Ireland now has a special envoy for freedom of expression. Almost all the attention so far has focused on the alleged cronyism involved in appointing Katherine Zappone, a children’s minister in the previous government, to the United Nations role. What’s arguably more pertinent is whether she is the right person for the job. What extent of free speech does she believe in?
Defending her appointment, the finance minister Paschal Donohoe said that because of her work in the field of human rights, Zappone is “eminently qualified” for the role. However, looking back through her public record, you will find that while she has had plenty to say about abortion rights, LGBT issues and equality in general — about free speech itself? Not so much. When she has weighed in, it has been to call on governments to “put in place effective legislative and regulatory frameworks” to deal with “messages of hate” on social media.
The government is currently in the process of strengthening the state’s laws against hate, which is a very elastic term. Define it too broadly and you can easily end up curbing speech that is merely offensive. We already have a 1989 law that outlaws incitement to hatred, but the government believes it’s not strong enough because almost no one has ever been prosecuted.
The bill being drafted seeks to make amends. The General Scheme of the Criminal Justice (Hate Crime) Bill 2021, published in April, defines hatred 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”. These include race, religion, sexual orientation and gender.
A person can be guilty of an offence if they intend to incite hatred or are “reckless” about the likely effect of their words. But how will that work? If a prominent individual, a TD say, criticises militant Islam and later the same day a brick is thrown through the window of a mosque, could the politician be held responsible and found guilty of hate?
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Suppose you refuse to use a person’s preferred gender pronoun, or publicly declare that you do not believe in pregnant men. Are you spreading significant ill will or hostility against a protected group?
In 2018, the comedy writer Graham Linehan, who is reliably liberal on almost every issue, was visited by police at his home in Britain because he would not use a transgender activist’s new gender pronoun. The activist reported Linehan to the police for transphobia and he received a verbal warning. Could that happen here under the new law?
Two years after the police warned him, Twitter permanently suspended Linehan’s account, which had more than 600,000 followers, because the Father Ted creator had tweeted the message “men aren’t women tho”, to the Women’s Institute, which supports trans rights. One wonders whether Zappone, who is down on messages of hate, would agree with the action taken by the police and Twitter.
Ireland’s electoral laws are also under review. An Oireachtas committee is doing pre-legislative scrutiny on the Electoral Reform Bill 2020 and is due to produce a report outlining its thoughts. One of the recommendations made in an early draft is that there be sanctions for political parties or election candidates involved in “discriminatory actions or rhetoric”, whatever that may mean.
The Electoral Reform Bill, if passed, would lead to the setting up of an Electoral Commission which would oversee the registration of political parties, and do work currently carried out by the Referendum Commission and other bodies. But the National Women’s Council of Ireland (NWCI) wants the Electoral Commission to, essentially, police what is said in election campaigns. The Irish Traveller Movement has made a similar call.
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Again, one wonders what this would mean in practice. During the 2018 presidential election, the independent candidate Peter Casey sparked uproar when he said that Travellers are “basically people camping in other people’s land”, and accused the community of not paying “their fair share of taxes in society”. Casey claimed they should not be recognised as an ethnic minority.
This was certainly inflammatory stuff. But would Casey, who went on to win almost a quarter of the vote, be guilty of hate under the proposed new law? He was accused of racism by the solicitor David Joyce, a member of the Traveller community and of the Irish Human Rights and Equality Commission, who said Casey should withdraw from the presidential election. Would an Electoral Commission with the sort of powers that the NWCI envisages be able to force him off the ballot paper? Hopefully, that would be unconstitutional. But a powerful commission could censure him in some other way.
Verona Murphy also found herself in trouble over her views when she ran for Fine Gael in the Wexford by-election in 2019, because she declared that some asylum-seekers had to be “deprogrammed” on arrival and that their ranks may have been infiltrated by Isis. She was deselected as a general election candidate by Fine Gael but ran as an independent and won a seat.
If a candidate makes comments similar to Murphy’s in a future election, will they land themselves in hot water with the proposed Electoral Commission? In fact, such a candidate might find themselves in trouble twice over, both from the revamped Electoral Act and the new hate crime law.
Charlie Flanagan, a Fine Gael TD and former minister for justice, has said that he opposes giving an Electoral Commission powers to censure or penalise candidates because it would be “a recipe for chaos and disarray during already heated campaigns”, and a “nightmare” to enforce. He’s right.
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In Ireland, we are seeing increased efforts to curtail freedom of expression. In addition to legislative proposals, we have cancel culture, whereby people can be denied speaking opportunities at universities and elsewhere for having the “wrong” views. We are moving into territory where almost anything that violates left-wing orthodoxy can be branded as hate speech.
I’d love to know what Zappone thinks about all this. She really needs to tell us. You should not have an envoy for freedom of expression at the UN who appears to have no record of a publicly stated philosophy in favour of it, and who may even favour curbs. Then again, maybe she is the perfect fit for a government that supports a more censorious environment in Ireland and is preparing legislation to match.
