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 existence.
ICCL firmly believes that the use of the Charities Act 2009 to censor artistic expression that would ordinarily be acceptable to the Charities Regulator outside of a referendum period is an inappropriate use of that legislation.
Irish Constitutional case law and the case law of the European Court of Human Rights make clear that the State’s obligation to ensure freedom of ‘political’ expression is more important than ever during an election period. As a result, the censoring of artistic expression containing ‘political’ content during a referendum period, where that content and discussion of it would ordinarily be acceptable to a State body because it is integral to the art is highly questionable from a legal perspective.
Furthermore, while it is necessary to regulate spending and funding during elections to protect the integrity of our democracy, under the Irish Constitution, freedom of speech is not equivalent to freedom to buy advertising or column inches.
Our statement addresses the 1995 case of McKenna v An Taoiseach (No 2), in which the Supreme Court held that the Constitution prohibits the Government from “expending public monies in the promotion of a particular result in [a] Referendum”. 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.