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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. Author of FREEDOM OF RELIGION AND THE SECULAR STATE (2012), HUMANITY ENHANCED (2014), and THE MYSTERY OF MORAL AUTHORITY (2016).

Saturday, October 16, 2010

Prosecution calls for acquittal of Wilders on all charges

My source of information on this is my regular commenter, DEEN, who has been following the Geert Wilders trial. See this thread.

It may seem odd that the prosecution is calling for acquittal, but even in the common law system of criminal justice, public officials such as prosecutors are there to help achieve a just outcome - it is not their job to secure a conviction at all costs. I don't know anything about the Dutch system, specifically, but I would guess that this applies even more in what I take to be a more inquisitorial process. DEEN or others can correct me or comment as they wish, but my guess is that the prosecutors in a case like this are more like a barrister appointed to assist the commissioners at a royal commission (i.e., "counsel assisting") than like, say, police prosecutors at a trial in a local criminal court in a common law country.

In any event, we now await the verdict in early November.

Though some people may think that Wilders is not a worthy person to be getting sympathetic attention, freedom of speech applies to everyone, and this case is an important test of how its boundaries will be regarded in those European jurisdictions that are very strong on legal discouragement of hate speech.

Let me be clear about another thing. I am a free speech advocate, but not a free speech absolutist. I do see a role for defamation law, though I think it should be framed quite narrowly. I also see a role for the state, in at least some circumstances, identifying a category of extreme hate propaganda and trying to prevent it. There may also be a cogent case to ban some kinds of pornography.

In all these cases, it's difficult to know where to draw the line, but that doesn't mean it can be drawn just anywhere. I'll set issues to do with pornography to one side, as they seem to be a bit different and they become emotional enough to derail a thread. That to one side, I don't think the concerns that justify some kind of defamation law simply scale up to the level of groups in society. Nor do concerns about hate speech necessarily scale down to the individual level.

If someone calls me a rat or a cockroach, perhaps repeatedly, it's insulting and as the social psychology research says it may certainly affect how people feel about me subconsciously. But it probably won't cause people who know me to shun me. It's not the kind of thing that defamation law usually addresses. It would be far more damaging if someone said, sounding credible, that I have Nazi connections or that I'm a pedophile, or that I once got away with committing a serious crime.

But imagine for the moment that we're living in the world of X-Men. Claims that mutants as a group have Nazi connections or practice pedophilia or commit crimes may be credible and damaging. Think of the blood libels against the Jews. But, depending on the circumstances they may just seem like incredible generalisations made by bigots. If I have some nice mutants living next door, maybe I'll be subconsciously influenced (think of the uneasiness that a lot of white people in the US feel around black people because of stereotypes that the latter are potentially violent). All the same, those of us dealing with mutants at work or in our neighborhoods are unlikely to shun them over these accusations, and they certainly won't shun each other. In many circumstances, where accusations are made against a large group, they are prima facie far less plausible and effective than when made against an individual.

These sorts of claims, by themselves, may be socially tolerable. And it's even possible that there may be a publc interest in airing them. Imagine mutant culture has developed in certain ways that are disturbing and merit public discussion (say a charismatic mutant leader has gathered a following who look on Homo sapiens with disdain; if this looks to be true, we'd better discuss it publicly, even at the risk of some commentators getting some of the facts wrong). Discussions of the alleged wrongs of mutant culture may turn out to be needed in a democratic society, and they may be less damaging than relentless campaigns simply depicting mutants as rats or cockroaches - though a successful campaign of hate will contain speech of both kinds.

The moral of the story is that if we're going to have laws that create exceptions to freedom of speech, we can't simply draw analogies, or scale up or down, from one situation to another. In each case, we need to identify the mischief we're trying to address and come up with regulation that addresses it in a narrow, targetted way that does the minimum of damage to the norm of freedom.

In the case of Wilders, I don't know all the accusations against him in precise detail - it's difficult to get a handle on this while relying on English-language sources. But as far as I can tell, all or most of what he is accused of should fall within (what I consider) the proper protections of freedom of speech. At least some of it is proper matter for publc debate. If he's found guilty of anything, I hope it turns out to be something that most reasonable people really would consider beyond the bounds of tolerance. At the moment, I don't see anything like that.

15 comments:

ebook leser said...

Somehow it all out after massive free advertising for Wilders, because in Volksverhetzungsprozess against the Dutch right-wing populist Geert Wilders, the prosecution requested an acquittal on all counts. Wilders' comments were aimed generally to Islam and not Muslims as a group, said the prosecutor. In addition, he had expressed as a politician the right to be presumed to problems in society. "Criticism of a religion is not punishable."

DEEN said...

The problem with defamation of groups (minorities in particular) is that they are often made by people in a position of authority with ample access to the media. Wilders is a good example of both - he is a politician with the support of many voters, and the press loves him. The maligned groups, on the other hand, generally don't have any authority, nor do they have media access. They usually don't even have a good spokesperson (and even then it's often too easy to dismiss them as "one of the exceptions", or even as outright duplicitous).

It is this imbalance that I find is often left out on discussions about defamatory speech against groups. Against such odds, there is virtually no way that defamed groups can defend themselves with plain counter-speech. I think the government has a place in offering a level playing field, by giving minorities the possibility to defend themselves in court.

"All the same, those of us dealing with mutants at work or in our neighborhoods are unlikely to shun them over these accusation"
Unfortunately, this is simply not true. We all know about biases in hiring, for instance. In the Netherlands, they found that with otherwise identical application letters, "Mark" was more likely to be invited for an interview than "Mohammed" (44% vs 37%). Reinforcing and validating those biases has a real effect on people's chances on the job market, and thus their freedom.

I therefore see this whole issue of group defamation speech as a tension between the right to free speech on the one side, and the right to equal opportunities on the other. I don't see anything wrong for the government to give the courts the tools for guarding this balance.

Russell Blackford said...

Well, I actually see a lot of problems with it. One is that I think it's terribly counterproductive when you do something like this against someone who actually is well-resourced - e.g. in this case the prosecution of Wilders simply gives Wilders a soapbox, makes him a martyr, even if he is acquitted (he was still dragged through the courts), and makes Muslims look like enemies of liberty. The same thing happened here in the Catch the Fire Ministries case. The outcome was atrocious for the Muslim body that pursued the case and gave tremendously good publicity for the Pentecostal Christian group that was being sued. The Victorian government amended the law to make such cases harder to run, so the whole thing backfired on the Muslims. This is always so. Same with the Muslims who pursued Mark Steyn in Canada: Steyn gets a soapbox and Muslims look like enemies of free speech.

It's much better either to ignore someone like Steyn or, if it's someone like Wilders who can't be ignored, then he should be scrutinised like any other politician. He is the leader of one political party - well, leaders of political parties are contantly scrutinised by the media and by leaders of other political parties. Let them do it rather than expecting the courts to do it.

If this action had not been taken, Wilders would be known, at least outside the Netherlands, as a nut with extreme views on immigration. Instead, he is known as a dignified and articulate champion of free speech.

And I disagree that there are insufficient people giving positive speech in favour of Muslims. I can't speak for the Netherlands, but here in Australia the Muslim Councils and people like Waleed Ali have no problem at all putting out pro-Muslim material. Shows like Q&A go to some trouble to us Muslim spokespersons. Mainstream politicians are nice about Muslims and Islam.

In fact, the hard thing to do is get material published that is in any way critical of Islam. And even the Scientologists seem to be well stocked with articulate spokespersons who can get airtime.

I actually think that about the last thing that we should want is legislation that makes it difficult to engage in discussions of public interest about religions and their adherents, without being dragged through the courts. If I had to fight a case over something I said in a book with, say, the Muslim Council of Victoria taking me to court, I'd probably be bankrupted and driven to a nervous breakdown.

These groups are powerful and well-resourced, far more so than secular groups. Sure, Wilders is also well-resourced, as was Catch the Fire Ministries. But writers are not well-resourced and publishers often aren't either. We need to be able to speak out and say things on matters of public interest, even things that may turn out not to be quite right, fearlessly.

That doesn't mean we should be allowed to say: "Genoshans are cockroaches; let's exterminate them." It's easy to guard against saying that, that kind of language can be all-too-effective in creating hate and violence, and there's nothing of any public interest being discussed. But if I say, "Genoshans have developed an authoritarian culture; there's a limit to the speed with which we can absorb them into a liberal democracy with a relatively small population; so let's reduce our immigration program from Genosha" ... well, all this may be wrong and unfair, but it's the sort of thing that should be debated in the public sphere - in books, newpapers, political interviews, speeches, etc. It's not the sort of thing that the Genoshan Community Council of Australia should be able to take me to court over.

Again, I don't know every single detail of what Wilders said, but I'm not aware of anything that's he's said that merited prosecution by my standards. I'm still of the view that this prosecution should not have taken place.

Russell Blackford said...

And I was talking about shunning not about discrimination in employment, so I fail to see how I said something that is simply not true. If my chance of getting a job interview is reduced from 44 % to 37 % that is not being shunned. It simply shows, if anything, that there is some discrimination in the labour market, which is hardly big news. It's possible that Mohammad is no worse off than Mary, since there's also discrimination in the labour market against women. But that doesn't mean that women are shunned (as, for example, known pedophiles are).

The remedy for discrimination in employment is anti-discrimination law. All of these laws are imperfect, but the issue is whether the sorts of laws we should use to address all sorts of social evils should be laws restricting freedom of speech. Generally, that's a bad idea.

ColinGavaghan said...

'That doesn't mean we should be allowed to say: "Genoshans are cockroaches; let's exterminate them."'

'But if I say, "Genoshans have developed an authoritarian culture; there's a limit to the speed with which we can absorb them into a liberal democracy with a relatively small population; so let's reduce our immigration program from Genosha'" ... well, all this may be wrong and unfair, but it's the sort of thing that should be debated in the public sphere - in books, newpapers, political interviews, speeches, etc. It's not the sort of thing that the Genoshan Community Council of Australia should be able to take me to court over.'

True, Russell, but between those two extremes lie a range of allegations, implications and suggestions that - while stopping short of outright calls to arms - go somewhat further than being merely contributions to democratic debate.

I suspect I've used this example on your blog already, but the blatant attempt by an anti gay-equality group to link homosexuality with child abuse is the sort of thing I have in mind. To argue that homosexual relations are dangerous or immoral or contrary to God's law is more like your second example, i.e. an opinion that, however crazy, should be tolerated in a democratic society. But the unargued & unsubstantiated linkage of homosexual men with paedophilia (and, further, of paedophilia with child abuse, for the two are not synonymous) ... well, it's arguable that that is more likely to fuel the fire of the angry mob than to contribute to any productive discourse.

Similarly, an argument that Islam is an intolerant or backward or even violent creed is a PoV that surely must be tolerated in any society calling itself democratic; but an implication or averment (without evidence or argument) that Muslims are terrorists or traitors is of a different order.

ColinGavaghan said...

(Sorry, blog-hogging again!)

You're right to say that we can't automatically scale up or down from existing laws, but I wonder if those kind of attacks against groups aren't relevantly similar to the sorts of attacks with which the law already concerns itself. If there is a case for injunctive relief or compensation for a corporation like McDonalds, or an association like the BCA, then why shouldn't, say, Peter Tatchell (or Udo Schuklenk!) be able to petition a court to prevent someone repeating the claim that gay men molest children?

Insofar as there are problems with extending defamation to groups, are they not problems that already exist for defamation law? It is already, for example, a weapon that the wealthy can often use to silence the poor (again, q.v. McLibel /Simon Singh scenarios). If we think it a problem (as I do), maybe we need to rethink civil legal aid or something, rather than arbitrarily rule out some sorts of 'silencing' actions but not others.

I'd also like to see courts exercise great restraint in favouring one or other of two contestable positions in such cases; if scientific or historical facts are in dispute,then the libel courts are probably not the ideal place to resolve them. But again, I think that holds equally true with regard to private or group actions.

Given that English defamation law is currently undergoing review with a view to reform, it probably isn't the time to think about expanding it in its present form. But I think we should at least be open to the possibility that, insofar as a justification can be found for protecting individuals (and corporate entities) from untrue and damaging statements, an analogous justification may exist for affording a similar right to groups.

(Whether it is tactically sensible for a particular defendant to pursue this strategy is, of course, another question. But again, as McDonalds and the BCA discovered, that isn't a new problem, or, for that matter, necessarily one for legislators.)

Russell Blackford said...

I must say, though, that I think we should be working to make it harder for McDonalds and the BCA to sue for defamation. Of course, there are always interesting questions about where lines should be drawn, but I'm for cutting back these sorts of restrictions across the board.

I still use Mill's corn-dealer example as my touchstone. Here there is imminent physical harm being threatened. The less direct or imminent that harm, the less I want the law to be involved.

But the case where a specific person is accused of being a pedophile is an interesting one. I suppose we could say that the harm (the person being shunned) occurs only indirectly. But here we have a shunning that most people would consider justified. If it's established that Prunella really is a pedophile, the widespread intuition is that people will shun her with good reason and that it would be unreasonable to ban the shunning itself. So it's no use having a law against shunning pedophiles. All we can try to do is make sure that people are not wrongly classified in this "justifiably-shunned" class. That is a reason to have a law against claiming, falsely, that someone is a pedophile.

I think we can go further than that, by I worry about how much further. It may be impracticable to have a law against shunning gays (as opposed to laws against discriminating against gays in specific circumstances such as employment, housing, etc). Shunning gays is not justifiable or reasonable, but making widespread allegations that a particular person is gay may not be able to be redressed, in practice, by an anti-shunning law. We may still need to have defamation law handle this, even though there's an obvious sense in which you are not accused of anything wrong if you're accused of being gay.

I'd want to look at cases kind of incrementally, but starting with a very strong presumption in favour of free speech and against using legal prohibitions to redress remote or indirect harms. Working from the other end, though, I'd assume that there is little public interest in discussing, say, the sexuality or even the crimes of individual people (if you think someone has committed a crime, prima facie you should contact the police, rather than subjecting him or her to trial by media), but that there is much of public interest in discussing the commercial representations of the BCA or the commercial and employment practices of McDonalds. Working from those two ends, we may still end up with some kind of defamation law and maybe even some kind of law circumscribing hate speech, but I don't think they'll look much like what we have at the moment.

DEEN said...

Oh, absolutely, dragging Wilders through courts may well have the effect that it gives him more notoriety. But that's a risk with using libel laws too: it may backfire.

"If this action had not been taken, Wilders would be known, at least outside the Netherlands, as a nut with extreme views on immigration. Instead, he is known as a dignified and articulate champion of free speech."
No, this is not true, the "brave defender of free speech" image has been carefully cultivated by Wilders from even before this trial, also outside of the Netherlands. I've had to explain for years now to friends and family from the US that he isn't (suggesting the Quran should be banned isn't exactly a free speech position). But indeed, the trial does play right into his narrative.

"He is the leader of one political party - well, leaders of political parties are contantly scrutinised by the media and by leaders of other political parties. Let them do it rather than expecting the courts to do it."
That would be better, yes. Unfortunately, the media seems reluctant to do any fact-checking, and many of the other political parties are too afraid to loose voters to Wilders by being too hard on him - except for the left-wing parties, but they are "biased", of course.

I suppose there aren't any easy solutions to this problem. We'll just have to do our best trying to balance all the interests and rights in our society.

Gregory C. Mayer said...

Hey, I work in Kenosha! (You misspelled it-- it's with a K, not a G.) What are you trying to say about us Russell? ;)

Russell Blackford said...

Libel laws don't have the same effect. If X calls Y a pedophile and Y sues, then X may be vindicated. Y takes a risk. But it has no particular broader social effect. Litigants often take risks, but that's not the point I was making.

When you drag Jones through the courts over their speech when they have made some broader social claim, a claim of public interest about a whole group of of people, perhaps criticising their religion or their culture, Jones will defend that broader social claim, or whatever claim she is actually making, and meanwhile the group of people concerned will look like they are trying to suppress criticism and are opposed to free speech.

If Y sues over some allegation relating to her personally, such as that she's supposedly a pedophile, everyone understands. No one thinks that Y is thereby an opponent of free speech. She has a compelling private interest to vindicate. If some group who purport to act on behalf of the Genoshan (not Kenoshan community) sue Z for making claims about the Genoshan culture or certain practices that it has (perhaps honour killing or female genital mutilation) or crime rates, or the truth of the holy book used by the Genoshans, or the possibility that the holy book contains passages encouraging violence, then these are all matters of public interest. An attempt to prevent certain things being said by Z will make it look as if Z's free speech is being suppressed - and, indeed, it is. But paradoxically, that will also give Z a soapbox to make all the claims that "they're trying to suppress". And even if Z has already cultivated an image as a dignified defender of free speech, the opportunities to do that now multiply. In this case there are now videos all over YouTube of Gilders in the proceedings, seeming very impressive.

It really doesn't scale up or down.

One reason why this is important is that people who think want to have anti-hate-speech laws that cover a broad range of speech often think it's important to suppress a broad range of speech to obtain certain utilitarian effects. E.g., Genoshans will be happier if a whole lot of things can't be said about them or their culture. But I doubt that we can have any confidence that that is how it works in practice. Even from a utilitarian viewpoint, these laws have every chance of turning out to be counterproductive.

Governments have vast resources. If they are keen to make sure that we all appreciate Genoshan culture, feel sympathetic to the Genoshan people, etc., there are many things they can do apart from forbidding a wide range of speech about Genoshans or the Genoshan community. Those things will not be perfect of course, but (as you're also saying towards the end of your comment) government action is never perfect.

ColinGavaghan said...

I guess it depends on what we think of as the rationale for defamation laws in the first place.

'I still use Mill's corn-dealer example as my touchstone. Here there is imminent physical harm being threatened. The less direct or imminent that harm, the less I want the law to be involved.'

There's something to be said for that PoV, for sure. But if the touchstone for legal intervention is to be the presumed causal relationship to imminent violence, then that is surely better dealt with through the criminal law of incitement. After all, factors relevant to defamation law - such as the truth or otherwise of the allegation, or whether the reputation of the defamed party has been lowered - aren't really what we're concerned about here.

'But the case where a specific person is accused of being a pedophile is an interesting one. I suppose we could say that the harm (the person being shunned) occurs only indirectly.'

Well, in the present climate, I'd be worried about more than being shunned, but I take your point.

'But here we have a shunning that most people would consider justified.'

Actually, I would quibble with that. Paedophilia is an inclination, not a matter of choice, and harmless in itself. Those who choose to act upon it, on the other hand, may well deserve to be shunned. (Hope you don't think that's pedantry, but I think the inclination-intention-action distinction is pretty important, esp when discussing the limits of the criminal law.)

'All we can try to do is make sure that people are not wrongly classified in this "justifiably-shunned" class. That is a reason to have a law against claiming, falsely, that someone is a pedophile.'

Yes, agreed. But what I'm still unsure about is why it is justifiable to have a law preventing the false identification of an individual as a paedophile, but not a class of people such as, say, gay men. If I say that 'all gay men are paedophiles', I'm implicitly labelling Stephen Fry and Clive Barker as paedophiles, just as surely as if I'd identified them by name. Why shouldn't they be able to sue on that basis?

Of course, a more carefully couched insult would avoid this ('most gay men', for example), so it wouldn't prevent all idiotic hate-speech. But it might just deprive some rabble-rousers of their most OTT rhetoric. ('A statistically significant proportion of Muslims are terrorists' is not a slogan likely to provoke too many fire-bombings, one might hope.)

One more observation, then I'll give you back your blog! My understanding of defamation law suggests that the line between individual and group already gets rather blurred, when we start talking about smallish groups. To borrow your cool example, 'all Genoshans are terrorists' would not afford anyone a remedy under US defamation laws, but 'the X-Men are terrorists' probably would. I'm not sure there's any particularly good reason for this, other than to limit the potential class of litigants.

ColinGavaghan said...

'I still use Mill's corn-dealer example as my touchstone. Here there is imminent physical harm being threatened. The less direct or imminent that harm, the less I want the law to be involved.'

There's something to be said for that PoV, for sure. But if the touchstone for legal intervention is to be the presumed causal relationship to imminent violence, then that is surely better dealt with through the criminal law of incitement. After all, factors relevant to defamation law - such as the truth or otherwise of the allegation, or whether the reputation of the defamed party has been lowered - aren't really what we're concerned about here.

'But here we have a shunning that most people would consider justified.'

Actually, I would quibble with that. Paedophilia is an inclination, not a matter of choice, and harmless in itself. Those who choose to act upon it, on the other hand, may well deserve to be shunned. (Hope you don't think that's pedantry, but I think the inclination-intention-action distinction is pretty important, esp when discussing the limits of the criminal law.)

'All we can try to do is make sure that people are not wrongly classified in this "justifiably-shunned" class. That is a reason to have a law against claiming, falsely, that someone is a pedophile.'

Yes, agreed. But what I'm still unsure about is why it is justifiable to have a law preventing the false identification of an individual as a paedophile, but not a class of people such as, say, gay men. If I say that 'all gay men are paedophiles', I'm implicitly labelling Stephen Fry as a paedophile, just as surely as if I'd identified him by name. Why shouldn't he be able to sue on that basis?

Of course, a more carefully couched insult would avoid this ('most gay men', for example), so it wouldn't prevent all idiotic hate-speech. But it might just deprive some rabble-rousers of their most OTT rhetoric. ('A statistically significant proportion of Muslims are terrorists' is not a slogan likely to provoke too many fire-bombings, one might hope.)

One more observation, then I'll give you back your blog! My understanding of defamation law suggests that the line between individual and group already gets rather blurred, when we start talking about smallish groups. To borrow your cool example, 'all Genoshans are terrorists' would not afford anyone a remedy under US defamation laws, but 'the X-Men are terrorists' probably would. I'm not sure there's any particularly good reason for this, other than to limit the potential class of litigants.

ColinGavaghan said...

Sorry for the double post, Russell; not sure what happened there! :-(

Russell Blackford said...

No problem, Colin - I seem to get a fair few double posts, even from myself, but it's easy to fix them.

I'll get back to you substantive points. I do worry at this stuff, and although I have some views (1) I'm not dogmatically committed to them (I think these are often matters of practicalities where there can be moe than one reasonable policy; and (2) my answers are quite complicated. Even in The Book I won't be able to develop them fully.

You really need to run a conference on some of this stuff, so we can all thrash it out. ;)

March Hare said...

If Jim falsely calls Joe gay in public can Joe sue for defamation?

When the natural reaction becomes 'so what?' and Joe tries to sue, can gay people then sue Joe for viewing being falsely called gay something so harmful he wants to sue over it?

You have to remember laws exist longer than societal norms. When we are all fine about skin colour, sexuality etc. there will still exist laws that people will use to silence critics or, worse, governments can use to silence genuine opposition.