OPINION/Vincent Browne: The connection between Judge Joseph Mangan, Tom Gildea, Nat King Cole, Marlon Brando and an Irish-American city commissioner in Montgomery, Alabama, may not seem immediately obvious. But all are connected with one of the great issues in any free society, the boundaries of freedom of speech and this issue arises in the present context from Judge Mangan's libel action and the proposals of the major parties on how to liberalise the libel laws.
Judge Joseph Mangan feels hard done by an article published in the Sunday Independent which charged him with being a phone freak. It could have been worse for him. He might have been accused of being an obsessive text messager and had it been Tom Gildea that had made the charge, there might have been circumstances in which Judge Mangan could have done noting about it. No writs, no case, no damages.
In fact Judge Mangan could have been charged with anything by Tom Gildea no matter how preposterous: of being a political stooge, of being drunk on the bench, of being a pro-abortionist (I am sure, incidentally, that Judge Mangan is none of these). But, again, there might have been circumstances in which he could have done nothing about it. Those circumstances are Tom Gildea making such accusations under the protection of Dáil privilege.
Readers will recall the Dáil spat a few months ago in which Tom Gildea accused Nora Owen of corruption. Nora Owen, understandably, became very hot and bothered about it but there was nothing she could do other than become hot and bothered. She couldn't sue, couldn't claim damages, couldn't demand even vindication. In the event of course Tom Gildea withdrew his allegation and apologised but had he not done so there was no redress for Nora Owen as there would have been no redress for Judge Mangan in the hypothetical case.
And the reason for there being no redress is because of the absolute privilege members of the Oireachtas enjoy in relation to what they say in parliament. This absolute privilege entitles them to say anything at all about anybody, even make accusations they know to be untrue or accusations motivated solely by malice. And still there would be no redress for the wronged person, apart from a slap on the hand, maybe, from the parliamentarian's parliamentary colleagues.
And the reason for this extraordinary license afforded parliamentarians, a license underwritten here by constitutional protection, is to ensure that there is free and unfettered debate on all public issues. This is regarded as essential to the working of a democratic society. The damage done to the reputations of innocent victims is thought to be a price worth paying.
However, it seems never to occur to politicians that perhaps the extraordinary latitude they enjoy should be shared in part by the general public. Not that members of the general public should enjoy the same rights as parliamentarians. No, a lesser liberty: the liberty to engage in public debate without fear of libel action provided they are not motivated by malice, that they do not say what they know to be untrue and provided their contribution is in the context of a public debate on an issue of public consequence.
I F democracy demands that politicians be free to say what they like even when motivated by malice, should democracy not also demand a lesser license for the general public, a license to engage in public debate without fear of libel with the provisos I have mentioned.
This is where Nat King Cole, Marlon Brando and a racist Irish-American cop in Montgomery, Alabama join the picture.
On March 29th, 1960, a full page advertisement was published in the New York Times headed "Heed their Rising Voices". The text of the advertisement drew attention to the civil rights protests then underway in some of the southern states of America, protests led by Martin Luther King. The advertisement called for political and financial support from the civil rights campaign and was signed by a host of celebrities, including Nat King Cole and Marlon Brando.
The advertisement referred to incidents in Montgomery, Alabama, and inferred that the city commissioner in charge of the police, L. B. Sullivan, was responsible for repressive and racist conduct against civil rights protesters..
Mr Sullivan sued the New York Times for libel, claiming that several of the charges made, by inference, against him were factually untrue. An Alabama court found the charges to be untrue and awarded massive damages against the New York Times. The US supreme court found that while the inferred charges against Sullivan were untrue, democracy demanded a certain license in the conduct of public debate, a license known as "qualified privilege".
Qualified privilege has constraints: there can be no reckless disregard for the facts, malice cannot come into it and the issues in contention must be public issues, issues important to democracy. Yes it means a price will be paid by innocent people whose reputations will be hurt by such license but if absolute privilege is to be accorded our parliamentarians in order to protect free debate on public issues, why can't the rest of us enjoy a lesser license to protect public debate and permit us to engage if not on a equal basis then at least without fear of having the pants sued off us if we make a genuine mistake? The political parties who have addressed the libel issue - Fianna Fáil, Fine Gael and the Progressive Democrats - dodge the issue. Sorry I don't mean dodge, I mean overlook. You can't be too careful.
vbrowne@irish-times.ie