The hate-speech bill – or the anti-free speech bill as its critics would describe it – has become hugely controversial.
Fine Gael senator, Regina Doherty, says she has “never received as many emails about a particular piece of legislation as I have in respect of this one”, perhaps with the “exception of the mother and babies homes.”
She highlighted the concerns expressed about people being “prosecuted for merely expressing their views.”
Similarly, Independent Senator Tom Clonan said: “this is the largest volume of correspondence I have received from a huge swathe of people in Irish society”.
A “wall of concern” was being raised, he told the Seanad.
At the weekend, Fianna Fáil TD, Jim O’Callaghan was the latest to express misgivings. Writing in the Business Post, he said he had “significant issues of concern” with the section of the bill “which creates new, aggravated forms of certain existing criminal offences (such as assault or assault causing harm) where those offences are motivated by hatred against certain protected groups.”
“If enacted, these aggravated offences will carry an enhanced penalty. A person can be guilty of a hate aggravated offence under this part if they commit one of the offences and, in doing so, they demonstrate hatred of a protected group “at the time of committing the offence, or immediately before or after doing so.”
The bill does not require that the offender must be motivated by hatred at the time of committing the offence.
Consequently, it is not a requirement of the bill that there must be a causative link between the commission of the offence and the demonstration of hate.
This means that a person convicted of a criminal assault could be found to have been guilty of an aggravated form of that crime even though the assault was not motivated by the victim’s protected characteristic. Instead, the person could be convicted of assault aggravated by hate because immediately after the assault an abusive term was used by the person convicted of the assault.
He points out that a person who has committed an offence may have made “ill-considered abusive comments” in the “immediate aftermath of an offence” – and that this would lead to them being “categorised as hate crime offenders when, in truth, hatred did not motivate their offence”.
“This will have the consequence of stigmatising a person for life as someone who committed a hate crime when, in fact, the crime was not motivated by hate.”
“The bill should be amended so that an offence would only be committed where the offender was motivated by hatred at the time of committing the offence.”
The points O’Callaghan makes are valid, and his criticism highlights just some of the pressing concerns that have been raised about this draconian piece of legislation.
It does need to be said that his intervention would have been better timed if he had spoken out in this way when the bill was being debated in the Dáil.
O’Callaghan voted for the bill, and he knows that the government has the numbers to pass it in the Seanad despite the heroic efforts of Independents and a handful of others.
Conversely, the timing of his article might be considered interesting precisely because the clamour of protest around the proposed law continues to grow.
Barrister Grace O’Sullivan’s devastating critique of the bill in Bar Review concluded that: “The apparently low threshold for prosecutorial success leaves the uncomfortable impression that the legislation is criminalising speech that is simply likely to cause ‘offence’ to someone somewhere.”
That’s a truly astonishing inclusion in a piece of legislation: as she makes clear, the speech need not be threatening or abusive – and there need not even be a victim.
There is no need, under the bill, to prove that the speech, or material was actually successful in inciting another person to hatred. She also points out that there is no threshold in regard to what language is an offence “inciting hatred”?
Using the trite language usually seen in of sloganeering, not drafting law, we are simply told that “hatred means hatred”. As Ms Sullivan points out, the bill “purports to protect individual(s) not even present in the jurisdiction.”
Perhaps we can look forward to violent biologically male rapists, who are pretending to be women in order to be placed in female prisons, making hate crime complaints to an Garda Síochána at a time when the force is so stretched that 999 calls can take up to 5 minutes to get through.
Its another fine example of the government prioritising nonsense – harmful, draconian, sinister nonsense – instead of actually doing their job. While McEntee insists that clamping down on free speech is necessary (its not), actual violence on the streets is out of control.
Given the level of violence and ASB on Dublin's streets, it takes a lot to shock me, but this is utterly appalling. @finegael has held the Justice ministry for over 12 years and have only succeeded in making our streets more unsafe. https://t.co/cVFqy28gTn
— Keith Mills (@KeithMillsD7) June 29, 2023
The thugs who inflicted these horrifying injuries on Ukrainian actor, Oleksander Grekov, are being emboldened by the failure of government to deal with the rise in violent crime and the need for increased policing.
Instead the Cabinet is focused on passing a law that would criminalise you for having an opinion that runs contrary to the current narrative – and, most likely, to the current groupthink in the political establishment.
Senator Sharon Keogan has drawn attention to the sweeping powers being given to Gardaí who might want to investigate you for mean tweets.
“Upon such evidence being given, and a warrant granted, the guards can enter your home, search every person there, seize every single electronic device in the house, your phones, your laptops, your tablets, those of your partner, children’s phones, they can take anything, diaries, books, any object at all, and hold them for an indefinite amount of time,” she said.
“Upon such evidence being given, and a warrant granted, the guards can enter your home, search every person there, seize every single electronic device in the house, your phones, your laptops, your tablets, those of your partner, children’s phones, they can take anything,… pic.twitter.com/DvH6D02HxU
— Free Speech Ireland (@FreeSpeechIre) July 2, 2023
What’s more, if you object by refusing to give your password because this is such an obvious overreach, that’s a crime in itself and you may be landed in jail for up to a year.
This is, to use the correct use of the word, incredible: so incredible that many people probably just don’t believe it can be true.
In fact, its such an ill-conceived, blatantly awful, obviously dangerous, and profoundly undemocratic bill, that it likely sailed through the Dáil, in my opinion, because it was difficult at first to get the public to believe that a western government would take such a crude and unnecessary cudgel to free speech rights.
But the persistent efforts of the few have changed that perception.
The dogged effort of Keogan, Mattie McGrath, Malcolm McDowell, Rónán Mullen, Aontú and others, and viral moments like this from Ben Scallan, have lifted the curtain on the draconian provision of the bill.
Taoiseach Leo Varadkar defends disregarding the results of the public consultation on "hate speech" laws, arguing that "very often" such consultations are hijacked by "campaigning groups" and are not "reflective of public opinion."#gript pic.twitter.com/X6EC0uF6NO
— gript (@griptmedia) May 4, 2023
Helen McEntee’s poor defence of her own legislation has only served to increase the criticisms, concerns and scrutiny of a bill that must surely now be shelved. Free speech must be protected from both careless and coercive laws.