The Constitution at 70

Bunreacht ConstitutionThe Irish Constitution is 70 years old this year. To mark this (platinum?) anniversary, Dr Oran Doyle and Dr Eoin Carolan, colleagues at the School of Law, TCD, have organized a conference, The Constitution at 70 (website | brochure (pdf))

Oran invited me to speak at the conference on the theme of freedom of expression in a session on unenumerated rights; I was delighted by the invitation, and (as I’ve mentioned before on this blog) I accepted with alacrity, as this is something on which I have Views! This post is about the current state of those Views, but it is offered not as my final thoughts on these issue but very much as ideas in progress, on which I would be grateful to receive comments, either here or off-blog.

Under the Constitution, there are at least three expression interests. First, there is the right to freedom of expression in Article 40.6.1(i). Second, a right to freedom of the press has also been spelled out of Article 40.6.1(i). And third, there is a right to communicate as one of the unenumerated rights in Article 40.3.

The first theme of my paper will largely be the story of this right to communicate. In AG v Paperlink Ltd [1983] IEHC 1; [1984] ILRM 373 (15 July 1983), Costello J took a narrow approach to the right to freedom of expression in Article 40.6.1(i), and then posited an unenumerated right to communicate as a supplement to the narrow Article 40.6.1(i). It was an unnecessary cure for a non-existent ill: a flexible, purposive approach to Article 40.6.1(i) would have achieved the same end. And it had unfortunate consequences. The effect of proposing a right to communicate was to stultify development of the right to freedom of expression. I am, in principle, in favour of unenumerated rights doctrine; but this kind of pernicious development gives this doctrine a bad name, and calls other, more legitimate, developments into question. Thankfully, these consequences are now being undone, first in Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf), and more recently in Mahon v Post Publications [2007] IESC 15 (29 March 2007) (already discussed on this blog). The second theme of my paper will be the effects of this latter case on the constitution’s protections of expression, communication and press freedom.

Now that the missteps of Paperlink are being addressed, and the current is running strongly in favour of right to freedom of expression in Article 40.6.1(i), important questions remain; in particular, what to do with the right to communicate? As I see it, at least three things are possible: overrule it, ignore it, or embrace it. The courts won’t overrule it, not least because it was accommodated in Murphy and (to a lesser extent) in Mahon. Moreover, the courts would be understandably slow to overrule an unenumerated right to do so would undermine the whole unenumerated rights project. But they are in danger of accommodating it by ignoring it. This would be a pity; it could still be made meaningful, even if not in the way originally envisaged in Paperlink: as media studies theory argues (see Daithí Mac Sithígh’s take on this issue here (pdf)), there is far more to the process of communication than merely expression, and if Article 40.6.1(i) is to be home to the protection of freedom of expression, then the Article 40.3 right to communicate could be the home for this broader panoply of communication. The possibility of such an alternative expansive reading of the right to communicate will therfore be the third theme of my paper.

Finally, there are some lessons in this saga for the development of the right to freedom of the press which, since Irish Times v Ireland [1998] 1 IR 359, [1998] 2 ILRM 161 (2 April 1998) (doc | pdf), is in the process of being spelled out of Article 40.6.1(i). It is unclear whether it is emerging as a concomitant of freedom of expression, or from the text of the curious middle sentence of the paragraph. To avoid missteps similar to Paperlink, we must not only give the right to freedom of press a stable textual basis in Article 40.6.1(i), we must also interpret it purposively and take it seriously (as Edwin Baker has recently argued, we must recongise the independent signficance of a constitutional guarantee of press freedom). How this might happen will be the fourth theme of my paper.

The four themes weave together to make an argument in favour of a socio-political culture (or, as Jack Balkin has recently said, an infrastructure) of expression, communication and press freedom, a culture or infrastructure which will both inform and in turn be informed by the next 70 years of speech doctrine under the Irish Constitution.