Geert Wilders is a member of the Dutch parliament and the head of its third largest party, the Party of Freedom (Partij voor de Vrijheid or PVV). He was criminally charged, and stood trial, for remarks he made that were critical of Islam. Wilders was acquitted of all charges on June 23, 2011.
Wilders is an outspoken critic of what he sees as an Islamist threat to Holland's tolerant culture. In 2008, he released a documentary film, called Fitna (Arabic for "strife"), that juxtaposed violent passages from the Qur'an with video of imams advocating violence and footage of Islamist terrorism. Soon after the film's release, a radical Dutch imam who appeared in it sued Wilders for "hurt feelings," claiming 55,000 euros in damages. Meanwhile, the Jordanian government has requested that Holland extradite Wilders to stand trial for blasphemy, a capital offense under Islamic (Shari'ah) law.
In June 2010, Wilders' party, the PVV, a libertarian and mainstream conservative party he founded in 2004, won 24 of the 150 seats in the Dutch legislature—an enormous feat, especially given that the PVV is the only party in Holland to refuse state subsidies.
Wilders has tapped into genuine concerns surrounding his country's Muslim minority—without appealing to nativist, neo-fascist, or anti-Semitic sentiments. Nevertheless, he has been subjected to a full-on assault, spearheaded and supported by: (1) people seeking to suppress critical expression about Islam-related matters, and (2) people seeking to restrict political debate in the name of multiculturalism and political correctness. A stalwart defender of free speech in the face of such attacks, Wilders was nominated for the European Parliament's 2010 Sakharov Prize for Freedom of Thought in July 2010.
Until his recent acquittal, Wilders' stature as one of Holland's leading and most popular politicians did not protect him. On the contrary, Dutch hate speech laws may have served as a potent tool for his political adversaries.
Indeed, the case against Wilders arose after several leftist and Islamic organizations sought his indictment. The public prosecutor's office initially declined to charge him, characterizing his film and other public statements as a contribution to the public discourse on Islam. However, in 2009, Wilders' opponents convinced an Amsterdam Court of Appeals to order his prosecution for "insulting" Muslims and for "incitement to hatred and discrimination." No court in the United States has similar authority to order prosecution when the prosecutor has declined to go forward.
A month later, British officials denied Wilders entry into the United Kingdom, designating him "a threat to the public order and public harmony." They apparently were apprehensive that Wilders' visit could provoke a non-peaceful response in Britain's Muslim communities—essentially imposing a preemptive hecklers' veto on Wilders' very presence in the country. The ban has since been scrapped.
The Trial and Verdict:
In the meantime, back home, Wilders' prosecution moved forward. He was indicted on five counts under articles 137 c and 137 d of the Dutch Penal Code (DPC) for statements made in interviews, articles, and the film Fitna. He faced a possible fine or up to a year in jail. The charges against Wilders were brought under Dutch Penal Code Article 137 c and d, which impose a penalty on a person who
(c) "publicly" and "deliberately" expresses himself in a way that "insults a group of people because of their race, their religion or belief…" or
(d) publicly incites hatred, discrimination or violence of people… "on account of race, religion, convictions," etc.
On its face, the language of article 137 c appeared to criminalize any speech that insulted a member of a protected group. That would give every group member veto power over what another person could say or write or depict about the group. Even expressing well-documented truths could be a crime.
In an important victory for free expression, the district court significantly narrowed article 137 c's reach. Relying on the parliamentary history and a Dutch Supreme Court decision, the court held that the provision does not apply to speech critical of a religion, or to speech critical of a group's beliefs, activities, or behaviors—no matter how insulting a group member may find it. Rather, the provision applies to discrediting the group for belonging to a particular race, or professing a particular religion or belief, or for having particular characteristics.
Having thus narrowed Article 137 c's sweeping reach, the court reviewed each of the utterances for which Wilders was indicted under the provision, and found that none of them falls within the statute's prohibition.
For its analysis of 137 d the court again turned to statements by the legislature; it held that the provision targets speech that incites hatred or discrimination against people but allows criticism of religion. The court found many of Wilders' remarks to be permissible under the statute because they were about Islam rather than Muslims. The court determined that still other statements were permissible because they did not constitute incitement to hatred or discrimination.
The court pointedly interpreted the Section 137 d incitement prohibition in the context of the right to free expression. Although the incitement prohibition imposes some limitation on free expression, the court said, the legislature intended to maintain free expression as much as possible.
Indeed, the court held that certain remarks that might otherwise have met the statute's criteria, and might have been actionable, were excluded from the statute's reach because of the context in which they were made—namely, they were made by a politician in the context of a public debate.
While the court apparently was carving out a public debate exception to the incitement law—providing important protection for free speech—the scope of that protection is unclear. In particular, the court did not clarify what constitutes "public debate," whether the exception applies to all speech in the context of public debate, nor whether public figures get special protection. In addition, the court said nothing about the permissibility of similar speech outside the "public debate" context.
Unfortunately, because the line the court drew between permissible and impermissible expression was somewhat imprecise, it may not provide a clear guide for prospective speakers. This will have a chilling effect on free expression, as individuals will be wary of crossing an imprecise line and finding themselves facing criminal charges for saying the wrong thing. The court's labored scrutiny of each of Mr. Wilders' utterances, to determine whether or not it was prohibited by the statute, will only increase that chill.
Wilders' acquittal of all charges—and the court's narrow construction of the Dutch penal provisions—constitute an important victory for free expression. Yet while these provisions remain on the books, along with the court's somewhat abstruse interpretation of them, they cast a chilling pall over free speech.
The Legal Project's Support of Wilders:
Although the Legal Project does not endorse Wilders' views on Islam, we believe differences in political opinion must be open to free discussion and debate—and that no citizen should be exposed to criminal prosecution for weighing in on such matters. The Legal Project remains committed to preserving the right to speak about issues related to Islam as freely as about any other issues.
Accordingly, the Legal Project has worked on Wilders' behalf and has raised substantial funds for his defense.
Mark Steyn – "The Absurd Trial of Geert Wilders" – How the Netherlands is de-legitimizing itself by prosecuting Geert Wilders' political platform.
Bret Stephens – "Geert Wilders Is a Test for Western Civilization" – Why, irrespective of his politics, Geert Wilders should be defended against charges of hate speech.
Leon De Winter – "Stop the Trial of Geert Wilders" – A Dutch novelist's take on the prosecution of Geert Wilders.
Daniel Pipes – "Why I Stand with Geert Wilders" – A look at the implications of Geert Wilders' trial for free speech rights and Europe's future.
Wilders On Trial – Information and news about Geert Wilders' ongoing trial.
Geert Wilders Lauds Legal Project
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