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Category: Freedom of Expression

Political speech and civil servants – Part 2 – Blanket bans and constitutional rights

23 July, 202428 August, 2024
| 2 Comments
| Freedom of Expression

Irish Postal Unions StrikeThe Postal Strike, 9-29 September 1922 (see here and here) was the first major industrial dispute faced by the new government of the Irish Free State (see Gerard Hanley “They ‘never dared say “boo” while the British were here’: the postal strike of 1922 and the Irish Civil War” (2022) 46 (169) Irish Historical Studies 119). The government imposed various restrictions, including a ban on pickets. Nevertheless, the picture on the left (taken from The Graphic newspaper, 16 September 1922) shows the Postal Unions on the march in Dublin. More than a century later, the government continues to restrict the political activities of civil servants. In my previous post, we saw that the Civil Service Code of Standards and Behaviour (2004; revised 2008 (pdf); Circular 26/04 (09 September 2004) (pdf)) and Civil Servants and Political Activity (Circular 09/2009 (30 April 2009) (pdf)) provide for a blanket ban on civil servants engaging in any form of political activity or speaking in public on matters of local or national political controversy. My previous post considered whether the two circulars provided a sufficient legal basis for the ban. In this post, I want to consider whether the restrictions in the two circulars are constitutional.…

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Political speech and civil servants – Part 1 – Blanket bans and ministerial circulars

22 July, 20242 September, 2024
| No Comments
| Freedom of Expression

Civil Service Blanket BanIn my previous two posts, I considered the drafting history and possible unconstitutionality of section 11 of the Defence (Amendment) Act 2024 (the 2024 Act; update: available here) (pdfs here and here). That section adds a new subsection (1A) to section 103 of the Defence Act, 1954 (the 1954 Act; consolidated here) placing comprehensive restrictions on the political speech of members of the Defence Forces. A similar blanket ban is imposed upon members of the civil service. In this post, I want to examine whether there is a sufficient legal basis for the ban. In my next post, I will consider whether that ban is constitutional.

The Civil Service Code of Standards and Behaviour (2004; revised 2008 (pdf); Circular 26/04 (09 September 2004) (pdf)) provides:

5. Civil Servants and Politics
5.1 Restrictions have traditionally been imposed on civil servants engaging in political activity to ensure public confidence in the political impartiality of the Civil Service. This section restates the existing restrictions.

5.2 … (d) All civil servants above clerical level are totally debarred from engaging in any form of political activity.

5.3 Civil servants in category (d) may not engage in public debate (e.g.

…

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Political speech and the Defence Forces – Part 2 – Bright lines and the constitutionality of section 11 of the Defence (Amendment) Act 2024

19 July, 202415 September, 2024
| 1 Comment
| Freedom of Expression, Freedom of Expression

Council of State 17 July 2024 - 2Having considered the Defence (Amendment) Bill 2024 (the Bill) and the advice of the Council of State (pictured left), on Wednesday, 17 July 2024, the President signed the Bill and it accordingly become law as the Defence (Amendment) Act 2024 (the 2024 Act; update: available here). Section 103(1) of the Defence Act, 1954 (consolidated here) (the 1954 Act) provides that members of the Permanent Defence Force from “shall not join, or be a member of, or subscribe to, any political organisation or society”. Section 11 of the 2024 Act adds a new subsection (1A) to section 103 of the 1954 Act, providing that a member of the Permanent Defence Force shall not:

(a) while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force—

(i) make, without prior authorisation from the member’s commanding officer, a public statement or comment in relation to a political matter or matter of Government policy, or
(ii) attend a protest, march or other gathering in relation to a political matter or matter of Government policy,

(b) canvass on behalf of, or collect contributions for, any political organisation or society, or
(c) address a meeting of a political organisation or society.

…

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Political speech and the Defence Forces – Part 1 – The apolitical nature of the Defence Forces and the legislative history of section 11 of the Defence (Amendment) Act 2024

18 July, 20242 September, 2024
| 2 Comments
| Freedom of Expression, Freedom of Expression, Irish Supreme Court

Council of State 17 July 2024Having considered the Defence (Amendment) Bill 2024 (the Bill) and the advice of the Council of State (pictured left), the President yesterday (Wednesday, 17 July 2024) signed the Bill and it accordingly become law as the Defence (Amendment) Act 2024 (the 2024 Act; update: available here) (see Irish Times, 17 July 2024). Articles 31 and 32 of Bunreacht na Éireann provides provides for a Council of State to aid and counsel the President. Article 26 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court for a decision on its constitutionality. Last Monday, 15 July 2024, the President convened a meeting of the Council of State (pictured left), to hear from the Council regarding the constitutionality of the Defence (Amendment) Bill 2024. In a statement in advance of the meeting, the President said that he intended “to consult the Council of State in particular on Sections 11 and 24 of the Bill and whether the interference with constitutional rights is disproportionate” (see Irish Times, 12 July 2024). Section 11 of the Bill (now Act) restricts the Article 40.6.1(i) right to political expression of a member of the Permanent Defence “while in uniform or otherwise making himself or herself identifiable as a member of the Permanent Defence Force”.…

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Vidal v Elster; Trump too small; and Thomas too small-minded

14 June, 20247 February, 2025
| 1 Comment
| Freedom of Expression, Freedom of Expression, Freedom of Information, Intellectual property

Trump too small, t-shirtsIn Vidal v Elster 602 US 286 (2024) (pdf), the US Supreme Court yesterday upheld the refusal of the US Patent and Trademark Office to register “Trump too small” as a trademark. In his opinion for the Court, Thomas J proved himself small-minded both in his approach to First Amendment analysis in general and in his approach to the fraught inter-relationship of trademark restrictions and the First Amendment in particular.

In this case, the plaintiff, Steve Elster, sought trademark protection for t-shirts featuring the slogan “Trump too small” (pictured above left). The slogan refers to a debate in the 2016 presidential primaries when Senator Marco Rubio teased Donald Trump about the size of his hands (with implications about other features). The plaintiff wanted to use it to criticize President Trump in general, and, specifically, to convey “that some features of President Trump and his policies are diminutive”. Section 1052(c) of the Lanham Act (Trademark Act, 1946) (15 USC § 1052(c)) precludes registration of a trademark that (emphasis added):

consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, …

As a consequence of this “names” clause, an examiner from the US Patent and Trademark Office (USPTO) refused the plaintiff’s application to register “Trump too small”, and the Trademark Trial and Appeal Board (TTAB) affirmed.…

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Another heckler’s veto in Trinity

3 March, 20233 March, 2023
| 2 Comments
| Freedom of Expression, Freedom of Expression, Universities, Universities

MSA TCD; via FacebookThe following story caught my eye in this morning’s Irish Times [with added links]:

Talk by controversial UK preacher at Trinity College cancelled over security fears

By Colin Gleeson
A talk by a UK preacher at an event at Trinity College Dublin on Friday has been cancelled due to security fears.

Mohammed Hijab had been due to speak at an event organised by the college’s Muslim Students Association on the topic of “hedonism”. … Mr Hijab’s invitation to speak on the college’s campus was criticised by students who said they planned to stage a protest should the event go ahead. … It is understood the group made a request to college authorities for security support but was turned down due to a lack of adequate notice. …

In a statement to Trinity News, one of the student newspapers in College, MSA President Hasan Ali said:

While we acknowledge that this decision may disappoint some members of our community, we believe it is the best course of action to ensure the safety and well-being of all.

This is a real pity. As I said when a Galway student society cancelled a controversial appearance for similar reasons (and here‘s another example), this is a failure on the part of TCD’s Muslim Students Association (TCD MSA) to protect the process of freedom of speech.…

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Winter is coming: the future of First Amendment analysis, and the prospects for New York Times v Sullivan, after NYSR&PA v Bruen

25 October, 20229 April, 2025
| 3 Comments
| 1A, Defamation, Defamation, Freedom of Expression, Freedom of Expression, US Supreme Court

Winter is Coming (element)Cold winds now blow in the US Supreme Court around the stability of a century’s worth of First Amendment doctrine; even New York Times Co v Sullivan 376 US 254 (1964), the most stable of that Court’s speech precedents, now seems in danger of being blown away in the storm, thanks to the recent decision in New York State Rifle and Pistol Association v Bruen 597 US 1 (2022) (pdf | SCOTUSblog). In an earlier post on this blog, I considered the potential impact on the First Amendment of Thomas J’s originalist reasoning in the Second Amendment case of New York State Rifle and Pistol Association v Bruen, and found some distinctly chilly zephyrs. Thomas J for the majority (Roberts CJ, and Alito, Gorsuch, Kavanaugh, and Barrett JJ concurring) held that a restriction on carrying arms in public for self-defense reasons was inconsistent with the Nation’s historical tradition of firearms regulation and was thus unconstitutional. Thomas J explicitly eschewed any standard of review such as strict or intermediate scrutiny, and it was with this that the minority (Breyer J; Sotomayor and Kagan JJ concurring) took most issue. This is nuts. Worse, in Bruen, Thomas J asserted some similarities in analysis between the Second Amendment and the First.…

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Some of #RushdiesWords on free speech from Joseph Anton

12 August, 2022
| No Comments
| Censorship, Censorship, Freedom of Expression, Freedom of Expression

Salman Rushdie Joseph Anton coverJoseph Anton. A Memoir (London, 2012) (cover left) is a memoir by Salman Rushdie.

On Valentine’s Day, 14 February 1989, Ayatollah Ruhollah Khomeini, the Supreme Leader of Iran, issued a legal edict (a fatwa) against Rushdie on the grounds that his novel The Satanic Verses (London, 1988) blasphemed against the Prophet Muhammad. Rushdie spent several years in hiding, using the pseudonym Joseph Anton (a name he chose to honour the writers Joseph Conrad and Anton Chekhov). Joseph Anton. A Memoir is his account of his life in hiding; but it is described as a memoir rather than autobiography because it is written in the third (rather than the first) person.

In the Autumn of 1989, he was invited by the Institute of Contemporary Arts (ICA) in London to deliver the 1990 Herbert Reade Memorial Lecture. Joseph Anton takes up the story:

He knew at once that he wanted to write about iconoclasm, to say that in an open society no ideas or beliefs could be ring-fenced or given immunity from challenges of all sorts, philosophical, satirical, profound, superficial, gleeful, irreverent or smart. All liberty required was that the space for discourse itself be protected.

…

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Hi 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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