Sarah Harte: Rationale behind hate speech bill is sound but it needs to define what ‘hate’ is

The erosion of rights previously understood in liberal democracies was well underway before the horrific Israel-Hamas battle. The situation is further complicated by the fact that antisemitism has exploded. What’s become obvious is that antisemitism has always been lurking in the undergrowth, but it is not mutually exclusive from discrimination towards other groups. Discrimination is discrimination.

Protecting free speech without condoning hate speech has always been difficult. Right now, it’s a Herculean task. The problem is that, in protecting the rights of one group, for example, the Jewish community, you cannot trample the rights of another group — in this case, Palestinians or those who may be pro-Palestinian. Or, more generally, anyone who wants to say things that others might consider contentious or even demeaning from their subjective viewpoint.

The right to freedom of expression (or free speech) is protected under Article 40.6 of the Irish Constitution, and under the European Convention of Human Rights but there are limits to the rights. A current bill in front of the Seanad designed to prevent hate speech potentially curbs free speech and bears examination.

But first, what is the evidence that free speech and the right to protest are getting bashed?

Braverman’s attitude to a recent pro-Palestine march on Remembrance Day was alarming. She wrote to chief constables in England and Wales telling them that waving the Palestinian flag at a march might be a criminal offence. She also described pro-Palestine protesters as “hate marchers”.

SDLP leader Colum Eastwood said of Braverman’s remarks: “It’s honestly like reading a pound shop Enoch Powell piece.”

Despite severe public pressure, Metropolitan Police chief Mark Rowley allowed the march to proceed, saying it was not evident that the threat to public order met the threshold to ban the protest.

The requirement to maintain public order is another limit to the freedom to protest. As is preventing hate speech or speech that could incite hatred towards a group of people because of their race, colour, nationality, religion, ethnic or national origins, or sexual orientation. 

Freedom of speech and the right to protest are being curbed in several countries with pro-Palestinian protests strongly discouraged or banned. In France, the Council of State recently ruled that demonstrations in support of Palestinians could not be banned outright but must be considered on a case-by-case basis.

In Germany, protests were reportedly banned in Hamburg. In Berlin, schools were authorised to ban students from wearing the keffiyeh or displaying the Palestinian flag and many protests were banned outright in Berlin due to a concern that, if they went ahead, they would incite people to hatred.

Did the German authorities go too far? 

Critics say that they have violated civil liberties but the right to free speech is not as strongly guaranteed in Germany as it would be in Ireland or Britain because of the Holocaust. The balancing act between competing rights in Germany has a particularly fraught resonance.

As Germany’s antisemitism commissioner, Felix Klein, reportedly said: “Antisemitism is bad anywhere, but it has this other dimension which it doesn’t have in any other country.”

Yet there remains a conundrum of sorts for the Germans. If they go too far in clamping down on the right to protest, they risk eroding the rights of pro-Palestine protesters and potentially trapping themselves in grave moral and political errors.

As pointed out in the leader column in this newspaper recently: “The lesson from the past is that, at the start of the 1920s, nearly 80% of Germans were strongly in favour of liberal democracy. Yet within 15 years a largely progressive, highly civilised, modern country had turned into a brutal dictatorship.”

That’s the thing — appalling stuff happens if you don’t protect fundamental rights in a democracy.

The free speech war being fought on American campuses is not new but has intensified since the war.

Last week, a Jewish civil rights organisation filed civil rights complaints against Penn University and Wellesley College for allowing antisemitism “to run rampant”, and George Washington University suspending the Students for Justice in Palestine group for projecting the slogan ‘Glory to our martyrs’ on the library.

However, one complaint was that a Palestinian writers’ conference had been allowed to take place at the University of Pennsylvania a month before the war.

Would allowing Palestinian writers to gather be likely to lead to hate speech and engender violence against Jewish people? On the face of it, it seems not, and it is dangerous territory. 

This month, The American Civil Liberties Union (ACLU) warned that politically-motivated policing of free speech on campus would “destroy the foundation on which academic communities are built”.

So, what about our hate speech bill? The rationale for the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 currently before the Seanad is sound. An Garda Síochána reported that hate crimes had increased by 29% in 2022 compared to the year before. 

The issue is what the bill lacks. 

There are safeguards for freedom of expression protecting reasonable and genuine contributions to academic discourse, so if Palestinians or Jewish writers were to get together in our universities they should be fine unless, obviously, what they said was explicitly hateful. But the question is what is explicitly hateful? The bill fails to define hate speech or hate crime.

To take one current example of why this might be problematic: Many Jewish people consider any criticism of Israel to be inherently antisemitic, while many of us fundamentally disagree. How would the new bill deal with this scenario? Is it a hate crime against people of Jewish descent to critique Israel?

We need clarity on what hate speech consists of, particularly given the act allows for up to a five-year prison sentence for committing a hate crime. In not defining a hate act under the bill, we leave it up to individual judges to decide.

While judges always face choices in evolving principles of law, they shouldn’t be making law, and not on something important like this.

We should revisit our bill. Our challenge is using the law to prevent and prosecute antisemitic hatred — or Islamophobia or other hate speech — but not in a way that unduly curbs free speech or politicises it. As the last few weeks have demonstrated, it’s at highly febrile times that bad actors exploit sensitivities, mistakes get made, and democratic backsliding happens.