A controversial Dutch parliamentarian faces trial for violating hate speech laws in a case that presents a huge new threat to Western norms of free speech, free debate and critical inquiry.
On January 21, the Amsterdam Court of Appeals ordered the criminal prosecution of Geert Wilders, who produced the 2008 film Fitna which argues that the Koran provides the ideological fodder for Islamic terror.
At issue are the film and assorted remarks of Wilders, leader of the right-wing Freedom Party who already receives police protection due to threats on his life from Islamic forces.
Wilders has referred to “fascist Islam,” called the Koran the “Islamic Mein Kampf,” and described Muslim immigrants as “Muslim colonists” who seek “to subjugate us.” Fitna juxtaposes Koranic verses against images of terror.
The criminal case has received scant attention in the United States over the last week for at least two reasons.
First, the court issued its ruling a day after Barack Obama’s inauguration, with Americans consumed with pride over the nation’s social progress while consumed with worry over the economy.
Second, and more troubling, informed Americans and the media have downplayed the threat that radical Islamic forces are mounting, from both outside and inside Western societies, to basic freedoms that, the radicals say, violate their interpretation of Islamic doctrine.
Make no mistake, this is no obscure criminal matter. It is a case about big issues: What is free speech? Should a democratic society seek to balance it against efforts to protect racial, ethnic or religious groups from insult? Do hate speech laws prevent an honest assessment of threats to democratic society?
To be sure, free speech is no simple concept. Even in America, the right comes with limits. In Schenck v. United States in 1919, Supreme Court Justice Oliver Wendell Holmes Jr. famously wrote, “(t)he most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.”
The Wilders case, though, is even more complex. It reflects a swirling battle among 1) global Islamic forces who seek to criminalize all criticism of Islam; 2) Gilders and others who believe the West is succumbing to an Islamic legal, political, and economic onslaught; and 3) Western governments that would like nothing more than for the issue to go away.
Consider how the case came to fruition. Receiving complaints against Wilders, a Dutch prosecutor investigated the matter for six months before deciding not to take action, ruling that Wilders’s comments contributed to legitimate debate about Dutch society.
When Wilders’s critics stepped up their attacks, the three-judge appellate court overturned the earlier decision and ordered a prosecution, with conviction carrying the potential for two years in prison.
The court’s decision is a study in Orwellian logic, with unconvincing feints of fealty to principles of free speech.
Wilders’s prosecution and possible conviction “does not necessarily conflict with” his freedom of expression, the court said, “since statements which create hate and grief made by politicians, taken their special responsibility into consideration, are not permitted according to European standards . . .
“In general,” the judges said, “the court determines that the traditional Dutch culture of debating is based on tolerance of each others’ views to a large extent” and “[a]s regards insulting statements the Court of Appeals prefers the political, public and other legal counter forces rather than the criminal law.”
But, the court said, due to Wilders’s harsh comparisons of Islam and the Koran to Nazism and Mein Kampf, respectively, his statements were “insulting to such a degree for a community of Islamic worshippers that a general interest is deemed to be present in order to prosecute Wilders . . .”
Well, the right to free speech is meaningless if it does not apply specifically to harsh rhetoric or insult. It is controversial opinions that need protection, not those that do not stir emotion.
Perhaps, as Holmes wrote, free speech has its practical limits. But it surely should extend to questions about how strict adherence to religious dogma relates to Western notions of tolerance and critical inquiry.
A day after the ruling, the new International Free Press Society called it a “devastating blow to political expression,” asking: “(W)ho in the Netherlands will dare discuss political and cultural matters related to Islam – Islamic law, Islamic integration, Islamic crime, Islamic policy – openly, freely, and fearlessly?
“If, indeed, Wilders is ultimately convicted,” the group concluded, “free speech will cease to exist in the heart of Europe.”
All friends of free speech should take notice.