This past week, the Republic of Ireland passed the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill which has brought the ire of free speech advocates, notably Twitter CEO Elon Musk, who described the legislation as “a massive attack on free speech.”
Readers should be aware that there is a distinct difference in the concept of free speech in the United States and Europe – in the US, the First Amendment describes free speech as an inherent right, which Congress shall pass no law prohibiting, barring when words become criminal actions, i.e. threatening physical harm. In contrast, European governments have actively silenced political dissenters through policies permitted by the European Convention on Human Rights, in which each listed right, like the freedom of expression, is always coupled with a list of exceptions when those rights don’t apply. The Irish Constitution is written in the same manner as the ECHR, listing “freedoms” that may be revoked at the will of the government.
Section 10 of the “Hate Speech” legislation criminalizes the possession of, and intention to distribute, “material that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics” – which is the most arbitrary of standards. Another point of criticism against the legislation is that possession is not fully defined and could be attributed to many items, such as memes or political cartoons, that will likely be found as hateful by somebody, somewhere.
If caught with such materials, the prosecution will assume you intended to distribute the materials, unless you can prove otherwise (S. 10.3). This turns the legal concept of “innocent until proven guilty” on its head, and coupled with the undefinable nature of materials that “incite violence or hatred” is likely to lead to politically-motivated prosecutions.
This will not come as news to Irish republicans, who have borne the brunt of the Irish government’s biased criminal justice system. The Offences Against the State Act, since its passage in 1939, has been used to prosecute people for asinine offences, like the possession of a poster that said “IRA Calls the Shots” (O’Leary v AG). In one of the most bizarre aspects of the OASA, defendants can be jailed for membership of an illegal organisation based on the testimony of a Garda Superintendent. Defense counsel can question the Garda, but “privilege” can be cited as a reason to not answer the questions, rendering court proceedings meaningless when opinion-based evidence is incontrovertible. Apart from their prosecutions for harmless expressions of free speech, the Irish government – much like their British counterparts – refused to broadcast statements by Irish republicans until 1994. This included elected Sinn Fein representatives, who could not be aired in their own districts but were nonetheless broadcasted in the United States.
Acknowledging that some level of hate speech exists, the government should recognize that a criminalization of direct threat of violence would be more appropriate and easier to prove, but this prohibition is already an accepted and standard part of criminal law since 1989. Criminalizing words that officials of the government deem may “incite violence” is practically unworkable – for example, how would these European governments enforce that prohibition when so many of their national anthems are calls for violence? In Ireland the “Soldiers Song” is dedicated to the IRA volunteers who violently fought Britain’s foreign occupation; in France, “La Marseillaise” contains the violent lyrics, “Grab your weapons, citizens! Form your battalions! Let us march! Let us march! May impure blood Water our fields!” Likewise in the United States, the “Star Spangled Banner” contains similarly violent lyrics, “Their blood has wash’d out their foul footstep’s pollution. No refuge could save the hireling and slave, From the terror of flight or the gloom of the grave…” Attempts to censor America’s violent lyrics were made a century ago, but this effort was overcome by free speech advocates despite complaints that the lyrics “were written in a spirit of hatred.”
The concept of free speech was never meant to protect the right to give compliments – rather, it was founded upon the right to criticize government officials. The creation of an arbitrary “hate” standard, to be administered by agents of the government, will ultimately negatively effect the ability of dissenting opinions to be voiced in Ireland. The Gaelic American was founded upon the classical republican principle of unfettered freedom of speech, and we will continue to report on these important issues, regardless of what politicians get offended.
The Gaelic American Editorial Team