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Category: Freedom of Expression

The Manifest Destiny of Critics’ Fair Comment, Again

6 November, 20076 November, 2007
| 3 Comments
| Defamation, Freedom of Expression

'Manifest Destiny' logo via Keith Burstein's site






During the Summer, I wrote about the decision of the UK’s Court of Appeal in Associated Newspapers Ltd v Keith Burstein [2007] EWCA Civ 600 (22 June 2007), to the effect that an opera critic’s review of the defedant’s opera Manifest Destiny was covered by the defence of fair comment. The defendant sought to appeal to the House of Lords. Now, via MediaPal@LSE (see also Media Law Prof Blog) I learn that, at the end of last month, the House of Lords has decided not to hear the appeal on the usual ground the case “does not raise an arguable point of law of general public importance which ought to be considered by the House”. According to Ben Dowell in The Guardian, however, the undaunted composer intends to bring the case to the European Court of Human Rights (ECHR). I wrote at the time that the Court of Appeal decision was plainly good common sense, and very welcome for it; I am glad that the House of Lords has declined to hear the appeal; and I fully expect the European Court of Human Rights to dismiss the case as manifestly ill-founded (within the meaning of Article 35(3) of the European Convention on Human Rights (pdf)).…

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Students and Obscenity

22 October, 200731 July, 2013
| 3 Comments
| criminal libel, Freedom of Expression, Obscenity, US Supreme Court

At the University of Washington and Lee‘s branch of the American Constitution Society event last Thursday, I heard Rodney Smolla (Dean of that university’s First Amendment issues: the speech rights of high school students (on which contrast here and here), and First Amendment law on obscenity.

High School Speech
(Insert High School Musical joke to taste here).

'Bong Hits 4 Jesus' protest, via WSJ.The first case he discussed was Morse v Frederick 551 US __ (2007) (Justice Talking (NPR) | oyez | wikipedia), in which the Supreme Court had to decide whether a banner bearing the slogan “Bong Hits 4 Jesus” at a school outing to watch the Olympic torch run through town (though not on school property) got First Amendment protection. Roberts CJ held that, because schools may take steps to safeguard students from speech that can reasonably be regarded as encouraging illegal drug use, the school did not violate the First Amendment by confiscating the banner and suspending the student.

Dean Smolla argued that there were three key elements to Roberts CJ’s reasoning. …

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To do a great right

10 October, 200712 July, 2016
| 2 Comments
| Blasphemy, Cinema, television and theatre, Freedom of Expression, Media and Communications

Merchant of Venice Poster, via about.com

And I beseech you,
Wrest once the law to your authority:
To do a great right, do a little wrong,
And curb this cruel devil of his will.

The Merchant of Venice: Act 4, Scene I

I think it is rather as though Jack Straw has been seduced by Bassanio’s arguments. For, to do a great right by the gay community, he has this week chosen to do what he must regard as no more than a little wrong to the right to freedom of expression.

The UK already has legislation on incitement to racial hatred (as does Ireland, also here), it has recently extended that legislation to cover incitement to religious hatred, and just this week Straw announced the UK government’s intention to extend it further to cover incitement to hatred based on sexual orientation. …

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If t-shirts could talk …

3 October, 200731 July, 2013
| 8 Comments
| Freedom of Expression, US Supreme Court

The Ranks in their tee-shirts… they might get you in trouble. Oh, wait a minute – they do!

Say you wanted to attend a political rally to indicate your disapproval of the speaker in a way that made your position clear but did not in fact disrupt the proceedings in any way. Why not try the age-old slogan t-shirt? Well, that’s what Jeff and Nicole Rank did when they attended a Fourth of July appearance in 2004 by President Bush at the West Virginia State Capitol wearing t-shirts critical of the president (see picture, left). There the story should have ended; but it didn’t. The Ranks were promptly arrested – and handcuffed – for their troubles! But the American Civil Liberties Union (ACLU) represented them in a case against the White House (that didn’t seem to get nearly enough coverage at the time, though there’s a wonderful article about it in the New Republic), arguing:

Two Americans went to see their president and to express their disagreement with his policies respectfully and peacefully. They were arrested at the direction of federal officials. That is precisely what the First Amendment was adopted to prevent.

Don’t take the ACLU’s word for it; the Supreme Court of the United States has said so too, in a famous First Amendment case called Cohen v California 403 U.S.…

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Defamation, privilege, and a public interest defence, in the Irish High Court

1 October, 200731 July, 2016
| 16 Comments
| Defamation, Freedom of Expression

Judge Charleton At the end of June, communications consultant Monica Leech lost a high-profile libel action against the Irish Independent; in essence, the jury found that the article in question by Frank Kahn did not bear the defamatory meanings which she had sought to attribute to it. Given the profile of the case, there was much media (Breaking News | Irish Independent | Irish Times (sub req’d) | Irish Times (sub req’d) | RTÉ) and online (Blurred Keys | JC Skinner | Of Laws and Men | Our Man in Gdansk) reaction.

However, there is more to the case than the newsworthiness of a high profile libel loss. In fact, Mr Justice Charleton (pictured above left) made an important ruling during the course of the trial, which as Mary Carolan pointed out in the Irish Times the following Saturday gives more leeway to media on libel defence (sub req’d). The Best of Both Worlds described it as a slight gain for free speech. I think it is rather more than that. I think that it is an important affirmation of the acceptance into Irish law of a defence (which the judge called a “public interest” defence) which has been developing and strengthening elsewhere in the common law world.…

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Amnesty advert

16 July, 200720 December, 2008
| 2 Comments
| Freedom of Expression, Media and Communications

The Irish Section of Amnesty International is broadcasting the following advertisement on Irish television:





A slightly longer, generic version is available here. It is a powerful advertisement, well worth the half-minute it will take to watch it; but it raises an interesting question. Is it a political advertisment within the meaning of section 20(4) of the Broadcasting (Authority) Act, 1960 and section 10(3) of the Radio and Television Act, 1988, which provide that no advertisement shall be broadcast which is “directed towards any religious or political end …”?

As we have seen several times on this blog (here, here, here, here and here), many advertisements have fallen foul of this prohibition, from Trócaire‘s most recent lenten advertisment, through the Interim National Consumer Agency‘s campaign against price controls on groceries, to EU Commission advertisments extolling the virtues of the European Union. It is a silly and unjustifiable restriction on political speech, but it has survived scrutiny in the Irish and English courts, and the European Court of Human Rights has upheld restrictions on religious advertising. On the other hand, that Court has struck down prohibitions on political advertising, as has the US Supreme Court, just at the end of last month.…

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Defaming the Polish People

3 July, 20073 July, 2007
| 2 Comments
| Freedom of Expression

Via Of Laws and Men, I have come late to the following story from Roy Greenslade:

El Pais, via its siteThe Spanish newspaper El País and a writer, Pilar Rahola, are facing legal action in Poland for “defaming the Polish people.” The authorities were outraged by an article by Rahola, published in March, which claimed that Polish democracy was suffering from the political influence of the Catholic Church, official homophobia and widespread racism. Juan Luis Cebrián, the chief of the group that owns El País, described the lawsuit as an “utterly bizarre and unreal initiative.” (Via Reporters without Borders)

Background: Pilar Rahola (personal website | wikipedia), a former Spanish MP, political activist and author, is quite a colourful character all round; her original article “Polonia y el surrealismo” is here (I think – it’s in Spanish, which I don’t read; but the date is right, and the title is suggestive, even to me); there is a reaction to it here; the Reporters without Borders article is here; and there is another reaction to the Polish prosecution here.

Given that it was my view that any attempt to prosecute former Polish President Lech Walesa for insulting his current successor could not survive challenge in the European Court of Human Rights on foot of Article 10 of the European Convention of Human Rights, it will not come as a suprise that I don’t think that any prosecution of Rahola could either.…

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Unwritten books, unshown art

28 June, 200713 March, 2008
| 4 Comments
| Blasphemy, Censorship, Freedom of Expression

'Satanic Verses' cover from publishers' websiteSalman Rushdie’s knighthood has provoked many responses in the print and broadcast media and online, including a post on this blog. But the best I’ve seen is by Andrew Anthony in this week’s Observer: Sir Salman is a godsend to literature and free speech.

Anthony’s piece is very well written and definitely repays reading; here’s a flavour:

… Few appeared to realise that a massive symbolic attack had been launched [by Khomeni’s 1989 fatwa against The Satanic Verses] against the most vital freedom, not only in art but in society, the freedom of expression. Still less that our rather timid and repentant response would encourage religious extremists and censors.

Who can calculate how many books have subsequently gone unwritten and artworks unshown? We do know that the play Behzti was closed down in a theatre in Birmingham by a Sikh mob. We know that John Latham’s God Is Great was removed from the Tate gallery, even without complaints, due to the fear that it might cause offence. We know that the Danish cartoons were not published in this country, when they were the biggest story in the world. And abroad, countless intellectuals, writers and politicians now require round-the-clock police protection.

…

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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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