Normal service is being resumed: religious and political advertising bans

Regular readers of this blog will know that section 20(4) of the Broadcasting Authority Act, 1960 (also here) and section 10(3) of the Radio and Television Act, 1988 (also here) as amended by section 65 of the Broadcasting Act, 2001 (also here) prohibit broadcast advertising in Ireland directed to any religious or political end (see here | here | here | here | here | here).

Edit: The remainder of this long post discusses the validity of such bans in the US, the ECHR, Ireland and the UK, by way of background three recent developments: debate about a failure to take a current legislative opportunity to amend the Irish legislation, another ban on an Irish religious advertisement, and an ECHR decision striking down a political advertising ban.

It is deeply unlikely that such advertising bans would be upheld in the US. Political speech gets the highest degree of protection in modern First Amendment jurisprudence, and the Supreme Court has long equated religious and political speech (see, eg, Cantwell v Connecticut 310 US 296 (1940)) so that each attract the highest degree of protection and the strictest degree of scrutiny.

The position is rather different in the European Court of Human Rights. As in the US, political speech gets the highest degree of protection under Article 10 of the European Convention of Human Rights; the traditional scrutiny test (of proportionality) is applied most strictly in this context; and the Court affords member states very little room to manoeuvre (that is, margin of appreciation) in their initial application of these principles. Hence, in VgT Verein Gegen Tierfabriken v Switzerland 24699/94 (2002) 34 EHRR 159, [2001] ECHR 412 (28 June 2001) (also here), the Court struck down a political advertising ban. On the other hand, unlike in the US, religious speech is not equated with, but is sharply differentiated from, political speech: the proportionality test is applied very flexibly in this context; and the Court affords member states quite a considerable margin of appreciation in their initial application of these principles. Hence, in Murphy v Ireland 44179/98 (2003) 38 EHRR 212, [2003] ECHR 352 (10 July 2003) (also here), the Court upheld the Irish ban on religious advertising.

In Ireland, the position is different again. In Murphy v Independent Radio and Television Commission [1999] 1 IR 12, [1998] 2 ILRM 360 (28 May 1998) (doc | pdf) (the case from which Murphy v Ireland (above) is the appeal to the ECHR), the Supreme Court upheld as constitutional the religious advertising ban in the 1988 Act, and did so by means of a pliant application of the proportionality standard of review. Then, in Colgan v IRTC [2000] 2 IR 490, [1999] 1 ILRM 22, [1998] IEHC 117 (20 July 1998), the High Court declined an invitation to apply a higher standard of review to the political advertising ban in the same section. Instead, the Court essayed the same benign application of the proportionality standard of review, and upheld the political advertising ban in the 1988 Act as well.

Finally, although a religious advertising ban has not been not challenged in the UK’s courts, a political advertising ban (in sections 319 and 321 of the Communications Act 2003; see the relevant OFCOM codes here) was upheld in R (on the application of Animal Defenders International) v Secretary of State for Culture Media & Sport [2008] UKHL 15 (12 March 2008) (also here). VgT came in for some sustained criticism: Lord Bingham doubted that the full strength of the argument that the playing field of debate should be so far as practicable level had been deployed in VgT; Baroness Hale (taking the Colgan line) felt that the need to strike a fair balance between the competing interests is stronger in the political than in the religious context; and Lord Scott blithely doubted that the ECHR would disagree with their conclusion. In the earlier R v BBC ex parte Pro Life Alliance [2003] UKHL 23; [2004] 1 AC 185 (10 April 2003) (also here) Lord Walker had taken a similar line, holding that the judgment in VgT did not give full or clear reasons for its far-reaching conclusions; whilst Lord Hoffmann held that it turned on the fact that the ban was a classic viewpoint discrimination: an earlier advertisement with a contrary message had been broadcast, but the applicant’s advertisement in response had been banned, and there was no justification for this discrimination.

(In the BBC case, the House of Lords held that the BBC could refuse to broadcast a party election broadcast with harrowing images of abortion. Reflecting their views about VgT, Lord Walker simply held that the BBC’s decision, even if reviewed with some intensity, was not wrong; whilst Lord Hoffmann took the view that the BBC’s decision was not based on a viewpoint discrimination but was instead content neutral. However, Lord Scott, dissenting, took the view that, whilst restrictions upon on speech on the grounds simply of offense to public feeling were not, per se, incompatible with Article 10, it was nevertheless overbroad of the BBC to ban a balanced, accurate and unsensationalised party political broadcast merely because it believed that the programme would be offensive to very large numbers of viewers).

In other words, the US courts equate political and religious speech, and apply the same high standard of scrutiny to both; the ECHR distinguishes between the two, and applies a high standard to political speech but not to religious speech; and the Irish courts equate political and religious speech, but seem to apply the same low standard of scrutiny to both. The UK courts haven’t directly considered the alignment between religious and political speech, but their approach in Animal Defenders (especially that of Baroness Hale) is not a million miles away from the Irish position.

This is all by way of (long – apologies!) background to a series of relatively recent developments in the context of political and religious advertising. First in time came the debate surrounding the slow-moving Broadcasting Bill, 2008. Section 43 of the Bill propose the re-enactment of the current bans on political and religious advertising, and whilst it has generated significant controversy (Clerical Whispers | Iona), it as yet remains unamended.

More recently, an advertisement by Veritas, a Catholic publisher, was banned by the BCI (see their press release on the issue | Belfast Telegraph | Irish Independent | TimesOnline); and again, this raised lots of controversy (Clerical Whispers [the source for the image at top left] | Connolly Column| Iona | Archbishop Dermot Martin (in the Irish Times) | Fr Enda McDonagh (in the Irish Times) | sharona’s shambles). Easily the best analysis of the whole issue is Daithí’s discussion The search for veritas.

Most recently, in TV Vest As & Rogaland Pensjonistparti v Norway 21132/05 [2008] ECHR 1687 (11 December 2008) (also here), the European Court of Human Rights reaffirmed VgT, and this time, the reasoning is much better (see adrian monck | Benedict Pringle | content and carrier | ECHR blog | MediaPal@LSE | Trans-Atlantic Post | OfcomWatch). The Irish and UK governments intervened in the case (to preserve Colgan and Animal Defenders) but the Court unanimously reaffirmed that a political advertising ban was contrary to Article 10. The best analysis of the case is Daithí’s discussion Christmas comes early, but I think that it is a far more significant judgment than he gives it credit for. He says that there’s not a huge amount in TV Vest that wasn’t in VgT, and simply constitutes a fairly logical gloss on the earlier case. However, in my view, however, TV Vest is very significant: it is untangled by issues of viewpoint discrimination which complicate VgT; the Court’s reasoning is much tighter and far more principled; and its conclusion – rejecting the view that there was no viable alternative to a blanket ban on political advertising – goes right to the heart of the reasoning in Animal Defenders. If and when that case reaches the ECHR, it seems unlikely – despite Lord Scott’s glib Victorian imperialism – that it can be sustained. In turn, of course, this would raise legitimate questions about the soundness of Colgan. It would be much better, though, if the opportunity were taken to amend the Broadcasting Bill, 2008.