Tough New Hate Crime Law Has Irish Fearful Their Luck’s Running Out On Free Speech

Authored by S.A. McCarthy via RealClear Wire,

Ireland is on the verge of passing the most aggressive hate crime law in the European Union, which includes the first legal protections in the EU for transgender individuals. Government officials say the bill offers necessary protections at a time when immigration is on the rise and traditional ideas about sex and gender are being challenged. 

Critics counter that the bill’s vague language could be used to enforce the increasingly progressive Irish government’s increasingly woke agenda and forcibly muzzle critics of unpopular government policies. 

The legislation, the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Act, underscores a divide between Ireland’s leaders and many of its people. The bill is making its way through Parliament, winning approval last month in the Dáil Éireann, Ireland’s lower chamber, by a vote of 110-14.  

But Irish citizens, in a 2019 consultation phase, overwhelmingly expressed a worry that the proposal was an unnecessary expansion of the country’s existing hate crimes law. Seventy-three percent of respondents took issue with the bill’s potential for encroachment on free speech and questioned what qualifies as “hate speech,” particularly asking who crafts that definition. Less than 25% of those polled approved of the legislation. 

Underscoring this divide, critics of the bill note that fewer than 50 cases have been brought since the Prohibition of Incitement to Hatred Act was signed into law in 1989. A supporter of the proposed law, former Justice Minister Helen McEntee, has cited that same statistic as evidence of the existing law’s “ineffective” nature. 

The ongoing controversy opens a window into how quickly Ireland, which only legalized abortion in 2018, is moving from its long religious traditions at a time when leaders in other European countries and the United States are seeking to create laws that punish not just deeds but thoughts.  

Over the past 30 years or so, the Irish nation has become increasingly progressive. In 2015, the Emerald Isle legalized gay marriage, just two years after the progressive vanguard of France did the same. That same year, Ireland was ranked among the top 10 most LGBT-friendly nations in the world, and the present taoiseach (Ireland’s word for prime minister) Leo Varadkar is openly gay. The proposed law would expand the 1989 law’s purview by adding gender, sex, descent and disability to the list of protected categories, which already includes  race, color, nationality, religion (including “the absence of a religious conviction or belief”), national or ethnic origin, descent, gender, sex characteristics, sexual orientation, or disability. 

The bill treats not just public presentation or dissemination of material deemed hateful, but also private preparation or even storing of material deemed hateful, such as memes on your phone or books on your shelf. Individuals convicted on such charges face fines of up to €5,000 (about $5,400) and anywhere from six months to two years in prison. Furthermore, as McEntee noted, a conviction “will allow for the ‘hate criminal’ label to follow an offender in court, in garda [police] vetting, and so on… ” 

Paul Murphy, a member of the left-wing People Before Profit-Solidarity coalition, even warned the bill will legislate “the creation of a thought crime.” Conservative chairman of the Irish Freedom Party Michael Leahy told RealClearInvestigations that the bill “represents the most far-reaching and invasive attack against civil and religious liberty enacted in any Western democracy since the Second World War.” 

In order to obtain a search warrant, all that’s needed is a police officer’s oath sworn before a judge that there “are reasonable grounds for suspecting that evidence of, or relating to” hate speech may be in any given place. Police are empowered to confiscate any phone or laptop and demand passwords and encryption keys. Failure to hand over a phone, laptop, password, or encryption key will result in a €5,000 fine and up to one year in jail. 

The bill further features a section to include stiffer penalties for crimes found to be “aggravated by hatred.” Standard crimes will then carry increased penalties if a judge or jury determines the accused was harboring “hatred” for the alleged victim on account of a protected characteristic, even if that hatred was not the motivating factor behind the crime. In cases where a crime is “aggravated by hatred,” the court is commanded to “impose a sentence that is greater than that which would have been imposed in the absence of such a factor.” 

What Is Hate? 

When the Irish people were allowed to submit letters in response to the bill the bill in 2019, nearly three quarters of respondents argued that hate speech should only include credible threats or incitement to violence, according to an analysis published by Gript Media. 

Some respondents claimed further hate speech laws were an Orwellian response only fitting in totalitarian regimes. One respondent wrote, “Why can politicians not leave well enough alone? George Orwell’s ‘1984’ is not an instruction manual. It was a warning. … It seems to me that this proposed legislation is being written to give free reign to certain minority groups at the expense of the majority.” 

Despite the overwhelming majority of negative responses during the public consultation, and the low number of hate speech prosecutions needed, Ireland’s Justice Department cited the sheer volume of responses themselves as reason enough to proceed with the legislation. 

One of the fundamental questions surrounding the new legislation is what actually classifies as hate speech. Prominent legal scholar Gerard Casey, professor emeritus at University College Dublin, has sharply criticized the bill’s circular definition of hate, saying that “it manifestly fails, for no coherent attempt to define a term ‘X’ can include X in the proposed definition.” Citing the text of the bill itself, he continued: 

“We are told, ‘ “hatred” means hatred against a person or a group of persons in the State or elsewhere on account of their protected characteristics or any one of those characteristics.’ If this is meant as a definition, it fails utterly. But if not, where is a definition of hatred to be found in the Bill?” 

Although the proposed law is pending, Ireland’s national police force introduced a “diversity and integration strategy” in 2019 that embraced its vague definition of hate. The program’s foundational document explains a hate incident as any “incident which is perceived by any person to … be motivated by hostility or prejudice.” That is to say, hate incidents are any incidents in which an individual feels that he or she is hated, according to the new police definition. 

Under this definition, reports to police of hate crimes and hate incidents skyrocketed over the past two years, going from 24 reports in 2021 to 97 in 2022. Ireland’s isn’t the only law enforcement agency to craft its own pejorative definitions and labels independently of the legislature. In the U.K., for example, the government counter-terrorism program Prevent labelled classic British works of fiction (including J.R.R. Tolkien’s “The Lord of the Rings” and John Milton’s “Paradise Lost)” as right-wing extremist material. Prevent was originally tasked with assessing threats posed by Islamic extremist terrorist organizations and was criticized for only 22% of its focus remaining on Islamic threats. 

In the United States, the FBI has relied on the left-wing Southern Poverty Law Center, which classifies “Christian identity” and “Radical Traditional Catholicism” as threats on a par with the Ku Klux Klan and neo-Nazis. That list resulted in the FBI’s Richmond field office implementing a plan to spy on American Catholics who attend the pre-Vatican II form of the Mass — a plan which, according to both Mass-going Catholics and the House Subcommittee on the Weaponization of the Federal Government, was actually put into action. On the advice of the partisan SPLC, the FBI branded an entire swath of American Catholics “Racially or Ethnically Motivated Violent Extremists.” 

What Is Gender? 

In light of the rise of transgenderism, the question of gender in hate speech legislation has become an especially controversial. 

The text of the proposed bill defines gender as “the gender of a person or the gender which a person expresses as the person’s preferred gender or with which the person identifies and includes transgender and a gender other than those of male and female.” 

Once again, Professor Casey questioned the bill’s terminology: “We are not told what gender is; what transgender is; what a gender other than male or female might be or how many of them there might be; and how any of the three listed gender items differ from or relate to one another.” 

Irish Sen. Michael McDowell also expressed worries over the bill’s definition of gender and wrote to the justice minister asking for clarification on some of the bill’s ambiguous or nebulous terminology. He asked, “Is transgender a gender for the purposes of Irish law?” He also noted that Ireland’s 2015 Gender Recognition Act, which allows for individuals to legally change their genders, follows a binary male/female structure, seemingly contradicting the new legislation’s inclusion of “a gender other than those of male and female.” 

Casey warns that the legislation’s vague terminology will be used to silence dissent, noting, “Transphobia, as a hate speech crime, pre-empts criticism of transgenderist ideology.” 

The government, in tandem with much of the national media, has promoted “transgenderist ideology.”  Earlier this year, Children’s Minister Roderic O’Gorman promoted lessons on transgenderism in elementary school classrooms. Varadkar backed O’Gorman’s proposal, as did President Michael Higgins. In 2020, O’Gorman also led an effort to permit minors to undergo transgender surgeries without parental consent. 

Beyond that, Christians who oppose the principles of the transgender movement on religious grounds have also fallen victim to claims of hatred and bigotry. Last year, Catholic priest Fr. Seán Sheehy delivered a homily reminding his parishioners of the Catholic Church’s long-held teachings on homosexuality, transgenderism, and abortion. Although preaching Catholic theology in a Catholic church, Sheehy was labeled a hateful bigot by national media. National LGBT Federation board Director Adam Long said Sheehy’s homily was “repugnant,” adding, “Shrouding those deeply offensive comments in any kind of guise, be it religious or otherwise, doesn’t make it any more acceptable.” Even then-Deputy Prime Minister Varadkar commented on the homily, saying he felt singled out by Sheehy’s comments on homosexuality. 

Government-managed broadcaster RTÉ publicly demanded Sheehy apologize for his preaching. The priest responded, “My answer basically is that I’m giving the teaching of the scriptures and the Church regarding homosexual sexual relationships: that they’re sinful and that’s it. … Why would I apologize for the truth?” 

Also last year, schoolteacher Enoch Burke was jailed after refusing to call a student by they/them pronouns, citing his Christian faith. He was held in contempt of court and was placed in solitary confinement in Dublin’s Mountjoy Prison, where he was held for almost four months. Just days ago, Ireland’s High Court ruled that Burke’s employer was right to suspend him for upholding his Christian beliefs. 

Brussels, ‘Where Free Nations Go to Die’

Thus far, none of the major religious institutions in Ireland have made an official public statement on the legislation, though both Ireland’s Catholic Conference of Bishops and Ireland’s Presbyterian Church told RealClear they are “keeping the situation under review” and “watching this particular piece of legislation carefully.” 

The text of the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill clarifies explicitly that it is derived from a 2008 European Union directive to implement more stringent hate speech laws. That directive states, “It is necessary to define a common criminal-law approach in the European Union to this phenomenon [hate speech] in order to ensure that the same behavior constitutes an offence in all Member States.” 

Irish Freedom Party founder and President Hermann Kelly explained in an interview, “It’s clear from the Irish bill … that the anti-free speech legislation originates in Brussels — the one-size-fits-all capital of Europe where free nations go to die.”