Author: Rónán Mullen

‘Hate Speech’ Bill – Summer rain didn’t wash away the Government’s authoritarian streak

Over three months on and nothing seems to have changed. The ‘Hate Speech’ Bill is still on the agenda. The only people publicly supporting the Bill in its present form are Fine Gael (pointedly ignoring their youth wing), and the few NGOs who were complicit in concocting it.

Those supporting the Bill hide behind its ‘hate crime’ elements, rather than expose their draconian view on what constitutes ‘hate speech’ to the public glare.

Recall what that term currently means to Gardaí: ‘any non-crime incident which is perceived by any person to, in whole or in part, be motivated by hostility or prejudice.’

Is this to be the standard in 2024 for investigating, not to say hassling, citizens who have no intention of stirring up hatred or inciting violence but who, rightly, have every intention of making their views known on issues of controversy?

Of course, keyboard citizens are much easier targets than the real criminals night-prowling on O’Connell St.

This Bill is about silencing certain voices and will be used in that manner. Even if every prosecution is thrown out, people will have to endure the criminal process, including arrest and search, as a price to be paid for freedom of expression. The process becomes the punishment.

Looking at the UK we see the kind of thought-policing that we should not let into our country.

Ms Jennifer Swayne, who describes herself as a feminist activist and is disabled, was arrested in January 2021 following a search of her home  by Gwent Police who removed an “academic book”, “hundreds of stickers” and “loads of notes”. She had been reported for putting up stickers which were said to be directed at the transgender community.

In 2021 the Crown Office in the UK brought hate crime charges against a gender-critical feminist Marion Millar for sending allegedly homophobic and transphobic tweets. Then there are Caroline Farrow, Kathleen Stock, Jo Phoenix, JK Rowling –  all women suffering legal or professional backlashes for expressing support for biology as it really is, not as some oppressive fantasists would have it.

‘Poor Brits’, you might say. But only last week, parents in Dublin appeared reticent to express their view on a gender-linked classroom politicisation incident, when children in the school were instructed to refer to one of their teachers as ‘they’.

What kind of Ireland do we want? One where law-abiding citizens are cowed?

One where intersectional groups seek to use the law to create more divisions within our society? One where real haters can actually thrive because of an unpopular and oppressive law which may never work properly?

The Garda Commissioner knows and has said that the ‘far right’ cannot grow unless it is given oxygen. Haters exist and, sadly, this Bill, as drafted, will provide that oxygen.

The ‘Hate Speech’ Bill has garnered worldwide attention due to the threat it carries to freedom of expression. It has taken this attention to waken our legacy media up, even if they’re only slightly awake so far.

What could be effective now is a steady groundswell of citizen attention to the issue of free speech and the dangers of this Bill. Please keep talking to and emailing your public representatives and local media to help them see sense. Please let them know that YOU do not want your freedom of expression to be criminalised.

See https://ronanmullen.ie/news/ for a fuller analysis of the many weaknesses in the Bill.

The controversial ‘Hate Speech’ legislation completed its Second Stage debate in the Seanad this week. Speaking to us, the Minister for Justice indicated that she would not rush the Bill through the Seanad.

So concerned citizens and voters have time and opportunity to make their views known in the coming fortnight. Please do so – especially to Government TD’s and Senators, and directly to the Department of Justice.

I think Minister McEntee needs to hear from you because she has got the idea that people are victims of a ‘campaign of disinformation’ by ‘certain commentators, and on social media’ … ‘especially with regard to the public consultation’.

Since she’s brought up that 2020 public consultation, I am presenting here some points of information from the Department of Justice after that consultation. I have highlighted some of the phrases in bold just to show how far the Government has departed from this consultation and its results.

The published outcomes say:

‘for this report we have chosen working definitions that reflect the real-life experiences that communities have told us they experience as hate speech and hate crime. Of course any legislative definition will need to be more precisely construed.’

‘Thresholds for criminal hate speech in particular need to be high, to avoid any disproportionate or unnecessary impingement on these fundamental rights which every person is entitled to enjoy.’

‘The criminal law, particularly as it applies to hate speech, should always be the measure of last resort. There is no doubt that criminal legislation alone will not solve the problem of hate speech, and is not suitable for dealing with many of the milder forms.’

The Irish Council for Civil Liberties proposed:

‘Hate speech, though abhorrent, should only be outlawed in the most extreme cases such as incitement to violence.’

‘Other forms of hate speech, which might cause deep offence for example but do not reach a criminal threshold, should be combated by other means.’

‘only extreme forms of hate speech that might lead to acts of hostility, discrimination or violence should be criminalised.’

A number of senators informed the Minister that they had received voluminous correspondence opposing the Bill on similar grounds.

Yet, somehow, the Minister still thinks that the criminalisation of undefined ‘hatred’ is what the public wants.

Closing the debate on Wednesday, the Minister sought to reassure us that we should not fear a restriction of free expression, the lack of a definition of ‘hatred’, or worry that there is anything surreptitious about her including a radical new definition of ‘gender’ in the legislation. But words matter. Especially in criminal law. This Bill allows anyone to be subject to prosecution for undefined hate speech at a time when ordinary people are regularly accused of hatred for the political views they hold and vigorously espouse.

The Minister’s mask slipped only twice.

The first time was when she reassured us that the understanding of ‘hatred’ was the one ‘commonly understood by the judge, by the jury, by the Director of Public Prosecutions.’ Whereas last week the Minister had referred to the one ‘used by the courts, the Garda and the DPP’. So where has the Garda definition gone – you know that vague one which says ‘perceived by any person to, in whole or in part, be motivated by hostility or prejudice’? Poof! It just disappeared – or has it?

The second slip was in the Minister’s closing remark: ‘For people who perhaps are not strong and are not able to deal with some of the targeted abuse and online hatred, we need to make sure there are protections in place to support them, and that is exactly what I am trying to do here.’

It’s meant to sound kind. But it means that the fundamental right of freedom of expression is to be suppressed in response to undefined online robust abuse – as if there were an equivalence, and as if that were the purpose of the criminal law.

When good intentions are filtered through the sieves of vested interests (‘stakeholders’) the common good can suffer. The Hate Speech elements in this Bill are proof positive of this.

How the Government fails the ‘Pinocchio’ test in its answer to concerns about the ‘Hate Speech’ Bill. A correspondent of mine wrote to a Government TD about how the controversial ‘Hate Speech’ legislation could curb freedom of expression.

The TD writes: ‘Hate crime is a real and lasting problem in Ireland today’

My response: Everyone knows that hate is an unpleasant feature of human relations. We will always need appropriate and proportionate responses to help reduce it. Most noteworthy here is that the TD wasn’t asked about the ‘hate crime’ aspect of the Bill (where existing offences such as assault are made more serious if proven to be motivated by hatred). My friend was concerned by limitations on free speech by the prohibition of incitement to ‘hatred’ – with ‘hatred’ so far undefined. If by ‘real and lasting problem’, the TD means ‘substantial problem’, there are no useful available figures on dangerous ‘hate speech’ amounting to crime…

TD: Ireland stands alone among European nations in not having introduced statutory protections from hate crime.

R: The TD has still chosen not to address the more controversial ‘hate speech’ element, focusing on the less controversial ‘hate crime’ part. Is he leaving his correspondent with the impression that we have no legislation banning speech that incites hatred? The 1989 Act is there, ready to be amended if needed.

TD: If the harm of hate is to be acknowledged and countered, it falls on us as legislators to act to provide a legislative framework for the explicit naming of bias crime.

R: Still talking about ‘hate crimes’ I notice, but is the Government admitting for the first time that it sees ‘hate’ as meaning ‘bias’? Is a Government Party finally revealing its hand on what it means by ‘hatred’ and why it has failed to define it in the Bill?

TD: ‘Ireland must join other nations in ensuring the violence of hate experienced by vulnerable individuals and communities is challenged head-on.’

R: Note that the TD does not say ‘violence caused by hate’ but ‘the violence of hate’. So ‘hate’ is automatically ‘violence’. And so ‘hate speech’ is violence? No. While speech should be criminalised if it incites violence, SPEECH ITSELF IS NOT VIOLENCE. There is international guidance here which the Government has ignored: “measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression; some expressions of hate speech warrant a criminal law response, while others call for a civil or administrative law response, or should be dealt with through measures of a non-legal nature…”

TD: ‘(victims) remain at risk of repeated victimisation.’

R: A harsh law which is widely viewed as unjust may not be properly implemented for fear of injustice, and thus do little or nothing to dissuade the true haters. Alternatively, other people will be victimised by being deprived of their right to express legitimate views freely.

TD: ‘(this is) not an attempt to criminalise opinions and discourse, but to tackle extreme forms of hate speech that deliberately and recklessly incite or stir up acts of hostility, discrimination or violence’

R: Ah, look’it! The words ‘stir up’, ‘deliberately’, ‘extreme’ and ‘hostility’ are absent from the new Bill. Those words could have been included. The Bill does not distinguish extreme forms of hatred from stupidity, or from opinionated or robust speech. The European standard for freedom of expression allows for words that ‘offend, shock or disturb the State or any sector of the population.’

TD: While freedom of speech is enshrined in both the Constitution and the European Convention on Human Rights, limits may be placed on it by law in order to protect other fundamental rights.

R: Agreed, but the international way proposes: ‘the exercise of the right to freedom of expression carries with it duties and responsibilities’ and that ‘any restriction of this right must…. (be) narrowly construed and comply with the requirements of lawfulness, necessity and proportionality to the legitimate aims.’

TD: ‘The Bill takes a balanced approach in protecting freedom of expression and ensuring that the rights of minority and vulnerable communities are protected from hate speech.’

R: A lack of balance has dogged this Bill going back to the first public consultations in 2019. By not defining ‘hatred’ and by effectively penalising a thought crime, this Bill, if enacted, will have a chilling effect on the free speech rights of anyone who wishes to publicly contradict, for example, a government narrative on a controversial issue of the day. Its vagueness will invite ‘pile-ons’ by those who feel they have a right not to be offended, getting social media platforms to silence certain voices.

TD: ‘The inclusion of a general provision to further protect genuine freedom of expression, including genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting…’

R: Section 11, on ‘Freedom of Expression’ was inserted as an afterthought and adds nothing. Journalists and politicians may not feel the heat with their ‘genuine’ contributions but the woman with the placard defending womanhood will. People should not have to wait until they are before a judge and jury to find out whether their robust freedom of expression has put them outside the law. The verdict: For failing to acknowledge existing statutory measures against ‘incitement to hatred’, for equating ‘hate’ with ‘bias’, for suggesting ‘hate’ is ‘violence’, and for suggesting that certain key words might be in the Bill when they are in fact absent – four Pinocchios is the appropriate response to the TD’s letter. Not much direct falsehood, but a misleading idea in nearly every paragraph. I also note that the TD’s (standard?) letter gave no explanation for the smuggling of a controversial new definition for ‘gender’ into the Bill, another issue that his correspondent raised. Please continue to make your views known…