Cassandra Voices

Tag: William F. Buckley

  • Weighing up Ireland’s Hate Crime Law

    The new so-called Hate Crime Bill [Criminal Justice (Incitement to Violence or Hatred and Hate Offences) Bill 2022] in Ireland has generated quite a furore, including outright condemnation by Elon Musk, who described the measure as a “Massive attack on freedom of speech.”

    It has also been branded “insane” by Donald Trump Junior, which was used as a distorted form of justification for the law by Minister Simon Harris. However, criticism has also come from Paul Murphy of People Before Profit from the opposite end of the political spectrum to the Trump family. There has also been criticism from human rights bodies.

    The crucial provisions are Section 7 and Section 8.

    Protected Characteristics

    Section 7 is the mechanism by which offences against those of protected characteristics can be criminalised. At one level it is an admirable measure. Indeed, I have represented people with disabilities, who are one of the categories included.

    More controversially, transgenderism is one of the protected categories. It was surely not hate speech for the feminist author Germaine Greer to say that a man who becomes a woman can never really understand what it is to be a woman.

    In my view it was a serious violation of fair comment to no platform Greer for the comments – no matter whether one agrees with her ideas or not. To criminalise such a statement would be a return to the Dark Ages of the Papal Index.

    One hopes that a statement such as that made by Greer would be protected as legitimate political or cultural criticism, which are important delimiters and qualifiers contained in the Act, but the defence would arise only if the matter actually came to Court. The existence of a criminal charge might still be bandied about to damage the reputation of an individual or publisher. Malicious prosecutions are not unheard of in the Emerald Isle.

    Perhaps what really stoked the ire was Greer also stating “because he does not have a smelly vagina”. This brings us to the subject of ridicule. Ronald Dworkin wrote an article on the right to ridicule inspired by the Danish Cartoons incident.

    ridicule is a distinct kind of expression: its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended….

    So, in a democracy no one, however powerful or important, enjoys a right not to be insulted or offended. Christopher Hitchens and the English judge Stephan Sedley have also remarked that any freedom to speak inoffensively is worthless.

    In more carefree times, political opponents Gore Vidal and William F. Buckley came together as pundits at the behest of a failing network for the 1968 Democratic and Republican Party Conventions. This has recently been documented in a film called ‘Best of Enemies’, which is now a West End play by the same name.

    William F. Buckley was the archangel of neo-conservatism, while Gore Vidal was an embodiment of what now seems an excessive liberalism. They deliberated on a state of siege, with riots in Chicago and democratic legitimation in question. America, along with the rest of the world, was on the brink, just like today.

    The debate famously culminated after the Republican Convention nominating Richard Nixon, who now seems a more sympathetic figure when compared to what followed him. Indeed, Nixon’s statement in 1969 that government has a great role to play in health care, ‘but we must always make sure that our doctors will be working for their patients and not for the federal government,’ is perhaps an idea that still has some merit; especially when one considers the damage of the top-down, dictatorial approach taken by many governments in response to Covid-19.

    In front of a live TV audience of millions, Buckley vented an anger, which he later regretted, calling Vidal ‘a queer’; in response to Vidal describing Buckley as a crypto-Nazi.

    Hate Speech

    Let’s consider both comments in the light of the current Irish legislation, Section 7 and Section 8 in particular. Buckley’s comment is arguably hate speech directed against a protected characteristic, i.e. gay people, although a term that was originally meant as an insult has since been appropriated by the gay community as almost a badge of honour, in a way similar to the artistic licence taken with the “n-word” among African-American (or Black?) communities. Can offensive terms be used by those with a protected characteristic?

    Moreover, in a 1974 essay for the New York Review of Books ‘Fascinating Fascism’ on Leni Riefenstahl, Susan Sontag wondered how it had come about that ‘a regime which persecuted homosexuals [had] become a gay turn-on?’ Under the current legislation would it be a crime to suggest that the Nazi (anti-)aesthetic could be ‘a turn on’ to a gay person?

    A latter-day Gore Vidal might also be prosecuted for branding a right-wing Republican such as Buckley a crypto-Nazi, as Section 8 criminalises grossly trivialising genocide, crimes against humanity and peace.

    Crucially Section 11 of the act allows for a defence of criticism with respect to protected characteristics. But this does not apply, remarkably, to crimes against humanity under Section 8. To this we now turn.

    The language of Section 8 which criminalises inter alia crimes against humanity may be desirable in principle, although the overly broad language sets off alarm bells.

    Arguably, condoning or negating such crimes ought to be a criminal offence. Imagine being an Armenian and having to listen to Turkish propaganda justifying what is considered the first orchestrated attempt to eliminate a national group in the twentieth century?

    But this may easily become a legitimate subject for debate, such as exploring whether the Malthusian policies of the British Crown in Ireland during the Famine of 1845-51 should be described as a genocide.

    Also, who decides whether a genocide has taken place, a body of historians, or a court of law? Do we need to allow the fog of war to dissipate before any such adjudications with criminal ramifications are determined?

    Could it now be an offence to claim that Putin’s war in the Ukraine is really about Great Powers competing for resources rather than an attempt to eliminate Ukrainian national identity? By assessing the attendant brutality of the war in terms of Great Power politics, would a publisher or individual then be “trivialising” a crime against humanity.

    A measured denial of genocide – such as claims that the ICC’s Putin arrest warrant was based on State Department funded report that debunked itself – is completely different to an ahistorical assessment of a wide range of primary sources. The crucial issue here is adherence to the facts. It must be open for historians, journalists and lawyers to scrutinise questionable narratives around controversial events, such as the Kennedy Assassination. A distinction perhaps is that crimes against humanity are generally on a scale such as to make them undeniable.

    Criminalising that which grossly trivialises crimes against humanity is far too opaque and subjective a ground for a prosecution. The Act ought to be challenged under Article 40.6.1 of the Irish Constitution: ‘The right of the citizens to express freely their convictions and opinions.’

    An Article 26 Reference (by the President to the Supreme Court required within seven days of his receiving it) poses the risk however that if is unsuccessful there will be no further opportunity challenge any aspect of it in an Irish court.

    Ecocide and Economicide

    There may, however, be certain unintended consequences of the Act that could be used to advance progressive causes.

    In international law there are established candidates which are part of customary international law so called lex lata (established principles of customary international law), and more speculative controversial candidates over which there is an increasing lack of consensus, called in international law terms de lega ferenda (not yet firmly established).

    Thus, for example, one potential crime against humanity supported from the 1970’s proposed by Richard A. Falk is ecocide or crimes against the environment. Since such a crime involves various forms of intent and can include a conspiracy, it would involve at least the meeting of minds of the major oil and gas companies, and those who profit from them, including legislators.

    There is also a potential new crime against humanity for which there is less authority to date of economicide. Perhaps all of those who peddle a neoliberal world view, or support vulture or cuckoo fund, or allowed wealth to be siphoned off by Big Pharma during Covid-19 could and should be prosecuted!

    It could be said that the lifting of the eviction ban by the government is a form of economicide, as it is indirectly fuelling far-right wing extremism, led by gangsters attacking people with baseball bats. Thus, arguably, government policies, or the lack thereof, have indirectly generated racial hatred, and racism (speech directed against a protected characteristic) is criminalised by the Act.

    The framing of the innocent is also a de ledge ferenda candidate as a crime against humanity. One might argue that the Garda and/or the Department of Justice have condoned or been in denial of this.

    European Convention

    The Act is also likely to be challenged, and is subject to the jurisprudence of the European Court of Human Rights. Irish courts are bound, but rarely properly observe the Charter, despite the interpretative obligation. In reality we follow the ECHR selectively, ignoring it if it is too awkward, as in the nefarious Dwyer case.

    In a number of cases such as Jersild v Denmark (1994) and Lingens v Austria (1986) the ECHR have indicated under Article 10 of the Convention that speech encompasses a right to outrage and shock. These are deemed hallmarks of pluralism, tolerance and broad-mindedness in a society.

    Not everything is permitted. Thus, Holocaust denial or racist speech are excluded from protection, but the parameters are wide and restricted categories do not go quite as far as this Act.

    The crucial case of Lehideux and Isorni v France (1998) is particularly instructive. Here Le Monde newspaper were protected under Article 10 of the Convention for publishing an article celebrating the career of Marshall Pétain, the Vichy French leader who collaborated with the Nazis. The content was not set out in a way to negate or revise clearly established facts.

    It should also be noted that no action of publication or broadcast of hateful material is required, bringing us into the territory of thought crimes. The much-trumpeted defence of legitimate artistic and political criticism only applies to possession of such material.

    Considering the imposition of close to absolute liability for the distribution of so-called offensive material on the internet, and even a reversal of the burden of proof, it is no wonder Elton Musk is concerned. He may be put out of business!

    Moreover, the term ‘may be prosecuted’ is very loose statutory language. On whose behest?

    Stress Test

    Let us stress test the crucial sections of the Act against potential scenarios.

    1. Stating that Leo Varadkar is like Verruca Salz from Willie Wonka’s Chocolate Factory, a spoilt privileged brat, and a wart on the body politic offence falls short of being a criminal offence on a literal interpretation of the Act. But what if one called him a crypto-Nazi or inferred that Nazism could be a turn-on to him? Would that be grossly trivialising crimes against humanity or demeaning to a protected category? Crucially, the defence of political criticism is unavailable for crimes against humanity.
    2. Adrian Hardiman, our finest judge since Declan Costello, once addressed my King’s Inn class to defend his decision in the Portmanock Golf Club case (2009) where he sanctioned the barring of women members from the club, much to the distress of the Equality Authority, which had taken the case. He then argued that a lesbian rugby club should not be obliged to accept him as a member given he was not a lesbian and couldn’t play rugby. These comments by a Supreme Court judge were in a public place. We may have to shut down, or sanitise beyond recognition, the hallowed debating societies of Ireland in response to this Act.
    3. Is Michael O’ Leary the Chairman of Ryanair in his denial of man-made climate change grossly trivialising the crime against humanity that is ecocide? Or what if one were to say that supposed climate change activists including the IMF and Bill Gates are themselves guilty of crimes against humanity for condoning Malthusian practices, rather than focusing on regulating the extractive corporations devouring the planet?

    Book Collector

    I have been a book collector of first editions since I was sixteen. One book in my collection is a first edition of Vladimir Nabokov Lolita, (1959) which narrates in baroque language an affair between a middle-aged man and an under-age girl. I also possess a first edition of the notorious fascist writer Louis-Ferdinand Céline’s Journey to the End of Night (1932). In possessing works that seemingly supports crimes against humanity, and another that undermines protected characteristics am I guilty of an offence?

    Even if I am not prosecuted, does the very existence of such an offence generate opprobrium towards great literature?

    One fears that even the great Dostoevsky’s books may soon be de-platformed if any of these are deemed a “Kremlin-favoured work.”

    Simon Harris has suggested that there is no conspiracy, or campaign being orchestrated against free speech in response to condemnation. The jury is still decidedly out on that question. Perhaps what we see at work is a coalition of interests, or a just a confederacy of dunces.

    A chill wind blows. Slow train coming and more acts to follow.

  • The Public Intellectual Series: Christopher Hitchens

    Hardly a week goes by without someone asking me about my connection to Christopher Hitchens. Such enquiries are clearly predicated on our common concerns. I suspect at one level my own modest bohemianism and libertarianism has invited comparison. Although we share an unbridled enthusiasm for talking Hitchens was, however, also a great listener, something I am struggling to get better at.

    I had a brief encounter with the man himself one enchanting and admittedly drunken evening. Being then youthful I was somewhat dazzled by his presence, yet more so when the bill for the wine and cognac arrived.

    I found Christopher Hitchens almost preternaturally eloquent, even when plastered. Industrial quantities of booze only seemed to inspire him to new heights, as it does many artists. Nonetheless, he was fortunate to have the constitution of an ox – a unique case and liver to boot. Predictably, it was the cigarettes that killed him in the end.

    Despite a dreadful personal lifestyle in conventional terms, his achievements and outputs – to use a terms whose origin in economics he would have despised – as the author, co-author, editor, or co-editor of over thirty books, were nothing short of phenomenal. Lifestyle excesses did not undermine his craft or genius.

    Non-compromised Intellect

    As a man of letters, Hitchens is the last in the line of a Belle Époque tradition requiring a confidence trick that Voltaire, George Orwell, Gore Vidal, Albert Camus and, truthfully, few others have pulled off. These were all men who operated in a space of utter independence and autonomy; as journalists not beholden to anyone; as non-compromised intellects, projecting intelligences greater than any academic-for-hire.

    Hitchens himself was a generalist and synthesiser, a man of substance, far removed from the letter writer to a newspaper dismissed as a crank by those who control the message and form the opinions in our dumbed-down zeitgeist.

    He played a role for which there is no job description, as it really does not exist, for he himself defined it through sheer force of will. Self-selected and self-ordained, he was truly a law unto himself.

    It helped that the power brokers adored his transgressive presence. Walking on the wild side, he was a unique, larger than life character. Albeit toadying up to the powerful ultimately mars his legacy.

    He was fortunate to receive the adulation of Americans, and of course he panhandled to them. They loved to debate with this antichrist of an atheist.

    Perhaps they believed such a troubled human being seemed ripe for religious conversion, which of course he never succumbed to. In fact, the very religious doctor who supervised his dying days was anxious for a death bed conversion that never came, all of which is splendidly documented in his book Mortality (2012).

    He might not like the comparison, but it seems to me that like many sincerely committed religious people he held an innocent faith that public debate matters: that serious argument around fundamental questions counts, and continues to shape public opinion.

    Support for Invasion of Iraq

    Hitchens’s blinkered support of the 2003 invasion of Iraq was based on hatred of religion in all its forms, and Islam in particular. He thus stands complicit by proxy in endorsing U.S. terrorism.

    Hitchens failed to acknowledge that the US was acting as a terror state. When President Bush’s chief legal advisor Alberto Gonzalez described the Geneva Convention to be ‘quaint’ and ‘obsolete’[i] it opened to the door to the torture carried out in Guantanamo Bay and Abu Ghraib.

    Guantanamo Bay.

    Having said that at least Hitchens had the good grace to undergo the torture of waterboarding himself under controlled conditions, that he wrote about in a famous Vanity Fair article, declaring ‘Believe Me, It’s Torture.’[ii]

    I happen to share Hitchens’s hatred of extreme religious fundamentalism and jihadi terror tactics, but am not oblivious to their origins, and the even greater danger posed by the maniacs on the far-right of the Republican Party in the U.S.: that triage of evil, Post-Truth, moral relativism and religious fundamentalism that Noam Chomsky has pointed to.

    U.S. Republican extremists, unlike anarchists or deluded and fragmented Islamic jihadists possess true wealth and power, making them really frightening.

    Moreover, on account of his British upbringing Hitchens was not exposed to the Catholic fundamentalism I have encountered, which is in some respects the worst, and certainly the pettiest, of all.

    Attack on Bill Clinton

    There is much to be said in favour of Christopher Hitchens. He was after all, the great Satan to the religious right, predicting, along with Richard Dawkins, the rise of religious fundamentalism, both Christian and Islamic. He saw it all coming.

    He also saw our Post-Truth tendencies coming into being, most pertinently in his diatribe against Bill Clinton, No One Left to Lie To: The Values of the Worst Family (1999).

    Indeed, Clinton was the beginning of the end. Bubba is like a fractured image of Trump and Steve Bannon and precursor to their redneck populism. With his forensic mind, Hitchens knew a spin merchant when he saw one.

    Bill Clinton with Donald Trump c.2000.

    Hitchens recognised Clinton as a Populist vulgarian, and ultimately a betrayer and subverter of the liberal cause. He could see that Clinton’s lack of spine, principle and integrity would allow the Neo-Cons to undermine the liberalism he claimed to stand for.

    Clinton is a hillbilly product of an educational system prioritising policy wonking. Today we see far too much emphasis on graft and data retention along with carefully managed communication, which is the obverse of true argumentation. Thus discussion and debate is confined within ever-narrowing parameters.

    Hitchens’s commitment to the Enlightenment values of reason and truth unquestionably dictated an intense dislike of the purveyors of Post-Truth nonsense.

    Hitchens was not, however, as critical of U.S. neo-liberalism as he ought to have been, and his departure from Marxism led to obsequiousness towards the establishment. This ideology, or ‘false consciousness’ in Marxist terms, is laying waste to the world and Hitchens should have seen it coming.

    Perhaps the cognitive dissonance, can be explained in material terms by this intellectual Marxist being on the neo-liberal payroll. He was where the money was, representing the opposing, other times supportive, viewpoints on Fox News. Yet he remained danger to all comers, a white knuckle ride on an unruly horse.

    The Bonfire of the Vanities

    In a sense Hitchens was intellectually mediocre, not unlike Jordan Peterson in that he pandered to the corporate market. The neo-liberal banqueted intellectual, who keeps it safe and ted-talky. Anything can be resolved by one market under god. Well no it cannot.

    Thus, by side-tracking to Islam, supporting the Bushman wars and demonising Clinton he perversely and indirectly served Republican interests. His Marxism twisted and bent like a tattered cover effectively brought endorsement of U.S-led neo-liberalism.

    Hitchens had an opulent and luxurious lifestyle, and I believe it blurred his judgment. Money can corrupt anyone. Indeed, a character in Martin Amis’s book Money (1984) was ostensibly based on him.

    He liked to be indulged, flattered and entertained, and craved an audience too much. The scoop was all important. A neediness to be the centre of public attention was an obviously failing.

    Hichens’s unscrupulous lifestyle, alcoholism and opportunism, some say, is also fictionally documented in Tom Wolfe’s iconic 1980s novel The Bonfire of The Vanities (1987). The fictional character that emerges is far from sympathetic.

    That is not say he was not mostly correct in his arguments. We should judge the ideas rather than the man, who must have been difficult to live with.

    Above all, Christopher Hitchens maintained the idea of public intellectualism, and was a champion of any cause he firmly believed in. He was like a successful Ignatius F O’ Reilly railing against a Confederacy of Dunces (1980), operating in what Gore Vidal termed ‘The Republic of Amnesia.’

    Interestingly, Vidal anointed him as his successor and dauphin. But perhaps unsurprisingly they had a falling out, given there is little of the austere Brahmin in Christopher Hitchens.

    Though he might bridle at the suggestion, Hichens is more like the smooth-talking William F. Buckley, the architect of U.S. neo-liberalism, at least in personality terms. A fractiousness and emotional incompatibility between Buckley and Vidal is also easy to detect in Best of Enemies, a recent documentary about their famous debates and interchanges during the 1968 U.S. Presidential Election.

    Gore Vidal, 2009. Image: David Shankbone

    A One-Off

    Hitchens’s sheer force of personality and will is unlikely to be seen again any time soon. Even his enemies would concede he was a one-off, a public entertainer of such colour and intellect that he was guaranteed to give a performance, and unlike in Franz Kafka’s The Hunger Artist (1922), the public never tired of it.

    But the heroic lifestyle, involving so much booze, and stage fright no doubt, killed him prematurely. We can, however, draw a few lessons from his intellectual legacy.

    First, to be vigilant to public discourse being hijacked by spin merchants, quacks, false expertise and imbeciles that we now seem to be buying wholesale.

    Secondly, to listen carefully to those who speak consequentially and even cause the necessary offence. These kind of people are being obliterated or subsumed by mindless internet chatter, and sound bites. As Hitchens famously said: ‘My own opinion is enough for me and I claim the right to defend it against anybody, anywhere and if you do not like it stand in line while I kick your ass.

    Thirdly, to recognise that our moral compass of truth is being lost to a religous fundamentalism that appears to be winning.

    Fourthly, we must question the pillars of society just as Hitchens interrogated the roles of Mother Teresa, Bill Clinton and Henry Kissinger, to devastating effect.

    His book on Mother Theresa is in fact incendiary. The title the Missionary Position: Mother Teresa in Theory and Practice (1995) is a pun of true genius containing a veiled attack on Catholic attitudes towards sexuality, and so called charity.

    Hitchens fillets her to show how the ostensible compassion and charity was really a mask for leaving people to die in appalling conditions, without adequate support mechanisms or proper treatment; in short demonstrating that she was a hypocrite.

    Master of the Polemic

    Excessively religious people like to be seen to be good as opposed to doing good. Tokenism holds sway. Many devoutly religious people I knew were all in favour of the Innocence Project I founded in Ireland; that is as long as it did not interfere with their interests, and of course funding was out of the question.

    Hitchens was the acknowledged master of the polemic, and revived the tradition of the public essay. In this sense his easily digested and short books – beautifully written, precise and pungent – are not just in the line of his great hero George Orwell, but owe a debt also to the tradition of 18th century Anglo-Irish letters, encapsulated by figures such as Jonathan Swift or William Hazlitt.

    His work could also be profoundly serious, at which point he ceased to be just a polemicist. His public education text on The Rights of Man (2006), juxtaposing Thomas Paine and Edmund Burke is a perfect summary of the values of the constitutional Enlightenment. It condenses a lot of learning and is far better than many large treatises on the subject that go unread and unremembered.

    I sense that he appealed to his contemporary audience as a generalist confronting legions of specialists. His ranging intellect contrasted with the products of an educational system that no longer permits all-rounders. When he engaged in his ideal forum of public debate he simply knew too much, and was too articulate with a ready supply of historical and literary allusions that dumbfounded his critics, putting the political spinmeisters on the back foot.

    He achieved glory by unconventional methods, to put it mildly, and it must have astounded him that a third class degree, admittedly from Balliol in Oxford University, brought him so far. He bucked the specialist trend.

    One Man Show

    I wonder whether such a ribald, Rabelaisian figure of jollity and deadly accuracy could gain traction with an audience today. Where would his footholds to glory lie? His unruly lifestyle in these censorious times would probably ensure that he never got past first base.

    At one level it was all a kind of performance. A one man show that went on and on. The clown prince. But what a show it was.

    What his opponents lacked, and he possessed in spades, was depth and interdisciplinary context, and above all else a genius for sharp communication and barbed wit. He used words to nuclear effect and with antennae raised to the fraudulence and hypocrisy of our times.

    He is sadly missed, for our real foes of Post-Truth, moral relativism and the repudiation of Enlightenment values hold a vice-like grip over public consciousness.

    I suspect he was also a little big man, a voice that just had to be heard. Perhaps his oversized personality was a compensation for social maladjustment, and even Asperger Syndrome or similar. Like Oscar in Gunter Grass’s The Tin Drum (1959) he banged on for the sake of the marginalised and those classified as deviant.

    It was the transposition of his erudition and learning in a practical sense to the issues of his time that also defined him. Given the context in which he operated, his life was a minor miracle. A last popular gasp of learning and context that gained traction and a mass audience.

    He once said that our lives only have meaning to the extent that we give them meaning, which is not to condone his attitude towards the women or the booze.

    There was a craving for middle class acceptance for which he had to overcome an inherent vulgarity and crassness. America suited him as a pundit and pugilist of an anti-intellectual vulgarity, who could speak at their level. Being of a kind, he recognised the flaws in Clinton.

    He was never quite an English gentleman. Never officer material.

    In America he was one step, in savvy terms, above the vulgarity around him but still appealed at a frat-boy level. For in the kingdom of the blind man the one eyed man is king.

    [i] Roland Watson, ‘Geneva accords quaint and obsolete, legal aide told Bush’, The Times, March 19th, 2004,  https://www.thetimes.co.uk/article/geneva-accords-quaint-and-obsolete-legal-aide-told-bush-q2dqw8f3pz9

    [ii] Christopher Hitchens, ‘Believe Me, It’s Torture, Vanity Fair, August, 2008, https://www.vanityfair.com/news/2008/08/hitchens200808