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Email this citationCIAO DATE: 2/99
Censorship of Indecency in Ireland: A View From Abroad
The Institute for European Studies
December 1998
Abstract
The censorship of indecent material is a matter of great political controversy in the U.S. The controversy is in part founded on the liberal assumption that expanding government’s power to censor is a dangerous step toward the slippery slope of increased repression. This paper examines an interesting counter-example to the liberal fear. The focus is the Irish censorship regime as applied to indecent/pornographic/obscene material. The paper explores the social and cultural context of censorship in twentieth-century Ireland and then examines the contours of the Irish system of film, video and print censorship. Finally, the case of Irish censorship is reconsidered in light of censorship practices in the U.S. The author concludes that an increase in the government’s power to censor will not necessarily result in greater repression.
Censorship of Indecency in Ireland: A View from Abroad
At first glance the Irish regime of free speech appears to have no place for “indecent” material. While the Irish Constitution shares some of the liberal features of its American counterpart, 1 on the question of fundamental rights a deep division appears. Unlike the stark imperative of the First Amendment, the Irish guarantee of free expression is explicitly qualified, not once, but twice. First, it is made "subject to public order and morality." 2 Second, the guarantee is limited by this provision:
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law. 3
The limitation of free speech in such broad terms is not the only way in which the Irish Constitution differs from the American model. Ireland’s Constitution establishes a parliamentary democracy, 4 it presupposes a homogenous Catholic culture, 5 its provisions establish limits on the use of private property while evoking the goal of greater social equality, 6 and it explicitly establishes education and family rights. 7 While the bald restriction of free speech rights in Ireland might surprise some American observers, in some respects the limits posed by “public order ... morality [and] the authority of the state” parallel exceptions, created by the U.S. Supreme Court, to the reach of the First Amendment’s free speech guarantee. 8
The goal of this paper is to develop the argument that the censorship of indecency in Ireland confounds liberal expectations about the effect of an extension of governmental power over free speech. The liberal fear, often expressed in the context of debate over the extent of free speech rights, is that as the power of the state expands, the freedom of the polity falls down a slippery slope to virtual extinction. From this perspective an expansion of the state’s censorship power is an invitation to repression. This article will argue that Ireland has provided an intriguing counter-example: more expansive powers to censor indecency have not led to increased repression.
Irish free speech restrictions reflect the unique features of Irish history in that they serve to accommodate the structures of censorship established first under British rule. An emphasis on the regulation of public morality is clearly part of the Irish inheritance from Britain 9 —it continued after Ireland gained its freedom in 1922. Within a year of the creation of Saorstat Eireann (the Irish Free State) a Censorship of Films Act was passed. As recently as 1989 the Irish government extended the state’s censorship powers through passage of the Video Recordings Act. Between 1922 and 1989 several other important pieces of censorship legislation were passed by various governments. They include Censorship of Film Acts, Censorship of Publications Acts, a Broadcasting Authority Act, Offenses Against the State Acts and an Official Secrets Act. 10
Ironically, while the state’s power to censor has grown, censorship of "indecent" material in Ireland in the 1990s appears to be far less extensive than at any other time in the twentieth century. While the “marketplace of ideas” 11 may be less crowded than in the U.S., the gap between the two countries is relatively narrow. Given the difficulties inherent in quantifying the extent of censorship (particularly in the U.S.), a precise rank ordering is impossible to construct. Nevertheless this article will attempt to demonstrate that while the power to censor is extensive in both countries, the willingness to censor "indecent" material bears little relation to the scope of the power.
Part I of this article is devoted to the social and cultural context of censorship in twentieth century Ireland. Part II examines the contours of the Irish system of censorship, as it applies to indecent/obscene material, with particular attention paid to: a) early and recent examples of censorship legislation, b) the exceptions to the censor’s reach and c) the attitude of the current film censor. In Part III, the case of Irish censorship is reconsidered from a First Amendment perspective.
Part I
Context: Isolationism and Catholicism
Having won a war of independence in the early twentieth century, Irish political elites sought to separate Ireland from British influence to the greatest extent possible. Given the facts of, i) geographic proximity, ii) economic dependence, and iii) the many cultural values shared by both communities, that was a difficult task. Nevertheless four significant events indicate the strength of this desire for separation. First, Ireland remained neutral in World War II—not because of any sympathy with the Third Reich, but because of the symbolism attached to the possibility of Irish soldiers dying for a British cause. 12 Second, Ireland’s 1937 Constitution makes central issues of national territory and the power of the Catholic Church. 13 Both provisions are retaliatory in nature. Where once the nation had been neatly divided by Britain, the new Constitution raised a troublesome claim of unity; 14 where once the church had been driven underground, the new Constitution recognized its "special position." 15 Third, the constitution declares Gaelic, once the target of a British policy of elimination, the national, and first official, language. 16 Finally, in 1948 Ireland broke its most significant governmental tie with Great Britain by withdrawing from the Commonwealth.
The single most important person in all of these developments is Eamon DeValera. He is in many ways the "founding father" of modern Ireland. 17 In the early 1930s he was elected to the first of several terms as Taoiseach (Prime Minister). He left his mark on Ireland not only by government policy but also by the Constitution that he drafted. 18 He served as Taoiseach and President at different times; he also founded a vital force in Irish politics, the Fianna Fail party. 19 It is his party which has been in power more than any other in the history of the state—a significant feat in a country with one of the most complex systems of proportional representation in the world. 20 DeValera’s vision was to re-create Ireland as an isolated retreat from the modern world: Ireland would be home to "a people who were satisfied with frugal comfort and devoted their leisure to things of the spirit." 21
At a time when the dominant foreign media in Ireland were British (unlike today where European, American and multinational interests proliferate) the obvious target of government policy under DeValera would be those sinister influences on Irish culture. Patriots of the day saw grave signs of Ireland being dragged into an amoral, ecumenical, promiscuous and "modern" gutter. In many ways the impressive list of books banned under the Censorship of Publications Acts 22 is testimony to the aggressive implementation of DeValera’s vision. The "things of the spirit" would not be displaced in Irish leisure by the visions of Margaret Mead, Graham Greene or William Faulkner.
Equally interesting, and perhaps more damning from the perspective of the 1990s, is the number of Irish writers banned. 23 Their vision of Ireland, of its economic, religious, social and sexual reality evidently distressed at least some readers in the nation. The Catholic Truth Society (CTS), "a publications agency founded by the [Catholic] Bishops", 24 is best known for its relentless submissions to the Censorship Board (created under the 1929 Censorship of Publications Act). Agenda setting power had thus devolved to one Catholic interest group. As one law professor concluded: Irish society, at this time, was "in the grip of cultural isolationism, anti-intellectualism and sexual repressiveness." 25
The 1937 Constitution openly declares its commitment to a Catholic ideology. Its preamble calls on the "Holy Trinity" and "our Divine Lord Jesus Christ." Its prohibition of divorce remained in place until 1995. 26 It once recognized the "special position of the Holy Catholic and Apostolic and Roman Church as the guardian of the faith professed by the great majority of [Ireland’s] citizens." 27 It provides extensive protection for the family— the state recognizes and guarantees to respect the family as a moral institution with inalienable rights "antecedent and superior to all positive law." 28 In support of the family the Constitution commits itself to a traditional family structure in these striking terms:
In particular, the state recognizes that by her life within the home, woman gives to the state a support without which the common good cannot be achieved. The state shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home. 29
It is hardly surprising that Irish women have struggled more than their Western counterparts to achieve political, economic and legal parity with men. Yet they have also shared in many of the remarkable advances achieved by western women in the last three decades. 30 It is also interesting to note that the U.S. Constitution’s role allocation occurs in the context of family protection. In contrast the U.S. Bill of Rights ignores the institution of family, thereby causing substantial difficulties for the Supreme Court on some questions of fundamental rights. 31 In Ireland the act of constitutionally recognizing the traditional nuclear family logically complements efforts to establish national standards of decency and indecency.
Part II
1929 and 1989: Two Acts-One Purpose?
This examination of Irish censorship will focus on two acts devoted to censorship passed by the Irish Parliament some sixty years apart: the Censorship of Publications Act 1929, and the Video Recording Act 1989. These two acts are part of a panoply of prohibitive regulations. Forde’s compendium of Irish Constitutional Law lists restrictions on expression under the following categories: 32
- State Security and Authority:
Official Secrets Act
Offences Against the State Act
Broadcasting Authority Act - Public Order Health and Safety:
Drugs Act
Wireless Telegraphy Act - Public Morality - Obscenity:
Censorship of Publications
Censorship of Films
Other Restrictions - Rights and Freedoms of Others:
Blasphemy
Defamation
Breach of Confidence - The Judicial Process - Contempt of Court:
Prejudicing Fair Trial
Censuring Judicial Performance
The 1929 and 1989 Acts represent early and recent instances of the bureaucratic effort to restrict freedom of expression. The 1929 Act is not the first piece of censorship legislation under Saorstat Eireann. It was preceded by a Censorship of Films Act passed in 1923. The latter was passed "under cover of night" 33 and, unlike the 1929 Act, put enormous censorship power in the hands of an individual. 34 It has been amended by various acts including the 1989 Video Recording Act.
As the focus of this paper is on obscene/indecent material, the 1929 and 1989 Acts are more obviously deserving of closer examination. The 1929 Act is complex and thorough. It established a system for prohibiting books or periodicals. It also established four criminal offenses based on the following materials: prohibited books and periodicals, indecent pictures, material that promotes abortion or contraception, and certain materials related to judicial proceedings.
Prohibition Provisions
Indecency is the central, but not sole, criterion for prohibition—books and periodicals are both subject to censorship on this ground. Indecency is one of the few terms that is explicitly defined by the act. Material is indecent if it is "suggestive of, or inciting to sexual immorality or unnatural vice or likely in any other similar way to corrupt or deprave." 35 While the term "obscene" is used also, no definition is offered for it. A book or periodical may also be prohibited if it "advocates the unnatural prevention of conception or the procurement of abortion." 36 Finally, periodicals alone may be prohibited if they have "devoted an unduly large proportion of space to the publication of matter relating to crime". 37 Key provisions of the act are excerpted in Table 1.
Table 1: Key Provisions of the 1929 Censorship of Publications Act
| Material Subject to Prohibition by Censorship Board | Material Subject to Criminal Sanction | ||||||
| Material | Books | Periodicals | Books or periodicals | Books or periodicals | Pictures | Judicial Proceedings | Divorce/Separation Proceedings |
| Criteria for censorship | indecent or obscene or advocates abortion or contraception | indecent or obscene or advocates abortion/contraception or undue devotion of space to crime | already subject o a prohibition order | advocate abortion or contraception | indecent | indecent matter calculated to injure public morals | anything beyond the names of the parties, counsel, charges, court, judge, points of law, summing up or decision of the judge or jury |
| Process | complaint from public or customs | complaint from public or customs | criminal investigation | criminal investigation | criminal investigation | criminal investigation | criminal investigation |
| Activity that is illegal | not applicable | not applicable | exposed, advertised, sold, offered, kept for sale, or imported for sale | printed, published, sold, offered, kept for sale, distributed | sold, offered, kept for sale, or imported for sale | print or publish | print or publish |
| Qualities that protect material | its literary, artistic, scientific or historic merit, general tenor, the language in which it is printed, its intended circulation, the class of its readers, any other relevant matter | none listed | none listed | none listed | none listed | none listed | none listed |
| Appeals | minister’s discretion to revoke (appeal board added in 1946 amendment) | minister’s discretion to revoke (appeal board added in 1946 amendment) | criminal appeals process | criminal appeals process | criminal appeals process | criminal appeals process | criminal appeals process |
* Several of these provisions were amended by the 1946 Censorship of Publications Act
To have a book or periodical banned is disarmingly simple: a member of the public or a customs official can submit the material to the board. This process opens the door to interest groups, particularly those who are devoted to the protection of traditional Catholic morality. The Catholic Truth Society (CTS) took full advantage of the opportunity. (Perhaps the CTS saw its role as representing the "average person applying contemporary community values." 38 ) The Board has power to issue a prohibition order which, originally, only the Minister for Justice could revoke. Until 1946 there was no appeals process. 39 Until 1967 there was no time limit on the effect of a prohibition order. After 1967, a time limit of 12 years applied to every order. Because this provision applied retroactively its effect was that of a sudden and substantial repeal of most censorship decisions:
In one grand gesture over 5,000 titles were released from limbo. Some of them, it is true, would be rebanned but almost all the controversial books of the pre-1956 period and particularly the work of the many Irish writers rejected as unsuitable for their own society are now free to circulate in the country. 40
Very little protection for material appears in the 1929 Act. The one significant mitigating provision applies only to books—when considering prohibition the board shall have regard to "all or any" of the following factors:
the book’s literary, artistic, scientific or historic merit
its general tenor
the language in which the book is printed
its intended circulation
the class of its reader
any other relevant matter 41
Since only the outcome of the board’s decision is a matter of public record (a public register of prohibited works is required), 42 it is impossible to say how effective this provision was in the deliberative process. Certainly the Board was busy; in 1954 alone it examined over 1,200 books. 43 Between 1930 and 1968 some 6,116 books were banned. 44 A list of censored books that includes Hemingway’s A Farewell To Arms, Huxley’s Brave New World, Joyce’s Stephen Hero, Mead’s Coming Of Age In Samoa, Steinbeck’s The Grapes Of Wrath, and Beckett’s Watt, speaks for itself. 45
However it must be noted that titles likely to be banned today are a far cry from The Grapes Of Wrath and Brave New World. There has been a radical change of emphasis in the criteria used by the Board, evident in the list of recently banned books in Table 2. A small number of other prohibited titles have raised some controversy, they include The Joy of Sex, The Erotic Art of India, The Gay World, and Sex (Madonna). 46 Nevertheless the difference between “censorship then” and “censorship now” in Ireland is immense. After decades of censorship, Playboy became legally available in Ireland in 1995. 47
Table 2: Books and Periodicals Prohibited in Ireland 1993-1994
| 1993 | 1994 | |
| Books | Dreams 16 Lovers Nymphomania Black Buck Suck Off |
Amour Hard Aura Claudine Darling Kwartet Sex Lechage Love Italian Style Deep Throat II Double Fucking Memoirs Of Dolly Morton Pearl Of The Desert Phallus Of Osiris Prestige I Scharfste Seka Severa |
| Periodicals | Escort Daily Sport |
Electric Blue Knave |
Source: Data received directly from censor’s office by author
Criminal Provisions
Four classes of material are the subject of criminal sanction in the 1929 Act. First and foremost one can be punished for importing, offering for sale, or selling a prohibited book or periodical. Second, it is an offense to publish, distribute, sell or offer for sale material that promotes abortion or contraception, whether or not it is prohibited. The intensity of conservative Catholic opposition to these issues of reproductive choice is plainly evident. 48 Third, indecent pictures can result in criminal sanctions if one imports for sale, offers for sale or sells them. 49 Finally, in the most bizarre category of illicit material, certain details from judicial proceedings may not be printed or published. The details that are publishable are the non-indecent, and the basic facts of divorce or separation proceedings (e.g., names of parties, judgments). The more scandalous/titillating details of divorce proceedings are the obvious target of this provision. Here the Catholic Church’s goal of enshrining marriage as a permanent institution for all parties is evident. This goal was further promoted by the 1937 Constitution which specifically outlawed divorce. 50
Unlike the 1923 legislation creating a film censorship system, the 1929 Act was passed amid considerable controversy. 51 It has been the subject of repeated attack, and modification, over the years. The Act was preceded by determined efforts of the Church to clamp down on immoral behavior. In 1927 the Bishops warned that "the dance hall, the bad book, the indecent paper, the motion picture, the immodest fashion in female dress" were all the traps of the "evil one". 52 The government had already established a "Committee on Evil Literature" which devoted most of its time to listening to the concerns of the Catholic Truth Society (CTS). 53 Ireland was not alone in its concern over immoral literature; the League of Nations had sponsored an International Convention for the Suppression of Obscene Materials in 1923. 54 The Committee on Evil Literature heard dire warnings about the pervasive effect of the media, e.g. "At present the spiritualized Irishman is quickly passing away, and all of the brute that is in him is being fed almost to the point of moral leprosy, to be followed by a tempest of fire from heaven." 55 The CTS provided empirical data on 7 English Sunday newspapers and 5 other journals (some concerned gambling, while one was titled "Health and Strength"). 56 The Committee also learned about widespread prohibition of contraceptive information in the U.S. The official title of the 1929 Act is a sign of the times: "An act to make provision for the prohibition of the sale and distribution of unwholesome literature ..." The world of art was affected too. By 1930 all nudes were removed from Dublin’s Municipal Gallery. 57
There was debate in the Dail (the lower house) about the possible impact of this legislation. Some thought that the censor’s sweep might reach too far. One legislator feared that an eighteenth century poem by Brian Merriman would be prohibitable. Supporters of the Bill assured him he was wrong. Sixteen years later the poem was banned. 58 Prominent Irish authors lamented the entire movement. George Russell described the Bill as "a consequence of arrested growth ...[a form of] moral infantilism." 59 To William Butler Yeats it was "medieval legislation." 60 George Bernard Shaw concluded "Ireland is going to relapse into the dark ages." 61
The 1989 Video Recordings Act
In the sixty years that passed after the Censorship of Publications Act fundamental changes have occurred in Irish society and law. Foreign media are more prominent than ever before. 62 Ireland and Britain joined the European Union in 1972. One effect of that decision has been some liberalization of fundamental rights in Irish law. The stranglehold of Fianna Fail over electoral politics has weakened. The isolationism that DeValera valued so much has been replaced by a strong popular commitment to the European Union. The hold of the Catholic Church on younger generations is not as firm. A new generation of political elites has taken power, and allegiance to the touchstones of classic Irish republicanism is less important. The political landscape has changed so much that President Mary Robinson, an avowed liberal, could give thanks in her 1990 acceptance speech to voters who "stepped out from behind the faded flags of the civil war." 63 To most of Ireland’s political leaders over the last 60 years those "faded flags" were objects of veneration.
Some things had not changed by 1989—the vast majority of Ireland’s population remained Catholic, and the power of the church on matters of sexuality and family was, and is, still evident. Divorce was forbidden by the Constitution until 1995, when a referendum, decided by the slimmest of margins, repealed that provision. 64 (An earlier attempt to undo the divorce ban had been overwhelmingly rejected by voters in a 1986 referendum.) A pro-life amendment to the Constitution was adopted by a substantial majority in a 1983 referendum. 65 Attempts to relax Ireland’s anti-abortion law met with mixed success in 1992.” 66
In this context it is interesting to note that the Video Recordings Act (VRA) extends the censorship power of the state. As one Irish lawyer noted the video censor (a second duty for the film censor) "has powers more extensive than the film censor in that his criteria are wider — a new addition to our panoply of censoring mechanisms." 67 The central provision of the act is set out below:
-
- The Official Censor shall, on application to him in relation to a video work, grant to the person making the application (referred to in this section as the applicant) a certificate (referred to in this Act as a supply certificate) declaring the work to be fit for viewing unless he is of opinion that the work is unfit for viewing because—
- the viewing of it—
- would be likely to cause persons to commit crimes, whether by inciting or encouraging them to do so or by indicating or suggesting ways of doing so or of avoiding detection, or
- would be likely to stir up hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation, or
- would tend, by reason of the inclusion in it of obscene or indecent matter, to deprave or corrupt persons who might view it,
- it depicts acts of gross violence or cruelty (including mutilation and torture) towards humans or animals.
The VRA relies on mechanisms already in place to handle films. A certificate for public exhibition is required and that certificate can only be issued by the censor. The censor has power to issue certificates for exhibition to certain classes of audiences (e.g., "Under 12 must be accompanied by an adult" etc.). The censor also has power to deny a certificate. Finally, in the case of films, distributors have been willing to make cuts as requested by the censor in order to receive a certificate. In the case of videos the VRA does not permit that compromise. 68
Under the VRA it is an offense to possess in order to supply, or to offer to supply, or to actually supply a video that is either uncertified or is prohibited. It is also an offense to display for the public an uncertified or prohibited video. To complete the regulatory scheme, a licensing system is established for video retailers and video rental companies. Finally it is an offense to import a prohibited video. 69 Following the example set in prior legislation, mere possession is not criminalized.
The criteria for denying a certificate are set out above. The terms "obscene or indecent" are now so common that the VRA offers no definition for them. Presumably, definitions from earlier legislation will suffice. The other criteria for banning are remarkably broad. "Gross violence" is not defined in the act. (The film version of Natural Born Killers has already been banned from theaters, 70 its prospects under the VRA are slim.) The entire film noir genre seems threatened by the "suggesting ways"...of "avoiding detection of crime" criterion. While the current censor is remarkable for his interest in film and his liberal views, the powers granted his office under VRA are immense. As the data below indicate, the power to prohibit is in use more frequently with each passing year.
Table 3: Number of Video Prohibition Orders Issued 1991-94
| 1991 | 1992 | 1993 | 1994 | Total |
| 34 | 253 | 304 | 931 | 1522 |
Source: Data received directly from Censor’s Office by author. Available upon request.
Table 3 appears to support the liberal view that expanding powers of censorship lead to greater invasions of the market of ideas. However further investigation of the data reveals a more complex reality. The surge in prohibition orders in 1994 reflects important changes in the administration of the act. First, the requirement that all videos available for sale or rent be submitted to the censor’s office was first implemented in 1994. Second, the censor’s office increased its staff significantly to cope with the volume of submissions. Finally the police were more active in cracking down on illegal video duplication operations—businesses which specialized in pornographic material. 71 A random survey of twenty titles from the list of 1994 prohibition orders, conducted by this author, found that 50% had obviously pornographic titles, while the remaining 50% had sexually suggestive titles. 72 The only controversial title this author could find among the 1994 orders was Dangerous Game. 73 All indications suggest that over 95% of prohibition orders affected pornographic/obscene material. While the volume of prohibition orders in 1994 may be high, the damage to the "marketplace of ideas" is, at most, minuscule.
Exceptions to the Censor’s reach
Under the Censorship of Films Acts only films destined to be exhibited to the general public need be submitted to the censor. Films exhibited in private clubs are not restricted. Thus events where admission is substantially restricted can evade censorship. Film festivals, student film societies and art-film houses (based on membership) operate free of legal pressure. In the 1970s a prominent art-house cinema, the Irish Film Theatre, presented many foreign language and independent films that would have easily run afoul of the censor, e.g., Pasolini’s Salo. 74 This loophole may be a case of an "Irish solution" 75 to the extremity of the formal powers of repression. In this way the moral guardians can have their cake and eat it too. This loophole might also indicate a class bias. It has been suggested that censorship in Ireland is based primarily on the fear that if the masses have access to immoral material they will not be able to withstand the allure of the message. 76
One goal of early censorship legislation was to reduce exposure to material promoting a non-Catholic view of sexuality. One of the most prominent sources of such material is British broadcasting, particularly the BBC. Documentary and fictional displays of sexual behavior on British television are sometimes very explicit (comparable to premium cable channels in the U.S.). That material is widely available in Ireland and remains unaffected by the censorship drives of the Irish legislature.
The original prime target of Irish censorship efforts was the scandalous British Sunday newspaper—the origin of what is now called tabloid journalism. These papers, now available as dailies, are famous for their coverage of the sex scandals of Tory MPs, any scandal involving the Royal Family, and ubiquitous pictures of topless models. Ironically these papers have thrived in Ireland and even spawned their Irish imitators. 77 Why censorship power has been ineffective in this regard is not clear—the criteria of the Censorship of Publications Acts are certainly sufficient to attack those media.
A Film Censor for the 1990s
The surest sign of change in the repressive nature of Irish censorship is the transformation that has occurred in the film censor’s office. Sheamus Smith became Ireland’s film censor in 1986. Under his leadership only 11 films have been cut in 8 years; in the two years before his tenure some 38 films were cut. 78 His predecessor cut no less than 4,976 films in a 16 year period. 79 Smith believes "a film is a director’s work and he is the only one really entitled to cut it. Therefore I avoid it." 80
Smith’s approach, evident in his actions since 1986, is obviously different from that of earlier film censors. The first film censor, when asked what he knew about film, responded: "Nothing. But I know the Ten Commandments." 81 The second censor saw the need to protect Ireland from foreign ideologies: "anything advocating communism or presenting it in an unduly favourable light gets the knife." 82 Another censor explained his approach this way: "I interpret a film through what I would like my children—and they range from 10 to 19—to see. The kind of book I might like to read I won’t leave lying around at home for my son to read. I certainly wouldn’t put a picture on the wall that I thought might give my children wrong ideas about life. We have certain moral standards that we must uphold." 83 The same censor also believed that there were "many insidious elements in our midst who were attempting to corrupt society by upsetting many of our long-established institutions and traditions." 84 It is not surprising that prior to Smith some very remarkable films ran into trouble with the censor’s office; they include The Great Dictator, Don’t Look Now, M.A.S.H., Sunday, Bloody Sunday, and Five Easy Pieces. 85 So far Smith’s most controversial decision has been to deny a certificate to Natural Born Killers. The only published explanation for that decision is "I thought it was violent, too violent.... But I’ve liked Stone’s other films." 86 For all his moderation Smith’s comment reveals how idiosyncratic the decisions of the film censor can be. The power vested in his office raises the central dilemma of how to protect viewers from truly harmful material without patronizing the public or undermining its autonomy.
The number of films denied a certificate by Smith is remarkably low: between 1986 and 1994 6 films were banned. 87 Smith has "loved movies" all his life, raves about Casablanca, and describes himself as "movie mad." 88 He made a courageous decision in 1988 in allowing The Last Temptation of Christ an “Over-18 certificate” despite many protests. He is reported to have banned Bad Lieutenant on the basis that it was demeaning to women. 89 (Officially the censor may not discuss in public his reason for banning a film). 90 If this report is accurate, he may be the first censor in Ireland to be influenced by a feminist sensibility. With few exceptions Smith’s decisions have been very uncontroversial in Ireland. This may be an indication that the censor’s office now holds a better view of contemporary community standards. Again, the contrast between “censorship then” and “censorship now” is striking.
Part III
The View from Abroad
From an American perspective the Irish regime of censorship is remarkable for its simplicity. The Constitution explicitly tolerates censorship, while religious homogeneity has aided the development of widely accepted community standards. (Perhaps the Irish know it when they see it.) More remarkable still is the dearth of free speech litigation. 91 In the last decade one controversial free expression decision has been decided in the Irish Supreme Court, and that was a byproduct of the abortion reform controversy. 92 Yet it is easy to overestimate the censorious nature of Irish law, and likewise, to underestimate the desire for more censorship in the U.S.
Close observers of American law recognize that the apparently unambiguous guarantee of free speech in the First Amendment is a code—it is not an absolute to be taken literally. 93 In the twentieth century the Supreme Court has "blessed" an elaborate pro-censorship scheme 94 that supports the desires of legislators and executives, at both federal and state levels, to control some speech. The Supreme Court has, in its effort to protect/control the “marketplace of ideas,” maintained a precarious balance between maximizing freedom for the individual speaker and avoiding absolutist interpretations of free speech. The Court’s First Amendment jurisprudence has essentially added a "subject to public order and morality" qualifier to the free speech guarantee. 95 The bare command of the Constitution has resulted in the Court carrying the weight of national censorship supervision. While the U.S. has the reputation of keeping a high regard for free speech, the reality of its constitutional history is more complex. More often than not censorship occurs at a local or state level. 96 The result is a crochet system of free speech restriction. Nowhere is this more evident than in the instance of material found “obscene” under the Miller test. Miller’s elevation of “community standards” to a central role in obscenity prosecutions pre-empts the creation of a single national standard. The legal borderline between acceptable indecent/erotic material and sanctionable obscenity fluctuates according to variations in local culture.
While the Court maintains a commitment to vigorous debate and a bustling marketplace, lower level political officials are quick to use censorship as a panacea. Following censorship practices in fifty state jurisdictions is enormously difficult because of variations in legislation, case law and prosecutorial discretion. State film censors, active and powerful for several decades, approached pornography in film with the "familiar triad of prohibitions: obscenity, indecency and immorality." 97 However, in contrast to the Irish censor, the last state censor’s office closed in 1981. 98 State laws must now comply with the Court’s Miller standard, 99 which, much to the distress of some feminists and conservatives, has had little apparent effect on a thriving pornography market. 100
Censorship of books in the U.S. is a phenomenon limited primarily to educational institutions and public libraries. Scholars in this field describe a substantial, and unending, barrage of attempts at repression. 101 Frequently targeted titles were: Catcher in the Rye, Go Ask Alice, Of Mice and Men and To Kill a Mockingbird. 102 Sporadic censorship efforts appear outside the school environment as well. 103 A Massachusetts Attorney General sought to end distribution of a comic book at newsstands because it mocked Christmas. 104 Civil liberties groups often attack new censorship efforts, yet they face a relentless enemy. One commentator laments:
History demonstrates that no matter how many times censorship is defeated, it continues to return. And if the recent decade is any indication, censorship attempts are not only persisting, but increasing.
Since censorship has never been resolved, in the sense that its social foundations have not been discovered and addressed, it has had a snowball or cumulative effect over time. Even though particular censorship attempts ... may fail on a regular basis, they contribute to a snowball effect insofar as they continually recur and their underlying causes remain unaddressed. As society becomes increasingly familiar and comfortable with censorship, the recurrent pattern of censorship is further solidified.
Court judgments on censorship disputes have not fundamentally resolved the public’s concerns or censorship desires. ... [D]espite the volume of case law, censorship attempts keep surfacing in the public—a public whose attitudes and concerns underlying and motivating its censorship impulse have not been settled by any court decree. 105
Law and Culture
At first glance the contrast between Ireland’s crusade for a wholesome public morality and the American "system of free expression" 106 appears to be quite strong. In the U.S. censor’s offices are a thing of the past—in Ireland they remain part of government bureaucracy. In the U.S. there are powerful judicial and legal elites devoted to values of freedom and maximizing liberty (whether it be of contract, of property or of expression), and there is a public that is notoriously rights-conscious.
What distinguishes these countries is both law and culture. The most surprising thing about Irish free-expression law, from an American perspective, is its scarcity. The boundaries of the free speech guarantee have hardly been tested. 107 Why is that the case? The relatively conservative nature of the Irish Supreme Court could stand as a barrier to expanding boundaries, but in fact it has had few opportunities to advance a conservative, or liberal, view of free speech. In contrast both conservative and liberal courts in the U.S. have devoted many pathbreaking cases to explicating “freedom of speech.” The term "indecent" which is so prevalent in Irish law is not legally contested. 108 Again, in contrast, the term "obscene" tried the patience of the U.S. Supreme Court for at least two decades. The problem of "obscene" material was theoretically solved in 1973’s Miller decision, but the issue burns on in the lower courts today. 109 Further the Irish appear to be both averse to litigation (in stark contrast with their U.S. counterparts) and unconcerned about the absence of certain books, videos and magazines from the stores.
Another distinguishing feature is the age of the Irish Constitution. As the constitution approaches its 60th anniversary, it has been the focus of remarkably few constitutional rights battles. Likewise the early days of American constitutional development were devoted not to free speech issues, but to the fundamentals of the arrangement of power; first, between the states and the federal government, and second, between the three branches of the federal government.
A final distinguishing feature is the amendment process. In the U.S. the process is cumbersome, slowing the pace of constitutional change and thereby placing more pressure on the Supreme Court to "update" the document to the needs of contemporary society. In Ireland amendment of the constitution is relatively easy: a simple majority in a national referendum has all the power. Amendments have been approved on the following subjects: integration into Europe, voting age, religious preference, divorce and abortion. As peace in Northern Ireland becomes more feasible it is likely that future amendments will address the "national territory" claim in Article 2, and other provisions that elevate a Catholic ethos. 110 Unpopular decisions of the Irish Supreme Court are not likely to survive. 111 Instead referenda become the locus of constitutional debate — they involve a community’s vision of what is best for the people as a whole. This contrasts with the individual rights focus (or "rights talk" 112 ) that is so prominent in American political and constitutional debate.
On one issue there have been some interesting intersections between the Irish and American experiences of censorship. As already noted, the distribution of contraception information was a prohibited activity in Ireland in the 1920s. It is interesting to recall that Margaret Sanger, an Irish-American and a pioneer in the development of the planned-parenthood movement, 113 constantly ran into censorship problems in the U.S. 114 Her hopes of using film as a medium of birth-control education were frustrated immediately. 115 When the Irish parliament debated its Censorship of Publications Act, it was reminded by the Catholic Truth Society that 23 U.S. states, and the federal government, criminalized publication of contraceptive information. Only 7 of the 23 states made exemptions to this rule for physicians and medical books. 116 The U.S. Supreme Court eventually came to support the liberalization of contraception law in 1965. 117 The Irish Supreme Court took a similar step in 1974. 118
Conclusion
Censorship regimes are quickly condemned by journalists, civil libertarians, and most scholars. Irish censorship prompted George Bernard Shaw to warn of a “relapse into the dark ages.” A contemporary observer is similarly pessimistic: "Censorship has created a rift in Irish society, fostering the ignorance and provincialism of the Irish people." 118 The irony is that Ireland has not relapsed into the dark ages, and, today, its censorship-induced ignorance is of the content of films such as Natural Born Killers and Flesh Gordon, videos such as Maids for Sex and Swedish Sex Games, books such as Suck Off and Love Italian Style, and periodicals such as Escort and Knave. While government’s power to censor in Ireland has expanded more than it has contracted, the regime of censorship is far less extensive now than it has ever been. Ireland’s "marketplace of ideas" thrives, and the specter of the omnivorous censor has been dispelled. The slippery slope that is thought to accompany expansive censorship legislation has failed, at least in this one instance, to materialize. Because the censorship of the 1990s has been far less intrusive of freedom of thought than any preceding it, the Irish regime of “free speech” counts as a remarkable example of compromise between two legitimate governmental goals. One is to maximize the liberty/autonomy of the individual, the other is to protect the community’s quality of life. In this respect the Irish and American systems of censorship have a great deal in common.
Endnotes
Note 1: Both are premised on the principle of government by consent of the governed Both seek to create governments of limited power, divided into three specialized branches. Both contain an explicit Bill of Rights. Back.
Note 4: The lower house of parliament (Dail) has unquestioned supremacy over both the upper house and the Presidency See Constitution of the Republic of Ireland, Articles 15 to 28. Back.
Note 5: The imprint of Catholic ideology is discussed in Part I infra. Back.
Note 6: See Constitution of the Republic of Ireland, Articles 43 and 45. Back.
Note 7: Articles 41 and 42. Back.
Note 8: Concerns based in public order and morality are evident in the creation of the fighting words, obscenity and the clear-and-present-danger exceptions to the free speech guarantee. Back.
Note 9: To learn more about censorship structures in Great Britain see CENSORSHIP AND OBSCENITY, Rajeev Dhavan and Christie Davies Eds, 1978. Back.
Note 10: See generally MICHAEL FORDE, CONSTITUTIONAL LAW OF IRELAND, 1987, Chapter 17. Back.
Note 11: In the context of a debate over indecent/pornographic/obscene material, the “marketplace of ideas” metaphor is something of a distraction In the context of pornography in the U.S., it is difficult to imagine that the ubiquity of pornographic material contributes to a market in ideas. Likewise the absence (until the mid 1990s, see note 47 infra) of magazines such as Playboy, Hustler etc., in Ireland has hardly impoverished a market in ideas. Back.
Note 12: After the war’s conclusion Ireland opted not to join NATO. Back.
Note 13: See Articles 2, 3 and 44 §1. Back.
Note 14: Articles 2 and 3 of the Constitution lay claim to a national territory that includes the 6 counties of Northern Ireland. Back.
Note 15: This provision, part of Article 44 §1, was removed from the Constitution in 1972. Back.
Note 17: GEMMA HUSSEY, IRELAND TODAY, 156 (1993). Back.
Note 20: Proportional representation typically increases the power of minority parties. Back.
Note 21: Quoted in JULIA CARLSON, BANNED IN IRELAND, p 9. Back.
Note 22: See note 45 infra. Back.
Note 23: On this general topic see JULIA CARLSON, BANNED IN IRELAND, 1990. Back.
Note 24: KIERAN WOODMAN, MEDIA CONTROL IN IRELAND, 51 (1985). Back.
Note 25: Kevin Boyle, quoted in CARLSON, supra note 23, p vii. Back.
Note 26: Article 41 § 3. Back.
Note 27: Article 40 §2 This provision was repealed in 1972. Back.
Note 29: Article 41 § 2. Back.
Note 30: "More than twenty years of a combination of legal actions, unremitting political pressure by the women’s movement, and European directives have changed women’s position in Ireland immensely .. When the pill and the contraceptive finally came to Ireland, they fell on fertile ground, so to speak. Ireland, having been slow to begin the process of catching up with what had happened a generation earlier in other industrialized countries, crowded a lot of change into a short time. The network of laws against women, their inability to control their fertility, and legal obstacles to their participation in the full life of the country have undergone dramatic and far- reaching change." GEMMA HUSSEY, IRELAND TODAY, 424-425 (1993). Back.
Note 31: Important decisions on family matters have depended on innovative forms of Constitutional interpretation that engendered controversy, see Griswold v Connecticut 381 US 479 (1965) The Court strained to explain Constitutional family rights in Moore v East Cleveland 431 US 494 (1977). Back.
Note 32: MICHAEL FORDE, CONSTITUTIONAL LAW OF IRELAND, 1987, pp 462-482. Most of these categories of unprotected speech have equivalents in the U.S. system of censorship. Back.
Note 33: MICHAEL ADAMS, CENSORSHIP, 1968, p 17. Back.
Note 34: "Since 1924 over 3,000 films have been banned and over 8,000 cut" in Ireland See Shane Barry "Who’s Protecting Who?" in Vol. 44 of Film Ireland, 12/94, p.16. Back.
Note 35: Section 2 of the Censorship of Publications Act 1929 This definition relies heavily on the British standard created in R. v Hicklin in 1868. In the US the Hicklin test was a point of departure for a Supreme Court eager to create more satisfactory criteria for obscenity. In contrast Irish law remains essentially fixed to an 1868 standard. Back.
Note 36: Ibid, sections 6 and 7. Back.
Note 37: Ibid, section 7. Back.
Note 38: A central part of contemporary American law on obscenity, see Miller v California, 413 US. 15 (1973). Back.
Note 39: See ADAMS, supra note 33, p 243-44. Back.
Note 40: ADAMS, supra note 33, p199. Back.
Note 41: Section 6 of the Censorship of Publications Act 1929. Back.
Note 42: Section 11 of the Censorship of Publications Act 1929. Back.
Note 43: KIERAN WOODMAN, MEDIA CONTROL IN IRELAND, 95. Back.
Note 45: Other prohibited and illustrious titles include: Faulkner’s As I Lay Dying, Freud’s Collected Papers (Vol 11), Graves’ I, Claudius, Greene’s Brighton Rock, Moore’s The Lonely Passion Of Judith Hearne, O’Flaherty’s Land, and Williams’ Cat On A Hot Tin Roof.. More obvious victims of censorship were titles such as: A Lover Would be Nice, The Virgin’s Progress, Strip-Tease Murders, Women as Pets and Lady Chatterley’s Second Husband. See MICHAEL ADAMS, CENSORSHIP, 240-250 (1968). Back.
Note 46: See CARLSON, supra note 23, p 2 and Kevin Boyle in LET IN THE LIGHT 13 (ed. Patrick Smyth and Ellen Hazelkorn, 1993). Back.
Note 47: The decision, made by the Censorship of Publications Appeals Board, created some controversy Alarmed Irish feminists were quick to comment: “It doesn’t matter much, but it does matter a little bit that the Republic of Ireland has signed up like the dutiful little consumer market that it is for the Disneyfication of sexual arousal.” Nuala O’Faolain, Sexual Impulse Wasted on Playboy, Irish Times, Oct 9th 1995, p. 14. “The lifting of the ban [is a] declaration to the people of Ireland that the portrayal of women in degrading pictures is now acceptable.” Sheila Farrell, Letters to the Editor, Irish Times, Oct 12th 1995, p. 15. “Bear in mind that even the ostensibly benign presence of fashion magazines in our public spaces, relentlessly teaching a particular body image, has caused young people to know the joys of the new epidemics of anorexia and bulimia. It is foolish to think the presence of Playboy will do nothing to alter the underlying tone of relations between men and women. And it is doubly foolish to think that the harm done to the cause of women by portraying them in such a way in publicly shared spaces is insignificant merely because other countries do so...” Dr. Sara Dillon, Letters to the Editor, Irish Times, Oct 11th 1995, p. 17. Back.
Note 48: Some of the most recent changes in Ireland’s Constitution eliminated these prohibitions — liberal contraception policy emerged slowly in the 1970s and 1980s, information on contraception has been protected since 1979 A 1992 referendum on abortion allowed access to abortion information. See generally, GEMMA HUSSEY, IRELAND TODAY, 417-444 (1993) and Jeffrey Weinstein "An Irish Solution to An Irish Problem": Ireland’s Struggle with Abortion Law, 10 Arizona Jrnl. of Int’l. and Comp. Law 165 (1993). Back.
Note 49: Pictures alone do not fall under the prohibition provisions. Back.
Note 51: For a full account of the controversy see JULIA CARLSON, BANNED IN IRELAND, 3-12, 1990 and MICHAEL ADAMS, CENSORSHIP, 1968. Back.
Note 52: CARLSON, supra note 23, p 9. Back.
Note 53: ADAMS, supra note 33, p 24. Back.
Note 57: CARLSON, supra note 23, p 10. Back.
Note 58: ADAMS, supra note 33, p 53-54. Back.
Note 59: ADAMS, supra note 33, p 49. Back.
Note 61: ADAMS, supra note 33, p 48-49. Back.
Note 62: British television and radio broadcasts are readily available to most of the population in Ireland American television programs are a staple of British and Irish channels. Satellite cable channels are also available. Back.
Note 63: FERGUS FINLAY, MARY ROBINSON, 8 (1990). Back.
Note 64: Efforts to change divorce law were frustrated for over decade, nevertheless the by a slim majority a referendum to allow limited divorce options was approved in November of 1995 The referendum result was immediately challenged in Irish courts by groups resistant to this reform. See Geraldine Kennedy, Poll Favours Removal of Divorce Ban, Irish Times, Oct 5th 1995, p. 1, Divorce Bill Attracts General Support from All Sides, Irish Times, Oct 4th 1995, p. 1, and Christine Newman, Courts Have No Role on Vote, Says State, Irish Times, Dec 22nd, 1995. Back.
Note 65: The Amendment reads: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. Back.
Note 66: Women in Irish Parliament vow a Fight Over Abortions, New York Times, 28th Nov. 1992, Section A, p. 4. Back.
Note 67: Patrick MacEntee in LET IN THE LIGHT, 118 (ed Patrick Smyth and Ellen Hazelkorn, 1993). Back.
Note 68: E Battersby, Movie Mad, Irish Times, 12/29/94, p. 13. Back.
Note 69: Specific provision is made for mere possession and purely private showing of an uncertified or prohibited video Those acts are not affected by VRA. Back.
Note 70: See Shane Barry "Who’s Protecting Who?" in Vol 44 of Film Ireland, 12/94, p.16. The Censorship of Films Act makes no reference to gross violence—its criteria for banning are instead: indecent, obscene, blasphemous. or tending to inculcate principles contrary to public morality. (Section 7). Back.
Note 71: Information received by the author from Gregory Whelan, Film Censor’s Office, Dublin. Back.
Note 72: The ten obviously pornographic titles were: X Dreams, Tricks of the Trade, The Institute of Perversity 2, Swedish Sex Games, She Male Surprise, Nympho Message, Maids for Sex, Cuming of Age, Candy’s Little Sister - Sugar, and "Chris" and his Boarding School Boys The more ambiguous titles were: Army Brat, Black Hammer, Down Under, Finishing Out, Good Vibrations, Hot Rackets, Just for the Hell of It, Schoolgirls Holyday, Straw Dogs (a 3 minute video, not the 1977 film). Non-English titles were excluded from the survey. Most of the production companies listed on the prohibition orders are not mainstream names, e.g., Private Video Nederland, X-Plicit Video, Color Climax Corporation. Data (a list of all prohibition orders from 1991 to 1995) received directly from the Censor’s Office and available from the author. Back.
Note 73: Dangerous Game is an independent film directed by Abel Ferrara, starring Harvey Keitel and Madonna It gained some notoriety as a voyeuristic exercise in sex and violence. Back.
Note 74: Since the 1990s the Irish Film Theatre has been replaced by the Irish Film Centre. Back.
Note 75: Irish solutions are known for their lack of direction or contradictory elements, see Jeffrey Weinstein "An Irish Solution to An Irish Problem": Ireland’s Struggle with Abortion Law, 10 Arizona Jrnl of Int’l. and Comp. Law 165 (1993). Back.
Note 76: See MICHAEL ADAMS, CENSORSHIP, 1968, Chapter 2, and KIERAN WOODMAN, MEDIA CONTROL IN IRELAND, 1985, Chapters 2, 3, and 4 It has also been suggested that censorship of books was applied only to paperbacks for the same reason. See Luke Gibbons in LET IN THE LIGHT, (ed Patrick Smyth and Ellen Hazelkorn), 123, (1992), also Robert Ballagh in LET IN THE LIGHT, (ed Patrick Smyth and Ellen Hazelkorn), 125. However the 1929 Act makes no reference to that distinction. Back.
Note 77: Typical examples from Britain are the Mirror, the Sun, the News of the World (known in some circles as the Nudes of the World); and from Ireland: the Sunday World and the Star. Back.
Note 78: Shane Barry "Who’s Protecting Who?" in Vol 44 of Film Ireland, 12/94, p.18. Back.
Note 79: E Battersby, Movie Mad, Irish Times, 12/29/94, p. 13. Back.
Note 80: Shane Barry, supra note 78, p 17. Back.
Note 83: David Collins, in LET IN THE LIGHT, (ed Patrick Smyth and Ellen Hazelkorn), 142. Back.
Note 84: Shane Barry, supra note 78, p 17. Back.
Note 86: E Battersby, Movie Mad, Irish Times, 12/29/94, p. 13. Back.
Note 87: The titles are: Working Girls (1987), Whore (1991), The Bad Lieutenant (1993), UF.O., Lake Consequence, and Natural Born Killers (1994). Data received by author directly from Censor’s Office. Back.
Note 88: E Battersby, Movie Mad, Irish Times, 12/29/94, p. 13. Back.
Note 89: M Dwyer, Madonna Film is Banned by Censor, Irish Times, 11/23/94, p. 1. However Smith has been quoted elsewhere to the effect that the film is blasphemous and profane. See Barry, supra note 78, p. 17. Back.
Note 90: Shane Barry, supra note 78, p 16. Back.
Note 91: “The freedom of expression guarantee has received little attention from the courts, which may reflect a low level of public concern on this issue Certainly there has been nothing remotely resembling the volume of litigation under the First Amendment in the U.S.” JAMES CASEY, CONSTITUTIONAL LAW IN IRELAND, 435 (1992). Back.
Note 92: In Attorney General (Society for the Protection of Unborn Children) v Open Door Counselling, [1988] IR 593, [1989] ILRM 19, the Irish Supreme Court held that counseling women to travel abroad for abortions, or to get advice on abortions, was unconstitutional. The defendants had alleged that their counseling activities were related to a right of free expression and were ancillary to a right to obtain information. The court held that “no right could constitutionally arise to obtain information the purpose of the obtaining of which was to defeat the constitutional right of the unborn child.” [1988] IR 593, 625. Back.
Note 93: From the very beginning the Supreme Court has been circumspect in its interpretation of free speech, eg., Justice Holmes concern about the false shout of fire in a crowded theatre. See Schenck v US 249 US 47 (1919). Back.
Note 94: The clearest view of the Supreme Court’s censorship doctrine comes by way of the categorical approach: the Court has declared five categories of speech to be essentially outside the reach of the First Amendment The five categories are: speech that is likely to incite imminent lawless action, defamation, obscenity, fighting words and child pornography. See Justice White’s concurrence in R.A.V. v St. Paul 112 S.Ct. 2538, 2551-53 (1992). Back.
Note 95: The terms "public order and morality" are central to the Supreme Court’s fighting words decision, Chaplinsky v New Hampshire 315 US. 568 (1942). Though the Court has neglected Chaplinsky, its validity can hardly be doubted after Justice Scalia’s endorsement in R.A.V. v St. Paul 112 S.Ct. 2538 (1992). Back.
Note 96: Congress takes to censorship as well, usually on national security grounds Occasionally other issues will stoke the desire to limit expression — most recently concerns about the distribution of pornography over the Internet have been the topic of legislative discourse. Back.
Note 97: RICHARD RANDALL, CENSORSHIP OF THE MOVIES, 87 (1968) Other criteria used to censor included: incitement to crime, glorification of crime and incitement of religious, racial or class hatred, the presentation of "gruesome, revolting or disgusting scenes.” Ibid., 88-89. These criteria are strikingly familiar. Government-sponsored censor’s offices used their power to demand cuts in movies; the usual targets of this practice were scenes involving nudity, intercourse, profanity (e.g., "bitch" or "whore" or "bastard"), sexual education, brutality, drug use, racial or religious defamation. See RANDALL, 92-103. Back.
Note 98: EDWARD DEGRAZIA, GIRLS LEAN BACK EVERYWHERE 47, 1992. Back.
Note 99: 413 US. 15 (1973). Back.
Note 100: In contrast, Irish censorship regimes were successful, at least until the mid 1990s, in keeping mainstream pornography, such as Playboy magazines and videos from the market The difference between the two is partly attributable to the failure of the Supreme Court’s current obscenity standard (stated in Miller). As a practical means of combating obscenity Miller seems to have floundered. Theoretically Miller is a stimulus to more prosecution of obscenity. The vague and contradictory elements of the Miller standard allow prosecutors substantial lee-way in its application. However scholars have not been impressed by its impact. "The state of bewilderment that marked obscenity law remained largely unchanged.... The Miller tale was one of continuing confusion.” See DEGRAZIA, supra note 98, 145. Back.
Note 101: See eg., HERBERT N. FOERSTEL, BANNED IN THE U.S.A., (1994), JOAN DELFATTORE, WHAT JOHNNY SHOULDN’T READ, (1992), WILLIAM NOBLE, BOOKBANNING IN AMERICA, (1990), L. B. WOODS, A DECADE OF CENSORSHIP IN AMERICA, (1979). One author concludes from his 1966-75 sample that 36% of banning attempts at public libraries were successful, while 64% of such attempts at college and university libraries were successful. WOODS, supra, at 138. Generally the number of banning attempts was on the increase. Ibid., 40. Back.
Note 102: WOODS, supra note 101, at 91 In a list compiled by People for the American Way in 1992 the same titles reappear; other new targets include The Adventures of Huckleberry Finn, The Handmaid’s Tale, Christine, Little Red Riding Hood, The Color Purple. See HERBERT N. FOERSTEL, BANNED IN THE U.S.A., 135-219. Dictionaries have been targeted as well; words such as "bed" (defined as a verb), "knocker" (slang use), and "balls" (slang use) have raised censor’s ire. WILLIAM NOBLE, BOOKBANNING IN AMERICA, 214. The Anchorage School Board banned the American Heritage Dictionary in 1987. Ibid., 215. Back.
Note 103: See generally: NAT HENTOFF, FREE SPEECH FOR ME, BUT NOT FOR THEE, (1992), DAVID COPP AND SUSAN WENDELL, PORNOGRAPHY AND CENSORSHIP, (1983), JOHN R MACARTHUR, SECOND FRONT : CENSORSHIP AND PROPAGANDA IN THE GULF WAR, (1992), DONNA A. DEMAC, LIBERTY DENIED : THE CURRENT RISE OF CENSORSHIP IN AMERICA, (1990), RICHARD O. CURRY, FREEDOM AT RISK : SECRECY, CENSORSHIP, AND REPRESSION IN THE 1980S, (1988). Back.
Note 104: WILLIAM NOBLE, BOOKBANNING IN AMERICA, 1990 Book burnings, based on religious passions, have been recorded in Colorado (1985), Oklahoma (1987), and Nebraska (1988). Back.
Note 105: PATRICK GARRY, AN AMERICAN PARADOX, 35-36 (1993). Back.
Note 106: The title of Thomas Emerson’s 1970 treatise on the First Amendment. Back.
Note 107: See CASEY, note 91 supra. Back.
Note 108: The repression of indecent material is explicitly endorsed in the Constitution See note 3 supra. Back.
Note 109: A good example of recent controversy over the meaning of obscenity is the trial of members of the rap group 2 Live Crew over a sexually explicit musical recording See Skyywalker v Navarro 739 F.Supp 578 (1990). Back.
Note 110: The issue of divorce (in both referendum and legislative forms) is one of the contemporary policy problems that the government seeks to solve by substantial liberalization of the law See note 64 supra. Back.
Note 111: In this respect the Irish Constitution does not maintain, over the long run, the anti-majoritarian tenor that the American Bill of Rights embraces. Back.
Note 112: Occasionally scholars challenge the pre-eminence of rights in American thought, see MARY ANN GLENDON, RIGHTS TALK (1991). Back.
Note 113: Sanger, born Margaret Higgins, was baptized in the Catholic Church, proceeded to become the first radical female Irish-American reformer MADELINE GRAY, MARGARET SANGER 13 (1979). Back.
Note 114: Elizabeth Hovey, Obscenity’s meaning, smut-fighters, and contraception: 1872-1936, 29 San Diego Law R 13 (1992). Back.
Note 115: DEGRAZIA, supra note 98, p 16. Back.
Note 116: ADAMS, supra note 33, p 33. Back.
Note 117: See Griswold v Connecticut 381 US 479 (1965) and DEGRAZIA, supra note 98, 17. Back.
Note 118: McGee v Attorney General [1974] IR 284 Back.
Note 119: CARLSON, supra note 21, p 2. Back.
