Good News from Ireland on Free Speech! By Richard Miller (Europe)
Ireland was going to have provisions in its new Hate speech Bill, which would have made "communication" of material deemed capable of inciting "hatred" punishable by up to five years in prison, and mere "possession" of such material punishable by up to two years. However, the Irish Minister for Justice has now removed those controversial elements as there was no "consensus." Perhaps this is the coming election in 2025, where populist candidates such as kick boxer, Conor McGregor, widely supported, may be running for presidency.
In any case this is a victory for free speech as the provisions were criticised across the world as having a chilling effect upon freedom of speech.
"In a partial victory for free speech, the Irish Government is to drop controversial provisions contained within its new Hate Speech Bill. Those provisions would have made "communication" of material deemed capable of inciting "hatred" punishable by up to five years in prison, and mere "possession" of such material punishable by up to two years.
According to the Irish Times, Minister for Justice Helen McEntee received approval the leaders of the coalition Government over the summer to remove those parts of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill that deal with incitement to violence and hatred – commonly known as the 'hate speech' elements.
Speaking in Athlone, County Westmeath on Saturday, Ms. McEntee confirmed that the incitement to hatred element of the bill "does not have a consensus" – although, ominously, she went on to say that it will be dealt with at a later date.
Separately, a coalition source told The Irish Times: "While there was significant consensus in the Dáil for hate speech laws, with proposals from the Opposition to expand the law further, that consensus was lost."
In what is likely to be seen as a clearing of the decks for an election that has to be called no later than March 2025, Ms McEntee will now introduce committee stage amendments to the bill, which has been stuck at Third Stage in the upper house of the Irish parliament since July.
The amendments will remove sections 7-10, with the bill then proceeding only with elements that mandate tougher sentences for existing crimes where the perpetrator of an offence is motivated by 'hatred' of the victim's protected characteristic(s).
As a consequence, existing laws on the prohibition of incitement to hatred in the country will not be repealed and will remain in force.
Under the Prohibition of Incitement to Hatred Act 1989, which targets speech intended and likely to cause physical violence, the prosecution has to show the accused intended to incite hatred. What was so chilling about the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill as it is currently written, is that it went further on both counts – effectively lowering the criminality threshold from "incitement to violence" to "subjectively offensive", while at the same time holding defendants liable even if they didn't intend to stir up hatred.
Under the current iteration of the bill, it is a crime punishable by up to five years in jail to say anything, on- or offline, which anybody with a protected characteristic drawn from a long-list of such characteristics –race, religion, national or ethnic origin, gender (including transgender), etc. – perceives to be 'hateful'.
In other words, the bill risked becoming an open invitation to every woke activist south of the Irish border to claim they perceived such-and-such a comment to be both "subjectively offensive", with every Christian street preacher being accused of "homophobia" and gender critical feminist of "transphobia".
Even if cases involving perceived hatred never reached the courts, the investigatory process – the knock on the door, the officers of the law pushing past you into your living room, the confiscation of your phone and laptop, the formal interview at the police station – would inevitably have had a chilling effect on free speech.
This was a point made by the independent Senator and former Justice Minister Michael McDowell, who took to the floor of the Seanad last year to express concern that Irish citizens would "shut their mouths" to "avoid the danger of being prosecuted".
In a sinister echo of Ireland's Committee on Evil Literature, which was established in 1926 – and the Censorship of Publications Act which followed and prohibited the sale and distribution of "unwholesome literature" – the bill also contains provisions that make it a crime, punishable by up to two years in jail, to "prepare or possess" material likely to incite hatred.
"Possession" in this context could simply mean having a dodgy meme or cartoon saved on your phone, or a copy of Mein Kampf on your laptop. These and other, similar cultural artefacts would certainly have fallen within the ambit of the criminal law, since the bill as written – e.g., Sections 10(1) and 10(3) – reversed the usual burden of proof, with the burden of proof resting with the accused to demonstrate the material was just for personal use.
Any attempt to frustrate the authorities in their pursuit of "unwholesome literature" wouldn't have got tech-savvy Irish citizens very far since the legislation includes a provision that makes it a crime punishable by a fine of up to €5,000 or a year in jail to refuse to give the Garda a password to any electronic device that you own.
Ms. McEntee previously insisted that this section of the bill – section 10 – wouldn't curtail freedom of expression because section 7(3) includes defences for "a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse". She argued it would therefore be possible to "debate and discuss issues regarding protected characteristics" and "offend other people or express views that make others uncomfortable". The distinction, she said, is that "you can be offensive, say things that make others uncomfortable, have full and robust debate – but you cannot incite hatred or violence".
But how much protection would this "distinction" actually provide, given that none of the legislation's keywords and phrases – "hate", "hatred", "reasonable and genuine contribution" – have ever been defined?
Consider, for instance, a case like Dr. Nathan Cofnas, the Free Speech Union member and early career research fellow at the University of Cambridge, whose college recently cut ties with him over his research interests, which lie in controversial topics such as race and intelligence. In the world according to Helen McEntee, would his work receive legal protection as a "reasonable and genuine contribution" to scientific and academic discourse, or would it end up costing him his freedom?
How about an Irish art gallery that exhibited Andres Serran's P*ss Christ, that long controversial red and yellow photograph of a crucifix plunged into a vat of the artist's urine? Is this "reasonable" art, or, as the country's Committee on Evil Literature might have put it, "morally corrupting"?
And what about mocking memes – as independent senator Ronan Mullen asked during a debate on the proposed legislation in the Senate. "Will carrying a placard stating, 'Men cannot breastfeed' warrant a hate-speech investigation or up to five years' imprisonment, a lifelong label as a criminal hater, and all of the stigma and life limitation that goes with that?" he asked, before concluding: "Nobody actually knows."
Reacting to the Government's decision to scrap the law's hate speech provisions, Independent Teachta Dála (TD) Carol Nolan said: "This is a victory for free speech and a calamitous political and ideological defeat for Minister McEntee and a government that had to be pushed into accepting the validity of basic democratic norms."
"It also demonstrates that the Minister is now an electoral liability," she added.
Aontú leader Peadar Tóibín said he was delighted to see that the Government has dropped plans for hate speech law. It was a censorship law, which sought to prevent people articulating opposition to many of the Government's policies, he said. Indeed, over the last few years, the Government had become increasingly authoritarian in terms of how it dealt with dissent.
"We're delighted that our work against the bill has helped to bring about this outcome," he said."
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