Free speech:not in our constitution

FFKev

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Freedom of speech is not an absolute right.

One does not have the right to incite hatred, for example, nor (in the classic constitutional law example) run through a crowded theatre shouting "Fire!".

There exists a hierachy of rights and competing rights must be measured against each other in the best interests of the State.

For example, a prisoner has his right to freedom of movement (among others) limited by the court which sentences him. This doesn't mean that the court is acting unconstitutionally. Rather it is weighing society's right to be protected from criminals, to deter others from crime etc as being more important.
 


corelli

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Kev408, whilst I accept totally that you have your views and are more than welcome to express them, methinks you should do it with a little bit more precision. For instance, in your most recent post you assert that the "right to copulate" is not protected in the "privacy act".

1. We have no privacy act in this jurisdiction. I mentioned our fundimental right to privacy which is in the 1937 Constitution. If you wish to take issue with me please do it on the basis of what I actually said. And for your information the right to intimate relations is most certainly protected by this provision of our constitution. Privacy is an unenumerated right in the Irish Constitution (i.e. it is not explicitly referred to in the Constitution but it has been accepted by the Supreme Court that article 40.3 of the Constitution implicitly guarantees a right to privacy.) See McGee V Attorney General and Norris V Attorney General.

2. Can you please explain how "decency and common sense" will prevail in the formulation of our legislation and court judgements when there is nothing to base either on?
 

Kev408

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corelli said:
Kev408, whilst I accept totally that you have your views and are more than welcome to express them, methinks you should do it with a little bit more precision. For instance, in your most recent post you assert that the "right to copulate" is not protected in the "privacy act".

1. We have no privacy act in this jurisdiction. I mentioned our fundimental right to privacy which is in the 1937 Constitution. If you wish to take issue with me please do it on the basis of what I actually said. And for your information the right to intimate relations is most certainly protected by this provision of our constitution. Privacy is an unenumerated right in the Irish Constitution (i.e. it is not explicitly referred to in the Constitution but it has been accepted by the Supreme Court that article 40.3 of the Constitution implicitly guarantees a right to privacy.) See McGee V Attorney General and Norris V Attorney General.

2. Can you please explain how "decency and common sense" will prevail in the formulation of our legislation and court judgements when there is nothing to base either on?
I don't know if you're deliberately obfuscating here but I'm saying that the fundAmental right to have sex is not okayed by our constitution, nor is our fundamental right to breathe the air, exist or partake in many other things. Why is freeedom of speech included? It should be a given like the aforementioned acts.

Decency and common sense are implicitly included in court cases and legislation. Or do you think someone should add those items to our constitution just in case we aren't clear on it?

I also accept that you have the right to express your views. What I cannot accept is people abusing the 'freedom of speech' clause to justify hatred, paedophilia and homophobia.
 

cyberianpan

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I'm resurrecting this original thread to help widen the blasphemy debate which is instead covered on this thread:
New crime of blasphemous libel proposed for Defamation Bill - goodbye free speech ?


Should we now seek to demand a referendum (held alongside Lisbon) to guarantee our free speech ?


Else Dermot Ahern may feel obliged to bring in further legislation to ban anything which "undermine public order or morality or the authority of the State." and/or which is " seditious, or indecent".

Do we now need solid constitutional protection from our legislature ? Brian Cowen wasn't happy with people talking down the banks earlier in the year, Bertie always took a pop at those who pointed out the property bubble ... what next when coming into a general election ?

cYp

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.
 

cyberianpan

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Bunreacht doesn't guarantee free speech at all.

Demot Ahern noticed this and made blasphemy an offence: http://www.politics.ie/justice/6423...osed-defamation-bill-goodbye-free-speech.html

Now he'll fix blasphemy: http://www.politics.ie/oireachtas/125768-ahern-proposes-autumn-referendum-blasphemy.html

But why not go the whole hog and actually give us free speech ? As is they could effectively outlaw election campaigns under certain circumstances ... do you trust the government with this power ?

Here's my OP from June 2007... sadly still relevant:

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
 

Squire

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Some very valid points from a genius no longer with us......

[ame="http://www.youtube.com/watch?v=gaa9iw85tW8"]YouTube- George Carlin -Rights and Privileges[/ame]
 

drkpower

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Compare to the US:
Comparing textual differences is of little value without examining the interpretation given to both over the years.

Both articles are 'living' and have gone through a number of different interpretations. There are still many restrictions to free speech in the Us, and there were many more in the 18t, 19th and first 3/4's of the last century.

In fact, our free speech clause has evolved far more in its first 70-ish years than the corresponding US provision.
 

cyberianpan

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Comparing textual differences is of little value without examining the interpretation given to both over the years.

Both articles are 'living' and have gone through a number of different interpretations. There are still many restrictions to free speech in the Us, and there were many more in the 18t, 19th and first 3/4's of the last century.

In fact, our free speech clause has evolved far more in its first 70-ish years than the corresponding US provision.
That's wot Corelli said - but my point has always been that the Dáil could choose to pass very draconian bills... indeed the first draft of the Blasphemy bill was pretty spooky

So the public order clause
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.
Would allow some very nasty legislation - which the SC couldn't avoid

After Ahern's (first draft) blasphemy debacle... I think we should go the whole hog and put a proper free speech article into Bunreacht

cYp
 

drkpower

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That's wot Corelli said - but my point has always been that the Dáil could choose to pass very draconian bills...
As could (and have) US legislators. My point is that a constitutional provision is only as good as those who interpret it - and that changes with the prevalings winds of culture/views/morality/understanding of the day.

So dont get wrapped up in one text versus another.
 

cyberianpan

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As could (and have) US legislators. My point is that a constitutional provision is only as good as those who interpret it - and that changes with the prevalings winds of culture/views/morality/understanding of the day.

So dont get wrapped up in one text versus another.
Absent legislation the issue of "no free speech that undermines the public order" wouldn't even arise

However if the government passed a new bill, in line with Bunreacht, as they did for Blasphemy, that would tie the SC's hands.

cYp
 

drkpower

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Absent legislation the issue of "no free speech that undermines the public order" wouldn't even arise

However if the government passed a new bill, in line with Bunreacht, as they did for Blasphemy, that would tie the SC's hands.
Not sure what you mean by the above.

Legislation can very rarely 'tie the SC's hands'. The consititution is (almost) all about balancing of rights, so even if the Gov enacted a law restricting freedom of sppech on the basis of 'public order' or 'morality', it could still be struck down as being unconstitutional if the SC believe that the balance it strikes is unconstitutional.
 

cyberianpan

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Not sure what you mean by the above.

Legislation can very rarely 'tie the SC's hands'. The consititution is (almost) all about balancing of rights, so even if the Gov enacted a law restricting freedom of sppech on the basis of 'public order' or 'morality', it could still be struck down as being unconstitutional if the SC believe that the balance it strikes is unconstitutional.
There was no workable offense of blasphemy until Dermot Ahern's Act.

The first draft of his bill was constitutional - and had that come into play: we'd have had blasphemy prosecutions. Lucky Bono, Gormley et al had it toned down.

Similarly if new statute was passed for this "Public order" stuff.. and it was in line with Bunreacht:
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.
Then things would not be so good - the SC can't ignore a constitutional Act (though if you recall they ruled on Blasphemy before , and said they could ignore it due to absence of adequate primary legislation that defined it properly)

cYp
 

drkpower

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Similarly if new statute was passed for this "Public order" stuff.. and it was in line with Bunreacht:

The point is that the SC decides if it is 'in line with' the Constitution. They decide what each piece of text means and whether a piece of legislation is consistent with that meaning. The SC's hands are very rarely tied.

Blasphemy is a good example - who would have thought that the offence of blasphemy, specifically voted for by the people, was actually not an offence at all, simply because it wasnt defined by the legislature. The SC could have easily defined it (like they have defined many constirutional words) - but they chose not to. Because they didnt want to!

the SC can't ignore a constitutional Act
No; but they decide if the Act is constitutional in the first place; not the Gov.
 

cyberianpan

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The point is that the SC decides if it is 'in line with' the Constitution. They decide what each piece of text means and whether a piece of legislation is consistent with that meaning. The SC's hands are very rarely tied.

No; but they decide if the Act is constitutional in the first place; not the Gov.
They do... and the first draft of the blasphemy bill was constitutional (and horrid)

Blasphemy is a good example - who would have thought that the offence of blasphemy, specifically voted for by the people, was actually not an offence at all, simply because it wasnt defined by the legislature. The SC could have easily defined it (like they have defined many constirutional words) - but they chose not to. Because they didnt want to!
They did... which is my point.

An Act ties their hands...

cYp
 

Foghorn

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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:


cYp
Actually it is a bit of misconception. The Bill of Rights only restricts Congress from restricting Freedom of Speech - it doesn't guarantee it. According to Political Philosopher and Professor at Harvard, Michael Sandel (Michael Sandel - Wikipedia, the free encyclopedia), the architects of the Constitution had an opinion that the Federal Govt should restrict only such items as absolutely necessary - Govt was a necessary evil if you will - but they didn't restrict Freedom of Speech at Federal level because they figured that it could be restricted by the states individually. That was the overriding principle of the Constitution, give to Federal Govt only the power it needed to do its job. But that did not mean that Freedom of Speech was guaranteed or that all speech was valued.

Just one of those quirks of history (of which there are many) that didn't work out as expected and became successful as a result of not being successful.

In fact from my reading on this matter I would surmise that the US founding fathers would not have deemed all speech worthy of equal value. They had a highly principled aspiration for Citizens. Their conception of Citizenship meant that Citizens must be of good moral character, educated, participate in a lifestyle that was consistent with a good life (they saw this as farming) and not be slaves to work (so as to have time to debate issues and not to be overly dependent on wages - a waged man is a slave by other means according to early Republican ideals).

It is a strange twist of history that any liberal could agree with US Republican principles of freedom as if they were entirely understood, and the judgemental nature of the Good Life that they expressed were clear, they represent entirely the politics that Liberals despise most.
 

Christine Murray

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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:


cYp

Interesting, I wonder if reducing Free-speech through legislative instruments is part and parcel of the
wholly disliked policies of modern-western governments? Both the UK and Irish governments have
encountered (and rightly) campaigns opposed to what they'd term *Reform*-

In the UK , PEN, most of the Media and bloggers/artists have been opposing Jack Straws risible attempt
(post Trafigura) to snip away at Free speech (cf Libel Reform Campaign - Free Speech Is Not For Sale)
and here Ahern enacted the Blasphemy clause under the 2006 Defamation legislation.

Neither was advised and both were opposed on multiple levels but they feel they have licence to do so!
So are defamation and libel laws cutting away our rights to Free-speech and indeed Publication ?

This link has discussion on the Irish problem : Referendum on blasphemy should revise free speech clause - The Irish Times - Mon, Mar 22, 2010
 
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drkpower

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They do... and the first draft of the blasphemy bill was constitutional (and horrid)
How do you know that....? The point is, you dont. Even though the constitution prescribes that blasphemy is an offence, the SC could decide that the Act elaborating on that offence is unconstitutional as it unduly and unreasonably interferes with other rights within or imported into our constitution (ie. unenumerated rights).

Your initial suggestion was that, based on a reading of the text of our free speech article (versus the US one), our protection of free speech is incomplete. The point (again....) is that you are missing the point. Any constitution limited in text can be (and is) interpreted in a myriad of ways. It is dependent on a number of other things, most notably the effect of the rest of the constitution. The really important factor is the views of the SC. They can turn a seemingly restrictive piece of text into a liberal feast - or vice versa.


They did... which is my point.

An Act ties their hands...
What Act tied their hands?
 

cyberianpan

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Will the Constitutional Convention dare to look at this issue, or will they stick to a narrow script ?

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
 


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