Controversial Dutch politician Geert Wilders has won an appeal against the decision of the British Government to exclude him from the country.
While the ruling in Wilders' favour, made by an immigration tribunal, can still be appealed by the British government, this outcome is, for now, an important victory for freedom of speech.
The government's decision, made early this year, was under 2006 regulations that allow the exclusion of individuals who represent:
A genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
However, in overturning the government's decision, the tribunal emphasised that the right of freedom of expression was important in a democratic society, even though opinions were expressed in a way that was bound to cause offence. The tribunal said:
Substantial evidence of actual harm would be needed before it would be proper for a government to prevent the expression and discussion of matters that might form the opinions of legislators, policy makers and voters.
As I've said in the past, I doubt that I would like Wilders if I knew him. If he had political power in the Netherlands, he would likely follow extreme and highly undesirable policies. But the immigration tribunal got this case right. Wilders should not be barred from entering liberal democracies such as the UK.
Public authorities bear a very heavy burden of proof before they interfere with the liberties of individuals on the ground of things that the individuals have said. Technically, entry into a foreign country could be considered a privilege, rather than a right, but that is simplistic under contemporary conditions. Generally speaking, we all have the legitimate expectation that we will be allowed to travel to other countries for peaceful purposes such as putting our views on a range of issues, and provided we have complied with all the immigration formalities.
Yes, Wilders' film, Fitna, does tend to invite hostile attitudes to Islam by juxtaposing verses from the Koran with images relating to acts of terrorism and incitements to violence against infidels and apostates. Wilders has also made other public statements that are likely to provoke hostility and cause offence. It's even possible, I suppose, that somebody might be inspired by Wilders' statements and/or by seeing Fitna to take direct violent action against Muslims. However, I do not believe that Fitna - ambiguous as it is - calls for this or that Wilders has done so elsewhere. Fitna may provoke some generalised hostility, but there is no call for any specific violent act or any class of violent acts.
Millian liberals might ask themselves whether the sorts of principles advocated in On Liberty would justify suppression of Fitna or other attempts to gag Wilders (including the recent efforts to keep him out of the UK). I doubt it.
On a Millian approach, the state would be justified in stopping Geert Wilders from addressing an angry mob and stirring it up to lynch nearby Muslims. But it would not be justified in preventing him from putting his views peacefully to the general population (this includes giving a lecture of the usual kind which is not directed at inciting a riot or a lynching).
In the first case, there's no time to respond to the situation other than by stopping him and dispersing the lynch mob. The state needs to have laws to deal with these situations. In the other case, Wilders' views may be wrong or even dangerous, but they can always be argued against. Individuals who see Fitna, or read about Wilders' ideas, or attend his speeches or lectures are not likely to be caught up in the mentality of a mob. Any individuals who just might be inspired to lawlessness can be deterred in the same way as other individuals who are inspired to lawlessness by anything else that might have the same effect. Thus, this whole situation is remote from the kind of circumstance where Mill would countenance the use of state coercion to stop someone's free speech.
I'm not suggesting that there can never be cases that where the risk of violence is sufficiently high and imminent to justify some kind of coercive action by the state. But Wilders has been in the UK before without stirring up lynchings or riots. He has also spoken in the US - even after he was barred from the UK - and has not stirred up violence. I see no evidence that he has ever crossed the line into the kind of clear incitement that should be cognisable by the law.
Let's be clear: if someone invited Wilders to be, say, a commencement speaker at a university, that might be a poor decision, and we might have very good reason to protest to the university adminstration, as many of us did when such an invitation was extended to Ben Stein not very long ago. No one has any legitimate expectation of being granted a great privilege of that kind. People who have the power to extend a prestigious platform to highly-divisive (or worse) speakers ought to consider how their power could be put to better use. But that does not entail that the state should interfere. I'd be just as quick to defend Stein as I am to defend Wilders, if an attempt were made to exclude him from entry into a foreign country.
When the state starts to prosecute someone for what they've said, or when it tries to keep someone out of the country for nothing more than that, it needs compelling justification. If there is any ambiguity, we should lean towards freedom of speech.