“The Ryans,” photo from Independent.ie.

An article in today’s Irish Times reports that the family has fled Ireland as a result of death threats and on-going harassment. Racists like O’Doherty and Justin Barrett have accused Lidl of promoting “globalism” and “multiculturalism” at the expense of the Irish “race,” which they believe will be victimized by the so-called “Great Replacement.”

Fiona Ryan and others have called upon the Irish government to enact comprehensive hate-crimes legislation in order to allow the gardaí to act against people who are stoking the racism and xenophobia that compelled the family to leave the country. Currently, hate speech in Ireland is governed by the Prohibition of Incitement to Hatred Act of 1989. Under this law:

“It shall be an offence for a person–(a) to publish or distribute written material, (b) to use words, behave or display written material–(i) in any place other than inside a private residence, or (ii) inside a private residence so that the words, behaviour or material are heard or seen by persons outside the residence–or (c) to distribute, show or play a recording of visual images or sounds, if the written material, words, behaviour, visual images or sounds…are threatening, abusive or insulting and are intended or…are likely to stir up hatred.”

And, further:

“A person guilty of an offence under [this act] shall be liable (a) on summary conviction, to a fine not exceeding £1,000, or to a term of imprisonment not exceeding 6 months, or to both, or (b) on conviction on indictment, to a fine not exceeding £10,000 or to imprisonment for a term not exceeding 2 years, or to both.”

In practice, this law has been invoked rarely: as of mid-2017, only five convictions have been recorded under this statute, out of 44 total prosecutions. Convictions are difficult to obtain because the law requires that the accused person know that the conduct for which s/he is being prosecuted was hateful and would incite hatred. Laws that have a mens rea (state of mind) requirement are inherently complicated because it is difficult to prove what a person knew or did not know. In rape cases, which rely on a “reasonable man” standard (don’t get me started on the patriarchal perspective written into this phrase, but it should be “reasonable person”) for whether the defendant knew the victim did not consent, convictions are notoriously difficult to secure.

It would seem to me, however, that Gemma O’Doherty cannot argue that she didn’t know her comments were hateful, but did she know that they would incite hatred?  She posted her comments on Twitter and on Facebook, two very public forums where she is followed by more than 32,000 people–so she cannot make the defence, allowed by the statute, that the comments were made in private and not intended for a wider audience. But did she intend to incite people to harass Fiona Ryan and her family? I’d say probably, but how can we prove what she intended when she wrote her racist screed? Maybe she just intended to provoke liberals with her nonsense about “globalism” and George Soros. Maybe she intended to whip up a mob of Internet trolls to drive this loving family out of Ireland. But, I would challenge even the most skilled Director of Public Prosecutions (DPP) to conclusively prove her motivations.

Hate-speech and hate-crime legislation are problematic because of this type of ambiguity. Unless a person says something to the effect of, “Go harass this family” or “Go out and kill purple people,” how can you prove incitement to hatred? Maybe the person has a diary that details his or her motivations, and the diary can be subpoenaed as evidence. Deborah Lipstadt’s legal team employed the diaries of notorious Holocaust-denier David Irving in her famous libel trial. Maybe Gemma O’Doherty also writes racist poetry in a notebook, or maybe she has daily affirmations posted around her house that say, “I can make people hate immigrants! I can do it!” A bloodsucker like O’Doherty might just have such evidence–but probably not.

On top of which, I oppose hate-speech and hate-crime legislation on principle. Is it a worse offence to assault someone because he is an immigrant or gay or Muslim than it is to assault someone because the offender wants to rob him? If you intentionally beat the hell out of someone, you have committed assault, regardless of your motivation for doing so. If we make the punishment more severe because the offender is a bigot, then we are punishing someone for what he or she thinks, and that is definitely a violation of free expression protections.

I think the Prohibition of Incitement to Hatred Act 1989 should stay on the books, and the DPP should prosecute offenders under this act if evidence can prove that the offender intentionally whipped up people to harass or commit violence against a person or group of people. But, Ireland doesn’t need any further hate-speech or hate-crime legislation.

Fiona Ryan and her family have received death threats. Clearly, death threats are illegal, regardless of the motivation behind them. The people who made the threats can and should be tracked down and prosecuted for that crime. Harassment is also a crime. People who are harassing this family should also be tracked down and prosecuted. Online platforms should permanently ban people who are using the platform to engage in harassment (and we can discuss the absurdity of Section 230 of the Communications Decency Act of 1996 in another post).

Ireland should also avail of its resources in order to combat xenophobia, Islamophobia, homophobia, misogyny, and other types of hatred through education and by using governmental resources to support oppressed groups. The government should not, however, begin legislating against particular types of speech. Ireland has a long history of censorship–mostly of sexual content and “blasphemy”–and few people want to return to that regime of “containment,” to use the term preferred by the historian James M. Smith.

Even bigots have rights that must be protected–as long as their rights don’t infringe on the rights of others to live in freedom and safety.