‘The Personal Guarantee’ went on display in the window of Dublin’s Apollo Gallery on Dawson Street last Thursday, but was later removed after a storm of protests.
The Apollo Gallery yesterday removed from their front window a controversial painting of Brian Cowen by Tom Byrne. Unfortunately, this all sounds terribly familiar. Here’s the paiting:
UCD IS refusing to refund €1.6 million paid in “unlawful” allowances to senior academic staff despite pressure from the Department of Education, the Department of Finance and the Higher Education Authority (HEA).
It is understood UCD president Dr Hugh Brady has warned the HEA that any attempt to impose a financial sanction on the university may be “illegal, inappropriate and discriminatory”.
A major standoff has now developed between the two sides, despite months of negotiations between the HEA and UCD vice-president Dr Philip Nolan on the issue.
The issue is not straightforward. For example, Prof Steve Hedley (UCC) has argued:
The issue of overpayments to university staff has yet to be resolved. The truth is that neither side is on very firm ground, and if ever the matter were to be litigated, it would almost certainly be necessary to look at each alleged over-payment separately. … The key provision is the Universities Act, 1997, s 25(4), which reads in part:
… there shall be paid by a university to the employees of that university, such remuneration, fees, allowances and expenses as may be approved from time to time by the Minister [for Education and Skills] with the consent of the Minister for Finance.
Abstract:
Using recent decisions dealing with the constitutionality of the Stolen Valor Act as its starting point, this Essay examines the First Amendment questions raised by statutes prohibiting lies as such, that is, outside the context of fraud and defamation. It evaluates the constitutionality of statutes imposing strict or negligence liability for lying, concluding that the First Amendment does not bar legislatures from adopting such statutes if the statutes are carefully drawn. It then assesses arguments that deliberate falsehoods can be prohibited because they have no social value, concluding that that judgment, while somewhat overbroad, is correct. In reaching that conclusion the Essay offers an interpretation of United States v. Stevens, the recently decided “animal snuff video” case, which some have thought stands as an obstacle to statutes prohibiting lies as such. The Essay also deals with false statements made by those who do not believe the statements to be false, observing that many such statements are “ideologically inflected” in ways that make is unwise, and probably unconstitutional, to regulate their dissemination. A final section briefly discusses statutes prohibiting false statements in political campaigns.
Speech and Markets
Is there anything new to say about the constitutionality of campaign finance regulation? Well, actually, there is, and Deborah Hellman says it in her fine new article “Money Talks but It Isn’t Speech.” The significance of Hellman’s article extends beyond the vexed yet tired issue of campaign finance, however. Her work is an important intervention in a central – perhaps the central – problem in modern constitutional law.
…
The only remaining question is the extent to which this judgment goes beyond publication cases. The Strasbourg Court has said that 100% uplift is chilling in defamation cases, and indeed the defamation problem is compound, involving, in some cases, evidence of astonishing complexity, and “luxury” parties – big media conglomerates versus celebrity claimants. But there is no particularly strong reason in principle why this ruling should be so limited. It is open to any unsuccessful litigant in a non-media case to make a case for transposition of this Article 10 solution/change by analogy; after all, the Jackson proposals – without which this aspect of the Campbell case may never have seen the light of day – apply to a very wide collection of cases.
So once it becomes generally accepted that it is unjust to submit media defendants to a costs regime which forces them to settle rather than defend their rights to free expression, it will follow as naturally as night follows day that non-media defendants who have other recognised interests to protect should not be obliged to pay up simply because they have no reasonable prospect of recovering their reasonable and proportionate costs if they manage to beat off an attack.
The top official of the Smithsonian, G. Wayne Clough, who has been sharply criticized for his decision late last year to remove a video from an exhibition at the National Portrait Gallery, defended that decision in a telephone interview on Tuesday morning. He said it was in the interest of protecting the exhibition as a whole, as well as protecting the Smithsonian’s larger educational mission and its ability to make a strong case to Congress for federal support.
He called the decision “painful” and acknowledged that he wished he had taken more time and consulted with more art museum directors within the Smithsonian. But “in the interest of that exhibition and this institution and its legacy and maintaining it in the strongest possible position, I think I made the right decision — in that context,” he said. “I’ll let the art world debate it in another context.”
This is a follow-up to my blogpost Should galleries and museums display offensive art?
“Even the judges know who Naomi Campbell is”. At least Baroness Hale of Richmond does, since this is how she began her speech in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004), in which she was a member of the majority which held that aspects of the Mirror‘s coverage of Naomi Campbell’s fight against narcotics addiction – in particular, the publication of photographs which did not advance the public interest in the story – infringed her privacy. Today, in MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights (ECHR) held that this holding did not infringe Article 10 of the European Convention on Human Rights. Campbell was awarded £3,500 for that invasion of privacy. For the appeal to the House of Lords, she had retained solicitors and counsel pursuant to a conditional fee agreement (“CFA”) which provided that if the appeal succeeded, solicitors and counsel should be entitled to success fees of 95% and 100% respectively. For the appeal to the House of Lords, legal fees were £288,468; and the success fees were £279,981.35; so the total fees were £594,470. Adding in the fees at first instance and before the Court of Appeal, Campbell’s costs amounted to a total of £1,086,295.47.…
In MGN v UK 39401/04 (18 January 2011) the Fourth Section of the European Court of Human Rights today held that the finding by the House of Lords in Campbell v MGN [2004] AC 457, [2004] UKHL 22 (6 May 2004) that MGN had invaded Naomi Campbell’s did not violate Article 10 of the Convention. However, the ECHR went to hold that the conditional fee arrangement (CFA) which increased the costs recoverable by Campbell from MGN (and approved by the House of Lords in Campbell v MGN [2005] UKHL 61 (20 October 2005) was contrary to Article 10. Some relevant extracts from the judgment:
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION CONCERNING RECOVERABLE SUCCESS FEES
157. The parties devoted extensive submissions to the precise nature of this complaint. The Court considers that the applicant’s core complaint concerned the recoverability against it, over and above the base costs, of success fees which had been agreed between Ms Campbell and her legal representatives as part of a CFA. …
198. The Court will examine whether success fees recoverable against unsuccessful defendants are “necessary in a democratic society” to achieve [the legitimate aim of the protection of the rights of others within the meaning of Article 10(2)].
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