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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Wednesday, October 14, 2009

Geert Wilders wins UK appeal

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.


DEEN said...

Nice article. All too often, people from outside the Netherlands tend to portray Wilders as some sort of hero for free speech. He isn't, though: he thinks that the Quran should be banned, for instance. How's that supporting free speech? So it's already nice to read an article about his case that doesn't glorify Wilders in this way.

Still, I think the decision of this appeal case is correct. There was no real reason to suspect he'd be a threat to the UK. They could have easily waited to see what he had to say. If necessary, he could always have been held accountable for what he had said afterwards.

Besides, European treaties require free travel of European citizens between European member countries, so even if this tribunal had ruled in favor of the UK government, Wilders could have appealed all the way up to the European courts too, and probably would have won.

"If he had political power in the Netherlands, he would likely follow extreme and highly undesirable policies."

Unfortunately, Wilders does have political power in the Netherlands. He's currently a member of parliament, and polls are showing that his party is growing. It might even become the largest party if elections would be held right now.

I personally suspect that many people tell the pollsters that they'll vote for Wilders just to give the current administration the proverbial finger, though. I expect that the group that will actually vote for him will be somewhat smaller. But that might also be wishful thinking on my part. At the very least it's very unlikely that his party will get an absolute majority, or that he'll find a party willing to form a coalition with him.

His suggested policies are indeed quite extreme, by the way. Not only would he like to ban the Quran, he also wants to close all Muslim schools (but not the Christian schools, of course). He even wants to be able to deport Muslims if they commit a crime.

But in this case, just let him go to the UK (he's already announced he'll be going Friday). I hope he'll just make a fool of himself there.

DEEN said...

Thanks for proving my point, Stuart.

Anonymous said...

Keep your head burried in the sand there DEEN, everything will be just fine...

DEEN said...

Stuart: so tell me, which of the policy examples I gave would increase freedom? Banning the Quran? Banning Muslim schools? Deporting Muslims? Or do you deny that these are things that Wilders actually argued for?

Shouldn't be too hard to figure out which of us has their head in the sand.

I suspect you're not Dutch, are you?

Anonymous said...

If you want to tolerate intolerance, that's your business, but don't try and persuade me to join you. We are not all useful idiots.

Unknown said...
This comment has been removed by the author.
Unknown said...

So I am the "Stuart" who was a student of Russells all those years ago... I think I will start signing initialing my posts these days as not to confuse me with the new 'Stuart'.


quedula said...

I suspect that the UK government was more afraid GW would stir up a muslim mob against "the west" than a UK mob against muslims. The extreme right-wing in the UK are regarded as buffoons but muslims must be handled with care to avoid giving "offence".

DEEN said...

@Stuart the lesser:
"If you want to tolerate intolerance, that's your business, but don't try and persuade me to join you."
I don't support any form of intolerance, not by Muslims, and not by Wilders either. You, on the other hand, seem to think that banning books and reducing Muslims to second-class citizens is a good way of combating intolerance. Who's really supporting intolerance here? Hint: it's not me.

By the way, hurling insults while avoiding to address arguments and questions is a very good way to show everyone else who the idiot with the head in the sand is. So thanks again for doing my work for me.

Anonymous said...

Deen the Dhimmi, I'll insult anybody who encourages Sharia Law in this country. Okay?


DEEN said...

"I suspect that the UK government was more afraid GW would stir up a muslim mob against "the west" than a UK mob against muslims.".

That's possible, indeed. However, the UK government wouldn't have had much real reason to suspect this either. This didn't happen in the Netherlands when Fitna was released here, for instance.

DEEN said...

@Stuart the lesser: You're wrong on so many levels.

I'm not encouraging Sharia law in any country, not in yours (wherever that may be) and not in mine. What part of "I don't support any form of intolerance" was too hard for you to understand?

And since I'm an atheist (of the "New" variety even), and definitely not part of the People of the Book, there's no way I could ever be a Dhimmy, you dummy.

Meh, I'm done with you. Discussing with you appears to be completely pointless.

edwin sanchez said...

It is not Israel has done nothing to bring peace. They have had peace with Egypt and Jordan for years now.

Steve Zara said...

I'm going to have to disagree with you Russell. I do believe that Wilders represents a genuine threat. He is actively campaigning against democratic principles, and in favour of bigotry. He wants to remove or reduce human rights for a section of British society. He wishes to promote religious division.

I don't think this is to do with freedom of speech, as no-one will have any problem finding out Wilders' views in the age of the internet.

It is about whether or not Wilders will significantly encourage and support hatred and even violence, and that his presence in the UK will be a focus for those who encourage hatred and violence.

I have little doubt that it will.