David Quinn
Laws that set out to target hate can have unintended consequences for free speech. Photo: CNS The chilling effect on free speech of moves to push legislation should be obvious, writes David Quinn
The Government is aiming to pass a new law against so-called ‘hate crimes’. It looks certain to be passed because few voices have been raised in opposition to it. On the contrary, it seems to have general assent in the Dáil. When Scotland passed similar legislation recently, groups as diverse as the Church and the National Secular Society expressed serious concerns about the implications for free speech, but here so far, barely a dissenting voice has been heard. That seems to be how we do things in Ireland.
The Scottish legislation created an offence of possessing inflammatory material”
In a statement issued last summer, Scotland’s bishops said they were worried that passages from the Bible or parts of the Catechism could breach the planned law there.
As an example, the statement pointed out, “The Catholic Church’s understanding of the human person, including the belief that sex and gender are not fluid and changeable, could fall foul of the new law.”
The Scottish legislation created an offence of possessing inflammatory material. Would the recent document from the Vatican’s Congregation for the Doctrine of the Faith which said same-sex unions cannot be blessed because the Church cannot bless sin, count as ‘inflammatory material’?
In Ireland, there already is a law against incitement to hatred, but the Government believes it does not go far enough. The proposed new Criminal Justice (Hate Crime) Bill, will go much further.
It proposes two categories of offence. One is where a crime such as assault is motivated by hate against a particular group, say an ethnic minority. In that case, the crime would be judged to be more serious and could carry a tougher sentence.
Second category
The second category targets speech and written material. This second category is more worrying because of the free speech implications.
Overall, the law will create a number of ‘protected characteristics’. These are race; skin colour; nationality; religion, ethnic or national origin; sexual orientation; gender; or disability.
The bill will make it an offence to communicate anything to the public that could incite hatred of one of these groups.
The offending person does not actually have to set out to cause hatred. It’s enough that they be aware that there is a risk this might happen.
‘Hatred’ for the purposes of the law, is defined as “detestation, significant ill will or hostility, of a magnitude likely to lead to harm or unlawful discrimination against a person or group of people due to their association with a protected characteristic”.
It is proposed that a defence against a charge of hatred will be that the material under investigation “consisted solely of a reasonable and genuine contribution to literary, artistic, political, scientific or academic discourse”.
In a recent article for this newspaper, I said that the day might come when Catholic teaching across a whole range of issues, but especially regarding human sexuality, might fall foul of Irish law.
We cannot tell in advance how such a case would progress, but it seems fair to say right now that such a scenario could easily unfold when this new law passes”
The teaching that marriage can only be between a man and a woman is one example. Another is the teaching that to be a man or a woman, you must be biologically male or female, and that it is not simply a matter of how you see yourself.
The teaching that it is immoral to live together outside marriage, or that using artificial contraception is wrong, might also be seen as types of ‘hatred’.
Could someone say that these teachings run the risk of stirring up ‘hatred’ against cohabiting couples or those who use contraception?
Could a judge decide that these teachings do not make a “reasonable and genuine contribution” to public debate?
What will happen to many Muslim or Jewish teachings?
Outside of the religious sphere, what might happen to strong statements against religion? Prof. Richard Dawkins, the world-famous atheist, has previously said that teaching children religion is a form of child abuse.
He has called Islam “the greatest force for evil in the world today”. He was accused of ‘Islamophobia’ in response.
Hate
I asked the Department of Justice whether Prof. Dawkins’ statement about Islam might be considered a form of ‘hate’ under the proposed legislation, they said, “reasonable and genuine contribution to political discourse, art or science will be protected”. But what might a judge deem ‘reasonable’ or ‘genuine’?
We can easily imagine a situation whereby someone like Richard Dawkins might make a statement such as the one about Islam, and another person, perhaps a Muslim, perhaps not, would try to have him charged with a hate crime.
We cannot tell in advance how such a case would progress, but it seems fair to say right now that such a scenario could easily unfold when this new law passes.
The chilling effect on free speech should be obvious.
It would be far better if instead we passed something like Britain’s Malicious Communications Act which protects individuals from being targeted by campaigns of vilification such as what happened to Katie Ascough when she was hounded out of her post as head of the students’ union at UCD because of her pro-life stance.
But when you are protecting whole groups, and not simply individuals from perceived ‘hate’, then it inevitably weakens free speech.
Debate
At a minimum, we need to have a broad-ranging debate about this proposed new law. The bishops ought to seek a legal opinion about its implications. They should consult with their counterparts in Scotland.