Tuesday, December 13, 2016

What Was Behind the Trial of Geert Wilders?

Much has been made of the 2016 populist revolt in the West, beginning with Britain's June 23 decision to leave the European Union, and culminating with the victory of president-elect Donald Trump on November 8. The narrative of change is understandably seductive, but has recently been dealt successive blows by the domestic circumstances that so characterize European politics.
Despite traditions of liberty being placed at the heart of the successful Trump campaign, the promise of a new economic approach also enabled him to cross the line on election day.
The Brexit vote similarly took place under a referendum that allowed Britain's voting populace to defy the stated preference of the majority of their elected parliamentarians.
The most disturbing recent development on the European continent, however, was Friday's conviction of Geert Wilders on two charges, "inciting discrimination and insulting a minority group," for asking supporters whether they wanted "fewer Moroccans" in the Netherlands, at a small public rally in a bar in The Hague, on March 19, 2014.
This "hate speech" case against Wilders similarly pits popular alarm over the consequences of mass migration plus a principled politician who for years -- in the face of threats against his life, has agitated for genuine change -- against an untrustworthy, politicized legal system which appears at odds with both Wilders and popular alarm. Several Dutch Labour Party politicians, who said far more damaging things about Moroccans than Wilders did, yet were never prosecuted:
  • "We also have sh*t Moroccans over here." -- Rob Oudkerk, a Dutch Labour Party (PvDA) politician.
  • "We must humiliate Moroccans." -- Hans Spekman, PvDA politician.
  • "Moroccans have the ethnic monopoly on trouble-making." -- Diederik Samsom, PvDA politician.
Although Wilders's trial clearly appears an orchestrated miscarriage of justice, it is arguably not helpful to view the basis for his prosecution through an absolutist defense of freedom of speech, intuitively understandable to Americans. No constitutional equivalent of the First Amendment, which prohibits Congress from passing laws abridging the freedom of speech, exists in Europe.
This right, however, even in the U.S. is somewhat qualified, as laid out in Brandenberg vs. Ohio, but none of those exceptions would apply to Wilders (imminent danger and individual personalization). Under the strictures of the European Convention of Human Rights (ECHR), freedom of expression is a "qualified" right in much broader terms -- from which "left-wing" members of the Dutch Labour Party issuing the far more objectionable statements quoted above are apparently excluded: "the state may lawfully interfere with the right to freedom of expression in certain defined and limited circumstances."[1]
The arguments qualifying the conviction of Wilders, in the courtroom of the military base at Schiphol Airport, according to the presiding jurist Hendrik Steenhuis, were that the PVV leader's comments were "unworthy" of an elected member of parliament -- as Judge Steenhuis denied any assertion that the trial was politically motivated. Yet, are not elected Members of Parliament even more responsible to for the safety of the public than are other citizens? If elected officials are criminalized for speaking out, at what point do such restrictions start posing a national security problem?
Submitting to the questionable tenets of the ECHR, however, is a condition of EU membership. Dutch prosecutors expressed themselves "very satisfied" with the verdict, a spokeswoman adding, "the standard is set."
If Europeans are ever to stand a chance of unravelling the coils of laws constricting their throats, preventing their ability to speak out against the demographic redrawing of their countries or any other potential danger they may note, it may prove helpful understanding how this slow strangulation took shape.
The most compelling defense of hate speech laws was articulated by Prof. Jeremy Waldron, in 2012, who took issue with those believing that, "the bigoted invective that defiles our public environment, should be of no concern of the law."[2]
In a passage dedicated to expressions of opposition to Muslim immigration, in The Harm in Hate Speech, the NYU School of Law professor questioned those who maintain that:
There is nothing to be regulated here, nothing for the law to concern itself with, nothing that a good society should use its legislative apparatus to suppress or disown. The people who are targeted should just learn to live with it.
He counters:

...there is a sort of public good of inclusiveness that our society sponsors and that it is committed to. We are diverse ... And we are embarked on a grand experiment of living and working together despite these sorts of differences. ... And each person, each member of each group, should be able to go about his or her business, with the assurance that there will be no need to face hostility, violence, discrimination, or exclusion by others.

This sense of security in the space we all inhabit is a public good ... Hate speech undermines this public good, or it makes the task of sustaining it much more difficult than it would otherwise be.
Although the gross unfairness of Geert Wilders's prosecution is clear when compared with other Dutch politicians who have articulated far worse, there is also compelling evidence that much that is preached from the Koran in mosques daily would clearly fall under such a definition of "hate speech" -- also remaining curiously outside the attention of public prosecutors.
Given that "hate speech" damages the maintenance of dignity between groups and public safety, can a compelling case therefore not be made that "hate speech" laws mandated by the European Union are doing considerably more harm than good?
Is it not high time that lawmakers grasp how mass Muslim immigration, and the importation of the sectarianism unfortunately inherent in Islamic doctrine, undermine even more significantly these noble principles of "public good"?
How exactly are the terrorism, rape and crime waves that have accompanied such migration into Europe, likely to be addressed by the democratic process -- within the confines of such originally benign legislation -- when across the continent fundamental notions of security are already being so comprehensively undermined?
How are ordinary, decent, native Europeans ever likely socially and politically to articulate how they never consented to being part of a "grand experiment," without incurring the stain of bigotry accompanying this reasonable assertion, from friends and co-workers alike?
Are loyal citizens being cowed into silence, as in the world's most totalitarian nations, by prosecutions that can justifiably be seen as "making an example" of those who fail to toe whatever is the current political line?
More sinisterly, with three months until the polls open in the Netherlands, the verdict against Wilders may have had little to do with either incitement or "hate speech," and everything to do with a desire to curtail precisely the sort of public rallies which were hallmarks of both victories led by Nigel Farage in Great Britain and Donald Trump in the United States.
It is precisely these kind of public gatherings that do so much to convince those with entirely legitimate grievances that they are not alone.
Would it not be a remarkable irony if, rather than burying Wilders as the trial seemed intended to do, it instead propels him to victory?

[1] p.69 – Hare, I. (2009) "Extreme Speech Under International Human Rights Standards," in Hare, I. & Weinstein, J. eds. (2009) Extreme Speech and Democracy, Oxford University Press.
[2] pp. 3-5 – Waldron, J. (2012) The Harm in Hate Speech, Harvard University Press.

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