Despite superficial similarities to First Amendment jurisprudence in the U.S., the proposed Irish hate-speech statute would all but guarantee its politicized use.
Despite superficial similarities to First Amendment jurisprudence in the U.S., the proposed Irish hate-speech statute would all but guarantee its politicized use.
T he ferocious desire of Ireland’s myopic and feckless governing class to crack down on speech that it considers “hateful” seems at last to be reaching fruition. After a riot in Dublin was blamed on “far-right” agitators, the country’s taoiseach, Leo Varadkar, renewed his push for a stricter set of legal restrictions on the free expression of the citizenry. “It’s now very obvious to anyone who might have doubted us,” Varadkar said last week, “that our incitement-to-hatred legislation is just not up to date.” “We need that legislation through,” he insisted, “and we need it through in a matter of weeks.”
When selling its proposal, Ireland’s government is careful to use words that do not appear suggestive of censorship. Far from being about “enforcing politeness or political correctness,” the country’s minister of justice, Helen McEntee, maintained last week, the statute she covets is about preventing forms of “criminal hate speech” that “recklessly incite” or “stir up acts of hostility, discrimination or violence.” “People may hold different views and opinions,” McEntee vowed. Her target, she explained, was instigation.
Rhetorically, this is quite a clever trick — akin to describing welfare spending as “insurance” or defining McCarthyism as “accountability culture.” But a trick it is nevertheless. If Ireland truly wished to crack down on reckless incitement while leaving “views and opinions” alone, it could simply have adopted the American standard of review, which, by design, does precisely that. That, instead, the Irish government has developed a system for the wholesale regulation of debate is telling.
Examined superficially, the guts of Ireland’s law seem similar to the holding in America’s controlling First Amendment case, Brandenburg v. Ohio. If enacted, Ireland’s measure would enable the punishment of speech that is “likely to incite hatred or violence” — which appears to channel Brandenburg’s exemption of speech that is “directed at inciting or producing imminent lawless action” and is “likely” to do so. But this resemblance is a mirage.
For a start, the qualifying language in Brandenburg serves to ruthlessly narrow its scope, whereas the qualifying language in Ireland’s statute serves to expand its purview so widely into civil society as to all but guarantee shenanigans. Consider the key words in each measure. Brandenburg contains the word “directed,” which requires the demonstration of intent; Ireland’s law, by contrast, features only the word “likely” — a subjective term that, in the hands of an overly ambitious government, could be made to mean pretty much anything. Brandenburg refers to “lawless action” — an objective and uniformly applicable term that is substantiated by written law; Ireland’s law speaks of “hatred,” which has no agreed-upon meaning, and to “protected characteristics,” which, by definition, apply only to a portion of the citizenry — in this case, those whose “race, color, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation or disability” the government happens to be worried about at any given moment. Brandenburg insists that the potential consequences of the proscribed speech be “imminent”; Ireland’s law is so open-ended in its pertinence that it can be used against people who merely possess material, even if they do not communicate it. Brandenburg puts the onus on the government to demonstrate that its prosecution meets its high bar; Ireland’s law demands that those who are targeted for their speech prove that their output constituted “a reasonable and genuine contribution to literary, artistic, political, scientific, religious or academic discourse,” or “that it was necessary for another lawful purpose.”
The underlying facts also make clear the distinctions. The Irish government has tied its push to pass its reforms to riots that resulted from generalized criticisms of immigration. The Brandenburg decision overturned the conviction of a bunch of armed, robe-and-hood-wearing KKK members who had publicly burned crosses and made a series of execrable speeches calling for “revengeance” against “n*****s” and “Jews.” Were a judge to look at the divergent contexts in which these rules were contrived, he would reasonably conclude that the intent of the Irish government was to punish any speech it considered hateful, even if that speech had no tangible consequences or connection to any lawbreaking, while the intent of the United States Supreme Court was to make it clear that there was no such category as “hate speech,” and that even the most disgraceful exhortations were protected unless they were obviously glued to a set of criminal actions. It is quite obviously the case that if the Brandenburg standard were in place in Ireland, nobody could be prosecuted for having inspired last week’s riots, while if the proffered Irish law had been in place in Ohio, everyone involved in the KKK rally would have gone to jail.
Since Ireland’s draconian scheme first made international news, I have seen nervous defenders of the plan contend that the problem is not in the concept but in the drafting. This is incorrect. This, I’m afraid, is what attempts to punish “hatred” will inevitably look like. One can change a comma here or a term of art there, but, ultimately, one will end up with the same result: a law that seeks not to restrict the most conspicuous and unambiguous instances of incitement but to improve the souls of its people by declaring that certain ideas are outré. As it should be, “hatred” is perfectly legal in the United States, and our First Amendment jurisprudence reflects that blunt fact. I daresay that some people find that uncomfortable, but, at the very least they ought to understand and internalize that this really is a binary choice: Either one has an arrangement in which speech is regulated on a neutral basis and in only the most extreme of circumstances, or one has a system in which the incumbent government is empowered to crack down upon citizens whose political opinions it abhors. Those absurd stories you read out of Britain and France and Germany and elsewhere are not anomalies or mistakes or the wages of poorly constructed statutes; they are the logical result of the laws that enabled them. They will be in Ireland, too.