Sunday, June 24, 2018

Leonard M. Baynes

excerpted from  White Out: The Absence and Stereotyping of People of Color by The Broadcast Networks in Prime Time Entertainment Programming , 45 Arizona Law Review 293-369, 293-300, 367-369 (Summer 2003) (650 Footnotes Omitted)

[F]or too long, women and minorities have faced barriers to working in front and behind the camera. . . . Our nation benefits when television better reflects the diverse market it serves.

In the fall of 1999, the then-new television schedule was announced and "none of the twenty-six new fall programs starred an African American in a leading role, and few featured minorities in secondary roles." This absence caused the National Council of La Raza to organize a protest called a "National Brownout" in which they advised their members to refrain from watching television during the week of September 12, 1999. At the same time, Kweisi Mfume, the President of the National Association for the Advancement of Colored People ("NAACP"), threatened a boycott and legal action against the networks' broadcasting licenses based on the belief that the networks were violating the 1934 Communications Act. The major networks scrambled to add actors of color to their previously all-white shows. The NAACP held hearings in Los Angeles in November of 1999. The NAACP reported that each network was invited to submit testimony to the NAACP panel, but only CBS sent its CEO, Leslie Moonves; the other three networks sent lower-ranking executives. When only Mr. Moonves was allowed to speak at the hearing, the executives from the other three networks walked out. Ultimately the major networks and the NAACP announced an agreement in which FOX, CBS, ABC, and NBC agreed to hire more actors, producers, writers, and directors of color. All four networks have hired a vice president of diversity to monitor their progress in hiring writers, directors, actors and executives from diverse backgrounds. However, ABC's vice president of diversity reports to the senior vice president of human resources whereas at the other three networks the vice president of diversity reports directly to the network president. The agreements have been called "vague" because they have no specified goals or timetables. In its report, Out of Focus--Out of Sync, the NAACP noted that FOX and CBS established diversity advisory boards that are actively involved in various stages of development, sometimes influencing casting decisions. Neither ABC nor NBC have established a comparable institutional structure to promote diversification.

To great fanfare, CBS launched a predominately black drama series entitled City of Angels, produced by Steve Bochco, the creator of such television hits as LA Law, Hill Street Blues, and NYPD Blue. Unfortunately City of Angels lasted for only two seasons. In addition, PBS debuted a drama called American Family about a Latino family in Los Angeles. Originally the show was developed for CBS's 2000-2001 lineup, but the network failed to include it on its schedule.

The networks do know how to program shows that draw from what they at least think is black life. For example, those networks that emerged over the last ten years tend to program to those members of society that are not represented by the established networks. It gives the new network an automatic market niche that is otherwise not being filled. So it was no surprise that, in the early years, the FOX network programmed several shows with mostly minority casts like Martin, Living Single, New York Undercover, and In Living Color. However, once FOX became established and won acclaim for some of its other shows like the X-Files and Ally McBeal, it abandoned this programming and demographic and its programming became as white as that of the other major networks.

Some fear that the two newest networks, UPN and WB, may abandon their current emphasis on the minority demographic once they become more established. In 1999, thirty-two percent of UPN, and twenty-seven percent of WB, viewers were African American. Forty-five percent of the characters on UPN, and twenty-three percent of the characters on WB, were African American. Despite the presence of African Americans on these networks, the WB programs seemed to be targeted more towards young, white audiences, and the UPN black-oriented shows were segregated to Monday nights.

Before reaching agreement, Kweise Mfume stated that the NAACP was considering a wide range of action against the networks including litigation alleging that the absence of minorities on television programs violates the 1934 Communications Act. The networks and the NAACP have agreed on how to diversify the shows and their writing staffs. However, in August 2001, Mfume said that he found that the major networks had made little progress in diversifying what we see on television. In fact, prior to the events of September 11, 2001, he said that he would probably propose to the NAACP Board of directors that ABC, CBS, NBC, and FOX be singled out for a "massive, targeted and sustained economic boycott." Last year, a multi-ethnic coalition (consisting of the NAACP, National Latino Media Council, American Indians in Film & Television, and the Asian Pacific American Coalition) gave low marks to the networks for diversity in their programming. This coalition gave ABC a D-minus, CBS a D-plus, FOX earned a C- minus, and NBC received the highest grade of a C.

Children Now's 2001-2002 Prime Time Diversity Report indicated that dramas were five times more likely than comedies to feature people of color as recurring cast members. The Report indicated that thirty-nine percent of dramas featured mixed opening credit casts compared to seven percent of situation comedies. More than two-thirds of the drama series featured at least one racial minority character in a primary recurring role. The Report indicated that the 2001-2002 season featured more programming with racially homogenous casts that were either all black or all-white. Only twenty-five percent of the season's programs featured casts that were racially mixed. Most of the diversity gains over the past three years have been attributable to non-recurring and secondary characters. For example, in the 2001-02 season, Latinos(as) comprised four percent of the entire prime time population but only two percent of the opening credit cast. Similarly, Asian Americans comprised three percent of the total prime time population but only one percent of the opening credit cast.

Several members of Congress have been concerned about the media's negative minority stereotypes. In August 2001, Congressmen Eliot Engel, Michael Makoto Honda, and Bobby Lee Rush introduced legislation to amend the Communications Act so as to direct the FCC to establish an office on victims of media bias. Several other countries handle the problems of negative media stereotypes by actually regulating content of their broadcasters.

The Federal government has an interest in regulating these absences and stereotypes because it owns the electronic spectrum through which the broadcast signal travels. Under the Communications Act of 1934, the FCC awards licenses to broadcasters in trust for, and as fiduciaries of, the American public. Because of the electronic media's almost-omnipresence in the lives of our citizens, it has a very strong influence over the cultural, political, social, and racial attitudes of our society. Ninety-eight percent of U.S. homes have a television set; forty-nine percent have more than one set. The average family watches over seven hours of television a day.

The absence and the stereotyping of people of color by the mass media is a source of concern for all. Since we live in a relatively segregated country, many whites often have more electronic, rather than personal, encounters with people of color. Therefore, their attitudes and actions are likely to be shaped by what they see on television. Some African Americans and Latinos(as) may also have similarly limited encounters of whites. Some live in hyper segregated communities with few contacts with members of other racial groups. Broadcast television and its images and representations are very important because television can be the common meeting ground for all Americans. However, since Nielsen surveys show that African Americans and Latinos(as) are watching different programming than white Americans, broadcast television fails to play this important role as the societal meeting ground. In addition, broadcast television fails to serve the minority audiences, which comprise almost thirty percent of the U.S. population, by neglecting to provide these groups with programming they desire. This failure is bad business and violates the broadcasters' public interest obligations under the Communications Act and should be grounds for FCC disciplinary action against the broadcasters.

The purpose of this Article is not to advocate censorship or to point fingers at any single television program or network. The purpose of this Article is to start the process of engaging in a useful and productive dialogue on the media's responsibility to portray full-bodied and realistic depictions of all people of color on television in entertainment programming. The depictions of people of color by the media should avoid the perpetuation of harmful stereotypes.

This Article explores how the television networks currently depict racial and ethnic minorities, and explores what the FCC should do, pursuant to the Federal Communications Act, to correct this situation. Borrowing from the Fair Housing Act jurisprudence, this Article suggests that the FCC should take action to revoke licenses of (or invoke other sanctions against) broadcasters who have no people of color in their prime-time programs or disproportionately portray people of color in a stereotypical manner. This Article gives the FCC a possible way to resolve this recurring problem by evaluating network programs for discrimination, through the lens of the "ordinary viewer" a test analogized from the Fair Housing Act's "ordinary reader" test.

Section II of this Article examines how American law now abhors stereotypes of racial minority groups. Section III examines how discrimination by the advertising industry affects the broadcasters' choice of programming. Section IV explores how casting decisions are made. Section V examines how African Americans, Latinos(as), Asian Pacific Americans and Native Americans, respectively, are portrayed by the entertainment media. Section VI analyzes the social consequences of these stereotypical character portrayals. Section VII considers why cable television is not a substitute for broadcasting when it comes to minority depictions. Section VIII explores whether the absence and stereotyping of people of color in entertainment programming is actionable under the Federal Communications Act. In Section IX, this Article describes and advocates that the FCC adopt an "ordinary viewer test" to find broadcasters in violation of the Federal Communications Act when they fail to cast people of color or when they broadcast patently offensive images of them. Section X analyzes the "ordinary viewer test" under the First Amendment. Finally Section XI concludes that the "ordinary viewer test" is constitutional.

XI. Conclusion

The depiction of people of color by the media is a very important issue. People of color--African Americans, Asian Pacific Americans, Latinos(as), and Native Americans--currently comprise almost thirty percent of the U.S. population. Many people learn about other groups from television. We need to make sure that people learn about each other in ways that provide a full-bodied depiction--not a stereotypical one. The absence and stereotyping of people of color by the media is a serious problem. This situation is akin to that in Brown v. Board of Education where the Court was made aware that segregation led young black children to have low self esteem. Studies have also shown how young children identify with television characters of their race. In addition, white children often have very little exposure to people of color except through what they see on television. What is portrayed on television is critically important to our society and the concept of group identity. This matter lies squarely within the public interest. By failing to portray a more integrated world the broadcasters are implying that certain individuals and groups do not exist. The FCC has a mandate to regulate the communications field in a manner that comports with the public interest. The public interest should be broad enough to include everyone in media depictions.

By statute, the FCC is supposed to ensure that the carriers provide service in a nondiscriminatory manner. Failing to have any new minority programs or having a disproportionate percentage of negative minority stereotypes during a new season raises a prima facie case of discrimination. The United Church of Christ case established that viewer groups have standing to challenge a license at license renewal time. The challenge can be based on factors such as how well the broadcaster serves the community, including the minority community. Thus La Raza and the NAACP are more than able to bring a complaint before the FCC, which may allow a hearing to go forward provided these groups prove that they have presented a substantial material question. Whether such claims will prevail is a question of fact. In In re Applications of Alabama Educational Television, the FCC found that the absence of people of color on a broadcaster's programs, when people of color comprised a sizeable part of the viewing audience, was prima facie evidence of discrimination. Moreover, the FCC held that the disparity alone was enough to find wrongdoing; an intent to discriminate need not be shown.

The issues today are much more complicated. Many networks have some people of color on their shows--although very few Latinos(as), Asian Americans or Native Americans. In addition, quality portrayals of underserved groups is often non- existent. Many shows use cheap stereotypes of people of color. It seems that the FCC should move to a deeper level of analysis to help it decide these more troubling cases. This Article suggests that the FCC analyze all such cases of under-representation or stereotype under an "ordinary viewer test" standard. Each case would be analyzed separately. The ordinary viewer would be the reasonable person. If it is clear that there is no representation of a particular racial and ethnic group, then clearly that would be a violation of the Communications Act. In addition, if evidence was presented that members of a certain racial or ethnic group were always being portrayed as criminals or villains, then that would also be a violation.

Some may argue that this proposed rule would require the FCC to censor content of network programming. But it is not so much censoring as it is prohibiting discrimination. Further, the FCC has a long history of defining within broad areas the type of content that is broadcast. The network shows are not in the category of commercial print advertising, which is lower down on the First Amendment hierarchy, but a parallel exists because broadcasting has less First Amendment protection than print media. This situation involves making sure that the broadcasters use the spectrum as trustees for all the American people, and they use it in a way that is nondiscriminatory. As such the implementation of the proposed ordinary viewer test would make sure that the public interest is met by avoiding the broadcast of either all-white images or negative stereotypes of people of color.

. . .

. Professor of Law, St. John's University School of Law, Jamaica, NY; B.S. New York University, 1979; J.D. Columbia University, 1982; M.B.A. Columbia University 1983.

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