Both the Wall Street Journal and Janet Albrechtsen in The Australian believe that the recent judgment of a Dutch court that the Dutch MP Geert Wilders is to be prosecuted for inciting hatred and violence against Muslims in the Netherlands constitute yet another ‘assault on freedom of speech’. From their perspective, and Wilders’ own, a bit of muscular controversy is fine, all part of a healthy democracy. The idea that Wilders may have broken Dutch law means, says Albrechtsen, that ‘the tyranny of thought police has truly taken hold in the West’. For the Wall Street Journal it’s even more than that, it’s ‘the importation of Saudi blasphemy norms to Europe’, and ‘no small victory for Islamic regimes seeking to export their censorship laws to wherever Muslims reside’.
Albrechtsen concludes that it is important that Australia learn the appropriate lessons from the Dutch experience ‘before we make the same disastrous blunders’. But have any blunders been made by the Dutch? For anyone who takes the trouble actually to read the Dutch court’s judgment, not to mention paying attention to what Wilders has actually been saying the last few years, it becomes clear how misinformed this interpretation is.
Wilders is not being prosecuted just for his film, Fitna. On its own that would never constitute a basis for prosecution under Dutch or European law. The film is only one part of a rather large set of negative public comments Wilders has made about Muslims and Islam. It is not simply, as Albrechtsen portrays it, that Wilders ‘likens the Koran to Mein Kampf, caricatures the prophet Mohammed and includes footage of Muslim acts of violence and hatred’. He has repeatedly, consistently and in an extremely heated way argued in every possible public arena (television, radio, newspapers, the Internet), that all non-Western, i.e. Muslim immigration should be stopped immediately, and that ‘many’ Moslims should be deported; that the Netherlands has been swamped by a ‘tsunami of Islamisation’, that it has been subjected to an Islamic ‘invasion’.
In his own ever-charming words, ‘I’ve had enough of Islam in the Netherlands; no more Muslim immigrants. I’ve had enough of the worship of Allah and Mohammed in the Netherlands: no more mosques. I’ve had enough of the Koran in the Netherlands: forbid that fascist book. Enough is enough’.
The Wilders case is not simply a matter of whether Muslims are offended. It is about a clash between fundamental rights – on the one hand, the right to freedom of expression, and on the other the rights to freedom from discrimination and vilification on the basis of race or religion. The latter is not simply an Islamic belief that is being ‘imported’ into Western legal and political systems, it is a core element of Western norms and values themselves. How these different rights balance out cannot be declared easily in advance, one does not trump the other, it depends on the circumstances of particular cases.
The Dutch public prosecutor’s office had earlier decided that there was sufficient doubt about whether Wilders was in fact inciting religious hatred to preclude prosecution. The court felt that this displayed a lack of appreciation of ‘what is really going on’. It felt that it was clear that Wilders was aiming to encourage conflict and division in Dutch society, ‘to move the Netherlands population towards discrimination, intolerance, contempt, and animosity with respect to this group of believers, as well as herding them into a state of anxiety about this group.’ Not just what Wilders has been saying, but how he says it, repeatedly, with proposals for action and policy, showed for the court that he wants to do more than have the freedom to express his views: he wants to make a difference, get people to take action.
Despite his protestations that he has nothing against Muslims as people, Wilders has constantly constructed Muslims as a danger to Dutch society, linking increases in Muslim immigration with general increases in criminality and violence. The claim made by Wilders, and accepted by the public prosecutor, that he was targeting the religion, not its followers, is dismissed as so much sophistry by the court, calling it an artificial distinction. There is also extensive jurisprudence in the European identifying the logical and practical problems with the distinction, it just doesn’t wash.
As to the argument put by the public prosecutor that Wilders’ game is politics, not incitement to hatred and violence, it is important to recall the history of those provisions in Dutch law. They are not a recent product of politically correctness – they originated in the 1930s, precisely in response to politically motivated hate campaigns, against Jews, Christians and capitalists, in order to ‘raise obstacles against ‘the coarsening of the population in word and writing’ and against “the poisoning of the population that sows hate and resentment in our hearts and threatens to set in train dangerous feelings in a part of the population’.
In the past, people have been prosecuted and convicted for less. The Dutch anti-immigration politician Hans Janmaat, in many senses Wilders’ godfather, said ‘We will, as soon as we are in power, abolish the multicultural society’, and in 1997 was convicted for incitement to racial discrimination. In 2001, Mark Norwood, a member of the BNP, had a large poster in the window of his flat depicting the Twin Towers in flames, and the slogan ‘Islam out of Britain – Protect the British People’. He was prosecuted, convicted and fined under the Public Order Act for displaying a poster which was threatening, abusive or insulting, and likely to cause harassment, alarm or distress, the offence aggravated by being motivated by hostility towards a racial or religious group. His appeals to the Divisional Court and the European Court of Human Rights all rejected the argument that this was a breach of his freedom of expression.
In France, Gilles Soulas and Guillaume Faye, published a book titled ‘The colonization of Europe: Truthful Remarks about Immigration and Islam’. Its contents make it look a lot like Wilders’ handbook and rhetorical instruction manual. They were convicted in 2008 of inciting hatred and violence against Muslim North African communities, ordered to pay fines of 7,500 euros, and their reliance on freedom of expression was also rejected at all levels.
The jurisprudence is clear: if anyone, especially politicians, calls for discrimination and hatred, they are abusing the freedom of expression and there is no legal protection from any quarter. There is no unrestricted ‘right to insult’ if it deliberately excludes particular groups from social and political participation.
The Dutch court in fact rejected the complainants’ arguments concerning ‘group defamation’, concluding that, on balance, there was insufficient cause for criminal prosecution. They agreed that ‘the tradition of the Dutch culture of debate is based to a large extent on tolerance of each other’s ideas’.
But with his total rejection of Islam and the Koran, Wilders has been actively excluding Moslims from any public debate on the basis of their belief, and for the court this contradicts a fundamental norm of any stable democracy. ‘Whoever excludes someone from the social discussion, also places them outside the democratic rule of law …Whoever denies a community of believers their holy texts and houses of worship and wants to close or keep closed the nation’s borders to them, creates a image of an enemy that can arouse feelings of hate, based on intolerance, discrimination and contempt.’
The decision has been to prosecute – whether Wilders is convicted is still an open question. But if Albrechtsen thinks that all ideas should ‘tested in the furnace of opposition’, the fact is that being subjected to legal challenge is of the central chambers of that particular furnace, so it seems rather odd that suddenly we are supposed to become ultra-sensitive about people like Wilders being so challenged. If you can’t stand the heat, stay out of the kitchen.
Australia should indeed observe the Dutch experience and learn from it, and this will lead to differences as well as similarities in approach. But it is important to understand that experience properly, and what is happening in the Wilders case is not a matter of tolerance being hijacked by ‘social engineers opposed to free speech’, as Albrechtsen seems to think, or the imposition of Saudi Arabian standards on Dutch public life, as the Wall Street Journal claims – ridiculously. It is about asserting the claim that with freedom of speech comes at least some responsibility, especially for people in public roles like Wilders, and that there is no untestable democratic right to generate social division, hatred and contempt.