Comment: The state won’t save us

I get it how I live it / I live it how I get it

• Rihanna

An Irish politician, reflecting on the inclusion of a book she didn’t approve of in the junior cert curriculum, stood in the Seanad last December and said, “There needs to be serious repercussions for whoever sanctioned this,” while calling for the book’s removal. The March before, the same politician, in the same government building, argued against the introduction of new hate crime legislation in Ireland. “The free speech we are entitled to serves to better this country and its people as ideas can be freely debated and forged in the crucible of public opinion,” she said.

Sharon Keogan, in making these two interventions, outed herself as a state representative with contradictory views on freedom of expression: a senator who wants to, in certain instances, ban books and punish the people who’ve had them placed in public libraries and curricula; and a senator who opposes state attempts to legislate against hate crime because of how important she considers the Irish polity’s right to express themselves. This kind of internal spectrum is common. Those who work off one, depending on their sensitivities and sensibilities, can either invoke or renounce the right to freedom of expression on a given subject. Calling this hypocritical isn’t meaningful or interesting. We’re all hypocrites in our own way.

What’s useful though, in seeing these contradictions articulated, is to be reminded that there’s really no such thing as a free speech absolutist – everyone seems to have an expressive act of some sort they consider unacceptable. For some it should be forbidden to encourage secondary school students to read books like Juno Dawson’s This Book Is Gay, rather than leave their sexual education to the schoolyard. Others think that speech inciting the hatred of minorities should be curtailed.

We differ on the expressions we tolerate and we differ on how we think the expressions we oppose should be met. There are those who think that state-led, top-down intercession works, whether it involves the censoring of educational material or the criminalisation of speech, and there are those who don’t. With the Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022 working its way through the Oireachtas and due to come before the Seanad, the bill’s advocates argue in favour of the former.

Those who oppose the bill because of their claimed belief that it will impinge on the people of Ireland’s freedom of expression may well be hypocrites, but supporting the bill to fight sexism, racism, transphobia and ableism is an act more of abdication than liberation. It also carries an implicit erasure of the state being the most influential proponent of these bigotries.

Simon the strongman

Simon Harris says the act will help the state protect people. “What it is about… is keeping people safe and making sure people can go about their lives and not be discriminated against,” he told reporters at a garda event last week. In a display of craven anti-intellectualism, one he’d picked up from Claire Byrne in her questioning of Irish Council of Civil Liberties executive director Liam Herrick the day before, he tried to establish himself as the moral antithesis of the Donald Trump junior and Elon Musk, two critics of the bill. “Any time Donald Trump (junior) and Elon Musk have a different view to you, that’s not a bad day at the office. Funnily enough, I don’t take my political philosophy from the Trump family or from Mr Musk or his associates,” he said, without explaining the political philosophy to which he does subscribe.

You can tell Harris is enjoying his time as acting justice minister. It’s a promotion from his normal role, the minister in charge of higher education, a job in which he wasn’t empowered to hold forth on matters of law and order and to play the strongman when talking to An Garda Síochána.

The nominally apolitical gardaí – whom Harris has increasingly sought to politicise, telling the Association of Garda Sergeants and Inspectors (AGSI) that he’s in the guards’ corner, fighting against the people “behind desks” objecting to the force’s use of bodycams on the grounds of people’s right to privacy – don’t understand gender. That’s what Antoinette Cunningham has said and she’s the AGSI general secretary, so she should know. After the guards introduced an internal policy document titled Gender Identity in the Workplace, commissioner Drew Harris acknowledged it could result in disciplinary action against guards who misgender their colleagues. The guards weren’t happy and sought to have the policy withdrawn. Cunningham explained why.

“There are a large number of people in the garda organisation who are not aware of the rights and entitlements of people who want to transition and how on a practical basis they can be supported in the workplace,” she said at her organisation’s national conference in Galway last month. The guards who were worried “that misgendering of a person could lead to discipline”, as Cunningham described them, won and the policy was dropped.

To take Cunningham at her word, it’s institutional, the guards’ apathy or opposition to the minimum of acknowledging and respecting their colleagues’ genders. These are the people who under the proposed hate legislation would be responsible for investigating transphobic offences. They’d also be responsible for investigating racist offences committed against immigrants, the class of people members of the force are under investigation for extorting as part of a protection racket of Deliveroo drivers. And they’d be relied on to start taking hate crime against women seriously, just two years after we learnt of the 3,000 domestic violence calls that gardaí cancelled.

I don’t have faith.

‘The court system in this country is increasingly becoming a powerful instrument of repression’

Were the guards to conduct adequate investigations into reported hate offences and were the DPP to decide that charges should be brought against alleged hate criminals, the matters would come before the courts, hardly a forum for anything approaching deliverance.

Civil rights activist and abolitionist Angela Davis recognised this. In the Women's House of Detention in New York, awaiting trial, she was interviewed in October 1970 and asked if she thought she could advance her cause in the courts. She said she didn’t think so because “the court system in this country is increasingly becoming a powerful instrument of repression. It is being used to crush the struggle for the liberation of oppressed people.”

“We can't expect justice from a repressive judicial system,” she said, “so what we have to do is to talk about placing the courts on trial. Oppressed people must demonstrate in an organised fashion to the ruling class that we are prepared to use every means at our disposal to gain freedom and justice for our people.”

Though Ireland hasn’t had to contend with the legacy of chattel slavery like the US, our own criminal law system, as well its equivalent in the north, is similarly a place where the rule of law – the idea that everyone is treated equally under the law – remains an aspiration. Joe Brolly, a practising barrister in the north specialising solely in criminal defence, has spoken in similar terms to Davis.  

“The criminal law in essence, and the criminal courts, is a device for coping with the underprivileged. Lack of education, poverty – all of those things contribute to societies where people are… they are afloat on a sea of Diazepam,” he said in an interview with Paul Kimmage. The criminal law system, the system we expect to address hate offences, is according to Brolly, “a mechanism for coping with the consequences of poverty and being under privileged”.

Ireland’s hate crime legislation may well successfully criminalise the poor and under-privileged, but it will fail to address the real causes of hate in the country.

Is that how we must be?

This is not to say that hate crime and speech shouldn’t be opposed, nor that freedom of expression should be the only right we seek to defend, but rather that there are ways of doing so without running to the state.

Back in January 2017, Milo Yiannopoulos – who for a brief period last decade was the far right’s go-to trafficker of Islamophobia, anti-feminism and homophobia, before comments he made endorsing paedophilia killed his career – was to speak at the University of California, Berkeley. Yiannopoulos was on a tour of college campuses in the US and in previous appearances he’d used cameras to project images of speech attendees and encouraged his audience to mock them for being trans, fat or what he considered ugly.

Students decided to protest his presence. Berkeley philosopher Judith Butler, explaining their opposition to Yiannopoulos’s speech, wrote that “in a world of changing technology where incitement and harassment take on new forms, we are faced with hard cases, real dilemmas”, in similar language to Irish politicians explaining the need for the new hate crime legislation. Butler was ambivalent about whether Yiannopoulos’s proposed actions should be considered a criminal matter, but opposed his talk for what they considered a breach of college anti-harassment policy. After Yiannopoulos’s speech was ultimately cancelled after mass student demonstrations, Butler wrote about the competition of rights.

“If free speech does take precedence over every other constitutional principle and every other community principle, then perhaps we should no longer claim to be weighing or balancing competing principles or values. We should perhaps frankly admit that we have agreed in advance to have our community sundered, racial and sexual minorities demeaned, the dignity of trans people denied, that we are, in effect, willing to be wrecked by this principle of free speech, considered more important than any other value. If so, we should be honest about the bargain we have made: we are willing to be broken by that principle, and that, yes, our commitments to dignity, equality, and non-violence will be, for better or worse, secondary. Is that how we want it to be?  Is that how we must be?”

That wasn’t how the Berkeley community had to be. One expressive act – the invitation of a contrarian speaker in Yiannopoulos – was met with another, demonstrations against his appearance, described by CNN as “violent” and causing $100,000 worth of damage (violent and expensive but still expressive, something reductive free speech advocates may struggle to accept).

No one was criminalised. No one deferred to the state.

In Ireland, a country whose acting justice minister has, in response to far right agitation, boasted about the number of people the state deports, and whose taoiseach, in attempting to defend his government’s shameful failures in housing its people, makes cowardly, oblique references to increased immigration, we should similarly refuse to defer.

There are better targets. There are other ways.