In the first place, I would like, before I go through the Bill section by section, to give some general outline of its aim, its scope and its machinery. It is a Bill designed to deal with indecent literature; that is to say, with indecent books, indecent periodicals, both magazines and newspapers, and also with indecent pictures. There is a special section in Part 4 which deals with propaganda in favour of birth control which is now such a growing force. Part 1 of the Bill is confined to definition. Part 2 explains the machinery which is set up and the nature of the books and periodicals which come under this Bill, and it also prohibits the sale of censored books in this country and prohibits their importation into this country.
The scheme is that there should be in the first place authorised associations, and these recognised associations, if they consider that a book should be censored, will send that to a board, consisting of five members, for consideration. They will do so through the Department of Justice. If the board considers that the book should be censored, should not be sold or imported into this country, then they report to the Minister for Justice, and he may make an order prohibiting its sale and prohibiting its importation. Part III. of the Bill deals with reports of certain judicial proceedings. Part IV. deals with this literature which advocates birth control and strengthens up the provisions of the Indecent Publications Act of 1857, which it repeals, and to some extent strengthens up and increases the penalties under the Indecent Advertisements Act of 1889.
Now, I will take the Bill, of which I have just roughly outlined the scope, section by section. I will deal first with the preliminary section, which is the section which gives definitions. I do not think I need deal with any definition which is contained in that section except the definition of the word "indecent," which is as follows: —"The word ‘indecent' shall be construed as including calculated to excite sexual passion or to suggest or incite to sexual immorality, or in any other way to corrupt or deprave." That definition has been the subject of very much criticism and very many attacks; indeed, one gentleman of very high literary ability, whose only fault as a literary man is, I think, that he does not write enough, and who has a great store of general information, has attacked this definition as being entirely heretical, a breach of the Manichean heresy and the Albigensian heresy, and, like some new Simon de Montfort, has put on his arms to destroy it, on the grounds that the words "calculated to excite sexual passion" are entirely heretical.
I would venture to point out that I, personally, can hardly follow the criticism which has been passed upon the use of these three words in this definition, because I cannot understand the class of book which would excite some person just to proper love and might not excite others towards unlawful lust. But it may be possible that those words, "to excite sexual passion," are really included in the later words, "to suggest or incite to sexual immorality." It is quite possible that they are, and it may be that that definition is to be censured for being rather overloaded with words. I may admit —I think I will admit—that it can be condemned upon grounds of tautology, but I cannot admit for one moment that it can be condemned upon the grounds of Albigensian heresy, even though a skilled writer in a leading Irish weekly has denounced it.
Coming now to the censorship of publications, which is dealt with by Part II., Section 3 deals with the establishment of a board of censors, and I think that on the construction of Section 3 two questions may be said to arise. One is the number of members who shall constitute the board—the numerical strength of the board: the other question is the term for which members of the board should hold office. The Bill proposes that members of the board shall be appointed by the Minister for Justice, that they shall be five in number and shall hold office for a period of three years. I submit that five is the proper number, the best number which can be got. On the one hand, I think it would be a mistake to have a board which would be altogether too small; on the other hand, that it would be entirely wrong to have a board exercising judicial functions, as this board must exercise judicial functions, which would be entirely too large and too unwieldy. I think it will be comparatively easy to get five judicially-minded persons to carry out fairly the provisions of this Bill, much easier than it would be to get twelve or fifteen persons of the same character to do so. I think that in discussing that question it will be necessary for us to consider what are the functions of that board, and what is the spirit in which the board of censors should—in fact must—approach the censoring of books. In the first place, the board, of course, must recognise that they are dealing with the property of certain individuals; they must recognise that they are dealing with the property of a writer and the property of a publisher. On the other hand, they must consider that they have a duty to the public to see that demoralising and degrading literature shall not be in circulation in this country.
It is, I think, comparatively easy to lay down the general principles upon which a board of censors should act. On the general question as to the principles upon which the board of censors should act, and upon which a properly-constituted board would, in fact, act, I think that there must be pretty general agreement amongst all classes of reasonable and intelligent men. A book can be fairly condemned only when in its whole course it makes for evil, when its tenour is bad, when in some important part of it, it is indecent, when—I might put it in this way —it is systematically indecent. It must not be condemned if it has here and there one or two exceptional passages. Let me take an example. I will take one well known work in English literature, Thackeray's "Vanity Fair." Most undoubtedly Becky Sharp in that book was not entirely a moral woman; she was clearly the opposite. Yet no board of censors could properly condemn "Vanity Fair" because of anything it relates of the doings of Becky Sharp. Let me take another example—the play "Othello." The play "Othello" is not an indecent play, yet there are some very objectionable expressions made use of by Iago in it. The play "Othello" could not be condemned by any sensible board of censors.
Again, a scientific medical work might contain things which to the ordinary non-medical person, taking it up for the first time, might appear extremely indecent, but no sensible board of censors, properly carrying out the functions of their office, would dream of censoring as indecent a scientific medical book. On the other hand, a book should be condemned if it is designedly or fundamentally immoral. To my mind, that is a great, broad, clear distinction, a distinction which, as I said before, I believe all intelligent, thinking men will agree exists. To sum it up in two short phrases: a book to be condemned must ex professo be immoral; it cannot be condemned if it is immoral merely obiter. That is a general proposition in which, I expect, all people will concur, but the application of that general principle is obviously extremely difficult. One book plainly should not be condemned, while another book plainly should be condemned, and it will often be a very difficult matter to draw a line between these two. Therefore the board of censors will be in a position in which it will be necessary for them to exercise a judicial discretion and act upon the lines—which I am sure they will—I have outlined. They will have some very difficult problems to solve. They must not be carried away by too much excitement to condemn a book which should not be condemned. On the other hand, they must not, because it has some great name behind it, be terrified into not condemning a book which should be condemned. I submit to this House that in deciding questions of this nature a small court, as it were, of five persons is to be preferred before any large unwieldy body. In five persons you will have a greater sense of responsibility in each one of the five than you would have if it were a larger body, but, on the other hand, you would not have an undue burden thrown upon them, nor would you have these questions decided solely by the exercise of one or two individual minds.
On the question of the length of time for which these censors should hold office, I recognise that there may be some differences of opinion, but, as a result of mature consideration, I suggest that three years would be about the correct and proper period. In three years a censor will have thoroughly shown his capabilities for the office. I do not apprehend that there will be great difficulty in obtaining the services of five suitable censors to make up this board, but everybody knows that persons who are thought likely to make good judges sometimes do not make good judges, and do not come up to expectations. It is quite possible that one of these selected gentlemen might not come up to expectations. In theory there will be power to remove him, though in practice, except for misconduct or non-attendance, it would be very difficult to carry it out. I think a period shorter than three years would be too short. The board in a lesser period would not show its capacity for its office. On the other hand, I think a longer period would be too long. Of course, there will always be a tendency to re-appoint. When a person holds even an unpaid office it is regarded more or less as the right thing, unless there be a certain amount of cause, to re-offer him that post, and I would point out that all the retiring members of the board are eligible for re-appointment. Therefore I submit to the House that three years is the proper period to select for these gentlemen to hold office.
I think Section 4 shows very little difficulty. It deals merely with the appointment of the officers and servants of the board. Section 5 prescribes for the meetings of the board. The board will themselves decide as to when they should meet. Section 6 is a section which has also been very considerably criticised and has been a matter of much discussion. It is a section which puts the initiation of proceedings under part of this Act in the hands of recognised associations, the procedure being that a body of men will come together and examine books and periodicals which they think are likely to be dangerous. If they see that there is a prima facie case, because final responsibility does not rest on them, they will send it on to the Department of Justice and there, unless it is seen that the charge is entirely frivolous, it will be sent on to the censorship board. That starts off with a recognised body of thinking persons investigating, in the first instance, as to whether a book or periodical should or should not be condemned. They have not judicial powers. Their duty ceases when they have placed before other persons the books or periodicals which they consider to be censurable. They will probably contain amongst them a considerable number of social workers who will get down to the back streets and slums of our big cities and see there in small stationers' shops, and shops of that class, the kind of literature that is being sold. They will be in a position to see the literature which is doing real harm in those parts of our cities and, seeing that, they will be in a position to send forward for consideration especially baneful and harmful periodicals and magazines.
On the other hand, if this matter were left entirely to unorganised effort, if it was simply to be left to here and there a casual individual being spurred up for a moment or two to a little exertion and then dropped away, I do not think the work would be properly or efficiently done, and that there would be a danger of this Act becoming, not indeed a dead letter, but not being applied as vigorously and in such a lively fashion as one would wish and hope that it would be applied. I think also if it were left entirely to individual effort that, on occasions, a very large number of people might see a newspaper containing one exceptional article. Then you might have on one day a huge pile of this particular paper coming in and perhaps for the next week or more, or the next month or six months no other copies of that particular paper coming in which, when I come to deal with the suppression of periodicals, I will show would be a most unfortunate thing, for periodicals, under the terms of this Bill are not to be condemned because one casual article or so has appeared in them. They are only to be condemned if exceptional articles appear in a certain succession of numbers. On the ground, then, of recognised associations, I submit that this will be very effective, and also, I think, far preferable to any alternative which could be put forward.
Section 7 deals with prohibition orders in respect of books. The first section is as follows:—
Whenever a complaint is duly made under this Act by a recognised association to the Minister to the effect that a book or a particular edition of a book is indecent or obscene or tends to inculcate principles contrary to public morality or is otherwise of such character that the sale or distribution thereof is or tends to be injurious or detrimental to or subversive of public morality, the Minister may refer such complaint to the Board.
Now, the interpretation of that section seems to have led in certain quarters to a great deal of misgiving. That, I think, is due to the fact that the section has not been correctly construed by its critics. There is one fundamental rule of legal interpretation which must be applied to every statute, and the rule is technically known as the rule of ejusdem generis: that is to say, that when you have specific words, and after those specific words you have general words, then the general words are controlled by the preceding particular words, and only apply to things which are of similar nature to the particular words. In the particular instance before us, the words "contrary to public morality," and the other words which follow, are all controlled by the earlier words, "indecent or obscene," and it must be things which are similar to those that are censurable under this Bill. Let me take an example again from literature. If you took a particularly wide meaning of the words "public morality" it would most undoubtedly take in suicide. That, I suppose, everyone will agree is contrary to public morality. In a famous modern book of verse—"The Shropshire Lad"—there is a poem which, most undoubtedly, advocates suicide. It would not come under that definition of "contrary to public morality" because it would be entirely different from what this Bill is dealing with. This Bill deals solely with questions of sexual morality or sexual perversion.
It has been pointed out to me that this board of censors will not be a board constituted of lawyers, and that they might put their own interpretation upon the section and might give it a wider interpretation than the interpretation which I have now set upon it, and which I am satisfied is the correct interpretation. Personally, I would not be very much afraid of that, because if they had difficulties about interpretation, I fancy they would go to the trouble of getting legal opinion upon the matter, but as far as I am concerned if the wording of that section is difficult and complicated to the ordinary layman I am ready to accept in committee an amendment which would show to the layman that this Bill is confined to what, in fact, it is confined, matters of sexual immorality or things connected therewith. In Section 8 we go on to deal with periodical publications. These differ slightly from books. The book is there once and for all to be judged once and for all. It is, as it were, a permanent thing. The periodical differs from that. The periodical is of an ephemeral nature, and there may be an occasional article in an otherwise harmless periodical for which it would be unfair and unjust to condemn that periodical. Accordingly the section refers to "several issues of a periodical publication recently theretofore published have usually or frequently been indecent or obscene," and then there are other words controlled by these.
I think the most useful function this Bill will perform will be to prohibit the sale in this country of objectionable newspapers. Now it may be that in judging a newspaper you may find a large number of articles, reports, bits of so-called news, all dealing with sexual matters. You may not find any single one of those in itself entirely objectionable, but when you find perpetually one heaped on another, when you find that the person who reads that paper has his or her mind from the beginning of the time he or she reads that paper until the end of the time steeped in the details of sexually unpleasant cases, it must have the effect of depraving that particular person's mind, and, therefore, we have these wide words controlled, as I say, by the word "sexual." But at the same time they make it clear that if the whole tenor or course of these newspaper articles is such that it demoralises and depraves in sexual matters the persons who read them then that newspaper must not be introduced into this country and must not be sold in this country. But again, I say, there might be one particular issue of a paper which contained one article of a very improper kind, and yet for that one mistake it would not be fair that paper should be banned, and that persons who wish to read that otherwise, possibly in a great number of respects, admirable paper should not be deprived of the right of reading that paper.
Section 9 says: "The Minister may at any time after consultation with the board, by order revoke any prohibition order theretofore made by him under this Act." It naturally follows that a paper may be for some continuous time improper, but it may come under different managership, under different editorship, and it may mend its ways. It may become a paper which it would be quite right to allow the circulation of, and in consequence power remains with the Minister to take away the prohibition, but in order to do so he must also get the views of the board. Sub-section (2) of Section 9 is the same as that dealing with books, because, of course, it has happened in the case of several books that a first edition has come out which has been objectionable —a book which would be banned—and a second re-written modified edition come out which is not in itself censurable.
Section 10 provides that prohibition orders shall be published in "Iris Oifigiúil" as soon as possible after the time they have been made. I have heard a considerable amount of criticism upon that provision, and, of course, it is an unfortunate result which must flow from this legislation—which is inseparable from this legislation—that if you have a list of improper books it enables persons who wish to read improper books to go through the list, and then when they go outside this country they will have a list of improper books. They need not search for improper books, as they will have a list of books which are improper compiled before them.
That is, of course, I admit, an unfortunate result, but it is a necessary result, and I think its evil may be very greatly exaggerated, but of this I am satisfied, and I would ask the House to hold, that whatever evil may be done by the publication of this list that that evil will be infinitesimal, that it will be entirely negligible in comparison with the good which will be done by keeping away from the innocent-minded and the pure-minded these books.
Section 11 says:—"(1) It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section—(a) to import into Saorstát Eireann for sale or distribution, or (b) to sell, or expose, offer or keep for sale, or (c) to distribute or offer or keep for distribution, any book or any particular edition of a book or any issue of a periodical publication," in respect of which a prohibition order has been made. That, I think, is a very simple section. It does not require any explanation or any comment. If you have a prohibition order it can only be carried out by preventing the sale of the book or periodical prohibited. Sub-section (2) sets out the penalties for a breach of sub-section (1). Sub-section (3) deals with the power to give a permit or licence to import books to certain persons, which books would otherwise be prohibited and condemned.
Section 12 says that the Minister shall prepare and keep a register to be called and known as "The Register of Prohibited Publications." It also sets out what it is to be. Section 13 gives power to a district justice, on the information of an officer of the Gárda Síochána not below the rank of chief superintendent, to issue a search warrant in respect of prohibited books which are being kept for the purpose of sale or distribution. Section 14 says that the making of a prohibition order shall be, as it were, a sort of automatic order under the Customs Consolidation Act, 1876. Under that Act an order prohibiting the introduction of indecent books can be made, and is made, but at present it is not altogether a satisfactory proceeding because the Minister who makes the order has not had the advice of a board of censors and very often, in fact almost always, he must act on what he has been told about a book, what he has seen about it, or on the fact that it has been prohibited in other countries.
That is practically the only ground he can stand on now when exercising his discretion in making prohibition orders against the importation of books. Now the task will become much easier because, instead of an individual Minister exercising his discretion as to what books should or should not be imported, it does not take away the power and does not prevent the importation of obscene books being stopped. It says that when a prohibition order has been made these books will automatically be kept out. I submit that that is a wise provision because I think that there would be very little gained in prohibiting the selling of books in bookshops if it were free to anyone to send away the price of a book to an English or Six-county bookseller and get back the book, or to go to England and bring back a trunk-load of books which appear on the Censor's list. Sub-section (2) of Section 14 deals with Section 16 of the Post Office Act, 1908, which prohibits the sending of indecent matter through the post. This sub-section makes, as it were, also an automatic order under that particular section.
Part 3 of this Bill is one that has not come in for very much consideration and, except for sub-section (1) of Section 15, I do not think that it will have very much effect in this country because it deals with the printing and publishing of objectionable things and I am glad to say that in this country, though there have been some, there are not many papers which would publish improper proceedings with reference to divorce, especially as there are no divorce proceedings in our country. Probably most of these papers would get their information from English sources and a similar provision obtains in England. Sub-section (1) of Section 15 says:—"It shall not be lawful to print or publish or cause or procure to be printed or published in relation to any judicial proceedings—(a) any indecent matter the publication of which would be calculated to injure public morals, or (b) any indecent medical, surgical, or physiological details the publication of which would be calculated to injure public morals."
That sub-section is one which I know could certainly have been used in the past. It is not only in divorce cases, or cases of that nature, in which there may be very unpleasant details, that you get indecent matter. You often get in murder trials very indecent details. In connection with actions for seduction and indecent assault, it is obvious that if they were reported verbatim there would be unpleasant details, and sometimes, when persons are well-known, local papers may have a tendency to publish, more fully and in greater detail than they otherwise would, reports of actions for seduction or indecent assault. If in published reports of trials which take place in this country or outside they print or publish indecent matter, the publication of which would be calculated to injure public morals, they can be prosecuted under that sub-section.
Part 4 deals entirely with court proceedings. Section 17, which deals with birth control, says:—
(1) It shall not be lawful for any person, otherwise than under and in accordance with a permit in writing granted to him under this section—
(a) to print or publish or cause or procure to be printed or published, or
(b) to sell or expose, offer, or keep for sale, or
(c) to distribute, offer or keep for distribution,
any book or periodical publication which advocates or which might reasonably be supposed to advocate the unnatural prevention of conception or the procurement of abortion or miscarriage or any method, treatment, or appliance to be used for the purpose of such prevention or such procurement.
That section has been attacked by persons who say that this question may be treated as a social question, and that its merits or demerits should be argued out. That is a proposition to which we cannot and will not assent. In our views on this matter we are perfectly clear and perfectly definite. We will not allow, as far as it lies with us to prevent it, the free discussion of this question which entails on one side of it advocacy. We have made up our minds that it is wrong. That conclusion is for us unalterable. We consider it to be a matter of grave importance. We have decided, call it dogmatically if you like—and I believe almost all persons in this country are in agreement with us—that that question shall not be freely and openly discussed. That question shall not be advocated in any book or in any periodical which circulates in this country. Sub-section (2) sets out the punishment. Sub-section (3) gives power to the Minister under certain conditions to give a permit.
Section 18 is an amendment of the Indecent Advertisements Act of 1889. No section, I think, of this Bill has been the subject of more attack by entirely ill-informed critics than this particular section. Under the Indecent Advertisements Act of 1889 it is prohibited to place up in public certain classes of advertisements. I will not read the whole section, but the germane part is as follows: "Whoever affixes to, or inscribes on, any house, building, wall, hoarding, gate, fence, pillar, post, board, tree, or any other thing whatsoever, so as to be visible to a person being in or passing along any street, public highway or footpath, and whoever affixes to or inscribes on any public urinal or delivers or attempts to deliver or exhibits to any inhabitant or to any person being in or passing along any street, public highway, or footpath," etc. The section goes on to recite the way in which such persons shall be punished. Any advertisement relating to venereal disease is by Section 5 declared to be indecent or obscene within the meaning of the section. As Deputies will see, in addition to what that section says, we propose to add under this Bill certain other classes of advertisements, but those are advertisements which are placed in public affixed to a road or to a window from which they can be seen from the road, and so on. This section does not deal at all with the Venereal Diseases Act of 1918, which enables public bodies, if they wish, to put up advertisements in the street or anywhere else, with the sanction of the Local Government Department, notices advising persons to be attended by doctors. I may add that the whole idea both of this section, which we have strengthened by the addition of the Indecent Advertisements Act of 1889 and of the Act of 1918, is to see that persons suffering from this class of ailment are not at the mercy of quacks who take advantage of their possible reluctance to attend respectable doctors, but that on the contrary they should be encouraged to attend respectable qualified medical practitioners.
Section 19 deals with the sale of indecent pictures:
"It shall not be lawful for any person to sell or offer, expose, or keep for sale any indecent picture, and every person who sells or offers, exposes or keeps for sale any indecent picture, in contravention of this section, shall be guilty of an offence and shall be liable on conviction thereof in the case of a first offence to a fine not exceeding £50." etc.
I apprehend that it is not a section upon which there will be very much difference of opinion. It is quite obvious that an indecent picture may be just as harmful, just as baneful, as an indecent book or an indecent periodical. Indeed, I suppose the worst class of all is the class in which you get the two intermingled, in which you get an indecent letterpress surrounding an indecent picture.
Section 20 gives extended powers to a district justice in granting a search warrant to search for indecent pictures which are kept for the purposes of sale. It used to be necessary to prove that a sale had actually taken place. Now it is sufficient for the officer of the Guards to have reasonable grounds for believing that indecent pictures are being kept in premises for the purposes of sale without proving already that a sale has taken place. That is to say, that the evil of selling these pictures shall be forestalled, that the stable door shall not be locked only after the horse has gone, or part of the stud is gone. That section also repeals the Obscene Publications Act of 1867, because all the matters with which that particular statute deals have been dealt with in a larger and more extended form under this Act.
Section 21 lays down that: "The Minister may by order make regulations prescribing.... (a) the manner and form in which complaints are to be made to the Minister under this Act, (b) the procedure of the Censorship of Publications Board and the forms used by them for the purposes of this Act, (c) any matter or thing referred to in this Act as prescribed or to be prescribed by the Minister by regulations made under this Act."
Section 22 is a formal section setting out that any money which has to be expended shall be paid out of monies provided by the Oireachtas.
That is the Censorship of Publications Bill which I now introduce. It provides for this board, and sets up the procedure which is to be adopted in carrying out its provisions. It gives power to a body of five men—undoubtedly it gives very considerable power—subject to the powers which are reserved to the Minister for Justice for the time being, and that means, of course, subject to the control and criticism of this Dáil. Personally I think it proper that some Minister should be responsible for important executive action, and that in a matter of importance—and I do consider this a matter of very considerable importance—the action of the Minister should be subject to criticism in this House— that the House might have an opportunity of expressing its own opinion. Great powers are given in this Bill, no doubt. They may be abused. I am quite aware of the fact that if these powers are abused injury may follow. It is a wide Bill, it is a comprehensive Bill, it is a strong measure, and it follows from that that the large powers which are given may be abused. As to whether it will be a success or a failure, make more for good or more for evil, will, I frankly admit, depend very largely upon the personnel of the board. But I ask the House to believe that it will not be impossible, that it will not be even unduly difficult to obtain the services of five honourable, honest, intelligent men who will be able to carry out successfully, to the good of this country, the duties and functions which it will be for them to carry out under the provisions of the Bill.
