the Irish for rights

Here we go again

IAA logo via their siteThe headline in today’s Sunday Independent says it all: Shock as ad on autistic children banned. Niamh Horan reports:

A new advertisement highlighting the urgent needs of autistic children in Ireland has been banned from radio stations on the grounds that it is too political.

Now Irish Autism Action [IAA], which champions the rights of Irish children suffering from autism, has said they are surprised that the ad was banned by both the Broadcasting Commission of Ireland (BCI) and the national State broadcaster, RTÉ.

We have been here before. As has already been discussed on this blog (here, here, and here), section 20(4) of the Broadcasting (Authority) Act, 1960 and section 10(3) of the Radio and Television Act, 1988, provide that no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute. No doubt, as charities increasinlgy continue to make social arguments which can be described as political (in the sense of advocating changes to society or to social policy which they see as necessary or desirable), we will be here again.

A little while ago, Daithí called on bloggers to suggest some legal changes that political parties might take up during the election. Here on this blog, and elsewhere, I made a suggestion relating to expanding fair use of copyright material. My appeal to RTÉ to make the forthcoming Prime Time debate between Bertie Ahern and Enda Kenny available online without restriction so that it can be shared and reused without fear of copyright infringement demonstrates the need for such a broader conception of fair use. But I want to ask Daithí if I can make a second legislative suggestion. It is this, that the ban on political (and religious) be repealed. The IAA advertisment calls attention to what Cormac Rennick, chairman of the charity, described as “the dire lack of educational facilities for autistic children in Ireland”. What is it about this that justifies its prohibition?

As I have explained in the earlier posts (especially this one), the constitutionality of these bans has been upheld by the Courts. In Murphy v IRTC [1999] 1 IR 26 , the Supreme Court upheld the ban on religious advertising; in Colgan v IRTC [1998] IEHC 117, [2000] 2 IR 490; [1999] 1 ILRM 22, applying Murphy, the High Court upheld the ban on political advertising.

In Murphy, it what seemed a great advance on previous free speech jurisprudence, Barrington J for the Supreme Court accepted that restrictions on freedom of expression (as with restrictions on other constitutional rights) must

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
(b) impair the right as little as possible, and
(c) be such that the effects on rights are proportional to the objective.

As for the objective of section 10, looking at three bans collectively, Barrington J held:

All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. The Oireachtas was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover, the Oireachtas may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.

So, religious, political and trades disputes advertising (i) might lead to unrest, and (ii) anyway, it’s unfair that rich men should be able to buy access to the airwaves and drown out other voices. Now, plainly, neither concern applies to the IAA’s advertisment: they are a charity seeking a change in policy relating to autistic children, not a revolutionary movement summoning riotous supporters to the barricades, or a Machiavellian billionaire seeking to influence policy for sinister reasons. And this demonstrates how threadbare and implausible the objective sought to be pursued by section 10 actually is. In neither Murphy nor Colgan, for example, did the court interrogate the modern reality of the objectives of either pubic disorder or drownout. Moreover, in both cases, the courts accepted that there were other, less restrictive means, available to the Oireachtas to achieve the same objectives. Nevertheless, in both cases, the courts held that the bans in section 10 were proportionate (and thus Constitutionally defensible) responses to these concerns.

I have long thought that, having taken one step forward by articulating the three-step proportionality test in the free speech context, the courts then took two steps backward by applying it with extraordinary deference to the Oireachtas. In particular, the legal standard, “that such advertisements, if permitted, might lead to unrest” seems to me an entirely inappropriate standard on which to sustain the constitutionality of legislation. It means that rights can be infringed on the basis of state supposition. In my view, in principle, it is not enough that the State apprehends the potential for a harmful or undesirable event or state of affairs; that harm ought to be reasonably imminent before the State can intervene to restrict rights. And, as the advertisements at issue in Murphy, and Colgan, as well as those banned by RTÉ and the BCI (many of which are gathered here), all demonstrate, there is little, if any, reality to the fears of public disorder or wholesale purchase of the airwaves. To the extent that these fears are justified, a far more narrowly crafted ban, directed specifically towards public disorder and drownout. But the time has come to repeal the overbroad prohibition that prevents charities the IAA from arguing their case in broadcast advertisements.

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9 Responses to “Here we go again”

  1. Niamh Howlin says:

    On the topic of religious and political advertising, did anyone else see the television advert for Fianna Fail on RTE Television last week?

    How has this one managed to sneak in under the radar?

  2. Simon McGarr says:

    E. McGarr has argued on the McGarr Solicitors blog that the effect of the wording banning political speech has extraordinary implications. Implicated, and therefore potentially supressable, items include ads for pasta, Godzilla, a free press in Zimbabwe and, of course, equal rights for males and females.

  3. Daithí says:

    They got a TV ad? How/where?

  4. Sharon says:

    I am delighted that the horrible ad has been banned, though I don’t agree with the reasons given by the BCI.

    The ad is uses derogatory language, depicts the life of autistic children as bleak and hopeless, unless the ‘glimmer of hope’ the ‘light of learning ‘ of ABA is funded. You are encouraged to ‘Imagine he grew older and started running into walls. And there was nothing you could do.’

    ABA is NOT all it’s cracked up to be. Autistic children need extra money to be spent on their education, that much I agree with wholeheartedly. But there is no evidence, in spite of what the ABA action group (IAA) say that this has to be in the form of a behaviourist programme.

    There is plenty you can do, my own son has never had a minute of ABA. Instead he has benefited from speech and occupational therapy, and an education system focused on his own needs and interests.

    I also object to the line ‘And might stop him being put into care.’ This is the often-used-ploy of ‘pay now, save later’ used by ABA proponents. There is, again, no evidence for this. Are we supposed to think that dealing with autistic children is so awful, that without lots of ABA, they should be put into care?

  5. Eoin says:

    Hi Sharon,

    Thanks for the comment, and for the link to your blog; which I really like.

    However, let us assume for the moment that I thought your site is horrible, and that your arguments for your son Duncan’s speech and occupational therapy programme depicted the life of children with different regimens as bleak and hopeless. I would not for that reason want to ban it. If we could all ban things simply becuase we thought they were horrible, there would be no speech left. Rather, the best answer to horrible speech is to argue against it. You are eloquent in your views against ABA – the best answer to an ad like that of Irish Autism Action is to argue against it, not to ban it. That way, we can all become aware of the arguments on both sides, and make up our own minds without the coercion towards one side entailed in banning the arguments of the other side.

    I’m afraid I don’t know enough about autism, ABA, and so on, to be able to make an informed comment on the substance of your points. But I don’t need that to be able to say that you should have the right to make your point, that IAA should have the right to make theirs, and that you should all be able to debate the merits of your points, without being banned from doing so!


  6. Sharon says:

    Hi Eoin

    Actually, I will concede to you that banning the ad is not the best way to counter it. And I certainly didn’t intend to infer in my previous comment, that I think ABA should be banned.

    I’m just rather fed up with the negative portrayal of autistic children in the media recently. I’m just going to check out the news now, and see how the IAA march in Dublin today went. I expect to find yet again, the story of how awful a burden these children are.

  7. Eoin says:

    Hi Sharon

    Thanks for the reply. You prove my point about the best answer to speech being more speech by your powerful post What is so great about ABA?, This is the exactly the kind of engagement that the system of freedom of expression is all about. Thanks for taking the time to comment here, and for putting up that post on your own blog.


  8. […] prohibit broadcast advertising in Ireland directed to any religious or political end (see here | here | here | here | here | […]

  9. […] with section 41(4), which contains a ban on religious advertising) re-enacts long-standing bans on political (and religious) advertising; though such a ban is unlikely to survive challenge in the […]

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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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