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the Irish for rights

Legislating Truth

I am a politics junkie – I will watch party conferences and conventions, and enjoy the experiences! And I still remember a Fianna Fáil Árd Fhéis (national party conference) in which Charlie Haughey began a key section of his leader’s speech by asserting: “The truth, as we in Fianna Fáil see it, is …”. I don’t remember what he said after that, because I was so flabbergasted at the audacity of making truth contingent upon a political point of view. Of course, this was only a small thing compared to the flabbergasting audacity of other aspects of Haughey’s career, but the attitude of subordinating truth to political power is not unique to him or to Fianna Fáil. A particularly egregious example is provided by reports this morning that the author of a book on anti-Semitism in Poland may face court action. According to Derek Scally in the Irish Times (sub req’d):

The public prosecutor in Krakow has launched a preliminary investigation into a US historian who says post-war Poland continued where the Nazis left off in persecuting Jews. Jan Tomasz Gross [home page at Princeton | wikipedia] could, under a law passed by the Kaczynski government, face a prison sentence if found guilty of “accusing the Polish nation of participating in communist or Nazi crimes”.

The new Polish edition of Dr Gross’s 2006 book, Fear – Anti-Semitism in Poland after Auschwitz, has caused a storm for challenging the country’s self-image as the heroic, leading martyr of the second World War. The book documents post-war pogroms that claimed the lives of up to 3,000 of Poland’s 300,000 Holocaust survivors. The most notorious pogrom happened on July 4th, 1946, in Kielce, when a mob rounded up and killed 42 returned Holocaust survivors after a false rumour spread that Jews had kidnapped and killed a local boy. …

I have previously blogged (here and here) about earlier attempts by the the Kaczynski government to legislate truth, and this most recent example is as abhorrent and misguided as they were. Either the Polish record after WWII is pure as the snow in Katyn Forest in winter, or it isn’t. Privileging one view by legislation which penalises the other will not change the truth of the past. Perpetuation of myths and untruths can only be unhealthy for society. More than that, as this case demonstrates, it is futile to attempt to legislate a political viewpoint as truth. That won’t stop people like Haughey from making truth contingent upon political perspective, or people like the Kaczynski brothers from privileging such perspective in legislation. But when they come to prosecute, such provisions will not survive challenge in the European Court of Human Rights on foot of Article 10 of the European Convention of Human Rights, not least because the Court has held that the absence of a defence of truth will almost certainly infringe Article 10. This is clear from the decision of the Court in Castells v Spain 11798/85 [1992] ECHR 48 (23 April 1992), in which Spanish Courts held that evidence of the truth of the applicant’s allegations was inadmissible, and the ECHR held that the inadmissibility of evidence of truth constituted an infringement of Article 10.

Nevertheless, there are many areas in which we persist in our futile attempts to legislate ineffable truth. Protecting religious truth is an example hallowed by time which persists to this day – laws on blasphemy, or on the prevention of incitement to religious hatred, are still very common, and their popularity shows no signs of abating. Not only is the European Union threatening to get in on the act (blogged here and here), but recently so also has the Council of Europe (see CoE Parliamentary Assembly Recommendation 1805 (2007) Blasphemy, religious insults and hate speech against persons on grounds of their religion). More welcome though, is last week’s news that, not long after the English courts significantly narrowed the common law definition of the crime of blasphemy (about which I blogged here), there was an attempt to amend legislation pending before the UK Parliament to abolish the crime (recently described as misguided and obsolete by Lisa Appignanesi, President of PEN). Responding to an amendment tabled by Liberal Democrat MP Dr Evan Harris (personal site | parliamentary bio) to the Criminal Justice and Immigration Bill which provided simply that “The offences of blasphemy and blasphemous libel are abolished”, Justice Minister Maria Eagle (Department of Justice bio | parliamentary bio) said that the government has every sympathy for the amendment but wished first to consult the Church of England before doing so (Hansard debate | BBC story | Harris’s statement | PEN statement); as a consequence, Dr Harris withdrew his amendment. The direction of this movement is very welcome, as blasphemy law is another example of an attempt to legislate truth, in this case religious rather than political truth, and it is as misguided as as the Polish attempt to legislate political truth. However, the UK government is in danger of replacing one contestable piety with another, and instead of legislating religious truth by means of blasphemy laws, will instead legislate political truth by means of further extensions to the incitement laws (about which I blogged here; see now Hansard, and s107 and schedule 22 of the Bill).

However they are dressed up, these kinds of law are simply exercises in brute power, seeking to legislate the truth of contemporary political, social or religious pieties. They are equally misguided, and equally incompatible with fundamental principles of freedom of expression. In Joseph Burstyn Inc v Wilson 343 US 495 (1952) the Supreme Court of the United States held that the power in a New York statute to authorize denial of a license to distribute a movie on foot a censor’s conclusion that the movie was “sacrilegious,” was an unconstitutional prior restraint on freedom of speech and of the press under the First Amendment. Moreover, the UK courts (see R (on the application of Green) v The City of Westminster Magistrates’ Court [2007] EWHC 2785 (Admin) (05 December 2007) blogged here) and the ECHR (see IA v Turkey 42571/98 [2005] ECHR 590 (13 September 2005) and Klein v Slovakia 72208/01 [2006] ECHR 909 (31 October 2006)) have considerably narrowed the scope of blasphemy laws. As in the Polish political arena, legislated truth is on a collision course with Freedom of Expression, and whilst such laws might serve short or even medium term political ends, they will prove in the long run both futile and invalid.

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One Response to “Legislating Truth”

  1. […] debated again. I have already blogged extensively about a similar Irish effort (here, here, here, here, here and here) in Part 5 of the still-delayed Defamation Bill, 2006. Whatever happened to that? […]

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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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