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Free speech:not in our constitution


cyberianpan

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Bunreacht
Personal Rights

Article 40

6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
So free speech except for anything that undermines:
public order : possibly reasonable but wide interprative leeway
morality: bit fuzzy ?
authority of the State: possibly reasonable but wide interprative leeway

seditious: possibly reasonable but wide interprative leeway
blasphemous: huh :shock:
indecent matter :shock: :shock:

Of course people will say that "sure look at all the dirty mags & Monty Python is allowed now" and yes I think it highly unlikely that Ireland will slide into a tyranny but fact is that our "free speech" is far from guaranteed. How can we explain to any African country what proper statehood is with these relics in Bunreacht ?

Compare to the US:
Bill of Rights

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
cYp
 

Defeated Romanticist

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Yes its a disgrace. I personally beleive in total freedom of Speech as a liberal. This is one of the push factors which is driving me out of the PDs, espcially when we didn't make a song and dance out of the crazy German propasals to ban freedom of speech with there lazy holocaust excuses. Guilt must be getting to them.
 

Sidewinder

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The "public order" and "authority of the State" bits are especially dodgy. Technically, they could make it illegal to criticise the Government or any member thereof, and it wouldn't be unconstitutional!

There's a few bits of the old document need a bit of an overhaul, and this is definitely on the list. Freedom of speech for all!
 

Kev408

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Freedom of speech should not be enshrined in any constitution - it should be a given, like breathing the air we breathe. Difficulties that arise from the promotion of such issues (examples only) as 'justifiable' paedophilia or Holocaust denial can then be dealt with appropriately and without the shackles of constitutions. Civil liberties groups have us fooked. Common decency should prevail.
 
G

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Pitt the younger said that any restriction on free speech would herald the beginnning of the end of the British Constitution. He felt it would be the equivalent of when Caesar became emperor and replaced the senate.
 

corelli

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I think sight is being lost of the fact that it is our Supreme Court which is the arbiter of what the 1937 Constitution actually says and the Supreme Court have been, since the O'Dalaigh court in the 1960's, quite liberal in the interpretation of it's provisions. The most quoted phrase is that it is a "living document" that develops over time given the social/political norms prevelent at the present time. I am not sure I understand what Kev408 is getting at when he suggests that no such fundimental right provisions should be in any constitution and his following assertion that any difficulty in relation to the promotion of such matters as paedophilia could be then "dealt with appropriately". Are you suggesting that we leave decisions on fundimental rights to the Legislature without any recourse to basic constitutional principles?
 

cyberianpan

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So trust the Supreme Court:
corelli said:
I think sight is being lost of the fact that it is our Supreme Court which is the arbiter of what the 1937 Constitution actually says and the Supreme Court have been, since the O'Dalaigh court in the 1960's, quite liberal in the interpretation of it's provisions. The most quoted phrase is that it is a "living document" that develops over time given the social/political norms prevelent at the present time.
but not the Legislature:
corelli said:
I am not sure I understand what Kev408 is getting at when he suggests that no such fundimental right provisions should be in any constitution and his following assertion that any difficulty in relation to the promotion of such matters as paedophilia could be then "dealt with appropriately". Are you suggesting that we leave decisions on fundimental rights to the Legislature without any recourse to basic constitutional principles?
:?

cYp
 

farnaby

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cyberianpan said:
Bunreacht
Personal Rights

Article 40

6. 1° The State guarantees liberty for the exercise of the following rights, subject to public order and morality:

i. The right of the citizens to express freely their convictions and opinions.

The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.

The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law.
Not too bothered by this to be honest. It guarantees citizens the right to free speech while warning "organs of public opinion" to be careful what they say. The invasion of english tabloid papers into the irish market makes me wish someone would actually enforce this clause. Worry about artistic and political expression being undermined by such a clause is made irrelevant by distribution of news, movies, radio etc. through the internet anyway.
 

Kev408

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corelli said:
I think sight is being lost of the fact that it is our Supreme Court which is the arbiter of what the 1937 Constitution actually says and the Supreme Court have been, since the O'Dalaigh court in the 1960's, quite liberal in the interpretation of it's provisions. The most quoted phrase is that it is a "living document" that develops over time given the social/political norms prevelent at the present time. I am not sure I understand what Kev408 is getting at when he suggests that no such fundimental right provisions should be in any constitution and his following assertion that any difficulty in relation to the promotion of such matters as paedophilia could be then "dealt with appropriately". Are you suggesting that we leave decisions on fundimental rights to the Legislature without any recourse to basic constitutional principles?
Well, yes, I am. Why does it not state in our constitution that we can eat, quench our thirst or copulate? That they do not exist in our constitutions does not mean we cannot indulge in them. Freedom of speech is as righteous as sex or eating or breathing. When it becomes constitutionalised it protects sickos like NAMBLA who spout forth their belief, acceptance and encouragement of paedophilia. This leads to unnecessary court cases, publicises the causes of such groups, adds an element of seriousness to them and diminishes common decency. Freedom of speech, like the right to bare arms, was introduced into the US constitution because they were not allowed under British rule. We need to move away from that and return to acceptable levels of decency.

Then we can deal with inappropriate abuses of freedom of speech as and when they arrive.
 

corelli

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I am sugesting that it would not be appropriate to trust the legislature in fundimental matters. Simply because they are politicians and are vunerable to public opinion, which, I would submit, would be quite a dangerous position to find ourselves in. As for eating and drinking, they are protected under the fundimental provisions in our Constitution in that they are required to live and we have a fundimental right to life in our constitution. Copulation is also covered in the constitution in various ways, the most important one being ones right to Privacy, which was the most argued in the Norris case and which he subsequently won in the European Court of Human Rights. I think if you don't take the Constitution in a very literal sense, which it should not be, and take it that that the provisions in it are basic principles, not exhaustive, you might become more comfortable with it.

As for cyp, yes, it is not so much a question of trust, merely that it is the basis of most, if not all, functional democracies in the world, the three tier Government, legislature, executive and judiciary and, of course, a strict seperation of all three. Seems to work.
 

cyberianpan

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corelli said:
I am sugesting that it would not be appropriate to trust the legislature in fundimental matters.

I think if you don't take the Constitution in a very literal sense, which it should not be, and take it that that the provisions in it are basic principles, not exhaustive, you might become more comfortable with it.

As for cyp, yes, it is not so much a question of trust, merely that it is the basis of most, if not all, functional democracies in the world, the three tier Government, legislature, executive and judiciary and, of course, a strict seperation of all three. Seems to work.
But on above you are more willing to trust a Supreme Court to ignore the constitution re free speech (because it is old & out of fashion) but you are not willing to say nothing on it & trust the legislature...

Whereupon we find a flaw in our constitution & hope/expect it to be ignored it seems to me the best option is for the people (the zeroth & most important tier) to ammend it.

cYp
 

corelli

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I don't think they ignore the constitution, the supreme court that is, but they interpret it according it to pervailing norms, which change over time. I would never trust the legislature on such fundimental matters without a base standard below which they could not fall, ie, the Constitution. Any fundimental change to the Constitution has to be put to the people in referendum, ie Divorce, Abortion, Nice Treaty, Irish Born Child. A fundimental principle of our, and most democracies, is a healthy tension between the three branches of Government. They balance one another so as to ensure no extreme view on any part. Seems perfectly sensible to me, and it works better than any other system I can think of.

Even the English, who have no written Constitution, and have an extremely important principle in their law somewhat along the lines of what you are suggesting, "Parlimentary Supremacy", which is an historic product which emerged from the conflict between Soverign and Parliment (methinks there was a beheading involved there somewhere!!:), have an "unwritten Constitution", which is a serious of legal principles handed down over hundreds of years which constitute a base level of protections which Parliment have to abide by.
 

cyberianpan

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corelli said:
I don't think they ignore the constitution, the supreme court that is, but they interpret it according it to pervailing norms, which change over time. I would never trust the legislature on such fundimental matters without a base standard below which they could not fall, ie, the Constitution. Any fundimental change to the Constitution has to be put to the people in referendum, ie Divorce, Abortion, Nice Treaty, Irish Born Child. A fundimental principle of our, and most democracies, is a healthy tension between the three branches of Government. They balance one another so as to ensure no extreme view on any part. Seems perfectly sensible to me, and it works better than any other system I can think of.
Hmmmm I grudgingly like it also but as said the constitution is indeed the base & when it fails we ought return to the zeroth branch - the people - and ask them to fix it.

I accept of course that for now we can rely on the Supreme Court to save us from the politicians on free speech, though it will be interesting to see if the Press Council ends up on a statuatory footing. However my problem lies in explaining to say some nascent African democracy: "ya can have fuzzy & silly bits in your constitution, don't worry though the judges will ignore them & figure out what society really means". (think this exact point was raised in a S6/7 episode of the West Wing wherein the bizarre machinations of the electoral college had to be explained).

cYp
 

stringjack

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corelli said:
Even the English, who have no written Constitution, and have an extremely important principle in their law somewhat along the lines of what you are suggesting, "Parlimentary Supremacy", which is an historic product which emerged from the conflict between Soverign and Parliment (methinks there was a beheading involved there somewhere!!:), have an "unwritten Constitution", which is a serious of legal principles handed down over hundreds of years which constitute a base level of protections which Parliment have to abide by.
:? Except parliamentary supremacy means that Parliament doesn't have to abide by any such things.
 

corelli

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Well McDowell basterdised the Press Council, it's membership will be chosed by the media kind of, though using a very good selection panel, Carmencita Hederman, Maurice Manning (chair of human rights commission) and Tom Mitchell the former provest of Trinity. The council will then be given "statutory recognition" whatever that means. Never heard of that type of legislation, to be honest.Of course it was watered down as a result of his FF partners in government being pressured by the press barons. How unsual! We shall wait and see how it progresses.

The Supreme Court cant make great leaps in their interpretation of the Constitution. That is the perogative of the people through referendum, as you quite rightly recognise.
 

Kev408

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corelli said:
I am sugesting that it would not be appropriate to trust the legislature in fundimental matters. Simply because they are politicians and are vunerable to public opinion, which, I would submit, would be quite a dangerous position to find ourselves in. As for eating and drinking, they are protected under the fundimental provisions in our Constitution in that they are required to live and we have a fundimental right to life in our constitution. Copulation is also covered in the constitution in various ways, the most important one being ones right to Privacy, which was the most argued in the Norris case and which he subsequently won in the European Court of Human Rights. I think if you don't take the Constitution in a very literal sense, which it should not be, and take it that that the provisions in it are basic principles, not exhaustive, you might become more comfortable with it.

As for cyp, yes, it is not so much a question of trust, merely that it is the basis of most, if not all, functional democracies in the world, the three tier Government, legislature, executive and judiciary and, of course, a strict seperation of all three. Seems to work.
Yes. I agree with the fundamental points you're making. Your selective views, such as copulation being protected by the Privacy Act, are unfounded but nevertheless I agree that the Constitution should not be taken literally. Look where that got the US.

The separation that you state exists within most democracies, almost as though it was written and accepted, simply is not. The parameters you put forth should be challenged. Indeed, the concept of democracy, as we know it, should be challenged. When democracy is improved upon the new order should then be challenged. And so forth...

All that said, and going back to the essence of the thread, freedom of speech should not be enshrined in any true democracy because it's a given. The very enshrining of such a concept leaves victims in an even more vulnerable position than they are already. Decency and common sense should prevail in our courts and minds and the sooner we have non-politically elected judges the sooner such an outrageous concept as justice will occur.
 

Odyessus

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Sidewinder said:
The "public order" and "authority of the State" bits are especially dodgy. Technically, they could make it illegal to criticise the Government or any member thereof, and it wouldn't be unconstitutional!

There's a few bits of the old document need a bit of an overhaul, and this is definitely on the list. Freedom of speech for all!



[/quote]
Technically, they could make it illegal to criticise the Government or any member thereof, and it wouldn't be unconstitutional!




I'll take a wild guess that the Supreme Court would disagree with you.
 

Odyessus

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cyberianpan said:
corelli said:
I don't think they ignore the constitution, the supreme court that is, but they interpret it according it to pervailing norms, which change over time. I would never trust the legislature on such fundimental matters without a base standard below which they could not fall, ie, the Constitution. Any fundimental change to the Constitution has to be put to the people in referendum, ie Divorce, Abortion, Nice Treaty, Irish Born Child. A fundimental principle of our, and most democracies, is a healthy tension between the three branches of Government. They balance one another so as to ensure no extreme view on any part. Seems perfectly sensible to me, and it works better than any other system I can think of.
Hmmmm I grudgingly like it also but as said the constitution is indeed the base & when it fails we ought return to the zeroth branch - the people - and ask them to fix it.

I accept of course that for now we can rely on the Supreme Court to save us from the politicians on free speech, though it will be interesting to see if the Press Council ends up on a statuatory footing. However my problem lies in explaining to say some nascent African democracy: "ya can have fuzzy & silly bits in your constitution, don't worry though the judges will ignore them & figure out what society really means". (think this exact point was raised in a S6/7 episode of the West Wing wherein the bizarre machinations of the electoral college had to be explained).

cYp





What is you apparent obsession with explaining and justifying our Constitution to Africans?
 

cyberianpan

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Odyessus said:
Sidewinder said:
The "public order" and "authority of the State" bits are especially dodgy. Technically, they could make it illegal to criticise the Government or any member thereof, and it wouldn't be unconstitutional!

There's a few bits of the old document need a bit of an overhaul, and this is definitely on the list. Freedom of speech for all!

Technically, they could make it illegal to criticise the Government or any member thereof, and it wouldn't be unconstitutional!
I'll take a wild guess that the Supreme Court would disagree with you.
Yes but relying on "activist judges" is ok for now but could be dangerous in the future !

cYp
 

Odyessus

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Kev408 said:
corelli said:
I think sight is being lost of the fact that it is our Supreme Court which is the arbiter of what the 1937 Constitution actually says and the Supreme Court have been, since the O'Dalaigh court in the 1960's, quite liberal in the interpretation of it's provisions. The most quoted phrase is that it is a "living document" that develops over time given the social/political norms prevelent at the present time. I am not sure I understand what Kev408 is getting at when he suggests that no such fundimental right provisions should be in any constitution and his following assertion that any difficulty in relation to the promotion of such matters as paedophilia could be then "dealt with appropriately". Are you suggesting that we leave decisions on fundimental rights to the Legislature without any recourse to basic constitutional principles?
Well, yes, I am. Why does it not state in our constitution that we can eat, quench our thirst or copulate? That they do not exist in our constitutions does not mean we cannot indulge in them. Freedom of speech is as righteous as sex or eating or breathing. When it becomes constitutionalised it protects sickos like NAMBLA who spout forth their belief, acceptance and encouragement of paedophilia. This leads to unnecessary court cases, publicises the causes of such groups, adds an element of seriousness to them and diminishes common decency. Freedom of speech, like the right to bare arms, was introduced into the US constitution because they were not allowed under British rule. We need to move away from that and return to acceptable levels of decency.

Then we can deal with inappropriate abuses of freedom of speech as and when they arrive.




[/quote]
Freedom of speech, like the right to bare arms, was introduced into the US constitution because they were not allowed under British rule.



You may legally bare your arms in Ireland, even if you are a woman.
 
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