Ireland Gives Up on Free Speech

L ately, I’ve been thinking about the next time I’ll go to visit family in Ireland. Should I leave my phone at home, where it and I are safely protected by the First and Fourth Amendments?

Ireland’s lower house, the Dáil, has passed a hate-speech bill that is almost comical when described. You don’t even have to offend anyone to be guilty of “hate.” A judge can simply determine that the speech at issue was “likely to incite hatred or violence” toward members of protected groups. Also, you can be convicted before uttering or publishing the speech. A judge only has to determine whether you “possessed” the speech, perhaps in a drafts folder on a phone, and had an intent to utter or publish it. Oh, and by the way, the bill allows the state to compel a person to hand over the passwords to his phone or face imprisonment, based simply on the allegation. And finally, the law would presume guilt once possession is established. “In any proceeding under this section . . . the person shall be presumed until the contrary is proved, to have been in possession of the material in contravention” of the law. You’d have to prove to the judge and the prosecutor that you did not intend to publish it.

To review: An unspoken and unpublished remark found in your papers can be examined by the cops and the courts and land you in jail based only on the theory that it is likely to inspire hatred.

The proposal flew through the Dáil with 110 supporting it, only 14 opposed, and the rest of the body of 160 strangely absent. It’s expected to fly through the Seanad and become law. All the major parties supported it, including the largest opposition party, Sinn Féin. It was opposed by the handful of legislators who ever seem to oppose whatever has become a consensus position of the NGOs, the media, and the government blob. They include the independent left-wing representatives under the name People Before Profit, the founder of the new political party Aontú, Peadar Tóibín, and the rural conservatives Michael and Danny Healy-Rae, known to Americans, if at all, from viral videos in which they scourge rhododendrons and defend three-Guinness driving in County Kerry.

News reports on the legislation in the Irish Times tend to take the government’s word that sermons condemning abortion or homosexual activity, or even a refusal to use someone’s preferred pronouns, would not fall afoul of the legislation. “Only someone who sets out to deliberately or recklessly stir up hatred against someone on the basis of one of the protected characteristics will be liable for prosecution under the Act,” reported political correspondent Pat Leahy last November.

But, of course, all those distinctions presume that there is some objective basis on which judges will be able to distinguish effectively critical expressions from ones “likely to incite violence or hatred.” The law provides none.

Almost no country has ever had a free-speech right as unqualified as America’s. And Ireland’s has always been circumscribed.

In the 1937 Constitution of Ireland, the state guarantees “the right of the citizens to express freely their convictions and opinions,” but this is “subject to public order and morality.” And the constitution included wide berth for the government to “ensure that organs of public opinion, such as the radio, the press, the cinema, while preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State,” and to punish “publication or utterance of blasphemous, seditious, or indecent matter.”

Much of Ireland’s cultural life since the 1980s has been marked by an examination and a throwing off of the various forms of censorship that have marked its society since the founding of the Free State. These included a 1923 Censorship of Film Act, which required a chief censor to block those films that are “unfit for general exhibition in public by reason of its being indecent, obscene or blasphemous.” The Censorship of Publications Acts (1929 and 1946), which prohibited excessive focus on crime in periodicals and the promotion of unnatural contraception and abortion. A provision of the 1937 constitution made criminal the “publication or utterance of blasphemous matter” defamatory of any religion until its removal in a 2018 referendum.

This history makes it all the more astonishing that there was a total lack of opposition to this new law from the increasingly progressive “opposition” party Sinn Féin. It took a former member, Tóibín, to point out that Sinn Féin was supporting a bill that “will encroach on people’s ability to speak freely and respectfully about issues of real importance” when the party itself had been censored under Section 31 of the Broadcasting Act within living memory.

It is remarkable that a people taught by their schooling and mass media to be so conscious of the ways in which the Irish state could impose and encourage self-censorship in the name of the old orthodoxies should so easily accept those censorious tools again — applying them so probingly and so zealously to citizens’ private digital lives — in the name of new orthodoxies that have barely been established.

Writing in the Critic, Conor Fitzgerald connects the new law to the Irish establishment’s ambitious plan to transform and grow Ireland via mass immigration, a project that has already exacerbated a housing and cost-of-living crisis and inspired protests in recent months. In other words, it’s a tool the government intends to use to quiet domestic critics and chill the political opposition, should it ever arrive.

I doubt that the prisons will suddenly be overflowing with thought criminals. The vast majority of thought and speech that could be prosecuted under this law will pass without a second thought. Instead, it will be used on a few poor subjects, examples to be made for everyone else. A law as vague and expansive as this can only be applied capriciously.

I cannot help but wonder, as I make a thorough examination of conscience and data, about the guilt in my own phone. In one tweet, the Jesuits would have a good case against me. In another text, so would people who use two-stroke-motor leaf blowers (should they become a protected category). Jokes that I’ve sent to my colleague Charles Cooke about Limeys, and what they get up to at boarding schools, could be taken as inciting hatred against national or sexual characteristics. Same difference, in this case. In my defense I could only say that, unlike most Irishmen today, I hope to maintain and pass on our native gift for slagging.