• First published in 2004 as Bartholomew’s Notes on Religion (BNOR).

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Netherlands Hate Speech Context

As the Dutch MP Geert Wilders faces prosecution for his anti-Islam Fitna film, there has been much pontificating about “Dhimmitude”, but little attempt to place the appeal court’s decision in the context of a history banning things in the Netherlands that are considered to be hateful. An organisation called “Humanity in Action” carries an interesting article published in 2000 entitled “The Criminalization of Hate Speech in the Netherlands”, by Ruth Shoemaker and Hadewina Snijders. As they note:

Out of the Dutch ratification of the [1966 Convention on the Elimination of Racial Discrimination]  in 1971 came an expansion of Dutch criminal law towards limiting the public expression of hate speech. Because of increasing hate speech in the late 1980s and early 1990s and new waves of anti-Semitism throughout Europe, the Dutch government committed itself to enforcing stricter limitations on racist speech and criminalized Holocaust denial. 1994, for example, marked the first time in Dutch history that political party leaders were personally convicted based on their official party platform when leaders of the Centrumdemocraten party were prosecuted for the espousal of their extreme-right ideology. Additionally, the political party itself was convicted the same year for its racist agenda. Also rooted in a more direct commitment on the part of the Dutch government to limiting and prosecuting hate speech is the difficulty extreme-right groups face when attempting to secure permits for public events and demonstrations…

Anti-Holocaust denial laws, for instance, mean it is illegal to argue against the authenticity of The Diary of Anne Frank.

However, one aspect of the Wilders prosecution case that is particularly troubling is that the charge of “insult” has been added to the allegation of inciting hatred. According to a report on the Appeal Court’s decision:

…most statements are insulting as well since these statements substantially harm the religious esteem of the Islamic worshippers. According to the Court of Appeal Wilders has indeed insulted the Islamic worshippers themselves by affecting the symbols of the Islamic belief as well.

The idea that hurt feelings can be the basis for banning something is of course rather alarming, although the Court adds an important qualification:

As regards the insult of a group the Court of Appeal makes a distinction. In general the Court determines that the traditional Dutch culture of debating is based on tolerance of each others views to a large extent while Islamic immigrants may be expected to have consideration for the existing sentiments in the Netherlands as regards their belief, which is partly at odds with Dutch and European values and norms. As regards insulting statements the Court of Appeal prefers the political, public and other legal counter forces rather than the criminal law, as a result of which an active participation to the public debate, by moslims as well, is promoted. 

However, the Court of Appeal makes an exception as regards insulting statements in which a connection with Nazism is made (for instance by comparing the Koran with “Mein Kampf”). The Court of Appeal considers this 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 because of this.

In itself, then, the decision seems to be an extension of the limitations which have been placed around discussion of Nazism in the Netherlands; but should the case succeed how long will the “distinction” remain in place in the face of further claims of “harm to religious esteem” from all kinds of religious groups, for all kinds of reasons?

Wilders claims that his prosecution is “political”. It doubtless is, and no one is probably more pleased with it than Wilders himself. To return to that essay by Shoemaker and Snijders:

Interestingly, [far-right politician Joop] Glimmerveen reiterates [the] belief that criminalizing hate speech changes the nature of political parties, but he suggests not that the extreme-right becomes more moderate, but rather that other groups that subtly espouse rightest agendas mask these agendas behind facades of liberalism and, in doing so, gain more mass support than extreme-right groups that espouse similar philosophies in a more open manner. As support for this position, Glimmerveen claims that the Volkspartij voor Vrijheid en Democratie (VVD), a liberal party in the Netherlands, holds the same antiimmigrant ideas that the extreme-right Dutch People’s Union espouses, yet the VVD gains more support because in presenting their ideas more covertly, they avoid the stigmas associated with the extreme-right.

And if there’s anyone who’s actually interested in my view, I’ll repeat a point I’ve written before: I favour universal protections for free speech along the lines of the American First Amendment. However, the historic fact is that in most democracies free speech has been balanced against other factors deemed to be socially desirable. Thus some countries have laws against Holocaust denial, to prevent Nazi revivalism; some have laws against blasphemy, to prevent inter-religious strife and to keep the wrath of God at bay; some have laws against mocking the monarch, to avoid possible civil disturbance caused by undermining the established order. Unless you have a society where free speech is treasured as absolute virtue in itself, as we see in the USA, this is hardly a surprising state of affairs. Since intercommunal hatred and prejudice against ethnic and sexual minorities are clearly social evils, the easiest response is (or at least seems to be) to limit freedom to express views that might tend to provoke these things. Thus Mark Steyn faces investigation for anti-Muslim views in Canada, a Swedish pastor gets sentenced to jail for attacking homosexuality (so much for “Euarabia” there, by the way), and French journalists get fined for the “racial defamation” of Israeli Jews (ditto). And in the UK, we see the (failed) prosecution of the leaders of the BNP. Of course, those of us who have a more “American” view of free speech will see such laws as counter-productive and confused and tending towards other evils that must be opposed, but that’s the context in which they come into existence and are applied; conspiracy theories about Muslims and “cultural Marxists” miss the point.