by Lisanne Groen and Martijn Stronks. Eleven International Publishing: The Hague, 2010. 136 pp. Paperback. £15.00. ISBN: 9789059316089.
Reviewed by Stephen McDougal, Department of Political Science/Public Administration, University of Wisconsin-La Crosse. Email: mcdougal.step [at] uwlax.edu.
This is a book of very limited scope. Books of limited scope will usually have limited interest, yet can be very useful in the classroom. Authors Lisanne Groen and Martijn Stronks offer their readers a legal primer about one Western European nation’s struggles with the political reaction to multiculturalism. While the larger struggle continually pits the rule of law against the political power of hatred, this book focuses only on the formal law: constitutional, statutory and case law texts. And, it is brief – the cliff notes of the nutshell of Dutch and European Union law on free speech and non-discrimination.
Specifically, the authors present a summary of the formal law involved in a single case: Geert Wilders, a right-wing Dutch political leader, who was charged in 2008 with ‘group defamation’ and ‘spreading hate’, both of which are expressly prohibited in the Dutch Penal Code (Articles 137c and 137d, respectively). Wilder’s reputation in Dutch politics as a reactionary champion of anti-Muslim and anti-Islam causes was well established when several complaints were made to public prosecutors over his invidious discourse about Islam and Muslims in Dutch society during the 2006 elections. Initially, prosecutors declined to pursue charges. But the complainants appealed, and a Dutch court of appeals ordered that Wilders be brought to trial. This led eventually to his recent prosecution and acquittal. The book, however, was published before the trial took place. Therefore, the book provides a summary of the formal legalities, and little else. There is no commentary as such, and it ends with the authors describing – while eschewing predictions as such - one of two lines of reasoning the trial court could use in resolving the case.
Groen and Stronks’s purpose was to describe the provisions of Dutch and European Union law that applied directly to the specific legal issues in the Wilders Case for an English-speaking lay readership, including “foreign organizations and journalists who want to express an opinion on the lively Dutch debates relating to the prosecution of a politician...” and also to “provide a modest contribution to a well-balanced image of the Netherlands” (p.6).
Their narrative is, therefore, strictly limited to the law of the case. In turn, Groen and Stronks describe briefly the fundamental rights provisions concerning freedom of speech, freedom of religion and the non-discrimination [*660] principle in the European Convention on Human Rights (ECHR) and the Dutch Constitution; the specific Dutch statutes concerning restrictions on free speech in support of the non-discrimination principle (freedom of religion played no role in the Wilders Case); and finally some of the case law from the European Court of Human Rights. The relevant texts are excerpted. The authors characterize these fundamental rights as of equal status and importance, arguing that they have evolved in a horizontal relationship. In other words, legal rights under the non-discrimination principle are of equal constitutional status as free speech and religious rights.
With various and varying textual provisions, European law also expressly recognizes some need for restrictions of speech rights in pursuit of the non-discrimination principle. There is, however, considerable variation in the express criteria justifying restriction between the ECHR and the Dutch Constitution (p.27). But, beyond quoting phrases from the ECHR and the Dutch Constitution, Groen and Stronks make no efforts at analysis or synthesis because such was not their project.
The growing ethnic diversity of the Netherlands – and most other Western countries – has fueled the political right, pressuring the formalistic entanglements created by the law itself. In all this, of course, Geert Wilders is playing his predictable role, and his political discourse is far from unique, so there is no need to repeat it here. The authors provide enough for a reader to grasp the situation. Suffice it to say that Wilders’ politics bring into direct conflict the freedom of speech with the freedom from discrimination – a conflict that is not going away anytime soon. While U.S. readers (such as myself) might well be looking to the courts to ‘get things right,’ Groen and Stronks describe how the European courts are more ‘trying to sort things out.’ The difference can be important in the book’s possible use in the classroom, but it is not a comparative work as such.
In Dutch statutes, “group defamation” and “spreading hatred” are expressly made criminal. The authors give the relevant statutory texts and then note the self-evident conflicts – or “entanglements” – with abstract free speech rights. They parse each Article somewhat, articulating what students of U.S. law might term the “elements” of each offense. Finally, the authors present quick summaries of selected rulings of the European Court where the same broad issue has been adjudicated.
I found the summaries of EU case law the most interesting, since that’s where the real legal politics is played out. And there is a growing jurisprudence from the European Court precisely on this “entanglement.” However, the summaries are just that: a two-to-three paragraph description of each case. Groen and Stronks do point to one theme: how, in coping, the European Court has taken a very idiosyncratic approach to which factors are held to be legally relevant to the disposition of any particular appeal. The details are most important, but the summaries do not contain enough details to perceive much of a pattern in the Court’s rulings.
Thus, a particularistic admixture of fundamental rights and statutory provisions, as well as the great variety of the Court’s own prior ruling seem to come together in no particular way. At this level of conflict (in Dutch law, at least), where political forces seek to use liberal democratic legal principles to perpetuate anti-democratic policies and [*661] ideologies, the specific details of a hate speech crime become crucial to the legal question of justified restriction. The ECHR provides that a restriction must be necessary to a democratic society (p.75). The Court has been protective, as a result, of speech within the political sphere--especially in election campaigns--but not consistently so.
Groen and Stronks describe how the European Court has generally given Member States wide latitude in applying ECHR provisions within their own national legal systems. Thus, “there is no European standard” as such about the meaning of these constitutional and statutory provisions (p.77). Even principles of tolerance and pluralism are variable and thus contestable. They begin their discussion of the case law by noting that it “is not immediately clear” how the European Court will weigh the very specific circumstances of any particular case (p.78). They end their discussion by concluding that the Court’s use of certain “starting points or ‘general considerations’...” in one case “does not lead to a prediction of what the opinion of the [Court] will be in another case with a particularly overlapping set of facts” (p.88).
The authors end with a dualistic prediction of what the trial court could do in the Wilders prosecution. Two lines of reasoning are laid out:
(1) Wilders is either guilty because his remarks were deemed defamatory and group-based in his insidious characterizations of Islam, the Quran and Muslim communities in the Netherlands; the campaign context of his speech is important due to Wilders’ responsibilities as a political leader to avoid incendiary rhetoric; the needs of a democratic society justify restriction; and so forth.
(2) Or, Wilders is acquitted (indeed, as he was) because his remarks occurred in the context of a political campaign and public debate about the important political issue of immigration policy; they were aimed at Islam, the religion, and not at Muslims as a group, and the statute protects defamation of a group (a holding for which there is precedents in EU case law); his speech did not expressly incite violence; and so forth.
The latter position seems to be where the Dutch court actually came down. It was hard to tell from BBC News and the New York Times, whose coverage of the acquittal focused more on its implication for the current coalition government than on the legal reasoning of the court, which I am afraid is quite typical for much legal journalism.
My question is always what are a book’s lessons – and its usefulness in teaching lessons – about human liberty and the rule of law in societies that are growingly multicultural. This book is a worthy attempt at sketching out one skirmish in the perpetual conflict between the liberal state’s commitments both to freedom of speech and freedom from discrimination with organized authoritarian political forces relying on freedom of speech to resist cultural change and, in effect, advocate discrimination.
In this, the book offers a provocative example for hate speech regulation in the United States. While reading, I continually found myself drawing parallels to law in the U.S., especially the constitutional status of non-discrimination. I wanted to read more [*662] about the politics underlying the Wilders Case (which was beyond the authors’ express intentions), as well as more about any emerging doctrine balancing free speech and hate speech more effectively than has been so in the United States. The book is short enough that it could make an excellent auxiliary textbook, bringing a comparative component to the usual syllabus of a course on freedom of speech.
© Copyright by the Author, Stephen McDougal.