Concerns over free expression rights and censorship emerge during abortion referendum

On 25th May 2018, an overwhelming majority of Irish voters elected to remove the country's ban on abortion in a widely-anticipated constitutional referendum. Following a hard-fought and often bitter campaign between those for and against, 66.4 percent voted in favour of removing the 8th amendment to the Irish constitution, which had been in place since 1983 and criminalised abortion, thereby forcing thousands of women to either undergo unsafe abortions or travel elsewhere for the procedure. The vote was hailed as a victory for the many political and civic groups which had campaigned to revoke the amendment. 

Expression

In late April, the Dublin City Council decided to cancel a panel discussion with artists and writers who had contributed to the book Repeal the 8th. The discussion had been scheduled for 21st May during the International Literature Festival Dublin.The Council ruled that it was not possible to use public funds to support any side in the referendum campaign, a decision which followed the 1995 case of McKenna v An Taoiseach (No 2), in which the Supreme Court ruled that the government is prohibited from “expending public monies in the promotion of a particular result in [a] Referendum”.

Irish writer Una Mullally, who edited the book, stated:

Why is art and culture reflecting discourse around women’s rights being shut down? [...] [it is a] ridiculous situation that writers cannot speak about a book and their writing at a literature festival”.

According to the Irish Council for Civil Liberties (ICCL), the above incident and the earlier case of the removal of artist Maser’s Repeal the 8th mural have wider consequences and contribute to a chilling effect on arts organisations and exhibition spaces, some of which cancelled or scaled back events featuring art pieces related to the Repeal the 8th Campaign. Reports of such incidents came from the authors of the documentary Witness as well as Grace Dyas and Emma Fraser whose show Not At Home “make(s) visible the experiences of women who travel abroad to access safe abortion services, to highlight the consequences of Ireland’s abortion laws and to connect women who have travelled in solidarity”.

Liam Herrick, Executive Director of the ICCL, declared that:

Freedom of expression is a fundamental right in any free society and artistic freedom must be afforded the highest protection. The role of the artist in challenging power and orthodoxy is the very lifeblood of our cultural life”.
In our view, the McKenna decision outlaws the use of public funds to support the Government’s own campaign for a “Yes” or “No” vote. This is not the same as using public funds to support free discussion of artistic work containing ‘political’ ideas that are relevant to a referendum. We maintain that ‘neutrality’ is not achieved by censorship of artistic expression and the discussion inspired by it. Rather, ‘neutrality’ can be achieved by ensuring that the selection criteria for exhibitions and events are non-discriminating, that such exhibitions and events are open to the public, and that support for further artistic expression containing ‘political’ ideas is made available”.

Association

Foreign funding of referendum-related campaigns

In the midst of the debate around Facebook's role in determining electoral results, foreign funding coming from the U.S. became a controversial topic in the context of the Irish referendum. The CIVICUS Monitor had previously reported on the distressing defamation campaign against organisations advocating in favour of repealing the 8th amendment. Groups supporting a "no" vote in the referendum were also in the spotlight due to the opaque funding of online advertisements. According to an investigation by Channel 4, anonymous social media pages and websites trying to influence undecided voters were linked to foreign servers.

Due to the tension around the topic, Facebook decided to ban advertising linked to the referendum from organisations located outside Ireland, while Google stopped even domestic advertisements linked to the referendum. Opinions on such measures  were divided. Pro-life campaigners raised the issue of freedom of expression and questioned “whether foreign election interference is remotely significant enough to merit such a blanket crackdown”. On the other hand, Together for Yes Campaign Co-Director Ailbhe Smyth supported the move as it created a “level playing field between all sides” so that the integrity of campaigns on the referendum would depend on the “strength of their argument and power of personal testimony, not by the depth of their pockets”. ICCL also stressed that “freedom of speech is not equivalent to freedom to buy advertising or column inches”.

Welcomed calls for permanent electoral commission

Irish civil society organisations welcomed a call to establish a permanent electoral commission that would regulate the electoral register and monitor campaign financing. Currently, the electoral register is managed by local authorities, while the Standards in Public Office Commission (SIPO) controls the funding mechanisms. Member of parliament from the opposition Fianna Fail Party, James Lawless, stated that:

" [A commission would] help deal with a number of issues specifically relating to campaigning such as whether limits should be placed on the use of campaign posters, the lack of spending caps in referendum campaigns, whether the broadcasting moratorium is practical given the emergence of social media and the lack of regulation in relation to online campaigning".
People with disabilities face barriers in taking part in political activities

Christine Fenton has Myalgic Encephalomyelitis, a disability which requires the support of a personal assistant. Fenton reported that according to the contract with the organisation that provides her with a personal assistant, she is prohibited from having her assistant with her when she takes part in political activities. Fenton indicated that such prohibitions limit people with disabilities from participating in protests and being civically active. She asserted that such political participation is a fundamental right "of any individual" and when such is prevented, "it is an abuse of power”.