October 19, 2012, Kingston: Jamaica’s major television stations, CVM TV and TVJ, have refused to run a paid ad calling on Jamaicans to love and respect their fellow citizens who happen to be homosexuals. Now AIDS-Free World’s Legal Advisor on Marginalized Groups, Maurice Tomlinson, a gay Jamaican who appears in the latest ad, is taking the stations to court for breaching his constitutional rights.
Through its Charter of Fundamental Rights and Freedoms, Jamaica’s Constitution guarantees the unique right to “seek, receive, distribute, or disseminate information, opinions and ideas through any media” and requires everyone, including corporations, to respect this right. Tomlinson will argue that the stations have violated the Charter by rejecting the paid advertisement.
“The stations’ refusal to air the “Love and Respect” ad is totally arbitrary and reflects the growing dominance of the powerful fundamentalist religious right in dictating public discourse,” says Tomlinson. Two years ago, the TV stations accepted AIDS-Free World’s payment and aired an ad that encouraged Jamaicans to respect the rights of gays. But since then, both CVM and TVJ have rejected two similar ads produced with the organization’s support.
TVJ explicitly cited the views of the church as critical to its broadcasting decision. Tomlinson, an attorney, hopes the court will use its discretionary powers to find that the stations violated the Constitution by considering the “irrelevant matters” of religious groups’ objections when they refused to air the ads. He and AIDS-Free World expect that the court will instruct the stations to review the decisions they have made, and withdraw or explain them. The case will be a landmark if the court issues a declaration stating the ways in which the Charter has been violated. If the courts decide in favor of Tomlinson, they may ultimately mandate both stations to air the ad.
“It’s clear that the TV stations would rather censor themselves than anger the conservative religious leaders,” explains Tomlinson. “Jamaican media houses such as CVM and TVJ should be serving as guardians of our nation’s democracy. Instead, they are helping to exclude Jamaica’s gay citizens. Clearly, broadcasters are succumbing to pressure by conservative religious factions: two years ago, before the churches’ anti-gay rights vehemence reached fever pitch, CVM and TVJ were happy to run our ad promoting tolerance.”
AD 1: “Out of Many, One People”
In 2010, AIDS-Free World supported the production of a TV spot that called on Jamaicans to live up to their national motto, “Out of Many, One People”, by respecting the rights of all Jamaicans, regardless of sexual orientation. This first ad emphasized the danger of homophobia, which drives gay Jamaicans underground, away from critical HIV prevention and treatment. Such intolerance, the ad explained, contributes to the fact that nearly one third of all Jamaican men who have sex with men are now infected with HIV. Both major television stations accepted payment and aired the ad during prime time frequently over a 6-month period.
AD 2: “Unconditional Love”
Nearly a year later, AIDS-Free World supported a coalition of groups working on LGBT rights in Jamaica and led by the island’s chief LGBT organization, J-FLAG, to produce a new TV spot entitled, “Unconditional Love.” In light of a sharp increase in homelessness among Jamaican homosexuals banished from their homes, this second ad featured a well-known Jamaican woman and her gay brother, and encouraged Jamaicans to love their LGBT family members. The ad was launched with much fanfare at a packed press conference on July 28, 2011, at which the US Ambassador pledged America’s support for tolerance of sexual minorities. The ad was submitted to CVM TV which, in an apparent act of market collusion, indicated that it would only air the ad if TVJ also agreed to do so.
Following the press conference, the Jamaica Observer published an article in its Sunday newspaper about the launch of this second tolerance-themed ad under the headline, “Gay TV advert angers clerics.” Several members of the island’s conservative religious groups interviewed by the paper had reportedly condemned the “Unconditional Love” ad. According to the Observer, the Catholic Church’s Monsignor Kenneth Richards said of the ad: “I don’t think we should tolerate it, we should object to it. I don’t think it should be broadcast,” and another pastor, Mark Dawes, described the ad as “part of a plan by militant homosexuals.”
On August 11, 2011, two days after the Observer article appeared, TVJ’s Company Secretary wrote to J-FLAG refusing to air the ad, stating that the station was trying to balance “various public interests and the views of certain critical national institutions.” The Jamaica Observer continued its coverage of what had become a national story, further reporting that Ronnie Sutherland, Vice President of Marketing and Sales for CVM TV, offered “no comment” when asked if his station would air the ad. But the paper quoted Gary Allen, Managing Director of TVJ’s parent company—the RJR Communications Group—as saying that his station had considered “particularly the response of the church to the prospects of the ad being aired…” and that another consideration for TVJ was the fact that “some homosexual activities remain illegal and we cannot present any campaign that appears to directly or indirectly promote illegal activities.” The country’s anti-sodomy law, which criminalizes sexual conduct between men and has had the effect of turning all gay Jamaicans into perceived criminals, is 150 years old. Although the law stands exactly as it was when the TV stations agreed to air the first ad in 2010, Jamaica has been through other changes. A new Prime Minister came to power in 2011 in a landslide victory after voicing her support for a review of the colonial-era legislation, and conservative church leaders have since become much more vocal in their anti-gay advocacy.
Tomlinson and fellow advocates requested a formal assessment of the suitability of the second ad from the country’s media regulator, the Broadcasting Commission of Jamaica. The Executive Director responded by email on August 11, 2012 that the ad “does not readily reveal a basis on which to conclude a likely breach of any rules that are administered by the Broadcasting Commission.” The Broadcasting Commission then encouraged those behind the ad to have a dialogue with the stations about their specific objections to it.
A meeting followed with TVJ, who explained that the second ad had been deemed inflammatory because the woman featured expressed pride in her brother, regardless of his sexual orientation. That dialogue was interpreted as an expression of pride in the homosexual lifestyle, and the majority of TVJ staff and management present at the meeting felt that there was no pride in being gay.
AD 3: “Love and Respect”
In early February 2012, defeated in its efforts to have the second ad aired, AIDS-Free World decided to create a third ad promoting tolerance, but excluding any reference to pride. In “Love and Respect,” a woman tells her male friend that she doesn’t understand why he is gay, but she loves and respects him nonetheless. The ad was submitted to both TVJ and CVM. Despite repeated inquiries, each has refused to state definitively if they will accept payment to air the ad, or if even this simple expression of love and respect from one person to another is too controversial to be shown on Jamaican television. But during their long silences, both stations sponsored a concert featuring notorious homophobe, Sizzla, who regularly calls for the murder of gays.
CVM initially indicated that their management team would need to review the third ad, and after several months and numerous emails and phone calls seeking clarification on the approval status, the station ceased responding. Ironically, in late March 2012, the station’s sales department asked AIDS-Free World if it wished to pay to rerun the first ad. AIDS-Free World declined.
Tomlinson appears as the gay male friend in the third ad. On his behalf, an attorney finally demanded in writing that the stations communicate their decision within seven days of April 2, 2012. Neither station complied.
Instead, TVJ’s Company Secretary responded on April 30th that the station would review and process the request to air the ad “in the manner established by our procedures with the required consultation and assessment.” A subsequent letter from Mr. Tomlinson’s attorney in mid-September elicited no reply from TVJ. CVM never responded to the early April request for its decision.
AIDS-Free World sought the opinion of the Broadcasting Commission on the suitability of the third ad for public broadcasting. On May 16, consistent with its earlier judgment, the national media regulator said that the third ad “does not readily reveal a basis on which to conclude a likely breach of any rules that are administered by the Broadcasting Commission.”
Nearly eight months since “Love and Respect” was submitted for broadcast, Mr. Tomlinson now asserts that the failure of the stations to state definitively whether they will air the ad amounts to constructive rejection, and a breach of his rights under Jamaica’s new Charter of Fundamental Rights and Freedoms. The violation of his rights, he contends, has far broader implications.
“With this challenge, we are deliberately and frontally exposing the media’s role in sustaining homophobia, which drives gay Jamaicans underground, away from HIV prevention, treatment, care and support interventions,” states Tomlinson. “Homophobia also prevents the government from properly targeting HIV services to the population most at risk. This contributes to a vastly disproportionate rate of HIV among Jamaicans: 32.9% of men who have sex with men are infected, as against 1.6% of the general population. And since homophobic laws and violent hatred also force some gay men to form relationships with women to hide their true sexual orientation, there is “bridging” between gay and straight HIV epidemics. The consequence is nothing short of a nationwide public health crisis.”
Today Mr. Tomlinson filed his case in the Supreme Court, which gives priority to constitutional cases.
For more information:
To view “Love and Respect,” visit www.aidsfreeworld.org
A Q&A that addresses the basics of this case is available for download at www.aidsfreeworld.org
Legal Advisor, Marginalized Groups