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.Eanáir 3, 2010

Re:

Joint Committee on the ConstitutionDear 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

restriction

upon 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

reasons

for 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

recognition of any given reason by the relevant Supreme Court. Finally, theCourt will subject the State’s 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

restriction

upon the

right

to freedom of expression, theState must have a substantial

reason

to 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

restriction

upon the

right

to 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 of“convictions 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 v Independent Radio and Television Commission

[1999] 1 IR 12 (SC), and

Mahon 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)

reasons

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

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

review

or 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

restriction

upon the

right

to freedom of expression, the State must have a good

reason

to justifythe restriction which can withstand

review

(on a proportionality test).