Investigation report no. 3183
File no. / ACMA2014/186Broadcaster / Special Broadcasting Service
Station / SBS TV
Type of service / National broadcaster
Name of program / JFK: The Smoking Gun
Date of broadcast / 3 November 2013
Relevant code / Clause 1.2 of the SBS Codes of Practice 2006
Date finalised / 2 May 2014
Decision / No breach of clause 1.2 [diversity of views and perspectives]
Background
· On 26 February 2014, the ACMA commenced an investigation into the program, JFK: The Smoking Gun, broadcast by the Special Broadcasting Service (SBS) on 3 November 2013.
· The ACMA commenced its investigation following receipt of a complaint that the broadcast was ‘the latest in a long line of programs by SBS that seek to uphold the findings of the Warren Commission’[1] and that ‘SBS has never broadcast a program on the JFK assassination that acknowledges the existence, let along the findings of the [House Select Committee on Assassinations[2]] and the [Assassination Records Review Board[3]] (both US government bodies) or the evidence made available by the passage of the JFK Records Act’.
· The broadcast of about 90 minutes duration concerned the assassination of President John F. Kennedy (the assassination). The broadcast featured re-enactments, archival footage, and interviews with: Colin McLaren (retired Australian detective), Bonar Menninger (author of 1992’s Mortal Error: The Shot That Killed JFK), and Colleen Lorenzen, daughter of Howard Donahue (a ballistics expert whose theory on the assassination formed the basis of Mr Menninger’s book).
· Referring to the assassination as ‘the greatest cold case mystery of all time’, the broadcast approached the assassination as a cold case investigation with an emphasis on eyewitness testimony, an approach described in the broadcast as ‘a forensic analysis of all the evidence, all the testimony’.
· In the broadcast, Mr McLaren speculated that President John F. Kennedy’s death was the result of ‘a tragic accident colliding with a foolhardy assassination attempt’. He posited that the fatal shot was the result of a tragic accident (a shot accidentally fired by an agent travelling in the secret service follow-up car) and gave rise to a ‘complex cover-up orchestrated by the secret service’.
· The complainant’s submissions can be found at Attachment A and the SBS’s submissions at Attachment B.
· The investigation has considered SBS’s compliance with clause 1.2 of the SBS Codes of Practice 2006 (the Code), which deals with diversity of views and perspectives.
Assessment
· The investigation is based on correspondence between the complainant and SBS, submissions from the complainant, and a copy of the broadcast provided to the ACMA by SBS. Other sources used have been identified in the report.
· In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.
· Australian courts have considered an ‘ordinary reasonable’ viewer 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.[4]
· In considering compliance with the Code, the ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images 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 has breached the Code.
Issue: Diversity of views and perspectives
Finding
SBS did not breach clause 1.2 of the Code.
Reasons
· Code 1 of the Code relates to general programming and the introduction at clause 1.1 relevantly provides:
Not all viewpoints presented will be shared by all audience members.
· Relevant to this complaint, clause 1.2 provides:
SBS may broadcast other programs, such as documentaries, which are presented from particular points of view or explore a particular aspect of an issue. Such programs are not required to present every viewpoint or all available material relating to a particular issue or allocate equal time to different viewpoints.
· As SBS explained to the complainant, the program was:
the first in 4 weeks of documentary programs about the life of John F Kennedy broadcast on SBS ONE during November and December to commemorate the 50th anniversary of his assassination in Dallas on 22 November 1963.
· The ACMA acknowledges that the broadcast presented a particular point of view, that of Mr McLaren.
· The ACMA also acknowledges that it was clear from the broadcast that Mr McLaren’s theory about the assassination and its aftermath (‘a complex cover-up orchestrated by the secret service’) is not the only one. In this regard, in the broadcast Mr McLaren referred to the assassination as ‘history’s most talked about and debated crime scene’, the broadcast contained references to the lone gunman and single bullet theories, and the broadcast included the recollection of a number of eyewitnesses.
· Critically however, clause 1.2 of the Code permits programs to be presented from or to explore a particular point of view – there is no requirement in clause 1.2 for a range of, or opposing, perspectives to be presented within a program or over time.
· The ACMA notes SBS’s explanation to the complainant that ‘a wide range of views and perspectives have been provided to the SBS audience’ through programs broadcast during the month of documentaries about John F. Kennedy, as well as in 2010 and 2011.
· The complainant also raised concerns that the broadcast is ‘the latest in a long line of programs by SBS that seek to uphold the findings of the Warren Commission’ and that it disregarded subsequent official inquiries and evidence made available under the JFK Records Act.
· The ACMA notes that the broadcast was critical of the Warren Commission, and drew on testimony given to the Warren Commission, rather than its findings. The broadcast also drew on testimony given to the Assassination Records Review Board and material that became available as a result of the JFK Records Act.
· With respect to the Warren Commission, the ACMA observes that the broadcast contained numerous criticisms of the Warren Commission, questioning the credibility of its findings and inconsistencies in its findings, for example:
o Mr McLaren’s statements that ‘some vital witnesses from the autopsy were never called’, ‘the Commission wilfully avoided calling key eyewitnesses’ and ‘pivotal evidence was disregarded’
o the narrator indicated that:
For McLaren, the Warren Commission report is a document of omission: witnesses who aren’t called, testimony that isn’t heard, questions that aren’t asked and evidence that is ignored.
o a further reference in the broadcast to:
unsummoned witnesses, unheard testimony, unanswered questions and unpresented evidence.
· With respect to the Assassination Records Review Board (the ARRB) and JFK Records Act, the ACMA observes that the broadcast:
o contained numerous references to the ARRB and the JFK Records Act, including a reference to the ARRB in 1995 subpoenaing records about the Dallas trip from all agencies involved
o explained that 30 years after the assassination, the Clinton Administration initiated the ARRB to ‘release documents relating to the shooting and conduct interviews about John F. Kennedy’s autopsy’ and that it was Congress’s passage of the JFK Records Act which led to the ARRB interviews
o drew on material that became available as a result of the JFK Records Act, including testimony given to the ARRB on the autopsy
o made it clear that Mr McLaren had access to ‘vital information’ that was not available to Mr Donohue in the 1970s - sealed records that had since been declassified as a result of the passage of the JFK Records Act.
· Accordingly, the ACMA considers that SBS has not breached clause 1.2 of the Code by broadcasting JFK: The Smoking Gun.
Attachment A
Complainant’s submissions - extracts
To SBS on 11 December 2013:
The viewer was in effect invited to accept that this was “new” material that would cast fresh light on the assassination.
… the manifest bias of SBS continuing to show programs on the JFK assassination that essentially seek to uphold one or more aspects of the Warren Commission Report (hereafter WCR). The central conclusion of the WCR was that “Oswald did it” and the gloss asserted by McLaren does not detract from that flawed report’s many deficiencies.
The central thesis as set out in the WCR is unchallenged. SBS … refuse to tell their viewers that the WCR was only the first of a series of official inquiries, the two most important of which were the House Select Committee on Assassinations and the Assassinations Records Review Board. Serious researchers also refer to the JFK Assassinations Records Act and the more than two million documents released since to understand the events of 22 November 1963.
Possibly the worst aspect of the program is that McLaren ignores the overwhelming weight of medical evidence, from the Parkland doctors, from the Bethesda doctors, from the HSCA medical evidence which covered both the two sets of medical people plus its own investigations, the ARRB investigation that Hickey never mentions but is the single most important official inquiry ever conducted into the assassination, and the huge volume of documentation released as a consequence of the JFK Assassinations Records Act.
[The program was] not the basis of serious inquiry, let alone scholarship. It is certainly not the basis of a “documentary”.
…
The evidence is incontrovertible that JFK was shot (at least twice from different guns) from the front, one of which removed a large portion of the occipital region of his head and about one third of his brain. There were at least two other gunmen, none of which was Oswald. None of this evidence, and I use the word advisedly, was part of McLaren’s argument.
… the blunt truth is that SBS has never shown a program that presents the evidence (no theories, conspiracy or otherwise required) based on what is known and incontrovertible.
…
By failing to present a real range of perspectives you are in breach of your obligations and I formally complain accordingly.
To SBS on 31 January 2014:
…
Code 1.2 does not require a particular program to present a range of opinions and The Smoking Gun clearly does not do so … The code does however require a broadcaster to present a range of opinions on a given topic (in this case who killed JFK and the circumstances) over a reasonable time period.
…
… what has been broadcast is only a range within a range, all of which in one form or another support the official version set out in the Warren Report. What you are pleased to call the “anti Warren Commission Report perspective” is the one shared by a solid majority of Americans, consistently 70-80% according to reputable polls conducted over the past decades. European figures are similar. Yet SBS has failed to broadcast a single documentary that reflects that majority view.
…
The viewpoint presented in the documentary was one put forward by Howard Donahue’s book two decades ago. It was widely discredited at the time of publication.
…
The documentary (and all the others you cite in support of your claim of “a range of perspectives” makes absolutely no mention of the more than 2 million documents released under the JFK Records Act which has transformed much of our understanding of the events of 22 November 1963. Neither did any of the documentaries mention any of the investigations and reports of the House Select Committee on Assassinations nor the Assassinations Records Review Board, both official US government initiated inquiries. The work of the latter body discredited not only the Warren Commission Report, but also Donahue’s theory and those of many other apologies for the Warren Commission Report.
There has in fact been a great deal of scholarship done on the JFK assassination, although SBS viewers would never know it from SBS’s selection of documentaries on the topic … [which] … utterly refute Mr Iffland’s claim that an Australian cracked the JFK case wide open. Such a view would be laughable were the subject matter not so serious.
SBS continues to support the spurious work of McLaren et al, rather than demonstrating its commitment to the true meaning of the Code of Practice.
To the ACMA on 10 February 2014:
… the basis of the program’s central claim was discredited long ago, with the allegations the subject of successful legal action by the (now deceased) alleged perpetrator
This “documentary” was the latest in a long line of programs by SBS that seek to uphold the findings of the Warren Commission.
SBS has never broadcast a program on the JFK assassination that acknowledges the existence, let alone the findings of the HSCA and the ARRB (both US government bodies) or the evidence made available by the passage of the JFK Records Act.
It is acknowledged that no single program is required to cover a range of opinions. There is however an obligation on the broadcast to (a) ensure that the material they present meets reasonable standards of fairness and accuracy; and (b) to ensure that over a period of time a fair range of opinion is broadcast. SBS has manifestly failed to meet these tests.