General Information on Nuvigil and Provigil I think many of us have already experienced conditions of periodic sleepiness during the day……

JamesWN: But if the law is not meant to be coercive, why does it provide for the possibility of imprisonment? If Wilders repeats the same statements after being found guilty, the law the next time is going to exact a different and higher penalty.

Repeat offender status doesn’t work that way over here, although I do suspect that the judiciary would be displeased if he continued to say the exact things they had ruled he couldn’t say.

The prison sentence is a leftover from earlier provisions, such as the one Glimmerveen was convicted under, that were more narrowly tailored to World War II. Part of the benefit of keeping it is that it makes the offence in question a felony (=everything that carries a maximum of 1 year or more). That may not seem like a good thing, but it means this case won’t be heard in the criminal law equivalent of small claims court. Whatever the problems of having such a law in the first place, it would be even worse if this case were heard by a single judge following a procedure that is mostly designed to make it easier for defendants to proceed pro se.

Running a search of cases brought under art. 137c Criminal Code (in order that they come up in the search engine, running a search for the article in question):

1. Acquitted
2. Conviction on appeal overturned by the supreme court (“stop the tumor that is islam”)
3. guilty, 80 hour work penalty
4. Acquitted
5. Acquitted
6. Acquittal by the Court of appeals overturned by the supreme court (Nazi symbols, etc.)
7. Conviction overturned on appeal
8. Trial court ruling of (2), above. 2 weeks suspended jail sentence.
9. Acquitted by application of art. 10 ECHR
10. Supreme Court rejects appeal against acquittal
11. See 10
12. Supreme Court confirms the sentence on appeal of 80 hours work penalty, 40 hours of which is suspended
13. Court of Appeals overturns a fine of € 480
14. 120 hours work penalty and a suspended jail sentence of 3 months
15. Procedural ruling
16. Asset forfeiture overturned by the supreme court
17. Court of Appeals confirms acquittal
18. Supreme Court confirms acquittal by the two lower courts.
19. CoA ruling of (2) and (8), above. Acquitted of the 137c part.
20. Convicted of assault as well as violating 137c, sentenced to 18 months, 6 of which are suspended, as well as € 2513,66 in damages to the victim.

I got 50 more hits like this, mostly from the last 10-15 years, but I’m bored now. This is enough to give everyone a sense of what I’m talking about.

Martinned: That analogy doesn’t work. Making him explain his actions is exactly the response you’d expect for someone who (allegedly) violated a social norm. The fact that there might be some fine in the end doesn’t make it coercive, or at least not more than minimally so.

There was a time when the institutions of family and Church were strong and most violations of social norms resulted in stigmatization and ostracizing the offender. Social norms were not always criminal offenses and our Framers never intended them to be.

But nowadays we have a preposterous society that deems things like being mean on the internet a crime when someone is unstable and commits suicide because of the alleged meanness.

That analogy doesn’t work. Making him explain his actions is exactly the response you’d expect for someone who (allegedly) violated a social norm. The fact that there might be some fine in the end doesn’t make it coercive, or at least not more than minimally so.

We are talking at cross-purposes. Your claim that ‘social norm’ is a matter amenable to coercive enforcement (of any severity) seems to me a contradiction in terms. I can say no more about it that that.

Oren_: And the problem here is that Wilders is being dragged to court against his will to explain his actions, not the trivial penalty that might be assessed.

That analogy doesn’t work. Making him explain his actions is exactly the response you’d expect for someone who (allegedly) violated a social norm. The fact that there might be some fine in the end doesn’t make it coercive, or at least not more than minimally so.

Oren_: Which alleged violations of the law to prosecute and which to let slide is a matter of public policy, not one of legal decision. 

And that used to be the law here, too, ever since the Code of Criminal Procedure was first enacted in 1921. (Actually, under the French code that we had before, the system worked that way as well.) Just like the US has its constitutional amendment proposals (and judge Casell) for victims’ rights, we have the right of the victim to become a civil party to the criminal proceedings, and the right of the victim to complain about a decision not to prosecute. Both are relatively new innovations. Personally, I’m not a big fan, but I’m also not very much against.

Yes, but does it change my behaviour or not? The ticket works as a stern reminder that what I did was not OK, but one that I can choose to ignore without too much trouble. It isn’t entirely the same as a social norm tout court, but it’s pretty close.

It changed your bank account, that’s enough.

Actually, the problem would be the break-in and the assault, not the jumping jacks.

Precisely!!!

And the problem here is that Wilders is being dragged to court against his will to explain his actions, not the trivial penalty that might be assessed.

I’m not sure why you’re focusing on this aspect. Does it help if I tell you that the law says that the judges who ordered the prosecution may not subsequently sit on the panel that hears any appeals in the case? Or that the trial court is most certainly still free to find the defendant innocent?

Because Executive discretion not to prosecute is a fundamental democratic check on the court’s powers.

No, it doesn’t help that the CoA judges are not on the panel — they ought (IMO) to have no business decided which cases to hear in the first instance. A body that is not politically accountable (for good reason, of course) simply does not have the legitimacy to be making policy decisions. Which alleged violations of the law to prosecute and which to let slide is a matter of public policy, not one of legal decision.

The violation here is not to the defendant, by the way (hence the fact that the trial court can acquit him is irrelevant) but to the prosecutor and the elected government who have had their judgment on the matter (one properly withing their ambit) reversed by an unelected court. If I were the prosecutor, I would have quite a mind to simply not present a case or, at the least, present a deliberately botched one (that’s American insouciance for ya).

My sense is that American prosecutors tend to (try to) prosecute every and any case they can prove. Dutch law, on the other hand, explicitly states that the prosecutor can decline to prosecute when a prosecution would not be “in the general interest”. Would you have the prosecutor exercise this right without any further check from anybody?

That sense is only partially correct.

First, police departments will often decline to forward charges when they feel appropriate. Generally, prosecutors don’t know about these situations unless they are already involved in the case somehow.

Second, prosecutors will usually charge every case that comes across their desk but tend to give up a lot of them fairly quickly if there is any serious resistance. IOW, they use the defendant’s willingness to fight the charges as a (reasonably good) proxy for the strength of the case. It costs them virtually nothing to charge and then allow dismissal with prejudice.

Lastly, the prosecutor is accountable to The People — if they do not approve his actions they can replace him with someone better.

Oren_: At least in the US, you will find that ignoring the ticket will quickly lead to much more coercive measures. Usually a stern warning following by a bench warrant.
Simply because the penalty is so small that your income allows you to plead guilty without serious consequence (although in some states, such a moving violation would also adversely effect your car insurance rates, if you drive) does not change the fact that the State has forcibly separated you from $50.

Yes, but does it change my behaviour or not? The ticket works as a stern reminder that what I did was not OK, but one that I can choose to ignore without too much trouble. It isn’t entirely the same as a social norm tout court, but it’s pretty close.

It’s the same with drinking and driving. Under Dutch law, a DUI doesn’t get you arrested or anything. It just gets you a ticket and the need to find someone else to drive your car home. The reason why I know virtually no one who would drive while under the influence isn’t the ticket. Hell, they have no good ways of detecting cannabis use, but people wouldn’t use that and drive either. The reason why nobody does it is that the social norm against it has become so strong that it is simply not done. The police enforcement of the law was/is only a small part in that process.

Oren_: Suppose for a second that a criminal broke into your house, held you at gunpoint and forced you to do 10 jumping jacks. The fundamental breach of his act is not lessened, IMO, by the benign and trivial nature of his request. Surely I don’t judge him as harshly as a rapist but the distinction is not one of which was less coercive (they both were) but the severity of what they used that coercive power to obtain.

Actually, the problem would be the break-in and the assault, not the jumping jacks.

Oren_: Or the prosecutor declines and the Court of Appeals puts on the prosecutor hat for the day…

I’m not sure why you’re focusing on this aspect. Does it help if I tell you that the law says that the judges who ordered the prosecution may not subsequently sit on the panel that hears any appeals in the case? Or that the trial court is most certainly still free to find the defendant innocent?

My sense is that American prosecutors tend to (try to) prosecute every and any case they can prove. Dutch law, on the other hand, explicitly states that the prosecutor can decline to prosecute when a prosecution would not be “in the general interest”. Would you have the prosecutor exercise this right without any further check from anybody?

You mean like the way I’m ignoring the police who gave me a ticket for having no lights on my bike the other day? They were right, I was riding my bike in the dark with no lights. They gave me a ticket, that was their job. I’ll pay the ticket when it comes, but none of that stops me from continuing to ride my bike without any lights.

At least in the US, you will find that ignoring the ticket will quickly lead to much more coercive measures. Usually a stern warning following by a bench warrant.

Simply because the penalty is so small that your income allows you to plead guilty without serious consequence (although in some states, such a moving violation would also adversely effect your car insurance rates, if you drive) does not change the fact that the State has forcibly separated you from $50.

The police had my full, undivided and non-optional attention when they pulled me over, but the ticket hasn’t changed my behaviour one bit. The ticket is simply not high enough (€ 35, I think), and the probability of getting caught again is simply too low. (In case you were wondering, those are two of the three key variables of the Becker crime & punishment model.)

Of course, I think they might be slowly boiling the frog here. In a situation that demands no penalty whatsoever, any penalty (even one that the affluent can ignore) is an affront

That’s all besides the point — the police have involuntarily separated you from your rightful property. That is the start and end of the analysis of coercion IMO.

What’s wrong with describing this situation as only minimally coercive?

It is maximal coercion with a minimal end.

Suppose for a second that a criminal broke into your house, held you at gunpoint and forced you to do 10 jumping jacks. The fundamental breach of his act is not lessened, IMO, by the benign and trivial nature of his request. Surely I don’t judge him as harshly as a rapist but the distinction is not one of which was less coercive (they both were) but the severity of what they used that coercive power to obtain.

It is a judge tasked with, essentially, preparing the case for trial, after the police and the prosecutor’s office have agreed that there is a case.

Or the prosecutor declines and the Court of Appeals puts on the prosecutor hat for the day…

Martinned: Just playing devil’s advocate for a moment:Do countries also have the right to resist the freedoms they guarantee from being used to undermine those very same freedoms?

Interesting question. Historically, the US did this by internment and demonization of the Japanese during WWII. FDR personally endorsed fundraising war bonds using posters and films depicting “Japs” as grinning yellow monkeys. He issued orders that all Naval vessels who destroyed Japanese ships were forbidden from rescuing any survivors. They were also ordered to use machine guns to approach survivors in lifeboats and those clinging to planks of wood to deliberately kill them all. This wasn’t about vengeance or sadism, but to prevent survivors from being picked up by Japanese vessels and giving useful intelligence on the location of American ships.

In one of our most notable examples of historic amnesia, the same thing happened to German Americans – especially those who were members of the pro-Nazi Bund but also those known to have close ties to Germans. The largest relocation camp for these Germans was in Crystal City, Texas.

As far as freedoms that are the guarantees of citizenship, the easiest way to manage that is to deny visas to those whose ideologies oppose American freedoms under our constitution. We currently have immigration and visa laws designed to permit primarily those who are well-educated and capable of supporting themselves not just today – but in ten or twenty years from today. This is the reason why Indians have been dominant as opposed to Africans, Mexicans, and Haitians. It was one thing to hold the golden lamp as a welcoming beacon to the world’s wretched and poor when we had no social security, medicaid, welfare, or food stamps, and quite another to burden our citizens by opening the floodgates to those who would swamp our workers and reduce our standard of living.

It’s very clear from empirical observation as well as the Quran itself that it stands in opposition to American freedoms of religion, speech, and assembly. It opposes equal rights for women, for homosexuals, and favors human enslavement. It’s not dissimilar from Mein Kampf.

Oren_: You are mistaking the separate property of how harsh the court tends to be with those under its authority with the property of that authority itself. Their benevolence is admirable, no doubt, but it does not change the coercive nature of the institution. One is not free to simply ignore them.

You mean like the way I’m ignoring the police who gave me a ticket for having no lights on my bike the other day? They were right, I was riding my bike in the dark with no lights. They gave me a ticket, that was their job. I’ll pay the ticket when it comes, but none of that stops me from continuing to ride my bike without any lights.

The police had my full, undivided and non-optional attention when they pulled me over, but the ticket hasn’t changed my behaviour one bit. The ticket is simply not high enough (€ 35, I think), and the probability of getting caught again is simply too low. (In case you were wondering, those are two of the three key variables of the Becker crime & punishment model.)

What’s wrong with describing this situation as only minimally coercive?

A_Nonny_Mouse: I don’t know why the Netherlands didn’t just say “Geert, you’re right, we’ll just reverse the ban on Mein Kampf.”

Actually, funny story. Mein Kampf isn’t banned here. I always thought it was, too, but it’s not. It turns out that after the war the property of certain war criminals, including people who died fighting for the Nazis, was forfeited to the state. One of those people was the guy who translated Mein Kampf into Dutch, meaning that the Dutch state came to own the copyright to the translation. They simply used that copyright to forbid any further publication of the book, but that only covers the Dutch version and only runs until 70 years after the death of the translator (who died in 1944 on the Eastern front). So in 2015, when both the original author and the translator have been dead for more than 70 years, anyone will be free to republish the translation, to put it on the internet, or whatever. Apparently even in Germany some academics are planning a new edition for that year.

Eric Rasmusen: “The court is packed with journalists every day, the entire record, including the statements by these experts, will be attached to the ruling, etc. If there were an actual dispute as to facts, witnesses — and definitely the victim — would certainly be heard in open court, and so on.”
Maybe we’ve been under a misimpression. This sounds like an open trial. Or are the journalists just all waiting in the hallway, or outside the building? 
Can the public attend the trial after all, and must the court make all the evidence public, rather than just summarizing it in the ruling or selectively releasing evidence? 
If not, can the defendant require everything to be released if he does dispute that what gets told to the public is true?

Of course the journalists and the general public are in the room. It’s just that these experts will first be deposed by the Dutch version of a juge d’instruction. (Remember Baltasar Garzón, the guy who went after Pinochet? A Dutch “judge-commissioner” is like that, only much weaker. It is a judge tasked with, essentially, preparing the case for trial, after the police and the prosecutor’s office have agreed that there is a case.) The misunderstanding in the headline of the original post is that, while the trial is entirely open, such preparatory depositions are not. And the record of these depositions, which is a document containing the witness’s statement – though not necessarily verbatim – becomes part of the dossier and can be relied upon by the court without the “witnesses” being heard again in open court.

(If they were actual witnesses, as in eye-witnesses, it would be much more likely that they would be heard again in open court. The decision of whether it is necessary or otherwise appropriate to bring the witness into court is at the discretion of the court.)

There’s nothing selective about the way the evidence comes out. Documents relied upon and the record of the proceedings in court are available through the clerk’s office, but they may be anonymised or abstracted if the privacy interests of the accused or other individuals involved so requries. Even in this case, which is the biggest criminal case of the year, the court’s interlocutory ruling from last Wednesday refers to mr. Wilders as “[accused]“.

The defendant doesn’t have to demand that everything be released. He’s a party to the proceedings, so he has a copy of the dossier. The only question is whether that dossier can be released without injuring the privacy of others. In this case, for example, there is a problem with the eight complainants who asked the Court of Appeals to compel prosecution. Presumably their names are in the criminal dossier. Releasing these names would quite likely expose them to – euh – the attention of mr. Wilders’ supporters. For this reason, the relevant (privacy) statutes forbid the accused from posting the entire dossier online; at the very least, they would have to be redacted to make it impossible to identify the complainants.

Anyway, I’ve never heard of any problems with access to documents, even in highly controversial cases. If there is a problem, it will usually be the conviction of an innocent man. (Acquitting someone guilty is much less of a problem.) In that case, journalists tend to have no problem talking to the man’s lawyer and – off the record – to the police. The lawyer will then give them access to whatever parts of the dossier they can’t see at the court house, to the extent that such access benefits his client.

Soronel Haetir: Martin,Umm, I may be mistaken here but the prosecution was in fact compelled, no? Who do the judge(s) who made the order to prosecute answer to? I.E. who can fire them?
I cannot even imagine the damage that would be done here in the US if our life tenured judges had the power to start anything. On the other hand I can see definite benefits to combining inquisitorial and jury systems, each on their own have faults. I suppose that such a hybrid would have its faults as well, they just aren’t as apparent since what we both have is a realized system compared to an unrealized one.

That’s a different question again. Ordinarily, the Dutch legal system attaches great importance to prosecutorial discretion. There is a very small exception to that rule, whereby the victim can go to the Court of Appeals (!) to get an order compelling prosecution. While the law gives no guidelines as to how the court is supposed to take this decision, it is clear from the debates in parliament and from subsequent practice that such orders should only be given in extraordinary circumstances. Which is why everyone was very surprised that it was done in this case. But even then the prosecutor cannot be compelled to request an actual punishment, and even if the accused is found guilty, he won’t necessarily be punished. (No minimum sentences under Dutch law.)

?

Wilders said “This book [i.e. the Quran] incites hatred and murder, which is why it does not fit in our legal order. If muslims want to participate, they have to distance themselves from the Quran. I realise that that is a lot to ask, but we have to stop making concessions.”

As far as I can see, all Wilders has to “prove true” in regard to that statement is that the Quran incites hatred and murder; I don’t think he would have to prove all Muslims believe and act upon all the words of every verse. Upon reading the book, any rational person would find it DOES promote hatred of and violence toward Infidels. The Quran is the “official policy” of Islam and, therefore, of Muslims. The fact that some Muslims object to, or simply ignore, or are insulted by the West’s exposure of, those “Slay the Infidels wherever you may find them” verses in the Quran is irrelevant. There’s hate toward ALL forms of “the Other” in the Quran, and it SHOULD be within the legal bounds of free speech -in the Netherlands or anywhere else “EU-PC-good-think” has spread its tentacles – to point that out.

I had understood that Wilders’ original argument was that “if Mein Kampf is illegal because it’s hateful, then the Quran should be illegal because IT is hateful”. Of course, if you believe in free speech, then Mein Kampf should not be banned; but surely its philosophy should be educated against. In the same way, the ideas found in the Quran should also be educated against:
(1) Women have equal value in the West; they are not, will not, must not be considered half-persons.
(2) The Western idea of rule-of-law is superior to Sharia and Western law WILL BE enforced, even though certain religious fundamentalists believe their 7th-century-prophet’s philosophy of victory-through-pillage-and-terror is mandated by god.
(3) The honor-shame dichotomy may be part of Islamic culture, but killing women to expunge shame and restore honor is considered MURDER in Western culture, and will ALWAYS be prosecuted.
(4) The West believes in freedom of belief and of choice, and it will ALWAYS be against the law to kill a person for whatever he may believe or disbelieve about Islam.
(… And so many more …)

I don’t know why the Netherlands didn’t just say “Geert, you’re right, we’ll just reverse the ban on Mein Kampf.” Would have saved them a lot of bad press (and it would have hidden how far down the path to acknowledging that “Islam Is Superior To Our Old Ways” most of Europe has allowed itself to be led).

===========
“… modern free speech only goes as far as the most offended person in the room.” Priceless quote, EvilDave. (And so VERY sad that it’s true, here and now in 2010.)

Oren: Preventing non-citizens from voting is far beyond the legitimate powers of government?

No, the country is only required to give the franchise to citizens.

Forbidding the teaching or preaching of foreign languages (see, e.g. Meyer v. Nebraska in the SCOTUS) is, on the other hand, totally out of bounds as a political matter.

Every country has the right (and duty) to manage immigration to protect its own economic, social, and cultural interests.

They have the right to admit or not admit immigrants. Once those immigrants are admitted, they have no right to relegate them to second-class status.

And even if you do get hauled into court, the procedure is relatively painless and results in a (suspended) fine of a couple of hundred euros at most. What would Gary Becker have to say about that?

GLIMMERVEEN and HAGENBEEK got jail sentences.

You can have a problem with treating social norms this way — I do too — but it is absurd to say that strict obedience of the law is the only rational option here.

Again, a social norm is, by definition, something that carries only non-coercive remedy.

But a lot less coercive here than in the United States.

Did I already mention that a felony conviction in this case will in no way preclude Wilders from voting or running for any office whatsoever? In fact, generally someone’s criminal record is private information that the government is forbidden by law to release, meaning that a criminal record per se is unlikely to aversely affect your life once you’ve paid your debt to society.

First, there I do not understand the meaning of “less coercive” or “more coercive”. Either Wilders must submit to the authority of the court or he can tell them to fuck off and mind their own business. This is a binary distinction — voluntary/involuntary.

You are mistaking the separate property of how harsh the court tends to be with those under its authority with the property of that authority itself. Their benevolence is admirable, no doubt, but it does not change the coercive nature of the institution. One is not free to simply ignore them.

Second, of course the penalty cannot be severe. If you criminalize everyday conduct (god knows I make racist jokes fairly frequently) then you cannot exact a huge penalty. Unfortunately, this means you cannot exact a large penalty on the truly felonious — rapists, murderers and others who actions truly violate the fundamental human rights of others.

This is precisely why I prefer a rather more divided approach — the law for serious violations of human rights and voluntary social norms for boorish but not-rights-violating conduct (e.g. Phelps). That’s old hash though, having been discussed to death already.

Maybe we’ve been under a misimpression. This sounds like an open trial. Or are the journalists just all waiting in the hallway, or outside the building?

Can the public attend the trial after all, and must the court make all the evidence public, rather than just summarizing it in the ruling or selectively releasing evidence?

If not, can the defendant require everything to be released if he does dispute that what gets told to the public is true?

Umm, I may be mistaken here but the prosecution was in fact compelled, no? Who do the judge(s) who made the order to prosecute answer to? I.E. who can fire them?

I cannot even imagine the damage that would be done here in the US if our life tenured judges had the power to start anything. On the other hand I can see definite benefits to combining inquisitorial and jury systems, each on their own have faults. I suppose that such a hybrid would have its faults as well, they just aren’t as apparent since what we both have is a realized system compared to an unrealized one.

Swan Trumpet: Fascism, like communism, Stalinism, Maoism, Islamism, etc. are all totalitarian governments. The issue here is preventing fascists from undermining and destroying liberal democracies. Every country has the right (and duty) to manage immigration to protect its own economic, social, and cultural interests.

Just playing devil’s advocate for a moment:

Do countries also have the right to resist the freedoms they guarantee from being used to undermine those very same freedoms?

Oren_: the law is coercive

But a lot less coercive here than in the United States.

Did I already mention that a felony conviction in this case will in no way preclude Wilders from voting or running for any office whatsoever? In fact, generally someone’s criminal record is private information that the government is forbidden by law to release, meaning that a criminal record per se is unlikely to aversely affect your life once you’ve paid your debt to society.

Soronel Haetir: While I won’t go as far as some other commenters I will say your law, on its face and it appears in application, comes very close to foreclosing public discussion of national policy when the government in its wisdom decides it doesn’t want that policy debate to occur. I find that a frightening prospect for what is supposed to be a state with western values.

I have no idea how you would come to this conclusion. There is no way this trial could be more public than it is, unless you nitpick on the edges. The court is packed with journalists every day, the entire record, including the statements by these experts, will be attached to the ruling, etc. If there were an actual dispute as to facts, witnesses – and definitely the victim – would certainly be heard in open court, and so on. What’s the problem.

Soronel Haetir: For limitations on speech to be ruled by “common sense” is even more frightening. The only rational course under such a system is to choose not to speak in any manner contrary to the prevailing government policy. I hope Europe realizes the folly of such a position before it is too late.

That’s a strange approach to rationality. For one thing, the government doesn’t compel prosecutions, since prosecutors are to a large extent isolated from political pressure, though they do ultimately answer to the minister. Unlike American US Attorneys, these guys are not political appointees. (I don’t think I’d mentioned that yet.)

The rational thing to do is to realise that you’re extremely unlikely to get prosecuted (which is why I still don’t have a light on my bike), and even then only for statements that are particularly egregious. Of the long laundry list of quotes and statements submitted by the complainants, only a handful were judged by the Court of Appeals as meriting prosecution. And even if you do get hauled into court, the procedure is relatively painless and results in a (suspended) fine of a couple of hundred euros at most. What would Gary Becker have to say about that?

You can have a problem with treating social norms this way – I do too – but it is absurd to say that strict obedience of the law is the only rational option here.

Swan Trumpet: You’re mischaracterizing Wilder’s views. He’s an advocate for legislation prohibiting muslim immigration to the Netherlands on the grounds that their religion opposes western values and freedom. He’s now being persecuted because he has used his right to free speech to publicize his message. In Europe and in Canada, speech is limited to whatever the UNHRC deems to be politically correct. If any muslim anywhere takes offense, it is automatically hate speech.

He advocated banning the Quran, reducing the freedom of imams to preachs as they choose, as well as otherwise restricting the freedom of Muslims already here to practice their religion. In case you don’t believe me, the (undisputed) quotes are right here in the court documents. Now I don’t think he should be prosecuted for any of this, but let’s not pretend he is some great hero for freedom.

Oren_: Again, absurd effectively-fascist speech ought to be protected but as Martinned points out quite correctly, his appeal to the ideals of Jefferson is cynical at best, outright malevolent at worst.

Fascism, like communism, Stalinism, Maoism, Islamism, etc. are all totalitarian governments. The issue here is preventing fascists from undermining and destroying liberal democracies. Every country has the right (and duty) to manage immigration to protect its own economic, social, and cultural interests.

As for Wilders quoting Jefferson, let’s not make too much of that. He only supports free speech of people who agree with him, so he’s hardly a martyr for freedom.

Gah, I’m embarrassed for him already:

# An immigration ban of five years for immigrants from non-western countries. Foreign residents will no longer have the right to vote in municipal elections.
# A five-year ban on the founding of mosques and Islamic schools; a permanent ban on preaching in any language other than Dutch. Foreign imams will not be allowed to preach. Radical mosques will be closed and radical Muslims will be expelled.

Both of those proposals are so far beyond the legitimate powers of the government as to be absurd. I don’t like radical Islam but succumbing to abject fascism is not the way to go about protecting our liberty!

Of course, that doesn’t change my view on his right to say that but I’m quite grateful that I will no longer make an ass out of myself supporting him on a personal matter (as opposed to supporting him despite my stringent disagreement with those views quotes above).

You’re mischaracterizing Wilder’s views. He’s an advocate for legislation prohibiting muslim immigration to the Netherlands on the grounds that their religion opposes western values and freedom.

What he proposed is far in excess of this.

Again, absurd effectively-fascist speech ought to be protected but as Martinned points out quite correctly, his appeal to the ideals of Jefferson is cynical at best, outright malevolent at worst.

These statutes are meant to be treated with a large amount of common sense. They are meant to signify that there is a line somewhere, based on some consensus — in parliament and outside it — of where it is. The law codifies a social norm, but the main purpose of doing so is to make the social norm stronger, not to haul people into court.

Good, then when I make a remark that the policeman finds objectionable, I will inform him that my common sense precludes him from pursuing the matter and that’s that.

Of course, you don’t really mean that “common sense” in the sense that the mere common man might have a say. If I say something objectionable, it will be the policeman’s common sense, not mine, that prevails.l

(Sorry, this is a non-response for the same reason I quoted above — the law is coercive, not voluntary. It does not operate by ‘consensus’ except at the level of elections. ‘Social norms’ are matters that I consider perfectly acceptable to violate on a routine basis more or less whenever I see fit when I don’t care about how people will perceive me.

So he should proceed by generally not caring about the legal details. The statute proscribes a lot of things, if you take it literally. But it was never meant to be. Everyone would agree that 100% enforcement would be highly undesirable, not to mention in violation of art. 10 ECHR a lot of the time.

Indeed. The fact that the statute would be absurd to take literally makes it more important to understand where the real limits are.

While I won’t go as far as some other commenters I will say your law, on its face and it appears in application, comes very close to foreclosing public discussion of national policy when the government in its wisdom decides it doesn’t want that policy debate to occur. I find that a frightening prospect for what is supposed to be a state with western values.

For limitations on speech to be ruled by “common sense” is even more frightening. The only rational course under such a system is to choose not to speak in any manner contrary to the prevailing government policy. I hope Europe realizes the folly of such a position before it is too late.