Chicago, and Christopher Cross) since Fall of 2009.  It also reports an increase in the number of Blacks who listen to Pop Contemporary Hits (Ke$ha, Lady Gaga, Bruno Mars, Pink, Black Eyed Peas).  But this is far from a death-knell for black radio.  Radio stations targeting mainstream audiences have diversified their playlists, but black-oriented radio stations have not.

Those African-Americans that listen to both black-oriented stations and mainstream stations are signaling a desire for more diverse content.  Their behavior indicates an impulse to seek out contexts that communicate—as Pepper Miller of the Hunter-Miller group describes it—“a universal situation … living parallel to mainstream” rather than isolated in a silo with no mass appeal relevance.  This does not require black-oriented stations to change formats completely.  But what it does require is learning a lot more about black listeners who are less loyal to Urban AC formats, and addressing some of their programming needs.  If Inner City doesn’t do it, someone else will, and it is starting to look more and more like that may very well be the scenario.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director for the Media and Technology Institute for the Joint Center for Political and Economic Studies.

Video Games and Children of Color: There is More than One Compelling Interest at Stake

by Joseph Miller, Esq.

The Supreme Court’s recent decision to strike down a California law banning the sale of violent video games to children was not surprising in light of the Court’s First Amendment doctrine or the Roberts court’s business-friendly stance on corporate speech.  For children of color, the need for data establishing a nexus between violent video games and real-world violence is even more compelling as children of color spend more time playing video games than white children.  In addition to seeking to address the effect of video game violence on children’s psyches, state legislators should also seek to address the impact of popular video games on academic achievement.

At first glance, it is difficult to conclude that the Court’s decision was based on ideology rather than the letter of the law: While the Roberts court has demonstrated a proclivity for protecting corporate and business interests (see, e.g. Wal-Mart v. Dukes, Citizens United v. Federal Election Commission, and AT&T Mobility v. Concepcion), Justice Scalia’s majority opinion in yesterday’s Brown v. Entertainment Merchants Association decision was actually joined by the two justices widely considered to be the Court’s most liberal—Justices Ginsburg and Sotomayor. Nevertheless, Chief Justice Roberts and Justice Alito issued concurring opinions that can be read as a refinement of their doctrine protecting corporate speech.

The majority analyzed California’s state law from a strict scrutiny point of view.  To pass Constitutional muster, state laws abridging fundamental rights, such as the right to free speech and freedom of expression, must address a compelling governmental interest and must be narrowly tailored via the least restrictive means for achieving that interest.  In the context of free speech, this means that the state law in question must be designed to prevent speech that harms the compelling interest at stake.  Here, the interest advanced by the State of California was to protect minors from violent content in video games.  However, the majority reasoned that the scientific studies presented by the State of California to justify the statute did not prove a direct connection between violent video games and the asserted harmful effects on children.  Writing for the majority, Justice Scalia further stated that the California law was not the least restrictive means that could have been advanced because it was “under inclusive” — while the California law restricted the speech of game developers,  it did not restrict violence in other media targeting children, such as children’s books and television shows.

Chief Justice Roberts and Justice Alito deliberately avoided the “broader” issue of strict scrutiny, choosing to focus instead on whether the California statute provided adequate notice to game developers as to the standards that determine which content is too violent and which is not.  Thus, not only must a state law even remotely abridging corporate speech meet the strict scrutiny standard of review, such laws must be so specific as to require legislators to put themselves in the shoes of corporate speakers trying to determine what kinds of speech are prohibited.

Such was the disposition of the majority opinion and the concurrence, neither of which were particularly surprising or groundbreaking.  The strict scrutiny test itself remains largely unchanged, and the notion that legislators must consider the First Amendment from the point of view of speakers other than individuals is a bedrock principle, especially in light of Citizens United—this decision simply solidifies it.

Still, we are left with considerable uncertainty as to whether violent video games actually harm children, and clearly this is a matter that requires further research.  This issue is particularly important for children of color.  Last month, Northwestern University released a study that found that, on average, white children spend the least amount of time per day playing video games (:56), compared to blacks (1:25), Hispanics (1:35), and Asian Americans (1:37).  Not only could violent video games potentially lead to real violence, more time spent playing video games necessarily means less time studying.  Additional research and evidence is needed that firmly establishes these links, so that states can make the case for restricting the sale of video games to minors.

Joseph Miller, Esq. is Deputy Director and Senior Policy Director for the Media and Technology Institute for the Joint Center for Political and Economic Studies.