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Putting the Wilders Win in Context

Nina Shea

After being acquitted by a Dutch court of five criminal charges of hate speech against Muslims, parliamentarian Geert Wilders told reporters: “This is not so much a win for myself, but a victory for freedom of speech.” While Wilders was understandably happy and relieved he is not going to be spending the next 16 months behind bars, the significance of his victory seems overstated.

As I wrote in the Corner on October 17, “The Wilders case demonstrates the continued willingness of authorities in Europe’s most liberal countries to regulate the content of speech on Islam in order to placate Muslim blasphemy demands.” Wilders’ acquittal does not change that.

The presiding judge in the case determined that Wilders’s remarks were sometimes “hurtful,” “shocking,” and “offensive.” But the Court of Amsterdam reached its decision, as Reuters reported, by noting that “they were made in the context of a public debate about Muslim integration and multiculturalism, and therefore not a criminal act.” Thus, this case was decided on the basis that Wilders’s remarks were made in the proper context — in an ongoing public debate on specifically legitimate issues. Using this subjective criterion, the court evaluated the content of Wilders’ words to determine that they were lawful. In another context, or evaluated by another court, they might not be.

Wilders is not the first Dutch parliamentarian to have faced anti-Muslim hate-speech charges, and, based on today’s decision, he may not even be the last. Before Wilders, Dutch parliamentarian Ayaan Hirsi Ali was accused of hate speech against Muslims. In 2003, Hirsi Ali, a women’s rights activist born a Muslim in Somalia, was subject to a criminal investigation for hate speech for her statements linking Islam’s Prophet Mohammed to abuses against women in Muslim communities. While that case was dropped, she was subsequently forced to stand trial in a civil action in the Netherlands for hate speech after announcing plans for a film on the treatment of homosexuals in Islam, a prospect the complainant — Holland’s main Muslim lobbying group — found to both cause “a great deal of pain” and be “blasphemous.” The court did not rule against the defendant but merely reprimanded the MP for having “sought the borders of the acceptable.”

It would seem that the public comments of an influential parliamentarian, like Wilders and Hirsi Ali, would necessarily always be in the context of a public debate, even if his or her comments initiated that debate. Wilders essentially made that argument part of his defense, without avail.

Proceedings against Wilders were in their third year, after several false starts with the prosecutors first refusing to prosecute this case, then a ruling that the initial three judges hearing the trial demonstrated possible bias against Wilders, with a new trial ordered last October, and most recently an investigation into witness tampering by the judge who initially ordered the prosecution that ultimately found no judicial wrongdoing. The dogged adjudication of the Wilders case over the past 29 months shows that Dutch courts remain all too willing to regulate speech on behalf of Islam, even when public officials are talking about matters of public interest, publicly.

Moreover, the offences of “group insult” and “incitement to hatred,” set forth in articles 137 © and (d) of the Dutch penal code, remain on the books, and the Council of Europe and European Union require such laws in their member countries. These laws attempt to distinguish between speech against members of a religious minority, which is banned, and speech against the religion, itself, which is allowed. Wilders claimed his speech was the latter, while the court’s deliberations show that the two are easily blurred. Not even Wilders argued against the basic jurisprudence behind these laws.

Whether the Wilders case sets any useful legal precedent for an ordinary Dutch citizen is particularly doubtful. That Wilders has substantial political clout and conducted an effective international campaign to warn that “lights were going out” in Europe with such prosecutions no doubt helped his case, as the national Dutch media pointed out. Average Dutch citizens are very much left in the dark about what they can or can’t say about Islam with legal impunity. Then, there’s the matter of violence to consider; Wilders will continue to require bodyguards against those who have threatened him with death for blasphemy against Islam.

Even without a conviction in the Wilders case, the chilling effect on free speech on and within Islam continues to widen in Europe.

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