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Column The Twitter joke trial shows freedom of speech has to include comedy

It doesn’t matter if comedy is offensive or upsetting – free speech must allow for all speech, writes Simon Carty.

THE FAMED AMERICAN Judge Oliver Wendell Holmes once said that the right to free speech does not allow the speaker to “falsely shout fire in crowded theatre”. He meant that if you say something both dangerous and false it does not necessarily mean that it is covered by the right to free speech.

This morning a 27-year-old man called Paul Chambers won his appeal in the British High Court and had his conviction for sending a menacing tweet overturned on appeal.

By way of background: during the great snow of January 2010 Chambers was traveling to meet his girlfriend at Robin Hood Airport in Doncaster when he found out the airport had been closed by snow. Eager to see his girlfriend, he sent out a frustrated tweet on Twitter (which is a publicly accessible site), declaring:

Crap! Robin Hood airport is closed. You’ve got a week and a bit to get your shit together otherwise I’m blowing the airport sky high!!

It is important here to note that this tweet was only sent to the few hundred people that then followed Paul Chambers and was not sent directly to the airport; nor was the airport copied in on the tweet by adding their existing Twitter account name to the tweet.

For non- Twitter users, a tweet which starts with @DSA_Airport would be sent directly to the Robin Hood Airport Twitter account, while a tweet which included @DSA_Airport in the body would also be sent to the airport’s Twitter account. If this had been done it would have strengthened the prosecution’s case that the tweet was ‘menacing’ as it could have been argued that Chambers purposefully intended to send his tweet to the airport. However, in this case neither happened and Chambers simply sent the tweet to his Twitter followers.

A few days later an employee at the airport was doing an unrelated random search of Twitter for references to Robin Hood Airport –  and it was then that he saw Chambers’s tweet. Apparently he knew it was a joke but the tweet was submitted to superiors anyway; this is standard procedure at most organisation which monitor tweets which mention them.

A few days later police raided Chambers place of work and arrested him. His house was searched and his computer and phone were confiscated. He was marched off in front of work colleagues by Terrorist Prevention Police to be questioned. He was effectively a terrorist suspect arrested on suspicion of airport bombing.

Crucially, the police indicated after investigating him (and this is a direct quote from their record system) that “there is no evidence at this stage to suggest that this is anything other than a foolish comment posted on Twitter, as a joke for only his close friends to see”.

How the situation escalated dramatically

So that should have been the end of it. However the police referred the matter to the Crown Prosecution Services (CPS),  the equivalent of our DPP. The CPS saw that it was clearly not a terrorist offense – but some bright spark decided to prosecute Chambers for sending a message of “a menacing character” under section 127 of the Communications Act 2003.

This offense is a statute-created Absolute Offense, similar to speeding, for example, because the issue of whether the accused intended to commit the crime or not does not matter. This mean Chambers had difficulty raising a defense that the tweet was a joke.According to the law the tweet (the message) was of a ‘menacing character’ and, therefore, if Chambers could not show that it wasn’t menacing, or there was some technicality, then he was going to be convicted and fined.

Because of this, Chambers was convicted and fined under the Communications Act 2003. He was fined £385 (€488) and ordered to pay £600 (€762) costs. He lost his job as a consequence because you are unable to qualify as an accountant if you have a criminal record. Therefore, facing a huge potential hurdle to further his career he had no option but to seek an appeal in order to restore his name and allow him to continue his career as an accountant.

The first appealed was rejected as the court held that the Tweet was “clearly menacing”, and that Chambers must have known that it might be taken seriously and the airport staff were suitably concerned to report it. In response, thousands of Twitter users repeated Chambers’s initial Tweet and the hashtag #iamspartacus, in reference to the climactic scene from 1960 film Spartacus.

Chambers then took his appeal to the High Court. The appeal was entirely on points of law and centred on the correct interpretation of section 127(1) of the Communications Act 2003. This appeal was lost in February 2012 and led to a lot of criticism from Twitter users that the judges were out of touch and did not understand Twitter or its usage.

Chamber had one last avenue of appeal, again to the High Court, and a judgement was reserved in June. It was understood that panel of three judges was split – a rare occurrence – and they needed more time before reaching their decision. Hence the judgement was reserved until this morning when the Lord Chief Justice, Lord Judge, sitting with Mr Justice Owen and Mr Justice Griffith Williams, said:

We have concluded that, on an objective assessment, the decision of the crown court that this ‘tweet’ constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed.

The tweet was not funny or clever – but it was clearly a joke

It was a ridiculous situation and over the last two years Chambers had found much support. A lot of it came from comedy and showbiz people: Stephen Fry, for example,  funded Chambers legal costs. Graham Linehan wouldn’t stop talking about it on Twitter. The comedian Al Murray hosted fundraisers and attended the court with Chambers, accompanied by Fry.

Chambers’s original tweet was neither funny nor clever and in some circumstances may even be offensive, but it was clearly a joke; – and whether we like it or not,  people have a right to express themselves (as long as it causes no harm, as in the above words of Judge Wendell Holmes) and make bad jokes.

Americans have the First Amendment to their Constitution which guarantees free speech, but despite this, comedy has been particularly susceptible to efforts to limit free speech in the US. Lenny Bruce, the father of modern stand-up comedy, was arrested on several occasions for using obscenity. It got so bad that undercover policemen would attend his shows and arrest him afterwards if they felt he had been offensive. Bruce was charged and convicted but died on bail while awaiting an appeal. The appeal was won and he was pardoned posthumously.

As anyone who saw the movie “The People vs Larry Flynt” will recall, Hustler magazine and its publisher, Larry Flynt, were in and out of court on obscenity charges all the time.  in the most well-known case, televangelist Jerry Falwell took umbrage at a satirical ad published in Hustler which said his first sexual experience was with his mother. Falwell sued, and Hustler and Flynt adopted the First Amendment defense: that the satire was a joke and they were protected by freedom of expression.

The Supreme Court ruled in favour of Hustler and said that freedom to speak one’s mind was “essential to the common quest for truth and the vitality of society as a whole”.

In other words free speech must allow all speech, no matter how offensive or upsetting,  because if jokes or speech we find offensive are curtailed then it can only mean all speech will eventually be curtailed.

Chambers’s tweet was clearly a joke and his prosecution might be ridiculous. However, the learned High Court judges this morning did not address the issue of the tweet being a joke, nor did they address the issue of freedom of speech; they merely held that the tweet was not, in these circumstances, open to be considered menacing.

It is entirely possible that the next person prosecuted for sending a menacing tweet, no matter how innocent, might not be so lucky.

Simon Carty is a solicitor and mediator who specialises in entertainment law and is a member of the production team for the BBC/RTE sit-com Mrs Brown’s Boys

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    Mute had the same problem with them here
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    Jun 27th 2023, 7:09 PM

    How about some rights for unmarried and single dads or do we need to pretend to be lgbt

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:09 PM

    @had the same problem with them here: one thing does not equate to the other. Why are you bringing that up during a discussion that is not related to that topic?

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    Mute
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    Jun 27th 2023, 8:33 PM

    @Gearóid MacEachaidh: You just described LGBTQ+ in a nutshell

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:52 PM

    Your comment makes no sense.

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    Mute Max Bailey
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    Jun 27th 2023, 10:45 PM

    @had the same problem with them here: what are you talking about? Single men and unmarried dad’s literally have more rights than lgbtq+ parents in many cases. It literally says it in the article. Shocking that bigoted whataboutery is complete nonsense

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    Jun 28th 2023, 6:44 AM

    @Gearóid MacEachaidh: Then whybis it more popular than yours?

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    Mute DBdTl1WB
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    Sep 12th 2023, 10:58 AM

    @had the same problem with them here: to be fair , rights of unmarried fathers have substantial improved under the 2015 act mentioned in the article .

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    Mute DBdTl1WB
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    Sep 12th 2023, 11:00 AM

    @Gearóid MacEachaidh: it’s extremely relevant since the single father – unmarried father is actually a biological parent of the kid , unlike one of the members of the SSM . Not all unmarried father are dead beats or ignore their duties as parents

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    Mute John Mcmahon
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    Jun 27th 2023, 7:04 PM

    This from the same party that cut Children’s allowance?
    #Neverforgive

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    Mute alan
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    Jun 27th 2023, 7:05 PM

    @John Mcmahon: more woke nonsense. Why should these children have ANY rights

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    Mute Paul
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    Jun 27th 2023, 7:18 PM

    @alan: because of that inconvenient little document called the Constitution… oh and it’s the right thing to do.

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    Mute alan
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    Jun 27th 2023, 7:34 PM

    @Paul: I thought you might add to my post, denying more people rights, thereby highlighting the inhumanity of the original comment. Different approach. Forget appeals to the Constitution. That’s exactly what the anti woke brigade want you to do. Maybe join the Labour Party who are about to disappear because they have neither any ideas nor the ability to promote, effectively, those that they do.

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    Mute John Mcmahon
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    Jun 27th 2023, 9:30 PM

    @alan: every child should have the rights and protection of the state .
    I just find it a bit rich coming from the Labour Party

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    Mute DBdTl1WB
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    Sep 12th 2023, 11:02 AM

    @John Mcmahon: if you want kids , don’t expect the State and the tax payers to fund it !

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    Mute DBdTl1WB
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    Sep 12th 2023, 11:04 AM

    @Paul: what’s the fight thing to do ? Separate the child from its biological parents , who want to develop a relationship ? Not so long ago , the Constitution law was very clear on what a marriage meant and who were the ideal family .

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    Mute Michael Holland
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    Jun 27th 2023, 7:11 PM

    They’re being denied the right of a proper and correct family structure. Matrimony comes from Matron – women in a family structure that bears children etc.

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    Jun 27th 2023, 7:20 PM

    @Michael Holland: that little referendum we had in 2015 thankfully ignores your “opinion”

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:12 PM

    @Paul Furey: it hadn’t. Show us where it had anything to do with kids.

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    Mute Abdul Abhaile
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    Jun 27th 2023, 8:28 PM

    @Paul: Yes Mammy, I mean Daddy, I’m confused, are you my Mammy or Daddy?

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    Mute Home Truths
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    Jun 27th 2023, 8:33 PM

    @Abdul Abhaile: Depends what day it is

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:51 PM

    @Paul Furey: so in other words nothing changed. Gay people could already adopt a child through surrogacy or traditional means before the vote. The the vote literally did not add anything to the construction that wasn’t able to happen regarding kids. But if I’m wrong feel free to quote the part of the constitution you were voting on because it was obviously different than what the rest of us did. Also where your at it…. Show me where in history any child anywhere on the planet ever got to choose their own parents.

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    Mute brian madden
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    Jun 27th 2023, 9:03 PM

    @Paul Furey: gay people could adopt and be parents before the referendum. Separate issue.

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    Mute alan
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    Jun 27th 2023, 10:19 PM

    @Paul Furey: what ‘data’ would this be? Hopefully, more reliable than the ‘ data’ you have provided so far.

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    Mute Max Bailey
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    Jun 27th 2023, 10:58 PM

    @Paul Furey: you’re just making things up to support your bigotry. I can’t think of any reason why children would be worse of with gay parents compared to straight. In fact, it’ll be normalised soon enough and the likes of you will die off enraged about it all still. Sad really.

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    Mute Pat the Baker
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    Jun 28th 2023, 8:11 AM

    @Max Bailey: Two men or two women can’t have a baby – that is a biological fact. Therefore, logically, surrogacy will be required.
    There is a moral issue with surrogacy as it typically involves the exploitation of a vulnerable young woman. This is an issue that cannot and should not be brushed aside or dismissed as “hate”.
    Treating another human being as an incubator is hateful as it treats that person as less than. It’s not really about gay or lesbian – lesbians can easily find a male donor – that has always been the case. Gay men on the other hand cannot carry the baby themselves so can either adopt or traffick another human being who is “less than” them.
    Either way, this deprives the child of their own mother or father in the case of lesbians. It is one thing to grow up without a parent due to a death in the family, it is another to deliberately set out to bring a child into the world and to deprive that child of a relationship with its natural mother. That is not kind. On the contrary, it’s incredibly selfish so let’s not pretend otherwise.

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    Mute Gavin Conran
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    Jun 28th 2023, 1:36 PM

    @Paul Furey: Still have not posted that data I see – surprise surprise…

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    Mute DBdTl1WB
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    Sep 12th 2023, 11:07 AM

    @Home Truths: you into young wauns, are ya ?

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    Mute Barney
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    Jun 27th 2023, 7:35 PM

    In 2015, 1.2million people supported LGBT community. That amount do not support the addition of Q+ which divides communities in my opinion.

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:14 PM

    @Barney: what is wrong with the Q bit and how would the Q bit affect marriage equality. Enlighten us.

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    Mute Dermott Russell
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    Jun 27th 2023, 7:07 PM

    per the photo – she has the support of 7.5 people, 8.5 if she counts the women in the mirror every morning… although she probably shouldnt count on that vote..

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    Mute Paddy Keane
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    Jun 27th 2023, 7:43 PM

    I’m eagerly anticipating the start of July, hoping things will start to feel more normal again!

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    Mute nickusan
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    Jun 27th 2023, 8:02 PM

    From a political point of view I’d like to see Labour speaking up about more issues to do with ‘labour’ i.e. workers rights. Right now is a perfect opportunity to speak up about abuses within the civil service. Surely this party wants votes.

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    Mute Abdul Abhaile
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    Jun 27th 2023, 8:30 PM

    @nickusan: They know nothing about those issues but if you want to know about a nice bottle of wine or where the best restaurants are, the Labour Party can help you out.

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    Sep 12th 2023, 11:08 AM

    @nickusan: that cuckoo has flown .

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    Mute empty
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    Jun 27th 2023, 8:07 PM

    It was quite telling all during pride month that there was feck all talk/memorials/vigils/parades etc for those 2 poor sligo men buturched by that immigrant

    if the killer was a str8 white guy ,we never hear the end of it!

    MORE AND MORE self righteous hypocrisy from the self appointed “good guys”

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:19 PM

    @empty: eh…. How many prides have you been to this year? I’ve been to two and those two men were heavily mentioned. Do you think gay people don’t mind gays being murdered unless it’s by white people? I mean seriously?

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    Mute empty
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    Jun 27th 2023, 8:29 PM

    @Gearóid MacEachaidh:

    Really, from all the coverage of parades and celebrations on tv an din papers and online, I have legit feck all reference to those poor men!

    The silence is quite deafening!

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    Mute Gearóid MacEachaidh
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    Jun 27th 2023, 8:54 PM

    @empty: so you see 2 or 3 minutes of coverage of an event that lasted a month and a parade and after party that lasted approx 6 hours and out of those couple of minutes of coverage you decided that nothing was said all month or all day? OK.

    21
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    Mute empty
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    Jun 27th 2023, 9:58 PM

    @Gearóid MacEachaidh:

    after what happened u think it be covered a lot more, but we all know why not, now dont we!

    #coverups
    #movealongnothingtoseehere

    50
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    Mute Max Bailey
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    Jun 27th 2023, 10:53 PM

    @empty: you haven’t a clue about what is “covered” and what isn’t. Back to your YouTube k-hole bud. You are beyond help.

    10
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    Mute Mr. Cullen
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    Jun 27th 2023, 10:07 PM

    Single sex couples can’t have children. It’s injustice if children can’t have the right to have their biological parents listed on their birth cert.

    126
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    Mute Pat the Baker
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    Jun 28th 2023, 2:27 PM

    @Mr. Cullen: It truly is. My father went to his grave without knowing who his parents were. This impacted him his entire life. Separating children from their natural parents is not kind. It is one of the cruellest things a human can do to another human.

    18
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    Mute UCD Trinity
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    Jun 27th 2023, 8:59 PM

    Its an injustice Labour Party are still around. After the likes of Eamon “not one more red cent” Gilmore to Joan “stop harringly me Vincent” Bruton” to Alan “Irish Water will be my legacy” Kelly, they should have been washed out with the tide.

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    Mute 9QRixo8H
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    Jun 27th 2023, 9:12 PM

    @UCD Trinity: And that they had a landlord as leader of the party shows how they’ve become the complete opposite of what James Connolly stood for!

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    Mute Barney
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    Jun 27th 2023, 9:28 PM

    @Gearóid MacEachaidh : Apart from Q being Derogatory. It is based on nonsense Gender identity that has no scientific basis or societal acceptence. On that very basis it would break up & contradict any security in marriage, which is primarly to secure families and protect children.

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    Mute Brian
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    Jun 27th 2023, 7:45 PM

    Oh and Ivana Bacik? Never a more unlikable woman, have I ever come across. Kindly just piss off.

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    Mute Davej Huston4 blocked by journal
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    Jun 27th 2023, 11:15 PM

    Any update on the numbers of refugees in D4, Or is D4 full.

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    Mute Eric Gaffney
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    Jun 27th 2023, 7:40 PM

    Oh Christ.

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    Mute John Doe
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    Jun 27th 2023, 8:18 PM

    Sandymount clown

    95
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    Mute Pat the Baker
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    Jun 28th 2023, 6:55 AM

    What about the children’s right to know who their biological mother or father was?
    This law puts the rights of the adults before those of the children.
    It also encourages human trafficking of vulnerable women’s bodies.
    Sperm donations are not without problems either both moral and legal.
    There have been many cases of doctors donating their own sperm leading to dozens or hundreds of offspring who could end up in relationships with one another without realising it. There are also cases of super donors who have sired hundreds of children again with the same risks. This is first and foremost a middle-class bill for middle-class people who are used to getting what they want all the time.
    It’s not about the children when you ignore their biological parent.

    62
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    Mute Pat the Baker
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    Jun 28th 2023, 7:46 AM

    This bill commoditizes children.
    It will encourage ever more people to order babies online.
    It encourages human trafficking of vulnerable women in poor or war-torn countries like Ukraine. These children could not exist without their biological mother or father.
    They have a right to know who their parents were.
    Two women cannot create a baby and neither can two men.
    Wanting children is natural – using another human being, especially a woman who has to carry the baby for 9 months is human trafficking and it exploits vulnerable or desperate women. Womb trafficking is a growing business and the women end up being pimped on an industrial scale with the majority of the money going to their male handlers as is already the case with prostitution.

    43
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    Mute 9QRixo8H
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    Jun 27th 2023, 8:26 PM

    Those against same-sex couples/families would have been the same type against interracial marriage.

    Such homophobia, racism, and bigotry needs to be stamped out in a civil society. And it’s always the adults who harbor such hatred, albeit a small yet vocal number but still worrying.

    53
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    Mute Gearóid Quirke
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    Jun 27th 2023, 8:40 PM

    @9QRixo8H: There’s a lot of us. See how many likes my comment had before it got taken down.

    122
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    Mute 9QRixo8H
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    Jun 27th 2023, 8:45 PM

    @Gearóid Quirke: So are you also against interracial marriage? Yes I saw what you had written and it was very concerning for lgbt families. Can’t you just leave people be without harassing them?

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    Jun 27th 2023, 8:46 PM

    @9QRixo8H:

    and still we import people from a certain culture where being gay is banned and or u get the d*ath peno for it

    and what is defined as being racist and being a bigot has become value less as the far left nutters and some people in minorities have caused the bar for what is deemed as bad lower and lower.

    76% and counting btw!

    91
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    Mute 9QRixo8H
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    Jun 27th 2023, 9:04 PM

    @empty: Those parties combined are on less than 1% in all opinion polls and recent elections. Even FFG have consistently kept their support at roughly the same level since the election (don’t ask me how).

    You can flood this little forum with hate all day long but it’s not transferring in real life

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    Mute Max Bailey
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    Jun 27th 2023, 10:51 PM

    @Gearóid Quirke: it’s concerning that you seem to be proud of hating others just for being different to you for something they can’t control. And yeah, whilst there may be a “lot” of brainwashed bigots, you are still massively in the minority and always will be.

    17
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    Mute Pat the Baker
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    Jun 28th 2023, 7:57 AM

    @9QRixo8H: Why are you ignoring the women who are trafficked to act as human incubators? This is already a burgeoning industry in Africa where baby factories are mushrooming

    Baby factories taint surrogacy in Nigeria
    Abstract
    The practice of reproductive medicine in Nigeria is facing new challenges with the proliferation of ‘baby factories’. Baby factories are buildings, hospitals or orphanages that have been converted into places for young girls and women to give birth to children for sale on the black market, often to infertile couples, or into trafficking rings. This practice illegally provides outcomes (children) similar to surrogacy. While surrogacy has not been well accepted in this environment, the proliferation of baby factories further threatens its acceptance. The involvement of medical and allied health workers in the operation of baby factories raises ethical concerns. The lack of a properly defined legal framework and code of practice for surrogacy makes it difficult to prosecute baby factory owners, especially when they are health workers claiming to be providing services to clients. In this environment, surrogacy and other assisted reproductive techniques urgently require regulation in order to define when ethico-legal lines have been crossed in providing surrogacy or surrogacy-like services.

    17
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    Mute Hugh De Payans
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    Jun 28th 2023, 5:45 AM

    “Children of same sex couples” is an oxymoron

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    Mute Tony Murphy
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    Jun 28th 2023, 9:58 AM

    God help those children given the psychological damage growing up under such a grotesque ‘family’ dispensation.

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    Mute Watchful Axe
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    Jun 28th 2023, 1:34 AM

    Labour were in government in 2015. Why didn’t yee get it right the first time instead of jumping about it now.

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    Mute Pat the Baker
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    Jun 28th 2023, 12:40 PM

    This article is fundamentally dishonest.
    It presents the issue of surrogacy as only being a concern for LGBT+
    This is not the case. There are plenty of high profile cases of heterosexual couples using vulnerable women to get what they want irrespective of the rights of these women or THEIR babies.

    First and foremost, these children must retain their right to know who their biological mother and father are not just the people who paid for them.

    This is just a modern secular version of what the catholic did for decades – use poor people to provide babies for the well-off.

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    Mute Dan Dare
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    Jun 28th 2023, 12:02 PM

    To say it’s an injustice seems a bit strong. It certainly is a relatively new phenomenon and is due consideration in the parliament. Good luck getting it on that agenda, which is years long, as Ivana knows. Just a lot of hot air from her. Trying to make her champagne socialism more relevant by solving rather pressing 1st world problems.

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    Mute Jim O'Sullivan
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    Jun 30th 2023, 2:38 PM

    Labour scrambling for relevance. I recall how Burton and Gilmorer savaged lone parents’ standard if living who are still suffering the consequence of Labour’s last stint at propping up right-wing parties. Never again will the electorate trust them

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    Mute DBdTl1WB
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    Sep 12th 2023, 10:57 AM

    Most of the supporters and advocates for same sex marriage were all quick to point out untruths that there would be no issues or concerns about children . That was always fantasy stuff , but how many bought that tripe ? It wouldn’t be justifiable to discriminate against married couples when it comes to children’s rights , yet when that was pointed out , the “experts” tried to shut that discussion down . Now here we are at the inevitable issue of children again. Why did this community claim that the referendum was just about marriage and only marriage ? It’s not like a lot of them they were ignorant of law .

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    Mute Virgil
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    Jul 18th 2023, 12:56 PM

    I can’t understand why Ivana Bacik concentrates mainly on this stuff. Labour are going to be wiped out at the next election and she keeps going on about these woke agendas. Irish people are not interested or are against it (but are afraid to say so in case they are accused of being ‘racist’ ‘homophobic’ or whatever you’re having yourself)

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