June 02 2017

Geert Wilders: a ‘free speech martyr’?

Dr Erica Howard, author of the paper ‘Freedom of Speech versus Freedom of Religion? The Case of Dutch Politician Geert Wilders’ and forthcoming book Freedom of Expression and Religious Hate Speech in Europe, explores whether prominent Dutch politician Geert Wilders has been unfairly treated over his extreme views.

Geert Wilders is a member of the Dutch Parliament and the leader of the Dutch right-wing Party for Freedom (PVV), which he founded himself in 2006. He is strongly against Islam and what he calls the Islamisation of the Netherlands.

Islam is, in Wilder’s view, a religion with extreme views that wants to destroy Western civilisation, is violent and wants to subjugate and convert non-believers. He has likened the Quran to Hitler’s Mein Kampf and has linked Islam with criminality. Wilders advocates closure of the Dutch borders for Muslims and loss of Dutch nationality for Muslim criminals.

Wilders has talked about this in quite immoderate terms in many interviews and on Twitter during the last decade or so. In 2011, he was prosecuted for group insult and incitement to hatred, discrimination and violence, but he was acquitted of all charges. Then, at a post-vote meeting with supporters at the time of the local elections in March 2014 in The Hague, Wilders asked the crowd “And do you want more or fewer Moroccans in your city and in the Netherlands?” To which the crowd chanted: “Fewer, fewer, fewer.” “We’ll arrange that,” Wilders said, smiling, when the chanting died down. This and similar comments made at a market a week earlier, led to over 6,500 complaints to the Public Prosecutor’s office.

Found guilty with no penalty

Wilders was subsequently prosecuted and, in December 2016, convicted of group defamation and incitement to discrimination, but the court did not impose a penalty. In its considerations, the fact that the “fewer Moroccans” remarks were clearly thought out and orchestrated and were meant to have as much media impact as possible played a role. Moreover, it was clear to the court that there had been a discussion on whether to ask about ‘criminal Moroccans’ or ‘Moroccans’ and Wilders had decided to ask about ‘Moroccans’. Wilders’ remarks were thus aimed at the whole group of Moroccans living in the Netherlands and labelled them as of less value than other people and this was covered by the offence of insulting a group based on race. The court did not impose any penalty because it considered that the determination that the accused, as a politician was found guilty was sufficient penalty. Both Wilders and the Public Prosecutor have appealed this decision.

Throughout both trials, Wilders continuously repeated that he was prosecuted for exercising his right to freedom of speech – in other words, he painted himself as a ‘free speech martyr’. He claimed that he was only saying what a lot of people in the Netherlands were thinking and were worried about and, thus, that he was contributing to the public debate. Wilders was thus using the language of human rights to defend his expressions.

Freedom of speech is not absolute

So did his conviction breach his right to freedom of speech as guaranteed by the European Convention of Human Rights? The Convention guarantees the right to freedom of expression or speech, but this right is not absolute and can be restricted under certain prescribed circumstances. However, the European Court of Human Rights has consistently held that exceptions to the right must be narrowly interpreted and the necessity for any restrictions must be convincingly established.

A number of other points can be taken from the case law of the European Court of Human Rights on the right to freedom of speech:

• The importance of the right for the proper functioning of a democratic society has been stressed regularly, as has the role played by elected politicians in this. Wilders was and is speaking as an elected representative of the people. In fact, his party is the second largest party in the Netherlands after the elections in March 2017;
• Criminal measures against speech should only be used as a last resort because an opponent of official ideas and positions must be able to find a place in the political arena;
• The freedom of speech is particularly broad when it concerns matters of public interest or expressions that contribute to the public debate.  It can be said that Wilders’ expressions about Islam and Moroccans are raising issues about the multicultural character of Dutch society, about immigration and integration, which many people are currently very worried about and thus that these remarks do, indeed, contribute to the  public debate; and,
• A politician can, according to the European Court of Human Rights, use offensive, shocking, disturbing language, can exaggerate and provoke, and be controversial and virulent because of their important contribution to the political and public debate. This is indeed often the way politicians get their message across and they should be able to canvas for votes.

But does this mean that offensive expressions will, in all circumstances, be protected by the right to freedom of expression? No, this is not the case as the Court has found restrictions on expressions of politicians to be compatible with the freedom of expression in some cases because these expressions incited to hatred and violence against a particular ethnic or religious group. But it can be argued, with support from some of the Court’s case law, that political speech can only be limited when it incites to hatred or violence and there is a real likelihood that violence will follow.

The importance of open debate

This seems very similar to the approach adopted in the USA towards freedom of speech. The crucial importance of an open debate for a democratic society relies on the right to freedom of expression. Allowing for broad restrictions on speech including (and especially) political speech would have a ‘chilling effect’ on freedom of speech: it would lead to self-censorship and stop people from expressing themselves and this would have serious effects on the public and political debate, especially if it stopped politicians, and even more so, opposition politicians, from speaking out about what they see as problems in society.

Geert Wilders’ expressions, even his “fewer Moroccans” remarks, did not incite to hatred and violence and there was no real likelihood that violence would follow (and it did not follow). Therefore, the European Court of Human Rights could well find that his conviction breached his right to free speech and so, in this sense, he could be seen as a ‘free speech martyr’, prosecuted for exercising his human rights.

Freedom of Expression and Religious Hate Speech in Europe will be published this August by Routledge.

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Tags: discrimination, diversity, Dutch, European Convention on Human Rights, far right, freedom of speech, Geert Wilders, Holland, human rights, immigration, law, Netherlands, politician, politics, right wing