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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).

Thursday, January 21, 2010

Geert Wilders goes on trial, and so does the Netherlands

(H/T to Jerry Coyne.) The New York Times reports that the long-awaited criminal trial of Geert Wilders begins today.

Love Wilders or hate him - I have plenty of reservations about him and would certainly not vote for him - he should not be convicted of a criminal offence for making the short movie Fitna or for comparing the Koran to Mein Kampf. The latter is doubtless offensive to Muslims, but it's his opinion ... and no one should be given a right to go through life without being exposed to opinions and ideas that she finds offensive. Fitna is open to interpretation, of course. Perhaps it contains an unsavoury message, though the main message seems to be that the holy texts of Islam contain material that can inspire terrorism. I would have thought that was obvious.

The Koran itself is also open to interpretation. Its own most unsavoury passages may be exhortations by Muhammad that related only to specific times, places, and circumstances when his forces were at war. However, when the Koran is held out as a holy book of timeless application, it's not surprising that some Muslims, and of course some non-Muslims, interpret those passages as God-backed calls for ongoing violent struggle against Jews, Christians, pagans, and the non-Muslim world in general. Muslims have a responsibility to do something about this: at the very minimum they must ensure that all young people brought up in their faith are taught that the passages concerned do not apply today. That's a big challenge, so how about they get on with it?

They do themselves no favours when they lobby governments to suppress the speech of someone like Wilders. That fails to take the real problem seriously; it will make Islam even more commonly feared and despised in the West, since it will appear even more to be an enemy of individual liberty, particularly if Wilders is convicted; and even if Wilders is eventually acquitted, it turns him into a martyr for liberal freedoms. He already looks like what he is - a man who is being persecuted by the overwhelming power of the state just for saying something.

However you interpret Fitna, it is not the kind of thing that should be banned, much less punished by the criminal law. It is legitimate expression of ideas. But don't take my word for it. Go and watch if for yourself.

Whatever you think of Fitna, once you've seen it and reflected on it, its message can be opposed by further speech, e.g. by speech that freely and honestly acknowledges the problematic passages in the Koran and explains the historical context - then urges that these passages not be acted upon today. Coming from Muslim jurists and community leaders, that could be a socially valuable contribution to debate in a free society. For whatever reason, it's a contribution that they all-too-seldom seem prepared to make. It seems, all too often, that they'd rather suppress other people's viewpoints than put forward useful views of their own. Come on folks, why not rise to the challenge? Don't complain about a lack of access to the media; Muslim leaders in the West have plenty of media access if they want it.

In any event, Fitna is not the kind of immediate incitement to violence that John Stuart Mill spoke of when he said it is acceptable to ban the speech of a demagogue addressing a mob outside the home of someone it is likely to lynch. More precisely, his example is an enraged mob outside the home of a corn dealer, and the demagogue telling them, "Corn dealers are starvers of the poor." In the latter case, there's no time for any other response, and a ban is needed. There may be other cases where it is futile to respond even to less immediate incitements of violence, and there will be grey areas where a line has to be drawn. The place to draw that line is somewhere within the field of incitements to violence that are at least clear and direct. Mill made the point that it should be acceptable for the sentiment that corn dealers are starvers of the poor to be published in a newspaper, where the context is very different.

Make no mistake. It's not just Geert Wilders who is now on trial. The Netherlands is now on trial. If it convicts Wilders of a crime, then it will have demonstrated to the rest of the world that it is now a country where freedom of speech, as Mill understood it, has gone. Watch the developments in this case carefully.


Blake Stacey said...

Students going through introductory film studies encounter a few well-known cases where a movie is remembered for technical innovation combined with moral backwardness. The names of Griffith and Riefenstahl loom large under this subject heading; but Fitna is no Triumph of the Will, which we queasily respect for its visual power while deploring the ends to which that power was bent. I mean, if that's not the Papyrus font, it looks just like it.

Making a crappy and manipulative movie is not a crime.

Robert Simpson said...

Hi Russell,

Great to hear your views on this. I probably haven't mentioned this to you, but I'm writing my D.Phil on racial and religious vilification laws, so obviously the Wilders case is one that I'm keenly interested in. You've articulated the standard liberal position very nicely here! I'm rather more sympathetic to the idea of racial and religious laws in principle than you are, but nevertheless I tend to agree with the various concerns you raise regarding the handling of this particular case.


- Robert.

Russell Blackford said...

Cheers, Rob!

Russell Blackford said...

One sentence that I wrote now strikes me as a bit garbled:

"However, when the Koran is held out as a holy book of timeless application, it's not surprising that some Muslims, and of course some non-Muslims, interpret those passages as God-backed calls for ongoing violent struggle against Jews, Christians, pagans, and the non-Muslim world in general."

I hope the drift of this was clear. Obviously, I hope, I don't really mean that the non-Muslims think that these passages really are sanctioned by God. But they may well think that the natural or "correct" way of reading these passages, or the way in which the passages are likely to be received by Muslim readers, is as warlike passages that claim a God-backed sanction, applicable in all time, to struggle violently against infidels. If many Muslims themselves hold out the passages as having a significance beyond the particular circumstances when they were addressed to Muhammad's followers - and plenty of Muslims have historically said this - it's not surprising if they are taken that way by some non-Muslims. Or at least it's not surprising if some non-Muslims take the passages as being open to "still applicable today" kind of interpretation.

Blake Stacey said...

Well, now that you've clarified that sentence, I have no choice but to see it as garbled — but your clarification makes it all clear again. (-:

Elephant said...

You may not have seen this, but when David Miliband decided to ban Wilders from Britain, his argument was that "there is no right to shout 'Fire' in a crowded theatre". I thought then about Mill and the corn dealers too.

How do we end up with such politically illiterate donkeys in the great offices of state?

Russell Blackford said...

Random Pedestrian, yeah I actually blogged about that. I'm too lazy to track it down now, but it's there somewhere.

Greywizard said...

Just an interesting bit of trivia. In the first volume of his history of the Second World War, The Gathering Storm, Churchill compares Mein Kampf with the Koran. Here are his words: "All was there [in Mein Kampf] - the programme of German resurrection; the technique of party propaganda; the plan for combating Marxism; the concept of a National-Socialist State; the rightful position of Germany at the summit of the world. Here was a new Koran of faith and war: turgid, verbose, shapeless, but pregnant with its message." (55)

Perhaps Wilders does it badly - and I know nothing of his politics besides his short film Fitna - but the Qu'ran, so far as I can tell, having read it, and having been appalled by it, is a hateful book, and it has created a religion which is also, and intrisically, I believe - and Wilders is so far right - violent, intolerant and imperialist. There are distinct parallels between the Qu'ran and Mein Kampf. Mohammed was a warlord too, and he killed people - or had them killed - who disagreed with him. It is also essentially imperialist, devouring anyone who has not submitted to Allah and the Prophet's voice, and the Qu'ran provides the programme, a programme written in blood and slavery around the Mediterranean litoral, as well as along all the trading routes running through Asia from Mesopotamia. Consider the fate of Asian Christianity and the Zoroastriaans of Persia, and be afraid. (See Bat Ye'or, The Decline of Eastern Christianity under Islam: From Jihad to Dhimmitude)

There is very little in Christianity to commend it to our attention. There is nothing in Islam. To criminalise someone who points this out is really to undermine freedom. And remember, please, that Geert Wilders began his opposition to Islam after Theo van Gogh was murdered, and Ayan Hirsi Ali's life was threatened, because they showed the implications of the Qu'ran for women. He himself has been under police protection since he released Fitna, whatever you think of it. Doesn't this suggest that he is right, and that Islam is, in fact, a dangerous and unpredictable force?

DEEN said...

I'm not sure why the complaint against Wilders included insulting Muslims based on their religion. I don't think our law includes the right to not be offended. I imagine that this complaint will probably be thrown out rather quickly.

However, we do have a law that says that you have the right to not be discriminated against based on ethnicity or religion. The majority of the complaint consists of accusations that Wilders is inciting the breaking of these laws. I think a decent case can be made for this.

Fitna is indeed a part of the complaint, but I think it is probably one the least damning parts. Comments that the borders should be closed for Muslims and "non-Western" immigrants, or that Muslims should be deported, are much worse than anything said in Fitna. These comments are clearly discriminatory and go well beyond criticizing Islam.

Despite the many people that claim that free speech is under attack in the Netherlands, or other such hyperbolic comments, I see no reason yet to assume that the courts won't carefully weigh the consequences of this case for free speech.

Sigmund said...

Russell, I think most of us would agree that making Fitna should not be a crime. The court case against him is, however, based on a lot more than Fitna. Perhaps someone can do a translation of the charges into English (its a scanned PDF).
There is a distinction between incitement to racial violence and plain and simple racism. In the UK both white racists and islamic fundamentalists have fallen foul of the former law.

Drosera said...

While I have no sympathy at all for Islam, or any other religion, it should be noted that Mr. Wilders is not on trial for criticizing Islam, but for inciting hatred against a minority.

Wilders has said quite a few nasty things about Muslims living in the Netherlands, which, if they had been Jews, would have made him sound like a rabid anti-semite.

And while he is in my opinion correct in that the Koran in some ways resembles Mein Kampf, the same can be said about the Bible, but Mr. Wilders will never do so.

Nevertheless, I don't think he should have been put on trial, and I hope that he will be acquitted.

Sadly, he will win either way. If he gets fined he will be seen as a martyr for free speech, if he is acquitted it will be perceived that everything he said was okay.

Peter Kemp said...

Deen said:
"The majority of the complaint consists of accusations that Wilders is inciting the breaking of these laws.[ie discrimination] I think a decent case can be made for this."

Perhaps not. In an Australian context, with various anti-discrimination laws, possibly compatible with the Netherlands, I'd say the case is weak. If as some Islamaphobes say here that immigration of Muslims should be stopped, should that attract a prosecution? I'd say a definite no to that, and even if it did our implied rights of political communication in the constitution would say otherwise. (Lange v ABC; Theophaneous v Herald & Weekly Times)

Wilders may well be accused of being a virulent racist/Islamophobe but that in itself is not a crime: Fitna shows selected incitement to violence on the part of certain Islamic rabble rousers, but calls for restrictions or cessation of immigration of a minority (Islamic) is not prima facie evidence on incitement to break discrimination laws. It is legitimate "political communication" (and arguably applicable in Holland) however offensive it may be to Muslims and liberally minded multiculturalists.

As for incitement to violence, there is non in Fitna (except as above from the selected Islamic rabble rousers) and there is no evidence that I've seen yet emanating from Wilders on that front, but I stand to be corrected.

Dick Alstein said...

Two distinctions seem to be forgotten by many commenters, here and on Jerry Coyne blog.

The first is that Wilders is not on trial for Fitna, but for other things he said.

The second point, as Drosera already remarked, is that the question is whether Wilders incited hatred against a group. Criticizing religious views is protected by the right to free speech, even if you would call those views "vile", compare them to Nazism, or any other strong term. But if you apply the same label to the _people_ who hold such views, you are crossing a line.

DEEN said...

@Dick Alstein: you're right, people from outside of the Netherlands focus way too much of Fitna, and don't usually know much of the context.

However, Fitna is definitely a part of the case against Wilders, as you will find a description of it in the list of charges that Sigmund linked. However, Fitna is in my opinion probably one of the least damning parts of the complaint.

Here's a few more things that Wilders has said in the Dutch media that are included in the complaint. Hopefully that gives the people from outside the Netherlands a bit more context. Translated by me from the official summons at http://pvv.nl/images/PDF/dagvaarding%20NL.pdf:
"I'm fed up with Islam: no more Muslim immigrants. I'm fed up with the worship of Allah and Mohamed in the Netherlands: no more mosques. I'm fed up with the Quran in the Netherlands: ban that fascist book.

Enough is enough."

"Everybody adapts to our dominant culture. Those who don't, won't be here twenty years from now. They'll be kicked out of the country."

"Those Moroccan boys are really violent. They beat up people because of their sexual orientation. I have never used violence."

"We want enough. Close the borders, no more islamists into the Netherlands, many Muslims out of the Neterlands, denationalization of Islamic criminals."

"Former chief of the Mossad Efraim Halevy says that the Third World War has started. I'm not using those words, but it is accurate."

DEEN said...

@Peter Kemp: indeed, the judge may well decide that Wilders' remarks are within the bounds of "political communication". This appears to be the tack that his defense will be taking. But since the comments in the complaint are made in public media, not in parliamentary discussions, and given the nature of the remarks themselves (see above), he may have gone beyond what is allowed by that protection. Apparently, there is precedent.

Peter Kemp said...

I think the Dutch law and any law that purports to criminalise "incitement to hatred and discrimination"is a very slippery slope towards thought crime.

English common law on "incitement to violence" needs no extensions and has served the test of time IMO. If this was the operative law of Holland applicable to Wilders statements, there would be no prima facie case for a prosecution any more than John Howard's inherent discrimination and dog whistling: "We will decide who comes to this country..."

From the link:

"The Court of Appeal has considered that the contested views of Wilders (also as shown in his movie Fitna) constitute a criminal offence according to Dutch law as seen in connection with each other, both because of their contents and the method of presentation. This method of presentation is characterized by biased, strongly generalizing phrasings with a radical meaning, ongoing reiteration and an increasing intensity, as a result of which hate is created. According to the Court of Appeal most statements are insulting as well since these statements substantially harm the religious esteem of the Islamic worshippers. According to the Court of Appeal Wilders has indeed insulted the Islamic worshippers themselves by affecting the symbols of the Islamic belief as well."

Really pathetic that is: "Hate is created...insulting...harm the religious esteem"

Clearly the Dutch never had cause to look at for example, the blog comments from a multitude of people here (including yours truly) made "inciting hatred and discrimination" towards John Howard over the years, (a worthy political cause IMO that is ongoing and ends hopefully in his prosecution for war crimes and crimes against humanity). The big difference is that we never advocated violence against him or his supporters, and likewise nothing Wilders has said has incited violence against Muslims. The question here of course is what difference is there (in the context of political discourse/debate) between the vile despicable acts of some Muslims and the vile despicable acts of one John Howard?

The mistake inherent in any 'incitement to hatred/discrimination' legislation is that it conflates hatred with violence, ie it criminalises a legitimate (though subjectively vile from a liberal perspective) political anti-Muslim expression. A legitimate criticism that the catholic Church may well be "evil" in the anti-condom stakes in Africa--would that be inciting hatred and discrimination for secularists to propose deporting Catholic immigrants from an African country on the basis of perceived support for anti-condom policies?

Substitute neo-Nazi skinhead practises in Germany for example for the Muslim conduct that Wilders attacks (real or perceived)and ask: Would prosecution be valid for inciting that hatred and discrimination against Neo Nazis?

So, we arrive at the truth of the matter for Holland, it's OK to incite hatred and discrimination against practitioners of a political ideology but not practitioners of a religious ideology. A very slippery slope indeed if the Dutch judiciary is so stupid as to convict this obnoxious person for his political convictions where he does NOT incite violence.