In The State (Lynch) v Cooney [1982] IR 337, the Supreme Court upheld the validity of a statutory provision [section 31(1) of the Broadcasting (Authority) Act, 1960 (also here) as amended by section 16 of the Broadcasting Authority (Amendment) Act, 1976 (also here) - thankfully repealed in 2001] which allowed the Minister to preclude from broadcast any matter which “would be likely to promote, or incite to, crime or would tend to undermine the authority of the State”. O’Higgins CJ for the Court held that the free speech guarantee [Article 40.6.1(i)] of the Constitution

enables the State, in certain instances, to control these rights and freedoms. The basis for any attempt at control must be, according to the Constitution, the overriding considerations of public order and morality. The constitutional provision in question refers to organs of public opinion and these must be held to include television as well as radio. It places upon the State the obligation to ensure that these organs of public opinion shall not be used to undermine public order or public morality or the authority of the State. It follows that the use of such organs of opinion for the purpose of securing or advocating support for organisations which seek by violence to overthrow the State or its institutions is a use which is prohibited by the Constitution. Therefore, it is clearly the duty of the State to intervene to prevent broadcasts on radio or television which are aimed at such a result or which in any way would be likely to have the effect of promoting or inciting to crime or endangering the authority of the State.

A subsequent challenge to the section on the grounds that it was contrary to Article 10 of the European Convention on Human Rights was rejected in 15404/89 Purcell v Ireland (Decision of 16 April 1991). Moreover, the House of Lords in R v Secretary of State for the Home Department, ex p Brind [1991] 1 AC 696, [1991] UKHL 4 (07 February 1991) sustained a similar ban; and an Article 10 challenge subsequently shared Purcell’s fate (see 8714/91 Brind v UK (Decision of 9 May 1994)).

I was reminded of this today reading an article by Joanne Mariner (Terrorism and Counterterrorism Program Director at Human Rights Watch (HRW)) on Findlaw’s Writ column. Her article is called “Terrorism and Speech”. Read the rest of this entry »