Cearta.ie

Mammoth judgments, and how to stop them

Eoin — Wed, 26 Aug 2026 13:31:48 +0000

While I was procrastinating over coffee this morning, a post by Hilary Young on LinkedIn drew my attention to an article by her colleague Paul Warchuk on the “trend of systemic prolixity” in the judgments of the Supreme Court of Canada (SCC) (reported here | preprint here | forthcoming in the Canadian Bar Review). I enjoyed the article so much that I thought I’d take another break from my ongoing censorship series to comment on it.

The disease of mammoth judgments has infected many (most? all?) other apex and inter/supra-national courts too. Vigorous application of screening mechanisms (such as denying leave to appeal) has reduced the number of cases, thus giving more time to compose long judgments. As time goes on, the set of materials to be considered (including not only prior judgments in the jurisdiction in question, but also relevant judgments in other jurisdictions, and academic discussions of the issues) is rapidly expanding. This increases not only the length of written and oral submissions of counsel but also the volume of underlying materials to be assessed by the judges. Law clerks and judicial researchers ease research (and writing) burdens. And then, of course, the computer has a lot to answer for: it makes writing easier; it permits extensive research; it makes more materials available (we no longer lack unreported judgments; we are not confined to paper materials in libraries); the scourge of cut-and-paste (and keyboard shortcuts) reduces difficulties in citing and quoting materials; it enables defensive rather than sensible footnoting and completism rather than completeness (for example, “see also” ad nauseam); and it encourages the vanity of showing off (Look how much I’ve considered!…

Censorship and constitutional speech rights – Part 2 – good reasons and legitimate aims

Eoin — Mon, 24 Aug 2026 12:04:39 +0000

In the aftermath of Irish Family Planning Association v Ryan [1979] IR 295 (27 July 1978) (noted here and here), Prof Kieran Woodman interviewed Judge Noel Ryan (obituary), then Chairman of the Censorship of Publications Board, and the named defendant in the case (Kieran Woodman Media Control in Ireland 1923-1983 (Southern Illinois UP, 1985 | Amazon) 158). Woodman asked Ryan whether, “as a constitutional lawyer”, he considered “that the Censorship Acts were constitutionally valid?”:

The answer was slow and measured, and the words presumably weighed and chosen with care. “Yes, they would pass muster on the grounds of public order and morality and in the interests of the common good.” (ibid, emphasis added).

In Murphy v Irish Radio and Television Commission [1999] 1 IR 12, 24, [1998] 2 ILRM 360, 372, (28 May 1998) [37]-[44] (doc | pdf) Barrington J (Hamilton CJ; and O’Flaherty, Denham, and Keane JJ concurring) explained that, when there is a restriction on a constitutional right, the State can justify the restriction if it has a good reason for the restriction, and is proportionate to that reason. The ECHR describes these good reasons as legitimate aims, and Barrington J in Murphy adopted that language.…

Censorship and constitutional speech rights – Part 1 – political expression and autonomous communication

Eoin — Mon, 17 Aug 2026 14:40:25 +0000

The Censorship of Publications Acts, 1929, 1946, and 1967, are still on the statute book. They establish the Censorship of Publications Board and an Appeal Board. One Minister recently said that “the Censorship Boards are of limited relevance in a modern society. Their mandate is largely unenforceable given the legislation’s dated principles”. She is entirely right, but I am not sanguine that repeal is imminent. But worse than “limited relevance” and impracticality is the unconstitutionality of the censorship regime. We have already seen that the regime unconstitutionally infringes the principle of legal certainty and unconstitutionally chills the exercise of free speech rights protected by the Constitution. In this post and the next two, we will consider an even more direct and egregious unconstitutionality.

In principle, when there is a restriction upon a right, there must be a good reason for the restriction, and it must satisfy a standard of review or scrutiny. The restrictions at issue here flow from the power to prohibit the publication of indecent or obscene books and periodicals. The rights engaged by these restrictions are the constitutional protections of freedom of expression and communication. Many reasons have been advanced to justify the restrictions upon these rights, including public morality and the common good.…

Breaking News!! Secondary rights, Copyright, Open access, Institutional policies, and Rights retention

Eoin — Fri, 10 Jul 2026 16:08:20 +0000

We interrupt our scheduled programming to bring you some breaking news.

I have been co-Principal Investigator in the SCOIR Research Group, and we have some news!

The acronym stands for the Secondary rights, Copyright, Open access, Institutional policies, and Rights retention Research Group. It consisted of Frances Madden (TUD) (co-Principal Investigator), Niamh Brennan (TCD), Kaberi Basu (TCD), Arushi Sharma (TCD), and myself, with the assistance of Martin Bradley BL. “Scoir” is an Irish word for “unharness”; and our project aimed to unharness the power of open research. It was funded by the National Open Research Forum (NORF), with additional support from Knowledge Rights 21 (KR21), to whom we are very grateful.

One of our outputs was a draft Research Outputs and Open Access Bill 2025 (pdf). The aim of the Bill is to underpin and vindicate the rights of researchers and their employers and funders to publish publicly-funded research outputs on open access platforms. And we submitted it to the Department of Further and Higher Education, Research, Innovation and Science (DFHERIS).

Open access publication makes research outputs available for everyone to access, use and re-use.…

Indecency, obscenity, immorality, vice, depravity, corruption: the chilling effect of the Censorship of Publications Acts – Part 2 (censor and chill)

Eoin — Mon, 15 Jun 2026 13:21:21 +0000

The Censorship of Publications Board was established in 1929 (pursuant to section 3 of the Censorship of Publications Act, 1929). It has the power to prohibit the publication of indecency, obscenity, immorality, vice, depravity, and corruption (pursuant to section 2 of the 1929 Act, and section 1, section 7(a), and section 9(1)(a), of the Censorship of Publications Act, 1946). The question in this post is whether the operation of these vague standards unconstitutionally chills the exercise of free speech rights protected by the Constitution. Spoiler alert: the answer is yes.

In my previous post, I argued that, as a matter of Irish law, the Supreme Court should hold that, as a matter of principle, the legal uncertainty from the operation of vague terms, such as indecency, obscenity, immorality, vice, depravity, and corruption, has an obvious and unconstitutional chilling effect upon public discourse; that such uncertainty raises special Article 40.6.1(i) concerns because of its obvious chilling effect upon free speech; that such terms take within their sweep a great deal of protected speech and therefore have an unconstitutional chilling effect upon free speech protected by Article 40.6.1(i); and that the effect of such vague prohibitions is to deter not only the expression at which the prohibition was aimed, but also legitimate expression, so that creativity and the beneficial exchange of ideas will be unconstitutionally affected.…