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Aaron McKenna: Regulate social media? No – we need a free speech law

There are troubling restrictions on our free expression in Ireland. We should follow the US and give it explicit protection – even if that means some vitriol.

Aaron McKenna

RECENT DEBATES ABOUT social media commentary have brought the question of freedom of speech in Ireland into focus. While politicians seem to be on a quiet path to try and dampen the vigour of their critics, it is worth pointing out that in Ireland there is no unqualified right to freedom of speech.

Article 40.6.1.i of our constitution guarantees liberty for the exercise of the right of citizens to express freely their convictions and opinions. So far so good. Unfortunately it heavily qualifies the statement with a ‘however’ in that this right “shall not be used to undermine public order or morality or the authority of the State.”

The next line in the same article is where our famous blasphemy law comes from:

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

All of these qualifications pretty much mean that freedom of speech in Ireland is whatever the government and judiciary of the day are having themselves. What precisely does “public order” mean? What is the “morality” of the state? Or its authority? What’s seditious or indecent?

Interpretation

There’s no constitutional appendix outlining what can and can’t be banned under these loose phrases. The judiciary tends to adopt a conservative view when interpreting these clauses, to pretty much mean that whatever the state bans in law is constitutional. After all, their job is to interpret the wishes of the framers, and the esteemed Eamon de Valera was not shy when it came to censorship and upholding the morals of the nation.

In general Ireland today is a tolerant and open democracy, where most of the censorship is self-imposed for the benefit of social normality or from fear of litigation, like the way we report on car accidents or former persons of interest to tribunals. There are however government curbs on freedom of speech as well as hangovers from our more uptight Archbishop McQuaid days.

The Minister for Finance, for example, has the power under the Credit Institutions (Stabalisation) Act 2010 to take some fairly extreme financial action and ban any open discussion of the details; or even publishing that such an order or direction has been made. Days after that act was passed €3.7 billion was transferred from the state to AIB with journalists kicked out from court before the matter was discussed. Whether or not other orders have been made with your and my money at stake I can’t tell you.

Even if a concerned citizen involved in the process were to leak the details, they could not be published without severe punishment falling on the heads of those involved.

Leaking

In terms of context rather than content, I’m reminded of the leaking of the Pentagon Papers and their publication in 1971. The papers were a classified Pentagon study of the war in Vietnam exploring how the US government had effectively lied about its involvement in that war and its escalation.

Though the papers were classified, the New York Times’ legal counsel argued that under the first amendment to the US constitution the press had a right to publish information significant to the people’s understanding of the Vietnam War. The Nixon administration sought an injunction against publication. If such a thing were to happen in Ireland, I’d say everyone would run for the hills and the publication in question would be in it deep.

In the US, the Washington Post joined in the publication and the US Supreme Court ruled that the US government did not have the right to censor the press on the matter. The court found that the right to free speech was more important to the security of the Republic than the “broad and vague” definition of security that the government wanted to preserve.

The Supreme Court Justice Brown actually made reference to a few of the things that are qualifying statements in our own constitution during his summary. He said that the framers of the first amendment specifically thought that strength and security came from providing “unabridged” freedom of speech, press, religion and assembly.

Regulation

There is presently open talk of regulating new media and social communication online in Ireland, and Declan Ganley has just won a landmark defamation case against a Twitter user. I’m not for the right of anyone to bully, harass or harm the reputation of anyone else freely and without any fear of consequence. I do believe however that in Ireland there is too much scope to stifle free speech, if not explicitly in law then from the bully pulpit or through the threat of legal consequences.

In the US the right to absolute freedom of speech allowed the publication of the Pentagon Papers. It also leads to some fairly vitriolic discourse in politics and, ultimately, it is the freedom enjoyed by people like the Westboro Baptist Church who picket funerals with slogans like “God Hates Fags”. The trouble with trying to ban this sort of distasteful stuff is that the net, ultimately, can be extended to catch other things. It was one of our former Attorney Generals during the campaign against Oireachtas inquiries who pointed out that a constitution is not designed to protect you from a benign government.

Ireland is a country where the Republic has been blighted by corruption and mismanagement at its very core; where we can hardly get adequate protections together for whistleblowers; and where the economy is in ruins – but the government can do things with your money and ban anyone from even saying it happened. I believe that instead of talking about regulation of communications, we should be opening up our own First Amendment-like rights.

Constitution

We should get rid of the qualifying statements from our Constitution on freedom of speech. It’s not for the state to decide if what you or I say is undermining public morality. It’s more seditious to the security of democracy to allow politicians and civil servants to decide if what you or I are saying is seditious. Too much free speech is stifled by the person with the deeper pockets who can pay their solicitors and senior counsels to run down to the High Court.

Yes, a completely free debate can become vitriolic. Then again, nobody takes the Westboro Baptist Churches of this world all that seriously for their abuse of their freedom. And in not regulating that freedom, you don’t run the risk of stifling somebody who has something important to say.

Aaron McKenna is a businessman and a columnist for TheJournal.ie. He is also involved in activism in his local area. You can find out more about him at aaronmckenna.com or follow him on Twitter @aaronmckenna. To read more columns by Aaron click here.

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