Leonard M. Baynes
excerpted Wrom: RTNHGSWZIDREXCAXZOWCONEUQZAAFXISH
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
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"
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.
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.