At the time of writing, the Incitement to Violence or Hatred and Hate Offences Bill 2022 is making its way through the Oireachtas. The chief aim is to control certain types of speech and thought. But free speech cannot be just for the virtuous, the well-intentioned and the polite, and so hate speech laws, however well-intentioned they may be, are, in the end, patronising and infantilising. They are unfit for purpose in any society that purports to be liberal and to value free speech.
Let’s go through the Bill in a bit of detail before commenting further.
The legislation is intended to give effect to a Framework Decision of the EU Council by amending Irish law relating to “the incitement of violence or hatred against a person or a group of persons on account of certain characteristics” (race; colour; nationality; religion; national or ethnic origin; descent; gender; sex characteristics; sexual orientation; and disability), and to “provide for certain offences aggravated by hatred” in various existent Acts. (It also provides for offences of “condoning, denying or grossly trivialising genocide, war crimes, crimes against humanity and crimes against peace.”)
The Bill sets out to criminalise certain forms of speech (hate speech), and also to provide more severe punishments for acts that are already criminal (hate crimes). Though they are conceptually distinct, it is easy to conflate hate speech and hate crime, so it is perhaps worth emphasising that whereas hate speech laws criminalise forms of speech just as such, hate crime laws increase the penalties for conduct that is already criminal. Despite their differences, however, both types of law attempt to control speech and, with it, thought.
According to the Bill, you’ll be guilty of an offence if you communicate, or behave publicly, in a manner likely to incite violence or hatred against a possessor of a protected characteristic, with the intent to incite, or being reckless as to the inciting of, such violence or hatred. It should be noted that your communication or behaviour doesn’t actually have to have the effect of inciting violence or hatred.
You will also be guilty of an offence if you prepare or have in your possession material likely to incite violence or ‘hatred’ against a possessor of a protected characteristic, with a view to its publication, or prepare or possess such material with intent to incite, or being ‘reckless’ as to its inciting, such violence or hatred.
There are defences that may be employed against a charge. These include: (a) reasonable and genuine contributions to literary, artistic, political, scientific, religious or academic discourse; (b) absolutely privileged statements; (c) material necessary for lawful purposes; and (d) material or behaviour involving discussion or criticism of matters related to a protected characteristic.
Some points worth noting about the Hate Speech sections of the Bill are: 1. the bundling together of ‘violence’ and ‘hatred’—inciting to violence is one thing; inciting to hatred is quite another, and linking them in this way is distinctly unhelpful; 2. taking public behaviour as potentially instantiating incitement to violence or hatred; 3. the legal irrelevance of actually inciting violence or hatred, in contrast to the sufficiency of likelihood to incite violence or hatred; 4. the sufficiency of recklessness for mens rea (the mental element of a crime); and 5. making it an offence to prepare or possess material likely to incite violence or hatred—just how is this to be policed?
A hate crime is an act, already criminal, that is deemed to be motivated by hate against someone who possesses one of the protected characteristics. It should be immediately obvious that punishing <crime X + hate> more severely than <crime X> alone, makes the hate in <crime X + hate> the element that attracts the greater punishment, and, since hate is a mental attitude, what the law is punishing by that extra element are the thoughts of the criminal. Hate crime is thought crime.
In their book Hate Crime: Criminal Law and Identity Politics, James Jacobs and Kimberly Potter remark, “Hate crime laws explicitly seek to punish people for having bigoted beliefs … It would appear that the only additional purpose in punishing more severely those who commit a bias crime is to provide extra punishment based on the offender’s politically incorrect opinions and viewpoints.”
Moreover, a hate crime is directed against Tom or Harriet, not as individuals, but as representing certain identifiable groups. In punishing the thoughts of criminals (hatred) when directed at such groups, hate laws are not only thoughts crimes, but are also a manifestation of identity politics.
In general, hate speech crimes and hate crimes are demanded by certain minority groups as recognition of their special victim status, and they are provided by politicians for political reasons, including the attractive and cost-free benefit to those politicians of signalling their superior virtues.
Hate speech/hate crime laws implant considerations of race, gender (whatever that might be—the Bill doesn’t tell us!), ethnic origin, and so on, right into the heart of the law. It is not obvious that delineating sections of the population as permanent victims with a claim to special consideration will promote the idea that justice is and ought to be blind.
Nor is it obvious that hate speech/hate crime laws are effective; they may in fact, in certain circumstances, even be counter-productive! The argument that speech laws can be counter-productive is made by Nadine Strossen who points out in her book Hate, Why We Should Resist It with Free Speech, not Censorship that hate-speech laws can end up targeting the very minority groups such laws purport to protect. “In 2010,” she writes, “Amnesty International and Reporters Without Borders complained that in Kyrgyzstan a prominent journalist who is a member of the Uzbek minority, and the Uzbek newspaper he edited, were baselessly charged with ‘inciting ethnic hatred’ due to their reporting on conflicts between Uzbeks and the Majority Kyrgyz.” A knife can cut the hand of the guilty and the innocent alike.
Hatred is an emotion. Unless it turns into objectively evil and manifest acts of injustice or cruelty, its expression should be controlled by social norms, and not by law.
Gerard Casey is Professor Emeritus of Philosophy, University College Dublin.