Does Expression Have Any Freedom Left? Murphy v. Independent Radio and Television Commission
| Author | Robert Cannon |
| Position | Junior Sophister Law student, Trinity College, Dublin |
| Pages | 126-143 |
Trinity College
Law
Review
DOES
EXPRESSION
HAVE
ANY
FREEDOM
LEFT?
MURPHY
V.
INDEPENDENT
RADIO
AND
TELEVISION
COMMISSION
ROBERT
CANNON*
Introduction
Right
conclusions
are
more
likely
to
be
gathered
out
of
a
multitude
of
tongues,
than
through
any
kind
of
authoritative
selection.
To
many
this
is,
and
always
will
be folly;
but
we have
staked
upon
it
our
all.
Judge
Learned
Hand,
U.S.
v.
Associated
Press'
The
Irish
Constitution
purports
to
protect
these
"tongues"
in
Article
40.6.1
.i,
which
guarantees
"the
right
of
citizens
to
express
freely their
opinions
and
convictions". This
right
is
extended
to
protecting
the
"the
rightful liberty
of
expression"
of
"the
organs
of
public
opinion".
The
only
grounds expressly
stated
for
limiting
the
right
on
the
basis
of
the
common
good
are
"public
order,
morality
or
the
authority
of
the
State"
and
the
fact
that the
expression
is
"blasphemous,
seditious,
or
indecent".
However,
in
a
succession
of
cases
over
the
last
15
years, the
scope
of
application
of
the
freedom
of
expression
guarantee has
been
restricted.
Its
protection
has been
limited
to
certain
statements
of
public opinion,
as
opposed
to
statements
of
mere
information.
2
The
onus
has
been
placed
on
the
plaintiff
to
show
that
the
State's
decision
.
Junior
Sophister
Law
student,
Trinity
College,
Dublin.
Mr.
Eoin
O'Dell,
Lecturer
in
Law,
TCD
reviewed
an
earlier draft
of
this
article
and
the
author,
while
retaining responsibility
for
all
errors
of
law,
form
and fact,
would
like
to
acknowledge
his
assistance.
1
(1943)
52
F
Supp
362, 372.
2
Attorney
General
v.
Paperlink
Ltd.
Kearney
v.
Minister
for
Justice
52;
Oblique
Financial
Services
Ltd.
v.
The
Promise
Production
Co.
Ltd.
74;
Carraigaline
Community
Broadcasting
Co.
Ltd.
v.
Minister
for
Transport,
Energy
and
Communications
241.
[Vol.
I
Does
Expression
Have
Any
Freedom
Left?
that certain speech
should
be
restricted
in
the
public
interest
is
unreasonable,
rather
than vice versa.3
The
judiciary
has
been
unwilling
to
examine
whether
the
degree
of
restriction
of
speech
is
really
proportional
to
the
alleged
reasons for
its
necessity.
4
Very
little
consideration has
been
given
to
the
wider
role
freedom
of
expression
plays,
both
in
energising
democracy
and
in
facilitating
the
exercise
of
other
constitutional
rights.
This article
considers
the
protection
afforded
by
the
provisions
of
the
Irish
Constitution
and
examines
the
implications
of
the
recent
case
of
Murphy
v.
Independent
Radio
and
Television
Commission.
5
It
is
important
to
note
that
in
many
of
the
cases
in
which Article
40.6.1
.i
has
been
invoked,
it
has either
been
merely
a
secondary
issue
6
or
it
was raised
during
interlocutory proceedings,
which
did not
explore
the
issue
fully.
7
In
Murphy
v.
IRTC
however,
the
legislation involved
was
challenged
in
a
full
hearing
in
which
legislation
was
challenged
chiefly
on
the
ground that
it
was
contrary
to
Article
40.6.1
.i,
so
providing
an
opportunity
for
Geoghegan
J.
in
the
High
Court
to
engage
with
the
constitutional
provision
directly.
In
this
article,
it
is
proposed
to
look
firstly
at
the
importance
of
freedom
of
expression
as
a
social
value,
in
order
to
illustrate
the
point
that
restrictions
on its
exercise should be strictly
construed.
Then
some
of
the
Irish
cases
dealing
with
Article
40.6.1
.i
will
be
examined
and
it
will be
argued
that
they
fail
to
given adequate
protection
to the
right
to
free
expression.
Finally,
the
decision
in
the
Murphy
case
will
be
considered
and
it will
be
asked
whether,
following
this
judgment,
Article
40.6.1
.i
has
become
so
limited
as
to be
meaningless.
3
The
State
(Lynch)
v.
Cooney
4The
State
(Lynch)
v.
Cooney
337;
Brandon
Book
Publishers
v.
RTE
806.
'
467.
6
Carraigaline
Community
Broadcasting
Co.
Ltd.
v.
Minister
for
Transport, Energy
and
Communications
241;
Attorney
General
v.
Paperlink
Ltd.
373.
7
Nova
Media
Ltd
v.
Minister
for
Posts
and
Telegraphs
161;
Cullen
v.
Toibin
577;
Attorney
General
for
England and
Wales
v.
Brandon
Book
Publishers
Ltd
135.
1998]
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