* Staff Writer, Boston College Third World Law Journal (2003–2004).
1 See Patrick J. Buchanan, Political Correctness v. National Security, ¶¶ 1–3 (Jan. 2, 2002) (implying that charges of racial profiling against Attorney General John Ashcroft illustrate political correctness taken to intolerable extremes), at http://www.iconservative.com/political_correctness_vs_national.htm. See generally PC Primer (lampooning political correctness standards by giving “instructions” as to how to be politically correct), at http://www personal.umd.umich.edu/~nhughes/htmldocs/pc.html (last visited Nov. 20, 2003).
2 See, e.g., Lawmakers Blast Pledge Ruling, ¶¶ 6–8 (June 27, 2002) (describing a 2002 ruling, Newdow v. U.S. Congress, 292 F.3d 597 (9th Cir. 2002), cert. granted in part, Elk Grove Unified Sch. Dist. v. Newdow, 124 S. Ct. 384 (2003), that found requiring recitation of the Pledge of Allegiance to be unconstitutional, as “political correctness run amok”), at http://www.cnn.com/2002/LAW/06/26/pledge.allegiance/; PC Primer, supra note 1 (“It’s important to know when someone is saying something insensitive so you can have that person removed from society . . . [if the confrontation is not between two white people] . . . [t]he white person is oppressing the ethnic person.”).
3 See MANAA Protest Against Fox and NBC, ¶ 19 (July 9, 2003) [hereinafter ACTIVISM], at http://groups.yahoo.com/group/asianamericanartistry/message/2122.
4 See Fur Flies as Korean Americans Protest Dog-Eating Jokes on Top US TV Show (Apr. 14, 2003) [hereinafter Fur Flies], at http://www.ethnicmajority.com/media_news.htm#Fur flies as Korean Americans protest dog-eating jokes on top US TV show; NBC Disrespects Asian Americans, Daring Us to Take Action, ¶ 5 (Feb. 13, 2003), at http://www.asianscomingto gether.com/news/banzai/NBC-Lenocalltoarms.pdf; Press Release, Charles Chang, Protest Coordinator, Protest: Call to Action!!! (Aug. 7, 2003), at http://forums.yellowworld.org/ showthread.php?t=8715 (last visited Feb. 2, 2004). One letter from the Korean American Coalition National (KAC National) protesting the incident is available online. See Letter from KAC National, to Jay Leno (Mar. 5, 2003) [hereinafter Letter to Jay Leno], available at http://www.kacdc.org/news/kac_03052003.html.
5 See John W. Frazier et al., Race and Place: Equity Issues in Urban America 7 (2003).
6 See John Feffer, The Politics of Dog, ¶¶ 3–7 (June 14, 2002), at http://www.alternet. org/story.html?StoryID=13387.
7 See Frazier et al., supra note 5, at 8; see also Richard Delgado & Jean Stefancic, Images of the Outsider in American Law and Culture: Can Free Expression Remedy Systemic Social Ills?, 77 Cornell L. Rev. 1258, 1288 (1992) (“Racism is often a matter of interpretation; when an interpretation renders one uncomfortable and another does not, which will a person often make?”).
8 See Frazier et al., supra note 5, at 7.
9 See id. (describing racism as “the practice of segregation, discrimination, and dominance of one race by another”).
10 See generally id. at 55–79 (discussing diverse perspectives on racism in America).
11 See id. at 7–8.
12 See id. at 59.
13 See Frazier et al., supra note 5, at 11–12 (using the Fair Housing Division of the U.S. Department of Housing and Urban Development’s (HUD) concept of an AOMC as a place “containing high proportions of minorities, independent of economic class”; more particularly, an AOMC is “any census tract containing more than 50 percent minorities”).
14 See id. at 23, 47, 139, 176.
15 See id. at 7–8.
16 See id. at 256, 268.
17 See generally id. at 261–74 (making suggestions for social changes).
18 See Frazier et al., supra note 5, at 87–92. Professor Patricia M. Worthy specifically examines data pertaining to black versus white children:
Children are more vulnerable to media images because they lack real world experience and therefore lack the necessary basis for comparison. What is disturbing is the empirical data which confirms that black children use television to acquire values, beliefs, concepts, attitudes, and basic socialization patterns.
. . . [S]ocial scientists have found that ‘the exclusion of Blacks from television is destructive to Black children’s self-concept because it minimizes the importance of their existence.’
Moreover, television has been identified as the primary contributor to negative stereotypes.
Patricia M. Worthy, Diversity and Minority Stereotyping in the Television Media: The Unsettled First Amendment Issue, 18 Hastings Comm. & Ent. L.J. 509, 534–35 (1996) (stating that the prevalence of whites in the media allows whites to “experience their identity not merely as self-same but as diverse”) (citations omitted). Further studies indicate the specific impact of media imagery on minority children. See, e.g., Virginia Mansfield-Richardson, Asian Americans and the Mass Media: A Content Analysis of Twenty United States Newspapers and a Survey of Asian American Journalists 79 (2000) (citing a 1988 study that found television “plays a role in shaping ethnic images for some ethnic minorities, but not for others”); Clint C. Wilson II & Félix Gutiérrez, Minorities and Media: Diversity and the End of Mass Communication 51–53 (1985) (discussing several studies demonstrating that “media portrayals may have a greater influence on the development of minority children than on White children”).
19 See Frazier et al., supra note 5, at 272; Bob H. Suzuki, Revisiting the Model Minority Stereotype: Implications for Student Affairs Practice and Higher Education, in New Directions for Student Services: No. 97, Working with Asian American College Students 21, 24 (Marylu K. McEwen et al. eds., 2002).
20 See infra Part I.
21 See infra Part I.
22 See infra Part I.
23 See infra Part II.
24 See infra Part II.
25 See infra Part III.
26 See, e.g., Frank M. Oppenheim & Helen C. Swift, Behind the Bits: Managing the Media Maze 131 (1998); see also Mansfield-Richardson, supra note 18, at 21–22 (commending past media reforms, but noting their minimal impact on Asian Americans).
27 See Frazier et al., supra note 5, at 93, 253. Large disparities in housing quality, pollution, employment opportunities, and retail services have revealed a “widespread distribution of racial inequalities in urban America.” Id. at 261. The authors present three theories of the genesis of urban geographic segmentation and its impact on minorities: the free-market technological perspective, a Marxist view, and a postmodern departure. See id. at 99, 112, 120. The free-market technological view argues that the rapidly expanding U.S. economy enabled immigrants and minorities to settle in urban areas, but that increasingly complex and capitalized urbanization combined with government forces led to segregation and uneven development. See id. at 110–11. The Marxist view blames capitalism, contending that the government is merely the tool of the elite; it argues that policies claiming to assist the disadvantaged were truly designed to benefit the elite and merely displaced the disadvantaged, accompanied by the inequalities the policy was designed to eradicate. See id. at 118–19. The postmodernist departure agrees with Marxist philosophies as to origins but advises empirical research advocated by free-market thinkers to informing theories and policies. See id. at 121, 124.
28 See id. at 261.
29 See id. at 259.
30 See id. at 256, 258.
31 See id. at 273–74.
32 See Frazier et al., supra note 5, at 273–74
33 See id. at 261. The authors provide an example of one such policy: promoting employment via federal spending for training and jobs when unemployment levels exceed an established threshold in a certain geographic area. See id. Thus, funding would be based on objective financial inequity rather on any subjective racial determinations. See id.
34 See id. at 272–73. Changes in educational content alone, or “curricular modifications,” will not enact the desired change; society must become more critically aware of the purposes and impact of cultural messages, especially those sent by all media. Id. at 272.
35 See id. at 273–74.
36 See id. at 87, 88.
37 See Brian M. Rowland, Media Fairness: Regulation, Diversity, Reality, 3 Fla. Coastal L.J. 67, 75 (2001); see also Wilson & Gutiérrez, supra note 18, at 36 (asserting that “as originally envisioned by the framers of the U.S. Constitution, media in the United States were supposed to operate in a free marketplace of ideas in which . . . anyone . . . with the wherewithal and motivation would be able to print and disseminate newspapers”).
38 Oppenheim & Swift, supra note 26, at 5. Media scholars Frank Oppenheim and Helen Swift label television “today’s most influential media.” Id.; see Worthy, supra note 18, at 533–34.
39 See Oppenheim & Swift, supra note 26, at 17 (stating that Americans watch an average of three to four hours of television a day).
40 See id. at 5, 17. Oppenheim and Swift claim that TV images of American society:
[G]ive vivid concrete embodiment to some of the intangible beliefs of our culture. For example, much of the prime time programming presents drama and comedy against a background of luxury and wealth, re-enforcing the belief that more is better. These images thus provide a basis for a knowledge of our beliefs and motivation to implement those beliefs.
Id. at 5.
41 See id. at 125. Media critic Neil Postman asserts that the media “leaves people unrefreshed, supplies misleading bits of information, devastates political discourse in America, anesthetizes viewers to a sense of history, and fosters a phoney sense of religion as entertainment and of education as amusement.” Id. Oppenheim and Swift claim that media: “1) implant values or fixations, 2) expand or narrow minds and hearts of their audiences, 3) exploit violence and sex, 4) lure to rash judgment and snap decisions, 5) and promote consumerism.” Id.
42 See id. at 133 (quoting Kenneth Gergen, The Saturated Self 224 (1991)). As demonstrated by sitcoms featuring unconventional families, like “Roseanne,” “The Brady Bunch,” and “Full House,” these shows have “taught,” through illustration and humor, “how to watch television (media literacy); and how to live in families with tolerant mutual accommodation . . . (life skills).” Brett Mills, Studying Comedy, in The Television Genre Book 61, 66 (Glen Creeber et al. eds., 2001).
43 See Mansfield-Richardson, supra note 18, at 81–82 (“[M]ass media messages are the primary conduits through which . . . minorities . . . are taught dominant values and philosophies since the mass media reflects the values and philosophies of the majority within a given society.”); Oppenheim & Swift, supra note 26, at 5, 13, 17.
44 Steve Neale, Studying Genre, in The Television Genre Book, supra note 42, at 1, 1.
45 Justin Lewis, Studying Television News, in The Television Genre Book, supra note 42, at 108, 108.
46 See id.
47 See Oppenheim & Swift, supra note 26, at 125 (quoting Gregor T. Goethals, TV’s Iconic Imagery in a Secular Society, New Theology Dig., Feb. 1993, at 44); Barry C. Feld, Race, Politics, and Juvenile Justice: The Warren Court and the Conservative “Backlash,” 87 Minn. L. Rev. 1447, 1528 n.363 (2003); Lili Levi, Reporting the Official Truth: The Revival of the FCC’s News Distortion Policy, 78 Wash. U. L.Q. 1005, 1129 (2000).
48 See Lewis, supra note 45, at 109.
49 Oppenheim & Swift, supra note 26, at 125. A number of audience studies demonstrate that audiences echo the news’ agendas of priorities and opinions. See Lewis, supra note 45, at 110. Justin Lewis states that “television news can be important in creating or reinforcing fairly simple associations (such as Saddam Hussein with Hitler or striking workers with violence) that stick in people’s minds.” Id.
50 See Jon Dovey, Reality TV, in The Television Genre Book, supra note 42, at 134, 134–35. “Reality TV” refers here to any “factual programme based on an aesthetic style of apparent ‘zero-degree realism’—in other words a direct, unmediated account of events, often associated with the use of video and surveillance-imaging technologies.” See id. at 135–37.
51 See William J. Woodward, Jr., Neoformalism in a Real World of Forms, 2001 Wis. L. Rev. 971, 971 (2001).
52 See id.; see generally Mandira Banerjee, Reality TV—Real Enough?, ¶ 1 (discussing under-representation of Asian Americans in entertainment), at http://www.ewwoman.com/ june03/ew_hollywood.htm (last modified June 2003). Reality TV producers market it as more “real” than sitcoms or movies. See Woodward, supra note 51, at 971. Reality TV’s seeming authenticity, moreover, appeals to a younger, more vulnerable, and more receptive audience. See Dovey, supra note 50, at 134.
53 See Frazier et al., supra note 5, at 90; Oppenheim & Swift, supra note 26, at 125; Lewis, supra note 45, at 110.
54 William Wong, Yellow Journalist: Dispatches from Asian America 8 (2001).
55 See id.; see also Frazier et al., supra note 5, at 35 (asserting that Asian and white cultures first clashed when Asian migrants began competing for employment in urban economies, and, while they were “received initially as acceptable hard workers, later were rebuffed”).
56 Wong, supra note 54, at 9.
57 Wong, supra note 56, at 249. For example, public opinion polls notoriously omit Asian American views. Id. Wong points out that the inability to gather a “statistically significant sampling” of Asian ethnic groups could have been a barrier in the past, but that polls of regions with an “increasing Asian American presence” should boost efforts to include Asians. See id.
58 See Frazier et al., supra note 5, at 59; Darrell Y. Hamamoto, Monitored Peril: Asian Americans and the Politics of TV Representation 234 (1994).
59See Culture, Race, and Ethnicity, Fact Sheets, Asian Americans/Pacific Islanders, ¶ 5, at http://www.surgeongeneral.gov/library/mentalhealth/cre/fact2.asp (last visited Feb. 20, 2004).
60 Id. ¶¶ 2, 5. Statistics attest to a tremendous diversity in education and per capita income levels. Id. In a 1990 survey of Asian Americans and Pacific Islanders (AA/PI), 78% of Asian American adults were high-school graduates. Id. ¶ 4. However, 88% of Japanese Americans were high school graduates, compared to only 31% of Hmong Americans. See id. Furthermore, while the average family income for AA/PIs is higher than the national average, AA/PIs still have a lower per capita income and higher poverty rate than non-Hispanic white Americans. See id. ¶ 5. In 1990, about 14% of all AA/PIs were living in poverty, compared to 13.5% of all Americans, and 9% of non-Hispanic whites. Id. Poverty rates within the ethnic category of Asian Americans range from a low of 6% for Filipino Americans to a high of 64% among Hmong Americans. Id.
61 See, e.g., Wong, supra note 56, at 249; Frank H. Wu, Yellow: Race in America Beyond Black and White 139–40 (2002). Wu advocates the introduction of Asian Americans “into the dialogue about civil rights” to enhance discussion of “the merits of racial possibilities,” implying their current exclusion from this debate. See Wu, supra, at 139.
62 See Wong, supra note 56, at 115.
63 See Asian-American Identity Problems, ¶ 54, at http://www.laze.net/papers/asianam ident.shtml (last visited Feb. 20, 2004); see also Mansfield-Richardson, supra note 18, at 81 (noting that a 1990 study argued that the “lack of opportunities for minorities in newsrooms coupled with poor images of minorities in the press literally has a cognitive effect on minorities in that they ‘learn’ what they cannot achieve in life”).
64 See Rachel Moseley, The Teen Series, in The Television Genre Book, supra note 42, at 41, 41.
65 See Leonard M. Baynes, White Out: The Absence and Stereotyping of People of Color by the Broadcast Networks in Prime Time Entertainment Programming, 45 Ariz. L. Rev. 293, 326 (2003).
66 See Press Release, Asian American Journalists Association (AAJA), AAJA Statement On The 2002 Radio-Television News Directors Association Employment Survey (July 18, 2002), ¶¶ 1, 2, at http://www.aaja.org/html/news_html/press_releases/news_pr_020718 .html (last visited Nov. 19, 2003). A recent survey of minorities in the television news industry found roughly 9% of news directors were minorities; of these, less than 0.5% were Asian American. See id. ¶ 7. Overall, according to a 2003 survey, Asian-American newscasters and newsroom staff comprise only 2.7% of the industry. See Hamamoto, supra note 58, at 245; Press Release, Asian American Journalists Association (AAJA), AAJA Calls for Immediate Action to Address the Problem of Declining Numbers of Asian Americans in Broadcast Newsrooms, ¶ 12 (July 31, 2003) (citing statistics from the Radio-Television News Directors Association/Ball State University Annual Survey of women and minorities), at http://www.aaja.org/html/news_ html/press_releases/news_pr_030731.html (last visited Feb. 2, 2004); Soyoung Ho, Asian Men Find Television Anchor Jobs Elusive, ¶ 10 (Apr. 3, 2002), at http://www.jrn.columbia.edu/studentwork/cns/2002-04-03/syndication/sho-asiananchor.txt.
67 See Hamamoto, supra note 58, at 246.
68 See id.; see also Ho, supra note 66, ¶¶ 6–8 (blaming stereotypes of Asian men as effeminate and passive, and Asian women as exotic and submissive for disparate hiring practices).
Television bosses have apparently decided that the least offensive combination of anchoring talent—at least in the incredibly diverse Bay Area—is a white man with a woman, white or Asian usually. It’s a cozy, non-threatening combination. Asian women are seen as exotic, or as objects of libidinous desires . . . [whereas] Asian men . . . [are] threatening or, worse . . . non-entities.
Wong, supra note 56, at 228. Asian-American talk show hosts are also virtually nonexistent. See NBC News on Cable 24/7, Lisa Ling: Host, National Geographic Ultimate Explorer, ¶ 15, at http://www.msnbc.com/news/910546.asp (last visited Nov. 20, 2003). With the exception of Lisa Ling, who co-hosted ABC’s “The View” before departing to host travelogue “National Geographic Ultimate Explorer,” few other nationally known Asian-American talk show hosts can be identified. Id. Only two Asian Americans come to mind: Julie Chen, a Chinese-American CBS anchorwoman and host of reality TV show “Big Brother,” and Dean Cain, a quarter-Japanese actor, host of “Ripley’s Believe It Or Not.” See Goldsea Asian Am. Supersite, Julie Chen to Host CBS’s Big Brother, ¶ 1 (June 22, 2000), at http://goldsea.com/Personalities/00/chenj.html; Internet Movie Database, Biography for Dean Cain, at http://www.imdb.com/name/nm0001002/bio (last visited Nov. 20, 2003); Ripley’s Believe It or Not!, About the Show, ¶ 1, at http://www.sonypictures.com/tv/shows /ripleys/about. html (last visited Nov. 20, 2003). Minority youth “‘learn’ what they cannot achieve in life” via media images, so this lack of prominent Asian-American media figures may weaken greatly their ambitions. See Mansfield-Richardson, supra note 18, at 81. Mansfield-Richardson’s research asserts that the media greatly influences “Asian Americans’ perception of their own place within a society, and the value that society places on them as a minority.” Id. at 233.
69 See Levi, supra note 47, at 1129.
70 See Mansfield-Richardson, supra note 18, at 37 (asserting that news coverage of the looting of Korean businesses in African-American communities during the 1992 Los Angeles riots was overly “simplistic . . . with little effort given to explaining the economic complexities that place Koreans and many Arab immigrants in low income neighborhoods that just happen to be predominantly African American . . . . [P]ositive Korean/African American relations [that existed] don’t often make the news”); Rachel F. Moran, Race, Representation, and Remembering, 49 UCLA L. Rev. 1513, 1550 (2002).
71 See Moran, supra note 70, at 1550.
72 See, e.g., Frazier et al., supra note 5, at 88 (discussing the troubling tendency of 1990s filmmakers to produce generalized images of black and white “harmony” and other media to broadcast “messages of comfort” detracting from racism’s objective reality).
73 See Hamamoto, supra note 58, at 127 (citing news stories depicting Asian Americans as “bad guys like gangsters, influence-peddling political contributors, and spies for China”); Mansfield-Richardson, supra note 18, at 28–29, 218; Wu, supra note 61, at 228.
74 See, e.g., Wu, supra note 61, at 94–95 (describing press coverage of Ohio-born Maya Lin’s winning design for the Vietnam War Memorial that included Ross Perot’s comments calling Lin “eggroll” and saying he “hated that she was Asian”).
75 See Tall Tale? Shaq Says Yao Comments Were Said in Jest, ¶ 2 (Jan. 10, 2003), at http:// sportsillustrated.cnn.com/basketball/news/2003/01/10/shaq_yao_ap/.
76 See Transcript: “Talk Back Live” (CNN), ¶ 10 (posted Jan. 23, 2003) (segment on O’Neal/Ming controversy), at http://www.aaja.org/html/news_html/news_030123.html. Asian American Journalist Association (AAJA) President Mae Cheng argued that media silence condoned O’Neal’s words and the treatment of Asian Americans in sports as outsiders, also citing to the media’s treatment of figure skater Michelle Kwan. See id.
77 See Mansfield-Richardson, supra note 18, at 37.
78 Id.; Wong, supra note 56, at 110–13. Two recently unemployed white autoworkers mistook the Chinese American for a “Jap,” blamed him for their unemployment, and bludgeoned him to death. See Ronald Takaki, Who Killed Vincent Chin?, in A Look Beyond the Model Minority Image: Critical Issues in Asian America 23, 23 (Grace Yun ed., 1989). Widespread coverage of the incident was rare until the trial judge’s sentencing—three years probation and a $3,000 fine per defendant—inspired outrage and shock. See Wong, supra note 56, at 112; Takaki, supra, at 23. Only then, with the efforts of a coalition of members of Detroit’s Asian-American community, did the story garner national attention. See Wong, supra note 56, at 112; see also Nat’l Asian Pac. Am. Legal Consortium (NAPALC), Backlash: When American Turned on Its Own: Executive Summary, ¶ 7 (describing simplistic media coverage in the wake of 9/11 that led some to conflate beards and turbans, often worn by Sikh-American men, with terrorism), at http://www.napalc.org/literature /annual_report/9–11_report.htm (last visited Feb. 20, 2004).
79 See, e.g., Andrew Chow, APAs on Public T.V., AsianWeek, Jan. 25–31, 2002, at http://www.asianweek.com/2002_01_25/news_public_tv.html.
80 See Ethen Lieser, Pushing for Yellow Entertainment, AsianWeek, July 13–19. 2001, ¶ 12, at http://www.asianweek.com/2001_07_13/news05_yellentertain.htm. One example includes B.D. Wong’s small role as Dr. George Huang on “Law & Order SVU.” See Press Release, Asian Pacific America Media Coalition, Statement on Television Network Diversity (Oct. 13, 2003), ¶¶ 14, 32 (reflecting on the progress of the four major networks (ABC, CBS, FOX, NBC) in diversity efforts relating to Asian Pacific Americans in their prime time programming for the fall 2003–04 season), available at http://www.napalc.org/programs/ TV%20Diversity/2003_10_13_Coalition_Comments.pdf (last visited Feb. 3, 2004).
81 See Asian-American Representation in Primetime Increases 33%, ¶ 18 (Sept. 15, 2003), at http://datelinehollywood.com/showarticle_friendly.php?articleID=42. Recently, only Margaret Cho’s “All-American Girl” featured an Asian-American family, and was cancelled after one season due to low ratings and largely negative reception. See Baynes, supra note 65, at 322. Although the show’s portrayals were often one-dimensional and stereotyped, networks since have produced few shows featuring Asian Americans in major roles, much less shows highlighting the Asian-American experience. See id. at 322–23. Baynes identifies CBS’s “Mystery Files of Shelby Woo” and “Marshall Law,” and FOX’s “Ally McBeal” as the only programs of the late 1990s to feature Asian-American characters; one 1970s show, “Kung Fu: The Legend Continues” was revived, featuring “the same white actor playing the lead [Asian] character.” See id. at 322, 323.
82 See Banerjee, supra note 52, ¶ 3.
83 See id. “Survivor: Thailand” producer Mark Burnett “vowed to cast an Asian minority,” casting Shii-Ann Huang as the first Asian American in the series. See id. ¶4.
84 See Mansfield-Richardson, supra note 18, at 28–29, 37; Toby Miller, The Populist Debate, in The Television Genre Book, supra note 42, at 76, 76.
85 See Worthy, supra note 18, at 561.
86 See Jeff Kuo, Boycott FOX to Stop “Banzai”: Your Help Needed, ¶ 2 (July 15. 2003), at http://modelminority.com/article464.html. Another disturbing incident occurred in the 2003 season of “Big Brother,” when several houseguests used racial slurs and innuendo to refer to Asian-American and Cuban-American houseguests. See Elites TV, For the Best in Reality, Is Julie Chen a Rhinoceros? On-Air Racism in “Big Brother” House Goes Unchecked, ¶¶ 1, 5, 13, 15 [hereinafter Chen], at http://www.elitestv.com/NewsPub/2003/Jul/ETV3f209a104 a2a5.html. In this season and others, cast members made jokes about not only Asians, but also blacks, gays, Puerto Ricans, and the Irish. See id. ¶ 9. Although minority groups protested the offensive language, network executives scarcely acknowledged their objections, and offending cast members offered no explanation or apology. See id. ¶ 2.
87 See Baynes, supra note 65, at 312 (“[C]asting decisions appear to eliminate actors of color . . . . How can a television show occurring in New York City, like Friends or Seinfeld, have an all-white cast? Since New York City has a majority minority population, the casting decisions in Seinfeld and Friends are not reflective of New York’s reality.”).
88 See id.
89 See Letter from David S. Kim, to Gail Berman, President of FOX Broadcasting Company. (May 14, 2002), ¶¶ 2–4, available at http://www.kacdc.org/news/pr_05142002.html; see also Baynes, supra note 65, at 312 (claiming that “the absence of racial and ethnic groups from the media becomes a problem to the extent it suggests the excluded groups do not matter or do not exist . . . larger society relies upon [stereotypical] images [of people of color] to define the group”). Baynes’s research supports television’s unique influence on children:
[T]elevision is so pervasive [that] it is very difficult for viewers to prevent negative stereotypes from entering their homes . . . . [Y]oung 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 seen on television. What is portrayed on television is critically important to . . . the concept of group identity.
Baynes, supra note 65, at 367.
90 See Mansfield-Richardson, supra note 18, at 81; see also Baynes, supra note 65, at 367 (calling the media’s stereotyping of people of color a problem “akin to that in Brown v. Board of Education where . . . segregation led young black children to have low self esteem”).
91 See Amber McGovern, Neutralizing Media Bias Through the FCC, 12 DePaul-LCA J. Art & Ent. L. & Pol’y 217, 241–42 (2002).
92 Id. at 241.
93 See id.
94 Id. at 242–43.
95 See, e.g., Worthy, supra note 18, at 560–61. Children are easily influenced by who they see on television or in the movies or who they hear on the radio. Unfortunately, aside from Kung-Fu movies, Asians and Asian-Americans have traditionally been all but absent from American pop culture. Asian-American Identity Problems, supra note 63, ¶ 49.
96 Asian-American Identity Problems, supra note 63, ¶ 49.
97 See McGovern, supra note 91, at 217–18.
98 See, e.g., Lynn Elber, Networks’ Efforts at Ethnic Diversity Noted, ¶¶ 15, 16, 21 (Oct. 13, 2003) (noting underrepresentation of Hispanics, Asian Americans, and American Indians in broadcast network television), at http://www.sacticket.com/24hour/entertainment/tv/ news/story/1027441p-7208598c.html.
99 See, e.g., ACTIVISM, supra note 3, ¶ 19; Fur Flies, supra note 4; Letter to Jay Leno, supra note 5.
100 See Wong, supra note 56, at 245; Elber, supra note 98, ¶ 3. According to a 2003 survey conducted by the Multi-Ethnic Media Coalition, network employment of Asian Americans as actors, writers, and producers “still lag[s] at all the networks [ABC, NBC, CBS, and FOX],” despite improvements in Hispanic employment. See Wong, supra note 56, at 245; Elber, supra note 98, ¶ 3.
101 Wong, supra note 56, at 243–44.
102 See, e.g., Kuo, supra note 86, ¶ 2 (declaring that FOX television network’s decision to broadcast and promote “Banzai” despite protests as evincing “blatant disregard for the consequences and power of racial media stereotypes”).
103 Wong, supra note 56, at 241–42, 245.
104 See McGovern, supra note 91, at 231.
105 See id. at 223 (“To comply with [the ‘public interest, convenience, and necessity’] standard, the FCC imposes content-neutral regulations upon broadcasters.”); James E. Michel, Embarking on Its Most Extensive Review of Media Ownership: The FCC’s Endeavor to Create a Happy Medium, 15 Loy. Consumer L. Rev. 249, 251 (2003) (the FCC “has traditionally relied on its ownership policy as a means of promoting diversity, competition, and localism”).
106 See Michel, supra note 105, at 251. Before 1995, FCC regulations limited one entity to owning seven FM, AM, and TV stations. See Rowland, supra note 37, at 79. In 2002, pursuant to the Telecommunications Act of 1996, 47 U.S.C. §§ 151–176, the FCC relaxed restrictions on media ownership policies, which will likely result in mergers that “threaten to weaken democratic principles and public interest obligations.” See id. at 250. Such changes historically foster consolidation and homogenization, contravening the FCC’s goals of furthering First Amendment principles advocated by the Supreme Court, namely achieving the “widest dissemination of information from diverse and antagonistic sources . . . essential to the welfare of the public.” Michel, supra note 105, at 251 (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)). The new rules allow broadcast networks to own television stations reaching up to 45% of households, up from 35%, although in January of 2004, Congress passed the Senate’s Appropriations bill, which included a “bargained-down” cap of 39%. See Consolidated Appropriations Act, H.R. 2673, 108th Cong. (2004). Regardless, recent FCC proceedings question “whether current media ownership rules are still viable tools in the industry.” Michel, supra note 105, at 252; see also Worthy, supra note 18, at 528 (citing the Court’s inability to find a “direct correlation between minority ownership and enhanced diversity of viewpoint” in Metro Broad., Inc. v. FCC, 497 U.S. 547, 579 (1990)).
107 See, e.g., United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 804 (2000). The Court held unconstitutional the FCC’s “signal bleed” provision under the 1996 Telecommunications Act, which mandated that a cable television programmer block or limit sexually explicit programming during the day. See id. The majority found the content-based regulation was not the least restrictive means of preventing children from seeing such programming. See id. A dissenting opinion in the five-to-four decision noted that “laws that burden speech, say, by making it less profitable, may create serious First Amendment issues, but they are not the equivalent of an absolute ban on speech itself.” Id. at 838 (Breyer, J., dissenting) (emphasis added); see also Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 130–31(1989) (invalidating a complete statutory ban on “dial-a-porn” messages).
108 See U.S. Const. amend. I (“Congress shall make no laws . . . abridging the freedom of speech, or of the press.”); McGovern, supra note 91, at 227–28. James Michel describes the attempts of two networks, FOX TV Stations, Inc. and Sinclair Broadcasting Group, Inc., to overturn FCC limits imposed in 1986. See Michel, supra note 105, at 259–63.
109 See Wayne Overbeck, Major Principles of Media Law 421 (2000).
110 See Worthy, supra note 18, at 540.
111 See, e.g., Playboy Entm’t Group, Inc., 529 U.S. at 804 (striking down a regulation that limited sexually explicit programming in the interests of children); Erznoznik v. Jacksonville, 422 U.S. 205, 213 (1975) (striking down an ordinance banning films containing nudity shown at a theater with a screen visible from a public street; more than a mere vague showing of a general threat to the welfare of children was required); Miller v. California, 413 U.S. 15, 24 (1973) (confining state regulation of obscene materials to those portraying sexual conduct in a “patently offensive way, and, which, taken as a whole, do not have serious literary, artistic, political, or scientific value”); Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 331–32 (7th Cir. 1985) (invalidating a city ordinance that prohibited pornography as discriminating on the basis of gender).
112 See Worthy, supra note 18, at 540, 549. Other media regulations upheld include restrictions on obscene speech and indecent and violent programming. See id. at 549.
113 See NAPALC, supra note 78, ¶¶ 2, 7.
114 See Worthy, supra note 18, at 561. Worthy analogizes “requiring accurate and positive programming relating to individuals of different ethnic and racial backgrounds [to] the congressional mandate to provide children with informational and educational programming.” Id. at 560–61.
115 See Grutter v. Bollinger, 123 S. Ct. 2325, 2345–46 (2003); Worthy, supra note 18, at 555. By enacting the Children’s Television Act of 1990, 47 U.S.C. §§ 303(a)–303(b), 393(a), 394 (Supp. III 1991), Congress acknowledged that broadcasters have a unique obligation to serve children’s needs. See Worthy, supra note 18, at 555, 563. The Act imposed programming responsibilities on the broadcasting industry, asserting that “the use of television in furtherance of the development of America’s children was an integral part of a licensee’s obligation to operate in the public interest.” Id. at 564 (quotations omitted). Children’s uniquely trusting natures reduced their ability to “distinguish conceptually between programming and commercial messages,” meriting increased media accountability. Id. at 556 (quotations omitted).
116 See Grutter, 123 S. Ct. at 2345–46. The Court held that a law school admissions policy, utilizing race as an admissions criteria, did not violate the Fourteenth Amendment’s Equal Protection Clause. See id. at 2347. The Court found that the “narrowly tailored use of race in admissions decisions” furthered a “compelling interest in obtaining the educational benefits that flow from a diverse student body.” Id. at 2347.
117 See McGovern, supra note 91, at 218. In August of 2001, Congressman Eliot Engel introduced H.R. 2700, entitled “Ethnic, Minority, and Gender Bias Clearinghouse Act of 2001,” suggesting the creation of an FCC office to “field complaints about the media industry’s depiction and employment of ‘victims of media bias.’” See id. Such “victims” include “persons or groups who have been or may be discriminated against in their depiction or employment in broadcasting based on . . . race, ethnicity, religion, sex, sexual orientation, disability, age or other characteristic.” Id. The office arguably would not encumber First Amendment rights, as it would “not attempt to place any mandates upon broadcasters.” See id. at 220 (quoting Rep. Engel).
118 See id.
119 See id. at 249.
120 See id. at 220.
121 See id.; Rowland, supra note 37, at 73 (describing the fairness doctrine’s requirement that broadcasters “devote reasonable time to the coverage of public issues”). Moreover, imposing burdens upon the media, while suspect, is not unconstitutional per se. See United States v. Playboy Entm’t, Inc., 529 U.S. 803, 838 (2000) (Breyer, J., dissenting).
122 See Wong, supra note 56, at 242, 245.
123 See Rowland, supra note 37, at 82–83. The FCC’s 1978 Policy Statement offered tax certificates to broadcasters selling properties to organizations with a minority ownership share of over 50%. See id. at 83. Found unconstitutional in Adarand Constructors, Inc. v. Pena, the policy pursued media reform from the media ownership standpoint, an approach rejected here. See 515 U.S. 200, 231 (1995); McGovern, supra note 91, at 224 (citing Associated Press v. United States, 326 U.S. 1, 20 (1945), upholding antitrust laws’ application to commercial practices in the media over a First Amendment objection). Judge Learned Hand articulated the public’s need for diversity in the media: “[The First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the public welfare . . . . Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private means.” Associated Press, 326 U.S. at 20.
124 See Questions and Answers About Film Tax Credit Programs, Canada Customs and Revenue Agency, Q. 3 [hereinafter Questions and Answers], at http://www.ccraadrc.gc.ca/taxcredit/ ftc/questions-e.html (updated May 16, 2002).
125 See Andrew Pollack, Vancouver Profits as Colder, Cheaper Hollywood, ¶ 34 (May 10, 1999), at http://www.ftacusa.org/html/2-nyt051099.html; Production Services Tax Credit, British Columbia Film, ¶ 1 [hereinafter Production Services Tax Credit], at http://bcfilm. bc.ca/pstc.html (last visited Feb. 27, 2004); Questions and Answers, supra note 124, Q. 1.
126 See Production Services Tax Credit, supra note 125, ¶ 1; Questions and Answers, supra note 124, Q. 3. The capless credits are calculated by multiplying a fixed percentage by the amount of qualified Canadian labor expenditures. See Income Tax Act, R.S.B.C. ch. 215, § 82.1 (1996) (Can.); Income Tax Act, R.S.C. ch. 1, § 125.5 (5th Supp. 1985) (Can.); Heidi Sarah Wicker, Making a Run for the Border: Should the United States Stem Runaway Film and Television Production Through Tax and Other Financial Incentives?, 35 Geo. Wash. Int’l L. Rev. 461, 473 (2003). Qualified expenditures are “salaries or wages paid with respect to services rendered on the production in Canada and paid to . . . a resident of Canada, a taxable Canadian corporation, or partnership.” See Wicker, supra, at 473.
127 See Pollack, supra note 125, ¶ 4.
128 See Wicker, supra note 126, at 461.
129 See id.; Entertainment Hollywood’s Moving Movies, BBC News, Aug. 31, 1999, ¶ 11, at http://news.bbc.co.uk/1/hi/entertainment/434462.stm. Seattle-based producer Rick Stevenson explains that he chose to film in Canada over Seattle because Vancouver is “cheaper and easier. Specifically, on this film . . . we were able to add another 15% on the budget by going through a Vancouver company that’s tapping into all the government tax sources.” Kathleen McInnis, Is Seattle Asleep at the Reel?, MovieMaker Mag., May 1994, ¶ 14, at http://www.moviemaker.com/issues/06/seattle.html.
130 See Wicker, supra note 126, at 473, 476–77 (describing employment qualifications for Canada’s Film or Video Production Services Tax Credit and British Columbia’s four main incentive and financing programs).
131 See Entertainment Hollywood’s Moving Movies, supra note 129, ¶¶ 8–10. The tremendously negative impact of these incentives on local economies has concerned the legislature as well. See id. ¶¶ 17–18. In 1998, Illinois Congressman Jerry Weller lobbied for local incentives to encourage filmmakers to stay in the United States. See id.
132 See Rowland, supra note 37, at 79.
133 See Dan T. Coenen, Commerce Clause Restraints on State Business Development Incentives, 81 Cornell L. Rev. 789, 802 (1996). Other critics favor direct government expenditures over incentives to encourage private corporate actions. See Stanley S. Surrey, Tax Incentives as a Device for Implementing Government Policy: A Comparison with Direct Government Expenditures, 83 Harv. L. Rev. 705, 727–32 (1970). Direct expenditures, however, require predetermined caps. See id. at 730. Aside from the complexities of establishing a cap and securing direct governmental assistance, an expenditure cap is tantamount to a constraint on equitable minority coverage, directly contravening its purpose—to boost minority representation without restriction. See Wicker, supra note 126, at 491.
134 See Wicker, supra note 126, at 468.
135 See Surrey, supra note 133, at 733.
136 See id. at 726–32. For example, Professor Stanley Surrey claims that tax incentives are wasteful, inefficient, and inequitable, and that their alleged advantages of greater reliance on private decision-making and simplicity are illusory. See id. at 726, 727. His criticisms, however, vary in merit according to the type of social welfare involved, and in the context of media reform, they are largely irrelevant. See id. Although many tax incentives designed for social welfare purposes prove inequitable when converted into tax shelters by wealthy private investors, this proposal is protected from that consequence. See Janet Stearns, The Low-Income Housing Tax Credit: A Poor Solution to the Housing Crisis, 6 Yale L. & Pol’y Rev. 203, 207 (1988). This incentive forestalls such abuse by requiring no additional affirmative acts by the ultimate beneficiaries—the viewing public. See id. Unlike tax credits for low-income housing, which prove inefficient when low-income tenants cannot afford subsidized housing, networks must increase minority coverage before they receive credits; public gain is thus a condition, not the expected result, of the tax benefits. See id. at 213.
137 See supra note 126.
138 See supra note 126.
139 See supra note 133.
140 See Grutter v. Bollinger, 123 S. Ct. 2325, 2333 (2003) (arguing that the University of Michigan Law School’s affirmative action policy aimed to achieve a “critical mass” of minority students, meaning “meaningful numbers” or “meaningful representation”).
141 An additional criticism of the use of tax incentives is its shifting of expertise from a legislative body possessing specialized knowledge to tax committees possessing little knowledge of the regulated practice, causing confusion and inefficiency. See Surrey, supra note 133, at 728. In this situation, however, no such legislative body exists with a specialized interest in the media; the FCC is the applicable administrative body that, alone, seems to have exhausted its remedies. See id.
142 See, e.g., Grutter, 123 S. Ct. at 2348 (Scalia, J., dissenting) (characterizing the term critical mass as “mystical”).
143 See Ed Diokno, Perspective, ContraCosta Times, Nov. 1, 2003, ¶¶ 4, 11, at http:// www.contracostatimes.com/mld/cctimes/news/columnists/perspective/7157427.htm.
144 See id.; see also Elber, supra note 98, ¶¶ 15–18 (criticizing casts in popular programming that fail to reflect actual demographics).
145 See Fresno County QuickFacts from the U.S. Census Bureau (2000) (citing statistics from the 2000 U.S. Census of white, black, Asian, and Hispanic populations in Fresno County as 54.3%, 5.3%, 8.1%, and 44.0%, respectively), available at http://quickfacts.census.gov/ qfd/states/06/06019.html (last modified July 15, 2003); Hartford County QuickFacts from the U.S. Census Bureau (2000) (citing statistics from the 2000 U.S. Census of white, black, Asian, and Hispanic populations in Hartford County as 76.9%, 11.7%, 2.4%, and 11.5%, respectively), available at http://quickfacts.census.gov/qfd/states/09/09003.html (last modified July 15, 2003); Moreover, if Congress decided against federal legislation, this proposal’s focus on regional demographics is easily adaptable to particular state and local needs.
146 See Frazier et al., supra note 5, at 261.
147 See id.
148 See Wong, supra note 56, at 243–44; ACTIVISM, supra note 3, ¶ 19; Fur Flies, supra note 4. Unlike HUD’s role in constructing social welfare policies like the low-income housing credit, no legislative committee exists to manage the television media. See Stearns, supra note 136, at 206. Absent such a legislative body, combining the expertise of the FCC and independent media organizations with legislative expertise in tax policy achieves the most comprehensive and administratively efficient policy practicable. See Daniel Lubetzky, Incentives for Peace and Profits: Federal Legislation to Encourage U.S. Enterprises to Invest in Arab-Israeli Joint Ventures, 15 Mich. J. Int’l L. 405, 441 (1994).
149 See Wilson & Gutíerrez, supra note 18, at 202-210 (describing the evolution of minority media advocacy groups).
150 One example of this is a set of FCC rules, adopted in 1996, requiring all commercial television stations to offer at least three hours a week of regular programming to meet children’s educational and informational needs. See 47 C.F.R. § 73.671 (2002); see also Children’s Television Act of 1990, 47 U.S.C. §§ 303(a), 303(b), 394 (2004); Overbeck, supra note 109, at 434. The rules require a station to have a staff member acting as a “children’s educational programming liaison . . . [and] file quarterly reports with the FCC to explain how the children’s requirements are being met.” See 47 U.S.C. §§ 303(a), 303(b), 394. Similarly, the 1996 TV content rating system, mandated by the Telecommunications Act of 1996 and developed by a committee of broadcast and cable television industry representatives, was modified in 1997 to accommodate demands for program ratings specifically indicating potentially offensive conduct or language. See Overbeck, supra note 109112, at 437; Telecommunications Act of 1996, Pub. L. No. 104-104 § 551, 110 Stat. 56, 139-141 (1996).
151 See Lubetzky, supra note 148, at 419–20. “Incentives skip the corruption and bureaucracy with which centralized public funding would probably be riddled. Incentives foster the participation of private investors, thus avoiding middlemen. Investors, guided by market forces, add their own expertise, tools, and capital to the economy, magnifying the effect of foreign aid.” Id. at 448. Professor and critic Stanley Surrey claims tax credits are just as inefficient as direct expenditures, and equally costly to the government, but acknowledges that alternatives to tax credits are often unnecessarily complex. See Surrey, supra note 133, at 716–17. Here, government expenditures are unsuitable, for they would require a minimum governmental expense while simultaneously capping the total diverse portrayals to those affordable. See id. at 732–33.
152 See Income Tax Act, R.S.B.C. ch. 215, § 82.1 (1996) (Can.); Income Tax Act, R.S.C. ch. 1, § 125.5 (5th Supp. 1985) (Can.).
153 See Surrey, supra note 133, at 711.
154 See Stearns, supra note 136, at 204; Surrey, supra note 133, at 713.
155 See Erznoznik v. Jacksonville, 422 U.S. 205, 213 (1975); Miller v. California, 413 U.S. 15, 24 (1973); Am. Booksellers Ass’n v. Hudnut, 771 F.2d 323, 331–32 (7th Cir. 1985).
156 For example, the V-chip rules made optional to networks the inclusion of letter ratings. See Overbeck, supra note 109, at 437; Telecommunications Act of 1996, § 551. Despite criticisms of the ratings system on First Amendment grounds, no formal challenges were made on these bases. See Overbeck, supra note 109, at 437.
157 See Wong, supra note 56, at 241–42, 245.
158 See Oppenheim & Swift, supra note 26, at 49 (“[T]he audience itself exerts its own selectivity. Television producers have to engage and keep a large audience, otherwise they cannot stay in business.”).
159 See Frazier et al., supra note 5, at 88.
160 See id. at 261, 273; McGovern, supra note 91, at 218.
161 See Frazier et al., supra note 5, at 274.