Defining defamation and the reality of homophobia

30 January, 2014 3 comments

For the last few years, it’s been known that we will have a referendum on whether gay and lesbian couples can marry in this country. I’ve generally been cautiously optimistic, believed that with a good campaign, we will win this. I trust in the fundamental decency of the Irish people, when asked to consider this, will think of those they know, and give us the same chance to marry as others have.

Till this week. This was never going to be an easy campaign. Now we see it’s not going to be a fair campaign. Rory O’Neill spoke honestly on the Saturday Night Show about how media commentary is still one of the few areas he regularly witnesses speaking in a discriminatory way towards gay people. Let’s not forget that in the article about gay priests by Breda O’Brien which he referred, she claimed Roman Catholic doctrine on gay people (that we are intrinsically disordered towards an objective moral evil) is fair enough because they view gay relations in the same way as lying or gluttony, while not hating those who lie or overeat.

Someone who groups gay relations with these other traits should expect their motives questioned when they proceed to argue that we should be denied the chance to marry or raise children. Or similarly John Waters, who assumes we are engaged in a massive plot to bring down marriage because of envy, should not expect anyone to think that he thinks of gay people in the same way as the rest of the population. To question our motives, to think the time someone like myself has spent on this cause is about anything other than a hope that I might marry, and that any two who find that happiness in each other can do the same. And I will wonder about an institute which is reckless as to the relevancy of a study it cites in a proposal (which was otherwise poorly-referenced) to the constitutional convention to argue against our equality.

Rory O’Neill’s analysis was sophisticated. It was O’Connor who raised the word homophobia, and O’Neill then considered how prejudice can exist within us, to a greater to a lesser extent, and that it is something that we need to be aware of within ourselves. Someone who is “spending so much of [their] life, devoting energies to writing things, arguing things, coming on TV to do anything to try and stop people achieving what they think they need for happiness” does need to take the time to consider if what they are promoting is properly something they can stand by.

All of the material that Rory O’Neill challenged is in the public sphere. Anyone can read the articles Breda O’Brien, John Waters or David Quinn write week on week in the two bestselling daily newspapers and make their assessment. They can each respond in these columns if they wish. I fail to see how the comments on the Saturday Night Show could “injure their reputation in the eyes of reasonable members of society”. All they tell us is the assessment by a prominent gay activist of the journalistic and lobbying work of individuals mentioned. Someone might read their work in a differently in light of O’Neill’s assessment, but it could not be his comments that cause any injury to their reputation. To my mind, this is before we consider the defence of honest opinion, provided in section 20 of the Defamation Act 2009. (Again, ultimately I’ll defer to those with more legal knowledge; perhaps Brian Barrington, whose open letter was widely distributed yesterday.)

What followed was a shameful sequence from RTÉ, which bear repeating: action was taken against RTÉ and Rory O’Neill by members of the Iona Institute and by John Waters; the section of the interview was removed, with an odd reference in the explanation of it to the unfortunate death of one of their colleagues, despite the fact that he was not named and that the death occurred after the interview; Brendan O’Connor read an obsequious apology, which sounded as if was drafted by the staff of Iona; and RTÉ paid damages to the Iona Institute.

The term Orwellian may be overused, but as the use of political language to describe exactly the opposite of what it means, the line in the apology “It is an important part of democratic debate that people must be able to hold dissenting views on controversial issues” in explaining why they censored a guest and paid damages to those who didn’t like his comments fits the description perfectly. Iona also talk without any sense of irony of O’Neill attempting to bring the debate to an end, while they are the ones who have spent the past 12 months sending solicitors’ letters to their harsher critics.

While I’m sure Iona are delighted to have some more money for their campaign against equality, I don’t think this was mainly about cash. This will have a chilling effect on RTÉ scheduling over the next year and a half. They will be much more cautious about when and how they have outspoken lesbian, gay, bisexual or transgender guests on air. This will lead to our lives being discussed only from the perspective of a live, controversial debate. Instead of treating the fullness of our lives. This is why I am now much more concerned for the result, if it will take place with terms of debate set by the Iona Institute.

It’s trivial to say it, but most of our lives are just plain ordinary, including our romantic lives. But homophobia is unfortunately still part of our lives. Far much less so than it was, and to a rapidly decreasing degree. But it exists. I’m lucky to have experienced relatively little, but I have in my time heard homophobic comments, even from people I’ve been friends with, and not always had the guts to call them up on it. I know people have experienced much worse. There is still homophobic violence or verbal abuse. This is one of the aspects of why next year’s referendum result matters. Even for those who may not wish to marry, or for young people who are many years from even considering marriage, it matters. For as long as the state continues to treat us differently, others will take the opportunity, consciously or subconsciously, to do the same. Conversely, a strong vote in favour of equality will surely quicken the pace of the decline of homophobia as an acceptable prejudice.

So yes, our focus ahead of the referendum will be on the happiness we hope for from marriage, to do so just as our parents could, for the same reasons as anyone else would. But we can’t ignore or sideline the context of a legacy of prejudice against us and the problem with homophobia, however softly spoken.

Heed Their Rising Voices

29 January, 2014 Leave a comment

While I gather my thoughts and feelings about the live issue of free speech and suits for defamation, another case relating to free speech, the media and a suit for libel came to mind.

Fifty years ago this month, the US Supreme Court heard the cases of New York Times v. Sullivan and Abernathy v. Sullivan. On 29 March, 1960 The New York Times published a full-page advertisement from the Committee to Defend Martin Luther King. It included the names of twenty religious ministers working in the south in the civil rights campaign.

NY Times Ad
3/29/1960
Digital File name: Job 09 A2 070_021_001

The Montgomery Police Public Safety Commissioner L. B. Sullivan sued both The New York Times and four of the ministers named, Ralph Abernathy, S. S. Seay, Fred Shuttlesworth and Joseph Lowery, for $500,000, based on inaccuracies in the text of the ad. For example, the ad stated that King had been arrested seven times, when in fact he had been arrested four times. The Alabama trial court and supreme court both found in favour of Sullivan, and awarded him the full sum of money. This led to similar suits, which would have hurt both the civil rights movement and the possibility of press coverage of abuses in southern states quite severely. It was widely believed that this was the ultimate aim; not the award of money to Sullivan and others, but to ensure that they could continue to act without scrutiny.

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Prediction: European Parliament election 2014 (Irish seats)

22 January, 2014 Leave a comment

The European elections will be held on redrawn constituencies as Ireland will lose a seat, so that we have 11 rather than 12. Dublin remained as it ever has, with the rest of the state divided with line midway across, such that we in Bray share a constituency with Kerry and Limerick, and everything to our south.

We’re in the midst of candidate selection, and some of this is based on speculation, but this is my current prediction:

Dublin (3): Brian Hayes (FG), Lynn Boylan (SF), Emer Costello (Lab)

North-West–Midlands (4): Mairead McGuinness (FG), Pat The Cope Gallagher (FF), Matt Carthy (SF), Marian Harkin (Ind)

South (4): Seán Kelly (FG), Brian Crowley (FF), Liadh Ní Riada (SF), John Bryan (FG)

This would leave party totals as:
Fine Gael 4 (no change)
Sinn Féin 3 (+3)
Fianna Fáil 2 (–1)
Labour 1 (–2)
Independent 1 (no change)
Socialist Party 0 (–1)

Or in terms of European Parliament groups:
European People’s Party 4 (no change)
European United Left/Nordic Green Left 3 (+2)
Alliance of Liberals and Democrats for Europe 3 (–1)
Progressive Alliance of Socialists and Democrats 1 (–2)

A lot could change, of course, but at the moment, the one of these above I’d be least confident about is the third seat in Dublin. I wouldn’t be surprised to see that go to Fianna Fáil, who select their candidate on Sunday. They are choosing between Tiernan Brady, Geraldine Feeney, and Cllr Mary Fitzpatrick. I know Tiernan Brady, who was formerly a Donegal councillor, and has worked for a number of years with GLEN (the Gay and Lesbian Equality Network), and would be quite happy to see him take that third seat. Mary Fitzpatrick was clearly sidelined by Bertie Ahern in 2007, and so might be seen by voters as a break with the old leadership.

At the moment though, I think sitting Labour’s MEP Emer Costello will hold. She was co-opted in 2012 to the seat won by Proinsias De Rossa. A recent poll showed Labour and Fianna Fáil tied at 14% in Dublin. While Labour will not be as transfer-friendly, the votes of eliminated candidates on the left should benefit them over Fianna Fáil. If the other regions become lost causes, Labour will likely concentrate all their efforts in Dublin, which could help her over.

I’m also working from the assumption that Paul Murphy, who replaced Joe Higgins as the Socialist Party MEP in 2011, will not hold, particularly as he faces a challenge from People Before Profit Cllr Bríd Smith for the far-left vote and organisation. While Joe Higgins had a force of character and presence to win the third seat in 2009, Murphy won’t have the same advantage. He also received a lot of support from those who wanted to keep Fianna Fáil out of the third seat then, and who weren’t going to vote for Sinn Féin’s Mary Lou McDonald. Paul Murphy has been visible since his co-option, but I don’t think it will be enough to be competitive against the larger parties’ organisation.

Elsewhere, I don’t think Jim Higgins will hold up against the strong field, but I think he would do as well or better than another Fine Gael candidate. Short of a strong new force or candidate, the results in South and North-West–Midlands seem straightforward from here.

Overall, these results would be a solid election for Fine Gael, which has been the largest at a European level since 2004; a very good election for Sinn Féin; Labour would be back to their traditional place of usually having just the one in Dublin; and somewhat disappointing for Fianna Fáil.

However, European elections are of a different sort. If we want to see how party support and organisation is ahead of the general in 2015 or 2016, the locals will be where to look towards.

Reform Alliance are not the next Progressive Democrats (for me at least)

8 January, 2014 Leave a comment

The conference from the Reform Alliance later this month should be interesting to watch. I might even call in to it. While Lucinda Creighton did insist on Prime Time yesterday that it isn’t a political party, it certainly seems to be heading that way, with a date of September mentioned. If Stephen Donnelly joins them, my Wicklow homeland would become a stronghold for them. I’ve been asked more than once by friends and family if I’d consider joining them. There’s really barely a hope of that.

It’s not just that I’m enjoying my current activity in Fine Gael. If a party emerged that was closer to my ideals, and had reasonable prospects of being viable, I’d give them a fair hearing. This new group doesn’t seem likely to be either. When I spoke in favour of dissolution at the last conference of the Progressive Democrats, among other things, I said that if we were to continue, we could inhibit the development of our ideas in another political force. The Reform Alliance is not what I had in mind.

Let’s jump back to the 1980s, to the events that led to the formation of the PDs. Des O’Malley first lost the Fianna Fáil whip in 1984 because he was willing to consider political solutions in the New Ireland Forum Report other than a united Ireland (all of which gave much more power to the Irish government than the later agreements). He was then expelled from Fianna Fáil in February 1985 after he stood by the republic in the debate on the Family Planning Bill, arguing against that party’s tactical opposition to modest liberalisation of contraception laws. While an Independent TD, O’Malley led the charge against Minister for Transport Jim Mitchell’s ridiculous notion that it should be illegal to sell a place ticket lower than Aer Lingus, paving the way for cheap flights and Ryanair. Mary Harney lost the Fianna Fáil whip in November 1985 after she voted in favour of the Anglo–Irish Agreement. She and O’Malley were joined in December 1985 at the launch of the new party by Michael McDowell, a former chair of Dublin South-East Fine Gael, who was unsatisfied with the Fine Gael/Labour management of the economy. As well as realism on the national question, moderate personal liberalism and an economic focus on lower taxation rather than government control, a large impetus for the strength of the party was opposition to the politics of Charlie Haughey.

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Reaction to Seanad result

6 October, 2013 Leave a comment

I’m disappointed with the result of the referendum on Seanad abolition. There’s no point now in detailing once more why I thought this would have been a good idea and a worthy reform of our political system. The result was not what the polls predicted, and while polling firms might have found it difficult to estimate likely voters, there also was a definite swing against us. With this short time to consider the result, I think the blame for that most likely rests with the Taoiseach and his closest advisors. When he announced this in 2009, I thought (or hoped) it was a sign that he was truly embracing an element of radical and substantial political reform. Yet during this campaign, he did not show the confidence to explain and defend it to voters. I know of people who were leaning in favour of abolition but who voted against because they did not believe he should be rewarded and credited with such a change if he would not stand up for it. If it were a long-held party policy, or an initiative of another minister, it would have been fair enough to have delegated it to the director of elections, as usually occurs at referendums. But he was the one who reintroduced this to the political conversation in 2009. As the leader of our government, Enda Kenny should have explained clearly and plainly the merit he saw in this.

Party members were let down by this. A defeat in a poll is never a pleasant experience, and this is one that could have been avoided. The internal conversation and debates should have started long before the summer. And party members should have been involved in formulating our arguments. There is a time and a place for focus groups, but the political instincts of motivated and interested members should be respected and sought. We ran with poor campaign messages. The largest party in the country could never have credibility talking of the benefits of fewer politicians. The discussion of cost does have a place, but it should not have been the starting point. Not to mention some embarrassing stunts, which are probably all right as moments of levity during a campaign, but not when they become key pieces of it. We needed a wide-ranging and targeted campaign, one that showed from the start that it was a position of substance and principle, that stood up to scrutiny, based on solid research.

Fine Gael needs to learn from this. We didn’t learn from the referendum on Oireachtas Inquiries; here we are two years later with practically an identical margin against. Reform that requires constitutional amendment needs to be framed in a way that appreciates and addresses the legitimate suspicion the public have when the executive seeks to alter the arrangements in the constitution.

In the RDS count centre this morning, a non-aligned campaigner said to myself and a member of a different party that for people like us, it was a tribal matter. It wasn’t that for me. Had Fianna Fáil or any other party proposed this, and Fine Gael been against, I would still have publicly supported this. I am not right now disappointed for Fine Gael that we as a party have suffered a defeat in a poll. I am disappointed in Fine Gael, and I things change have to change.

And to those who opposed abolition, well done on a well fought campaign.

All we can determine from yesterday’s result is that the voters wanted to keep a second house. We should now think carefully and critically about how its 60 members should be selected and what their role should be.

Yes to Court of Appeal and change to One-Judgment Rule

2 October, 2013 Leave a comment

I will then vote Yes to establish a Court of Appeal (the Thirty-third Amendment of the Constitution Bill). Over the past decade, there have been considerable and growing delays in the Supreme Court hearing of appeals from the High Court. Our Supreme Court deals with much more than its equivalents in other countries. In our constitutional system, questioning pertaining to constitutional interpretation must take precedence there, such that many civil matters are delayed in their appeals from the High Court for up to four years. Ireland has been found liable in both the European Court of Human Rights and European Court of Justice on the grounds of unreasonable delay. Having a speedy process in civil cases will set us in line international obligations on issues such as extradition and child abduction, while also making us more attractive to multinational firms, who often have concerns about lengthy litigation. These problems were detailed by Susan Denham, now Chief Justice, in 2006 in the Judicial Studies Institute Journal.

The same amendment will also remove the requirement on the Supreme Court to deliver only one judgment in cases challenging the constitutionality of laws. In cases not relating to the constitutionality of laws (e.g. high-profile cases AG v. X. on abortion or AG v. Hamilton on cabinet confidentiality), and in cases relating to laws enacted before 1937 (e.g. Norris v. AG), dissenting judgments do contribute to an understanding and development of the law, without undermining the authority of the majority judgment. These development and the value of dissenting could not have been foreseen when de Valera proposed this change as one of many in the Second Amendment in 1941. (It will not amend this in the case of referrals by the president before a bill is signed, presumably on the grounds that as such a law cannot after be challenged on constitutional grounds, diverging or dissenting judgments would not be beneficial.)

Yes to Abolition of Seanad Éireann

2 October, 2013 Leave a comment

I will be voting Yes this Friday to abolish the Seanad (the Thirty-second Amendment of the Constitution Bill). I have tried to encapsulate across different platforms the various reasons I have for doing so over the course of this campaign, over different platforms. In short, in these closing days, I hold that in a country like Ireland, without clear and sharp cultural or geographical divisions, we should have a single parliamentary chamber composed of representatives elected by us to pass laws on our behalf. This is something I first considered around ten years ago, and since then it had always seemed like a common sense proposal. We hear of many ideas for its reform, but that casts it as a house in search of a purpose. What reforms are proposed are ones that should be delivered for the Dáil, as our house of representatives. And even though I don’t believe political reform should stop here, I think it is a worthy reform in itself, to remove a house elected by a privileged section of society in a proportion of university graduates, of senators I’d barely recognise elected by Oireachtas members and councillors, and 11 who may or may be not be decent senators depending on the whim and needs of the Taoiseach.

I was delighted when Enda Kenny announced this policy soon in 2009, not long after I joined Fine Gael, and that he stuck with this commitment through the election campaign and into government. I would not have had the primary focus on cost that we saw from Fine Gael posters, but I think we have had a broad debate. Whatever the result on Friday, at least the people will have had their say.

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