How the Supreme Court has Muddled the Censorship Issue

THE Supreme Court decision in the case brought by the Irish Family Planning Association against the Censorrship of Publications Board marks an important watershed in this country's legal and social history. Although the present system of book censorship has been in existence for almost fifty years, this case is the first in which a ban imposed by the Board has been challenged and overridden by the courts. By Alan Shatter

Section 7 of the Censorship of Publicaations Ae,.t 1946 allows the Censorship Board to ban a book if it is of the opinion

• That it is indecent or obscene or

• That it advocates the unnatural prevenntion of conception or the procurement of abortion or mis-carriage or the use of any method treatment or appliance for the purpose of such prevention or procurement.

The Censorship Board may examine books on their own initiative and must examine a book referred to them by a customs officer or about which a complaint is made. In considering whether to impose a ban, the Board is required to examine a variety of matters, including the literary, artistic, scientific,and historic merit of the book under examination, the language in which it is written, the extent of its likely circulation, and the class of reader who is likely to read it. The legislaation also provides that the Board "may communicate with the Author, Editor or Publisher' of the book and may take into account any representation" made by such persons.

On the 24th November 1976, the Cennsorship Board banned all editions of the book Family Planning. At that time, two organisations, I.F.P.:\. and Family Planning Services were both printing and disstributing this book, the first edition of which had been published in 1971. They only became aware of the banning Order when notice of it appeared in Oiris Oifiggiuil on the 3rd December 1976. The Board had not communicated with either organisation prior to banning the book and within three weeks of the ban being imposed both organisations had issued legal proceedings challenging its validity.

The Banning Order was a complete surrprise. More surprising was the ground on which the Order was issued. The book was not banned for "advocating the unnatural prevention of conception" but on the ground that it was "indecent or obscene."

In their proceedings, both organisations challenged the constitutional validity of the laws that empower the Board to issue banning orders. The ban was also challenged on other grounds, especially on the ground that the Board disregarded the requirements of natural or constitutional justice by its failure both to communicate with the organisations and to give them an opportunity to make representations to it.

Despite the provision in the Censorship Acts that enables the Board to communiicate with those responsible for producing a book, the Board's secretary testified at the proceedings that in his eight and a half years employed with the Board, he had never been requested to make such a commmunication prior to a ban being imposed.

On the 1st of July 1977, Justice Hamillton ruled that the Board must exercise its powers "fairly and judicially in accordance with the principles of natural justice." Hamilton said that the Board's failure to notify the I.F.P.A. that the book was being examined and to afford the organisaation an opportunity to defend the book, meant that it had not so acted and rendered the ban imposed null and void.

On the 27th of July of this year, the Censorship Board's appeal against this decision was dismissed. The members of the Supreme Court, however, in unannimously dismissing the appeal, differed from the trial judge's reasoning.

They held that the Censorship Board was not bound in all cases to communicate with the author, editor or publisher of a book under examination, but that its power to do so is discretionary. Chief Jusstice O'Higgins (with whom three other members of the Court agreed) stated, however, that this discretion must be exerrcised "in a manner that is fair and just" but which must also "be subject to the achievement of the overriding object of the (Censorship) Statutes," which is to proohibit "the sale and distribution of unnwholesome literature."

O'Higgins disagreed with Hamilton, saying that it was not always necessary to receive testimony from the publishers.

"Where the publication is clearly inndecent or obscene such communication would be pointless ... where the Editor, Author, or publisher cannot be traced or contacted or where an attempt to do so would lead to undue delay then the exerrcise of this discretionary power would not only be called for, but would be clearly wrong and improper."

He went on to hold that in the case of the book, Family Planning, the Board had acted unjustly. He stated that "Far from being pornographic or lewdly commercial or pandering to prurient curiosity, it simply aimed at giving factual information on a delicate topic as to which there is genuine concern."

It was not a "plainly pornographic prooduction" and the ban was invalid as the Board did not give its publishers an opporrtunity of meeting the case for its being banned.

In a separate judgment, Justice Kenny agreed that the board "Should first connsider whether they will invite representations and should in all cases do so unless this is impossible (for example if no name or address appears on the book) or the book is so clearly indecent or obscene that in their opinion, no representation could have the effect of altering their view or persuading a Court of Law to disagree with their decision."

He also said that the terms "indecent" and "obscene" in the Censorship Acts does not mean that there would necessarily have to be indecent or obscene passages in a book for it to be banned but that its general tenor was indecent or obscene.

The Supreme Court judgments have left the area of book censorship in a state of legal confusion. It appears that if a pubblication is "manifestly obscene or inndecent" or "clearly indecent or obscene" or "of an obviously pornographic or obbscene nature" or is "a plainly pornographic production," the Board need not commmunicate with those responsible for prooducing a publication prior to being banned. The Court did not, however, clearly define the meaning of any these terms and it is clear that if the Board bannned a work without communicating with those responsible for its production, it is open to the courts to judge that its failure to communicate was arbitrary and unnreasonable.

A further difficulty arises as to the manner in which the Board is to exercise its power to communicate with those ressponsible for the production of a book. For example, must the Board merely obtain written comments or must it hold an oral hearing if requested to do so? Must such a hearing be held in public or in private? Is an author entitled to call witnesses to argue the literary merit of his work? Is the author, editor, or publisher entitled to legal representation before the Board? If the Board has examined a book on its own initiative, must it fully set out the reasonning it has employed in finding that a book is prima facia obscene or indecent to give those responsible for the book an opporrtunity to refute the case made against it? These are all questions that have yet to be answered by the courts. Moreover, it is clear that if the Board holds a full hearing and bans a book, the ban may still be challlenged. Kenny emphasised that the funcctions of the Board are subject to the conntrol and supervision of the High Court.

As for Family Planning, it is clear that if the Board attempted to impose a further ban, this time after holding a full hearing, the Court would strike down the ban as invalid.

Other questions concerning the connstitutionality of the Censorship Acts also remain unanswered. Is the Board itself exercising judicial functions of an unnlimited nature contrary to the Connstitution? Do the Censorship Acts contraavene the right to freedom of expression or an author's 'property rights? As Justice Hamilton found the ban on Family Plannning to be invalid on a ground that did not impugn the constitutional validity of the Censorship Acts, these questions were left unanswered by the High Court and were not even discussed in the Supreme Court.

An additional question concerns whether there is a constitutional right to information about family planning , methods. This right was raised in the proceedings brought by F.P.S. against the I Censorship Board. Although the I.F.P.A. I and F.P.S. proceedings were heard jointly, no judgment was delivered in the latter and it was hoped that the High Court might decide this after the Supreme Court decision. On the 12th of July last, howwever, Hamilton announced that following the Supreme Court decision no order was required in the proceedings brought by F.P.S.
   
The Supreme Court judgements must have come as a relief to the Government. If the reasoning employed by Hamilton had been endorsed by the Supreme Court and the Board had been obliged to hold a full hearing for all publications under examination by it prior to issuing a Bannning Order, the working of the Censorship Acts would have become impossible. The result of the Supreme Court decision is that there are certain publications that the Board may continue to ban without having to communicate with those responsible for their production. However, as it appears from the evidence given in the High Court that the Board has never communicated with the publishers of previous banned books, the validity of all banning orders made by the Board to date is now in serious doubt.

It is surprising that it has taken almost fifty years for a court challenge to be mounted against an order issued by the Censorship Board. The recent proceedings are likely to act as a catalyst to future challenges of the Board. Indeed, if formerrly submissive authors and publishers are willing to take up the gauntlet, there is likely to be in the coming months a connsiderable number of Court proceedings launched by many of those whose works are presently banned.

The Censorship Board, if it is to conntinue to function, must now radically change its procedures. The extent of the change required' remains uncertain. The Supreme Court decision has left many questions unanswered and has for the time being passed what is both a legal and political hot potato back to the Censorrship Board. Few can now doubt that unless the legislature intervenes, members of the Supreme Court will find a great many similar hot potatoes speeding towards them before the end of the year.