Dutch populist anti-islam and anti-establishment politician Geert Wilders was on trial for intentionally offending a group of people based on their religion, incitement to hatred and incitement to discrimination. Today he was cleared on all charges. According to the court some of Wilders’ statements were insulting, shocking and on the edge of legal acceptibility, but should be allowed because they were made in the broad context of a political and social debate on the multi-cultural society. The interesting and complicated thing with that line of reasoning of course is that Wilders himself is constitutive of that debate; he monopolizes the debate and sets the harsh tone and scope of that debate.

The court said that talk of a tsunami of Muslims is ‘blunt and humiliating’ but ‘not subversive and does not incite to hatred or discrimination’. Furthermore, Wilders’ video Fitna could lead to feelings of hatred, but Wilders himself had not generated this feeling, the court said. Following the verdict Wilders said the ruling was a victory for freedom of speech: “I am extremely pleased and happy,” “This is not so much a win for myself, but a victory for freedom of speech. Fortunately you can criticize Islam and not be gagged in public debate.’ ‘Sometimes I meant to be coarse and denigrating,’ and: ‘In a political debate you must be able to say what you like.’
[youtube:http://www.youtube.com/watch?v=ooYpZBqSqx4]
This blogentry gives an overview of the trial and ends by engaging with the question if this trial was a good idea to begin with.

Opening statement of Dutch MP Geerd Wilders in… door khandaniha

It all started with the announcement of the movie Fitna in November 2007. According to Wilders to movie intendend to show to violent nature of Islam and the Quran (a license to kill). The police and the public prosecutor made it relatively easy to file a complaint against the movie. Immediately after its release the first complaint was filed and the forms necessary were already there. In June 2008 the public prosecutor decided however not to proceed with the prosecution because there were no unlawful elements in the movie. A strange decision. First one stimulates (before seeing the movie) people filing complaints, and then refuse to go on with it. Strange on behalf of the public prosecutor and one might add not very good for keeping confidence in the judiciary system because it stirs up things and leads people into a dead end. In January 2009 the Amsterdam appeals court orderded prosecutors to put Wilders on trial since ‘in a democratic system, hate speech is considered so serious that it is in the general interest to draw a clear line’. The court’s decision to prosecute is also in line with a previous decision in which a particular statement was not seen as inciting on its own, but it did within the particular context it was made. Other groups (including the people who made the complaints, a wide range of actors ranging from lawyers to one of the Salafi mosques in the Netherlands) have tried to frame it as incitement to hatred, insulting a religious group AND blashpemy. The latter however was turned down. The law on blasphemy is very strict and it is not even clear if making insulting comments about the prophet Muhammad is liable. See for more juridical details the brief by my Radboud University colleague Ybo Buruma. Framing it as blasphemy can be seen as attempt by religious status quo the protect the existing status quo, while making a movie bound to be experienced as blasphemous can be seen as an attack on that status quo. The same line of reasoning can be made with regard to incitement to hatred and discrimination and insulting a religious group. In both cases people want to defend their group from attacks that might be disruptive and threatening to the integrity of the group.

Framing the trial

How is the trial sold to the public? As said above, the authorities view the general in terms of ‘general interest to draw a clear line’. It appears to be self-evident that drawing a clear line is a good thing. One can wonder about that. The decision not to prosecute was made because of the context of the public debate in which the film was made which (needs to) leave room for people to make strong statements. In both cases we can see the reaction of the authorities as an attempt to de-politicize the whole issue by bringing it in and out and in again in the judicial system. This of course does not work. Wilders frames it different and contrary to the views of the authorities as a political trial meant to silence a politician who stands up for Dutch culture against the dangers from a violent and intolerant Islam that threatens to sweep the country. Wilders statement at the end of the trial gives a nice idea of how he framed the trial while the next video offers a glimpse of his ideas:

[youtube:http://www.youtube.com/watch?v=ToIBXT9U_Yo]

The Argument
The defense Wilders has put up in trial is that he is just speaking out on the truth about Islam. They called several so-called expert witnesses including Wafa Sultan. Like the other witnesses before her, Wafa Sultan claims Islam is essentially a violent religion striving to conquer and submit the free world. She is not against Muslims as she claims (like Wilders does as well) but the question of a particular Muslim is dangerous depends (in her view) about how deep their religiosity is. If, according to her, the person is very pious and so on, then (given the violent nature of Islamic teachings) the person is dangerous. If the person however appears not to be very pious, one still has to consider the possibility that he is playing tricks and deceives you with his moderate outlook. Anthropologist Gabriele Marranci has explained quite clear why that argument does not add up (see also HERE).Rhetoric such as this reduces the multidimensionality of the lives of Muslims and non-Muslims, making one dimension all-encompassing and primordial while obscuring other dimensions and their mutual influences. Islam as a threat is a collective action frame, aimed at mobilizing people is constructed in order to influence people’s perception of particular events and meanings attributed to those events. If one applies it often enough and when it resonates among people because it appears to be logical and self-evident given particular processes and events people have experienced, such framing works as a mental shortcut that provides people with an effective and efficient way to deal with information. It is a form of persuasive communication used by political and religious elites prior to and during conflicts attempting to mobilize people for collective action. In this case the idea of Islam as a threat is the central organizing idea by which particular incidents and statements are qualified as examples of Islamization. Wilders’ statement in court was very important in this regard. The new government backed by Wilders’ PVV, wanted to build bridges and has as a motto: Freedom and Responsibility. Wilders stated that this motto was not his and ‘I’m not really a building-bridges-type-of-guy’. The other central organizing idea is ‘freedom’ but he talks about a particular kind of freedom. It pertains to freedom of the supporters of the Freedom Party and its MP’s. It pertains to a freedom from governmental interference and being liberated from the totalitarian and intolerant Islam and at the expense of (Muslim) minorities that are neglected and marginalized.

The prosecutor
As was to be expected a little bit the prosecutor sought acquittal on all points of the charge. Maybe surprising for outsiders but note that prosecutors initially declined to press charges against Wilders in June 2008. Prosecutors told the court that Wilders’ statements may be “hurtful” or “insulting” to Muslims, but there was insufficient proof to convict him of trying to polarize Dutch society into antagonistic groups. He has never called for violence. In the summation, prosecutor said Wilders’ statements were made as part of the public debate “about the immigration and integration of nonwestern foreigners, especially Muslims.” “Standpoints can vary considerably and emotions can run high, but … it is a debate that it must be possible to have,” she said.

In one example cited by prosecutors, Wilders wrote in a 2007 opinion piece: “I’ve had enough of Islam in the Netherlands; let not one more Muslim immigrate,” and urged that the Quran be banned. The prosecutors said that statement, like others, was within the legal bounds of public debate. Many of Wilders’ statements seemed to denounce Islam as an ideology or its the growing influence in the Netherlands, rather than being intended as an abuse of Muslims as a people or group, according to the prosecutor. At the end of the day Wilders stated in the first trial “I don’t insult, I don’t incite hate, I don’t discriminate,” he said outside the courtroom afterward. “The only thing I do, and will keep on doing, is speaking the truth.” (copied from Yahoo! News). According to RNW:

Wilders off the hook | Radio Netherlands Worldwide

The prosecutors based their arguments on a few basic principles. In the first place, there is little jurisprudence in Dutch law to fall back on, particularly in the cases of incitement. The jurisprudence on the European level is somewhat broader, including recent cases decided by the European Court of Human Rights against Jean
Marie le Pen in France, and Daniel Féret in Belgium. The lawyers cited both cases, as well as a few cases in Dutch courts.

In addition, prosecutors maintained a very close, cautious reading ofthe law. Statements have to meet very specific criteria to be considered incitement. This is particularly true in the case of a politician taking part in a national debate.

The whole process was quite muddled and in October an appellate court ordered a re-trial that started in February. The important thing is to understand the different historic trajectories underlying the current state of affairs regarding free speech. It is in particular the perceived social evils that constitute the bases of the complaints against Wilders. Because we are in a court system, the way to address these social evils is to demonstrate that people are harmed by it. It is the principle of harm that makes people having to account for their choice (how) to express themselves. This is what the plaintiffs tried to do and they asked for a guilty verdict and a symbolic damages award of 1 euro.

Freedom and Power: dissensus ritual

Now was this trial a good idea to begin with? Many commentators think it wasn’t as for example David Poort shows in a recent Al Jazeera article. Part of the comments there are correct of course. Whatever the outcome Wilders will not stop his extremist message nor will the debate about the limits of freedom of speech be over. And yes probably the fact that Wilders continues to challenge the limits is one of the things many people like so much about him. And yes, a court room may not be the most suitable place for a public debate. Furthermore it is often pointed out that Wilders is criticizing Islam, not the people, and since Islam is not a race nor an ethnicity, the discrimination laws do (or should) not apply. Nevertheless some of Wilders’ remarks on Muslims or calling Islam a ‘desert religion’ clearly uses racialized stereotyping and framing. Also particular cultural markers (such as headscarves) may not be racial but in the debates they can become racialized. This can happen because, although Islam is not a race indeed, Wilders is in fact racializing Islam by seeing it as an immutable and all pervasive category that drives people to intolerant acts. Furthermore besides the Islam-card he also plays the nativism card in which the native Dutch population is also seen as an immutable category constituting a moral community based upon judeo-christian values; a moral community that is in fact white. Furthermore Wilders did, albeit in an indirect manner, incite to violence and hatred by stating about Islam “It is a violent ideology like communism and fascism and we should deal with it that way“. Now how exactly did ‘we’ deal with communism and fascism? Certainly not (only) by drinking tea with communists and fascists.

But there is more to it. During the last years Muslim activists have sought a way to adress their public views in a number of ways; from violent to peaceful and from petitions to demonstrations. Most of it not very effective and sometimes (the murder of Theo van Gogh) with considerable backlash against Muslim communities. The calm reaction of Muslims after the movie Fitna was praised and by some like Hirsi Ali seen as a sign that provocation actually works. By engaging a court case Muslim organisations (including a Salafi mosque) have stepped into ritual of court cases; a ritual that can offer a temporary solution to a complex and difficult political situation and that should transform a tense situation (as was clearly the case with Fitna) into a more balanced situation. It seems however that the whole trial did not lead to balance and social integration of conflictual standpoints, but to dissensus. We can think of other court cases that in similar ways appear to be dissensus rituals such as the US OJ Simpson trial as James Carey has suggested. A dissensus ritual does not (at least not immediately) lead to social integration but to a focus of the public on the existence of social crises and the escalation of such crisis. Relevant questions in this sense are: Does the trial and its verdict have any bearing on establishing, expressing and clarifying the new secularist order in this country? How are religious arguments viewed and how do religious group adjust to secular language in order to defend their claims? The other thing is how secularism plays a role here. The freedom of speech is a secular freedom, but how is it politically used by groups to mobilise people and legitimate their political actions? What does the politicization of the freedom of speech mean and what disciplining aspects play a role? And how does all of this more specific to (debates about) Islam in society? A next issue pertains to ‘group’ (a category used in the complaints). A group is not a thing in and of itself, groups are created for example by speaking about offending a ‘religious group’. The group is constructed on the basis of adherence to a religion, notwithstanding the fact that many people who filed complaints are not Muslim or religious at all. How does the notion of freedom of speech play a role in construction of a group as a coherent, cleary defined category of people?

The distinction between integration rituals and dissensus rituals however is not that strong as anthropologists have shown over and over again. Relegating the conflict between Wilders’ PVV and its supporters on the one hand and Muslims and anti-racism organisations on the other hand, and the state supposedly somewhere in the middle, decreases the conflictual aspects. It confirms that the natural order of how conflicts should be solved in this country is either by trial or by political debate. As such it establishes and reinforces a hierarchical order of how people should respond to the world. This order is not the same as years ago. In the 1990s Janmaat, a right wing leader, was convicted for wanting to abolish multicultural society; nowadays many people feel that conviction was wrong and, moreover, mainstream politicians have declared the failure of multiculturalism over and over again.

When rituals can establish a hierarchical order, power comes into play of course. As Friedman makes clear that not everyone has equal power in deciding what particular words mean. Wilders claims that his freedom his attacked by the trial; for the people who started the trial with their complaints (Muslims and non-Muslims) it is a strategy to have a stronger position in the negotiations over what is  allowed in contemporary society and what is not. For Wilders it is a (forced) attempt to remain master over his own words. Ultimately, as Friedman also makes clear, it is the state who decides in the trial. The fact that many, even those opposing Wilders, deplored that Muslims and others went to trial (and forced the state to do this) is very interesting in this regard. For some it is about warding off the power of the state for others it is concerning that Muslims can actually have power by exercising their rights or by what has been a called a ‘legal jihad‘. And I think here we encounter a problem with the trial against Wilders. The state has shown a reluctant attitude in this trial; first by not wanting to go to trial at all and second (after being forced to go to trial) by seeking acquittal on all charges. It is as if there is a ritual going on but one of the performers is reluctantly playing its part in the performance. This is detrimental for the function of the ritual in many ways. To name a few, it could give people the impression that, according to the state, politicians (such as Wilders) are above the law. It could also give migrants and Muslims (not for the first time) the impression that the state doesn’t really care about protecting them against hate speech and discrimination.

Look for example at the reactions of Moroccan and Muslims spokespersons after the acquittal of Wilders today:

Farid Azarkan of the SMN association of Moroccans in the Netherlands said he feared the acquittal could further split Dutch society and encourage others to repeat Wilders’ comments.

“You see that people feel more and more supported in saying that minorities are good for nothing,” Azarkan said.

“Wilders has said very extreme things about Muslims and Moroccans, so when will it ever stop? Some will feel this as a sort of support for what they feel and as justification.”

Minorities groups said they would now take the case to the United Nations Human Rights Committee, arguing the ruling meant the Netherlands had failed to protect ethnic minorities from discrimination.

“The acquittal means that the right of minorities to remain free of hate speech has been breached. We are going to claim our rights at the U.N.,” said Mohamed Rabbae of the National Council for Moroccans.

This in particular important because there seems to be a double standard at work here. When the Muhammad cartoons affair occurred a few years ago the Belgian Arab-European League (AEL) came up with cartoons that, for example, depicted Adolf Hitler and Anne Frank in bed together. They wanted to show the double standard that was being applied according to them with regard to cartoons referring to Islam and those referring to the Holocaust and the Jews. According to the appellate court however they (after initially a lower court saw no problem in the cartoons)the cartoons were more grieving than necessary for the public debate over the issue of double standards and they had to pay a fine. Unlike the Wilders trial the AEL trial wasn’t a major public and political event and (given the appeal) the prosecutor did its job. It appears that the current debates are so limitless and the behaviour of politicians and opinion leaders in the debate about Muslims and Islam is so blunt to the say the least, without anyone having enough authority among all parties to set some boundaries, that going to court is indeed the only way left to establish some limits. It is clear that the public prosecutor has an important role in that but the way it has operated here may even lead to even less authority for them.