John McManus: Who is really the fascist? The limits to free speech in Ireland

There is an exciting new parlour game. It is called: Who is Really the Fascist? It is simple to play. First you need to find some sort of mildly controversial event. A protest over an Israeli ambassador speaking at a university is a pretty standard one. The players then take turns to make more and more elaborate arguments as to why the one side or the other are behaving like fascists. It goes pretty much as follows:

First player: The Israeli ambassador should not be allowed speak because of Israel's treatment of the Palestinians.

Second player: You are denying someone their right to free speech.

First player: No! Some things are just not acceptable, and should not be said.

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Second player: He has a right to say things that offend you or that you might not agree with. You are a fascists .

First player: No! You are the fascist.

Second player: No! you are a fascist.

The objective is to advance as many iterations of your argument as you can manage before resorting to just calling someone a fascist. The game is played regularly on newspaper opinion and letters pages, radio shows and and anywhere that people who think they understand fascism and free speech gather to fight with one another.

But the interesting bit usually comes just before the end. It is when both players realise they actually agree with each other in principle but differ in practice.

Very, very few people actually think that absolutely anything can be said under the guise of free speech. But, equally, few people agree where the cut-off point is. So where is the line, and who gets to set it?

Renaissance

There is really nothing new about this debate – although it may be enjoying something of a renaissance at the moment – and the line has already been drawn. And it has been drawn by democratic consensus rather than by angry people on radio shows.

We are, of course, talking about the legal limits of free speech, and in an Irish context we are talking mostly about libel laws and the Prohibition of Incitement to Hatred Act. There are some other relevant laws covering things like identifying children and the victims of sexual crimes, contempt of court, and privacy over things such as medical information.

We have one of the most plaintiff-friendly libel regimes in the western world, and it is a very powerful weapon with which to stop people saying things about you that are not true and potentially damaging.

The Prohibition of Incitement to Hatred Act goes a step further, making it an offence to “use words, publish or distribute written material, or broadcast any visual images or sounds which are threatening, abusive or insulting and are intended, or, having regard to all the circumstances, are likely to stir up hatred”, according to the Department of Justice.

Hatred is defined as “hatred against a group of persons in the State or elsewhere on account of their race, colour, nationality, religion, ethnic or national origins, membership of the Travelling community or sexual orientation”.

You can be prosecuted regardless of whether you intended to stir up hatred or not with your comments.

Legislative scrutiny

When you put it all together there are quite significant limits on free speech in

Ireland

. But they have all been subject to legislative scrutiny, and thus indirectly have been agreed by society.

The law is not perfect. There are grey areas, and it often lags behind changes in societal norms. Yet it is reasonable to say that as a society we have agreed what constitutes the limit of free speech.

There is an awful lot that falls within these limits that is objectionable, hurtful, offensive and rude, but it is not against the law to say these things.

Put another way, the public good that flows from allowing people express their opinions trumps the offence it might cause, subject to the limits set by law.

A lot of what passes for debate over free speech is actually something else. It is really about objecting to someone being heard, and just how far you can go to stop them being heard. For some at least the bar is quite high and includes intimidation and the implicit threat of civil disturbance.

None of this should stop anyone from going along to protest at an Israeli ambassador being given a platform at a university, but they would want to be careful or they risk finding themselves holding a losing hand in the next game of who is the fascist.