The Gazette 1967/71

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 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. right to prevent." Danger lacking

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 212