Free Speech And Comfort Zones


From top: pro-life protesters pray outside the National Maternity Hospital, Holles Street, Dublin; Donnchadh Ó Conaill

Ireland’s new abortion regime has been in place for just over a year. From the first days of its implementation there have been protests at hospitals, and attendant calls for legal limits to such protests. Simon Harris is considering introducing exclusion zones around hospitals and other medical facilities which provide abortions.

Exclusion zones raise a number of different challenges, and it is important to distinguish between them.

The most obvious worry is that such zones would infringe the rights of people to peacefully and legitimately protest. Whether this is correct as regards anyone’s legal or constitutional rights is a question which may be tested in court, should exclusion zones be introduced.

Whether the state has the right, morally speaking, to impose such zones is another matter. The principle that people should be able to peacefully protest against activities with which they disagree, even if those activities are legal, is a very plausible one.

This principle can be overridden if the protests involve intimidation or harassment, or physically prevent people from using legally available facilities. But this does not seem to have been a feature of the anti-abortion protests over the past year – at any rate, I am not aware of legal proceedings arising from any such incidents.

That said, it is not clear if exclusion zones would actually contradict the principle. It is surely not the case that anyone should be able to protest in any venue, at any time or in any way whatsoever.

You may be free to organise a march down O’Connell Street, but not whenever you so choose; you may be free to protest the government’s actions, but it does not follow that you can do so using a loudhailer in the Dáil chamber in the middle of a debate.

There is some evidence that these protests are causing distress to people seeking to use hospital services (and not always for anything to do with abortion; some reports have mentioned the distress caused to women who have miscarried).

This is not a reason to ban all protests against the provision of abortion, but it does provide some reason to prevent them from being held at venues where the chances of causing such distress will obviously be higher.

But exclusion zones would raise another problem. Even if they would not in and of themselves infringe the rights of protestors, there is still reason to regard them as dangerous, because of the precedent they set.

When thinking about whether a law limiting someone’s freedom should be introduced, it is useful to ask yourself whether you would be prepared to have this law applied in your own case.

How happy would you be if a government was to use exclusion zones to limit protests against something to which you were opposed (e.g., renditions or troop movements through Shannon, an arms fair, an industrial development despoiling a historical site)?

Even if you agree that the state has the moral authority to do this, you might not agree that it should.

The freedom to protest is particularly important for minorities and groups which do not have much social or political power. Most people will be in the minority on at least some issues, and would potentially stand to lose if the right to protest is limited in this way.

Whether or not you have much sympathy for the anti-abortion protesters is beside the point. Their freedom to protest peacefully is your freedom as well.

For this reason, it is worth exploring alternatives to exclusion zones which can counteract the protests without limiting the freedom of protesters. One option would be to organise counterprotests, but it is difficult to imagine these reducing distress caused by the initial protests.

Another alternative would be to use the protest as a means to undermine its own aims. Every year neo-Nazis march in the town of Wunsiedel in Germany in memory of Rudolf Hess, who was once buried there. In 2014, the march was turned into an anti-racist fundraising event: for every metre the neo-Nazis marched, €10 was donated by local businesses to EXIT-Deutschland, a group that works to rehabilitate right-wing extremists.

The We Counter Hate campaign used similar tactics – it would reply to tweets containing hate speech, informing the author that for every retweet a dollar would be donated to the anti-extremist group Life After Hate. This led to a 65% reduction in retweets.

As Tony McAleer, co-founder of Life After Hate and himself a former neo-Nazi puts it:

“The answer isn’t to suppress behaviour, the answer is to change it”

To be clear, anti-abortion campaigners are not comparable to neo-Nazis. But in principle the same tactic could be employed: people could pledge a certain sum of money for every protest, or even every protester, at a hospital which provides abortion.

The amount per individual could be quite small if enough people signed up, and could be capped at a certain amount each month. The money could be pledged to groups working to advocate for abortion rights or providing information on how to access services.

The aim would be to disincentivise the protests without limiting anyone’s rights. Protesters would have to decide if they were happy to go ahead with an action which would have the effect of potentially raising thousands of Euro for the very causes they oppose.

Of course, this tactic may not work. Many people will regard this as a request for citizens to do the government’s job for them; others might worry that similar tactics could be employed to disincentivise campaigning on behalf of all manner of causes.

And the anti-abortion protesters might decide that their actions are worth pursuing in any case. Since abortion services are now widely available in Ireland, the extra financial support for abortion advocacy groups might not seem much of a drawback.

In any case, there is a more general issue here, concerning how we ought to respond to speech that we find offensive or even hateful.

Some restrictions on freedom of speech are inevitable and perfectly justifiable, but these are mostly related to fairly direct correlations between speech and some specifiable harm (e.g., defamation or incitement to violence).

Other forms of speech which people may find objectionable, such as anti-abortion protests outside hospitals, pose a rather different challenge. It is dangerous to think that such speech can be legislated away.

A more useful approach is to ask what can be done without restricting anyone’s freedom to protest. I’ve outlined one suggestion; perhaps Broadsheet readers can improve on it?

Donnchadh Ó Conaill is a postdoctoral researcher in philosophy at the University of Fribourg in Switzerland. He is writing here in a personal capacity.

Last week: Pray Away

Top pic: Rollingnews

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35 thoughts on “Free Speech And Comfort Zones

  1. Jimmy Russell

    hate speech =/= to free speech, it’s amazing that in 2020 that we don’t have hate speech and hate crime legislation

    1. Dr_Chimp

      There is no such thing as hate speech. In the same way the author here asks you to reflect on limiting someone’s right to protest and applying it to a cause you care about, you also wouldn’t like it if the government imposed limits on what you could say regarding things you care personally about. Absolute free speech is the only way. This way, society regulates what is and isn’t acceptable rather than the state throwing people in jail for causing offence. In any case, who gets to define the boundaries of hate speech? Surely not some government bureaucrat

      1. newsjustin

        In this vein, it’s remarkable to see those who were adamant that the blasphemy clause in the Irish Constitution simply had to be removed (in fairness, most people agreed with it going), yet now are equally certain that allowing unrestricted the right to peacefully protest in a public place on a particular issue is simply too offensive to allow.

        1. scottser

          If you want to organise a protest then do like everyone else is made to, garden of remembrance to the dail of a Saturday when you’re bugging no-one. Upsetting those women going for medical procedures is wrong and those protestors should be made to FRO.

          1. newsjustin

            I don’t want to organise anything. But there are countless protests, vigils, marches, meetings and workshops organised every week. People have the right to do these things in public places as long as they’re not harassing, intimidating, threatening or seriously disrupting people.

      2. jeremy kyle

        What does that society do when it decides something isn’t acceptable?

        Like if I said I was going to go into Tesco tomorrow and stab a load of random people – what happens? A trial by twitter?

        1. Dr_Chimp

          There’s a distinction to be made between carrying out a criminal act (e.g stabbing people in Tesco) and saying you’re going to do it, which isn’t and shouldn’t be a crime. The fact that it is already socially unacceptable to say that you’re going on a stabbing spree is probably part of the reason why many people don’t say it. The fundamental philosophy here is that the only way we can ever know the truth about anything is to allow people to say whatever, whenever and to whoever they want. The cost for this is that you’ll have to allow people say they’re stabbing people in Tesco.

          1. Donnchadh

            Dr Chimp, would you say the same if Jeremy threatened the life of a named individual, say his estranged wife or a witness at a trial in which he was the accused?

          2. Dr_Chimp

            Hi Donnchadh. I should start by saying I enjoyed reading your article. Lots to think about!

            In short, I would say yes. Intimidating witnesses is already a criminal act. Regarding the threat, not trying to dodge it, but it would depend on the nature of the threat. Hurling abuse at your ex wife shouldn’t be a crime. If you’re following her around and shouting in her face, the speech is not the crime, it’s the harassment.

      3. Donnchadh

        Author here. I do think there is such a thing as hate speech – the issue is whether it should be criminalised, and I’m a bit sceptical about that. But not do I think that absolute free speech is very attractive. The state certainly has the right (and, I would say, the duty) to make certain types of speech illegal – I gave a couple of examples at the end of the article.

        1. Dr_Chimp

          I know the intentions in this case are good but this still doesn’t get over the question of who gets to decide what is and isn’t allowed? In my view, we should be working from first principles that all speech is allowed no matter what and that you only limit this “right” in extremely special circumstances. How else do you avoid a situation where the established view is that the earth is the centre of the universe and Galileo comes along and says it’s not and is promptly thrown in jail for heresy. Clealrly his speech was considered offensive and possibly hateful for its day. Even though he was right.

          1. Donnchadh

            Dr Chimp, who decides? The voters, or their elected representatives. The same way all the other laws which curb individual liberties are decided.

            I think your proposed first principle isn’t the worst place to start, but very rapidly all kinds of limitations can be (and imo should be) introduced. You’ve more or less conceded this yourself, in fact. You suggest that intimidating witnesses is a criminal act – indeed it is, and it is a crime usually committed by communicating, i.e., it is criminally sanctioned speech. Likewise with many cases of harassment.

            Your worry seems to be that if we permit any limits to freedom of speech then there is in principle nothing to prevent the Galileo-style scenario you describe. But I think you’re underestimating the degree to which, at least in most areas of life in Western countries, unpopular views are not criminally sanctioned, and there is a strong cultural resistance to their being made illegal. And I’ve suggested an approach to distinguish at least most examples of prohibited speech from merely unpopular opinions – most speech which is prohibited is linked fairly directly to obvious harms. Indeed, if I asked you why harassment and witness intimidation should be illegal, I imagine you’d say much the same (it’s certainly the best reason I can think of for their being illegal).

          2. f_lawless

            But isn’t criminal legislation just one of various aspects that would define how permissive a society is towards free speech? What about the broader cultural influences that may have a chilling effect on a person’s capacity and willingness to speak out freely?

            I thought this was an interesting article which discusses how the internet in its early decentralised form was an ecosystem allowing for the increased free flow of expression. However, in its current form where everything is much more centralised and surveilled, there has been a backlash and clampdown on uncontrolled chatter. Calls for censorship from left, right and centre have increased. These days, you don’t necessarily need to charge someone with a criminal act to effectively silence them. It can be done by deplatforming them, demonetising their channel,or even condemning them for something offensive they once said online as a teenager, etc .

          3. Dr Chimp


            That’s exactly part of the problem. I can not think of one person to whom I would delegate the responsibility of deciding what I can and can’t say or what I’m allowed read, watch etc.. Certainly not a politician.

            In the intimidation example, I do think it is as you say. There is a very specific and identifiable harm that has been done. So its not necessarily the speech itself that is being sanctioned. If I call up a witness and tell them I’m going to kill them the crime is not the utterance of the words “I’m going to kill you” its the threat to a very specific individual (namely a witness to a trial). And the same with defamation. Another way to look at it would be in the context of the often violent protests against the cartoons of Mohammad. “Kill all infidels” and “slay those who insult islam” were regular posters in western cities. Is it threatening and intimidating? yes. is it allowed? of course it is.

            My concern other than the Galileo example is that we head towards a situation where it is a criminal office to say X because it offends Y group of people or that its perceived as “hateful”. Holocaust denial being the obvious example of an unpopular opinion that is criminally sanctioned which exists in Europe. In my view, “offensive” and “hateful” are far too subjective, unlike witness intimidation and defamation, to be covered by law

        1. newsjustin

          How unfortunate it must be to have ones human right to life dependent on whether someone wants you or not.

          1. millie vanilly strikes again

            It is. Sometimes life is tremendously unfortunate in ways that are unavoidable for some.

      1. Cian

        Yes “wanted baby”, any woman (or man) that is going in or out of hospital due to a miscarriage.

        There are about 7,000 miscarriages per year (20 per day) that require hospitalisation.

        So the odds are quite high that each of these demonstrations are witnessed by grieving (would-be) parents.

        * and another ~750 ectopic pregnancies each year – requiring surgery.

      2. Cian

        AND most abortions (in the UK, I’m assuming Ireland is the same until data are published) are medically induced. i.e. the mother takes some tablets prescribed by the GP- so holding a protest outside a hospital is nonsensical.

        1. newsjustin

          Abortions are taking place at some maternity hospitals through – elective/ non-life-saving ones I mean. So it makes sense to protest at these and at GP offices who are carrying out abortions.

        2. Cian

          My point is that there are 7,000 women definitely going to hospitals due to miscarriage, there are a small fraction of that going for elective abortions.

          So these protesters are way more likely to cause (unintentional?) additional distress to already traumatised people going through a miscarriage rather than their intention – to cause intentional distress to already traumatised people going for an abortion.

  2. paul

    A persons right to not be harassed should be considered higher than these individuals right to free speech.

    Same as you have a right to free speech but not to shout “FIRE” in a crowded room.

    1. newsjustin

      Yes. But they aren’t harassing anyone.

      Just saying that they are harassing people by their presence doesn’t make it so. And this line of argument opens up a can of worms (as flagged by the author of the piece)….is protesting a place of work harassment? Is protesting a university harassing students and staff? Is protesting a restaurant harassment? Is protesting a beef farm harassment?

      The concept of protesting in the public realm outside a hospital is not novel. Some people don’t like the message, hence the pleading of extraordinary circumstances to curtail peaceful public protests.

      1. Cian

        Who exactly is the “they” in ” But they aren’t harassing anyone.”?

        I would agree that the people in the photo at the top of this article don’t look like they are harassing people.

        But when the protesters go further and have little white coffins (see my link above), or massive posters of aborted foetuses (see the referendum), or start chanting, or shouting, then it turns to harassment.

          1. Cian

            It does.

            noun: harassment; plural noun: harassments
            aggressive pressure or intimidation.

          2. newsjustin

            Have you reported this alleged harassment to the Gardaí?

            Speaking – even loudly, even disagreeably – to someone in a public place isn’t harassment. Having props isn’t harassment. And certainly isn’t any kind of illegal.

    2. Daisy Chainsaw

      They moved Gemtrails and her cohort from Barrow St so there’s no reason why this other lot of hateful hypocrites can’t be moved away from the outside of the hospital.

  3. Tom

    Very good piece Donnchadh, and a very fair minded one too considering that you (as far as I can tell from a previous exchange we had on this site) support abortion rights.

    A possible counter-argument would run along the lines suggested by Minister Harris (and indeed your piece too): prohibiting pro-life protesters from demonstrating at a particular location does not unduly infringe free speech/demonstration since virtually everywhere else remains open for them to demonstrate.

    Against this, though, the location of a demonstration usually has significance and itself counts as part of the meaning of the demonstration. So for the state – which is often a political or at least moral opponent of minority groups – to rule certain locations “out of bounds” would count as undue moral/political interference in free speech/demonstration. (Of course public order concerns can justify ruling certain locations out of bounds, but this doesn’t appear to apply in the present case.)

    A vital principle in this and similar issues is: it is unjust for the state to infringe upon freedom of speech/demonstration/association/conscience/etc. simply on the grounds that the animating moral judgment(s) in question is mistaken. Without this principle citizens will only have the aforementioned freedoms to the extent their judgments align with those of the political authority.

    1. Donnchadh

      Thanks Tom. I’d generally agree with that, and your last paragraph is a good way to put it.

  4. Donnchadh

    This is a reply to f_lawless (I don’t seem to be able to reply directly to their post).

    You’re right that criminal legislation is just one aspect of broader debates about freedom of speech – my comments focused on that in part because of the topic of the article, and in part because it seemed relevant to the example offered by Jeremy. But there are numerous broader cultural and social factors to take into account also (as well as non-criminal legal issues, e.g., laws con concerning defamation and employment rights).

    The article you linked to is interesting, but fwiw I would be less opposed than Walker seems to be to what we might call cultural restrictions on freedom of speech. Put another way, once we leave aside criminal sanctions and other very extreme responses (e.g., violence, or firing people for expressing unpopular views), the idea of a culture of free speech, which is undoubtedly a worthy one, should be balanced with other valuable cultural imperatives (e.g., showing a modicum of respect towards others). And that balance may well involve curbing legal speech. For instance, a website like Broadsheet is perfectly within their rights, into, to remove comments which are bot-generated spam, which doxx other commenters, etc.

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