Two very different stories in the media over the last few days have coalesced in my mind over the weekend. The first story is the announcement by the President of seven appointments to the Council of State. The second is the debate in the US about the recusal of Supreme Court Justices from forthcoming challenges to health care legislation.

The Council of State is established by Article 31 of the Constitution, and its primary role is “to aid and counsel the President”. The first meeting was convened by President Douglas Hyde on 8 January 1940, and a large painting of the event (pictured above left) by Simon Coleman hangs in Áras an Uachtaráin, in a reception room now called the Council of State Room. At the end of last week, the recently-elected President Michael D Higgins announced the appointment of Michael Farrell, Deirdre Heenan, Catherine McGuinness, Ruairí McKiernan, Sally Mulready, Gearóid Ó Tuathaigh, and Gerard Quinn to the Council.

Among the specific functions ascribed to the Council by the Constitution, Article 26.1.1 provides that the President may, after consultation with the Council of State, refer a Bill to the Supreme Court to determine whether the Bill is constitutional or not. This power is by far the most common reason why Presidents have summoned the Council. For example, the first meeting was called so that the Council could advise the President on whether to refer the Offences against the State (Amendment) Bill, 1940 to the Supreme Court. The President decided to do so; the Court upheld the constitutionality of the Bill; and it was duly enacted as the Offences Against the State (Amendment) Act, 1940. Indeed, there were reports over the weekend that Government ministers have discussed the possibility of President Higgins referring legislation concerning an EU fiscal treaty to the Supreme Court.

The President’s appointments to the Council made me think again about the procedures under Article 26. Since Article 31.2 provides that the Chief Justice is an ex officio member of the Council of State, this means that the Chief Justice is a member of the body which advises the President as to whether a Bill should be referred to the Supreme Court. However, as Article 34.4.2 provides that the Chief Justice is the President of the Supreme Court (and thus head of the judiciary), it is natural that the Chief Justice would sit on any reference to the Supreme Court pursuant to Article 26. Indeed, there have been 15 such references to date; and, not only did the Chief Justice of the time sit in all 15 references, he gave the judgment of the Court in every case! The question which has arisen in my mind is whether it is appropriate for the Chief Justice to participate in both stages of this process. The Constitution plainly allows for this, and it has happened in every case so far, but my question is whether this practice should continue. Read the rest of this entry »

Randall P Bezanson has just pubished another very important book on on Art and Freedom of Speech (University of Illinois Press, 2009), exploring the decisions of the US Supreme Court relating to artistic expression under the First Amendment. From the abstract:

… In considering the transformative meaning of art, the importance of community judgments, and the definition of speech in Court rulings, Bezanson focuses on the fundamental questions underlying the discussion of art as protected free speech: What are the boundaries of art? What are the limits on the government’s role as supporter and “patron” of the arts? And what role, if any, may core social values of decency, respect, and equality play in limiting the production or distribution of art?

Accessibly written and evocatively argued, Art and Freedom of Speech explores these questions and concludes with the argument that, for legal purposes, art should be absolutely free under the First Amendment–in fact, even more free than other forms of speech.

In matters that have recently featured on this blog, his views on blasphemy (discussed here) and treaspassory art (discussed here) will resonate with our recent blasphemy and Cowengate controversies.

Mark Tushnet has written an excellent discussion of Bezanson’s book. Posing the question “Why exactly are Jackson Pollock’s paintings protected by the First Amendment?”, he argues that

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. …

This isn’t to say that Bezanson’s proposed solution to the problems posed for the First Amendment by non-representational art is satisfactory. He says that art should be absolutely protected against government sanction, even more so than propositional speech. … Bezanson sometimes seems to think that his absolute rule is tolerable because he would apply it only to serious art. … Early on, Andy Warhol’s work wasn’t “serious” enough. Now it’s central to the study of mid-twentieth century art, full stop. Rules that purport to make important differences turn on a distinction between serious art and unserious “art” are unlikely to succeed.

It’s worth reading Tushnet’s review in full, and then it’s worth reading Bezanson’s book too. It demonstrates that the most profound questions about freedom of expression are often raised not in the context of the participatory political process but in the contested field of human emotions. The problems outlined in the book are universal; the analysis may be centred on the First Amendment; but it will surely provide a sure guide if and when the issues come up in other courts on foot of other free speech guarantees.

As I wrote in my previous post, the Supreme Court in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf)) allowed the appeal against the decision of the High Court in Mahon v Keena [2007] IEHC 348 (23 October 2007). Fennelly J delivered the judgment of the Court, in which Murray CJ and Geoghegan, Macken and Finnegan JJ concurred, and its effect is that two Irish Times journalists could decline to answer questions about their sources (unsurprisingly, there is a lot of coverage in that paper: see here, here, here, here and here).

1. Introduction
There are at least three important aspects to Fennelly J’s decision. The first relates to his almost exclusive reliance on the European Convention on Human Rights (ECHR), rather than the Irish Constitution. The second relates to his approach to the issues in general and to his treatment of the High Court judgment in particular: in short, he felt that the High Court had overstated the balance against the appellants. And the third relates to what he had to say about the nature of a journalist source privilege: in short, he preferred to avoid such language in favour simply of a balancing test. Taking all these issues into account, I’m not convinced that it is an unequivocal recognition of a journalist source privilege as a matter of Irish law; instead, it seems to me that this is a very carefully circumscribed decision which is, at best, a muted victory for the journalists. Read the rest of this entry »

Louis D Brandeis (left), as lawyer, and as judge of the US Supreme Court, championed such unpopular causes as freedom of speech, privacy and worker protection. Arising from his belief that law is a device to shape social, economic, and political affairs, one of his enduring legacies is what has become known as the Brandeis Brief: a legal argument which relies not only on legal argument but also on analysis of empirical data. It was first deployed by Brandeis in Muller v Oregon 208 US 412 (1908), where he marshalled statistics from medical and sociological journals which demonstrated overwork was inimical to the workers’ health to support his argument that legislation limiting hours for female laundry workers was constitutional. The Law School of the University of Louisville is named for Brandeis, and I learn from Dan Ernst on Legal History Blog that Louisville have now made the original Brandeis Brief available online.

From a European Court of Human Rights press release:

Orban v France (application no. 20985/05)

The Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights on account of the applicants’ conviction for, among other offences, publicly defending war crimes, following publication of the book Services Spéciaux Algérie 1955-1957 (“Special Services: Algeria 1955-1957”) …

The Court considered that the applicants’ conviction amounted to interference with their right to freedom of expression. The interference had been prescribed by French law and had pursued the legitimate aim of preventing disorder or crime. The Court stressed above all that it was not for it to rule on the constituent elements of the offence of publicly defending war crimes, its role being confined to ascertaining whether the applicants’ conviction on account of the publication of the book in question could be said to have been “necessary in a democratic society”.

On the question whether the interference had been “necessary in a democratic society”, the Court observed first of all that the authorities had had only a limited margin of appreciation, circumscribed by the interest of a democratic society in enabling the press to impart information and ideas on all matters of public interest and guaranteeing the public’s right to receive them. Those principles also applied to the publication of books in so far as they concerned matters of public interest. … the Court reiterated that freedom of expression within the meaning of Article 10 was applicable not only to “information” or “ideas” regarded as inoffensive or as a matter of indifference, but also to those that offended, shocked or disturbed. Accordingly, penalising a publisher for having assisted in the dissemination of a witness account written by a third party concerning events which formed part of a country’s history would seriously hamper contribution to the discussion of matters of public interest and should not be envisaged without particularly good reason.

Full text is available here, in French; commentary is available here from Jurist.

From First Amendment Law Prof Blog:

Last week the [US Supreme] Court declined to review the Third Circuit’s most recent opinion finding the Child Online Protection Act (COPA) unconstitutional. The denial of review in Mukasey v. American Civil Liberties Union 534 F.3d 181 (3d. Cir. 2008) [pdf] effectively marks the demise of the statute which has made its way up and down in the federal courts for years. COPA’s provisions, which criminalized web transmissions that were “harmful to minors” and that were made for commercial purposes, were found unconstitutional by the Third Circuit in July because they were not narrowly tailored to advance the government’s compelling interest, failed to reflect available less speech restrictive mechanisms to protect children from the targeted web content, and were overbroad and vague. …

The denial of cert is recorded here; OUT-LAW has a good discussion here, and Jurist has a good one here.

NPR

CNN

New York Times here and here

Washington Post here and here.

Full size image here.



Back row (l to r): Stephen Breyer, Clarence Thomas (is it significant that he’s looking to his right?), Ruth Bader Ginsburg, Samuel Alito.

Front Row (l to r): Anthony Kennedy, John Paul Stevens (is it significant that he’s looking a little uneasy?), Chief Justice John Roberts, Antonin Scalia, David Souter.

Let the games begin.

Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.

For a people who are free, and who mean to remain so, a well-organized and armed militia is their best security.

Thomas Jefferson

In 1972, the Supreme Court of the United States decided Roe v Wade 410 US 113 (1973) (Findlaw | Justicia | Oyez | wikipedia), which held the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the (penumbral) right to privacy, including a woman’s qualified right to terminate her pregnancy. It was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. The Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has subsequently given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

In 2008, the Supreme Court of the United States decided US v Heller 554 US __ (2008) (official pdf | Findlaw report) (Balkinization | Mike O’Shea on Concurring Opinions | NRA | Posner | ScotusWiki | Volokh | Wikipedia), which held that the Second Amendment to the US Constitution protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. As with Roe, it, too, was a controversial decision which demonstrated that the Court was at the vanguard of the dominant public political mood. Again, the Court was sharply divided; the case was decided on the basis of contestable constitutional theory; and it has already given rise to a huge amount of analysis and scholarship, as well as much partisan social commentary and political scheming.

But there is one obvious difference between the two cases: whereas Roe stands as the highpoint of liberal judicial activism and reflects a then quite dominant liberal political perspective, Heller stands as a similar highpoint of conservative judicial activism and reflects a now very marked conservative political perspective.

These similarities and differences raise some important questions. For example, Roe became a rallying-point for legal, social and political opposition (update: backlash) to judicial and political liberalism; will Heller become a similar rallying-point for legal, social and political opposition to judicial and political conservatism? Moreover, views on the correctness of Roe have become a litmus test for Republican nominees to the Court; will Heller similarly become a litmus test for Democratic nominees to the Court?

Finally, if (and when?) there is a majority on the Court to reverse Roe, will they do it? Or will they baulk at such a naked exercise of judicial-political power? Or are there other judicial/political considerations afoot? Or will they realise that to overrule Roe simply because they disagree with its political underpinning would be to eviscerate the doctrine of precedent? If they do overrule Roe, then every decision of the Court is up for grabs, even the case that overrules Roe, and yes, even Heller!

As Bridget said in the comments to yesterday’s post about the US Supreme Court’s decision in the death penalty case, Baze v Rees:

Intellectual commentary might come later.

Here’s my first try. Read the rest of this entry »