Rónán Mullen: Hate speech legislation threatens our right to say what we think

There is a definite move in establishment circles to curtail what people say on controversial issues, not just on social media but out in the street, and we need to be vigilant

Sat, 17 Jun, 2023 - 02:00

Ronan Mullen

A Canadian activist called ‘Billboard Chris’ recently got into a spat with a member of An Garda Síochána in Dublin. The campaigner, Chris Elston, travels the world with a billboard saying “Children cannot consent to puberty blockers. Stop the child abuse.”

This was enough to get him complained about after he walked near the Disney shop in Grafton St. A Garda soon appeared. His lengthy exchange with Mr Elston became a big hit on Twitter, getting over a million hits.

The interesting thing is, the garda was very polite but clearly in the wrong. ‘Billboard Chris’ was rather rude but completely in the right.

The Garda quoted Section 7 of the Criminal Justice (Public Order) Act 1994, to suggest that if people found his billboard message ‘offensive’, Mr Elston could be breaking the law. But that was not true.

Section 7 does indeed make it an offence to display any “threatening, abusive, insulting or obscene” message in a public place. But you have to intend or be reckless about provoking a breach of the peace before the law catches you. There was nothing to suggest this was Mr Elston’s intention.

People like ‘Billboard Chris’ are important to our democracy. By drawing attention to controversial ideas and interacting with the forces of law and order, he is a canary in the coalmine, testing the boundaries of free speech and revealing the reaction of the authorities.

In this case, the garda finished up by conceding Mr Elston’s right to engage the public with his message.

Yet he had taken up the man’s time needlessly, and maybe a less brassy campaigner would have been intimidated from his spot at the sight of a uniform.

We need to be vigilant. There is a definite move in establishment circles to curtail what people say on controversial issues, not just on social media but out in the street. We’ve seen it in the management of covid, with discussions about migration policy, and on gender politics.

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How were so few people outraged when veteran feminist and journalist Mary Kenny had her keynote address to University of Limerick cancelled recently because of her views on gender politics? Where were the newspaper editorials lamenting this new intolerance?

But as bad as it is to have our universities failing to defend free speech, it gets much worse if the forces of law and order get involved in managing people’s discourse. That’s why the Government’s Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill, going through the Seanad now after passing through the Dáil, is a democratic disaster.

This Bill replaces the 1989 Prohibition of Incitement to Hatred Act by making it much easier to criminalise what people say. The Government is upfront about wanting this outcome. The 1989 law requires you to use threatening, abusive or insulting words or material intended to or likely to ‘stir up’ hatred. With the new law, you don’t have to stir it up anymore. Your material must just be ‘likely to incite hatred’, intentionally or recklessly.

All reasonable people are against inciting hatred, of course. But the combination of vagueness in the legislation and the new ‘cancel culture’ out to silence certain points of view unlocks the potential of... censorship.

The word ‘hatred’ remains undefined in the proposed legislation so you don’t know which of your utterances might fall on the wrong side of the law.

That’s more of a problem nowadays that people are so frequently accused for being ‘haters’ if they have certain unfashionable views. We know that the gardaí are already recording ‘non-crime’ hate incidents. There were 72 of them in 2022, but how many were real?

The Garda’s current definition is ‘any non-crime incident which is perceived by any person to… be motivated by hostility or prejudice.’

With an increasingly intolerant mob out to control what you have to say, that is pretty subjective and wide open to abuse. We shouldn’t want the gardaí coming under pressure to police people’s utterances any more than they are already doing.

Nor do we need social media organisations curtailing political debates because they're not sure what is, or isn't, against the law.

What about the parent or teacher who wants to stay straight out on social media that no biological male should have access to the girls' toilets in the school? Or that no such male should be completing with teenage girls in ladies GAA? These defenders of common sense must be allowed to speak, and crudely and rudely if they wish.

Less sympathetically, what about the person who wants to say there are too many non-nationals from a particular background coming into the country? Forget whether you agree with them. Must they endure a knock on the door from the gardaí? If people are prosecuted, but not eventually convicted because of some watery defence provided in the Bill, isn’t the damage already done? Doesn’t the process become the punishment?

Even if a person is not prosecuted, will they have the nerve to speak up again? Because instead of having their ideas challenged in free debate with fellow citizens, they're getting censure and hassle from the civil authorities. This is not what we should want in our democracy.

The Bill does find space for one definition and in controversial fashion by redefining 'gender' as a spectrum rather than as a binary. For the first time ever in Irish law, gender is defined to include gender identity and gender expression as if these were all the same thing. In so doing, gender-critical remarks, often deemed ‘hate’ by activists, but maybe just the legitimate concern of parents and teachers about the safety and welfare of their children in the toilets or the playground, may fall subject to criminal sanction.

This is, perhaps, the big reveal in the Bill. Is this the real motivation for such vague and ill-defined and, maybe for that reason, a carefully-crafted and potentially oppressive new law?