Monday, October 11, 2010

On the relative legal safety of saying "no"

"Think twice, and then say nothing"  --Ancient Sinanju proverb

I'm a big fan of Opie and Anthony, as now heard on Sirius/XM Satellite Radio channel 202.  I mentioned some months back that they had gotten permission to run their Homeless Shopping Spree, in which forgoten men are given cash, are escorted to a local upper-class mall and allowed to purchase whatever they like, all while being chronicled on-air.  The whole crux of the bit is to watch the reactions of the stores as these guys toddle in, cash in hand.  I hasten to add, in the four or five times they've done it, there has not been ONE incident; nothing has been stolen or destroyed, no violence has occurred; indeed, since the customers have cash and are usually accompanied by dozens, even hundreds of O&A fans, it's the best day of sales the stores have in a while.

The Lawyers (Or as Opie refers to them, "The babysitters"), however, wanting to make sure that nothing would happen (both litigiously and comedically) and suggested they CALL the malls ahead of time and ASK if they could bring a busload of homeless people to their establishment.  This would rather ruin the spontaneity of the bit, and it was, alas, cancelled. 

This is an example of the new standard in entertainment today, and in "shock jock" radio in specific, and in the case of O&A even more specifically.  The legal departments of stations, networks, etc work through endless Worst Case Scenarios, mentally running progressively unlikely simulations to see how many might end in "...and then we get sued and lose the house".  It's the kind of things your parents would warn you about when you were a teenager; if you do X, Y will happen and they'll come after US! (*). So the lawyers, in an attempt to nip such situations in the proverbial bud, either say said stunt, bit or parody cannot be done, or attempt to buffer it with so many disclaimers or codicils as to remove any possible comedy from the thing. 

Example: radio shows cannot do prank calls anymore.  It's one of the things that made Don Imus' name back in the day - he'd call businesses and ask for outrageous things. His first album, "1,200 Hamburgers to Go" features a number of them, featuring an attempt to rent a car to be used in the Indy 500.  It's a standard bit, been done for ages.  But nowadays, in the litigious world we live in, you can't DO that anymore;  you either have to call the company ahead of time and WARN them that they will be pranked (again, removing the potential humor entirely) or just fake the whole thing.  I'm rather surprised they haven't decided that faking a prank call is in some way misleading to the listener, who could then sue for mental cruelty or some such.  (Perhaps I should keep my damn mouth shut...)

This morning, O&A were talking about the potential return of a classic bit they've been doing since they were on terrestrial radio, without complaint, repercussion or incident; a bit called "What the hell is THAT!?!"  In it, a number of listeners would come to the studio, all having assorted growths or other Things They Should really Get Looked At, and get examined by actual doctors, live on the show.  Now the true purpose of the bit is not to help people, but to give the gang the opportunity to look at assorted growths and react/mock accordingly.  But considering at least one guy was warned that a thing in his mouth might be cancerous, there is some potential good to come of it (the event was enough to get comedian and Third Mike on the show Jim Norton to give up smoking on the spot.  And FTR, the guy got it checked and it was benign, but hey, better safe, right?) 

Again, I must stress, NEVER has an O&A bit resulted in any legal action.  Indeed, they've never resulted in anything other than outstanding ratings and a few letters from peiople who likely didn't ever hear said bit, just heard ABOUT it.  That last one, The Bit Of Which We Do Not Speak, resulted in getting them fired, but again, more as a result of the publicity than any actionable damage.

So anyway, this on-air diagnostic bit, the kind of thing they've been doing for years, and the kind of things the people like Dr. Oz and Dr. Dean Edell make a CAREER at, is being "looked at" by the lawyers from XM.  And why?  Not because it's gone wrong before, but because it might concievably go wrong in some unlikely way in the future.

Similarly, frequent guest of the program Dr. Steve (star of his own show, "Weird medicine" also on channel 202) is now being checked and double-checked for his next appearance.  The desired bit - Dr. Steve would attempt to break the world record for the most prostate exams in a four-hour period.  Again, Dr. Steve is an actual doctor.  And  bear further in mind, he ALREADY gives medical advice over the radio on that very station, without incident or issue, by adding a simple disclaimer that any advice given should be double-checked by your own doctor, yadda-yadda-blither-blather.  But when presented with this bit now, the lawyers asked, "Is Dr. Steve licensed in New York State?"  Because they feared that his sticking fingers up people hinders might be misconstrued as practicing medicine in the state without a license.  Never been an issue before, but all it takes is one guy in a suit saying "Yeah, but what if...?" and the brakes are hit hard.

Comedian Rich Vos got it exactly right when he said, referring to the people who make these decisions, "No one will ever get fired for saying 'no' to something."  We live in a CYA world now where it's safer to say no to something risky.  Regardless of the upside of saying yes, it's easier to play safe and go with what's been done before.  It's why we rarely see something new on television, and as soon as we do, it's immediately copied to death, as it is now a safe and proven idea.

In today's world, Mr. Carlson would never have been allowed to bring those turkeys anywhere NEAR that helicopter.

Lawyers have successfully created a new market for themselves, that of coming up with scenarios where a company MIGHT get sued, and then warning them about it.  And because there have been so many outlandish suits in the recent past (Your honor, the floor wax label did not actually SAY it could not be used to wash dishes...), the companies do not just laugh the nightmare scenarios out of the room.  Because, of course, once they've been warned such a scenario MIGHT happen and then move forward anyway, they are even MORE liable should it occur.  Back to the earlier comparison, it's like when your mother (or god help you, spouse) says "Make sure you don't XYZ" which all but puts the curse on it, making SURE it will happen if you choose to go ahead anyway.

But here's the really annoying bit.  Who put us in the situation where lawyers can point to the crazy lawsuits that have cost companies millions of dollars?  OTHER LAWYERS.  Whenever a person has an accident that was clearly his fault and could have been avoided with a modicum of common sense, there will be a lawyer who can spin a situation that makes it the fault of the place and company at which it happened.  And it's been proven that juries tend to side with the plaintiff in such cases, not because they think the company was actually liable, but because they think the person "deserves" the money, and because they hope that one day THEY will be lucky enough to get to sue a company and don't want to mess up their karma by saying this guy shouldn't get his bit'a sumthin-sumthin'.

Now here's the happy ending.  No, none of the bits have gotten approved (yet), but O&A took the incident to the air, went on about it, and turned it into about an hour of RIVETING radio.  They've had years of practice, but O&A can make some tasty lemonade.

(*)This bit copyright Kevin "That's Not Right" Meany, who is likely still using it in his act.

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