Commercial Speech, Hate Speech, Religious Freedom
American Freedom Def. Initiative v. Southeastern Penn. Transp. Auth.
Closed Mixed Outcome
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The European Court of Human Rights (ECtHR) held that a blanket ban on broadcasting advertisements related to religion does not violate Article 10 of the European Convention on Human Rights (ECHR). The Independent Radio and Television Commission of Ireland stopped the broadcast of an advertisement by the Irish Faith Centre that invited listeners to meetings during Easter week to hear evidence for the resurrection of Christ. The ECtHR reasoned that although tolerance is important in any democratic society, an expression that is not on its face offensive, may have an offensive impact in certain situations. Furthermore, advertisement on sensitive issues such as religion can lead to resentment from Irish citizens and unrest, thus the ban on religious advertisements was justified.
The Republic of Ireland is infamous for its particularly volatile setting with regards to religion. In 1995, a pastor Roy Murphy (Applicant) who was attached to the Irish Faith Centre submitted an advertisement to an independent, local and commercial radio station for transmission (Para 7). The advertisement invited listeners to a series of meetings during Easter week to hear evidence for the resurrection of Christ. All preparations were made for broadcasting the advertisement by March, however the Independent Radio and Television Commission stopped the broadcast, pursuant to Section 10(3) of the Radio and Television Act 1988. The act provided that “No advertisement shall be broadcast which is directed towards any religious or political end or which has any relation to an industrial dispute.” This ruling did not affect the later transmission of the video by satellite (Para 9).
This decision was upheld on appeal. The law was later amended to permit the broadcasting of notices of the fact “that any event or ceremony associated with any particular religion will take place.”
1. Interference – Article 10 protects not only the content and substance of information but also the means of dissemination since any restriction on the means necessarily interferes with the right to receive and impart information (Öztürk v. Turkey). As such, the Court is of the view that the applicant’s complaint about the prohibition contained in section 10(3) of the 1988 Act falls to be examined under Article 10 of the Convention. In addition, the Court reiterated the importance of the Handyside criteria to offend, shock or disturb e religious sensitivities of others falls within the scope of the protection of Article 10 (Para 61).
2. Prescribed by law – not disputed by parties (Para 62).
3. Legitimate Aim – Due to the sensitive topic in the slightly volatile environment, the government maintained that the prohibition sought to ensure respect for the religious doctrines and beliefs of others so that the aims of the impugned provision were public order and safety together with the protection of the rights and freedoms of others (Para 63). In addition, while disputing the necessity of the statutory provision,the applicant did not directly address that these aims were pursued by the section 10(3) of the 1988 Act.
4. Necessary in a democratic society –
A narrow approach is on political speech or on debate of questions of public interest. A wider margin of appreciation is allowed when regulating freedom of expression in relation to matters liable to offend intimate personal convictions within the sphere of morals or, especially, religion (Para 67).
While the Court acknowledges the importance of Handyside concepts where pluralism, tolerance and broadmindedness on which any democratic society is based, the Court observes that it is not to be excluded that an expression, which is not on its face offensive, could have an offensive impact in certain circumstances. The question before the Court is therefore whether a prohibition of a certain type (advertising) of expression (religious) through a particular means (the broadcast media) can be justifiably prohibited in the particular circumstances of the case (Para 72).
The Court has noted the Ministers emphasized at some length the extreme sensitivity of the question of broadcasting of religious advertising in Ireland and the consequent necessity to proceed towards any proposed amendment of section 10(3) with care and on the basis of a full consideration of the issues and options (Para 73).
The Supreme Court also emphasized that the three subjects highlighted by section 10(3) of the 1988 Act concerned subjects which had proven “extremely divisive in Irish society in the past” and it also agreed that the Government had been entitled to take the view that Irish citizens would resent having advertisements touching on these topics broadcast into their homes and that such advertisements could lead to unrest.
It is important to note that the Court also emphasized that the prohibition concerned only the audio-visual media. This is due to the medium having a more immediate, invasive and powerful impact, including on the passive recipient. Also, The prohibition only related to advertisements (Para 74).
With these considerations, it provides in the Court’s view, highly “relevant reasons” justifying the Irish State’s prohibition of the broadcasting of religious advertisements (Para 75).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
There is a clear and obvious contraction on expression in this case, though the reasons for it is clearly justified. The Courts go to extreme lengths to prove and show the possible erratic reaction that could result from the broadcast of an advertisement with regards to a sensitive issue.
A blanket ban must be limited to only extreme situations where there has been a history violence, sensitivity or other negative impacts that could result from the publication of the content.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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