Friday, January 23, 2009

Criminalizing Speech in the Netherlands

The open, accommodating Netherlands of renown is gone. Now, not only can you expect to be murdered for creating a controversial documentary questioning aspects of "Islamic culture" (RIP Theo van Gogh); now, calling for a ban on the Koran can expose you to criminal prosecution:

Freedom Party leader Geert Wilders made headlines around the world in March 2008 with his film "Fitna," which juxtaposed Koranic verses against a background of violent film clips and images of terrorism by Islamic radicals.

In 2007, Wilders called for a ban on the Koran "the same way we ban 'Mein Kampf."' He said both Adolf Hitler's work and the Muslim holy book contain passages that contradict Western values.

The Amsterdam Appeals Court called Wilders' statements in his film, newspaper articles and media interviews "one-sided generalizations ... which can amount to inciting hatred."


The three judges said they had weighed Wilders' anti-Islamic rhetoric against his right to free speech, and ruled he had even gone beyond the normal leeway given to politicians.

Because Wilders has not yet been charged, it is not clear what maximum penalty he could face if convicted.

While judges in the Netherlands generally are loathe to become involved in public debate, the court said it was making an exception in the case of Wilders' comments about Islam.

"The court considers this so insulting for Muslims that it is in the public interest to prosecute Wilders," a summary of the court's decision said.

Gerard Spong, a prominent lawyer who joined Islamic groups in pushing for Wilders' prosecution, welcomed the decision.

"This is a happy day for all followers of Islam who do not want to be tossed on the garbage dump of Naziism," Spong told reporters in Amsterdam.

First of all, banning Mein Kampf is problematic in and of itself. It is this very book-banning which lends support to calls for any other books to be banned. If Mein Kampf is bannable because it promotes intolerance, why not ban religious books? For example, the Old Testament clearly promotes intolerance of non-Hebrews; why not ban the Old Testament? If Mein Kampf is bannable because it advocates a purportedly universal ideology, why not ban the Koran, which advocates a world united in Islam? Why exactly is Mein Kampf bannable, and who decides what the grounds are for a ban?

Second, all that Geert Wilders has done is call for a ban. This is far more peaceful than strident street demonstrations calling for the sacking or killing of editors who publish "sacrilegious" cartoons. Where are the calls for criminal prosecution of those people?

In our view, freedom of expression gives us the transparency by which we can identify stupidity, ignorance, intolerance, and hatred. It takes much, indeed, for an expression to amount to "incitement", and "inciting hatred" is nowhere near imminent enough to be a "clear and present danger." We are reminded of the wisdom of Justice Brandeis' concurrance in Whitney v. California, 274 U.S. 357 at 377 (1927):

To courageous, selfreliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

If a person is so easily incited to act on his hatred that he would take action "so imminent it may befall before there is opportunity for full discussion", Law Law Stud believes such a person is not reasonable at all. The fact that Islamic groups have taken the time to protest Geert Wilders' provocative suggestions is clear evidence that they are not so unreasonable as to be incited to imminent action by such insults.

Is the Amsterdam Appeals Court really suggesting, then, that Muslims are not reasonable? In a society that prides itself on tolerance, such low expectations are nothing if not soft bigotry most intolerant.

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