In severalposts over the last few months I've alluded to a piece of legislation making its way through the Irish houses of parliament. The Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 (widely referred to as the “hate speech” bill) was a bill which would provide the government with sweeping powers to arrest and convict individuals they suspected of “stirring up hatred” against members of communities defined by one or more protected characteristics.1 This bill has been enormously controversial throughout its entire lifecycle, with precisely 40% of pollsters in favour and 40% opposed, and no less than Elon Musk pledging to pay the legal fees of anyone prosecuted under it in the event that it passed. It was first proposed in October 2022, passed in the Dáil2 in April 2023 after several rounds of amendments, and then made its way to the Seanad3, where it languished for well over a year, being neither approved nor rejected.
What an unmitigated joy and relief it was two weeks ago, to learn that the bill has officially been shelved by Ireland’s Minister of Justice, Helen McEntee. This specific bill has proved something of an albatross around the government’s neck for months, and not even a change in Taoiseach4 was sufficient to kill it. But a general election is due to be held no later than March of next year, and the incumbent Fianna Fáil-Fine Gael coalition government now finds itself in the unenviable position of needing to hastily course-correct just in time to appeal to the median voter (the budget announcement of two weeks ago, with its generous salary tax cuts, is part of the same drive). After the national embarrassment of a referendum rejected by fully 70% of the electorate, the government is finally cottoning on to the fact that its woke agenda, while enormously popular among progressive think tanks, NGOs and media outlets, is absolute cyanide at the polling station. Of course an effort to save face must be made, and Minister McEntee has committed to still pushing for hate crime legislation in spite of dropping the hate speech bill itself. But it’s also too soon to be doing victory laps, as McEntee has promised to come back for another bite at the apple if she’s reelected.
If you live in Ireland, you will likely have heard plenty of claims about what this bill entails: that previous legislation of this type proved ineffective at its stated aims, and so more robust legislation is required; or that the existing incitement to hatred legislation was drafted in a pre-digital, pre-social media era, and that this bill represents a simple but necessary “modernization” of existing legislation. (“Modernization” is the preferred term among the pathologically oikophobic East Yanks making up Fine Gael’s rank and file to describe the changes they wish to bring to bear on Irish society, who seem wholly unable to conceive that one could be opposed to such changes without being a parochial cattle farmer who takes his marching orders from Rome.) Given that there’s a significant possibility that this bill could be resurrected next year, understanding exactly what it entails remains as urgent as ever, so I would like to take this opportunity to explain what it proposed to do, in plain, unambiguous language. I will be quoting at length from the text of the bill which was approved by the Dáil in April of last year.
The first few examples of what constitutes an offense under this legislation are alarming enough. As outlined in articles 7-9, the bill would make it a criminal offense if a person “communicates material to the public or a section of the public… that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics”; if a person “communicates material to the public or a section of the public… that condones, denies or grossly trivialises [sic]— (i) genocide, (ii) a crime against humanity, (iii) a war crime”; even if no actual hatred or violence resulted as a result of this communication. These offenses would be punishable by a maximum of 5 years in prison or twelve months in prison, respectively.
It’s article 10 where things get really scary, however (bolding mine):
Subject to subsections (2) and (3) and section 11, a person shall be guilty of an offence under this section if the person—
(a) prepares or possesses material that is likely to incite violence or hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics with a view to the material being communicated to the public or a section of the public, whether by himself or herself or another person
(b) prepares or possesses such material with intent to incite violence or hatred against such a person or group of persons on account of those characteristics or any of those characteristics or being reckless as to whether such violence or hatred is thereby incited.
Creating or owning material “likely to incite violence or hatred” against protected groups would be a criminal offense punishable by up to two years in prison, even if this material is never distributed. It’s not merely a crime to verbally express racist thoughts in public, or make sexist jokes on Twitter: writing something racist in a Word document on a private desktop computer to which you’re the only person with access and which isn’t even connected to the Internet would also constitute a criminal offense.
Actually, it’s even worse than that. Did you know that when someone sends you an image on WhatsApp, by default that image is automatically saved down to the internal storage of your phone? This is true even of WhatsApp chats that you’ve muted or archived. This means that every image sent to you on WhatsApp is hence “in your possession”, by virtue of being saved on a device which belongs to you - the fact that you haven’t sent that image on to anyone else is irrelevant. Think about how many group chats you’ve been added to that you’ve had muted for months, in which ex-colleagues or old GAA teammates you didn’t even get along with at the time are constantly trying to one-up each other by sharing tasteless memes about the topic du jour. Think about your family group chat, to which your annoying uncle sends crudely drawn newspaper cartoons about “the old ball and chain”, amusing to no one but himself. It doesn’t matter that you didn’t create any of these images, that you didn’t forward these images on to anyone else, that you don’t agree with the contents of any of these images and actually find them crass and offensive - they’re saved to your phone, which means they’re in your possession, which means you’re guilty of an offense punishable by up to a year in prison.
Somehow, it gets worse. The bill also explains how search warrants are to be executed. If a judge was to be presented with compelling evidence that a given person is guilty of one of the above offenses, they can issue Garda Síochána5 with a search warrant, which must be executed within a week (bolding mine):
(2) A search warrant under this section shall be expressed, and shall operate, to authorise [sic] a named member…
(a) to enter, at any time within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant,
(b) to search it and any persons found at that place, and
(c) to examine, seize and retain anything found at that place, or anything found in possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an offence under section 7, 8 or 10, as the case may be.
(4) A member acting under the authority of a search warrant under this section may—
(a) operate any computer at the place that is being searched or cause any such computer to be operated by a person accompanying the member for that purpose, and
(b) require any person at that place who appears to the member to have lawful access to the information in any such computer—
(i) to give to the member any password necessary to operate it and any encryption key or code necessary to unencrypt the information accessible by the computer,
(ii) otherwise to enable the member to examine the information accessible by the computer in a form in which the information is visible and legible, or
(iii) to produce the information in a form in which it can be removed and in which it is, or can be made, visible and legible.
(7) A person who—
(a) obstructs or attempts to obstruct a member acting under the authority of a search warrant under this section,
(b) fails to comply with a requirement under subsection (4)(b) or (5), or (c) in relation to a requirement under subsection (5), gives a name and address or provides information which the member has reasonable cause for believing is false or misleading in a material respect,
shall be guilty of an offence.
(8) A person guilty of an offence under subsection (7) shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or both.
Let’s imagine for a moment that you are sympathetic to the stated aims of this bill, and you sincerely believe that far-right people spewing vitriol about immigrants online really ought to be locked up. Imagine you share an apartment with a flatmate called Joe, a shy, quiet guy who keeps to himself. You don’t consider Joe a personal friend, you don’t know much about him, and you don’t even eat your meals together - but he’s neat and tidy and pays the rent on time, so you have no complaints. Completely unbeknownst to you, Joe operates a pseudonymous Twitter account in which he expresses opinions about immigration to Ireland which some people consider offensive. Unfortunately for Joe, he’s been a bit careless about his digital footprint, and an anti-racist activist on Twitter was able to connect the dots and figure out his real name, which they pass on to the guards. The guards in turn determine his residence and request a search warrant, which is granted.
One evening you’re home alone (as Joe is away on holiday) when you hear a pounding at the door. Fearful that the guards will kick the door down (which they are perfectly entitled to do), you open the door. The guards explain they have a warrant to search your apartment, as they suspect that Joe (named on the warrant) is guilty of incitement to hatred. You explain that Joe is away and they should call back later. The guards don’t care, and demand that you present your wallet/handbag, phone and laptop to them so that they can search them for hateful material. You retort that this is ridiculous - you aren’t even named on the search warrant, you barely know Joe, Joe has never touched your phone or your laptop (or vice versa). The guards don’t care, and again demand that you surrender your phone, laptop, and the PINs to both. At this juncture you have the choice:
Grant them access. The guards can now view all of your private documents, emails, messages and images. This would be invasive and potentially embarrassing enough, even if they don’t find any material they deem likely to promote hatred or incitement to violence against minorities.
But of course, there’s every chance they might find an edgy meme that your annoying uncle sent to the family group chat which you didn’t realize was saved on to your phone - so they promptly arrest you, you’re prosecuted for incitement to hatred and sentenced to a year in prison.
Refuse to grant them access. For refusing to hand over the PINs to your phone and laptop, the guards promptly arrest you, you’re prosecuted for obstructing justice, and you’re sentenced to a year in prison.
I see no reason, none, why the above scenario could not have transpired exactly as described above if this bill had passed according to the wording approved by the Dáil.
Now perhaps you’ll say to me - come on, that’s ridiculous. Maybe they want to enact this bill, but they won’t actually use it - it’s only being enacted as a deterrent, and maybe there’ll be one prosecution every five years for extremely persistent neo-Nazis literally waving 14/88 flags outside the synagogue in Terenure. Ordinary people with a dark sense of humour have nothing to fear from this bill.
I wouldn’t be so confident. For an example very close to home, consider section 127 of the UK’s Communications Act 2003, which makes it illegal to intentionally “cause annoyance, inconvenience or needless anxiety to another” with online posts, on which it appears Ireland’s “hate speech” bill took at least some inspiration. As reported by the Times, at least 2,315 people were arrested under this section of the act in 2014, a figure which shot up to 3,395 in 2023. And before you say that all of these people were let off with a warning, 1,399 people were convicted under this act last year - and this was under a Tory government!6 Scale these figures down to the size of the Irish population, and ceteris paribus you would expect 253 arrests and 104 convictions in Ireland every year. In a period in which the Irish prison service is massively underresourced and ovecrowded, with the prison population consistently in excess of the total bed capacity by as much as 10-12% throughout the year - the government now wants to throw as many as another hundred people in jail every year for the crime of making tasteless jokes in the privacy of their own homes.
Or you’ll say, sure, the bill is written in an extremely sweeping fashion, but it’ll never actually be used to lock people up just for making a joke in poor taste. They’re keeping the wording expansive only so that genuine racists and far-right nutters won’t be able to weasel out of a conviction on a technicality, but the genuine racists and far-night nutters are the only people who’ll be targeted by it: otherwise decent, law-abiding citizens will be left alone.
I’m having none of it. Look at past efforts to control speech and behaviour and/or invade citizenry’s privacy from this century alone, and the apology outlined above pattern-matches to none of them. “Hate speech” legislation in France was adapted into ag-gag legislation so quickly it must have made those poor Parisians’ beret-clad heads spin (“stigmatizing agricultural activities” is certainly a colorful way to refer to any and all criticisms of factory farming). If you made a list of all the activities which could be reasonably characterized as aiding or abetting terrorism, I very much doubt “operating a fan website about the TV show Stargate SG-1” would make the top 100 such entries, or even the top 1,000: that didn’t stop the US government invoking the USA PATRIOT Act (enacted just six weeks after 9/11, ostensibly to combat terrorism) to subpoena the financial records of the unfortunate webmaster in question. When governments are afforded sweeping powers to invade the privacy of their citizenry, they tend to put them to full use. Consider the aforementioned section 127 of the Communications Act 2003 - do you think the only people convicted under it were outspoken neo-Nazis and white supremacists? Let’s see:
A 20-year-old builder has been ordered to pay more than £500 after he drew a penis on a police officer's face using Snapchat.
Jordan Barrack secretly took the photo on his mobile phone while being interviewed by an officer at Sleaford Police Station, Lincoln.
He then drew two penises on the picture using Snapchat, one over the officer PC Charles Harris' face, before sending it to some friends and posting it on Facebook.
…
He pleaded guilty at Lincoln Magistrates’ Court to 'posting a grossly offensive, obscene picture on a social media site' and was ordered to pay £400 in compensation.
The youngster, who lives with his parents, had to pay an additional £85 of costs and a £60 victim surcharge, and was ordered to serve a 12 month community order with 40 hours of unpaid work.
…
"They confiscated my phone at the time and I still haven't got it back over five months later even though the case is finished now."7
Editorial aside: this image is hilarious.
As I've gone out of my way to outline above, criminal offenses are defined so broadly under this bill that you would be hard pressed to find someone who isn't guilty of one of them - after all, who among us hasn't been sent an edgy or offensive meme by a relative, work colleague, or friend of a friend? Some apologists for this bill will use that very fact as a point in its defense: they think there's some kind of “safety in numbers” effect, wherein a bill which makes a criminal of just about everyone will quickly be exposed as a farce and abolished. But this defense rests entirely on the touchingly naïve assumption that the government (or more specifically, the director of public prosecutions) would have the slightest interest in enforcing this law in an impartial manner. On the contrary: a crime which is defined in such a way that everyone is guilty of it is an absolute godsend to a cabinet looking to silence or intimidate its opponents. Selective enforcement is the name of the game, and you can be certain that the DPP would come down like a tonne of bricks on anyone critical of the establishment, but look the other way when people who toe the party line crack offensive jokes or say hateful things.
Hell, even if they're unable to secure a conviction, being dragged through the courts is exhausting, expensive and humiliating enough. If you criticise the government, and then have to endure the embarrassment of the guards rifling through your personal effects and private documents for hours, getting arrested and charged with possessing materials which could be used for incitement to hatred, having to waste hundreds of man-hours and tens of thousands of euros mounting a legal defense before showing up for your day in court - even if you win, even if the state agrees to pay your legal fees (which they probably wouldn't), do you think you'll be as strongly inclined to criticise the government going forward? No one wants to go through that grief even once, never mind twice. The process is the punishment, and “hate speech” legislation can here function as the criminal justice equivalent of a SLAPP lawsuit. Don’t believe for a second that this has anything to do with combatting “hate” or “prejudice” or whatever: this is the iron fist in the rainbow glove all over again.
Apologists for invasive, authoritarian legislation of this type sometimes fall back on that old saw: “if you're innocent, you've nothing to worry about”, or as one commenter on the r/ireland subreddit put it, “just don't be a cunt and you'll be fine”. Putting aside the question of whether it's appropriate or proportionate to jail someone for a year or longer for the crime of “being a cunt”, what I've tried to do in this article is emphasise that this argument simply does not apply in the case of this specific bill. Whether by accident or by design, collateral damage and guilt-by-association are built into this bill from its foundations. If enacted, it will be entirely possible to go one's entire life without expressing a single hateful opinion or tasteless joke, and still be convicted of a criminal offense. All because you had the poor fortune to live in the same house as someone who has done one or more of these things, or because someone sent you a tasteless image on WhatsApp and you didn’t realise in time to delete it.
This government spent most of 2020-21 urging its populace to practise social distancing and limit their social contacts for fear of spreading a virus. Now they are doing the same thing, only for “viruses” of the mind. Think about the kinds of behaviour being incentivised, when people realise that they could be found guilty of a criminal offense simply because someone else (even someone they don't know, who they've never met) sent a crass image to their phone. The chilling effects are predictable and inevitable: people will steadily begin to avoid giving out their phone numbers (even to potentially valuable business contacts, or potential friends or romantic partners); will avoid joining WhatsApp groups unless they are certain that none of the members of that group have offensive opinions (something they can never be certain of, obviously); and will begin to curtail their documentable interactions with anyone without the “correct” politics (baldly counter to the basic goals and values of a pluralistic society). Ireland is already the loneliest country in Europe - how could such a situation not be exacerbated by this bill, if Irish people are reluctant to give their phone numbers to acquaintances out of an entirely legitimate fear that doing so will put them at increased risk of arrest and prosecution?
Meanwhile, anyone with unorthodox politics or a dark sense of humour will find themselves left out in the cold, their friends having blocked them on WhatsApp for fear of being convicted by association. Confused and hurt by rejection from all angles, they will retreat into online echo chambers of like-minded individuals, in which their worst tendencies will be amplified beyond all proportion. Far from serving as an effective antidote to far-right radicalisation, this bill is a recipe for it.
Assuming you reside in Ireland, I’m not going to tell you how to vote in the next general election - that’s entirely your business. But before you cast your vote, I’m pleading with you to consider this. Listed below are the names of the TDs who voted in favour of this bill when it passed in the Dáil.8 If you are considering voting for any of them, please bear this in mind: these people know that, as a consequence of this bill, a member of the public, just like you, could be sent to prison for a year for refusing to disclose the PIN to their phone to a police officer, without having ever been named on a search warrant or having been personally accused of incitement to hatred. They know that a member of the public could be sent to prison for a year merely for possessing an image that somebody might find offensive - even if they didn’t create it, even if they never sent it to anybody else, even if they literally didn’t know it was in their possession (because it was sent to a WhatsApp group of which they are a member, but which they’ve had muted for months). They know this for a fact, and they don’t care: they are completely fine with it. And if the opportunity presents itself, they’ll vote for it again, as Minister McEntee surely expects them to do.
Maybe knowing this fact about these politicians isn’t a deal-breaker for you. But it is for me, and I don't even care that this bill hasn’t been enacted (yet): by voting for it, these TDs have told me everything I need to know about them and their respect for ordinary people and their civil liberties. To keep myself honest, I am making a public pledge: I will never give any of the names which appear on the list below any preference in any ballot paper I fill out until the day I die, unless the politician in question gives a public apology for voting for this bill and expressly admits that they personally were wrong to have done so. If they canvass me, I will ask them point-blank why they think it’s appropriate to arrest someone because someone else sent them an offensive meme. If the only candidates running in my constituency are candidates who voted in favour of this tyrannical, authoritarian monstrosity and express no remorse about having done so, I will abstain.
Andrews, Chris
Berry, Cathal
Brady, John
Brophy, Colm
Browne, James
Browne, Martin
Bruton, Richard
Buckley, Pat
Burke, Colm
Butler, Mary
Byrne, Thomas
Cahill, Jackie
Cairns, Holly
Calleary, Dara
Canney, Seán
Cannon, Ciarán
Carroll MacNeill, Jennifer
Carthy, Matt
Chambers, Jack
Clarke, Sorca
Collins, Niall
Conway-Walsh, Rose
Costello, Patrick
Coveney, Simon
Cowen, Barry
Cronin, Réada
Crowe, Cathal
Crowe, Seán
Daly, Pa
Devlin, Cormac
Dillon, Alan
Donnelly, Paul
Donnelly, Stephen
Donohoe, Paschal
Duffy, Francis Noel
Durkan, Bernard J
Ellis, Dessie
English, Damien
Farrell, Alan
Farrell, Mairéad
Feighan, Frankie
Flaherty, Joe
Flanagan, Charles
Fleming, Sean
Foley, Norma
Funchion, Kathleen
Gannon, Gary
Gould, Thomas
Griffin, Brendan
Guirke, Johnny
Haughey, Seán
Heydon, Martin
Higgins, Emer
Howlin, Brendan
Humphreys, Heather
Kehoe, Paul
Kenny, Martin
Kerrane, Claire
Lahart, John
Leddin, Brian
Lowry, Michael
Mac Lochlainn, Pádraig
Madigan, Josepha
Martin, Micheál
Matthews, Steven
McAuliffe, Paul
McConalogue, Charlie
McGrath, Michael
McGuinness, John
McHugh, Joe
Mitchell, Denise
Moynihan, Aindrias
Moynihan, Michael
Murnane O'Connor, Jennifer
Nash, Ged
Naughton, Hildegarde
Noonan, Malcolm
O'Brien, Darragh
O'Brien, Joe
O'Callaghan, Cian
O'Callaghan, Jim
O'Connor, James
O'Donnell, Kieran
O'Dowd, Fergus
O'Gorman, Roderic
O'Reilly, Louise
O'Rourke, Darren
O'Sullivan, Christopher
O'Sullivan, Pádraig
Ó Broin, Eoin
Ó Cathasaigh, Marc
Ó Cuív, Éamon
Ó Murchú, Ruairí
Ó Ríordáin, Aodhán
Ó Snodaigh, Aengus
Quinlivan, Maurice
Rabbitte, Anne
Richmond, Neale
Ring, Michael
Ryan, Eamon
Ryan, Patricia
Smith, Brendan
Smith, Duncan
Smyth, Ossian
Stanley, Brian
Stanton, David
Tully, Pauline
Varadkar, Leo
Ward, Mark
Whitmore, Jennifer
I hope for our sakes that Elon Musk’s coffers are as deep as everyone says they are.
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In the order listed in the text of the bill: race, colour, nationality, religion, national or ethnic origin, descent, gender, sex characteristics, sexual orientation, disability.
As pointed out by Greg Lukianoff, more people were arrested under this act in a two-year span than the total number of people arrested during that infamously repressive period in American history, the first Red Scare, even though the UK population in 2014-2015 was only 70% that of the US in 1920.
I wonder if the woke people defending legislation of this type, many of whom have “ACAB” (all cops are bastards) in their Twitter bios, are aware that it can and has been used to prosecute people for playfully teasing police officers.
And believe you me, I never foresaw finding myself in a position in which I’d have to give credit where credit’s due to Richard Boyd Barrett, Paul Murphy, Bríd Smith and the Healy-Raes of all people. Coalitions make strange bedfellows indeed.
