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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, October 14, 2010

Geert Wilders verdict on 4 November

If you've been concerned about the prosecution of Geert Wilders in the Netherlands for "inciting hatred", then you might make a note that the verdict will be announced on 4 November 2010.

I don't support Wilders' views about Islam or immigration or the Koran (I certainly don't think that there is any basis for Western governments to be banning the Muslim holy book). However, I do defend his freedom of speech and particularly his freedom of speech on matters of social and political concern. In particular, I see nothing in the movie he made, Fitna, that merits either its prohibition or the prosecution of the movie-makers. The comparison of the Koran to Mein Kampf is over the top, but it was legitimate of him to make the point that the holy book can be, and frequently has been, read as inciting violence. There should be protection of people who want to make such points in a robust way.

For myself, I don't think that Mein Kampf or the Koran should be banned anywhere. There seems to be some confusion - or perhaps it's just in my mind - as to whether Wilders really wants the Koran banned or whether he was trying to make some other point in a colourful way. Whatever the truth may be, people are entitled to say illiberal things while having their freedom to do protected by a liberal society. Even hypocrisy does not disentitle you to freedom of speech.

For the sake of Dutch society and Western societies in general, I hope that Wilders is acquitted of all charges. About the last thing we need at the moment is the precedent of what is normally considered one of the most liberal countries in the world severely curtailing free speech, with criminal penalties attached.


Steve Zara said...

I'm conflicted (as usual). I can see a difference between saying things that are illiberal and attempting to stir up hatred.

I think there is also a difference between making a point in a robust way and inciting hatred. Of course, it's all very grey area, but so is much that the law deals with.

Neil said...

While I don't have a solution - I don't want to promote restrictions on free speech - I do think the issues are more difficult than many people think. The Millian marketplace of ideas view seems to be predicated on the belief that we process arguments rationally. But there is growing evidence for what Wilson calls 'mental contamination'. Experiments go this way: subjects are told something bad about another person (Russell kills kittens for fun). Then they are told that the claim is false. Finally their attitudes toward the person are assessed. Result: having been given the negative statement makes their attitudes toward its subject much more negative, despite the retraction. Moreover, thanks to the so-called sleeper effect, the effect grows after time. 6 weeks later they think that Russell's kitten behavior is extremely iffy. Even telling the subjects that the claim is false *before* they get it leaves them influenced by the content. I think that all this makes the defense of a market place of ideas more difficult. It may still be the case that even so there is more harm done by limiting speech than permitting it. But we need to accept that allowing, say, racist and sexist speech comes at costs, which will be borne especially by its targets.

Steve Zara said...


I wish I had written that! I fully agree. How do we recognise and deal with the social cost of bigoted and prejudiced speech? Is there anything we can or should do in law?

Felix said...


whilst what you say is true, the 'slippery slope' argument would prevent me from accepting this as a good enough reason for legislating against 'hate speech'. The benefits of free speech are so large yet the opponents or special interests so numerous that only a bright line can prevent a (not so) gradual withering of the principles of liberty.

DEEN said...

Don't forget that the charges also includes incitement to discrimination. Fitna is only a small part of the charges. I expect that he will be acquitted of the group insult charges, and likely even of the hate speech charges. But I'm not sure his comments about how criminal Moroccan boys are, or his ideas on how immigrants should be treated, will be without consequences - nor am I sure they should be. And even then, I don't expect much more than a slap on the wrist.

Also, allow me to add my appreciation of Neil's comment.

Blake Stacey said...

In particular, I see nothing in the movie he made, Fitna, that merits either its prohibition or the prosecution of the movie-makers.

Except their wanton use of the Papyrus font.

Kirth Gersen said...

I find it troubling that merely verbally criticizing a religion -- in a supposedly liberal country, no less -- results in actual legal charges for "stirring up hatred."

If any risk of saying something "offensive" to Islam is automatically "racism" and "hate speech," then maybe we need ro re-assess the basics of the English language... or just learn Arabic, which seems to be the desire here.
Because if Geert is found guilty, that sends a very clear statement that the protection of Muslim sensibilities trumps Western free speech -- that there is in fact a state-sponsored religion in the Netherlands.

Dick Alstein said...

Russell, the Netherlands may be a liberal country in many respects, but in protecting free speech it is not. It has laws against hate speech and against group discrimination (both of which are used in the trial). In comparison, the USA has better protection of free speech.

In addition to what Neil said: In the classical case of free speech, the speaker is the minority, set against a powerful majority (society or an oppressive government). Free speech law should protect the minority, because it is the powerless who will pay the price if the conflict escalates. In hate speech, the speaker often belongs to the societal majority. Who should the law protect, then: the minority, or the speaker?

Russell Blackford said...

Neil is right to bring up that very disconcerting body of social psychology literature. Unfortunately, we're not as rational as we'd like to think of ourselves as being, and there's probably some limit to how much we should even try to be - e.g. we probably need a certain amount of self-delusion to get by.

I'd be very worried, though, if the state began to pay too much attention to this and to treat us openly - as it formulates policy - as if we are not rational. It seems to me to open a can of worms.

If there's a principled way for the state to deal with such findings without turning into something very oppressive and frightening, anyone who can argue for it rigorously (Neil? though I realise this isn't your position) is encouraged to submit an article on it to JET. It would be a terrific topic for debate.

Steve Zara said...

I'd be very worried, though, if the state began to pay too much attention to this and to treat us openly - as it formulates policy - as if we are not rational. It seems to me to open a can of worms.

Isn't it reasonable to recognise that certain kinds of speech designed to encourage hatred and prejudice can have actual effects, and to formulate precautionary laws to prevent harm? It doesn't seem to me to be treating people specifically as irrational, but simply going where the evidence leads. I have to admit I have little or no knowledge of this, but it is indeed a fascinating topic for discussion.

Neil said...

Russell, if I knew the answer I would take up your challenge! All I have is worries on every side: I share your worries about state interference and I am worried about the effects of hate speech. The worry arises in many other contexts - eg, science reporting and the search for 'balance' has the effect of creating doubt over matters (global warming, evolution) where is there is no rational room for any. One consideration on the side of free speech is that getting worked up about the Geert Wilders of this world may in fact attract unwarranted attention.
I guess I would favor nudge-style initiatives to promote truth-telling without banning hate speech. But that's hand waving: how to implement this is the hard part.

AllanW said...

Neil; “It may still be the case that even so there is more harm done by limiting speech than permitting it. But we need to accept that allowing, say, racist and sexist speech comes at costs, which will be borne especially by its targets.”

Nice equivocation there, Neil; “I’m not completely sold on the idea that limiting speech is a bad move but I am certain (and you all need to agree with me) that racist and sexist speech should be limited.” Patronising, tyrannical and irrational all in one easily digestible package.

What your beautifully written comment has elicited is a warm and giggly response that has successfully switched off the more rational areas of the brain and leaped straight to the lizard-brain centres for the emotional and instinctive response. We human should be better than that and we need to be in exactly these areas of social policy and law if we are to progress as a species.

I’ll sketch the patronising, tyrannical and irrational aspects of your approach.

What your ‘allowing’ reveals in the quote at the start of this comment is the fundamental approach you are careful not to state but which is all too evident; top-down rather than bottom-up control of society; legislation rather than evolved common law. Get over yourself! You will ‘allow’ some speech rather than others? Do you realise how conceited and impractical that sounds? Unless you are to monitor and control every human expression, I have news for you; racist and sexist speech is happening all the time, all around you so get real and start to understand that the limited appreciation you have of how complex and extensive human interactions are in this world needs to be widened.

‘Comes at costs’; in other words, protect others from some harm. Laudable empathy in some circumstances but not in these I submit as your patronising approach reveals the hidden mindset of difference. Sure words have an effect but they are only affecting in a human brain which is a decisive mechanism and is able to choose responses. These reactions are not autonomic or automatic so don’t pretend they are. You have control over the expressions of your emotions and reactions so do not create an apartheid between you and others; recognise they have the same plumbing and should be treated to the same standards of expected behaviour. To do less is to excuse irrational and antisocial behaviour.

Proscribing ‘rights’ of speech are essentially illiberal and irrational acts. It might help to understand this ‘rights’ topic to appreciate the legal and philosophical distinctions that Jamie Whyte condenses from his book into a brief article in the Times of Aug 2004 (url too large for blogger to cope with).

Everyone has an opinion but I support the idea that they do not have the ability to impose on me the duty to accept their concept of truth rather than my own. And yes I do recognise that the notions I’m explaining here are not in force at the moment as witnessed by the existence of hate speech legislation. I’m just saying that laws restricting speech in this way shouldn’t exist J

At the end of the day, it is actions not words that can and should be decisionable in law. Treat humans as decisive actors not puppets who are jerked around unconsciously by the activating words of others; it may be partly true for a small section of society but acceding to any part of that argument truly is a slippery slope down which we invade the essential standing of ‘self’. Typical nanny-state thinking in other words.

DEEN said...

I don't really see why hate speech regulations are so much different from, say, libel and slander regulations. In both cases, they provide a means for people who feel they are unfairly maligned to defend themselves in court. And in both cases, the court can always rule that the right of free speech outweighs the protection against unfair malignment.

This is a serious request: can someone please explain to me why hate speech laws are supposedly the end of free speech, while libel/slander laws are generally accepted as a reasonable restriction on free speech?

omar.moufakkir said...

I believe in free speech,yes. But I don't condone free speech with criminal intents. And that's what Mr. Wilders' speech is good for. I understood how one man could braiwash a whole nation, not long ago; but above all, today, I pity those who are voting for such another man...

AllanW said...

Deen; "This is a serious request: can someone please explain to me why hate speech laws are supposedly the end of free speech, while libel/slander laws are generally accepted as a reasonable restriction on free speech?"

Firstly, the hate laws extend the categories of types of speech and writing that fall under legislation and secondly they do not embody a defense of 'truth' as slander and libel do.

And that idea of truth is at the crux of my problems with restrictions on freedom of expression; libel/slander laws (as poorly administered and written as they are) at least offer the chance to escape from onerous, frivolous or malicious legal actions instituted by the offendee designed to clampdown on speech that is disliked by them whereas current hate crime legislation disregards whether comments can be reasonably shown to be true and admits actions just because the offendee is offended not whether they are reasonable to be offended.

There is no mechanism such as the defense of 'fair comment' and ironically we all know the legislation is flawed and the courts recognise that any action under the hate crime legislation as written will actually fail which is why no case has been successful yet. Which begs the question; why not just scrap them and rely on slander and libel law thus giving a more robust and rational message to professional offendees?

Oh and Omar; you don't believe in free speech at all. Quick question; is it just you who decides whether there are criminal intents or do we all get a say?

DEEN said...

The public prosecution has just finished stating their case. They request the judge to aquit Widlers of all accounts - earlier this week, they already argued that he was not guilty of group insults, and now they've argued that he's not guilty of hate speech either. While some comments have some of the characterisitics of hate speech, the context, they argued, showed that Wilders is trying to argue against Islam, not Muslims. In none of the cases, the prosecution argued, did Wilders discredit Muslims to the point that it could propel others to take action against them.

(By the way, if this is indeed the burden of proof that needs to be met for a hate speech conviction, I'd say that free speech in the Netherlands is pretty safe.)

The public prosecution may well be right, but I'm not sure that they are doing a great job representing the people that filed the complaints against Wilders. Almost makes you wonder why Wilders bothered with a big-shot lawyer, if the public prosecution is doing his defense for him.

Also, you could wonder if it wouldn't be better for the public prosecution to bring their strongest case against Wilders, so that there would be a chance to set some real precedent (whichever way the verdict would go).

We'll see what verdict the judges will come up with.

DEEN said...

I need to add a correction: the public prosecution is not done yet. I mistakenly said they were done with their case, but they only completed the different charges for inciting hatred (with the charges for group insults dealt with earlier this week). They are currently still treating the charges of incitement to discrimination.

DEEN said...

OK, they're really done now. Prosecution has demamnded aquittal on all charges.

DEEN said...

@AllanW: except for your first objection (that they "extend the categories of types of speech and writing that fall under legislation"), all your other objections are objections to specific hate speech laws, not to the concept as a whole. There is nothing inherent to the concept that would prevent something like a "fair comment" defense to be included. In fact, this appears to be exactly how the Dutch public prosecution is interpreting the situation with Wilders.

There is no reason hate speech laws couldn't include all sorts of other safeguards against abuse either. That current US laws don't, doesn't necessary mean that all hate speech laws must be evil. The fact that UK libel law is currently really bad, doesn't mean that libel law should be completely abolished either.

As for you first objection, libel and slander laws also "extend the categories of types of speech and writing that fall under legislation". Which brings us right back to the original point: why are they so different from hate speech laws?

AllanW said...

Then DEEN I suggest you are a little more specific in your requests if you don't like the responses I gave; they are accurate for why hate speech laws endanger free speech rights.

And please be more clear and succinct in what you wish to have explained to you; moving the goalposts merely as you do at the end of your reply just causes frustration and disengagement, I'm afraid.

Should you wish a formal and exhaustive defense of the concept of hate crimes I would humbly suggest you do the damn work of investigation yourself and stop relying on others to spoon feed you.

Best of luck. Bye.