Here we go again

The headline in today’s Sunday Independent says it all: Shock as ad on autistic children banned. Niamh Horan reports:

A new advertisement highlighting the urgent needs of autistic children in Ireland has been banned from radio stations on the grounds that it is too political.

Now Irish Autism Action [IAA], which champions the rights of Irish children suffering from autism, has said they are surprised that the ad was banned by both the Broadcasting Commission of Ireland (BCI) and the national State broadcaster, RTÉ.

We have been here before. As has already been discussed on this blog (here, here, and here), section 20(4) of the Broadcasting (Authority) Act, 1960 and section 10(3) of the Radio and Television Act, 1988, provide that no advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute. No doubt, as charities increasinlgy continue to make social arguments which can be described as political (in the sense of advocating changes to society or to social policy which they see as necessary or desirable), we will be here again.

A little while ago, Daithí called on bloggers to suggest some legal changes that political parties might take up during the election. Here on this blog, and elsewhere, I made a suggestion relating to expanding fair use of copyright material. My appeal to RTÉ to make the forthcoming Prime Time debate between Bertie Ahern and Enda Kenny available online without restriction so that it can be shared and reused without fear of copyright infringement demonstrates the need for such a broader conception of fair use. But I want to ask Daithí if I can make a second legislative suggestion. It is this, that the ban on political (and religious) advertising be repealed. The IAA advertisment calls attention to what Cormac Rennick, chairman of the charity, described as “the dire lack of educational facilities for autistic children in Ireland”. What is it about this that justifies its prohibition?

As I have explained in the earlier posts (especially this one), the constitutionality of these bans has been upheld by the Courts. In Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf), the Supreme Court upheld the ban on religious advertising; in Colgan v IRTC [1998] IEHC 117, [2000] 2 IR 490; [1999] 1 ILRM 22, applying Murphy, the High Court upheld the ban on political advertising.

In Murphy, it what seemed a great advance on previous free speech jurisprudence, Barrington J for the Supreme Court accepted that restrictions on freedom of expression (as with restrictions on other constitutional rights) must

(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,
(b) impair the right as little as possible, and
(c) be such that the effects on rights are proportional to the objective.

As for the objective of section 10, looking at three bans collectively, Barrington J held:

All three kinds of banned advertisement relate to matters which have proved extremely divisive in Irish society in the past. The Oireachtas was entitled to take the view that the citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements, if permitted, might lead to unrest. Moreover, the Oireachtas may well have thought that in relation to matters of such sensitivity, rich men should not be able to buy access to the airwaves to the detriment of their poorer rivals.

So, religious, political and trades disputes advertising (i) might lead to unrest, and (ii) anyway, it’s unfair that rich men should be able to buy access to the airwaves and drown out other voices. Now, plainly, neither concern applies to the IAA’s advertisment: they are a charity seeking a change in policy relating to autistic children, not a revolutionary movement summoning riotous supporters to the barricades, or a Machiavellian billionaire seeking to influence policy for sinister reasons. And this demonstrates how threadbare and implausible the objective sought to be pursued by section 10 actually is. In neither Murphy nor Colgan, for example, did the court interrogate the modern reality of the objectives of either pubic disorder or drownout. Moreover, in both cases, the courts accepted that there were other, less restrictive means, available to the Oireachtas to achieve the same objectives. Nevertheless, in both cases, the courts held that the bans in section 10 were proportionate (and thus Constitutionally defensible) responses to these concerns.

I have long thought that, having taken one step forward by articulating the three-step proportionality test in the free speech context, the courts then took two steps backward by applying it with extraordinary deference to the Oireachtas. In particular, the legal standard, “that such advertisements, if permitted, might lead to unrest” seems to me an entirely inappropriate standard on which to sustain the constitutionality of legislation. It means that rights can be infringed on the basis of state supposition. In my view, in principle, it is not enough that the State apprehends the potential for a harmful or undesirable event or state of affairs; that harm ought to be reasonably imminent before the State can intervene to restrict rights. And, as the advertisements at issue in Murphy, and Colgan, as well as those banned by RTÉ and the BCI (many of which are gathered here), all demonstrate, there is little, if any, reality to the fears of public disorder or wholesale purchase of the airwaves. To the extent that these fears are justified, a far more narrowly crafted ban, directed specifically towards public disorder and drownout. But the time has come to repeal the overbroad prohibition that prevents charities the IAA from arguing their case in broadcast advertisements.