Legal reasoning involves the careful application of consistent rules to different situations.  Law enforcement is something else. Liam Hehir looks at why, when it comes to criminalising bad opinions, the process is often the punishment.  

Earlier this month we learned about the government’s intentions in relation to cracking down on hate speech. It’s proposal is to widen and deepen the criminal law as it pertains to people inciting disharmony.  

The offence will now carry a potential sentence on conviction of up to three year’s imprisonment.  

The government isn't starting from scratch

It must be noted that, for all the controversy, what’s being proposed are adjustments to the existing law rather than the invention of a new offence. However, a reaffirmation of a law by Parliament which has largely fallen into abeyance - as well as increased penalties - may well see police and the courts perceive they have a mandate or direction to use it more vigorously.  

How else would they take it?

The changes are likely to be ineffective

One of the biggest problems with these laws is that, despite the problems they create, they just don’t work even when they are vigorously enforced.  

You don’t need to take my word on this. The continent of Europe is planted thick with laws prohibiting incitement to hate and threatening transgressors with jail terms. Almost nothing has been done to slow the rise of nationalist parties on the continent despite attempts from time to time by authorities to bring the force of the law down on political provocateurs. 

The European Commission against Racism and Intolerance, which once urged states to adopt these laws, has pointed out for some time that it is more effective for governments to combat hate speech using means other than criminal sanctions.

While we often laugh at "awareness raising" the reality is that in practice it is usually more effective at combating intolerant attitudes over the long run than laws which, by virtue of the resources required for prosecution, can only ever be selectively and arbitrarily enforced.

But the argument isn't taking place on that level

So far, however, most of the argument has been between those supportive or opposed to more draconian hate speech laws on the principles of the matter. In other words, the question of whether censorship works hasn't been at the forefront of the debate, which has focused instead on the question of whether it is something we ought to do or refrain from on moral grounds.

Critics have alleged that what the government wants to do amounts to an assault on human rights (which, though it may be news to some, includes the right to speak freely). Those more in favour of censorship, such as journalists and academics, argue that the government’s reforms seem appropriately targeted and are likely to be rarely used in practice.  All of this assumes that the law can be successfully implemented.

The process of enforcement needs to be thought about too

There is an important dimension missing here, and it is something that is a bit of a blind spot for academics who assess the law based on the reported decisions of the courts. 

Let us assume that the academics and journalists are right and that the law does not in fact criminalise good faith political expression. How do we test that? Well, the only way we will know for sure is when prosecutions are brought and either fail or succeed and a body of law springs up around it.  

For those caught up in it, the process is the punishment

So let’s say you make a controversial political statement and some deranged person on Twitter or whatever decides to lay a police complaint about it.

An officious police officer decides to investigate you for it. You then have the anxiety of having an investigation hanging over your head  While the investigation is ongoing, and who knows how long it will take, it will be the first thing you think about in the morning and the last thing you think about before you go to sleep.

If a prosecution is brought, you could then face expensive and stressful court processes.  It could go all the way to the Supreme Court - then back down to the lower courts again - then up again. All in all your case could spend years working its way through the Byzantine legal system before any sense of finality is reached.

All of this time and effort will be on top of your regular job since the fact that you are caught up in a time consuming prosecution does not relieve you of the need to make a living. Quite the opposite, in fact, since you would be a fool not to use a lawyer and they're not cheap. The investigators and prosecutors, on the other hand, are just doing their day job, have nothing at risk and are being paid to make your life an ordeal.

The costs of victory can be very steep

You might ultimately win that case. If so you get your name in the law reports and lecturers in law schools up and down the country can cite the case as an example of the law working as planned. That might feel like a moral victory. 

In no other sense will you consider yourself to have won anything.

In fact there’s a good chance your life will be wrecked anyway. As we’ve seen in places like the United States, a common response to somebody being vindicated in one set of proceedings is the launch of another set. When it becomes a tool in the hands of the motivated, the law can be a blunt and unforgiving weapon.  

This assumes you have the stomach to see the whole thing through, of course. In practice, the easier thing to do is just not speak your mind on an issue of controversy. Which if you’re inclined to a more controlled discourse you might think is a good thing - but that’s because you favour political censorship.  

Voltaire once said: “I was never ruined but twice: once when I lost a lawsuit, and once when I won one.” It’s absolutely true. In Canadian and American jurisprudence they call this a chilling effect, which refers to the voluntary curtailment of rights through fear of the disproportionate stress and anxiety inflicted on people by the legal system.

These aren't theoretical concerns

The United Kingdom provides a strong example of how things can go badly awry. Barely a week goes by without news reports of officious authorities overstepping the mark when it comes to the use of the law to harass those suspected of saying something offensive.  

Very few of these instances result in a prosecution (there have been some shockers) but in each case the law created a permission structure that allowed police to harass citizens for the crime of saying something somebody else didn’t like.  Importantly, no violent crimes seem to have been prevented from all this.

There is a serious lack of understanding here

None of these issues present themselves in formal legal study.  The stress and worry of legal proceedings does not quite come through when you read a judgement that is millions of dollars in the making.  

And, in fairness, it’s not something that elite legal practitioners have to deal with often either. If you act for large firms, multinational corporations and government departments you’re also not living in the universe that most people experience. If a single lawsuit can be catastrophic to you, win or lose, the chances are you're not a client of one of the country's top firms.

Parliament should make laws with the mode of their enforcement in mind

This is the perspective that gets lost in the debate. 

It’s not enough for the laws to be set in a way that appeals to the abstract designs of dry theoreticians. It has to be thought through from the perspective of the person who gets a police officer knocking on the door wanting a chat about his or her latest Facebook post.