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The Value of Free Speech


How much do we value our right to free speech? How important is free speech in maintaining a healthy democracy? Can a robust exchange of ideas be described as hate speech.
What is the difference between a hate crime and a non-hate crime?
We discuss the introduction of hate speech for the first time in Irish law, and we touch on some insights gained from our closest neighbour in the UK.
Hate Speech laws are often intended to promote positive actions or outcomes, but they can be open to abuse by vexatious litigants and the easily offended. Is this what the legislature envisaged when the law was drafted?

Anonymous Reporting of Online Hate Crime & Hate Incidents (Non-Crime) according to the Garda Website as introduced in July 2021.

What is a Hate Crime?

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.

Hate Incidents (Non-Crime)

Any non-crime incident which is perceived by any 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.

Explanatory Notes

  • A person, community or institution may be a victim of a hate crime by virtue of perceived or actual association with a particular group or background.
  • ‘Motivation` is presumed by a demonstration or expression of hostility or prejudice.
  • Ethnicity includes ‘Traveller’ and ‘Roma’.
  • Religion includes ‘non-believers’.
  • `Gender` includes gender identity, transgender, intersex, gender expression and gender exploration.
  • An `incident` is an occurrence reported to An Garda Síochána.

Examples of hate crime:

Verbal abuse, obscene/offensive calls, text, mail or emails, assault, harassment, criminal damage, arson, manslaughter, murder.

There are clear distinctions between Hate Crimes, which are underpinned by legislation (currently the 1989 Incitement to Violence Act), and Hate Incidents, which are not crimes and have no legislative basis.

In the UK, which first introduced non-crime hate incidents (NCHI) 7 years ago, it was found that irrational complaints were being recorded against named individuals which were often disclosed on an enhanced DBS check (similar to Garda vetting). Police officers or potential employers were unable to distinguish between actual hate crimes, which were tried in court and found to be criminal offences, and NCHI, which have no legislative basis and therefore are not crimes. In some instances, in the UK, a DBS check was the first time that a person discovered that a NCHI had been recorded against them on the police record.
There is a potential that the same confusion will arise in Ireland where hate incidents which are ‘non crimes’ are recorded on the Pulse system and could potentially be flagged to potential employers under Garda vetting.

Also in the UK, there are many recorded instances of people being reported for hate speech because of innocuous tweets etc., where these reports have caused serious harm and inconvenience to the accused. These are often concluded without charges being brought against the accused, but the cost of defending themselves has taken a huge toll, both emotionally and financially.

Recently, Canadian Billboard Chris visited Dublin as part of his billboard campaign to raise awareness about the potential harms of puberty blockers. He took his campaign across Canada, the US, and the UK before coming to Dublin and taking up his position on Grafton Street. Despite the amount of support he received from passersby, Chris was reported by an “offended person” for displaying a sandwich board that read “kids cannot consent to puberty blockers” on one side and, “Dad-a human male who protects his kids from gender ideology” on the other.

This report prompted a visit from a Garda, who warned Chris that he could potentially be in breach of the law before deciding to take no further action. And this is before the new Hate Speech Bill has been passed.

There is no doubt that a vexatious report like the one Chris experienced will have a different outcome if and when the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill, 2022, is passed without amendment.

 We can expect this Bill to create a chilling effect on the whole of society and stifle, what was once regarded as healthy debate.

A move from equal rights for all citizens to “special group rights” and its effect on Freedom of Expression

The Government, in introducing the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022, has introduced a hierarchy of victims in the creation of protected groups.

This hierarchy of victims will undermine confidence in the law by victims of aggravated assault who are not among the protected groups. Unequal legal protections afforded to protected groups will create a two-tier system where hate crimes that are deemed to be aggravated by hatred towards the protected group will be prosecuted more harshly than other forms of aggravated assault.

Is this just? And how will it affect public discussion and freedom of expression?

The idea of free speech was upheld by philosopher John Stuart Mill in his famous essay ‘On Liberty’, where he provided a classic defence of free speech, arguing that true views may be suppressed due to unpopularity or the political vagaries of the government in the absence of protection for free speech. The Criminal Justice (Incitement to Violence or Hatred & Hate Offences) Bill, 2022, does not provide adequate protections for our right to express ourselves freely, particularly when holding the government to account on its policies as they pertain to the protected groups.

Therefore, the right to free speech holds a larger benefit for society, while its restriction is judged as a real social loss.

The third rationale goes beyond this and holds that free speech is inherent to human dignity: “[…] to deprive human beings of the right to express themselves, to assert their ideas and to engage freely in communication with others, is to diminish their dignity” (Mendel 2006: 29).

Scottish MSP Ash Regan, in marking the tercentenary of philosopher Adam Smith’s birth on 5th June 1723, stated:

“Adam Smith’s belief in free speech was tempered by respect and empathy for others. We need to be free to think, debate and free to offend. We need to base our critical thinking on facts and science. There is immense value in robust debate; that clash of competing opinions – benefits both society and government.”

To deprive Irish citizens of our right to free speech, under the threat of criminalisation, is not a feature of a democratic or open society.