IRELAND: Freedom of artistic expression and the referendum on the 8th amendment

(Irish Council for Civil Liberties) The Irish Council for Civil Liberties (ICCL) is today sounding an alarm about the chilling effect it is observing in the wake of the censorship of Maser’s Repeal the 8th mural and Una Mullally’s Question of the Eighth literary event.

We have learned that over the past few weeks numerous arts organisations and exhibition spaces have cancelled their invitations to Grace Dyas and Emma Fraser to show their theatre piece Not At HomeNot At Home enables visitors to the exhibition to see, listen to and feel the experiences of women who have travelled abroad for abortions. The Artists’ Campaign to Repeal the Eighth has also reported that they have had to scale back events at which they intended to facilitate public discussion about the 8th Amendment at the same time as screening Witness: a collection of short films and filmed readings of women’s stories.

In response to this worrying trend, the ICCL has released a policy statement which contains our interpretation of Irish and European law relating to freedom of artistic expression during the pre-referendum context.

We firmly believe that the use of the Charities Act 2009 to censor artistic expression that would ordinarily be acceptable to the Charities Regulator outside of a referendum period is an inappropriate use of that legislation.

Liam Herrick, Executive Director of the ICCL, says:

“Freedom of expression is a fundamental right in any free society and artistic freedom must be afforded the highest protection. The role of the artist in challenging power and orthodoxy is the very lifeblood of our cultural life.”

Irish Constitutional case law and the case law of the European Court of Human Rights make clear that the State’s obligation to ensure freedom of ‘political’ expression is more important than ever during an election period. As a result, the censoring of artistic expression containing ‘political’ content during a referendum period, where that content and discussion of it would ordinarily be acceptable to a State body because it is integral to the art is highly questionable from a legal perspective.

Furthermore, while it is necessary to regulate spending and funding during elections to protect the integrity of our democracy, under the Irish Constitution, freedom of speech is not equivalent to freedom to buy advertising or column inches.”

Our statement also addresses the 1995 case of McKenna v An Taoiseach (No 2), in which the Supreme Court held that the Constitution prohibits the Government from “expending public monies in the promotion of a particular result in [a] Referendum”. Liam Herrick says:

“In our view, the McKenna decision outlaws the use of public funds to support the Government’s own campaign for a “Yes” or “No” vote. This is not the same as using public funds to support free discussion of artistic work containing ‘political’ ideas that are relevant to a referendum. We maintain that ‘neutrality’ is not achieved by censorship of artistic expression and the discussion inspired by it. Rather, ‘neutrality’ can be achieved by ensuring that the selection criteria for exhibitions and events are non-discriminating, that such exhibitions and events are open to the public, and that support for further artistic expression containing ‘political’ ideas is made available.”

At 11am today we will unveil a mural which we have commissioned by street artist Giant Sigh calling for a YES vote in the Referendum. Speakers at the event in Bang Bang café in Phibsborough will include poet Paula Meehan, Cian O’Brien of Project Arts Centre, Orla O’Connor of Together for Yes, and a representative of the SUBSET artistic collective.

Full statement here:

Featured image: ICCL