C: Momentmal

To the Irish Justice Ministry

George Orwell once wrote that, “If liberty means anything at all it means the right to tell people what they do not want to hear.” This bedrock principle of human freedom is antithetical to the might makes right default state of human civilization, and thus can never be taken for granted.

As a citizen of Ireland, I am deeply concerned about the provisions of the new hate speech bill passed in April 2021.

I am not against this legislation because I support hatred, but because I believe that free speech is the foundation of human flourishing, as it encourages us to humbly seek truth instead of protecting dogmatic beliefs, and to solve conflict with reasoned discourse, instead of violence—endeavours central to securing a future for humanity.

When we developed the nuclear bomb in 1945, we entered into a new era that Toby Ord has aptly called the precipice. We have developed the technological capacity to bring about our own total destruction—yet we lack the wisdom to ensure that we refrain from doing so. If we are to solve the existential problems facing humanity—such as nuclear weaponry, engineered pandemics and misaligned artificial intelligence—and ensure a better future, we will need more speech, rather than less.

In a 2019 report, the Gardai define hate crime as:

Any criminal offence which is perceived by the victim or any other person to, in whole or in part, be motivated by hostility or prejudice, based on actual or perceived age, disability, race, colour, nationality, ethnicity, religion, sexual orientation or gender.

This is dangerously vague. How can motivation be judged simply on the basis of someone’s perception?

The wording here echoes that of the UK police, who define the Orwellian-sounding offence of a non-crime hate incident as follows:

Any non-crime incident which is perceived by the victim or any other person, to be motivated by a hostility or prejudice based on a person’s race or perceived race / religion or perceived religion / sexual orientation or perceived sexual orientation / disability or perceived disability / transgender or perceived to be transgender.

Yet the UK guidelines have led to some notorious instances of overpolicing (detailed by Iona Italia here). As journalist Matthew Parris explains, “police are … required to open a record even in cases where no crime has been committed, but ‘hate’ alleged.” Such incidents may be disclosed to potential or current employers.

Irish Justice Minister Helen McEntee has assured critics that

The new legislation should contain robust safeguards for freedom of expression, such as protections for reasonable and genuine contributions to literary, artistic, political, scientific or academic discourse, and fair and accurate reporting.

But who defines what counts as a reasonable or genuine contribution to the discourse? And who will update that definition as the cultural zeitgeist changes?

McEntee has further stated that:

this is … about hate speech that could lead to harm and illegal discrimination … This means a person must either have deliberately set out to incite hatred, or at the very least have considered whether what they were doing would incite hatred, concluded that it was significantly likely, and decided to press ahead anyway.

But these assertions raise a number of important questions.

For one thing, this legislation opens the door to the censorship of art, and especially of satire, since, as Andrew Doyle writes in his important recent book Free Speech and Why it Matters, satirists are always particularly prone to falling foul of conventional mores. In fact, questioning the status quo is one of the main functions of satire:

As the boundaries of social acceptability shift this way and that depending on the cultural mores of any given time, comedians will reliably be found capering along the perimeter.

This new legislation could easily be used to curtail artistic freedom.

Activist Rosaleen McDonagh has argued that these hate speech laws could be used to prevent comedians from making edgy jokes and to censor the media and the entertainment sectors—although she views this as an advantage:

Hate crimes have no particular platforms or spaces. They happen in public and private domains. There have been too many incidents in my life where the joke was on me, the audience colluding with the comedian with their applause. My head goes down, my presence is diminished. It feels like you are being trampled on. Nobody notices, nobody thinks, nobody checks themselves. The media and entertainment sectors have been culprits in colluding and even amplifying various forms of hate speech.

But, however painful it may be to experience humiliation or upset when your identity or beliefs are mocked, we should not enact legislation to protect individuals from such feelings, which are an inevitable part of life in a diverse society in which people hold a variety of differing views.

As Nassim Taleb has written:

you have the right to contradict me so long as I have the right to contradict you … there is no democracy without such an unconditional symmetry in the rights to express yourself, and the gravest threat is the slippery slope in the attempts to limit speech on grounds that some of it may hurt some people’s feelings.

What if Father Ted had been deemed a hate crime, due to the offence it caused many Catholics when it first aired in the 1990s? What if Blindboy Boatclub (aka David Chambers) had been accused of a hate crime, on the basis of the more than 1,300 complaints received by Irish broadcaster RTE when, in 2017, he referred to the Eucharist as “haunted bread?” What if Colm Williamson had been accused of a hate crime for his 2020 comedy sketch depicting God as a rapist, which prompted thousands of complaints? Do we really want to stifle satirists’ creative freedom to criticise the Catholic Church for fear that people may take offence? And it’s not only critics of Catholicism who might be subject to such laws. What if those Christians who opposed abortion rights in 2018 and same-sex marriage in 2015 were deemed to have committed a hate crime? This legislation could have a chilling effect on protest of all kinds.

Is that the kind of society we want?

As sovereign individuals living together in an open society, we should be able to be as insulting as we want, toward whomever we want—not because there is anything desirable about vulgar abuse, but because the alternative—silencing dissent—is far worse.

Those who support censorship by the current government should consider what might happen if the legal means of controlling language were in the hands of a truly malevolent state actor. To assume that our leaders will always have the people’s interests at heart is naïve.

Article 48 of Germany’s 1919 Weimar Constitution states that:

If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces.

This article was written under the misguided assumption that pro-democracy leaders would always be in power. Yet, as historian Benjamin Carter Hett has explained, such provisos allow for the establishment of military rule and the article therefore provided “a kind of trapdoor through which Germany could fall into dictatorship” under the Nazis.

Throughout the history of civilization, tyrannical control has been the rule rather than the exception. We must always guard against it.

The fact that free speech is the bedrock of a free society is evidenced by the widespread censorship practised by the world’s most authoritarian states, including the world’s largest totalitarian regime: communist China.

The Covid-19 pandemic was probably exacerbated by Chinese Communist Party censorship of Wuhan medics like doctors Li Wenliang and Ai Fen, who were silenced when they tried to raise the alarm early on in the outbreak.

The Chinese government has imprisoned pro-democracy advocates in Hong Kong and intimidated, oppressed and silenced lawyersjournalists and scientists, while, with the silent collusion of much of the international community, it perpetrates acts of barbarism against Uighur Muslims and Falun Gong practitioners.

In 2018, we voted to remove blasphemy laws from the Irish constitution. I supported the repeal of those laws because I believe that the government should have no part in censoring particular viewpoints, however blasphemous or even hateful. Now, however, these laws being replaced by new punishments for secular heresy.

Racism, sexism and xenophobia will not disappear simply because we make it impossible to express such views publicly. If we do not allow people to say what they think—however hurtful—they will simply keep quiet until they are able to express themselves at the ballot box by voting for populist parties or, worse, they may join a radical underground faction. It is in our best interests, therefore, to understand hatred and to tackle the disease at its source—by conversing with our fellow human beings—rather than attempting to suppress the symptoms.

As the late Dr Li Wenliang put it, “A healthy society should not have only one kind of voice.”


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