The decision of Phelan J in Tallon v Director of Public Prosecutions  IEHC 322 (31 May 2022) is a recent and important judgment on the scope of the free speech rights protected by Article 40.6.1(i) and Article 40.3.1 of the Constitution. It concerns the extent to which an anti-social behaviour order imposed pursuant to section 115(1) of the the Criminal Justice Act, 2006 (also here) can permissibly restrain constitutional free speech rights.
2. Free speech rights in the Irish Constitution
2.1 The freedom of political expression
The right “to express freely … convictions and opinions” contained in Article 40.6.1(i) of the Constitution is now understood, broadly speaking, as a freedom of political expression, concerned with the public activities of citizens in a democratic society (see Murphy v Irish Radio and Television Commission  1 IR 12, 24,  2 ILRM 360, 372, (28 May 1998) - (doc | pdf) (Barrington J; Hamilton CJ, O’Flaherty, Denham, and Keane JJ concurring) building on Irish Times v Ireland  1 IR 359,  2 ILRM 161 (2 April 1998) (doc | pdf) (Barrington J)). And, in Dunnes Stores v Ryan  IEHC 61 (5 June 2002), Kearns J in the High Court struck down section 19(6) of the Companies Act, 1990 (also here), which required a company to provide an explanation or make a statement to an officer making inquiries about the company, on the grounds, inter alia, that it infringed the right to silence implied into Article 40.6.1(i) (a right now being relocated to Article 38.1 of the Constitution insofar as it relates to the fairness of the trial process; see Director of Public Prosecutions v M  1 IR 810,  IESC 21 (21 March 2018)  O’Malley J (Clarke CJ and O’Donnell, Dunne and Charleton JJ concurring); Sweeney v Ireland  IESC 39 (28 May 2019)  (Charleton J; O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ concurring); Director of Public Prosecutions v Carroll  IECA 261 (13 October 2021)  (Donnelly J; Edwards and McCarthy JJ concurring)). Update: the process has been completed by DPP v JD  IESC — (24 October 2022)  (MacMenamin J; O’Donnell CJ, and O’Malley, Baker and Woulfe JJ concurring): “the constitutionally guaranteed rights to silence and protection against self-incrimination are guaranteed under Article 38.1 of the Constitution”.
2.2 The freedom of autonomous communication
On the other hand, the freedom of autonomous communication implied in Article 40.3.1 is concerned with conveying needs and emotions by words or gestures as well as by rational discourse, and inheres in citizens by virtue of their human personality (Murphy v IRTC (above); rationalising Attorney General v Paperlink  ILRM 373, 381,  IEHC 1 (15 July 1983)  (Costello J)). And, in Dillon v Director of Public Prosecutions  IEHC 480 (4 December 2007) (pdf; noted here), de Valera J struck down section 3 of the Vagrancy (Ireland) Act 1847 as a vague statutory restriction upon begging that infringed various provisions of the Constitution, including the free speech rights in Article 40.6.1(i) and Article 40.3.1 (though the best explanation of the case may very well be simply that the section was unconstitutionally vague as that concept is explained by Charleton J in Sweeney (above)).
2.3 The freedoms of political expression and autonomous communication
The Irish Constitution therefore contains (at least) two speech rights: a freedom of political expression in Article 40.6.1(i), and a freedom of autonomous communication in Article 40.3.1. They are different, though related, rights. This bifurcated protection reflects the two general justifications for the protection of freedom of expression, rooted respectively in considerations of democracy and autonomy. The freedom of autonomous communication was implied into Article 40.3.1 as a response to a narrow approach to Article 40.6.1(i) (see Paperlink (above)  (Costello J)), but that narrow approach has been superseded by Murphy v IRTC (above). There are strong arguments that the narrow reading of Article 40.6.1(i) and the implication of an unenumerated right into Article 40.3.1 were unnecessary, and that all of the constitutional protections for freedom of speech should be (re-)integrated into Article 40.6.1(i) (see Tom Daly “Strengthening Irish Democracy: A Proposal to Restore Free Speech to Article 40.6.1(i) of the Constitution” (2009) 31 Dublin University Law Journal (ns) 228 (academia); Robert Noonan “The Ontology of the Subject of Rights: Post-Modern Perspectives on the Irish Constitution through a Case Study on the Right to Free Speech” (2014) 13(1) Cork Online Law Review 71). However, the Courts have made a virtue of necessity, and have now committed to a stable pair of constitutional free speech rights. Although there is a certain overlap between them, nevertheless they are clearly separate. In this way, the commingling or conflating of their different philosophical – democracy and autonomy – justifications can be avoided; their different consequences can be independently explored; and their different ambits of application can be clearly identified. All of this ensures that they can each develop independently, and in an appropriate fashion (for more on all of this, see my paper “A Little Parthenon No Longer: The Proportionality of Tobacco Packaging Restrictions on Autonomous Communication, Political Expression and Commercial Speech” (2018) 69(2) Northern Ireland Legal Quarterly 175-211 (SSRN)).
3. Proportionally restricting free speech rights
In Murphy v IRTC Barrington J explained that, when there is a restriction on a constitutional right, the state can justify it if it meets a legitimate aim and is proportionate to that aim. Constitutional text often provides examples of such legitimate aim; for example, Art 40.6.1(i) permits the state to legislate for reasons of “public order or morality”. Moreover, the exercise of constitutional rights “may be regulated by the Oireachtas when the common good requires this” (Ryan v Attorney General  IR 294, 312 (HC; Kenny J) affd  IR 294, 345,  IESC 1 (3 July 1965)  (Ó Dálaigh CJ; Lavery, Kingsmill Moore, Haugh and Walsh JJ concurring); see, recently, Burke v Minister for Education  IESC 1 (24 January 2022)  (O’Donnell CJ)). In Murphy v IRTC Barrington J gave two examples of the common good: the case concerned a ban on religious advertising in section 10(3) of the Radio and Television Act, 1988 (also here), and Barrington J (at ) held that the ban in section 10(3) could be justified either to prevent public unrest, or to ensure that, in matters of sensitivity, rich people “should not be able to buy access to the airwaves to the detriment of their poorer rivals”.
There being two legitimate aims, the next question was whether the restriction was proportionate to them; the means chosen to achieve those aim 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 their effects on rights are proportional to the objective …
(Murphy v IRTC  (Barrington J), following Heaney v Ireland  3 IR 593, 607,  2 ILRM 420, 431 (Costello P); see now O’Doherty v Minister for Health  IESC 32 (5 July 2022) (O’Donnell CJ (pdf); Irvine P, and MacMenamin, O’Malley, Baker and Murray JJ concurring) (Hogan J (dissenting) (pdf)).
Barrington J held that the limitation placed on the various constitutional rights by section 10(3) was “minimalist” (at ) and “very slight” (at ) and that it satisfied the Heaney test. His judgment provides a very clear framework for the analysis of the compatibility of statutory provisions with constitutional rights in general, and with free speech rights in particular. But that framework has not always been applied with rigour, especially in the free speech context. In Melton Enterprises Ltd v Censorship of Publications Board  3 IR 623,  IESC 55 (4 November 2003), the Supreme Court upheld the power in section 9 of the Censorship of Publications Act, 1946 (also here) to prohibit the publication of indecent or obscene periodicals. And in Cooney v Minister for the Environment  1 IR 296,  IESC 61 (13 November 2006) the Supreme Court upheld a requirement in section 46(5) of the Electoral Act, 1992 (also here) as amended by section 1 of the Electoral (Amendment) Act, 2002 (also here) that general election candidates who are not members of registered political parties should be described on nomination and ballot papers as “Non-Party” (rather than “independent”) candidates. However, in neither case did the Court engage with, let alone apply, the framework set out in Murphy v IRTC; both refer only briefly to Article 40.6.1(i); and each turned largely on other provisions of the Constitution (Article 37.1 in Melton, and Article 16.1 in Cooney).
In Sweeny v Ireland  IEHC 702 (23 November 2017) Baker J in the High Court struck down section 9(1)(b) of the Offences Against the State (Amendment) Act, 1998 (also here), which provided for a wide offence of withholding material information from Gardaí, on the grounds that it infringed the right to silence derived from the right to freedom of expression in Article 40. Baker J said that O’Flaherty J in the Supreme Court in Heaney (above) dealt with the right to silence as a corollary of freedom of expression “by reference to Article 40.3.1”, whereas he in fact dealt with it by reference to Article 40.6.1(i). Consequently, Baker J’s judgment should be understood to refer Article 40.6.1(i) rather than to Article 40.3.1. However, the Supreme Court (sub nom Sweeney v Ireland  IESC 39 (28 May 2019)) reversed without much reference to either Article. Charleton J (O’Donnell, MacMenamin, Dunne and Finlay Geoghegan JJ concurring) held that the section was not vague and did not infringe the due process right to silence of those persons who do not wish to speak about their own involvement in a crime. As with Melton and Cooney, neither judge in Sweeny/Sweeney engaged with or applied the framework set out in Murphy v IRTC.
4. The judgment of Phelan J in Tallon v Director of Public Prosecutions  IEHC 322 (31 May 2022)
Both the freedom of political expression in Article 40.6.1(i) and the freedom of autonomous communication in Article 40.3.2 were in issue in Tallon, which concerned the power of the District Court, pursuant to section 115(1) of the the Criminal Justice Act, 2006 (also here), to make an anti-social behaviour order [an ASBO] prohibiting the respondent from doing anything specified in the order if the court is satisfied that
(a) the respondent has behaved in an anti-social manner,
(b) the order is necessary to prevent the respondent from continuing to behave in that manner, and
(c) having regard to the effect or likely effect of that behaviour on other persons, the order is reasonable and proportionate in the circumstances.
On 31 August 2020, the Wexford District Court imposed such an ASBO on the Applicant prohibiting him from engaging in public speaking and recording anywhere within the environs of Wexford Town including North Main Street Bullring, Selksker Square at any time.
The Applicant had engaged in offensive and excessively loud preaching which had impaired the use and enjoyment of people working in the vicinity of the Bull Ring in the centre of Wexford town. The Applicant argued that the ASBO went further than the facts justified, and prohibited behaviour which would not be anti-social, thereby interfering with his constitutional rights, in particular his right to freedom of expression. Phelan J (pictured) agreed. She quoted extensively from Barrington J’s judgment in Murphy v IRTC on the free speech rights in Articles 40.6.1(i) and Article 40.3.1, and on their proporationate limitation (pursuant to Heaney) on the basis of the common good (pursuant to Ryan). She held that those rights were engaged, and that the restraint of anti-social behaviour was a legitimate purpose for the ASBO, but that the order was disproportionate. The ban on speech provided for in the ASBO was much broader than the very slight restriction at issue in Murphy v IRTC (at , ). In particular, she was not satisfied that the ASBO (at )
impairs the various constitutional right[s] to freedom of expression and to communicate information as little as possible or that its effects on those rights are proportional to the objective of the … [ASBO] or indeed the legislation in providing for the making of … [the ASBO].
This is a straightforward and welcome application of the Murphy v IRTC framework. It is certainly far more satisfactory in this regard than Melton, Cooney, or Sweeny/Sweeney. But, rather than considering whether section 115(1) on its face infringed the free speech rights in Articles 40.6.1(i) and Article 40.3.1, Phelan J simply considered whether the ASBO made pursuant to that section infringed those rights, and held that it did. This leaves the section intact, at least for now. But the fact that an order so broad it was unconstitutional could have been made raises questions about the scope of section 115(1). A provision of an Act of the Oireachtas is not to be declared invalid where it is possible to construe it in accordance with the Constitution (see, eg, McDonald v Bord na gCon  IR 217, 239 (Walsh J); East Donegal Co-operative Livestock Mart Ltd v Attorney General  IR 317, 340-341 (Walsh J); Collins v Minister for Finance  IESC 73 (16 December 2016)  (Denham CJ, and O’Donnell, McKechnie, Clarke, Dunne and Charleton JJ, in a joint judgment); CRH plc v Competition and Consumer Protection Commission  IESC 34 (29 May 2017)  (MacMenamin J)). For example, Article 40.6.1(i) has been relied upon at least twice to constrain the interpretation of a statute: in both Philpott v Irish Examiner Ltd  IEHC 62 (08 February 2016) and Muwema v Facebook Ireland Ltd  IEHC 519 (23 August 2016) (noted here), Article 40.6.1(i) constrained the interpretation of section 33 of the Defamation Act 2009 (also here). Hence, if a broader challenge the section is mounted on the grounds that it disproportionately restricts the freedom of political expression in Article 40.6.1(i) and the freedom of autonomous communication in Article 40.3.1, it is more likely to be given a constitutional reading than to be struck down.
But this is for the future. For the present, in Tallon, Phelan J concluded:
… the standards of fairness inherent in the concepts of constitutional justice and equality before the law which inhere in our constitutional order are not met where a civil order is drawn under section 115 in a manner which extends beyond the mischief of anti-social behaviour covered in the evidence led before the District Court and in a manner which encroaches into areas of human activity which are perfectly lawful and are constitutionally protected. By failing to tailor the civil order made to capture recurrence of behaviour adjudged on the evidence led to be anti-social, the District Judge exceeded the jurisdiction vested under Part 11 of the 2006 Act. Similarly, the failure to tailor the order to the offending behaviour results in a disproportionate interference with the Applicant’s personal rights including his right to equality before the law and his right to freely communicate ( IEHC 322  (emphasis added)).
As a result, she held that the ASBO made under section 115 of the Act was ultra vires, and she consequently also quashed two convictions (under section 117 of the Act (also here)) for breaching the ASBO, though she upheld two other convictions for public order offences.
This reference to the right to communicate must be read with her earlier references to both free speech rights in Murphy v IRTC, and with her holding (at , quoted above) that the ASBO did not impair “the various constitutional right[s] to freedom of expression and to communicate information” as little as possible. Hence, her conclusion (at ) is is not confined to the Article 40.3.1 freedom of autonomous communication but also includes the Article 40.6.1(i) freedom of democratic expression. Indeed, this latter right is more likely to have been more fully engaged on the facts of the case; after all, the ASBO resulted from the Applicant’s attempts (albeit loud and offensive) to communicate his views on matters of public interest and concern. This is precisely the kind of public activity of a citizen in a democratic society to which the freedom of democratic expression in Article 40.6.1(i), as it is explained in Murphy v IRTC (at ), must be directed.
Although the judgment of Barrington J in Murphy v IRTC confirms the Constitution protects a freedom of political expression in Article 40.6.1(i) and a freedom of autonomous communication in Article 40.3.1, the courts have not yet fully embraced this insight. The judgment of Phelan J in Tallon is an important step on the road to the full realization of the potential in Murphy v IRTC.
On this journey, the courts will have to work out the full consequences of reading Article 40.6.1(i) as a freedom of political expression, concerned with the public activities of the citizen in a democratic society. As Hogan J (concurring in part) said in Higgins v Irish Aviation Authority  IESC 13_4 (07 March 2022 , “the right of free speech and free expression is the life blood of the democratic, rule of law based State envisaged by Article 5 of the Constitution and this … must inform our understanding of the extent and scope of the guarantee of the free expression of convictions and opinions in Article 40.6.1(i)” (and see also his remarks in Doherty v Referendum Commission  IEHC 211 (06 June 2012)  (noted here)). It is an open question of whether this freedom extends beyond political matters, and if so, how far it might go.
The courts will also have to work out the full consequences of reading the right to communicate in Article 4.3.1 as a freedom of autonomous communication, concerned with human personality, and needs and emotions. Constitutional rights, including the personal rights contained in Article 40, were adopted so that, in the words of the Preamble, “the dignity and freedom of the individual may be assured”, and those rights must be interpreted in that light (Simpson v Governor of Mountjoy Prison  IESC 81 (14 November 2019)  (O’Donnell J; Clarke CJ, and McKechnie and O’Malley JJ concurring)); and this must therefore inform our understanding of the extent and scope of the freedom of autonomous communication in Article 40.3.1. It is an open question of whether this freedom extends beyond autonomy concerns, and if so, how far it might go.
Moreover, even though there will, in many cases, be an overlap in the coverage of both rights, there will be cases where one right is more engaged than the other. Tallon was probably one where political expression was more engaged than autonomous communication. A free speech challenge to the statutory provision at issue in Melton could easily be one where autonomous communication is more engaged than political expression.
Meanwhile, Mr Tallon has returned to his preaching on Wexford’s Main Street!