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The new Irish hate speech law will do more harm than good

New legislation endangers liberty and will not address political division

The government of the Republic of Ireland is currently proposing a new hate speech law, as part of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill, which would update the Prohibition of Incitement to Hatred Act 1989. It is argued the existing law, particularly on account of the presence of social media, is insufficient. The aim is to give more power to prosecutors in order to make the issuing of convictions easier. Under the current law, defendants can appeal their charges by proving they did not have the intention of transmitting hatred; however, the new legislation will consider defendants liable even if their actions were not intentional. The protected characteristics in the new legislation include race, nationality, religion, gender, sexual orientation and disability. Someone found guilty of an offence could potentially be liable to imprisonment for five years. The bill has been approved by the government and is currently proceeding through the Seanad (the upper house of parliament). Despite calls to abandon the legislation after the government badly lost two referendums in March and Leo Varadkar’s decision to step down as Taoiseach (Prime Minister), their plan is to proceed with it, albeit with possible amendments.  

Yet, it is not obvious the proposed legislation is the most effective way to tackle expressions of hatred and prejudice in society. In fact, it is likely to be counterproductive. What’s more, there has been hardly any discussion about the possibility of non-legal strategies as an alternative approach. 

The Minister for Justice, Helen McEntee, said the new bill will “contribute in a very real way to allowing everybody in Ireland to live without fear, to live the most authentic version of themselves,” and that “[t]here are people who live in fear simply because of who they are. That should never be the case in the tolerant society we all want to live in.” Dr Seamus Taylor, head of the Applied Social Studies Department at Maynooth University, has welcomed the proposed legislation, saying “[w]e’re the last to legislate this area, and without it, we’re the laggards of Europe.” 

The government has used the riots in Dublin last November as a reason to fast-track new legislation. The day after the riots, Leo Varadkar said “it’s now obvious to anyone who might have doubted it that our incitement to hatred legislation is just not up to date for the social media age.” In reference to influential social media accounts that uttered racist and anti-immigration rhetoric, he announced that “[w]e need laws to be able to go after them individually . . .  They’re to blame and we’re going to get them.”

Others have highlighted that “hate” and “hatred” are not actually defined in the bill

However there are several concerns about the new bill and how it might restrict freedom of expression. Critics point out that blasphemy was removed from the Irish constitution in a referendum in 2018, and now the government and various NGOs want to replace it with a new, secular speech code. It has also received criticism from Elon Musk, who said in January that his social media company, X, will fund legal challenges to advancing legislation.

Others have highlighted that “hate” and “hatred” are not actually defined in the bill and that it effectively leaves it to the courts to decide what is a hate speech crime. Independent Senator and former Justice Minister Michael McDowell has argued, for instance, that we must “ensure it does not have the effect of having people being dragged before courts by citizens and members of An Garda Síochána [the national police force] who have a particular view of what is or is not hatred, because we were too lazy to define our terms.” In this way, it could actively encourage people to take offence at comments they strongly disagree with, or to silence their political opponents. McDowell also expressed concern that the legislation will create a broad chilling effect on freedom of expression by incentivising people to “take many steps to avoid the danger of being prosecuted and shut their mouths.” He went on to say that it “isn’t just a crowd of mad right-wing xenophobes who are concerned about this legislation. Liberals like myself are deeply concerned about the implications of restricting freedom of speech to an excessive extent.” 

One draconian section of the bill states that preparing or possessing material that is likely to incite hatred or violence could be a criminal offence. This would make it a crime, for example, to possess allegedly hateful material on an electronic device that might then be publically shared by the person in possession of it or somebody else. Worryingly, the person in possession will be “presumed, until the contrary is proved,” to have committed a crime [See Sections 10(1) and 10(3) here]. This essentially presumes one is guilty until proven innocent. Although not against the bill per se, the socialist Member of Parliament Paul Murphy said “it is extremely problematic to create this new category of thought crime,” and that “[p]ersons can be criminalised for having hateful material on their computer but without having published it or caused incitement to hatred or a consequence for anybody else.”

It will also be an offence to publically communicate material that condones, denies or trivialises genocide, war crimes, as well as crimes against humanity (see Section 8). Of course, publicly sharing false or controversial views of this order would be deeply offensive to many, but surely it should not be sufficient grounds for prosecution. Needless to say, there’s a subtle difference between putting forward unpopular or even outrageous viewpoints and directly threatening protected minority groups. In failing to draw this distinction, though, the bill runs the risk of criminalising the former in order to protect the latter. One academic, Tim Crowley, has also expressed concern the bill could put pressure on academics and researchers to publicly accept state mandated accounts of historical events.  

it still seems unclear what kinds of speech will, and will not, be permissible

Helen McEntee, in response to criticisms, has said the bill will not encroach on one’s freedom of expression, by pointing out that the law includes defences for “a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse.” [Section 7(3)] She argued it will thus be possible to “offend other people or express views that make others uncomfortable. You will still be able to debate and discuss issues regarding protected characteristics.” The distinction, according to McEntee, is that “you can be offensive, say things that make others uncomfortable, have full and robust debate – but you cannot incite hatred or violence.” However opponents of the bill argue that such offensive, uncomfortable remarks, given the ambiguous criteria set out in the bill, could be interpreted as incitement to hatred. Moreover, in terms of “literary, artistic, political, scientific, religious or academic discourse,” it appears it would be for judges and jury to decide what are considered “reasonable and genuine” contributions. For example, would research examining genetic links between race and intelligence be regarded as a reasonable and genuine contribution to scientific and academic discourse? Or would a provocative painting be considered a genuine artistic contribution? In light of the vagueness of the guidelines, it still seems unclear what kinds of speech will, and will not, be permissible.  To be sure, it is reasonable to criminalise speech that is intended and likely to cause physical violence — as set out in the existing incitement to hatred law — yet this new legislation would criminalise speech more broadly.   

Progressives should be aware that while the underlying reason for hate speech laws is to mostly silence far-right extremists, minorities — as Jacob Mchangama reminds us in Free Speech: A History from Socrates to Social Media — have also been targeted under such laws. In Spain, for instance, a number of left-wing, anti-establishment rappers have received prison sentences for glorifying terrorism and insulting the monarchy in their lyrics. More recently, after the Hamas-led attack on Israel last October, attempts were made by France’s interior minister to ban all pro-Palestinian protests in the country as “they are likely to generate disturbances to public order.” In this way, hate speech laws, as the journalist and writer Kenan Malik reminds us, are often “a means not of tackling bigotry but of rebranding certain, often obnoxious, ideas or arguments as immoral. It is a way of making certain ideas illegitimate without bothering politically to challenge them.”

Even if it could be argued that laws can be restricted to targeting only those who transmit genuine forms of extremist rhetoric, it is still not clear that criminalising them is the most effective way of dealing with the problem. Over the past decade or so, some European countries have experienced a rise in support for far-right parties. Marine Le Pen, a member of the National Rally, for example, could be the next president of France, and the far-right Alternative for Germany (AfD) is currently the second most popular party in Germany. All this has happened, despite both countries having pretty strict laws against hate speech. As the historian and author Timothy Garton Ash points out in his book, Free Speech: Ten Principles for a Connected World, “[t]here is scant evidence that mature democracies with extensive hate speech laws manifest any less racism, sexism, or other kinds of prejudices than those with few or no such laws.” The European Parliament in 2013 accepted that in spite of the fact that several member states have hate speech laws, those countries did not experience reduced levels of racism or other forms of discrimination.  

There are other unintended consequences that proponents of hate speech laws should consider. It might not help reduce hateful speech, but drive it underground; and when less visible, it would make it more difficult to monitor. Suppressing speech can make it harder to discourage those speakers and to highlight flaws in their perspectives. By the same token, not allowing others to hear those ideas, and possible challenges to them, comes at a cost. As John Stuart Mill pointed out over a century and a half ago in On Liberty, “He who knows only his own side of the case knows little of that.” It’s also entirely possible a hate speech law would encourage speakers with extremist views to express them in more subtle ways so as to avoid criminalisation and, as a consequence, acquire more mainstream acceptability.

Of course, this does not mean that nothing should be done to deal with hate speech in society. One argument is that the best way to counter it is not with censorship, but with more speech. In Hate: Why We Should Resist It with Free Speech, Not Censorship, the legal scholar and civil liberties activist Nadine Strossen has suggested a number of non-legal strategies that could be considered as alternatives. One option, as a direct response, would be to refute the hateful or inaccurate content and to respond to it with more accurate, positive information. Another active response is education — through schools and colleges, arts and entertainment — that foster values of tolerance and that highlights the potentially harmful effects that hateful speech and prejudice has on others. 

Strossen also suggests collaborative projects within communities, involving intergroup contact, as a way of reducing tensions and promoting more tolerance among people from different groups. The view is that people tend to see others more favourably when they discover that they are more similar and have more in common than initially assumed.  The notion is based on the work of Gordon Allport, a Harvard psychology professor, in the 1950s on “intergroup contact theory.” In fact, there’s some evidence to suggest interaction between groups is one of the most effective ways of reducing intergroup prejudice. Another non punitive approach is to establish forums where sincere, non-coercive apologies can be given – as they can go a long way towards healing wombs and deescalating tensions between different parties. These counterspeech efforts could come from public bodies, politicians, the media, NGOs, artists, citizens, and of course representatives of marginalised communities.  

If the government is serious about both effectively curbing harmful or extremist speech and protecting freedom of speech, then perhaps rather than enacting this legislation they should seriously consider some of these non-censorial measures beforehand.

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