We recently discussed a troubling conviction in Great Britain of a man for his “toxic ideology.” Now Ireland appears ready to replicate that case a thousand fold. The proposed Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 would criminalize the possession of material deemed hateful.
It is a full frontal assault on speech and associational rights. The law would allow for sweeping authoritarian measures in defining opposing viewpoints hateful. Ireland appears to be picking up the cudgel of speech criminalization from Britain, an abusive power once used against the Irish.
The law is a free speech nightmare. Even before addressing the crime of possession of harmful material, the law would “provide for an offence of condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace.” The crime of condoning, denying or grossly trivailising” criminal conduct would make most autocrats blush. The lack of any meaningful definition invites arbitrary enforcement. The law expressly states the intent to combat “forms and expressions of racism and xenophobia by means of criminal law.”
What is so striking about the law is how utterly unapologetic it is in the use of criminal law to curtail not just free speech but free thought. It allows for the prosecution of citizens for “preparing or possessing material likely to incite violence or hatred against persons on account of their protected characteristics.” That could sweep deeply into not just political but literary expression.
The interest of the Irish in assuming such authoritarian measures is chilling given their own history under British rule, including violent crackdowns on nonviolent protests like “Bloody Sunday.” Free speech is now in a free fall in Great Britain and Ireland appears eager to follow suit.
The decline of free speech in the United Kingdom has long been a concern for free speech advocates (here and here and here and here and here and here and here and here). Once you start as a government to criminalize speech, you end up on a slippery slope of censorship. What constitutes hate speech or “malicious communications” remains a highly subjective matter and we have seen a steady expansion of prohibited terms and words and gestures. That now includes criminalizing “toxic ideologies.”
Under this pernicious law, a judge can order the search of a home based solely on a police officer’s sworn statement that he or she has “reasonable” grounds to believe illegal material may be present in a person’s home.
Again, the embrace of such laws by the Irish is crushingly ironic. Frank Ryan, who fought against the treaty, spoke for many radicals in declaring “as long as we have fists and boots, there will be no free speech for traitors.” Those anti-treaty forces rejected the views of free speech that long defined Western nations. Now, Ireland is declaring “no free speech for haters” and assumes the authority to define who are haters and who are not.
The Irish people struggled for generations for equality and freedom. To now pick up the mantle of suppressing viewpoints is to make of mockery of the long struggle.
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
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