One of us, attending the High court recently, witnessed the following instance of judicial self restraint.
Counsel: “That’s your opinion, judge”.
Judge: “Yes, it is.”
It was a moment of witless insolence. The judge had rejected Counsel’s submissions; Counsel disparaged the rejection by denigrating it as “opinion”.
He was wrong on many fronts.
(1) When you have lost, you have lost.
(2) When you are in a hole, stop digging.
(3) “Opinion” is all we have.
Plato confronted this issue; he opposed objective knowledge and opinion. Presumably this is the basis for the terms of Section 39 of the Broadcasting Act 2009.
Section 39 (1) (a) provides;
“Every broadcaster shall ensure that- “… all news broadcast by the broadcaster is reported and presented in an objective and impartial manner and without any expression of the broadcaster’s own views.”
This is nonsense.
All “news” is subjective; that is, a matter of, or expression of, opinion. It has been selected; it has been expressed in words or images, which have to be selected.
What is probably being addressed is “style” or, possibly, fairness. In short, a finding of breach should made by a literary critic or an artist, not by a judge.
That implies that the wrongful act of a broadcaster is not the promulgation of “his” opinion, but the suppression of alternative views. This is a difficult problem. There are views that ought not to be expressed, if not suppressed. We see that in the public burning of a Koran in the USA.
Domestically, what is in issue is this: on what possible moral basis does the Oireachtas claim the right to restrict the public expression of opinion?
We see another, less sub rosa instance of this in Section 16 (2) of the Legal Services Ombudsman Act 2009, which states;
“The Legal Services Ombudsman when giving evidence under this section shall not question or express an opinion on the merits of any policy of the Government or on the merits of the objectives of such policy.”
The Ombudsman’s evidence will be like a doughnut; it will have a lot missing.
PS. Judicial restraint is a requirement of the job. See HERE.