I have on this blog regularly discussed the extent to which offensive speech can be restricted. For example, there are many (many) posts on this blog on censorship and blasphemy. Furthermore, I have referred to the censorship of Guillaume Apollinaire (here and here), Carolina Gustavsson, Aldous Huxley, DH Lawrence (here, here and here), James Joyce, John Latham, Robert Mapplethorpe and Vladimir Nabokov. Moreover, I have analysed the kinds of reasons why this kind of speech should not be censored: free speech means freedom for the thought we hate, even that of David Irving (eg, here, here, here, and here), Jean-Marie le Pen, or Kevin Myers, and even – especially! – in multi-cultural societies, especially – especially!! – online.

I was reminded of all of this by two recent blogposts. Read the rest of this entry »

Last month on this site, I posed the question: why do we need a Censorship of Publications Board? It was a rhetorical question; in my view, we don’t need one at all.

The Censorship of Publications Board was established by section 3 of the Censorship of Publications Act, 1929 (also here), with the power (under section 6 (also here)) to prohibit the sale of any book which

… is indecent or obscene or advocates the unnatural prevention of conception or the procurement of abortion or miscarriage or the use of any method, treatment or appliance for the purpose of such prevention or such procurement …

Its procedures are governed by the Censorship of Publications Regulations, 1980 (SI No 292 of 1980), and the Department of Justice website contains the Register of Prohibited Publications of December 2009 (here: pdf). A piece by John Byrne in today’s Irish Times (with added links) not only reinforces my view that we no longer have need for such paternalism, but also gives grounds for optimism that we will soon no longer be subject to it:

What a shocker: no more books to ban

After 80 years of censorship from a board once internationally notorious for its prurience, the last remaining book to be banned in Ireland on the grounds of obscenity will have its prohibition lifted this year, …

On May 9th, 1930, a year after the passing of the initial Censorship of Publications Act, [Aldous] Huxley’s novel [Point Counter Point, above left] became the Act’s first casualty. Banned on the grounds that it was “indecent and obscene”, it earned the dubious historical honour of being recorded as the first entry in the first volume of the Register of Prohibited Publications. Sixty-eight years and 12,491 prohibitions later, The Base Guide [to London] remains the final entry in the register’s final volume. …

In the 12 years since this last prohibition, the Censorship of Publications Board – at one time internationally notorious for its prurience and moral conservatism – has not banned a single title. … Under the terms of the 1967 Censorship of Publications Act, books deemed “indecent or obscene” have their prohibitions revoked after 12 years. With The Base Guide removed from the banned list along with 14 other titles likewise prohibited in 1998, the board’s long war against indecent and obscene books will, effectively, be over. For the first time since formal censorship began, not a single title banned on these grounds will remain on the register.

… the register will not, come December 31st, be entirely cleared of its backlog of prohibitions. There are, for instance, 279 periodicals still listed … [which will] remain banned until their prohibition is successfully appealed, … As far as books are concerned, eight lonely titles stand exempt from the 12-year amnesty that will shortly release The Base Guide et al. This group … will remain prohibited under current legislation that prohibits publications deemed to “advocate or promote” the procurement of abortion, waiting with faint hope for the unlikely day when a qualified party might launch an appeal on their behalf. …

It is very difficult to find official information online about this censorship regime (apart from short entries on the Department of Justice and Citizens Information websites – there is no official website or independent home for the Board, which now resides c/o the Irish Film Classification Office). Our current censorship regime is hidden in the shadows, and is being allowed to decline in obscurity:

Dust in sunlight and memory in corners
Wait for the wind that chills towards the dead land.

Perhaps this neglect is because it embarrasses our lords and masters. It certainly embarrasses me. But instead of letting it wither quietly into oblivion, we should have the courage publicly to abolish it. The sooner Fine Gael’s Bonfire of the Quangos does away with this monument to our forefathers’ self-consciousness, the better.

The title of this post is taken from the third paragraph of Milton’s Areopagitica. As I commented in an earlier post, one of the classic liberal justifications for freedom of expression was stated by John Milton (pitctured left) in his Areopagitica – A Speech for the Liberty of Unlicenc’d Printing, to the Parlament of England. According to The Writer’s Almanac with Garrison Keillor (with added links):

It was on this day in 1644 that John Milton published a pamphlet called Areopagitica, arguing for freedom from censorship. He said,

I wrote my Areopagitica in order to deliver the press from the restraints with which it was encumbered; that the power of determining what was true and what was false, what ought to be published and what to be suppressed, might no longer be entrusted to a few illiterate and illiberal individuals, who refused their sanction to any work which contained views or sentiments at all above the level of vulgar superstition.

He compared the censoring of books to the Spanish Inquisition and claimed that the government wanted “to bring a famine upon our minds again.” Read the rest of this entry »

From the Free Speech Blog, an Index on Censorship cinema advert from 1986, featuring Oscar winner Anthony Hopkins as the title character in “The Censor”, a short play by the Czech writer, Ivan Kraus.

Fine Gael’s new policy document “Reinventing Government” will no doubt keep a lot of political debates (and perhaps even fires) burning during the long cold November nights, and I look forward to the heat thereby generated. Quick off the mark was Ninth Level Ireland with a summary of its proposals on universities. Glancing through it, I was also taken by two aspects of its list of “Quangos to be abolished” in Appendix 1, one inclusion and one omission. The inclusion is this:

Department of Justice and Law Reform

… Merge Censorship of Publications Board and Office of Film Censor and Irish Film Classification Office into single Censorship Office.

Merge Censorship of Publications Appeals Board and Censorship of Films Appeal Board into single Censorship Appeals Office. …

I can understand why a classification system for movies and computer games is felt to be necessary, but I am at a loss to understand the need for prior restraint upon print publications, and I would therefore achieve the desired savings simply by abolishing the Censorship of Publications Board and Censorship of Publications Appeals Board altogether. Read the rest of this entry »

Dr Johnson defined gallimaufry as

1. A hoch-poch …
2. Any inconsistent or ridiculous medley. …

Here’s another hoch-poch, or hotch-potch (though, of course, not a hotchpot) of links relevant to the themes of this blog that have caught my eye over the last while. I’ll begin and end with some stories of censorship, and along the way I’ll mention open wifi, international perceptions of Ireland, typography, mobile phones, broadcasting, and the future of our universities.

First, as a supplement to my post on the Lady Chatterley’s Lover trials, Alan Travis in the Guardian argues that the failure of the Chatterley prosecution secured the liberty of literature in Britain over the past 50 years. By way of a similar supplement to my post on the decision of the European Court of Human Rights in Akdas v Turkey 41056/04 (15 February 2010) that a Turkish ban on Apollinaire’s Les Onze Mille Verges infringed Article 10 of the European Convention on Human Rights, the Guardian reports that Turkey is at it again: publisher Irfan Sanci is being prosecuted – under the same Turkish provisions that were found wanting in Akdas – for publishing a translation of another Apollinaire noverl, Les exploits d’un jeune Don Juan (The Exploits of a Young Don Juan). To add insult to this injury, the prosecution comes in the week before Sanci is to be bestowed with a special award by the Geneva-based International Publishers Association. Read the rest of this entry »

When I was growing up, I read a children’s book called The Arabian Nights, an innocent version of the Islamic classic One Thousand and One Nights. Perhaps surprisingly, a group of Egyptian lawyers has recently called for a ban of a newly-released version of the Nights, on the grounds that it is “obscene” and could lead people to “vice and sin”. At the same time, another Egyptian group has called for a ban on the controversial novel Azazeel (Beelzebub) by Youssef Ziedan, which won the 2009 International Prize for Arabic Fiction. And, irony of ironies, just in time for Bloomsday, a manga comic book version of James Joyce’s novel Ulysses had almost been banned from the Apple App Store for obscene images, but Apple then relented, and reversed its earlier decision to remove panels containing nude images, though it still continues to reject less famous apps.

These examples of censorship of literature on the grounds of obscenity are simply the latest instances of a long and dishonourable tradition. In an earlier post, I considered whether Lady Chatterley’s Lover is obscene. In Akdas v Turkey 41056/04 (15 February 2010) (judgment in French; press release in English), the European Court of Human Rights was faced with a similar question earlier this year, when it had to consider whether a Turkish ban on Guillaume Apollinaire’s Les Onze Mille Verges (or, The Eleven Thousand Rods) was consistent with Article 10 of the European Convention on Human Rights. It held that the ban infringed Article 10 (see see ECHR Blog | Guardian | Inforrm | Strasbourg Observers). However, the reasoning by which it reached this eminently sensible conclusion could have profound consequences for states attempting to rely on “the protection of morals” in Article 10(2) to justify restrictions on speech otherwise protected by Article 10(1).

In Handyside v UK 5493/72, [1976] ECHR 5, (1976) 1 EHRR 737 (7 December 1976), the first case on Article 10, the Court took a broad view of what was protected by Article 10(1), but when it came to whether a restiction could be said, in terms of Article 10(2) to be “necessary … for the protection of morals”, the Court held that there is no “uniform European conception of morals” (para 48), with the result that States were afforded quite a generous margain of appreciation to determine in the first instance whether a restriction was indeed necessary for the protection of morals. Subsequent cases have taken a similar approach, but Akdas v Turkey marks a signficant departure from this model.

Paying due obeisance to the Handyside approach, the Court nevertheless tempered it by observing that more than a century had passed since the first publication of the work in France, that it had thereafter been published in numerous countries in various languages, and it that had been inducted into the prestigious Bibliothèque de la Pléiade, now an imprint of Gallimard, a dozen years before being seized in Turkey. As a consequence, the Court held that reliance upon the margin of appreciation would not avail Turkey in this case (in Inforrm’s Blog translation):

[30] … the recognition given to the cultural, historical and religious singularities of member states of the Council of Europe cannot go so far as to prevent public access in a particular language, in this case Turkish, to a work which forms part of the European cultural heritage.

This concept of the European cultural heritage has the potential to act as a signficant check upon over-reliance on the morals exceptoin in Article 10(2). It is certainly a long way from the Handyside assertion that there is no uniform European conception of morals. As Maris Burbergs on Strasbourg Observers points out:

the Court states that the acknowledgment of the cultural, historical and religious particularities of the Council of Europe’s member States could not go so far as to prevent public access in a particular language, in this instance Turkish, to a work belonging to the European literary heritage. Accordingly, the application of the legislation in force at the time of the events had not been intended to satisfy a pressing social need.

Antoine Buyse on ECHR Blog goes further:

Thus, apparently, what has become part of the “canon of art” can no longer be prohibited within Europe. One may wonder what happens in cases where such works truly are offensive to large groups of people and also one may question who decides when a work becomes elevated to this European literary Olympus. Here the Court becomes an interesting player in the ongoing discussion on what is Europe’s common heritage!

Similarly, Inforrm’s Blog says that this conclusion has wide ranging implications:

Many readers of Eleven Thousand Rods will find the contents of the book highly offensive – as indeed did the French public at the time of its publication and for many decades later. When the book was published in England in the 1970s whole chapters were deleted and replaced by short descriptions of the violent acts which were described. The idea that, four decades later, any restriction on the publication anywhere within the Council of Europe States, whatever local sensibilities, is at first sight very surprising. The notion of the “European literary heritage” is one which lacks clear boundaries – certainly in countries which do not have the benefit of the “Pléiade” collection. The judgment does, however, show that contrary to the views of some English critics, the Court of Human Rights continues to take a robust view in “traditional freedom of expression” areas such as obscenity.

One way to test this rather fluid conception of the European literary heritage is to apply it to not just to European books like The Eleven Thousand Rods, Ulysses or Lady Chatterly’s Lover, but to non-European classics such as The One Thousand and One Nights or to important recent publications like Azazeel. If there is no substantive or qualitative difference between them, then the pressure will be on the Court to expand its notion of the European literary heritage, and to narrow the margin of appreciation afforded to member states when the seek to rely on the morals exception. This would be no bad thing.

I’m sorry not to have been able to acknowledge the celebration of AFAF’s International Academic Freedom Day on the day itself by a wonderful blog carnival on the right to learn, ably convened by Deirdre Duffy, and hosted by the ever-wondrous Human Rights in Ireland blog. I’ve blogged on academic freedom on many previous occasions (see especially here and here), and I’d like here look at some of the Irish legal aspects of the issue.

Section 14(1) of the Universities Act, 1997 (also here) provides that Irish universities have “the right and responsibility to preserve and promote the traditional principles of academic freedom” in the conduct of their internal and external affairs, and that they are entitled to regulate their affairs in accordance with their “independent ethos and traditions and the traditional principles of academic freedom”. This is an important guarantee of institutional autonomy, and is a sine qua non for the right of academics to teach, research, publish and participate in public debate without fear of retribution from their institutions. That right is secured by section 14(2) of the Act, which provides:

A member of the academic staff of a university shall have the freedom, within the law, in his or her teaching, research and any other activities either in or outside the university, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions and shall not be disadvantaged, or subject to less favourable treatment by the university, for the exercise of that freedom.

This is why, to take the example presented by Rod Thornton in his contribution to the NRinI carnival, research and teaching about terrorism are protected, even as Beshara Doumani’s edited collection Academic Freedom after September 11 (University Of Chicago Press, 1998 | Amazon) demonstrates the increasing antithetical pressures.

Article 13 of the Charter of Fundamental Rights of the European Union provides that “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Read the rest of this entry »