672 / 736
ney-General 1965
I.R.
294
—The "flouridation
case.") Undoubtedly there is a personal right to
know whether one is committing a criminal offence
in engaging in conduct or speech.
In the United States the Federal Courts are
familiar with the concept of "vagueness" as a
ground for finding legislation unconstitutional be
cause it violates the guarantee that "no person
shall be ... deprived of his life, liberty or pro
perty without due process of law" under the 5th
and 14th amendments of the Constitution.
In
Schenck v. United States (1919) 249 U.S. Mr.
Justice Holmes laid down the test in relation to
offences of advocating criminal conduct — (in
this case the publishing of a manifesto denouncing
conscription) — by saying: "The question in every
case is whether the words are used in such cir
cumstances and are of such a nature as to create
a
clear and present danger
that they will bring
about the substantive evils that Congress has a
right to prevent."
Danger lacking
This "clear and present danger" element is
totally lacking in the definition of the criminal
offence under section 4. It is not necessary for con
viction that the advocating and encouraging should
have been effective, or even persuasive. The prose
cution do not have to show that anyone listened,
or that anyone read the article or words, if the
encouragement was in written form. No American
court would be likely to condone such vague ter
minology. Irish judges look to American cases as
persuasive on Constitutional issues, and it is reas
onable to suppose they would apply similar prin
ciples.
In a recent American case, Yates v U.S. (1957)
354 U.S. 298 the Supreme Court quashed a con
viction of 14 people on a charge of conspiracy "to
advocate and teach the duty and necessity of over
throwing the Government of the United States by
force and violence," contrary to the Smith Act
1940, by their activities in the Communist Party.
One of the grounds for quashing the conviction
was because the lower court failed to distinguish
between "advocacy by forcible overthrow as an
abstract doctrine and advocacy of action to that
end," because passive advocacy could never be
sufficient.
But the Irish Bill uses the word "encourages"
as well as "advocates" and there is no requirement
of proof of the effect which this encouragement
might have on persons to forcibly enter or re
main on property belonging to another. It may
be noted that the American case involved the
much more serious offence of advocating the over
throw of the Government by unlawful violence,
and yet the courts were concerned to protect the
individual from the possibility of having freedom
of speech curtailed to such an extent that there
could be a conviction for advocacy of an abstract
doctrine which
could
influence others to action.
These cases show the concern of the American
judges to protect freedom of speech and personal
liberty. Our courts share a similar tradition, and
faced with this situation the judges would undoubt
edly look to American practice for guidance on
the underlying principles. The wording of section
4 of the Irish Bill is much more vague than its
American counterparts. There is no reason to
believe the Irish court would be less vigilant in
finding such phraseology unconstitutional.
The
matter should be remedied
before
the Bill becomes
law.
I have confined my argument in this article to
an attack on the constitutionality of Section 4 of
the Bill.
If it comes before the Senate I shall
oppose the other sections of the Bill on legal
and social grounds, but these are not relevant to
my present thesis. I call on the Government to
seek legal advice on the constitutionality of Sec-
titon 4. I call on lawyers in this country to be
vigilant in safeguarding our personal rights against
such possible encroachment.
(The Irish Times, 6
February 1971)
PROFIT AND PROTEST
by John Temple Lang, M.A., LL.B.,
Solicitor.
John Temple Lang considers that the Bill would
serve property speculators at
the expense of
protest against injustice.
The
legal case for the new Prohibition of
Forcible Entry and Occupation Bill is nothing like
as strong as its supporters try to make out. The
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