ODell Blasphemy Submission

8/14/2019 ODell Blasphemy Submission

1/11

School of Law,Trinity College,

Dublin 2,Ireland.

Mr Alan Guidon,Clerk to the Joint Committee on the Constitution,Houses of the Oireachtas,Kildare House,Kildare Street,Dublin 2.

Eanir 3, 2010

Re: Joint Committee on the Constitution

Dear Mr Guidon,

I was honoured to be invited to make a submission to the Committeeregarding freedom of expression in general and blasphemy in particular. Iwould therefore like to take this opportunity to make three brief points aboutthe constitutional protections of freedom of expression Article 40.6.1, the firstrelating generally to the structure of the Article, the second relating moreparticularly to blasphemy, and the third relating to any possible futurereplacement for Article 40.6.1(i).

Structure

There is a reasonably standard structure of analysis to be applied when astatute is challenged as contrary to a constituiton or similar text such as theEuropean Convention on Human Rights.

Assume a section of a statute, which a plaintff argues is a restrictionupon aprotected constitutional (or equivalent) right, such as the right to freedom ofexpression (as protected, for example, by Article 10 of the ECHR, the FirstAmendment to the US Constitution, Section 2(b) of the Canadian Charter ofRights and Freedoms, and Article 5 of the German Constitution). The Statewill then be called upon to iterate its reasonsfor the restriction, and they mustbe substantial in the European Court of Human Rights, they are describedas rising to the level of pressing social needs; in the Supreme Court ofCanada, they are described as sufficiently important objectives; and in the USSupreme Court, they are described variously as compelling or legitimate stateor governmental interests. In the ECHR, most rights come with acomprehensive (and complete) list of such legitimate reasons for restrictions(in Article 10, this list is to be found in Article 10(2)); in the US and Canada,there is no such enumnerated list, and it is for the State to argue for the


2/11

recognition of any given reason by the relevant Supreme Court. Finally, theCourt will subject the States claims as to the substance of their reasons forthe restriction to scrutiny or review for example, the Supreme Court ofCanada and the ECHR both require the restriction be proportionate to thelegitimate reason relied upon; whilst the US Supreme Court applies severalstandards of review which are broadly similar in application and outcome tothe proportionality test.

Hence, if there is a restrictionupon the rightto freedom of expression, theState must have a substantial reasonto justify the restriction which canwithstand scrutiny or review. The four stages of this common pattern ofanalysis can be applied to Article 40.6.1(i), though with difficulty.

Assume a section of a statute, which a plaintff argues is a restrictionupon therightto freedom of expression as protected by Article 40.6.1(i). Now, the rightto freedom of expression in other constitututional documents is admirablyclear: in Canada, section 2 says that Everyone has the following fundamentalfreedoms: (b) freedom of thought, belief, opinion and expression, includingfreedom of the press and other media of communication; in the ECHR, Article10(1) says that Everyone has the right to freedom of expression. This rightshall include freedom to hold opinions and to receive and impart informationand ideas without interference by public authority ; and the US, the FirstAmendment refers to freedom of speech, or of the press. These areeminently succinct and coherent provisions. But in Ireland, Article 40.6.1(i)refers to the right of citizens to express freely their convictions and opinions;not to put too fine a point on it, this language has tied the courts up in knots,and decisions which confined its protection to a narrow literal reading ofconvictions and opinions (see AG v Paperlink[1984] ILRM 373) have onlyrecently been transcended by a more purposive protection of freedom ofexpression (see Irish Times v Ireland[1998] 1 IR 359 (SC), Murphy vIndependent Radio and Television Commission[1999] 1 IR 12 (SC), andMahon v Post Communications[2007] 2 ILRM 1; [2007] IESC 15 (29 March2007)).

If our hypothetical plaintiff manages to establish that Article 40.6.1(i)potentially protects the expression in question, it will then be for the State toestablish its (substantial, pressing, compelling, sufficiently important) reasonsfor the restriction. Unlike either the ECHR (which iterates a closed list of suchreasons) or the US and Canadian provisions (which allow the State to arguefor the recognition of a specific reason in a given case, and in effect thereforehave an open list), the effect of Article 40.6.1(i) from this perspective isunclear. The best that can be said that is that it gives rise to a partial (orperhaps mixed, certianly neither completely closed nor completely open) listof substantial reasons for the restriction. On its face, the Article mentions

public order (twice), morality (twice), the common good (arguably), theauthority of the State, blasphemy, sedition, and indecency; and these could


3/11

be presented as examples of specific reasons upon which the State could relyto justify restrictions upon the right to freedom of expression. However, unlikethe position with Article 10(2) of the ECHR, which contains a closed list ofsuch reasons, the courts have shown no signs of treating this list from Article40.6.1(i) as closed (indeed, in Murphy v IRTC, the Supreme Court acceptedreasons to justify restrictions which are not to be found in the text of Article40.6.1(i)). As a consequence, it is at best a partial list of reasons whichcould justify restrictions upon speech.

Even so, there are several problems with this analysis. The language in whichArticle 40.6.1(i) expresses its reasons for restrictions upon speech is, to saythe least, unusual. For example, in similar provisions in other constitutional orsimilar documents, the rights are stated first, and the restrictions comeafterwards. But, in the Irish context, before we get to the rights protected byArticle 40.6.1 (expression, assembly, and association), we are told that theyare guaranteed to citizens subject to public order and morality. Again, inwhat must be a rare provision in a speech clause in the constitution of ademocratic society, Article 40.6.1(i) concludes with three constitutional crimes.All of this bears contrast with Article 10 of the ECHR, where the right is statedin Article 10(1) and the reasons for restriction are stated in a straightforwardway in Article 10(2). Moreover, the Article 40.6.1(i) reasons are especiallyparticular, whereas the Article 10(2) ECHR reasons are cast at a much higherdegree of generality. Hence, since the matters iterated on the face of Article40.6(1)(i) which might be seen as reasons for restrctions are not reallyexpressed in those terms, it is only with difficulty that the courts might come tosee them in this way; and in the meantime, we must all muddle through with adisorderly Article 40.6.1(i).

Finally, if our hypothetical plaintiff manages to establish that Article 40.6.1(i)potentially protects the expression in question, and if the State manages toestablish a (substantial, pressing, compelling, sufficiently important) reasonfor the restriction, the Court will then subject that reason to reviewor scrutiny.The US Supreme Court has generated several standards for such review; butthe Supreme Court of Canada and the ECHR have both settled on the samesingle standard. It is a threefold standard. First, the restriction must berationally connected with, and carefully designed to give effect to, the reasonfor the restriction. Second, the restriction must impair the right in question aslittle as possible. Third, there must be proportionality (an appropriatecorrespondence) between the effects of the restriction and the reason beingrelied upon to justify it. The application of this standard in the context of Article40.6.1(i) is unproblematic: following the Canadian and ECHR examples, theIrish Supreme Court adopted it in Murphy v IRTC.

In short, therefore, as a matter of principle, if there is a restrictionupon therightto freedom of expression, the State must have a good reasonto justifythe restriction which can withstand review(on a proportionality test).


4/11

Unfortunately, it is not easy to make Article 40.6.1(i) conform with this pattern.Several consequences follow of which two are particularly relevant to thissubmission, one relating to the structure of a possible replacement for Article40.6.1(i) (which is the topic of the third part of this submission), and onerelating to the crime of blasphemy in the last sentence of that Article (which isthe topic of the next part of this submission).Blasphemy

In this second part, I would like briefly to apply the insights derived from theabove discussion of the structure of Article 40.6.1(i) to the particular context ofblasphemy.

In this discussion, I will leave aside several matters of which the Committee isalready undoubtedly well aware:

first, the current state of constitutional blasphemy law after the decisionof the Supreme Court in Corway v Independent Newspapers[1999] 4IR 484 (SC) all but rendering the last line of Article 40.6.1(i) aconstitutional dead letter;

second, the historical evolution of modern blasphemy law as describedby the Law Reform Commissions 1991 Consultation Paperand Reporton the Crime of Libel and by my colleague Dr Neville Cox in hismagisterial Blasphemy and the Law(Edwin Mellen Press, NY, 2000);

third, the long line of official reports which have called for the abolitionof the crime of blasphemy at Irish law and/or its excision from the

Constitution (see, eg, Law Reform Commission Report on the Crime ofLibel(LRC 41-1991) p 12, para 21; Report of the Constitution ReviewGroup(The Stationery Office, Dublin, 1996) p 274; Report of the LegalAdvisory Group on Defamation(Dublin, 2003) pp34-35, para 59 givingrise to section 34 of the Defamation Bill, 2003 (which is being debatedin the Seanad today on the Bills Report and Final Stages even as Ibelatedly complete this submission);

fourth, only a very narrow version of the common law crime ofblasphemy is compatible with Article 10 of the European Convention onHuman Rights, according to a Divisional Court of the High Court in

England in R (on the application of Green) v The City of WestminsterMagistrates Court[2007] EWHC 2785 (Admin) (05 December 2007)(leave to appeal to the House of Lords refused: 5 March 2008), findingthat Jerry Springer. The Operawas not blasphemous; and

fifth, the vote of the House of Lords on 5 March 2008 to include a newclause 129 in the Criminal Justice and Immigration Bill abolishing thecommon law offences of blasphemy and blasphemous libel at Englishlaw (Lords Hansard5 March 2008, cols 1118-1148).

Instead, I would like to focus on the very existence and express terms of the

last line of Article 40.6.1(i), which provides that


5/11

The publication or utterance of blasphemous, seditious, or indecentmatter is an offence which shall be punishable in accordance with law.

It is extraordinary that a constitution of a democratic state should create aconstitutional speech crime, but in that sentence Bunreacht na hireanncreates not one but three of them (not merely blasphemy, but sedition andindecency as well)! It may very well be that there are good reasons forregulating such types of speech, but creating a constitutional crime is simplynot the way to do so. It is a bizarre provision, which sits uneasily with the restof Article 40.6.1(i). For all its faults, the earlier elements of the Articleconstitute in essence a general protection of freedom of expression (theSupreme Court has increasingly explained the Article in such terms; see IrishTimes v Ireland, Murphy v IRTC, and Mahon v Post. The last sentenceradically alters, even profoundly unbalances, the Article, by altering its focusand orientation away from the protection of freedom of expression andtowards the cumbersome and obsolescent language of undefined criminaloffences. Indeed, at least in the blasphemy context, it unnecessarily creates aconstitutional crime constructed upon a word which, according to theSupreme Court in the Corwaycase, is in Constitutional terms undefinable.Moreover, such a peculiar provision is not even necessary: a blasphemy lawcould be consistent with the remainder of Article 40.6.1(i) (or an equivalentprovision) without the need for the unwarranted creation of an anomalousconstitutional crime.

Let us assume, for a moment, that there are good reasons for the State toregulate blasphemous speech; let us even assume that there are goodreasons for the State to do so by means of the criminal law. Even grantingthose assumptions, it is quite clearly misconceived for such criminal regulationto form part of the constitutional text. In essence, constitutions should speakat a relatively abstractly level, sketching headlines and general principles,rather than descending to specifics and detail. The precise enumeration of arequirement for crimes of blasphemy, sedition and indecency runs contrary tothis general principle. Instead, constitutional provisions should seek toenumerate at a high degree of generality the reasons underlying why speechshould be restricted, much as Article 10(2) of the ECHR does. Hence, in thecontext of blasphemy, it can be argued that the justification for such a law lieseither in historical public order concerns or perhaps in the rights of thereligiously observant to the free exercise of their religion. In which case, itshould be these more general concerns which ought to be recorded on theface of the constitutional text. As was explained in the first part of thissubmission, this principled approach is adopted in texts such as the EuropeanConvention on Human Rights, which protect freedom of expression in asimple introductory clause, and then iterate reasons which can justifyrestriction. Such iterated reasons include, for example, the prevention ofdisorder and crime, and the protection of the rights of others; and thesematters are more than capable of providing an underlying justification for


6/11

blasphemy and similar offences. If Bunreacht na hireann is to allow foroffences such as blasphemy (or, for that matter, sedition or indecency) thenthis is how it should do so.

The merits of such a general approach are underscored by the Corwaycase,which demonstrates that a more particular approach is unworkable in aconstitutional context. Moreover, such general grounds for restrictions wouldallow any necessary work to be done, and done more efficiently, by broaderlegislation such as the Prohibition of Incitement to Hatred Act, 1989.

And this, in turn, raises the wisdom of attempting any statutoryregulation ofblasphemy. The practical social pressures which might make such legislationnecessary are not obvious to me, and I will leave the extent to which theymight nevertheless be found to the Committee. And if the Committee doesdecide that such statutory regulation is necessary, then it will needappropriateconstitutional backing. For the reasons outlined above, it is clearthat the current wording of Article 40.6.1(i) does not provide that. This, then,raises the question of the structure of a possible replacement for Article40.6.1(i).

Replacement

Given how far Article 40.6.1(i) deviates from the standard pattern of analysisset out in the first part of this submission, it would make sense for theCommittee to recommend its deletion and replacement with a moreappropriately adapted clause. However, unlike the Constitution ReviewGroup, I do not think that Article 40.6.1(i) should be replaced simply by Article10 of the European Convention on Human Rights. To be sure, that Article is afine piece of drafting, but many of its advantages are the product ofinterpretation by the European Court of Human Rights, and a new articleprotecting freedom of expression should seek to take account not only of thetext of the Article but also of its interpretation by the Court, as well as othersubsequent developments in case law and theory. Rather, I suggest that thefour questions of the standard pattern of analysis outlined above should guidethe process of constructing a replacement for Article 40.6.1(i). We can leavethe challenged restrictionto one side for the time being, and proceed straightto the definition of the right.

I should say at one that it would be thoroughly misguided to begin a modernrestatement of a right to freedom of expression by making it subject torestrictions (such as public order or morality) before even stating the right; inmodern best practice, the right ought to be stated first, and restrictions shouldfollow; and that is the approach I will take here.

As to the definition of the right in question, we have already seen that Article40.6.1(i) is altogether unsatisfactory in this regard it is only with difficulty thatthe courts have been able to bring forms of expression beyond literal


7/11

convictions and opinions within its ambit. By contrast, Article 10(1) of theECHR provides more expansively that Everyone has the right to freedom ofexpression. This right shall include freedom to hold opinions and to receiveand impart information and ideas without interference by public authority .But even this is capable of improvement in the light of the still morecomprehensive section 2(b) of the Canadian Charter, protecting freedom ofthought, belief, opinion and expression, including freedom of the press andother media of communication. The oldest speech protection of all, the FirstAmendment to the US Constitution protects freedom of speech, or of thepress. And section 14 of the New Zealand Bill of Rights provides thatEveryone has the right to freedom of expression, including the freedom toseek, receive, and impart information and opinions of any kind in any form.Nor must we forget Article 40.6.1(i)s right to expressly freely convictions andopinions (even though this wording has caused its fair share of problems). Acombination of these various provisions could provide something like:

Everyone has the right to freedom of thought, belief, speech and

expression. This right includes the freedom to seek, receive, hold

and impart convictions, opinions, information and ideas of any kind

in any form without interference by public authority. This right also

includes the freedom of the press and other media of

communication.

Once the right has been adequately defined, the next question concerns the

reasonswhich could justify restrictions upon it, provided that any enumeratedreasons are substantial, pressing, compelling, or sufficiently important. Forexample, Article 10(2) provides a comprehensive and complete (and thereforeclosed) list of such legitimate reasons for restrictions:

in the interests of national security, territorial integrity or public safety,for the prevention of disorder or crime, for the protection of health ormorals, for the protection of the reputation or the rights of others, forpreventing the disclosure of information received in confidence, or formaintaining the authority and impartiality of the judiciary.

This would provide a more than adequate starting point for the Committee inseeking to generate a list of legitimate reasons for restrictions appropriate tothe Irish context, but it should not unthinkingly be the end point. For example,it might be modified by the addition or substitution of some of the potentialgrounds for restriction mentioned in Article 40.6.1(i).They include public order(twice), morality (twice), the common good (arguably), the authority of theState, blasphemy, sedition, and indecency. And most of them are covered byterms in Article 10(2). Hence, the Irish public order is reflected in the ECHRprevention of disorder; the Irish public morality and indecency are better

reflected in the ECHR protection of morals; the Irish authority of theState and sedition are better reflected in the ECHR national security and


8/11

territorial integrity; and the Irish blasphemy is one aspect of the ECHRpublic safety, the prevention of disorder, and the protection of the rightsof others. There is, however, no ECHR equivalent of the Irish constitutionalconcept of the common good, a concept which is deeply embedded in theIrish constitutional order. Though, for myself, I would not include it in a list oflegitimate reasons for restricting speech, the Supreme Court relied upon it inMurphy v IRTC, and the Committee might therefore decide to include it at anappropriate point in the above list.

Furthermore, experience and caselaw (at the Irish, European, or internationallevels) might generate other candidates for inclusion, provided that they aresimilarly substantial, pressing, compelling, or sufficiently important, andexpressed at an appropriate level of abstraction. An example might be thereasonable expectation of privacy formula increasingly being relied upon incommon law courts as the abstract justification for privacy laws, and thatmight be added to the confidentiality clause of Article 10(2). Moreover, theCommittee might decide that some of the language in Article 10(2) isinappropriate to the Irish context, and might therefore decide to excise somepart of it (though nothing obvious occurs to me). Finally, here, the text shouldprovide expressly whether the list of reasons is closed or not. For my ownpart, I would recommend that the list should be expressed to be closed, byincluding a formula to that effect somewhere in the clause introducing the listof substantial or pressing reasons for restrictions. A combination of thesevarious considerations could provide a list of substantial, pressing,compelling, or sufficiently important reasons for restricting freedom ofexpression along the following lines:

in the interests of national security, territorial integrity, public

safety or the common good, for the prevention of disorder or crime,

for the protection of health or morals, for the protection of the

reputation or the rights of others, for preventing the disclosure of

information entitled to a reasonable expectation of privacy or

otherwise received in confidence, or for maintaining the authority

and impartiality of the judiciary.

Once the right has been adequately defined, and the reasons which couldjustify restrictions upon it adequately enumerated, the next question concernsthe standard of reviewto be applied to those reasons. In Canada, section 1 ofthe Charter guarantees its rights and freedoms subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a freeand democratic society; whilst in the ECHR, Article 10(2) begins that theexercise of the freedoms in Article 10(1) since it carries with it duties andresponsibilities, may be subject to such formalities, conditions, restrictions orpenalties as are prescribed by law and are necessary in a democratic society

. Note that the proportionality test referred to above is not mentioned inthese provisions; that is because it has been spelled out by the Supreme


9/11

Court of Canada from the requirement that restrictions be demonstrablyjustified and by the ECHR from the requirement that restrictions benecessary. One obvious improvement on both of these texts would be tostate the proportionality standard expressly on the face of the text.On the other hand, both insist that the restrictions should be prescribed bylaw, and that formula ought to be retained. The ECHR reference to dutiesand responsibilities has often been relied upon by the European Court ofHuman Rights and therefore ought to be included; but something like theCanadian reference to reasonable limits (or, reflecting the ECHR influence,necessary limits) seems preferable to the more cumbersome ECHRformalities, conditions, restrictions or penalties. All in all, the review clausemight provide something like:

The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such necessary limits as are

prescribed by law and proportionate only to

The remainder of the clause would then set out the legitimate and substantialreasons for restriction already discussed; and the insertion of the word onlyhas the welcome effect of confirming that the list is closed.

Finally, the above discussion avoids the trans-border (regardless offrontiers) and licensing (of broadcasting, television or cinema enterprises)elements of Article 10 ECHR, since these are not elements of the existingArticle 40.6.1(i). Similarly, the discussion has avoided the quagmire that is thecryptic middle sentence of Article 40.6.1(i) (The education of public opinion organs of public opinion rightful liberty of expression ), because theimport of the whole sentence is unclear, the phrase organs of public opinionis curiously dated, and its essence is already included in the clarificationabove that the right should also includethe freedom of the press and othermedia of communication.

Combining the three suggested drafts above, a starting point for areplacement Article 40.6.1(i) might look like:

Everyone has the right to freedom of thought, belief, speech and

expression. This right includes the freedom to seek, receive, hold

and impart convictions, opinions, information and ideas of any kind

in any form without interference by public authority. This right also

includes the freedom of the press and other media of

communication.

The exercise of these freedoms, since it carries with it duties and

responsibilities, may be subject to such necessary limits as are

prescribed by law and proportionate only to the interests ofnational security, territorial integrity, public safety or the common


10/11

good, the prevention of disorder or crime, the protection of health

or morals, the protection of the reputation or the rights of others,

preventing the disclosure of information entitled to a reasonable

expectation of privacy or otherwise received in confidence, or

maintaining the authority and impartiality of the judiciary.

It will be noticed that this draft does not include a direct reference toblasphemy. This is as it should be. On the one hand, the absence of thestark diktat to the effect that blasphemy shall be an offence punishable by lawwould allow Irish law to take the advice of reform bodies down the years andabolish the crime of blaphemy if it so desired (much as both it and the UK areat present seeking to do). On the other hand, if the common law of blasphemywere to be revived, or if a comprehensive statute were to replace it, then provided it were proportionate it could be justified on the basis of publicsafety, the prevention of disorder or the rights of others in the above draft.In other words, in the blasphemy context and apart at all from its otherbenefits, a recast Article 40.6.1(i) would not tie Irish law down to one positionor the other, but would instead provide welcome freedom of movement toallow our law to evolve to meet changing social and religious mores as theydevelop over time.

Finally, I have in this submission largely concentrated on sturctural issuesrelating to Article 40.6.1(i) in general and to blasphemy law in particular. Ihave not taken sides on the question of whether Irish law ought to have acrime of blasphemy or something similar. Rarther, I have argued that even if itwere to do so, that crime should not be expressly stated on the face of theconstitution; I have argued for a replacement text for Article 40.6.1(i) whichwould reflect both modern constitutional theory and international best practice;and I have demonstrated that this replacement text would afford Irish law thefreedom to adopt a blasphemy law or not, as it chooses.

However, for what it is worth, I would like to close this submission with a morepersonal observation. I was a member of the Advisory Group whose Reportled to the Defamation Bill, 2003 which is currently wending its way through theHouses of the Oireachtas (it is having its Report and Final Stages in theSeanad even as I finish this submission). I favoured then, and favour now,section 34 of the Bill (abolishing the common law crimes of blasphemous,seditious and criminal libel). Many other submissions will doubtless havepresented the arguments in favour of the abrogation of the crime ofblasphemy, and I would like to add my voice to theirs in urging the Committeeto recommend this course. The enactment of section 34 of the Defamation Billwould constitute a good start; supporting this development with the deletion ofthe last line of Article 40.6.1(i) would be better; but the best means to achievethis end would be a combination of the statutory abolition of the crime ofblasphemy and the replacement of Article 40.6.1(i) with a more suitable text(such as the one suggested in this submission). A modern constitutional


11/11

democracy which values freedom of expression deserves no less.

I am grateful to the Committee for giving me the opportunity to make thissubmission, and I remain available to assist the Committee with any matterwhich might arise concerning it.

Yours sincerely,

Dr Eoin ODellFellow, Trinity College DublinSenior Lectuer and Director of Research, School of Law, TCD.

ODell Blasphemy Submission

Documents

Transcript of ODell Blasphemy Submission