The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 is probably the most controversial piece of legislation to come before the 33rd Dáil, but it’s not the first time the Oireachtas has debated the regulation of hate speech.
Thirty years ago, the main concern was not the far right but armed republicanism and its spokespeople – those using sectarian rhetoric to justify murder and other criminality.
At the time, it fell to Michael D Higgins – then minister for arts – to decide whether to renew Section 31 of the Broadcasting Act, which since the 1970s had banned members and affiliates of paramilitary organisations from the Irish airwaves. “It is a basic issue of freedom of information and expression versus censorship,” said Higgins who, on behalf of the government, removed the ban in January 1994.
“I have heard the argument that censorship is invoked to serve a higher category of rights and the assumption is that the public cannot draw distinctions between arguments and nuances of arguments. I choose not to have a determinist view of the impact of television, to trust the public and also to regard the basic right of access to information as one that is essential in a democratic set of practices of communication.”
Comparing these debates 30 years apart can be seen as evidence of a shift by the ‘liberal left’ towards ‘progressivism’, something many political scientists have commented on in recent years
Trade the word “television” for “social media” and it seems you have a classic liberal argument against speech-related provisions in the current Bill.
Of course, Section 31 had its own political context. But comparing these debates 30 years apart can be seen as evidence of a shift by the “liberal left” towards “progressivism”, something many political scientists have commented on in recent years.
In the 1990s, defending free speech was very much part of the “liberal agenda”, along with expanding reproductive rights, legalising divorce, introducing Freedom of Information legislation and reforming defamation law (we’re still waiting on that last one).
Higgins was prominent in this movement and supporting him in a Dáil vote on Section 31 in February 1994 were all the parties of the left: his own Labour Party – then in government with Fianna Fáil – and opposition parties Democratic Left and the Greens.
Sectarian hatred
Ranged against them were Fine Gael and the Progressive Democrats (PDs), which together argued that lifting ban would give a fresh platform for sectarian hatred. A total of 84 people had been killed in the Troubles the previous year, including two children murdered by the IRA in Warrington, and the first IRA ceasefire was still months away. Moving the unsuccessful motion to extend Section 31 was then PD TD Michael McDowell who today, as a senator (and now an Irish Times columnist), is one of the chief critics of the hate crimes Bill.
A striking feature of the current debate is how those arguing most forcefully for protecting free speech are on the political fringes of right and left – from Aontú's Peadar Tóibín and Senator Rónán Mullen to People Before Profit–Solidarity TDs who claim the Bill is not prescriptive enough while also seeking safeguards against “thought crime”.
An irony is that the Bill, once passed, will be sent to Higgins for signing into law, and already rhetoric is building in predictable quarters. For those ideologically opposed to the Bill, his signature will be confirmation that “establishment Ireland” has sold out on civil liberties. This claim would be unfounded as Higgins has a record of refusing to refer any Bills to the Supreme Court – and, besides, Article 40 of the Constitution already significantly limits freedom of expression, which means a constitutional challenge would almost certainly fail.
Less easy to dismiss is the charge that the centre-left – arguably the dominant force in Irish politics – has become less liberal in the traditional sense of Voltaire or John Stuart Mill. That said, there is a danger of being too reductionist in analysing the current debate.
When you actually read the Bill, it’s hard not to come away with the impression that much of the commentary around it is nothing to do with its wording
Gardaí have advised against overestimating the strength of the far right, suggesting it doesn’t represent anything like the kind of threat paramilitarism did 30 years ago. However, hate campaigns are a more hidden, decentralised source of attack on society – a different type of challenge that requires its own response.
Listening to the array of objections to Helen McEntee’s Bill, it is clear there are different categories of argument. Some objectors are seeking improvements to the proposed legislation. Some are concerned with matters that are tangential but not central to the legislation, such as what characteristics – be it race, religion or gender – should be “protected”. And some are purely aimed at political points scoring or stoking up culture wars.
A case in point is Fianna Fáil TD Willie O’Dea’s accusation that McEntee is “playing to the woke gallery”. As a wise friend of mine said recently: “What is woke only a word for kindness?”
When you actually read the Bill, it’s hard not to come away with the impression that much of the commentary around it is nothing to do with its wording. Rather, it seems to have more to do with a general unease about intolerance in public debate.
Increasingly nervous
Driving this unease is the idea that public institutions such as universities and cultural bodies, along with the media, have become increasingly nervous about allowing discussion of controversial topics lest it attract litigation, cancellation or another kind of backlash.
That concern is real, and it points to the responsibility of actors beyond the Government to show backbone in defending free speech. Irrespective of whether the Bill makes it into law, individuals and organisations in Irish society must a find a way of being kind, while also robustly defending the right of people to articulate beliefs that cause offence and upset.