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In the aftermath of Irish Family Planning Association v Ryan [1979] IR 295 (27 July 1978) (noted here and here), Prof Kieran Woodman interviewed Judge Noel Ryan (obituary), then Chairman of the Censorship of Publications Board, and the named defendant in the case (Kieran Woodman Media Control in Ireland 1923-1983 (Southern Illinois UP, 1985 | Amazon) 158). Woodman asked Ryan whether, “as a constitutional lawyer”, he considered “that the Censorship Acts were constitutionally valid?”:

The answer was slow and measured, and the words presumably weighed and chosen with care. “Yes, they would pass muster on the grounds of public order and morality and in the interests of the common good.” (ibid, emphasis added).

In Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) Barrington J (Hamilton CJ; and O’Flaherty, Denham, and Keane JJ concurring) explained that, when there is a restriction on a constitutional right, the State can justify the restriction if it has a good reason for the restriction, and is proportionate to that reason. The ECHR describes these good reasons as legitimate aims, and Barrington J in Murphy adopted that language.…

The Censorship of Publications Acts, 1929, 1946, and 1967, are still on the statute book. They establish the Censorship of Publications Board and an Appeal Board. One Minister recently said that “the Censorship Boards are of limited relevance in a modern society. Their mandate is largely unenforceable given the legislation’s dated principles”. She is entirely right, but I am not sanguine that repeal is imminent. But worse than “limited relevance” and impracticality is the unconstitutionality of the censorship regime. We have already seen that the regime unconstitutionally infringes the principle of legal certainty and unconstitutionally chills the exercise of free speech rights protected by the Constitution. In this post and the next two, we will consider an even more direct and egregious unconstitutionality.

In principle, when there is a restriction upon a right, there must be a good reason for the restriction, and it must satisfy a standard of review or scrutiny. The restrictions at issue here flow from the power to prohibit the publication of indecent or obscene books and periodicals. The rights engaged by these restrictions are the constitutional protections of freedom of expression and communication. Many reasons have been advanced to justify the restrictions upon these rights, including public morality and the common good.…

The Censorship of Publications Board was established in 1929 (pursuant to section 3 of the Censorship of Publications Act, 1929). It has the power to prohibit the publication of indecency, obscenity, immorality, vice, depravity, and corruption (pursuant to section 2 of the 1929 Act, and section 1, section 7(a), and section 9(1)(a), of the Censorship of Publications Act, 1946). The question in this post is whether the operation of these vague standards unconstitutionally chills the exercise of free speech rights protected by the Constitution. Spoiler alert: the answer is yes.

In my previous post, I argued that, as a matter of Irish law, the Supreme Court should hold that, as a matter of principle, the legal uncertainty from the operation of vague terms, such as indecency, obscenity, immorality, vice, depravity, and corruption, has an obvious and unconstitutional chilling effect upon public discourse; that such uncertainty raises special Article 40.6.1(i) concerns because of its obvious chilling effect upon free speech; that such terms take within their sweep a great deal of protected speech and therefore have an unconstitutional chilling effect upon free speech protected by Article 40.6.1(i); and that the effect of such vague prohibitions is to deter not only the expression at which the prohibition was aimed, but also legitimate expression, so that creativity and the beneficial exchange of ideas will be unconstitutionally affected.…

In my previous post, we saw that section 2 of the Censorship of Publications Act, 1929 and section 1, section 7(a), and section 9(1)(a), of the Censorship of Publications Act, 1946, are directed against indecency, obscenity, sexual immorality, unnatural vice, corruption, and depravity. These are capricious words and fickle concepts, and the question arises whether those standards have stable and certain constitutional cores, or whether they are so vague, unclear and ambiguous as to be unconstitutionally uncertain.

On this question, in my previous post, we saw that, on the one hand if a statutory provision is ambiguous, arbitrary, imprecise, indiscriminate, or obscure, if it is hopelessly and irremediably vague, if it lends itself to arbitrary and inconsistent application, or if it results in obscurity of application to fact or impossibility of interpretation so as to find a consistent solution, then it fails to satisfy the requirements of the principle of legal certainty, and is thus constitutionally impermissible. This is illustrated by King v Attorney General [1981] IR 233, striking down section 4 of the Vagrancy Act, 1824. On the other hand, generality is not uncertainty: a statutory provision can legitimately be expressed in general terms in order to maintain appropriate flexibility; and a potentially uncertain provision can be rendered certain by interpretation and precedent.…