Geert Wilders' Acquittal: An Important First Step for Free Speech in the Netherlands
by Debra L. Feuer • Sep 24, 2011 at 6:23 pm
On June 23rd, the Amsterdam District Court acquitted Dutch MP Geert Wilders, bringing to a close a nearly two-year ordeal. The decision was a clear victory for Wilders who had faced both fines and imprisonment for charges of "group defamation" and "incitement to hatred and to discrimination" on the basis of religion and race under article 137c and 137d of the Dutch Penal Code (DPC).
"I am delighted with this ruling," said Wilders. "It is a victory, not only for me, but for all the Dutch people. Today is a victory for freedom of speech."
Wilders is right. The verdict is a win not only for him, but also for free speech generally. The Dutch court—and the Dutch Supreme Court that set important precedent—protected free expression in the face of a censorial "hate speech" statute. At the very same time, this case is a perfect example of the dangers and pitfalls of such "hate speech" laws, demonstrating that while these provisions remain in force, Holland has a way to go to re-claim free expression—as do other European Union countries with such laws.
On their face, DPC 137c and d severely constrict free expression. DPC 137c imposes a penalty on a person who "publicly…deliberately expresses himself" in a way that "insults a group of people because of their race, their religion or belief…." Relying on the legislative history and a Dutch Supreme Court's 2009 opinion, the court significantly narrowed the scope of the provision, drawing a line between insults that the statute prohibits and those it does not. The court said the law penalizes a person for insulting religious groups based on their characteristics, but not for insulting them by criticizing their religion or behavior. Accordingly, critiques or insults of Islam, the Koran, or the behavior of Muslims are permissible, notwithstanding the statute.
Similarly, regarding DPC 137d, the provision penalizing incitement to hatred or discrimination, the court held that the provision targets speech that incites hatred or discrimination against people but allows criticism of religion. The court found that many of Wilders' statements criticized religion, and not people, and therefore were not prohibited under the statute.
The court explicitly interpreted the law in favor of freedom of expression; it said that although the incitement prohibition imposes some limitation on free expression, the legislature intended to maintain free expression as much as possible.
A significant aspect of the case concerned charges under DPC 137d for statements that Wilders made that the court found were against people, but that the court nevertheless ruled permissible under the statute. The court protected these largely because it found a heightened level of protection for speech made in the context of political debate—at least when made by a public official. The court even protected remarks that it considered discriminatory, provocative, or on the edge of being "criminal" because they were in the context of public debate. In fact, the court suggested that the more vehement the debate, the greater the protection: "there is more room for the freedom of expression in situations when it is a more vehement debate.…in those cases utterances may even offend, shock or disturb." The court seemed to agree with Wilders that he was engaging in political advocacy, fighting the ideas of a cultural movement, and not impugning the human dignity of a religious group.
Nevertheless, this case highlights the danger of "hate speech" laws. The court's opinion left open many questions about the reach of the Dutch penal provision. Free expression is protected in the context of public debate—but what constitutes public debate? What, if any, protection is afforded to expression outside the scope of public debate? To what extent is the free expression of non-politicians protected? These vagaries obviously put a deep chill on expression in Holland—and other countries that have such laws—with individuals censoring themselves for fear of facing criminal penalties for their expression.
Moreover, the court engaged in an inquisitorial review of each of Wilders' individual statements and depictions, to determine whether or not it crossed the line under the statute. Although the court ruled in Wilders' favor on each and every one, an ordinary person without Geert Wilders' resources might be loath to risk that level of scrutiny of their words—with the possibility of jail time for a miscalculation.
Significantly, this case highlights how these "hate speech" laws are open to abuse for political ends. Wilders' ordeal took place in the context of the rising popularity of the Party for Freedom, which he founded and leads in the House of Representatives. Some perceived this to be a politically motivated case, and to suffer from judicial bias. The prosecution never wanted to bring the case—characterizing Wilders' expression as part of the public discourse on Islam. The courts insisted they proceed (which a court could do under their system). Wilders' lawyers successfully requested a new panel of judges after one of the judges disparaged Wilders' exercise of his right to remain silent, and another judge allegedly met with a witness to influence him against Wilders. The prosecution ended its case by reiterating its earlier plea for a full acquittal. Fortunately, the new court panel acquitted Wilders.
The case exemplifies how, under the "hate speech" and group insult laws in the Netherlands and elsewhere in Europe, politically motivated prosecution can punish political adversaries and deter them from expressing their views. Such abuse is one of the most troubling consequences of criminalizing insulting expression, rather than penalizing only actions that physically harm or threaten a person.
Providing political background on Wilders' case, Daniel Pipes said: "the PVV is libertarian and mainstream conservative, without roots in neo-Fascism, nativism, conspiricism, antisemitism, or other forms of extremism." Pipes described Wilders as "the country's leading politician." Yet, due to the prosecution, Wilders was unable to engage fully in representing his constituency—he was busy defending his case for up to three days of every week. He could have been fined thousands of Euros and jailed for over a year. "Due to threats against his life," said Pipes, "he always travels with bodyguards and incessantly changes safe-houses. Who exactly, I wonder, is the victim of incitement?"
Mark Steyn has highlighted how political actors can apply "hate speech" laws unfairly, to punish and suppress ideas and individuals they oppose. Yet they rarely apply those laws to expression by their allies, or by those whose views don't trouble them as much—regardless how incendiary such expression may be. Steyn pointed out that Wilders' "movie about Islam, Fitna, is deemed to be 'inflammatory,' whereas a new film by Willem Stegeman, De moord op Geert Wilders (The Assassination of Geert Wilders), is so non-inflammatory and entirely acceptable that it's been produced and promoted by a government-funded radio station."
The Wilders decision affirms free speech in the Netherlands when it comes to political discourse. The court significantly limited the extent to which DCP 137 prevents officials from engaging in robust commentary in the public policy arena, even if the message is offensive. Wilders was brave enough to speak his mind, and to defend himself in court against the threat of criminal punishment, with the aid of supporters like the Legal Project. And he eventually prevailed. Yet the implications for the free speech rights of non-politicians or expression outside "public debate" remains a matter of speculation, and DCP 137 seems likely to continue casting a chilling pall on free speech until it is overturned or more thoroughly eviscerated. Wilders' acquittal, and the fact that even the prosecutors were loathe to proceed in the case, may indicate that tides are shifting, and that Dutch society wants to be free discuss public issues even when it comes to Islam. We at the Legal Project certainly hope so—and will continue working toward that end.
 Gezwel, HR 10 March 2009, LJN BF0655, was the Dutch Supreme Court (Hoge Raad) ruling in the "Islam is a cancer" case.
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