Meehan, Níall. (1992) 'Section 31 Ban Confusion in RTE a Result of Management Failure'

Mr Boyd makes the apparently telling point (Irish Times, August 5th) that Dr O' Brien approved RTE's internal Section 31 guidelines, thus giving the impression that Dr O'Brien approved the RTE ban on Sinn Fein members which Justice O'Hanlon recently found to be "bad in law, a misconstruction of the law and null and void". However, as Michael Foley points out in the same edition of the Times, RTE's guidelines do not mention any ban on members of Sinn Fein. If anything the guidelines simply ignore the issue. The absence of any attempt to deal with the distinction between members and spokespersons for Sinn Fein lies at the heart of the confusion in RTE on how to implement the Section 31 Ministerial Order.

In fact it is probably a misnomer to refer to RTE's internal document as "guidelines" at all, in the sense of being an explanatory guide to day to day broadcasting practice. In essence the document concerned simply repeats the Ministerial Order, gives some minimal instruction on the use of mute film, the reporting of statements from censored organisations and tells RTE personnel to refer-up all proposed contact with, or treatment of, censored organisations to the "Divisional Head concerned", who must then consult and get the agreement of RTE's Director General before anything is broadcast. In other words no autonomy is left to individual reporters, researchers and producers. Such a rigid and bureaucratic document might be more relevant in a civil service environment than the hurly burly atmosphere of a vibrant news gathering organisation. The irony is that this approach, designed ostensibly to protect RTE's legal position generated such an atmosphere of caution and fear that it has pushed RTE into the very serious legal difficulties it sought explicitly to avoid.

The RTE Guidelines are in direct contrast to the BBC's "Advice to Editors" (dated 26th October, 1988) on the British censorship restrictions. The British censorship order is certainly more liberal in some respects, allowing reports of interviews - which permits an actor's voice-over on Gerry Adams interviews, and ending censorship at election time. However, on the central point of members vs spokespersons it is almost identical to Section 31. The BBC document is written with journalists in mind. It is genuinely explanatory. A direct distinction between members and spokespersons is made. It is stated that Sinn fein members "cannot be held to represent their organisation in all their daily activities. Some will be regarded as private". Furthermore, "The Chairman of Strabane council, who is Sinn Féin, can appear in programmes to represent the council. He can speak about council business, decisions made, problems faced, so long as he does not proclaim Sinn Fein. It is accepted that such people are not always representing their organisation even when speaking about their public duties." As the successful applicant in the recent High Court case, Larry O'Toole, pointed out to Joe Mulholland in October 1990, and in a letter to the Irish Times (October 18th, 1990), there is no reason why RTE could not adopt a similar approach to Section 31. His letter informed Joe Mulholland that the BBC had conducted an interview without voice-over with Sinn Fein President, then West Belfast MP, Gerry Adams on employment discrimination affecting his west-Belfast constituents.

In can be said in RTE's defence that when the guidelines were produced on the 21st of January, 1978, by then Director General, Oliver Moloney, it was only six years since an entire RTE Authority had been sacked for not operating Section 31 to the government's satisfaction. Furthermore, during the tenure of office of Dr. Conor Cruise O'Brien as Minister for Posts and Telegraphs in the 1973-77 Coalition government, RTE were accused of harboring a "spiritual occupation" if not an "actual physical occupation" by the IRA (Speech reported in Irish Times, March 10th, 1979). In 1974 Dr. O'Brien hosted a dinner for leading political reporters where he offered a toast to "Our democratic institutions, and the restrictions on the freedom of the press which may become necessary to preserve them". He referred to his distinguished guests as "provo stooges". (in Betty Purcell, The Media and Northern Ireland; Rolston (ed), 1991) Mary Holland referred in 1978 to Dr O'Brien's influence as creating an atmosphere where "self-censorship has been raised to the level of an art. Caution lay like a thick cloud over everything". (ibid)

Subsequent ministers did nothing to dispel this atmosphere. In 1988 the Minister for Communications, Ray Burke, was reportedly "very angry" when Morning Ireland's Jenny McGeever inadvertently included some words from Sinn Fein's Martin McGuinness concerning the progress of the funeral cortege of the Gibraltar Three to Belfast. Ms McGeever was subsequently sacked by RTE.

While it can be said that Dr O'Brien is not directly responsible for RTE's years of self-censorship, his legacy was directly influential in producing a mind-set in RTE management which failed, or was to afraid to see, the obvious distinction between a person speaking into a microphone on behalf of Sinn Fein and a person, like Sinn Féin member Larry O'Toole, who was a trade unionist speaking on behalf of his fellow workers in defence of their jobs. To borrow Dr O'Brien's colourful phrase, he may not have been in "actual physical occupation" of RTE during the past 15 years, though he can be said to have been in a "spiritual occupation" of RTE's management division.

It must also be said, as was put to Dr O'Brien by David Hanley on Morning Ireland (5th August, 1992), that Dr. O'Brien did not speak out over the past number of years during the numerous well-publicised conflicts over RTE's blanket ban on all Sinn Fein members. The issue was first raised by me on July 16th, 1987 (letters, Irish Times, Irish Press). It was raised again in November, 1987, by a DCU colleague, Marcus Free, who complained about RTE's Liveline banning a caller identifying himself as a Sinn Fein member from speaking about making wine from mushrooms. There were numerous prominent articles on the mushroom incident in The Sunday Tribune during 1987, 1988 and 1989.

On March 23rd, 1988 Gay Byrne hosted Lydia Comiskey from Meath on his radio programme. She spoke as a housewife and mother about the effects of her husband's emigration on her family. It later transpired that Ms Comiskey was Joint National Treasurer of Sinn Fein. RTE publicly and prominently referred to this as a "breach" of Section 31. The Irish Times reported (25th March, 1988) Ms Comiskey as complaining to RTE that she did not breach Section 31 as she had not represented Sinn Fein and had not even mentioned the party, since it was irrelevant to her long interview with Gay Byrne.

The Irish Times Saturday Column of March 26th, 1988 lead with a statement from the then Controller of Programmes, Radio One, Brian MacAonghusa, who also pointed out that Ms Comiskey did not represent Sinn Fein during her broadcast. This statement, according to the Saturday Column, was later "killed" on orders from RTE management. I myself returned publicly to the issue of RTE's ban on Sinn Fein members in relation to Lydia Comiskey (letters, Irish Times, April 19th, 1988). Dr O'Brien did not publicly intervene to defend Mr MacAonghusa's position, to support Lydia Comiskey, or to support Mr Free in his complaint to the Broadcasting Complaints Commission on the mushroom incident. Other well-publicised events concerning the member-spokesperson issue have regularly cropped up without benefiting from Dr O'Brien's expert observations on the subject.

It is surely curious that Dr O'Brien, who is the architect of the current wording on Section 31 and who charges that RTE have been undermining the law for years, has not brought this to public attention before now. It is true that Dr O'Brien made a statement to the Irish News on October 6th, 1990 where he generally supported Larry O'Toole's position and said that RTE were trying to "discredit Section 31 by making it look more unreasonable than it is". However, this was only after he was directly contacted by The Irish News Dublin Correspondent, Mary O'Carolan. This inactivity on Dr O’Brien’s part contrasts with his intervention in support of RTE producer Eoghan Harris who launched a vociferous public defence of Section 31 that extended to an attack on traditional journalistic standards of objectivity and impartiality. Perhaps Dr O'Brien has been less troubled by RTE's overly restrictive use of Section 31 against his greatest political opponents than he is by attacks on the very principles of political censorship that he himself enshrined in law in 1976.

I would have to agree with Dr O'Brien's statement that on the Larry O'Toole Issue RTE "are hoist by their own petard" (RTE Radio One, This Week, August 2nd, 1992). However, I would go further and suggest that Dr O'Brien played a prominent part in constructing the device in the first place.