When the Universal Declaration of Human Rights was being drafted in the late 1940s, it was the Soviet Union and its allies who argued against freedom of speech on the grounds that it would open the door to ‘hateful propaganda’.  What they had in mind of course was the undermining of government power by the free circulation of ideas and information.

Today, governments whose predecessors robustly defended the right to freedom of speech some seventy years ago, are on the other side of the argument.  Not because, face-up at any rate, they want to protect themselves from due scrutiny and question but because, they say, vulnerable minorities in our increasingly diverse societies require it.  There is no dispute that minorities can feel insecure and marginalized, and there can be a need to review the ways our laws protect us from one another.  The Prohibition of Incitement to Hatred Act 1989, makes it an offence to use, publish or broadcast words that are intended or likely to stir up hatred. Since 1989, there have been some fifty prosecutions under the act and only five convictions. The view of agencies who speak for minorities is that this reflects the weakness of the legislation rather than merely a lack of rigour and commitment in law enforcement.

The European Commission on Racism and Intolerance (ECRI) is asking that we strengthen our legislative protections for minorities. They, along with the Organization for Security and Co-operation in Europe (OSCE), want member states to do more than target extremism, criminal discrimination, and incitement to hatred. They want all crimes against members of minorities to be screened for racial or xenophobic motivation. They want evidence of such motivation to be an aggravating circumstance in the determination of penalties. While one may argue that hate can be a motive in many crimes where victims are not members of minorities, it is clear that there is a particular ripple effect in the impact of crimes that specifically target minorities. They can stir up or fuel latent prejudice and they leave the community concerned feeling even more vulnerable and insecure.

Anti-semitism in twentieth century Europe has mapped out the appalling lengths and depths of racial prejudice.  The same nationalistic regime that sought to eliminate the Jews also targeted other minorities.  Ethnicity, religion, disability, politics, sexual orientation could all equally be grounds for the most savage, barbaric treatment it is possible for humans to inflict on one another.

Influenced by history, the ECRI has laid down specific categories under which minorities are to be protected under hate legislation. Those categories are race (which may include ethnicity and citizenship), religion, disability, sexual orientation and gender identity.  Filtering crime for evidence of a bias motive against a particular minority seems a very sound and necessary development of the 1989 act.  However, further proposals to strengthen ‘hate speech’ as a stand alone crime are fraught with potential but also probable complications.

Equating minority rights with human rights is not the no-brainer argument it is often taken to be in public discussions. Human rights are universal in essence. Their enjoyment does not diminish the rights of others.  So when we say the right to religious freedom is universal, we understand it to apply to Christians, Muslims, Jews, humanists, atheists and others on an equal basis. Furthermore, the exercise and enjoyment of rights under this or any other other heading must not intrude on the rights of others. To what extent they are allowed intrude on a society’s ‘community values’ is a more complex and contentious question.

Sometimes the rights claimed by one group directly undermine those of another. In recent months LGBT programmes in a number of Birmingham schools in predominantly Muslim areas have brought one minority into direct and noisy confrontation with another. The protesting Muslims, we may presume, after some discussion and negotiation perhaps, will be obliged to conform to the country’s laws but should the expression of their views be criminalized as ‘hate crime’?  What of the views of those who oppose transgender access to women’s public bathrooms, sports teams and prisons? Should they be silenced under hate legislation? During the 2015 Marriage Referendum in Ireland, campaigner and journalist, Una Mullally, seemed to insist that most arguments she heard from the opposing side were ‘homophobic’. Úna Mullally is absolutely entitled to hold that view but should she be able to initiate a criminal investigation on foot of her perception?  Against a campaign which ultimately won a third of electoral support?  Hate legislation takes the focus away from the validity or even truth of a statement or opinion to how the listener feels. This is problematic because people can be deeply and genuinely offended at what may be generally regarded as fair and measured comment.

Hate speech legislation like any legislation should be wary of either criminalizing or affirming feelings, whether those of the alleged offender or the accuser, because it taps into another kind of subjectivity.  That is the subjectivity with its own ingrained biases of those charged with investigating, charging and convicting the alleged offenders.  Instances of how this plays out are not hard to find. In Pakistan, a mother of young  children who objected to the decibel level of the muslim call to prayer is serving a lengthy prison sentence for the hate crime of blasphemy. By contrast, complaints against acts of vandalism in French churches last year were explained away as random anti-social behaviour because churches typically do not have the same level of security or traffic as other public properties. Plausible indeed but one might ask if the same attitude would be taken if the properties were mosques or synagogues ? It is easy to see how sensitivity and indeed bias can be shaped by memory and history.

With the rise in rightist, nationalist, populist politics, the ECRI wants hate legislation to extend to ‘rogue politicians’ who dog whistle to sleeping cells of bigotry and prejudice within the community.  Now this could be the thin edge of a very large wedge that allows governments to silence those who oppose them or threaten their self-self serving support of influential lobbies.  A case in point is the rather shocking revelation this week that the British Liberal Democrats received a donation of £100,000 from, Ferring Pharmaceuticals, the producers of a puberty blocking drug used in gender transitioning. It may or may not have a bearing on the party’s call for a reform of the Gender Recognition Act to allow people to self-declare their gender without any medical evidence.  That legislation is already enacted in Ireland. It was not part of the government’s electoral policy platform. It came on foot of lobbying.  One should be able to raise questions on such issues without being characterized as hateful or bigoted towards the minority in question.

On RTE’s Drivetime programme recently, Minister for Justice and Equality, Charlie Flanagan characterized people who challenged him about mass immigration at the Ploughing Championships as ‘alt-right’ racists.  However, conflating questions and concerns about ‘mass immigration’ or any other issue with bigotry and hate is a well worn, totalitarian, silencing ploy. Conflation, mischaracterization, monstering can take many forms.  Protesters defending free speech in front of Leinster House this weekend are likely to be perceived as agitators when the counter protest, backed by such groups as The Irish Network Against Racism ( INAR)  styles itself as  ‘Peace on Earth’ with banners that appropriate seasonal sentiments of good will and hospitality.   Co-opting the angels to your cause can instantly demonize your opponents especially when mainstream media gives them little opportunity to explain their position. When counter demonstrations like this are led by groups supported by public money one may well ask where our democracy is heading?

Politicians are adept at shielding themselves from accountability with moral grandstanding without being weaponized by legislation. It is important that revisions to the Prohibition to Incitement to Hatred Act of 1989 do not compromise freedoms fundamental to democratic values. Freedom to question, to dissent, to protest, to campaign. To challenge government ministers in the public square. Checks and balances must be finely calibrated.  Measures to protect vulnerable minorities will be counter-productive if they are seen to be ideologically driven, aligned to vested interest or repressive. Ensuring they are not is the best protection against populism.