After an extraordinarily long wait, the decision in Dillon v DPP [2007] IEHC 480 has finally been published on the website of the Courts Service. It was announced in court in March 2007, delivered in November 2007, and published online in the last couple of weeks. (I last whinged about it in January).

On the day of the decision, Eoin blogged about it in an important and extremely useful post-with-extra-stuff-in-the-comments, here. In a comment at the time, I joked that it would take a month for it to go online (how wrong I was to be so optimistic), and added then : “Given that the vagrancy law has already run into constitutional trouble (King v AG, early 80s), I’m concerned that this might not be a detailed exploration of freedom of expression and communication issues after all….” (alas, how right I was to be concerned)

The decision is remarkably brief. Indeed, the discussion of freedom of expression, which we’ve been waiting for (this being, as we thought, the first provision of a statute struck down on the basis of Article 40.6.1i), takes just a few paragraphs. After concluding that the provision cannot stand because of four separate constitutional violations, de Valera J notes that expression rights are raised, and says:

16. In Kearney v. Minister for Justice [1986] I.R. 116, Costello J. accepted that “the right to communicate” was protected by Article 40.3 and begging as already defined is clearly a manner of communication by one person to another
17. In Murphy v. Independent Radio and Television Commission [1999] 1 I.R. 12, Barrington J. in considering the right to communicate pursuant to Article 40.3 and the right of freedom of expression pursuant to Article 40.6.1 accepts the right of the citizen to express his or her needs “by words and gestures as well as by rational discourse”.
18. Again in applying this dictum to begging as already defined, the Act clearly offends against freedom of expression as provided for in Article 40.6.1 of the Constitution.
19. There are no Irish decisions directly relevant to the provisions of the Act, though the Law Reform Commission produced a very learned, comprehensive and helpful report on vagrancy in 1985 which, had it received the attention it deserved and required, would probably have rendered this application unnecessary.
20. I have been referred, helpfully, to a number of Canadian and United States of America cases touching on the matters under review: cases such as Loper v. New York City Police Department 999 F.2d 699 (2nd Cir. 1993) and Hague v. Committee for Industrial Organisation 307 U.S. 496 [1939] and Village of Schaumburg v. Citizens for a Better Environment 444 U.S. 620 [1980], and in particular Bennett v. Cambridge 424 Mass. 918 [1997], clearly support the applicant’s contention that an overall ban on all forms of begging is unconstitutional. The Bennett case is of particular interest in its similarity with the instant matter.
21. The Canadian cases cited included Federated Anti-Poverty Groups of British Columbia v. Vancouver City [2002] B.C.S.C. 105, also supports the applicant’s contention that s. 3 of the Act infringes the applicant’s right to freedom of expression and freedom to communicate though it must be noted that these authorities from the United States of America and Canada are of a persuasive value only.
22. Finally it is accepted by the applicant, and it is undoubtedly so, that the right to communicate and the right to freedom of expression can be limited in the interests of the common good. Nothing in this judgment should be construed as preventing the legislature from making laws controlling the location, time, date, duration and manner in which begging or the seeking of alms might take place and the age of any person involved in such activity.

Much as I’m glad to see that it’s actually possible to strike down legislation on the basis of its impact on freedom of expression and freedom of communication (however defined), I can’t deny that I’m extremely disappointed that the opportunity wasn’t taken to engage with the concept or indeed the application in a more meaningful way. For the case to be of value to future persons affected by possibly unconstitutional legislation, or indeed to legislators and decision-makers, let alone law students and law teachers, we need more than this, especially from a court that has the power and the duty to interpret the Constitution.

Two different ways to reconsider the role of your iPhone or iPod Touch: via Wired’s Gadgets blog, a great mashup of a Moleskin notebook and said device, and in the print edition of MacFormat magazine (Summer 2008), deputy editor Chris Plin argues that the iPhone is in fact the Hitchhiker’s Guide to the Galaxy, with the cleaning cloth playing the role of the towel.

My alma mater, PhD venue and current employer, Trinity College Dublin, joined the world of iTunes U this month. As has the Open University, the only other institution that I have a qualification from. I love them both, but am particularly happy to see the TCD contribution, as I know some of the people involved in the project, both on the tech as well as the open-access-evangelising side, who have been plugging away at this for years. In particular, I can remember the reaction in some quarters when, in relation to a project I work for in the institution, we asked about putting podcasts on the server for internal use. We wouldn’t have got anywhere with that mini-project without their support, and their vision is coming to fruition with this announcement.

Thoughts from Karlin Lillington here and John Naughton here.

TCD on iTunes
OU on iTunes

The Berkman Center invited me to write an essay for its Publius project (”Essays and conversations about constitutional moments on the Net collected by the Berkman Center“), responding to a very interesting piece by the great Lewis Hyde, who called his contribution “Freedom of Listening: An 18th-century root for net neutrality“. My piece, “The Right To Communicate“, is available on the Publius website. Comments and responses very welcome.

Lewis Hyde’s thoughtful essay on network neutrality and the trials of 18th-century preachers-without-pulpits is a timely reminder that the issue of net neutrality is not one that should be the sole business of a small group of Internet activists and lobbyists. It’s about time to acknowledge that, while increasingly vehement disagreements between economists on how to stimulate the development of broadband in the US are undoubtedly fun to watch, a broader conversation on the cultural and political impact of new technologies is slowly emerging from the confusion that is net neutrality.

…continued at publius.cc…

Tags: berkman

The possible (mis)use of US federal law designed to deal with hacking for the purpose of the (admittedly tragic) Megan Meier/Lori Drew case is scary. In short, after a high-profile situation where a young person committed suicide after what appears to be a pattern of harassment conducted via MySpace, it emerged that the mother of a ‘friend’ of the deceased had written many of the messages. Charges didn’t follow in the first instance (state law), but after some time, charges were brought under federal law, including the Computer Fraud and Abuse Act (CFAA) as amended, which in effect makes it illegal to access any computer ‘without authorization’; the logic goes that because MySpace requires you to give correct information and not be abusive, not following the conditions means that you aren’t authorised.

The idea that violation of the terms of use of a website is in itself a crime raises all sorts of possibilities that are almost too far-reaching to speculate about without seeming a little unhinged! It’s similar to, yet even more threatening than, the development of knee-jerk “criminal trespass” laws that blur the line between conduct in public places and private places and have been used against peaceful protesters with abandon. I find some tragic humour in the fact that private censorship by hosts, no matter how irrational, is seemingly beyond the scope of the courts (being a private matter supposedly for contract alone) yet when you ‘break’ that ‘contract’, it’s such an offence against the public that the criminal law should be involved. (Never mind the fact that a lot of those now criminal-law-carrying terms are beyond boilerplate!)

We’ve talked about the weasel words (or misuse of words!) of authorised computer access on these pages before - in the context of wifi sharing. I have a bad feeling about all of this.

More from Eric Goldman, Susan Crawford, Wired and Peter Black.