Wilders on Trial Part VI – A case of killing the Messenger?

Last Friday, yesterday (Monday) and today the Wilders trial continued. Last Friday was the last day for the Dutch prosecutors. As was to be expected a little bit they 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 her summation, prosecutor Birgit van Roessel 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, Van Roessel said. At the end of the day Wilders stated “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 of the 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.

An important argument is that Wilders is campaigning against Islam, and not against Muslims and that he does this within the realm of a broader social debate about integration, immigration and Islam/religion in society. Wilders indeed emphasizes loud and clearly that he is against the Islam and not against its adherents. Several of his ideas appear to show the contrary, but nevertheless it is repeated again and again, becoming a strong soundbite with high degree of resonance. The Supreme Court in the Netherlands has confirmed the relevance of this distinction between religion and religious adherents and this opens up a space for criticism on religion.
It also appears that there is a limit as to the extent in which hurt feelings can be the basis of a hate speech trial. In Bartholomew’s Notes on Religion there is a debate about this based upon a report of Humanity in Action (to whom I talked as well back then):
Netherlands Hate Speech Context « Bartholomew’s Notes on Religion

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.

The important thing indeed 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 on Monday. Muslims: Dutch MP a danger: News24: World: News

“Mr Wilders is a dangerous ideologist who has divided Dutch society,” Naoual Abaida (the complete statement can be read HERE, MdK), a trainee lawyer with a native Dutch mother and Moroccan father, told the court.

“I am asking you to protect me as a Muslim and a Moroccan against Mr Wilders,” she said, referring to his “Islam-bashing” and “insulting, polarising language”.
We are the daily target of xenophobic statements,” Mohamed Rabbae, politician and activist, told the judges as Wilders looked on, occasionally lifting his eyebrows or making faces.

“Our children have become unsure about their future (…) in this climate of discrimination, hate and enmity as propagated by Mr Wilders.”
[…]
This in turn caused “anger, bitterness and a deepening of the divide between Muslims and native Dutch”, said Rabbae.

Wilders’ accusers asked for a guilty verdict and a symbolic damages award of 1 euro. Although in particular their lawyers claimed to speak on behalf of all Dutch Muslims, this is not necessarily the case of course. mysask.com – World News

Arson. Attempted arson. Vandalism. Disturbances. Incivility to people attending mosques. Obscenities. Intimidating behaviour — they have all become everyday occurrences” as a result of Wilders’ public remarks, said Mohammed Enait, speaking for an alliance of Dutch mosques that had asked to testify as victims in the case.

Wilders denies inciting hatred of Muslims, and says he criticizes Islam because it’s an ideology that rejects Western values. He says it is not a crime to state what many Dutch voters believe.

Enait said Dutch Muslims have suffered tangible damage as a result of Wilders’ repeated negative remarks about Islam. He said there are countless incidences of “children being cursed at while they walk. Stories from women … who are spit upon, mocked because they wear headscarves.”

Enait, who is from Rotterdam, said the mosque he attended as a child had been burned down.

Dozens of mosques in the Netherlands were burned in 2004 in apparent retaliatory attacks after the killing of filmmaker Theo van Gogh by an Islamic radical who is now serving a life sentence.

Since then, such burnings have become less common but other incidents continue.

The lawyers were not allowed to attack the prosecutor’s tactics and to state that Wilders should be found guilty and punished, which caused a stir when the lawyers continued to do so anyway (many people actually stated that their performance was a farce because of it). When lawyer Enait called Wilders a ‘little Hitler’ (citing former MP Mohammed Rabbae) his lawyer intervened (although stressing that Wilders himself did not object for reasons of free speech). You can find the complete statements HERE (in Dutch).

Today Wilders’ defence lawyer Bram Moszkowicz was up to plead for Wilders. According Moszkowicz Wilders:
AFP: Dutch anti-Islam MP just ‘the messenger’: lawyer

“In his eyes, Islam is a totalitarian ideology,” the politician’s lawyer Bram Moszkowicz told judges of the Amsterdam district court on the first day of defence pleadings broadcast live via the Internet.

“He is trying to prevent violence from being committed with the Koran in hand,” the lawyer said, adding: “Don’t shoot the messenger.”

According to the lawyer Wilders has a right to freedom of speech, even more so because he is a politician. Wilders sees apparent dangers in society and needs to be able to address these. Moszkowicz also stated that the division in this trial is not Wilders versus Muslims, but ‘Dutch people, assimilated Muslims included’ against the ‘sowers of hatred’. He repeated that his client had been denied a fair trial:‘Wilders denied fair trial’ | Radio Netherlands Worldwide

Last year an appeal court ordered the Public Prosecutor’s office to press charges, despite its belief that the MP was protected by the right to free speech.

In his closing address, defence lawyer Bram Moszkowicz argued that this decision showed bias against his client and was tantamount to denying him the presumption of innocence.

I wonder if an acquittal of Wilders would create a paradox given the outline of the Dutch history on free speech given above. There are, with good reasons, restrictions on the freedom of speech and would not an acquittal create the impression that double standards are being applied here? While prosecuting and punishing anti-semitic statements the bigotted and sometimes clearly false statements on Muslims would not be no problem? We will see. Coming Thursday Moszkowicz will conclude his arguments and the verdict is expected on 5 November. I will keep you updated.

What I wrote earlier on this case:

Part 0: Outlining the case

Part I and II: Update

Part III: The Bouyeri Defense

Part III & IV: Wafa Sultan, Power, Freedom & Responsibility

Part V: Goodfellas and the Power of Words