Disability Studies Quarterly
Summer/Fall 2003, Volume 23, No. 3/4
<www.dsq-sds.org>
Copyright 2003 by the Society
for Disability Studies


Hammerin' Hank: The Right to Be Raunchy
or FM Freak Show?

Stephen A. Rosenbaum
Lecturer in Law
Member, Disability Studies Advisory Committee,
University of California, Berkeley
Staff Attorney, Protection & Advocacy, Inc. (PAI)
E-mail: srosenba@socrates.Berkeley.EDU

A version of this Essay was presented as a paper to the Greater Bay Area Interuniversity Disabilities Consortium, Berkeley, April 25, 2003. The views expressed here are the author's and not necessarily those of the University of California or PAI.


Because my mouth
Is wide with laughter
And my throat
Is deep with song,
You do not think
I suffer after
I have held my pain
So long?

Because my mouth
Is wide with laughter,
You do not hear
My inner cry?
Because my feet
Are gay with dancing,
You do not know
I die?
           - Langston Hughes, Minstrel Man[1]
Hundreds have paid
to gawk at me—
grotesque outsider whose
unnaturalness
assures them they
are natural, they indeed
belong.
           - Robert Hayden, The Tatooed Man[2]

Whassup?

It is 7 a.m. and the dial is tuned to 94.9, not far from sister stations on the FM frequency, beacons of cosmopolitan and progressive programming, from Pacifica's KPFA to National Public Radio affiliates. But, KYLD shows no resemblance to the rest of the left-end FM family. The 94.9 "Doghouse" is a daily party where the on- air and off-air attendees[3] drop in from San Jose, Oakland, Fremont, Richmond, and all other places encircling the San Francisco Bay, between 6:00 and 10:00 AM. They are African-American teenage students, Latina office workers in their 30s, white stay-at-home moms pushing 40 and Asian 20-somethings between jobs.

Many callers will get Doghouse T-shirts, Doghouse videos and tickets to concerts and nightclubs when they say the magic words "Whassup, Doghouse?" and submit to competitive questioning or other contests. They also get a dose of hip-hop, rhythm and blues and house vibes. But, mostly they get an earful of what the canine crew calls comedy and clowning. It is the height of lowbrow audio programming: a marathon of prank phone calls and stunts, insipid interviews, crude humor and stream-of-conscious machismo, misogyny and sophomoric "straight talk."[4] The San Francisco morning newspaper awarded the show a three star "crass quotient" a few years ago in a review of radio shows "that routinely cross the bounds of good taste,"[5] with its daily menu of testicular vernacular and anatomical allusions.

"They're huge," says one industry trade publication writer of the Doghouse show. "For what they do, they really hit the mark. They really deliver the multicultural urban marketplace we're in."[6] "No other morning show has ever had double digits in San Francisco before," boasts Jeff Vandergrift, whose shock jock alias is J.V, about Doghouse's 10.8 ratings share.[7] It is no surprise, then, that the show is sponsored by prominent businesses[8] and airs ads from government agencies.[9]

J.V. is the egocentric and sadistic lead deejay. His sidekicks are yes man Hollywood and slightly smarter straight man Elvis. Other sycophants hang out with them at the "Wild 94" party station—Greg, the laid-back mixer, Ruth the go-fer intern, Show Biz, the Stepin Fetchit whipping boy. And then there is Hank, better known by his nom de radio, Hammerin' Hank. Born in Kansas in 1967, Hank attended special education classes in high school and lived in a group home in California's San Joaquin Valley for about four years[10] — perhaps a community care residential facility for adults with cognitive impairments.[11] He may even be a client of a regional center, a service and support clearinghouse for Californians with developmental disabilities.[12]

You know there is something a little different in Hank's routines. His voice is high pitched and nasal and his speech is slow. His lines are recited from memory or heavily scripted. His breathing is labored and he punctuates many of his lines with an exaggerated, prolonged laugh. He is not your standard disabled performance artist. Nor is he your typical crip sit-down comic. Hank is a wanna-be deejay and maybe he's not wanting as much as being. Or, maybe he's wanting belonging, camaraderie, coolness.

He may talk the gutter talk of J.V. or Elvis—with all the female objectification, slurs against gay men, and genital hijinks. But, Hanky—as he is sometimes called—is not as cool or glib and never will be. He suits the purposes of his creators and alleged buddies much more as a puppet or pet, catering to their puerile whims and guffawing on cue. In return, he gets to be on the radio, participate in the locker room banter with the self-styled Radio Kings and enjoy the bad boy celebrity. On his web page, Hank answers the question "Why Radio?" with: "Free stuff, the nightclubs, and the women."[13]

Here is a typical Doghouse scenario with Hank: An interview subject, not wise to the Wild 94 format, is phoned up. He is the author of a new book on rock 'n roll.

Author: "Where are you calling from?"

One of the Deejays in background responds:
"'Tardville."[14]

Hank's script includes retorts like:
Wow, what a fag!
Suck my nuts.
And then the monkeys came out of your ass.
Did you see the size of his c----?[15]

Author asks Hank a question.
Hank replies: "If you suck me off."
Author: "Did you read my book?"
Hank: "I pissed on it." [16]

A few months earlier, crew member Show Biz was given one of the infamous consequences dished out by J.V. and gang for failure to properly perform a prank or stunt: He was to lick Hank's anus—in the KYLD studio. Hank was instructed to tell Show Biz, "Lick my butt, bitch" and they both were hooted by the other deejays for "being gay."[17] Elvis suggested that Show Biz could "taste the meatloaf served at [Hank's] group home."[18]

J.V. and his henchmen periodically ask studio guests to shed an article or two of clothing as part of a stunt or consequence. In the past, Hank has been summoned to play a version of strip poker on the air and submit to teasing about his genitals and poor hygiene. The crew has also had him rub the breasts of hired women.[19]

Another interview, with the unsuspecting author of a book entitled Pucker Power, had fairly predictable results:

Hank's lines:
A lot of men know how to
kiss their boss' ass.
Do you swallow?
Underneath my underwear [is my favorite place for a kiss].
Can you besar mi culo?
You can kiss your ass good-bye.
Want to smoke some butt hair?
I love you.[20]

On another morning, the Doghouse Deejays are laughing about how they told Hank that he was going to die if he kept eating unhealthy foods and howling at the fact that Hank really believed them.[21] J.V. says: "Hank really believes he's a comedian."

They call Hank into the on-air studio.

J.V.: "Hank, how much do you weigh? How tall are you?"
Hank answers.
J.V.: "Is that when you're wearing your mom's high heels?...You're gonna die if you keep eating like you do...What did you eat today?...And you are still hungry?"
Elvis: "We can probably afford to bury you in a pet cemetery...next to another bird brain."

Next, Hank is asked to read a script to various listeners who call in. He is to give them clues to guess the answers. The name of the game is "The 'Tard Password Game." The deejays are frustrated with Hank's ability to read the script or to play the game appropriately and they quickly lose interest.

J.V.: "We should go back to shocking him. If you dick the listeners, we'll cow-Taser your ass...It's the only way you're going to learn." Elvis: "We'll bury you at the group home...You're gonna die soon."

Later that morning, they bring some kind of commercial stun gun or baton[22] into the studio and the deejays all dare Elvis to use the Taser on Hank—or else to use it on himself. They refer to this game as "Shock the 'Tard." They read from the instrument's instructions: "It could cause 'mental confusion.'"

Hollywood: "Not relevant. [He's already mentally confused]."
J.V., Hollywood & Ruth: "Come on, Elvis...Rip the 'Tard's ass."

There follow jokes about destroying brain capacity and about being "mentally challenged." Meanwhile, Hank is all but silent as the Doghouse crew comment on how close they are to touching him with the Taser.[23]

One reporter writes off-handedly that the Doghouse team has come under fire for its hazing of Hank, who he describes as a "slow-witted man."[24] The criticism has been neither vigorous nor influential, however, as Hank remains on the air in full form.

The Doghouse's ableist allusions go beyond Hank. They include cliché Helen Keller jokes, [25] and riddles about deaf people, persistent vegetative state and obesity.[26] Deejay Elvis, the master prank caller, will pretend to be an irate Vietnam vet with a laryngectomy and psychiatric disability,[27] or a man with Tourette's Syndrome phoning to make a restaurant reservation[28] or to get a suit fitted. Some of his supposed coprolaliac utterances include:

Christopher Reeve Super Gimp… Eat it… Faggot Heifer… Son of a goddamn bitch.[29]

In another phony phone call, Elvis calls the respondent a "mongoloid."[30] Several mornings later, both Elvis and J.V. take turns on the telephone pretending they are looking for a speech therapist for a family member. Elvis's "brother" or J.V.'s "son" then gets on line speaking in a garbled and distorted voice, muttering nonsense and off-color remarks, including the obligatory reference to testicles.[31]

About a month later, crew member Show Biz croons a ditty he composed about making love to a "midget girl," with her "Midget arms / Midget legs/ Midget body/ And big ol' head." There are allusions to "Munchkin Land," shopping at Baby Gap and rhymes like "She's standing three feet tall / Next to my balls."[32] There are even jokes in Spanish, as when J.V. asks: "What do you call a hooker with no legs? Answer: Con suelo."[33]

Participation of persons like Hammerin' Hank in this form of humorous entertainment raises questions for the disability community. Should we care about this medium and this depiction of an adult with a developmental disability? The station's audience is geographically and demographically diverse, the ratings are high and the commercial sponsorship is substantial.[34] "You have to have everybody," according to J.V.[35] Can advertisers really afford to look the other way, well into an era of disability awareness and marketplace "handicapitalism?"[36]

If everybody is indeed tuning in, should we accept this as Hank's choice to do what the other shock jocks do—talk smack, be part of the "rude is hip throng,"[37] and perhaps get paid for it—no matter how tasteless or demeaning the humor? Or, through means of education, public criticism or consumer boycott, should we work to eliminate this negative portrayal of people with disabilities?[38] In this Essay, I examine where Hank fits into the world of disability humor and performance art and whether his audio antics are a product of self-determination or a form of humiliating and abusive burlesque. Perhaps surprisingly, the disability advocacy community does not speak with one voice on this issue.

Good Humor Man Cometh Not

A recent article about cinematic images in this Quarterly posits that "humor does not have to be at the expense of a disabled person, but can be a sign of identification."[39] Author Tom O'Connor regards this identification as a necessary part of integration into popular culture. Identity transfer from non-disabled member of the audience to disabled protagonist is much the same as female to male, or adult viewer to child character. He eschews "mock sentiments of political correctness" and regulations in favor of self-deprecation and mass media acceptance of people with disabilities as human beings.[40] The "healing power" of self-deprecation is what disabled humorist David Roche employs in his stand-up comedy routine:

When I walk on stage, the audience says with one voice: "What happened to your face?" I have encouraged them to say this, so I then explain that I was born with a severe facial disfigurement…. [41]

He explains that "my shadow side—my difficulty and challenge—is on the outside, where I have been forced to deal with it…."[42]

The path between good-natured laughter and mockery is not easily traveled. Responding to so-called P.C. criticism, one filmmaker defended the inclusion of a blind character in his TV sitcom. There is a rudeness about humor, he asserts, that makes people laugh.

Now it's getting down to the point where blind people have a Society and any jokes about blind people are banned…So there's another avenue of humor cut off….But jokes like that are not meant to hurt blind people—not in a million years.[43]

Rather than attribute this comment to disability backlash,[44] O'Connor sees in it an appeal for people with disabilities to be able to laugh at themselves.[45]

Complementing the theory of mutual identification is the notion that stigma or oppression will be eliminated when people perceive the fundamental similarities they share with stigmatized or oppressed people, rather than the differences. [46] One student of ethnic literature states: "The way that you show people that you're really a human being is in many cases to make people relax and laugh with you…."[47] His reference to the American tradition of self-deprecating jokes told by racial and religious minorities is equally apt for the minority of Americans with disabilities. In its most recent variation, Muslim and Arab-American comics appear in comedy clubs with jokes about terrorism, racial profiling, religious customs and international politics.[48] Similarly, Kate Rigg performs Chink-o-Rama, a provocative review where the Asian comedian bleats out Chinese stereotypes like:

I'd like to reintroduce the Won-Ton clan and Emcee Chink Daddy. He's not Chinese. He's Korean. But it don't matter. All Asian people look the same! What's up Chink Daddy? Yo! Kung Fu Mama!! Let's kick it! [49]

She continues the caricature with a sexual tease:

Hey you, Mrs. Single White Female, hold still while I manicure your nails… Hot Asian mamas in every direction...gonna give you boys a good connection. 1-900-Ching-Chong. Live Action with live Suzy Wong! Oriental babes. Oriental chicks. I know how to chop your sticks...[50]

Just as the derogatory term queer has been converted into a word of pride[51] by those identifying as gay, lesbian, bisexual or transgendered, Rigg is hoping to do the same with the ethnic slur chink:

When you…claim the language that has been used against you—and you use it freely amongst yourselves—it makes it harder for a so-called oppressor…to have as much power. [52]

This is her theory:

[I]f I am calling myself a chink, right, then if someone calls me a chink, then who cares? It's not as much fun for them. [53]

As for name calling, there is plenty of that when the Doghouse takes to the air. But, whereas crip and gimp have become accepted insider vernacular for people with physical disabilities, there is not a similar campaign to reclaim the epithets 'tard or moron.[54] In fact, self-advocacy organizations have celebrated that "members have fought long and hard to escape the indignity of labels…far fewer people use the derogatory terms—'the retarded.' 'the disabled,' 'the trainable.'"[55] Even acknowledging that "insults as a form of word play"[56] may be a tolerated custom amongst members of subordinated communities, it is important to view the history and context in determining whether the name-calling is a form of acceptable humor or has crossed the line.[57]

There is not the least hint of irony or self-deprecation when derogatory terms for "mentally retarded" get bandied about by Hammerin' Hank or his fellow dogs.[58] For example, in one of his insipid interviews, Hank telephones a vocal music instructor— after an on-air rehearsal and words of encouragement from J.V. Among Hank's questions and retorts are:

Have you ever made a retard sound great?
I want to learn to sing so I can get a lot of bitches.
Mind your own damn business.
What kind of a pussy are you? [59]

In a more recent repartee, Show Biz phones Hank's mother with the usual name-calling and insults, and then disingenuously shifts to more socially appropriate terminology:

Show Biz: "Can I use your son on Saturday to perform the "'Tard Song" [at a club]?
Hank's Mother: "If you pick him up."
Show Biz: "...and can I borrow a dress?"

Show Biz (after asking to talk to Hank: "I'm gonna dress you up as a 'tard girl...uhm, a girl that's mentally challenged."[60]

Hank's vocabulary is sexual and with-it, like Kate Rigg's Chink-o-Rama talk of "Hot Asian mamas…Oriental chicks" or her "…give you boys a good connection…chop your sticks…." But, whereas Rigg appropriates the insults and Chinese stereotypes and puns, Hammerin' Hank simply spews out crude or hateful vulgarities that are devoid of self-mockery or wit. Just as the minstrel show allowed whites to explore fantasies that middle class culture denied them— of laziness, sexual desire, unstructured time[61]— so, too, the Doghouse vignettes with Hank permit an exploration of silliness and raunchiness. Only, it is supposed to be even funnier when coming from the mouth of a foolish cripple, than from one of the hipper members of the crew.

The more fundamental question is: Does the Doghouse use humor about Hank to reinforce his humanity? And, is there truly acceptance from his studio cohorts? From KYLD listeners? J.V.'s defense of Hank's performances reads like a line from an old-timey group home manager or special ed teacher: Hank "is a star…People come up to him and want to hug him. He gets a lot of love out there…"[62] Hank's place in this canine crowd is really more akin to Elephant Man John Merrick's place in upper-class Victorian society. Merrick's wish to be normal, notwithstanding his physical disfigurement, turns out to be a fantasy, as he ends up on stage in a freak show or examined in a medical school lecture hall.[63]

Doghouse's ringleader insists that "[t]he thing people don't see is we do take care of [Hank]. We buy him clothes, we take him to the movies and the mall." [64] The irony of this defense is that "mall therapy," or en masse mall walking, is derided by advocates as the antithesis of a quality day-program activity for developmentally disabled adults. Moreover, this kind of paternalism is reminiscent of the attitude adopted by freak show mangers who looked after their charges, even after they retired from the side show.[65]

Despite J.V.'s protests, Hank is not really just like the other show dogs in the 94.9 sound booth. His shtick is not about shared humor and storytelling, nor about the elimination of stigma. His laughter is not humorous or infectious, inviting listeners to join in. Rather, it is forced and anxious, and separates the audience from the performer.[66]

Peering At The 'Tard

If Hank's performance is not in the manner of comedians who use self-deprecating humor to gain acceptance, is it instead a purposeful manipulation of what feminist scholar Rosemarie Garland-Thomson calls "the staring dynamic?" [67] In her pioneering work, she writes: "[T]he stare is the dominant mode of looking at disability in this culture."[68] The mode is one of estrangement and discomfort for the viewer and the viewed, as it "undoes the social order by its presence and attenuates the human bond based on the assumption of corporeal similarity."[69]

Garland-Thomson's subjects are women performers with disabilities who reclaim the taboo against staring by challenging their audiences to focus on their disabilities. These artists incorporate the pervasive, yet secretive, manner in which the non-disabled engage the disabled in our society. The engagement involves the medical specialist who probes and diagnoses, as well as the male heterosexual who fetishizes the disabled female body or the stranger who "gawk[s] with ambivalence or abandon at the prosthetic hook, the empty sleeve, the scarred flesh, the unfocused eye, the twitching limb…"[70]

Cheryl Marie Wade is one of the profiled performers. A poet, storyteller and singer, she "appropriates the allure of the tawdry side show and the sentimental investment of the telethon" in her invitation to stare.[71] In her poem My Hands, she capitalizes on a part of her body that violates the feminine ideal as she confronts the audience with an array of unpleasant, titillating and provocative images:

Mine are the hands of your bad dreams…
Claw hands…dwarf knobby hands…
Hands that make your eyes tear…
Hands that could grace your brow, your thigh…[72]

In her one-woman show, Mary Duffy, who has a limb anomaly, presents as a classic female nude and armless marble statue. Her fusion of a supposedly freakish body and aesthetic sexualized gazing suggests neither freak show nor medical school case study. Duffy is instead a museum objet d'art that confronts the viewer with a visual and aural monologue, taking back the oppressive language, medicalization and shame that defined her existence as a person with a disability.[73] She recasts herself as "being whole, complete and functional."[74]

Carrie Sandahl is the third artist highlighted by Garland-Thompson. She uses a street theatre and body art approach, with costume, props and one-on-one encounters in the public sphere. Her cane, uneven gait and white lab coat with superimposed clinical text convert her into a live medical chart, objectifying her body by the medical discourse that has been imposed on her for much of her—and other disabled people's—life.[75]

Humorist David Roche is not one of Garland-Thomson's subjects. Yet, he, too confronts his audience with his physical disability. His message is less about forcing them to ponder the dynamics of the staring relationship than it is about universality:

[E]very person has feelings of being disfigured, of feeling different and in some way unacceptable.…What seemed to be my "flaws" have been revealed as a wonderful source of strength….I am proud to be part of the emerging culture of disability. [76]

Finally, there is Frank Moore, a Berkeley-based artist with severe cerebral palsy "that left him spastic, unable to walk or talk, and horny for attention," who stages nude, erotic grope-a-thons. [77] A fellow performance artist and ex-porn star says Moore is "showing people can be in wheelchairs and still be interested in sex, nudity, and eroticism."[78] His work is not so much about disability, but "springs from his long experience as a disabled man—ignored, stared at, isolated, dismissed as a freak, and told what he couldn't do."[79]

Like Cheryl Marie Wade, Hammerin' Hank likes music and showmanship. He sometimes ends up performing without clothing, like Mary Duffy, although he does so only with coaxing or brow-beating. And, like Carrie Sandahl he regularly confronts strangers in a tte--tte.[80] He is also in-your-face, as is David Roche and uses sexual imagery like Frank Moore. But, the comparison is a superficial one, and ends there.

Hank does not reclaim staring or re-narrate the disability script with liberating assertions and self- representations. Nor does he manipulate the image or direct the listener in the same way as the performers described above. Lastly, he does not control the terms of the encounter.[81] On the contrary, his script is controlled by others and it is an oppressive and mocking text he is forced to recite. His is the antithesis of "managing, deflecting, resisting or renouncing stares."[82] Hank does not manage stigma, but magnifies it. And the Doghouse message is: Please do stare—and gawk!

What's Allowed: Aural Sex

Might Hank's performance at least allow for sexuality—one of the three aspects of personhood which, in Garland-Thomson's schema, have been denied to the disabled subject? It is evident that much of the Doghouse script is devoted to explicit sexual content or innuendo. But, Hank is specially cast as a person who is asexual or de-sexualized. In this respect, he shares the plight of the minstrel singer who is "a cackling stereotype—the Negro as eunuch, an object of white mirth."[83] And, it stands in contrast to the re-narrated version of disabled sexual subjectivity offered by Wade, Duffy and Moore—a sexuality which is neither pathological, nor victimized, nor passive.[84]

Instead, the Doghouse portrayal of Hank's sexuality fits the conventional mold: pathetic, unattractive and deformed —owing largely to his cognitive impairment and physical appearance.[85] The image of the undesirable disabled body is a familiar one in the disability context. Performance Artist Frank Moore, for example, speaks of the verbal abuse he experienced as a youth from the medical profession and others.[86] Men with significant physical impairments have reported, in other studies, on the barriers they face in negotiating sexual relationships. These range from socio-sexual isolation in adolescent years and parents' negative or protective attitudes to social expectations of normative functioning and poor body image. Together these barriers affect not only the attainment of sexual intimacy, but also the asexual representation of people with disabilities in American culture. [87]

Developmentally disabled Hank is permitted—and encouraged—to talk about sex, to be titillated.[88] He can assume the moniker Hammerin', with its sexual connotation.[89] But, his teammates continue to deny Hank any sexuality.[90] He may interview the author of Pucker Power or do phallic phone play with strangers. However, Hank is not to take part in sex— except in ways the team deems humiliating or perverted, e.g., homosexual or anal sex or in the role of a voyeur or john. It is almost like an inverted devoteeism.[91] In place of a pathological attraction with the disabled body, we are treated to Doghouse's revulsion of the disabled, along with a fetishizing of "normal" sexual imagery, i.e. non-disabled and heterosexual.[92]

It is a rendering that is slightly at odds with the historical view that persons with mental retardation are over-sexed. One nineteenth century physician wrote, for example, that "[t]he passions that most commonly appeared in idiots were anger, fear, and love. They sometimes felt 'an inordinate degree of sexual appetite…'"[93] Today's professionals have evolved in their thinking. But, even the rights-based approach to social and sexual expression focuses more on learning to protect oneself from unwanted encounters, following safe sex practices, accepting responsibility and giving informed consent, [94] than it does on the capacity of persons with cognitive or physical impairments to be publicly sexual and attractive beings.[95]

One therapist and educator asserts that the major reason that sexuality and disability is controversial is because it "force[s] a massive reevaluation of who disabled people are." [96] The image is one of perpetual children who never become adults and whose sexuality is therefore unexpected. "They're socially unacceptable people wanting to engage in socially unacceptable behavior."[97]

The Role of Ridicule

Some would suggest there is empowerment or agency —the other two aspects of personhood—insofar as Hank's participation on the Doghouse show is purposeful. He can say that he has made it in radio, and is now as gross as the other guys.

Hank's humorous routines, however, are more in line with an earlier era of minstrels and human oddities, or freaks. His performance actually de-humanizes and disparages. His radio persona is really an audio version of the minstrel with huge eyes and gaping mouth, the ill-fitting clothes and "nigger" dialect. In constant motion on stage, these showmen "contorted their bodies, cocked their heads…and twisted their outstretched legs."[98] In serving to "codify the public image of blacks as the prototypical Fool or Sambo," minstrelsy had a great impact on American culture.[99]

Hank's lines reek of ignorance and his speech is juvenile and awkward, like the minstrel's so-called Ethiopian dialogue:

O you sweet and lubly Dinah!
Dare are nofin any finer;
Your tongue is sweeter than a parrot's.
Your hair hangs like a bunch of carrots.
And though of flattery I'm a hater,
I lubs you like a sweet potater! [100]

His speech appears to be more explicit and racier than his minstrel predecessors. Yet, a nineteenth century critic of minstrelsy complained of the "vulgar caricatures of the style and manner of well-known artists" and "the vilest puns, of which 'Lend her de Sham-money,' or 'Lucy did lam a Moor,' are not exaggerated specimens."[101]

The ridiculing of cognitive disability has a long and dishonorable history. During the Middle Ages and Renaissance, some persons with mental retardation were procured for amusement for the idle and well-to-do.[102] Developmentally delayed persons, for instance, served regularly as buffoons and jesters at the dinner table of Pope Leo X, who encouraged his guests to laugh at the mean-spirited pranks played on them. [103] Attitudes had not progressed much by the time of the American Revolution. People with mental retardation were treated as the village idiot and "an object of merriment and ridicule," if they were not fortunate to live at home out of public view in a back room or cellar, but "in the community" abandoned by friends and family.[104]

Beginning in the mid-1800s, the American freak show began to exhibit human oddities on stage, including persons with mental retardation, often by casting them with slightly accentuated physical features or in costume or in an allegedly primitive milieu.[105] One activist dubs this phenomenon the "pornography of disability."[106] Displays included, for example, siblings with microcephaly, known as pinheads.[107] They might appear in aborigine garb and background or in Aztec motif. Also exhibited were persons of short stature, referred to as dwarves or imbeciles, who might be displayed in a South Pacific setting.[108]

Some of the freaks were said to speak unintelligible languages or gibberish or would grunt or growl on cue. They would adopt insulting names like Tik Tak, The Aztec Pinhead or The Original Aztec Indian Midgets From Old Mexico.[109]

As with the image portrayed by the black-faced, patois-speaking minstrel, there was an emphasis on the exotic or erotic. "Very special people" was one of the terms used to describe these alleged human anomalies,[110] sounding eerily like the "child with special needs" or euphemistic "special person" bestowed today on youths with disabilities.

Supposedly, only docile and cooperative subjects could be cast as freaks, as aggressive and disorderly persons were difficult to take care of and "did not exhibit well."[111] Customers, too, were expected to assume a docile pose, after taking in the barker's monologue and "gazing at the prodigious body in awestruck wonder…"[112] One commentator suggests that the gazing allowed the audience to feel "more perfect, more beautiful, less repulsive" than the exhibited human oddities.[113]

Some of the freaks were taken at a young age from their parents, perhaps for money, on the supposition that they would be cured of their so-called mental deficiency, or even that they would be spared institutionalization.[114] In his interview defending the appearance of Hank on the Doghouse, J.V. notes that the Doghouse team had met with Hank's parents and had their blessing for his role on the radio show.[115]

Perhaps Hank is an active participant in the role of freak[116] and may believe that this is his only entrée into the world of radio or nightclubs or social acceptance. Like the black minstrels of yesteryear and the disabled adults who played the side shows, this young man may see this as his only opportunity to enter the world of show business—or indeed to have any livelihood[117]— notwithstanding changing social attitudes and civil rights and employment opportunity legislation.[118] After all, in the words of disability studies scholar Rachel Adams, "the realities of appearance-based discrimination persist in American culture"[119] as does "the discomfort of living with a body always marked as other…"[120]

Thus, it is the conscious or unconscious attitude of a man with mental retardation who takes on the name Hammerin' Hank to convince himself he has sex appeal, while being razzed as a retard. He is today's beefy showman named Tiny or the large woman dressed up in a dainty girl's dress and made to giggle and dance.[121] We can peek at Hank's weekly sideshow, where he fancies himself a Don Juan, but instead he must laugh, play the fool, spew vulgarities and get aroused on command.

Viewed differently, this is a performer and an audience who—like their classic freak show counterparts—choose a form of amusement despised and disapproved by the bourgeoisie.[122] Must we impose an elitist and moralistic standard on Hank and the Doghouse listeners? Perhaps the dreaded disability "PC squad" [123] that monitors speech and media for the wrong words and negative images should just accept the bathroom humor as a mode of contemporary youth entertainment. Hopefully, the bathroom door one day will be closed and young people will get out of the toilet, get culture and develop sensitivity in some other forum. Like adolescence itself, this may be just a passing phase.

Freedom of Choice

Stated differently, can an argument be constructed in favor of just letting Hank be Hank? This does not mean condoning the Doghouse show's content. But, it does suggest that disabled people deserve the same right to be wrong as non-disabled people, and are permitted to make the same choices as their peers—even choosing to be a shock jock. When I shared my Doghouse discovery [124] with colleagues in the field of disability rights and services, a passionate debate ensued among lawyers, social service providers and other advocates about this choice, raising questions of freedom, paternalism and social identity.

Self-determination is the watchword of the contemporary disability rights movement. The concept has been embraced by consumers, parents, practitioners and educators, with little controversy.[125] Sometimes it is expressed in terms of choice[126] or "people 'speaking up' for themselves" in making and acting on lifestyle choices. One self-advocates' guide defines self-determination this way:

  • I will have more control over my life.
  • I will have more choice about what I do everyday.
  • I will have more control over my future.[127]

Another guide declares:

Self-determination is "a ten dollar word for choice…it is another word for freedom…a life filled with rising expectations, dignity, responsibility, and opportunity…a chance to live the American dream."[128]

In addition to choice, self-determination may also embody the concepts of self-advocacy, self-regulation, problem-solving, decision-making, goal setting and independence.[129] In the California model, for example, opportunities are provided to system consumers to make choices in their own lives, including where and with whom they live, their relationships, the way they spend their time, the pursuit of their personal future and program planning and implementation.[130]

The Arc's[131] education researcher, Michael Wehmeyer, defined self-determination as "people or peoples controlling their lives and their destinies. It is both that simple and that complex."[132] He offered a slightly different definition in an earlier article: The process by which individuals become the primary causal agent for decisions made in their life—without undue internal influences.[133] Causal agency, in turn, suggests that people take actions that are purposeful and lead to achieved ends.[134] Much of the literature is about facilitating true choice and ceding control impulses, working against a history of protection and trying to fix the disability.[135]

Maybe it should have come as no surprise when Maxine,[136] a disability rights lawyer in southern California, sent the following e-mail in response to my posting about Hammerin' Hank's anal antics on the Doghouse, and my suggestions of abuse:

Without wanting to inflame folks, I do have a few thoughts.
We are assuming, somewhat paternalistically, that the individual involved here is not capable of making his own decisions about what types of activities to participate in. Is this a conserv[atee]? Have we spoken to him? I am wary about throwing around terms like "exploitation and abuse" when we do not have more facts. [It is our role] to support an individual's freedom to choose his or her pursuits and paths, even if we view them as poor choices.

We may be acting hypocritically here. I am concerned about the long term effects of complaints to the licensing unit at the Department of Social Services. Do we want licensed facilities to start monitoring the activities of their residents? Slippery slope here—a breeding ground for violations of individual choice and clients' rights.

These were the responses from other lawyers and advocates:

Maxine, it sounds like you're advocating for personal autonomy.

This is not a matter for investigation.[137] Besides, what about the First Amendment and all that jazz? Not that I condone bad taste, bad press or poor judgment... I find folks like Howard Stern utterly distasteful... but, I am not forced to listen to them.[138]

I'm with Maxine on this. We cannot assume that "Hank" wants protection. Maybe you could get in touch with him and check it out. I can just imagine this becoming a "poster boy" issue: "See, this is what happens when these people are let out unsupervised!" What would be the complaint against "Hank's" facility? That they let him do what he wanted to do? The show is appalling, right up there with dwarf-tossing and the like, and we might want to think that "Hank" can't possibly understand or appreciate being the butt of this "humor"— you should pardon the expression. But, maybe he likes the celebrity it's brought him. Or maybe he's getting paid for it!

Some of the above comments are in line with contemporary theory: Self-determined behavior does not always result in successful behavior. Every decision does not turn out to be an optimal one, nor is every choice the perfect one, nor every goal the right goal. There may also be negative outcomes. Support persons—service providers, families and friends—often struggle with choices that conflict with their own judgment about what is best, e.g., when an individual chooses not to work, to spend time in an unsafe area, to eat unhealthily or chooses an unorthodox sexual lifestyle.[139] And, many of these themes are manifested in what we know of Hank's choices: the nature of his job, unhealthy eating, and offensive sexual conduct.

Upon reading the postings about Hank from disability advocates, one regional center executive director was blunt and incredulous:

Assuming that this is a real situation, equating anus licking with free choice and client self-determination is so incredibly stupid that it boggles my mind…. Free speech, slippery slope! This is really idiotic.... Is "Hank" learning that he will get approval, and air time, by allowing others to make a fool of him, to make fun of him, and his disability, like he was Quasimoto "entertaining" folks outside of Notre Dame? [Some advocates just don't] understand the difference between client rights and client abuse.

Maxine responds:

It is indeed a hard issue, but I still struggle to see how it becomes our role as advocates to monitor choices — as opposed to not supporting them or contacting Hank directly to let him know that there may be better things out there for him…. I know people with disabilities who choose to participate in bad taste events like these. In some instances, folks are well aware of what they are doing — at least to the extent they know they are having fun, getting paid, interacting with non-disabled peers in the community and in a work setting, and enjoying some sense of celebrity. People, disabled or not, often balance such things when making choices in their lives.

Again, self-determination theorists would recognize that making unhealthy choices is part of leading a "normal" life and that the "dignity of risk" is an experience that all people should know. "To deny any person their fair share of risk experiences is to further cripple them for healthy living."[140] As Maxine argues, this may include bad employment decisions or engaging in what others may view as an exploitative activity. Ironically, this rationale is similar to the one offered by freak show entrepreneurs in defense of their exhibitions. In a letter to Sociologist Robert Bogdan, one of the remaining show operators insisted that he paid his troupe of human oddities and had an above-board business relationship with them. Bogdan posits that the proprietor "did not have to profess motives manufactured from higher ideals—curing, protecting and serving—ideals that made the person with the physical or mental difference unsure of where he or she stood."[141]

Nevertheless, one commentator asserts that self-determination should not be equated with absolute authority by the person with a disability, or as the equivalent to chaos. Moreover, if actions are consistently unsuccessful in all aspects of one's life, then that life is not very self-determined.[142] In other words, the goal must be to present information so that the best informed decisions can be made by disabled people for themselves.[143] One research team draws the line for intervention at the point where there are serious health and safety risks, or infringement on the rights of others.[144]

Support providers still can encourage self-determination while setting the parameters of choice, e.g., by examining alternative solutions.[145] This is certainly the aim of most transition training or habilitation programs for persons with developmental disabilities of varying severity. There is no shortage of resources and studies involving employment,[146] social skills training, friendship [147] and sexuality. [148] With regard to social interactions, it is ironic that while one team of academics at San Francisco State University sought to identify inappropriate social behaviors by young adults with severe disabilities, Hank was engaging in some of those very same target behaviors across town and on the air: squeals, shouts, cheers, inappropriate greeting, name calling, touching peers in an inappropriate manner, perseverating on topic or sentence, and interrupting conversations. [149]

Actually, some of the things that Hank has written—or wrote "with support" — on his Doghouse web page would please exponents of person-centered planning, if recorded as social, recreational or vocational objectives in his individual program plan.[150] For instance, he is "still single and still looking for a lovely girlfriend." He likes "Latin women, nightclubs, baseball games, comedy shows, and TV." In terms of job preparation and satisfaction, he "would be looking for another radio job" if he were not in radio, and he detested all of his pre-broadcasting employment. Lastly, he dislikes "mean people, some veggies, liars, and people who don't stand for the National Anthem."[151]

Hank's choices for career, residential living, leisure and personal relationships clearly are more abundant than those available in the nineteenth or early twentieth century to persons with mental retardation— or racial minorities — who ventured outside their homes for social or vocational purposes.[152] Nonetheless, social skills deficits is one of the reasons that people with developmental disabilities have a hard time making friendships, retaining jobs or otherwise negotiating the community environment.[153] Yet, can one seriously regard the Doghouse as a supportive work environment? Its deejays are hardly skilled facilitators, much less "natural supports,"[154] notwithstanding J.V.'s assertions about "hanging out" with Hank.

Speak For Thy Self

The reaction to Hammerin' Hank by peer and self-advocates[155] stands in sharp contrast to that manifested by lawyers. "Appalling!!!!!!!!!!!" was the beginning of the email message sent by Martine, a long-time peer advocate and regional center client, in reading the posting about Hank and Show Biz having anal sex. Her initial suggestion was to contact regional centers and area boards,[156] as well as Protection & Advocacy's unit that investigates abuse and neglect. If spreading his buttocks for a Doghouse teammate is not abuse, what about the threatened shock treatment of Hank with the Taser? Given that the use of aversive procedures to reduce unwanted behaviors among persons with disabilities is now considered neither ethical nor humane, [157] this is surely a cruel form of humor—even if the other deejay dogs were all bark and no bite.

"I hate that deejay. He is beyond awful" was the terse e-mail sent by Jessica, a non-attorney advocate who does outreach in ethnic and language minority disability communities, after she read about Hammerin' Hank's escapades. Interestingly, Martine and Jessica's reactions were much more along the lines of the regional center director's, someone usually viewed with contempt for inadequately espousing the progressive disability line. However, Candace, another peer/self-advocate and People First[158] activist, was, for no apparent reason, reticent to speak out about Hank or take part in any kind of complaint process. She also relayed to me that an advisor to a People First chapter had counseled her not to get involved in protesting the matter. Was she indifferent, embarrassed, confused or following the lead of her mentor?

Martine and another peer advocate teamed up to draft a letter of complaint to KYLD's parent company and various advertisers. The effort was not lightly undertaken and involved several weeks of vetting and fretting about the letter's contents. "I am very, very strongly opposed to any letter coming from a disability rights agency on this issue —unless directed to do so by 'Hank' (or his conservator— and I don't believe he is conserved) in response to some allegation of exploitation or abuse," was the e-mail reply from attorney Maxine, when I told her about the letter. "It really runs afoul of all I stand for in terms of choice and independence." She continued:

Is it PAI's role to contact "Hank" in a way that passes judgment on his life and/or criticizes his choice of employment because it does not fit a disability rights agenda? My suggestion would be to not contact Hank at all— or to just send him basic information about PAI. I have spoken about this issue … to numbers of co-workers and friends [who have] disabilities. Everyone, without exception, has shared my concerns about the approach taken here.

What if Hank had called you before this issue surfaced internally and reported that his family thought the job was "bad for him and for other people with disabilities" and told him that unless he quit he would be kicked out of their house? You would advise Hank that he had the right to make choices in his life, even if they are— by others' standards—bad choices.

Yet, choice, if taken out of context, is problematic. For example, Professor Wehmeyer cites the case of a woman with mental retardation allowed to stand at a window in her group home all day because, it is said, that was her choice. In fact, the reason she may be standing there is because she was waiting for the companion who had earlier in the week come by to pick her up.[159]

It is also a mistake to assume that self-determination is the equivalent of just making choices—such as changing the channel on the group home TV set or switching to a new adult day program.[160] Others have warned that the trivialization of choice is one of the common misinterpretations about self-determination: "[E]namored of the philosophical connections between 'choice' and 'freedom' or perhaps connecting liberation from institutions with some notion of freedom" some "seem to extol 'choice' as a value supreme to all others."[161] The exercise of choice must be complemented by problem solving, decision-making, self-awareness and goal setting.[162] One of the first writers on the subject, Dr. Bengt Nirje, conceived of self-determination as a component of normalization, which in turn encompasses the notion of respect:

When mentally retarded adults express their right to self-determination in public and in action, and thus gain and experience due citizen respect, they also have something to teach… to society in general…the respect due to everyone…[163]

Thus, one does not simply invoke self-determination for the sake of self-determination.

It's About Respect

The debate lined up in ways that were predictable and not so predictable : Lawyers were wary of trampling on the tarmac of First Amendment jurisprudence, but were also scrupulous about preserving personal autonomy.[164] Self-advocacy activists espoused the same disapproving views as a system administrator. The arguments really reflect a larger dynamic in the disability rights community—where the forces of protection are up against the forces of advocacy.[165] But, it is not really a question of one without the other, any more than self-determination is merely about unbridled choices.

Maxine eventually conceded that a letter to the radio station was perhaps in order—so long as it did not threaten Hank's employment or question his judgment:

I think it is appropriate to raise concerns about the station's "pattern" of promoting negative stereotypes about people with disabilities. That can be done without being judgmental of Hank's choices (assuming he is even a real person as opposed to a non-disabled person playing a "role") and without being "paternalistic" in our approach (e.g. saying "Does Hank know what he is doing?" or "You are abusing Hank.")

Concerning this latter argument, Professor Bogdan recounts the story of a showman who took umbrage at the efforts of a disability rights activist to ban him from the New York State Fair on the grounds that "[t]he freak show is to disabled people as the striptease is to women, as 'Amos 'n' Andy' is to blacks."[166] One of the showman's complaints was that the activist ought to have talked to him about being exploited.[167]

There is a fine line that separates individual agency from exploitation, and the spectator may easily become what Professor Adams calls the "unwitting accomplice,"[168] if not an avid and condescending gawker.[169] Even where the object of mirth appears to be a willing participant, it is worth inquiring if that individual has given his consent and whether we as spectators have a duty to object, or question the propriety of a given act.

As for the letter to the radio station, Maxine concludes:

My suggestion is to ask KYLD to cease the pattern and practice and to give positive images of persons with disabilities equal time….I'd stay clear of asking for the termination of the Hank programming, because cutting negative images and incorporating positive images would remedy our concerns— while maintaining Hank's employment. I know PAI has goals around challenging negative imagery,[170] but that needs to be done in a manner that is consistent with the values of self-determination and choice.

There was never really much discussion amongst colleagues about disability images, beyond a cursory and resigned recognition that radio producers and entertainers have a right to free expression. There was no parallel acknowledgment that insults themselves can inflict psycho-sociological or political damage[171] or that hate speech may be a precursor to hate crimes.[172]

Yet, whether referred to as mongoloid idiots or persons with Down's, there is an "intimate connection" between the ways people with developmental disabilities are portrayed and the social policies concerning their rights and their supports. [173] The father of a child with a disability reminds us that "[r]epresentations matter...That's why advocates of the disabled are so concerned about polite words, popular movies, and visual and textual representations of every kind."[174] In the end, the advocates narrowly reached agreement about how to handle the portrayal of Hank, by balancing self-determination and choice against negative imagery and exploitation.

Epilogue

A letter protesting the aural representation of Hammerin' Hank—not Hank himself— was mailed to Station KYLD, its parent corporation, Clear Channel Radio and to various Doghouse sponsors. If past complaints were any predictor,[175] however, this simply would not carry enough weight to overturn the ratings scales. Would programmers and advertisers at least utter mild disapproval?[176] Would the general manager—or corporate CEO—order the Doghouse boys to work in some positive images of disabled persons?[177] How would the dogs themselves respond to the criticism? I expected the usual rationalizing, defensiveness and back-peddling that could be served up like so much chow.

In fact, the response from the parent company essentially defended the antics as good clean fun: Everybody kids around. In his letter to the self-advocates, the regional vice president wrote: "I fully understand your concern for Hank and will discuss the use of the term 'tard' with the morning show and ask them to be more sensitive to its potential negative connotation." [178]

Several weeks later, there were references to Hank's contemplating the idea of leaving the Doghouse. J.V. intimated that the deejays had to "sign some papers" promising to forego certain on-air activities. He stated wistfully, "This show has gotten away with more than any other show." [179] He even observed one day that "no product wants to associate" with you if you are too out of line. The latter remark was curious in light of the lukewarm reception some of the commercial sponsors gave to the complaint letter about Hank.[180] However, any illusions of the protest letter's impact were short-lived.

Notwithstanding the radio executive's promise to talk to the boys about their language, the deejays tried to give away Hank to another station and managed to work in several references to "retard" in the process.[181] Not long afterwards, Hank was put "on trial" during a morning broadcast.

With a mix of mockery, empathy and pity, Deejay Elvis announced "The Trial of the Unloyal [sic] Retard." [182] Crew members acted out the roles of prosecution and defense, and a pool of jurors was assembled. Judge J.V. ordered that the "lone, sorry-ass prisoner" be brought in. Shackled, Hank was "officially tried" for failing to display "loyalty, honesty and hard work," but mainly for dissing the deejays and speaking his own mind. J.V. told Hank that in addition to being discharged, he would be killed or have a limb cut off if found guilty. Elvis added that Hank would have to go back to his old job, making tacos.

A bizarre mock hearing followed, in which Ruth the Intern was appointed as the public defender. She argued that Hank has a mental disability, which she described as hyperactivity, requiring anti-depressants that sometimes caused him to be moody or act defiantly. Moreover, if kicked off the show, he would be devastated.

Ruth: "[This show] is all he's got. He lives for radio."

While The Honorable J.V. constantly ogled her breasts, Ruth engaged in a paternalistic defense, albeit spirited and seemingly sincere. She began by asking Hank his age.

Ruth: "And, do you act like a 35-year-old?"
Hank (flatly): "No."


J.V.: "He's not like everyone. He's not fully there."

Ruth stated that Hank "pleads no contest" to not always following orders and doing what he is ordered to do, as he does not have "full mental capacity."

Ruth: "This is what makes him endearing to our listeners. The kids love him. Listeners love him…He'll try to do his best."[183]

"He acts on impulse," testified a station engineer, who reportedly had "mental challenges" himself.[184]

         The jurors were moved—by pity? genuine empathy?—and Hank was cleared of the charges, but admonished to try harder. Once more, Hank was objectified, infantilized, talked about in the third person—as if not present—as so often occurs around people with disabilities. Thus, the barking and tail-wagging goes on as usual at FM 94.9's Doghouse. And J.V. assures us, with one of his self-indulgent monologues: "It's never a personal issue. It's entertainment. It's a show. …Some little twits try to stir things up. They just don't get it." A guest chimes in: "It's radio."[185]


APPENDIX

October 25, 2002

I received your letter and wanted to assure you that our relationship with Hammerin' Hank is both positive and fulfilling. Hank has been with the station for almost 10 years and is endeared by both the staff and audience. Radio is his life and it is all he has wanted to do for years and I am happy that WILD 94.9 has made him a part of the family.

As a member of the Doghouse morning show he is part of the inner-circle of the show and that inner-circle pokes fun at each other on a constant basis. All members, be they White, Black, Asian, short, fat, or mentally disabled have fun with each other and ALL become the focus at one time or another. All of the members have openly discussed their lives on air, which is why it is common knowledge that Hank was in a group home. The other members are the butt of jokes due to their current or past situations as well.

I fully understand your concern for Hank and will discuss the use of the term "tard" with the morning show and ask them to be more sensitive to its potential negative connotation.

On another note, we also highlight Hank's ability to outwit anyone when it comes to music. He is a master of music history and song charts and is often challenged by listeners to "name that tune" or music trivia.

Again, thank you for bringing this to my attention. We have a lot of love for Hank, he is a long term member of our family and like a family we all poke at each other but never in a malicious or hurtful way. Hank knows he can always come talk to me when something makes him uncomfortable.

Sincerely,

Michael Martin
Regional Vice President/Programming
Northern California
Clear Channel Radio


[1] The Collected Works of Langston Hughes, Vol 1 (The Poems 1921-1940) (Arnold Rampersad ed.) 171-72 (2001).

[2] Collected Poems 160-62 (1985).

[3] The listeners perhaps are described more accurately as eavesdroppers, or the audio equivalent of voyeurs.

[4] The deejays would have their audience believe that some of their remarks are candid and genuine, but most of the talk is "straight" because it is explicitly and incessantly heterosexist and homophobic.

[5] "Airwaves Pollution," San Francisco Chronicle (Nov. 23, 1997). http://www.sfgate.com. Phony phone calls, gay-baiting and what one reporter refers to as "their relentless obsession with body functions…" is always a winning recipe on the show. James Sullivan, "Wild Dogs: Really Raunchy Antics that Outrage Listeners are Part of the Winning Formula Cooked Up Every Morning by KYLD;s Doghouse Team," San Francisco Chronicle (May 15, 1998), http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/1998/05/15/ DD62431.DTL. See also, "Editorial—Radio On the 'Edge'," San Francisco Chronicle (Nov. 23, 1997). http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/1997/11/23/ED7963.DTL .

[6] Sullivan, supra n. 5 (quoting Sandy Skeie of Gavin magazine).

[7] Ibid. The 10.8 rating translates approximately into 10% of all radio listeners at a given time—in a region with at least 65 stations. Ibid.

[8] J.C. Penney's, Sprint, AT&T Wireless, Verizon Wireless, State Farm Insurance, McDonald's, Bank of America, Wells Fargo Bank, Macy's, Seven-Eleven, Universal Pictures, Fox TV, Six Flags Marine World, Trident, Coca Cola, Red Bull, Mastercard, Travelocity, Dodge, Volkswagen, Hyundai, Ford-Lincoln & Mercury, Valvoline, AutoZone, Trader Joe's, Albertson's, Wherehouse Music, Shane Co. Jewelers, Corona, Coinstar and local Toyota, Mitsubishi and Honda dealers are among the advertisers.

[9] The show has run advertisements or public service announcements from: California's Departments of Consumer Affairs and Health Services and Children & Family Commission; the U.S. Immigration & Naturalization Service and Secret Service; National Child Identification Program; Oakland International Airport and the San Jose Fire Department. Even the Easter Seal Society has aired an announcement about services for adults and children with disabilities.

[10] KYLD web site (http://www.wild949.com/dj_hank.hmtl. (June 4, 2002)). With regard to the group home, Hank allegedly writes: "I would of [sic] graduated from there much earlier, but I kept getting into trouble." Interestingly, the references to special education and group home have been deleted from more recent web page versions. Hank's full name is Henry Oaks. December 17, 2002 broadcast.

[11] See Calif. Health & Safety Code §§1501 & 1502 for an overview of the community care facilities and programs available in California.

[12] A regional center is an agency that contracts with the state "to provide fixed points of contact in the community for persons with developmental disabilities and their families [to] have access to the services and supports best suited to them throughout their lifetime." Calif. Welf. & Inst. Code §4620.

[13] http://www.wild949.com/deejay_hank.hmtl. (June 4, 2002).

[14] I choose to repeat the epithets here. See, e.g., Richard Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," 17 Harv. Civ.Rights-Civ. Lib. L.Rev. 133, 145153, 156, 180 (1982) (repetition of graphic racial epithets). For a different approach, see, Mari J. Matsuda, "Public Response to Racist Speech: Considering the Victim's Story," 87 Mich.L.Rev. 2320, 2329,n. 49 (1989). Invoking the words of Poet Audre Lorde, Professor Matsuda refrains from repeating slurs "in a personal effort to avoid harm to others, and to prevent desensitization to harmful words." See also, ibid., n. 72 ("'the only good n—r is a dead n—r' and other obscene defamation so extreme it is not included in this footnote.") A listener to National Public Radio's Weekend Edition had a similar reaction to a story that bleeped out obscenities, but left intact a racial slur. Listener e-mail to wesat@npr.org. May 3, 2003 broadcast.

[15] Slang references to penis are usually bleeped or self-censored by the crew, who abide by some standards of acceptable reference. Still, there is a steady stream of anatomical argot. See, Sullivan and "Editorial," San Francisco Chronicle, supra n. 5.

[16] August 2, 2002 broadcast. Some readers may question the need for such explicit quotations here. As offensive as they are, they convey a sense of the gritty programming content to those fortunate enough to have their radios turned off to the real thing. "[T]he Doghouse continues to bring new meaning to the term 'shock radio.'" Sullivan, supra n. 5. Referring to one of the principal deejays, a local columnist wrote: "Elvis makes Howard Stern sound dignified." Scott Ostler, "XFL's Weird, Wacky Kickoff: New Football League Features Lewd PA Men, Raw Cheerleaders," San Francisco Chronicle (Feb. 5, 2001)(Elvis was moonlighting as an XFL game announcer). http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/02/05/MN167172.DTL. Perhaps more offensive than the obscenities and slang, however, are the insults and epithets. See nn. 14 supra & 163, 170 infra.

[17] Lesbianism is tolerated and even fetishized by the Wild 94 party crew. Male homosexuality, however, is the ultimate put-down and gay-baiting is de rigeur. See, William Pollack, Real Boys 219, 224 (1999) (noting the name-calling and mistreatment experienced by young men suspected of being gay). For instance, on the August 16, 2002 broadcast, junior crew member Chicken is warned that if he inserts his own finger up his anus it is a true manifestation of homosexuality. On August 22, three in-studio male contestants vying for free concert tickets are humiliated drill sergeant-style. They are called faggots, ridiculed about wearing "gay" clothing and jewelry, and two of them are ordered to kiss one another and confess their homosexual tendencies. On the December 17, 2002 broadcast, Show Biz and another male crew member are told they must tongue-kiss for 30 seconds as a consequence for failing the assignment du jour and then Show Biz is teased because he seems to be enjoying it. See also n. 92 infra. But, how does one explain a link—without comment— on the Doghouse web page to Gay Pride Day 2002 photos (http://www.wild949.com/jacor-common/globalphotos.html (Sep. 16, 2002)) or comments by J.V. and the others deploring the murder of a local transgendered youth on October 20, 2002 and several subsequent broadcasts?

[18] May 17, 2002 show. A few weeks later, Hank is asked to phone a restaurant to say he left something behind. A man with a heavy Spanish accent at the other end is earnestly engaged for several minutes as Hank asks him, "Have you seen my balls?…They're in a tan, fuzzy sack…"

[19] Sullivan, supra n. 5.

[20] September 30, 2002 broadcast.

[21] The dialogue went like this:

Elvis: "You could see his heart bulging through his shirt...just like in the cartoons...Did you see him breathing hard?"

J.V.: "He thought he was going to die by Thanksgiving...He needs to be put on a diet....Hollywood was asking him about all the things that he'll miss when he's dead…"

[22] According to its manufacturers, the Air Taser "combines the injury reducing benefits of traditional stun technology with a quantum leap in stopping power via new Electro-Muscular Disruption (EMD) technology. The Air Taser over-rides the central nervous system, providing more reliable takedown power."  http://www.storesonline.com/site/361065/page/45031. Similarly, the Talon stun gun is hyped to "disrupt[ ] the signal from the brain to the muscles, causing the assailant to drop...trying to remember how to move his arms and legs." The Taser's two probes send "powerful T-Waves" through the wires into the body, jamming the nervous system and causing incapacitation for several minutes.  http://aaadefense.hypermart.net/taserkit.htm.

[23] On subsequent shows, other members of the crew were dared to have the Taser held to their testicles. Most agreed to be shocked, no doubt for fear of being perceived as wimps. J.V. says, "'I swear to God on my mother' that all of the show's stunts are real..." Sullivan, supra n. 5.

[24] Ibid.

[25] October 2, 2002.

[26] On January 2, 2003, a whole joke fest took place to try and make a contestant crack a smile.

[27] February 19, 2003.

[28] November 26, 2002.

[29] August 1, 2002.

[30] August 6, 2002.

[31] August 15, 2002. This author was prompted to nominate Station KYLD and its parent company, Clear Channel Radio, for one of the annual "ADA Turkey" awards handed out by Disability Rights Advocates of Oakland, California to businesses noted for Americans with Disabilities Act violations or a disability-unfriendly reputation.

[32] September 20, 2002 broadcast. Show Biz himself is not immune from the cavalier labeling. In a segment where the production crew are airing their workplace grievances, Elvis claims Show Biz has Attention-Deficit Disorder. February 3, 2003.

[33] December 19, 2002. In inexplicable contrast, the dogs show themselves capable of a somber and semi- serious discussion about mental health in response to a call from a woman who appeared to have schizophrenia. They even permitted a psychiatric nurse to give impromptu on-air advice. November 12, 2002 broadcast. Similarly, they were appalled when they received an e-mail from a fan who said her boyfriend told a young woman eating in a restaurant that she "would be cute, if [she] weren't in a wheelchair." January 23, 2003. Nevertheless, these outbreaks of solemnity tend to come from a perspective of pity and are interspersed with banter about "straight jacket" and "loony bin" or "You can think that, but don't say it."

[34] These private and government agency sponsors may be oblivious to the Doghouse program content and are looking only at market share.

[35] Sullivan, supra n. 5.

[36] Beth Haller & Sue Ralph, "Profitability, Diversity, and Disability Images in Advertising in the United States and Great Britain," 21 Disability Studies Qtrly. 6 (2001). See also ibid. at 2, 4 on the need for better recognition of the disabled consumer and accurate advertising images.

[37] Sullivan, supra n. 5.

[38] See e.g., Protection & Advocacy, Inc.'s public policy objectives in its Advocacy Services Plans of 1999-02 ("work with people with disabilities to promote their concerns and image through the media…to combat negative publicity…working collaboratively…[to obtain] media coverage of individuals with developmental disabilities successfully living in the community") and 2003-08 (developing and implementing strategies "to combat negative myths and labels…[and] negative publicity.") http://www.pai-ca.org /pubs/54021.pdf. See also, Inter-American Convention for the Elimination of All Forms of Discrimination Against Persons with Disabilities, art. III(C) (signatory countries to undertake educational campaigns aimed at eliminating prejudices, stereotypes, and other attitudes and to promote respect for, and coexistence with, persons with disabilities) (adopted by Organization of American States General Assembly, June 7, 1999). AG/RES. 1608 (XXIX-O/99).

[39] Tom O'Connor, "Disability and David Lynch's 'Disabled' Body of Work," 22 Disability Studies Qtrly. 4 (2002).

[40] Ibid.

[41] http://www.davidroche.com/about_new.htm.

[42] Ibid.

[43] O'Connor, supra n. 39 at 3-4 (quoting David Lynch, whose cinematic and TV renderings often feature major characters with disabilities, in Lynch on Lynch (Chris Rodley ed.) 153 (1997)).

[44] See, e.g., Linda Hamilton Krieger, "Afterword: Socio-Legal Backlash," 21 Berkeley J. Employ. & Labor L. 476, 493 (2000). Backlash occurs, according to Professor Krieger, when opponents of a new legal regime—such as disability anti-discrimination laws— reject key elements of that regime based on "assertions of the normative superiority of the pre-existing social, legal and institutional framework." This may take the form of "derisive humor leveled at the law and those who mobilize and seek to enforce it."

[45] O'Connor, supra n. 39 at 4.

[46] Ibid. (quoting Lorita M. Coleman, "Stigma: An Enigma Demystified," in The Disability Studies Reader (Lennard Davis ed.) 228 (1997)).

[47] Jodi Wilgoren, "Arab and Muslim Comics Turn Fear Into Funny," New York Times (quoting Louisiana State University English Professor John Lowe)(Sept. 1, 2002).

[48] Ibid.

[49] Cynthia Gouw, "Pacific Time" KQED-FM (June 13, 2002, San Francisco)(Transcript).

[50] Ibid.

[51] See, Rachel Adams, Sideshow U.S.A. 10 (2001) (noting how "critics and activists…have wrested the term queer from its original pejorative connotations, while insisting on the memory of violence and shame…").

[52] Gouw, supra n. 49.

[53] Ibid.

[54] See, Stephen A. Rosenbaum, "When It's Not Apparent: Some Modest Advice to Parent Advocates for Students with Disabilities," 5 UC Davis J. of Juvenile L. & Pol'y 159, 160, n. 7 (2001) on the re-appropriation of epithets and Adams, supra n. 51 at 227 (quoting activist Simi Lipton)(the words cripple, gimp and freak "are personally and politically useful as a means to comment on oppression because they assert our right to name our own experience"). University of California Ed Roberts Postdoctoral Fellow Mark Sherry has collected a number of web site addresses that demonstrate how 'tard and retard have actually assumed a renewed vicious connotation. See, e.g., http://tardblog.com, http://www.menace.com/retard.html. and http://www.menace.com/retard.html. Professor Adams notes the trend of minority groups to revise terminology, "substituting voluntary labels for degrading slurs." Adams, supra n. 51 at 10. However, she intentionally uses the "blunt and unsparing" freak as it "recalls a climate in which the misfortunes of some became sources of entertainment and profit for others." Ibid.

[55] Minnesota Governor's Planning Council on Developmental Disabilities, Shifting Patterns 27 (1992) (quoting a People First brochure). See n. 155 infra for a definition of self-advocacy.

[56] Matsuda, supra at 2364.

[57] Professor Matsuda writes: "The appropriate standard in determining whether language is persecutorial, hateful, and degrading is the recipient's community standard. We should avoid further victimization of subordinated groups by misunderstanding their linguistic and cultural norms." Ibid. Professor Delgado's approach is far from relativist as he asserts that certain insults "are badges of degradation even when used between friends…" Delgado, supra n. 14 at 174. For example, author Frederick Drimmer observes that the people who work in sideshows may jokingly refer to each other as freaks, but they recognize this as an epithet. Frederick Drimmer, Very Special People 10 (1979). But see, Adams, supra n. 51 at 136 ("proudly claim[ing] the title of freak as a personal or collective mode of self-identification").

[58] While fag-bashing and mocking persons with disabilities is clearly sanctioned, the Doghouse gang do seem to "get it" enough to steer clear generally of ethnic or racial hazing, except for the airing of unwitting phone respondents with foreign accents, such as the Latino cook in the above-described prank call, n. 18, supra, and the periodic razzing of Show Biz when they "talk black."

[59] "This is your interview. This is your time to shine." December 20, 2002 interview with Roger Love.

[60] February 4, 2003 broadcast. These latter episodes followed assurances from the corporate vice president that he would discuss the use of the term 'tard with the deejays. See Appendix.

[61] http://www.iath.virginia.edu/utc/minstrel/zipcoonfr.html.

[62] Sullivan, supra n. 5.

[63] O'Connor, supra n. 39 at 9-10 in reference to David Lynch's portrayal of John Merrick in the film version of The Elephant Man. See also, Drimmer, supra n. 57 at 394-95.

[64] Sullivan, supra n. 5 (interviewing J.V.).

[65] Robert Bogdan, Freak Show 125-26 (1980). But see, ibid. at 269-70 (many so-called freaks obtained genuine acceptance off-stage) and Drimmer, supra n. 57 at 13-14 (many sideshow performers settled in nearby communities after they retired and were no strangers to romance and marriage).

[66] Rachel Adams describes this phenomenon in her analysis of the classic 1932 film Freaks. Adams, supra n. 51 at 77-78.

[67] Rosemarie Garland-Thomson, "Dares to Stares: Disabled Women Performance Artists and the Dynamics of Staring" 3 (paper presented to the Greater Bay Area Interuniversity Disability Studies Consortium, Berkeley, February 8, 2002).

[68] Ibid. at 2. "[A]s anyone with a visible disability knows, persistent stares are one of the informing experiences of being disabled." Ibid.

[69] Ibid. at 3.

[70] Ibid. at 2.

[71] Ibid. at 6.

[72] Ibid. at 6-7 (excerpts from the video, David T. Mitchell & Sharon Snyder, Vital Signs: Crip Culture Talks Back (1996)).

[73] Ibid. at 9-11.

[74] Ibid. at 11.

[75] Ibid. at 11-13.

[76] http://www.davidroche.com/about_new.htm, supra n. 41. Roche continues: "In my speaking and performing, I bring profound encouragement and empowerment to audiences to help them face change and challenges in relationships, on the job, in all phases of their lives." Ibid.

[77] Will Harper, "Touching Our Private Parts," East Bay Express 15 (Feb. 4, 2003).

[78] Ibid. at 19.

[79] Ibid. at 15.

[80] Actually, he engages in an oreille--l'oreille with his telephonic shenanigans.

[81] Garland -Thomson, supra n. 67 at 4-5.

[82] Ibid. at 13.

[83] Francis Davis, The History of the Blues 66 (1995). This is a reference to singer George Washington Johnson.

[84] Garland-Thomson, supra n. 67 at 5.

[85] Research has shown that persons with mental retardation are perceived by community members as being less physically attractive and exhibiting less favorable social behaviors. Moreover, the general public's acceptance of the right to date and to marry is much lower than its acceptance of successful employment of developmentally disabled individuals. Brian H. Abery & Maurice Fahnestock, "Enhancing the Social Inclusion of Persons with Developmental Disabilities" in Challenges for a Service System in Transition (Mary F. Hayden & Brian H. Abery eds.) 93 (1994) (citations omitted).

[86] Doctors and "society" told Moore he was an "ugly cripple, a burden no woman would want." Harper, supra n. 77 at 17. After an operation on his testicles at age 13, he overheard nurses comment "no woman would make love with him." Ibid. at 21. Even a criticism of Moore's cable TV program focuses as much on his disability as the show's sexual content: "When they bring a camera close to a woman's crotch and try to insert a disabled man's penis into a vagina—if you don't call that bad taste, I don't know what is." Ibid. at 19 (quoting a Berkeley City Council Member).

[87] See, e.g. Russell P. Shuttleworth, "Toward A Constructionist Approach to Disability and Sexuality and the Inclusion of Disabled People in the Sexual Rights Movement" 2, 5, 17 (focus on ethnographic study of men with cerebral palsy) (forthcoming chapter, Sexuality Inequalities (Niles Teunis ed.)) (2003 draft on file with author).

[88] "You're acting like you're about to have an orgasm," J.V. tells him on one show. December 17, 2002.

[89] "Hot Off the Press," San Francisco Bay Guardian 27 (Sept. 25, 2002)("When a man tells you his name is Hammer, he's telling you all you need to know, at least if you're an insatiable slut.")

[90] "No" is the immediate and smug reply of one of the deejays, when Hank is asked: "Have you ever had your balls sucked?" August 16, 2002 broadcast. In a crude query about sexual exploits, one deejay asks Hank if he has ever raped anyone. "He rapes his blanket every week" is Elvis' allusion to Hank's allegedly immature and frustrated attempts at sexual pleasure. February 21, 2003. Young male anxiety about sexual prowess and experience takes on an even heightened meaning in the mind of a disabled youth. Tom Shakespeare, Kath Gillespie-Sells & Dominic Davies, The Sexual Politics of Disability: Untold Stories 23-25 (1996).

[91] Garland-Thomson, supra n. 67 at 5.

[92] The association of freakishness and homosexuality is not a new one. A 1947 gay advocacy publication asked that lesbians not be identified as freaks. Adams, supra n. 51 at 93 (citing Vice Versa). Moreover, the inquisitorial "trial by humiliation" concept that proved so popular with Hank the 'Tard, see text acc. nn. 181-183 infra, was instituted against crew member Nick G., who had been accused of being gay. On March 4, 2003, the deejay honchos elicited evidence such as a limp-wristed handshake, so-called gay strut, effeminate manner of speech and testimony that he listens to the unofficial queer anthem ,"Y-M-C-A." In his usual fashion, J.V. dismisses it all by saying the charges would be dropped if Nick merely admitted he is gay and adds, unconvincingly: "You homosexual men, we give you love."

[93] R.C. Scheerenberger, A History of Mental Retardation 98 (1983) (quoting Dr. Benjamin Rush, Medical Inquiries and Observations Upon the Diseases of the Mind (1812) in C. McNairy, "President's Conception of Our Task," 28 J. of Psycho-Asthanics 28 (1923)). By contrast, the doctor who treated and befriended so-called Elephant Man John Merrick wrote a more sympathetic account many years earlier about the sexual needs of a man with a disability: "His bodily deformity had left unmarred the instincts and feelings of his years. He was amorous. He would like to have been a lover…" Frederick Treves, The Elephant Man and Other Reminisces (quoted in Drimmer, supra n. 57 at 398).

[94] See, e.g., Statement of the Association of Regional Center Agencies, http://www.w3ddesign.com/committee.

[95] By contrast, the advertising industry began to recognize some years ago that people with disabilities can be sexy or attractive in all the conventional ways—smiling, clear complexion, tanned—and still not hide a less muscular limb, a crutch or a wheelchair. Haller & Ralph, supra n. 36 at 9.

[96] David Steinberg & Helen Behar, "Differences, Sex and Power: Interview with Dave Hingsburger," Spectator Magazine (n.d.), reprinted at http://www.sexuality.org/l/davids/cnhint.html.

[97] Ibid. See also, Shuttleworth, supra n. 87 at 17 (image of asexuality derived from implicit association between children as non-sexual beings and adults with limited functions).

[98] Robert C. Toll, Blacking Up: The Minstrel Show in Nineteenth Century America, (cited in http://www.africana.com/Articles/tt_200.ht.) Even black minstrels eventually put on blackface, "creat[ing] a comic mask that ridiculed an entire race." Robert C. Toll, On With the Show: The First Century of Show Business in America, (cited in ibid.) Thomas D. "Daddy" Rice, a white man, was recognized as the first true minstrel. He impersonated "a crippled and deformed black hostler or stable groom" while singing and dancing to a tune called "Jim Crow." Mel Watkins, On the Real Side: Laughing, Lying, and Signifying—The Underground Tradition of African-American Humor (cited in Ibid.) See nn. 105 & 108 infra on the nexus between race and disability.

[99] Watkins, supra n. 98 .

[100] J. Harry Carleton, "Bones In Love," Minstrel Gags and End Men's Hand-Book (19th Cent.) (quoted at http://etext.lib.virginia.edu/railton/huckfinn/minstrl.html).

[101] J.J. Trux, "Negro Minstrelsy—Ancient and Modern," Putnam's Monthly Magazine 78 (1855) (quoted in http://etext.lib.virginia.edu/etcbin/browse-mixed-new?id=TruNeg&tag=public&images=images/modeng&data=/texts/english/modeng/parsed).

[102] Scheerenberger, supra n. 93 at 33.

[103] C. Hibbert, The House of Medicis 225-26 (1975) in Scheerenberger, supra n. 93 at 33-34. In one such case, a "half-witted, hungry dwarf" seated at the pope's table was jeered while eating spoiled meat covered in sauce, believing that he was partaking in a fine meal. Ibid.

[104] R.C. Scheerenberger, Deinstitutionalization and Institutionalized Reform 45 (1976), quoted in Robinsue Frohboese & Bruce Dennis Sales, "Parental Opposition to Deinstitutionalization: A Challenge in Need of Attention and Resolution,"4 Law & Human Behavior 1, 4 (1980). My conclusion that a segregated life was better than one integrated in the community is only partly facetious.

[105] Bogdan, supra n. 65 at 119. Nativist xenophobia and anti-foreigner bias are reflected in this kind of display. Adams, supra n. 51 at 200. In the Barnum & Bailey heyday, persons with mental and physical disabilities were exhibited "indiscriminately" with nonwhite or non-Western and exotic performers. Ibid. at 11, 26.

[106] Bogdan, supra n. 65 at 2 (quoting Douglas Biklen of the Center on Human Policy, Syracuse University).

[107] One contemporary author writes that this is "an unkind but vividly accurate translation of the scientific term…usually associated with feeble-mindedness." Drimmer, supra n. 57 at 352.

[108] Bogdan, supra n. 65 at 119-122. Professor Rachel Adams writes of the historic connection between disability and race in the sensational and exploitative exhibition of persons with disabilities and "ethnographic curiosities" or "racial freaks." Adams, supra n. 51 at 169-70, 215.

[109] Ibid. at 124, 127, 132.

[110] Ibid. at 6. See generally, Drimmer, supra n. 57. Drimmer uses special people in lieu of the "uglier" terms freaks and monsters, but notes that performers is the preferred term of self-reference. Ibid. at 10.

[111] Bogdan, supra n. 65 at 123.

[112] Adams, supra n. 51 at 13. The customer, nonetheless, may have been surprised to find a return stare "often laden with resentment or hostility." Ibid. at 7.

[113] Drimmer, supra n. 57 at 10 (citation omitted).

[114] Bogdan, supra n. 65 at 122, 128, 146.

[115] Sullivan, supra n. 5. Nevertheless, on a subsequent show these same parents are referred to as "not fully there" and "hicks."

[116] Sometimes those who were exhibited as freaks were active in the construction of their role, as was the case with William Henry Johnson, a man with mental retardation and microcephaly. Bogdan, supra n. 65 at 134. Author Susan Sontag writes about the phenomenon of freak portraiture, i.e. where the subject poses willingly. "Do they know how grotesque they are?" she asks. Sontag, On Photography 35-36 (1977)(quoted in Adams, supra n. 51 at 128).

[117] Adams, supra n. 51 at 13-14. See also, Drimmer, supra n. 57 at 15 (Florida Supreme Court struck down 51-year-old prohibition against freak shows in 1972, as "state has no business telling anyone he cannot earn an honest living.")

[118] Today, Adams observes, people with disabilities "must seek new, less exploitative ways of gaining the public eye." Ibid. at 136. The civil rights movement, sexual revolution and counterculture have ushered in changes displacing the debate from the sideshow platform to the public square. Ibid. at 18. See also, Drimmer, supra n. 57 at 15 (noting contemporary sentiment against displaying "unnaturally formed human beings" for money).

[119] Adams, supra. n. 51 at 20.

[120] Ibid. at 227. See also, Drimmer, supra n. 57 at 13 (freaks hiding from the world to avoid the punishment "inflict[ed] on those who differ from the rest in mind or body.") According to Adams, supra n. 51 at 227, voyeurism did not end with the demise of the freak show.

[121] Bogdan, supra n. 65 at 114.

[122] Adams, supra n. 51 at 13-14. Professor Adams notes that protests and legal battles against the sideshows were couched in terms of morality, but the subtext reflected a conflict, on the one hand, between middle class values and on the other hand, the right for marginalized populations to be employed and for the underclass to be amused "in ways that may arouse disgust or disapproval from others." Ibid. at 13. My apologies to Marsha Saxton, World Institute on Disability and University of California scholar, who claims that politically conscious members of the proletariat may also object to this form of entertainment. Bogdan, supra n. 65 at 146, writes that it was not notions of dignity or self-determination that led to the demise of freak shows, but the move toward custodial institutionalization and medicalization of those with disabilities. See also, Drimmer, supra n. 57 at 10. Paradoxically, once hidden from the rest of society, these individuals are no longer freaks, "for they have found a space that can accommodate their atypical bodies and behaviors. There is no one to gaze at them and no profit to be made through their exhibition." Adams, supra n. 51 at 130. Moreover, as institutionalized wards of the state, they are no longer obligated to seek employment. Ibid. at 15.

[123] Professor Haller and Dr. Ralph write of Madison Avenue and Wall Street's reaction to the "politically correct" monitoring of TV ads, including inappropriate images of a man with Down's Syndrome and a woman in a straight jacket. Haller & Ralph, supra. n. 36 at 5. They do note that the monitoring has improved advertisers' sensitivity analysis.

[124] I began to "monitor" Doghouse in an effort to listen to the radio programming to which my teenage son was exposed. Like some of my colleagues, he too is concerned about Hank losing his job if a complaint is registered—including any criticism expressed in this Essay. But, my most grievous error—in his view—would be in hassling the Doghouse team. I don't believe he has ever actually heard Hank on the air, but he is embarrassed to have any connection with me and has asked that I publish this under an alias. Interestingly, he has made no reference in this discussion to his brother (my older son), who has significant cognitive and physical disabilities.

[125] Carolyn Hughes & Martin Agran, "Self-Determination: Signaling a Systems Change?" 23 J. of The Ass'n for Persons with Severe Handicaps 1 (1998). Still, one researcher calls the concept elusive, with no generally accepted definition. Brian H. Abery, "A Conceptual Framework for Enhancing Self-Determination," in Challenges for a Service System in Transition, supra n. 85 at 347.

[126] See e.g., Mary-Ellen Fortini & Mary FitzPatrick, "The Universal Design for Promoting Self-Determination," in Restructuring for Caring and Effective Education (Richard A. Villa & Jacqueline S. Thousand eds.) at 575-76 (2000) (self-determination refers to development of skills and opportunities for people to make decisions, experience control and have choices in their lives and ability to make choices about their lives.)

[127] Increasing Self-Determination in Arizona: The Plans of the Design Team (n.d.) (on file with author).

[128] Minnesota Governor's Planning Council on Developmental Disabilities, supra n. 55 at 1 (citation omitted).

[129] Hughes & Agran, supra n. 125 at 1 and Abery, supra n. 125 at 353.

[130] Calif. Welf. & Inst. Code §4502(j).

[131] The Arc, formerly the Association for Retarded Citizens, is one of the oldest advocacy and service organizations for persons with developmental disabilities. http://www.thearc.org/history.

[132] Michael L. Wehmeyer, "Self-Determination and Individuals with Significant Disabilities: Examining Meanings and Misinterpretations," (hereafter "J.A.S.H."), 23 J. of The Ass'n for Persons with Severe Handicaps), supra n. 125 at 5, 8 (emphasis in original).

[133] Michael L. Wehmeyer, "Self-determination: Critical Skills for Outcome-Oriented Transition Services," 15 J. for Vocational Special Needs Education 3-9 (1992).

[134] Thomas Michael Holub, Peg Lamb & Myong-Ye Bang, "Empowering All Students Through Self-Determination," in Restructuring High Schools for All Students (Cheryl M. Jorgensen ed.) 186 (1998).

[135] Michael W. Smull, "Some Thoughts from the Field: Invited Response to Articles on Self-Determination," 23 J. of The Ass'n for Persons with Severe Handicaps, supra n. 125 at 53, 54.

[136] The names of individuals have been changed to protect their privacy. Similarly, the various e-mail messages quoted here, posted between May and August 2002, have been edited in minor ways for spelling, punctuation and removal of identifying information.

[137] Protection and Advocacy agencies have the authority to investigate incidents of abuse and neglect involving persons with developmental disabilities. 42 U.S.C. §6042(a)(2)(B).

[138] E-mail posting. Another respondent wrote: "And then there's that pesky free speech issue…" See n. 164 infra.

[139] Linda M. Bambara, Christine L. Cole & Freya Koger, "Translating Self-Determination Concepts into Support for Adults With Severe Disabilities," 23 J. of The Ass'n for Persons with Severe Handicaps, supra n. 125 at 27, 29.

[140] R. Perske, "The Dignity of Risk," in Normalization: The Principle of Normalization (W. Wolfensberger ed.) 194-200 (1972), cited in Wehmeyer (J.A.S.H.), supra n. 132 at 7. One colleague, Denise, posits that there would not be such a fuss about Hank's career choice if his impairment were physical. She is also doubtful that there are alternative radio programming options for people with cognitive disabilities. Conversation of April 7, 2003.

[141] Bogdan, supra n. 65 at 268. A contemporary Coney Island Side Show exhibitor, who also emphasizes the business relationship, takes umbrage at Bogdan's criticism of freak shows: "Who's exploitative, the critic who condemns the performer [or] the producer of the show who pays him a salary?" Adams, supra n. 51 at 216.

[142] Wehmeyer (J.A.S.H.), supra n. 132 at 11.

[143] Abery, supra n. 125 at 355 (one must be exposed to alternatives in order to make informed decisions).

[144] Bambara et al., supra n. 139 at 29.

[145] Ibid.

[146] See, e.g, Annotated Bibliography On Supported Employment (Bonnie Shoultz, ed.) 1991, Research and Training Center on Community Integration, Center on Human Policy, Syracuse University; and Pathways to Home and Community: Promising Practices for Indiana Citizens with Disabilities, Indiana Institute on Disability and Community, Indiana University, Bloomington (2000).

[147] See, e.g., Brian H. Abery & Maurice Fahnestock, supra n. 85 and Stuart J. Schleien, John E. Rynders & Frederick P. Green, "Facilitating Integration in Recreation Environments," in Challenges for a Service System in Transition, supra n. 85, ch. 5 & 6.

[148] See, e.g., statement of The Committee on Sexuality, Advocating for Persons With Developmental Disabilities, which "recognizes and supports the rights of all people with developmental disabilities to have opportunities for social relationships and sexual expression." http://www.w3ddesign.com/committee. See also, the Disability and Sexuality website, www.disabledsex.org ("intended to challenge the myths that disabled people are invisible, asexual, unintelligent, undesirable or incapable in any way") and Shuttleworth, supra n. 87 at 24-25 (continued oppression and exclusion from sexual decision-making experienced by people with cognitive disabilities, particularly those living in institutionalized or group settings).

[149] Pam Hunt, Morgen Alwell, Lori Goetz & Wayne Sailor, "Generalized Effects of Conversation Skill Training," 15 J. of The Ass'n for Persons with Severe Handicaps 250, 253 (Table 2) (1990).

[150] The IPP is California's version of a planning team document. It records a regional center consumer's choices, supports and other decisions related to living arrangements, work, education, recreation, leisure activities, etc. Calif.Welf. & Inst. Code §4646(b) & 4646.5(c)(1).

[151] http://www.wild949.com/deejay_hank.hmtl. (Sept. 28, 2002). The list of dislikes is probably the most suspect in terms of its authenticity.

[152] African-American men had put on blackface in order to capitalize on America's racism by playing to the white belief that they were indeed the plantation darkies they portrayed on stage—even advertising themselves as "genuine Negroes." Wynton Marsalis, "Reflections on minstrelsy," http://www.pbs.org/jazz/exchange/exchange_minstrel.htm. Similarly, some of the "human oddities" were conscious of the image they projected about abnormality and were even contemptuous of their audience. Bogdan, supra n. 65 at 271-72. After a hiatus, the freak show has seen a revival of sorts— sometimes with sexual and gender twists— in contrast with the equally popular minstrel entertainment. The latter is too dependent on a now taboo racialized humor. Adams, supra n. 51 at 12, 215. See also, nn. 117 & 118 supra.

[153] Abery & Fahnestock, supra n. 85 at 93.

[154] Under California's developmental disabilities service system, regional center program planning teams are required to first consider services and supports for persons with developmental disabilities who are in "natural community, home, work and recreational settings." Calif. Welf. & Inst. Code §4648(a)(2). See also, 4512(e)-(f)(defining "natural supports" and "circle of support").

[155] "Self-advocacy," according to People First of California, "means that the members are learning how to speak for themselves and make decisions about what they want to do with their lives." http://www.peoplefirstca.org, supra n. 154. Sometimes referred to as "personal advocacy," it involves "speaking out or acting on behalf of oneself or others, or on behalf of a particular issue" whether individually or in groups. One research team concludes that "positive outcome" and "enhanced dignity and self respect" are important attributes of self-advocacy development. Abery, supra n. 125 at 359-60 (citations omitted). The mission of PAI's Developmental Disability Peer/Self-Advocacy Unit is to "assist[] persons with disabilities in understanding and controlling the systems and processes which affect their lives" through peer role models. PAI, Advocacy Services Plan (2003-08), supra n. 38 at 8. http://www.pai-ca.org/pubs/540201.pdf.

[156] Area Boards are part of a statewide monitoring and advocacy system to ensure that the legal, civil and service rights of Californians with developmental disabilities are protected. Calif. Welf. & Inst. Code §4548(d)(1).

[157] Fredda Brown, Carole R. Gothelf, Doug Guess & Donna H. Lehr, "Self-Determination for Individuals With the Most Severe Disabilities: Moving Beyond Chimera," 23 J. of The Ass'n for Persons with Severe Handicaps 17, 22, supra n. 125. In California, no publicly funded educational agency may authorize any behavioral intervention which is designed or used to subject an individual to verbal abuse, humiliation, ridicule or excessive emotional trauma or any intervention likely to cause physical pain. 5 Calif. Code of Regs. §3052(l). Similarly, all care providers of persons with developmental disabilities are prohibited from using any form of behavior modification that may cause pain or trauma, unless part of a tightly controlled treatment program endorsed by a qualified professional and the interdisciplinary team. 17 Calif. Code of Regs. §50822.

[158] The mission of this self-advocacy organization is to aid people with developmental disabilities "to speak for ourselves, know our rights and responsibilities, and [be] respected, valued members of our communities." http://www.peoplefirstca.org, supra n. 154 .

[159] Wehmeyer (J.A.S.H.), supra n. 132 at 13. Sometimes we worry the choice is contrived, not real. One mother asks about her adult son's invitation one year to spend Christmas at his home—rather than his parents.' "Did his housemates… 'support his choice' to invite us over or shape his choice on his behalf?" Diane L. Ferguson, "Relating to Self-Determination: One Parent's Thoughts," 23 J. of The Ass'n for Persons with Severe Handicaps 44, 45, supra n. 125 (emphasis added).

[160] These reflect comments actually made by focus group participants during PAI's 2002 priorities-setting process.

[161] Wehmeyer (J.A.S.H.), supra n. 132 at 14 (quoting D. Ferleger, "The Place of 'Choice'," in Choice and Responsibility: Legal and Ethical Dilemmas in Services for Persons with Mental Disability (C.J. Sundram ed.) 64-97 (1994)). See also, Abrey, supra n. 125 at 357 (process of choice-making is only one of the abilities needed to achieve autonomy).

[162] Wehmeyer (J.A.S.H.), supra n. 132 at 13.

[163] Bengt Nirje, "The Right to Self-Determination," in Normalization: The Principle of Normalization, supra n. 140, quoted in Hughes & Agran, supra n. 125 at 1.

[164] Under conventional legal analysis, restrictions on hate speech tend to be incompatible with the First Amendment's protection of freedom of speech. Professor Matsuda, however, cites to numerous international conventions and other democratic nations' laws which proscribe racist expression or speech. Matsuda, supra n. 14 at 2341-48. She also puts forth an argument for a narrow application of a prohibition of hate speech that preserves First Amendment values. Ibid. at 2356-61. Professor Delgado also distinguishes between the values of free expression and the use of racial insults and racist speech, and lays out the elements for filing a court action against one who uses an epithet intended to demean. Delgado, supra n. 14 at 175-80.

[165] Even this description does not do justice to the nuances, e.g., there is advocacy for and advocacy with.

[166] Bogdan, supra n. 65 at 280.

[167] Ibid. "How can she say I'm being taken advantage of? Hell, what does she want for me—to be on welfare?" Ibid. A 1971 roundtable of performers elicited this pessimistic assessment of job opportunities: "You get more respect in a sideshow; in the street you'd have to be a beggar." Drimmer, supra n. 57 at 15.

[168] Adams, supra n. 57 at 216. Professor Adams writes about a developmentally disabled person of short stature who appears in a contemporary Coney Island side show and, according to the show's producer, is proud and happy with his role. "We could not laugh, for despite [his] concerted efforts, there was nothing funny about what we were seeing and the very act of looking….suddenly made us feel complicit in his degradation." Ibid.

[169] See text acc. n. 113 supra.

[170] See n. 38 supra.

[171] See, Delgado, supra at 135-150 for a discussion of the harms caused psychologically, sociologically and politically by racial insults and racism. Delagdo asserts that "[t]he racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted….Not only does the listener learn and internalize the messages contained in racial insults, these messages color our society's institutions and are transmitted to succeeding generations." Ibid. at 135-36. A similar argument can be made with regard to disablist name-calling and attitudes.

[172] Disability studies scholar Mark Sherry writes that "the line between speech and conduct is difficult in practice to establish." Mark Sherry, "Don't Ask, Tell or Respond: Silent Acceptance of Disability Hate Crimes" 5 (paper presented at the Greater Bay Area Interuniversity Disability Studies Consortium, Berkeley, November 20, 2002). Sherry notes that those who favor penalizing hate speech define hate crimes more expansively than free speech supporters, as they conceive of hate speech or hate crimes as "part of a continuum of bigotry and prejudice" rather than discrete acts. Ibid. He cites other authors who view hate speech as creating a "symbolic code for violence" or a political climate where persons with disabilities experience "oppressive silencing," (e.g., R.K. Whillock, "The Use of Hate As A Strategem for Achieving Political and Social Goals" (1995) and Marian Corker, "The UK Disability Discrimination Act: Disabling Language, Justifying Inequitable Social Participation" (2000) (full citations omitted)). Ibid.

[173] Rachel Adams, "Enabling Differences: New Work in Disability Studies," 37 Michigan Qrtrly. Review 348, 349 (1998)(referring to portrayal by doctors, educators, politicians and artists).

[174] Ibid. at 349 (quoting Michael Bérubé, Life As We Know It: A Father, A Family, and An Exceptional Child 260 (1996)). See also, n. 38 supra on media images.

[175] These ranged from direct complaints to station management, to protests to the Federal Communications Commission and lawsuits. See, e.g., Peter Hartlaub, "No Prank Too Wild In the Ratings Game: Costly Lawsuits Don't Deter Radio Station," San Francisco Chronicle (Dec. 31, 2000) http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2000/12/31/MN112871.DTL; Jerry Carroll, "KYLD Gives A Mom A Hard Time," San Francisco Chronicle (Apr. 3, 1998) http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/1998/04/03/DD88340.DTL .

[176] See nn. 8-9, 34-36 & acc. text, supra, regarding the Doghouse sponsors and changes in the advertising industry. To make matters worse, the show runs anti-tobacco and anti-drug public service announcements right along with the deejays' jokes about illegal drugs and alcohol. The Wild 94.9 website is supposed to make up for the lapses, showing that the "dogs" can also be good citizens. See, e.g., http://www.wild949.com/doghouse_drugs.html & http://www.wild949.com/doghouse_mediacontact.html (Mar. 1, 2003). "Along with all this madness, the Doghouse has helped the community. Deejay Hollywood walked from San Francisco to San Jose (50 Miles) to raise funds to help a 3-year-old cancer patient. J.V. swam from Alcatraz to the shore." http://www.wild949.com/deejay_doghouse.html. (Mar. 1, 2003).

[177] December 3, 2002 broadcast.

[178] See Appendix. Martin is not adverse to reviewing programs for appropriateness. After the events of September 11, 2001, he was quoted in a major daily as saying that "program directors were having informal discussions about what songs might be inappropriate to play." James Sullivan, "Radio Employee Circulates Don't-Play List," San Francisco Chronicle (Sept. 18, 2001). http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2001/09/18/DD228327.DTL. A Clear Channel staff member had just distributed a list of more than 150 "questionable" songs to the company's affiliates nationwide, suggesting that they not be aired. Ibid.

[179] December 3, 2002.

[180] While Coinstar wrote that it would review its media planning guidelines for airing commercials, more typical was the response from Macy's West: "…we recognize and respect the media's right to express editorial opinions, even if it may present a view contrary to those of our customers." (Letters of October 25, 2002 and January 16, 2003 on file with author).

[181] See e.g., text acc. nn. 59-60 supra.

[182] December 17, 2002.

[183] This is consistent with Vice President Martin's letter of October 25, 2002. See Appendix.

[184] An engineer witness, who allegedly has a developmental disability, was put on the phone while he was eating a tamale snack. After he "testified" in Hank's favor, Elvis responded sarcastically: "I didn't know Gerber's makes [baby food] tamales."

[185] August 14, 2002. The comments were made in response to a recent guest who had complained about being disrespected on the show.



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