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Australian philosopher, literary critic, and professional writer. Author of FREEDOM OF RELIGION AND THE SECULAR STATE.

Thursday, October 21, 2010

Lorne Gunter on Wilders

Over at The National Post (whatever that is). Sample:
... if one uses the reverse test, no court would ever prosecute Mr. Wilders for saying similar things about Christianity and the Bible. Why, then, should courts, governments or human rights commissions accept Muslims’ outrage or hurt feelings as the trigger for prosecutions and investigations, when those institutions (rightly) would never dream of doing the same to protect Christians, Jews or others from offence?

Last week, Dutch prosecutors asked the judges hearing Mr. Wilders’ case to acquit him. This appears to be good news, but it may prove otherwise.

Two years ago, the Dutch courts overruled prosecutors and implemented charges against Mr. Wilders after prosecutors refused to bring another case against him. And this week, judges whittled Mr. Wilders’ witness list down to three, from 18, while at the same time adding to the witness list against him the Muslims groups that initiated the complaints that led to his arrest.

If there is any justice in the Netherlands, or enough backbone to defend Western civilization, Mr. Wilders will go free.

I'm still scratching my head as to why this is not a straightforward freedom of speech case, however, exactly, we try to draw the boundaries of free speech. It's still beyond me what Wilders has said that could merit criminal prosecution. As Gunter is saying, I want the right to say similar things about Christian fundamentalism or other belief systems that I think merit harsh criticism.

19 comments:

ColinGavaghan said...

Obviously a partisan source, but this site contains a lot of detail on the prosecution: http://www.wildersontrial.com

Ybo Buruma has also written a useful essay on this:

http://blogs.jur.ru.nl/yboburuma/2009/12/18/mr-wilders-trial-background/wilders-trial-3-21/

ColinGavaghan said...

If I might also give a plug to a relevant article by a good mate:

Kay Goodall, 'Incitement to Religious Hatred: All Talk and No Substance?' The Modern Law Review (2007); 70(1):89–113

(With apologies to non-subscribers; academic writers hate paywalls too!!)

Neil said...

...The National Post (whatever that is).

Since you ask, it is a right wing Canadian newspapers, notable for its climate science delusionism in particular. It has a record of Fox-style views on Islam.

Of course that is not meant to address the argument. FWIW, I don't think the argument "there would be no fuss were someone to insult Xians, therefore it can't be a problem to insult Muslims" is any good. Compare:

gays are evil
straights are evil.

I agree that we ought to have a level playing field, but what makes a playing field level is socio-economic factors (which vary from country to country). Here in Oz we typically refrain from mocking Aboriginal spirtuality, though of course it is no less nonsensical than Xian/Muslim/FSMism.

Eamon Knight said...

Over at The National Post (whatever that is).

Canadian national paper, somewhat right of the Globe & Mail. (Since I don't read it, I don't know how far right).

Russell Blackford said...

I suppose most good-willed Australians are less inclined to criticise Aborigal beliefs than to criticise, say, Roman Catholicism because we consider Aboriginal beliefs to be less a political threat in current or imaginable circumstances and/or because we feel a special solicitude towards the Australian Aborigines, based on historical circumstances (given their dispossession by invaders, etc). I don't think we feel any special solicitude towards Muslims.

I might find it tasteless or misguided or morally wrong if someone spent time criticising Aboriginal beliefs. But I'd still want to have the legal right to do so, and, for example, to say without fear that they are "nonsensical". I'd defend the legal rights of someone else who said such a thing. We're not talking about "fuss" here; we're talking about legal rights (or at least, short of that, political norms).

I don't think it's viable to have a provision for, or interpretation of, something like a legal right or political norm protecting free speech, if it says that it's legally/politically not okay to say "gays are evil" but okay to say "straights are evil". (Whether we should be able to say of any group that they are actually evil is another thing.)

Likewise, for people who want to say, "Islam is evil" rather than "Catholicism is evil". If your legal/political right to free speech selects in advance who has the protection (critics of Catholicism) and who doesn't (critics of Islam) then for all sorts of reasons it just won't work. No one is going to support such a right unless they know it will apply to them (especially if they think it will apply to possible opponents). Besides, such rights are supposed to remove certain questions from majoritarian politics. That means that the applications in future cases are left open and don't get settled one by one as they come up. An arrangement like that can be sold widely and can become a kind of social contract, because everyone gets a potential freedom from the wishes of the state/electoral majority into the future.

However, the idea is that there will be things that are protected by the legal right or political norm that are (by whatever standards apply) morally wrong.

In my case, I want to be able to say all sorts of things fearlessly, without worrying in advance about what they'll turn out to be.

All these sorts of protections - freedom of speech or whatever - need to be framed so that they are attractive to people who want to say or do a wide range of things, some of them arguably immoral, and not all known in advance. Otherwise, they won't act as blocks against majoritarianism at all - the political debates will be about who can get a majority to ban hostile speech about group or doctrine A but not group or doctrine B.

That said, it sounds like this National Post thing is pretty nasty ... but the arguments being put by this particular writer still fine to me. It actually worries me that we so often have to go to the right-wing writers to find such robust defences of free speech.

Russell Blackford said...

Another way to look at it is by comparison to the right to vote.

From:

Voting for the Labor Party is (morally) okay ...

it does't follow that

Voting for the Fascist party is (morally) okay.

But the system doesn't tell us in advance who we are allowed to vote for. It gives us all a legal right to make certain kinds of choices, including immoral choices.

DEEN said...

"Why, then, should courts, governments or human rights commissions accept Muslims’ outrage or hurt feelings as the trigger for prosecutions and investigations, when those institutions (rightly) would never dream of doing the same to protect Christians, Jews or others from offence?"

Because Christians and Jews are not minorities that already face wide-spread discrimination. Because nobody in any position of influence is actually threatening to demote them to second-class citizens. Whether there is merit in the case against Wilders or not, you can't pretent that the situations are entirely equivalent.

And we're not just talking about "hurt feelings" and "outrage". Those complaints are (I expect) going to be rightly dismissed. But we're also talking about discrimination and creating a hostile environment for Muslims.

Oh, by the way, Holocaust denial is still officially illegal in the Netherlands (although I think it shouldn't be). So yes, the courts can protect Jews as well, and will probably even protect Christians too, if they will ever have an equivalent case.

I also find it very distasteful for people to suggest that the courts are somehow giving special treatment to Muslims, before there has been any verdict one way or the other.

DEEN said...

"In my case, I want to be able to say all sorts of things fearlessly, without worrying in advance about what they'll turn out to be."
But wouldn't you also agree that you have a responsibility to consider the effects of what you say before you say it?

Russell Blackford said...

DEEN, I'm very confused. You say the case should be rightly dismissed. So why are you arguing with me? Clearly you agree with me.

I mean, I could say a lot of other things, but I just don't get what the debate is about.

Or ... hmmm, is it that you're saying some charges should be dismissed and some shouldn't be? Perhaps that's your point, but as far as I can see all the charges relate to his speech. It might not be nice speech, or pretty speech, or speech that I'd want to be associated with, but it's speech that should be legal.

DEEN said...

Indeed, I was referring to only a part of the charges. I think the charges based on insults should be dismissed. There is no right to never be insulted.

On the other hand, I think some of the charges based on inciting hate and especially inciting discrimination may be more serious.

I have to note that even on those charges, I am totally willing to accept a verdict that gives good arguments for why the interests of free speech in this case outweighs the interests of the people being unfairly maligned based on their religion or ethnicity. I just don't think that the answer is always a no-brainer in favor of free speech.

Geoff Coupe said...

Russell,

Like DEEN, I'm here in the Netherlands, so we see directly how this stuff plays out in our society. While on the one hand I am totally with you that Wilders has the right to free speech, I do question whether he is in fact shouting "fire" in the crowded theatre.

I am seeing a polarisation towards black and white condemnation of Muslims/Morrocans that I never saw when I first came to live here. It does not make me feel comfortable about the way that this society will develop.

I think it is worthwhile to ponder on one of the statements that were submitted in Wilders' trial:

http://www.dutchnews.nl/columns/2010/10/i_treasure_my_heritage.php

My personal opinion is that Wilders is a populist who is doing more harm than good. I do fear for the future of this country.

Russell Blackford said...

Geoff, I don't actually like Wilders, and I think this is part of the problem - when you look at Colin's links they tend to confirm that the guy is actually a bit nutty. We see all this ranting and raving that makes him seem almost unhinged. Nothing I've said is about that.

And yet ... once the debate becomes one about freedom of speech he doesn't seem nutty at all. I've watched a fair few videos of him by now, and I see him speaking very articulately and with considerable dignity when he speaks in English. I don't speak Dutch, but when I watch him speaking in Dutch with sub-titles running he appears to have the same dignified, articulate presentation. The upshot is that this prosecution (and also the attempted ban on him entering the UK), while potentially chilling the speech of people who are not well-resourced and would not relish being dragged through the courts, is actually doing wonders for Wilders himself. His popularity has, as I understand it, actually been growing since the trial started. I can't much fault his presentations when he speaks about the importance of free speech, though I can certainly fault him when he asks for the Koran to be banned or for draconian immigration policies to be introduced.

So again, even from a purely utilitarian viewpoint I think that the trial is probably counterproductive and the laws that have made it possible may need to be modified to avoid this happening again. I say "may" because the prosecution has interpreted them in a way that does actually give free speech a lot of protection, and it's possible that the judges will do likewise.

Now it may be that Dutch society is such a tinderbox that laws suppressing speech of certain kinds are needed. I'm conscious that it can seem arrogant to be passing judgment on someone else's country, and I sometimes get prickly when people who don't understand the full situation make comments about Australia from outside.

So, I concede that.

And sometimes a society can be, as it were, a social tinderbox. Think of Rwanda at the time of the massacres. I'm not here to defend free speech come what may - as I've said, I'm a free speech advocate, not a free speech absolutist. Perhaps some kind of hate speech law is desirable. My position, here in Australia, has long been that some sort of narrowly-framed hate speech law may be desirable, as an exception to the background assumption of free speech. But framing its content is another thing. It needs, in my view, to be framed in such a way that it is fenced off and does't provide a precedent for all sorts of further erosion of free speech, and it should be targeted at speech that is closely connected with a danger of violence and persecution. Although I have ideas about this, I actually think that it's very difficult drafting a law that does the job properly, and I do think that the laws we have in place so far are poorly drafted and that the courts and tribunals have tended to make a mess of interpreting and applying them. When they do so, they are sometimes corrected on appeal, but that's a messy business.

In the case of Wilders, I've watched Fitna and read many of the things he said. I have no great problem with Fitna but I do have a problem with some of the other things. But none of those things fall into the category of what I'd countenance banning. Further, I don't like the drafting of the Dutch law, which seems incredibly broad if you take it literally.

So, yes, prima facie this does seem to me like a fairly clear case where Wilders should not have been prosecuted. If Dutch society really is such a tinderbox, there's a question of course of what should be done to prevent it going up in flames. I can't answer that question; only the Dutch people can. But I'm pretty sure that this prosecution of Wilders - or similar prosecutions of others saying similar things - is the wrong approach and actually likely to be counterproductive.

Neil said...

I agree, Russell, that we ought to be free to engage in(some) morally wrong actions. I meant only to address the claim that because it was morally okay to belittle Xians, it is morally okay to belittle muslims. Of course it is morally okay - maybe obligatory - to criticize the homophobes, murderers and pedophiles. Xian and Muslim. I don't have in mind Hitchens or Dawkins on religions, I have in mind Hanson. That is hate speech and is morally wrong. It is a further question - and a more difficult one - whether it ought to be permitted.

Russell Blackford said...

No worries, Neil. Rightly or wrongly I took the article I referred to as being about what should be legal, which is what I've been banging on about here and elsewhere.

Necandum said...

I think that it also be worth adding another dimension to the argument, that of punishment.

If, for example, the only consequences for such speech are an order to publish an apology and perhaps a bit of community service for repeat offences in a short stretch of time, then the law's description could afford to be a bit more broad as the damage to the individual is minimal.You'd need some quick and efficient system for processing such claims though, so that the litigation itself doesn't become burdensome.

That way, by varying the degree of punishment according to the direct harm caused (erring on the side of leniency), one can censor true "hate speech" (whatever that is), while also minimising the effects of negative speech without silencing it altogether or leading to harsh penalties (like jail) for the speaker.

Geoff Coupe said...

Russell,

Thanks, I appreciate your thoughtful reply to my worries. I agree with you that this prosecution of Wilders is a bad idea; I'd far rather see Wilders ridiculed for some of the statements he's made than prosecuted. And, you're quite right, the oxygen of publicity that this trial has given to Wilders has caused him to become even more popular in some circles.

I was struck by something that a friend said recently when we were discussing the "Wilders effect". Her point was that to have someone like Wilders out in the open, subject to all the checks and balances of the society and its political system was much to be preferred than to have him skulking below the parapet using his dog whistle politics to speak only to his followers.

I think she has a point. And perhaps it is then down to the rest of us to use the democratic processes to register our distaste for him and all he stands for.

Arizona said...

"I can certainly fault him when he asks for the Koran to be banned"
Wherever I've seen Wilders call for the Koran to be banned, it has always been in the context of the banning of Mein Kampf. Wilders is, after all, a libertarian and would prefer to see no books banned at all. All he is saying is that there is a double standard here because the Koran is far worse than Mein Kampf, far more worthy of banning if that's what you want to do.

DEEN said...

"But I'm pretty sure that this prosecution of Wilders - or similar prosecutions of others saying similar things - is the wrong approach and actually likely to be counterproductive."
It's going to be counterproductive if your goal is to shut Wilders up, or if you want to make him less pupular. But if the goal is to try and find out where the allowable legal limits are for public debate (or where they should be instead), this trial may turn out to be quite useful.

By the way, the trial has recently been declared a mistrial. I think Wilders is going to drag this out for as long as he can.

Arizona said...

An English media story on this: Judges in Geert Wilders’ Free Speech Case Removed from Trial

I'm a supporter of Wilders and I do see all of this transparent farce as working in his favour.