The prohibition on political advertising is paternalistic and wrong-headed and violates the right of free expression, write Tom Wright and Bairbre O'Neill
In December the Broadcasting Commission of Ireland (BCI) and RTÉ rejected a radio advertisement for the Irish Catholic newspaper. Their basis for doing so was that the words, "These are hard times for the Catholic Church, so hard that it's easy to forget all the good the church does", infringed Section 10 (3) of the Broadcasting Act, 1988. That prohibits radio and television advertisements directed towards any religious or political end.
The Irish Catholic decision sparked a welcome debate on the limits the State should place on religious speech. Less commented upon, however, is its twin sister, the outright ban on political advertising on television and radio.
We believe that this prohibition on political advertising is paternalistic and wrong-headed and violates the right of free expression. Further, it limits the quality of our democratic discourse by frustrating sincere efforts at political participation. It should be lifted without delay.
The ban is usually justified on two basic grounds. The first is that television and radio are uniquely pervasive and intrusive forms of media. This, in turn, justifies certain restrictions on speech communicated over the airwaves. For example, the suppression of graphic scenes of sex and violence before the "watershed" time is usually justified on this ground.
In the context of advertising, Judge Geoghegan once put it as follows: "A person listening to commercial radio is for all practical purposes compelled to listen to the advertisements. That being so, it is legitimate for any Oireachtas to have regard to the type of advertisements which might be permitted."
This pervasiveness argument is a slender reed on which to base a sweeping ban on political advertising. There is a world of difference between violent and indecent material and a commercial for a politician or interest group with whom you disagree. Short of incitement, it is difficult to see what harm can result from exposure to contrary political views.
Secondly, the pervasiveness rationale cannot be reconciled with a system of free party political broadcasts. If listeners are shielded from paid political advertising, why should they be bombarded with free political advertising?
The second reason in favour of the ban is that it keeps the price of political participation down. Advocates of this argument point to the prohibitive cost of politics in the US. The theory is that broadcast advertising is a bottomless pit into which candidates would happily pour money if they were allowed. By sealing up this bottomless pit, the pressure to fundraise on an American scale is greatly reduced.
This argument does not stand up to scrutiny in the Irish context. Limits on campaign expenditure already exist and would continue to be in place were the ban to be lifted. Once these limits are in place it seems duplicative and unnecessary to also ban the manner in which these limited funds can be spent.
But are there positive reasons why the Government should open the airwaves to political advertisers?
The strongest positive reason for lifting the ban is that it interferes with the rights of free expression and communication. Political parties are allotted party political broadcasts at election time, and the Referendum Commission can advertise before referendums. These two exceptions aside, the airwaves are permanently closed to political parties, private citizens, trade unions, farmers' organisations and other civic interest groups who have something to say about the political process.
This is a colossal curtailment of the right to free expression and leaves access to the airwaves in the hands of a few media executives and editors who often allocate time on the basis of previous performance.
Another positive reason for lifting the ban is that the quality of Ireland's democratic debate is severely compromised by its existence. At present the Labour Party is excluded from the leaders' debates; independent candidates are unable to use their local radio station; and interest groups who are unrepresented by political parties find themselves voiceless come election or referendum time.
The current ban undoubtedly blunts the effectiveness of political campaigns. Television and radio are the most effective means of communicating with voters. No marketing manager worth their salt would suggest a national campaign of awareness that ignored these media, yet that is precisely what we ask of political parties and others.
Reform would allow political strategists to target specific groups of voters by running different advertisements directed at different audiences. Typically, reform would also enable community groups and politicians to buy time on local radio to address local concerns. For example, why not allow residents' associations to run ads raising difficult issues, such as planning controversies, which may otherwise be ignored by candidates?
Voters regularly complain that they know little about the issues while politicians lament their inability to communicate effectively. This situation is compounded by a law that refuses to grant the same protection to speech over the airwaves as it does to printed speech. To begin to remedy this matter, the ban must go.
Bairbre O'Neill is an Irish barrister currently practising in New York.
Tom Wright, a former public affairs consultant specialising in broadcasting policy, is a doctoral fellow in the Department of Government at Georgetown University, Washington DC