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Article 40.6.1(i) finally gets some teeth!?

Luminarium, Dublin, 15 Jan 2007Various news services (BreakingNews.ie | Ireland.com | RTÉ) report that Mr Justice de Valera today struck down section 3 of the Vagrancy (Ireland) Act 1847 (as amended by the Public Assistance Act, 1939), much to the chagrin of the perpetually angry JC Skinner. That section made begging in a public place an offence, and de Valera J struck it down as a disproportionate infringement upon the right to freedom of expression in Article 40.6.1(i) of the Constitution and the unenumerated right to communicate located in Article 40.3.2.

Perhaps this will be the spur to dust down the Law Reform Commission’s 1985 Report on Vagracy, as part of a thorough-going reform of an area of the law largely untouched since Victorian times? More importantly, as far as I know (and the High Court in The State (Lynch) v Cooney [1992] IR 337 notwithstanding) this is the first time that a section of an Irish Act has been struck down on freedom of expression grounds. If so, that makes today a red letter day in Irish constitutional history: the day upon which Article 40.6.1(i) finally gets some teeth.

I’m very excited. It will certainly feature in my forthcoming paper on the baleful influence of the right to communicate on the lackluster development of the right to freedom of expression at Irish law. However, a full assessment must await sight of the judgment itself (as I have had occasion to muse heretofore: why, oh why, can we not electronically publish decisions on the same day, as every other major common law jurisdiction now does?) and if anyone reading this can supply the text, I should be very grateful indeed.

Update (16 March 2007): As well as being World Consumer Rights Day, yesterday was also the day when the Irish Book Awards were announced (Awards website | Irish Indepdendent | Irish Times | RTÉ | shortlist), a rather fitting day, I think, for the right to freedom of expression finally to come of age at Irish law – on which, there is much coverage today: Ann O’Loughlin (Irish Independent (free reg req’d)) | Carl O’Brien and Mary Carolan (both Irish Times (sub req’d)). As that last article makes clear:

The judge had heard the challenge early last year and reserved judgment. Outlining the thrust of his findings, he said the full judgment would be made available within days.

A online search discloses that, when it was first heard in February last year, the case made it at least into a report in the Irish Emigrant; and the fact that the judge has not yet made the full judgment available may explain in part why it is not yet online; but the general point about how slowly such things move in Ireland still applies.

Update (17 March 2007): There is a reference to the decision on Mirror of Justice, a (largely US) blog dedicated to the development of Catholic legal theory.

Update: the decision was eventually made available online at Dillon v DPP [2007] IEHC 480 (4 December 2007)).

17 Responses to “Article 40.6.1(i) finally gets some teeth!?”

  1. Daithí says:

    Obviously I haven’t read the decision, due to the fact that it takes a month to copy a Word document from a computer to a server (they obviously send it by horse and cart). However, it seems quite odd that the long-promised first striking down of an Act (albeit essentially a pre-1937 one, as the 1939 amendment didn’t do all that much) is for something that is not typically seen (by academics or by judges) as ‘high-value; speech. Given that the vagrancy law has already run into constitutional trouble (King v AG, early 80s), I’m concerned that this might not be a detailed exploration of freedom of expression and communication issues after all….

  2. Eoin says:

    King v AG is reported at [1981] IR 233. And I agree with you that I may be counting chickens before they have come home to roost (or something …). Wouldn’t it be ironic: having spent my ‘Freedom of Expression’ course arguing that the courts were wrong not to strike down the relevant legislation in, say, State (Lynch) v Cooney (above) or Murphy v IRTC Murphy v IRTC [1999] 1 IR 26 (see its impact here), I might now end up arguing that de Valera J was wrong to strike a section down here!? But that will have to wait until the horse has had his oats, and drawn the cart with the floppy disk from one compuer to another.

    Rather more seriously, though, whilst begging isn’t universally regarded as exemplifying high value political speech usually understood as within the core of freedom of expression in liberal democracies, there is nevertheless a respectable free speech argument to be made here (see eg Susan M Schweik “Begging the Question: Disability, Mendicancy, Speech and the Law” Narrative 15.1 (2007) 58-70; Jordana Schreiber “Begging Undergound – The Constitutionality of Regulations Banning Panhandling in the New York City Subway System” 27 Cardozo L Rev 1517 (2005-2006) (Hein; sub req’d); Tamara Walsh “Defending Begging Offenders” [2004] QUTLJJ 4 (also here, and here (Hein)); Daniel Mark Cohen “Begging the Court’s Pardon: Justice Denied for the Poorest of the Poor” 14 St Thom L Rev 825 (2001-2002) (Hein); Brian C Thomas “Examining a Beggar’s First Amendment Right to Beg in an Era of Anti-Begging Ordinances: The Presence and Persistence Test” 26 U Dayton L Rev 155 (2000-2001) (Hein); Ethan Fishman “Loper, Begging and Civic Virtue” 46 Ala L Rev 783 (1994-1995) (Hein); Fay Leoussis “The New Constitutional Right to Beg–Is Begging Really Protected Speech” 14 St Louis U Pub L Rev 529 (1994-1995) (Hein); Jonathan Mallamud “Begging and the First Amendment” 46 S C L Rev 215 (1994-1995) (Hein); John T Haggerty “Begging and the Public Forum Doctrine in the First Amendment” 34 B C L Rev 1121 (1992-1993) (Hein); Paul G Chevigny “Begging and the First Amendment: Young v New York City Transit Authority 57 Brook L Rev 525 (1991-1992) (Hein); Helen Hershkoff & Adam S Cohen “Begging to Differ: The First Amendment and the Right to Beg” 104 Harv L Rev 896 (1990-1991) (Hein); Charles Feeney Knapp “Statutory Restriction of Panhandling in Light of Young v. New York City Transit: Are States Begging out of First Amendment Proscriptions” 76 Iowa L Rev 405 (1990-1991); Elizabeth McGlynn “Constitutional Law – A Denial of First Amendment Protection for Begging in the Subway” 25 Suffolk U L Rev 805 (1991) (Hein); Patrick B Gonzalez & Robert P Kuehn “Begging: Free Speech or Poor Conduct” 5 St John’s J Legal Comment 239 (1989-1990) (Hein); Gregory S Walston “Examining the Constitutional Implications of Begging Prohibitions in California” 20 Whittier L Rev 547 (1998-1999) (Hein)), even where the begging is not passive (as it seems it was in the Irish case discussed above) but aggressive (see eg Charles Mitchell “Aggressive Panhandling Legislation and Free Speech Claims: Begging for Trouble” 39 N Y L Sch L Rev 697 (1994) (Hein); Robert Teir “Maintaining Safety and Civility in Public Spaces: A Constitutional Approach to Aggressive Begging” 54 (2) Louisiana Law Review 285-338 (1993) (pdf) (Hein)).

  3. Eoin says:

    In answer to a few questions off blog, the image is an interior shot of the Luminarium, an art installation currently in George’s Dock, Dublin as part of the St Patrick’s Festival 2007. I took it on the afternoon of 15 March 2007 with the camera in my phone, without a flash, and the grainy quality only adds to its mesmerising psychedelia, I feel.

  4. Daithí says:

    What a wonderful list of articles. I think I’d read one out of the whole lot! (Schreiber). All I can say in response is that I hope the judge in this case read and referred to some of them.

  5. John O'Dowd says:

    It’s worth looking at the report in today’s Irish Times, which makes the basis of the decision a little clearer (it’s here, for those who subscribe)

    For example, yesterday’s Breaking News report:

    “[Dillon] also argued that a mandatory prison sentence of up to three months for begging interferes with the freedom of the judiciary and breaches the separation of powers between the legislature and judiciary.

    Mr Justice Éamon De Valera rejected this argument . . .”

    is made a little clearer today:

    ” . . . the judge rejected additional claims by Mr Dillon that the section was unconstitutional because it provided for a mandatory prison term of up to one month for begging. He ruled that judges had a discretion in relation to the sanction imposed and that the provision for a sentence of up to one month was not a mandatory sentence.”

    De Valera J is reported as having “said the full judgment would be made available within days.” Let’s see.

    As the Law Reform Commission Report (pars 9.2-9.3) pointed out, Pointon v Hill (1884) 12 Q.B.D. 306 and Mathers v Penfold [1915] 1 K.B. 514, established, as far as the English courts are concerned, the principle that the equivalent English provision “was directed against a particular habit or mode of life [and i]t was therefore necessary to show that the defendant had definitely come to the conclusion that he did not wish to work and that he had adopted the calling of a beggar.” As the Commission remarked, this interpretation might leave s 3 particularly vulnerable to a challenge based on King v AG [1981] I.R. 233.

    It will be interesting to see on what basis De Valera J ranged more widely in his reasoning, if he did.

  6. Eoin says:

    Thanks, John, for this. I agree that there’s more in today’s Times, and I’m looking forward to de Valera J’s judgment. In the meantime, do you agree that this is the first time a section of an Act has been struck down on foot of Art 40.6.1(i)?

  7. Eoin says:

    Some more comment on the reports: Is begging free speech? and Why is it so important? (the latter of which also comments on the same issues that I raised in So, farewell then, Norman French).

  8. […] have recently commented on this blog that the right to freedom of expression Article 40.6.1(i) has finally got some teeth!?. That process continued today in the Supreme Court, where Fennelly J uttered the line used as the […]

  9. […] time? Moreover, now that the free speech guarantees in the Constitution are finally beginning to get some teeth because the right a free press to communicate information without let or restraint is intrinsic to […]

  10. […] from that panel. Moreover, even though speech protections under the Irish Constitution are finally getting some teeth, I doubt whether they are sharp enough for the Irish Supreme Court to reach the same conclusion as […]

  11. Eoin says:

    Here’s an op-ed from the New York Times (17 June 2007):

    Freedom to Want

    By MICHAEL C. DORF

    WHEN Eric Hoffstead, a homeless panhandler, asked a New Rochelle police officer for a dollar, he was promptly arrested for violating the state loitering law, which prohibits begging. But Mr. Hoffstead took issue with the charge, asking his court-appointed lawyer to challenge his arrest on the ground that asking for money is a form of speech protected by the First Amendment.

    Last month, he won his case. Judge Gail Rice of City Court dismissed the indictment, as well as a charge for possession of drugs, which the police would not have found on Mr. Hoffstead if he hadn’t been detained for panhandling.

    Unfortunately, that is not the end of the matter, not only because the state may appeal the case but also because police officers throughout the state frequently arrest panhandlers — nearly 2,400 in the past decade. Even in New York City, where a federal appeals court specifically invalidated the loitering law nearly 14 years ago, the police have continued to enforce it, prompting more lawsuits against the city.

    Further appeals, perhaps even to the United States Supreme Court, would clarify the legal status of the begging prohibition, but that could take years. A simpler and more democratic solution would be for the New York State Legislature simply to repeal the law. Peaceful begging may be a nuisance but it poses no public danger. Moreover, a beggar’s extended hand communicates a constitutionally protected message, even if it is one that many passers-by might rather avoid.

    New York has prohibited loitering since Colonial times. The current version of the state law brands as a criminal anyone who “loiters, remains or wanders about in a public place for the purpose of begging.� The first significant legal challenge to this provision came in 1990, when two indigents, Jennifer Loper and William Kaye, brought a federal class action lawsuit against the New York Police Department. The judge ruled in their favor in 1992, and a year later the federal appeals court affirmed that victory.

    The appeals court opinion declared that peaceful begging is a form of speech protected by the First Amendment and that while the police are entitled to protect the public from aggressive panhandling and begging in enclosed spaces like the subways, the blanket prohibition on begging is too broad.

    Because lower federal court decisions are not binding on state courts, however, the 1993 class action ruling applied only to enforcement in New York City. Needless to say, the possibility that a law might be found unconstitutional in federal court and constitutional in state court can lead to confusion, even chaos.

    Yet the problem with the law is quite simple. Just as the peaceful solicitation of funds for charitable organizations is a form of free expression — as the United States Supreme Court has repeatedly held — a beggar’s peaceful solicitation of funds for his own use is a form of speech. No principled distinction can be drawn between the two.

    The blanket prohibition on begging is also unnecessary. In its defense against the earlier class action, the New York Police Department cited the theory fashionable at the time that low-level signs of disorder — things like broken windows, graffiti and begging — breed more serious crime. The federal courts rejected the argument in the begging context then, and subsequent events have shown that whatever truth there may be to the “broken windows� theory when it comes to subway fare-beating and “squeegee men,� overly broad loitering laws are not needed to maintain public order.

    After the United States Supreme Court rejected a broken windows argument in a 1999 case involving Chicago’s gang loitering ordinance, the nationwide decline in violent crime continued for several years.

    By invoking a law that was long ago declared unconstitutional in federal court, the prosecutors of Eric Hoffstead risk fomenting friction between federal and state courts and statewide confusion. The Legislature should avoid these evils and, more important, vindicate the First Amendment by repealing the anti-begging law. No court would be entitled to second-guess that decision.

    Michael C. Dorf, a law professor at Columbia, is the author of “No Litmus Test: Law Versus Politics in the 21st Century.�

  12. […] and here), this is probably the case. But if the Irish protections of freedom of expression are gaining some teeth, could there come a time when an Irish equivalent of Cohen might allow defendants to wear their […]

  13. […] blogged about that case based on the newspaper reports last March, I’m still waiting for it […]

  14. […] Eoin blogged about it in an important and extremely useful post-with-extra-stuff-in-the-comments, here. In a comment at the time, I joked that it would take a month for it to go online (how wrong I was […]

  15. […] and the courts’ administration can ensure the rapid electronic publication of judgments, why oh why oh why oh why can Irish judges and the Courts’ Service not be able to do the same? […]

  16. […] Act, 1976 (also here), ultimately repealed in 2001] (discussed on this blog here | here | here). On foot of the powers in that section, the Minister had proscribed the access of paramilitaries […]

  17. […] My third problem with Senator Daly’s Bill is that it is censorship masquerading as copyright. Censorship is an ugly word for an ugly concept; it is the suppression or prohibition of speech that a government considers unacceptable. Sometimes, it is overt and justifiable (though still ugly), as where the Offences Against the State Act, 1939 prohibits sedition on the grounds of national security. Sometimes, it is covert and unjustifiable (and even uglier), as where vague and expansive prohibitions against begging in the Vagrancy (Ireland) Act, 1847 were held to be a disproportionate infringement of the constitution’s free speech guarantees. […]

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Me in a hatHi there! Thanks for dropping by. I'm Eoin O'Dell, and this is my blog: Cearta.ie - the Irish for rights.

"Cearta" really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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