Illegal To Compare Islam with Nazism?

That's what a Dutch appellate court seems to be saying, in ordering the prosecution of Dutch member of Parliament Geert Wilders. The press release doesn't go into detail about the statements involved, but it does say, "the Court of Appeal considers criminal prosecution obvious for the insult of Islamic worshippers because of the comparisons made by Wilders of the islam with the nazism," and expressly condemns as beyond the pale analogies between the Koran and Mein Kampf. Here's the entire statement:

On 21 January 2009 the Court of Appeal in Amsterdam ordered the criminal prosecution of the member of parliament Geert Wilders for the incitement to hatred and discrimination based on his statements in various media about moslims and their belief. In addition, the Court of Appeal considers criminal prosecution obvious for the insult of Islamic worshippers because of the comparisons made by Wilders of the islam with the nazism.

The Court of Appeal rendered judgment as a consequence of a number of complaints about the non-prosecution of Wilders for his statements in various media about moslims and their belief. The complainants did not agree with the decision of the public prosecution which decided not to give effect to their report against Wilders.

The public prosecution [I assume this refers to the prosecutors' office, whose decision not to prosecute the court is reversing -EV] is of the view, amongst others, that part of the statements of Wilders do not relate to a group of worshippers, but consists of criticism as regards the Islamic belief, as a result of which neither the self-esteem of this group of worshippers is affected nor is this group brought into discredit. Some statements of Wilders can be regarded as offending, but since these were made (outside the Dutch Second Chamber) as a contribution to a social debate there is no longer a ground for punishableness of those statements according to the public prosecution.

The Court of Appeal does not agree with this view of the public prosecution and the considerations which form the basis of this view.

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.

Secondly, the Court of Appeal has answered the question whether a possible criminal prosecution or conviction would be admissible according to the norms of the European Convention on Human Rights and the jurisprudence of the European Court based thereon, which considers the freedom of expression of paramount importance. The Court of Appeal has concluded that the initiation of a criminal prosecution and a possible conviction later on as well, provided that it is proportionate, does not necessarily conflict with the freedom of expression of Wilders, since statements which create hate and grief made by politicians, taken their special responsibility into consideration, are not permitted according to European standards either.

Thirdly, the Court of Appeal has answered the question whether criminal prosecution of Wilders because of his statements would be opportune in the Dutch situation (the question of opportunity). According to the Court of Appeal the instigation of hatred in a democratic society constitutes such a serious matter that a general interest is at stake in order to draw a clear boundary in the public debate.

As regards the insult of a group the Court of Appeal makes a distinction. In general the Court determines that the traditional Dutch culture of debating is based on tolerance of each others views to a large extent while Islamic immigrants may be expected to have consideration for the existing sentiments in the Netherlands as regards their belief, which is partly at odds with Dutch and European values and norms. As regards insulting statements the Court of Appeal prefers the political, public and other legal counter forces rather than the criminal law, as a result of which an active participation to the public debate, by moslims as well, is promoted.

However, the Court of Appeal makes an exception as regards insulting statements in which a connection with Nazism is made (for instance by comparing the Koran with "Mein Kampf"). The Court of Appeal considers this insulting to such a degree for a community of Islamic worshippers that a general interest is deemed to be present in order to prosecute Wilders because of this.

The Court of Appeal concludes that the way in which the public debate about controversial issues is held, such as the immigration and integration debate, does not fall within the ambit of the law in principle indeed, but the situation changes when fundamental boundaries are exceeded. Then criminal law does appear as well.

Otherwise, the Court of Appeal emphasizes that this is a provisional judgment in the sense that Wilders has not been convicted in this suit of complaint. The Court of Appeal has only judged whether there are sufficient indications --- at the level of a reasonable suspicion --- to start a criminal prosecution against Wilders. The penal judge who will ultimately render judgment in a public criminal trial will answer the question if there is ground for conviction, and if so, to which extent.

The movie Fitna, which appears to form part of the basis for the prosecution, seems to be available here. If readers can point me to the Wilders statements (preferably in English translation) that form the basis for the prosecution, I'd love to link to them as well — of course, not because I will necessary agree with them (I suppose I might agree with some but not with others, especially if they speak broadly about Islam generally), but because seeing them is necessary to evaluate the merits of the prosecution, and the degree to which the prosecution would threaten free discussion.

Thanks to Anne Jitta for the pointer.

UPDATE: The decision, in Dutch, is here (thanks again to Anne Jitta for that pointer as well). If anyone can point me to an English translation of the decision, I'd be much obliged.

For a perspective on Geert Wilders' thinking, see James Taranto's Wall Street Journal interview with Wilders.

Also, a comment by Dunstan suggests that in the Netherlands, examples of Godwin's Law actually lead to action by The Law. I suspect that Godwin does not approve.

Crust (mail):
Matt Yglesias has a good line on this:
[N]othing makes me feel patriotic quite like a good European hate speech prosecution
1.21.2009 5:35pm
martinned (mail) (www):
Yeah... That was an unfortunate surprise this morning...

While I don't agree with this decision as a matter of policy, as a matter of law it seems to be a defensible reading.

Still, it is surprising that the court overruled the public prosecutor, since normally they give the prosecutor the benefit of the doubt. (Because of the question of opportunity, as noted in the press release.) I can't remember any time when such a ruling was given in a case as controversial as this one.

I would like to note for the record that this is not in any way a conviction. The case will now be brought before the court of first instance, where a three judge panel will preside over the full criminal prosecution, with all the appropriate rights for the defence, before deciding. The case is brought under articles 137c and 137d of the Penal code, which allow for a maximum penalty of one year in prison (unlikely), or a 3rd category fine, i.e. a fine of no more than € 7.400.
1.21.2009 5:36pm
martinned (mail) (www):

The elements of art. 137c:
- Public (either oral or in writing or image)
- Speech
- that is deliberately
- offensive
- about a group of people
- on account of their race, religion, sexual orientation or disability,

And art. 137d:
- Public (either oral or in writing or image)
- Speech
- that incites hatred
- incites dicrimination
- or urges violence against a person or their possessions
- on account of their race, religion, sex, sexual orientation, or disability,

So, like I said, the Court's conclusion is defensible. Still, I am surprised that they did not defer to the prosecutor's office, particularly since a lot of recent case law on these types of offenses have come out for the defence. After all, since treaties have direct effect, the courts cannot carry out these laws in a way that conflicts with free speech under art. 10 ECHR, so whenever a prosecution violates the defendant's rights, they have to rule for the defendant. (No possibility of declaring a law generally unconstitutional.) A lot of recent rulings have gone that way, and I highly doubt that it will be any different here.
1.21.2009 5:45pm
Wow, martinned, that covers a lot of speech.
1.21.2009 5:52pm
Kevin P. (mail):
The dark specter of fascism is forever descending upon America, but always ends up landing in Europe...
1.21.2009 5:55pm
martinned (mail) (www):
@MisterBigTop: I know. That's why I don't like it.
1.21.2009 5:56pm
The decision (in Dutch) with the disputed quotes and actions can be found here. All in all there are about 35 instances stipulates in the complaints that led to this decision.

I have not been following Dutch case law regarding the prosecution of defamatory speech, but the appellate court makes a compelling legal case in ordering the prosecution of Wilders. As Martin stresses, this does not mean in any way that I agree with this decision as a matter of policy. Or that I agree with Wilders in any way.
1.21.2009 5:57pm
NowMDJD (mail):

I would like to note for the record that this is not in any way a conviction. The case will now be brought before the court of first instance, where a three judge panel will preside over the full criminal prosecution, with all the appropriate rights for the defence, before deciding.

That's very nice, but doesn't Mr. Wilders--

1) have to shell out a lot of money to defend himself?

2) have to worry about going to jail, even if ultimately acquitted?

3) have to divert time and attention from productive matters?

My point is that a trial and acquittal have a chilling effect on the behavior. The authorities don't need a conviction. The US is no different from the Netherlands in this regard.
1.21.2009 6:13pm
martinned (mail) (www):
@NowMDJD: Again, you don't hear me cheering over this decision. Although I would like to remark that, since we have no juries, trials tend to take a lot less time than in the US. So the lawyer's bill will be manageable, especially since I'm sure one of the top lawyers will volunteer to do it for free. (If not, some other rich fan of Wilders' will probably take care of the lawyer's bill for him.)
1.21.2009 6:16pm
John (mail):
Does this mean that a Dutch neo-Nazi group could not be compared to Nazis?

Is truth a defense to the criminal prosecution?
1.21.2009 6:22pm
martinned (mail) (www):
@John: The point is that comparing muslims to Nazis is offensive to muslims. I don't think that logic would apply to neo-Nazis.

As for your other question, I'd have to look that up. I would imagine that, to the extent that we're talking about statements of fact (which we're not, in this case), truth would probably go a long way towards establishing that the speech in question is not "offensive". But remember, the defendant doesn't carry the burden of proof.
1.21.2009 6:27pm
This could be the first prosecution for violation of Godwin's Law.
1.21.2009 6:33pm
John (mail):
martinned: good point!
1.21.2009 6:35pm
PatHMV (mail) (www):
Can we expect to see prosecutions of the idiot protesters who say the Jews in Gaza are like the Nazis?
1.21.2009 7:23pm
martinned (mail) (www):
@PatHMV: The two MPs that were in the anti-israel protest earlier this month certainly got into a lot of trouble for that. I don't think anyone pressed charges, though.
1.21.2009 7:26pm
Is this an action for defamation or for causing offence?

In other words, is the question whether Muslims are offended when compared to Nazis, or whether third parties would think less of Muslims after Mr. Winders compared Muslims to Nazis?
1.21.2009 7:54pm
martinned (mail) (www):
@Lior: The latter. I roughly translated the two penal code articles in question above.
1.21.2009 7:56pm
This is a decent example of the fact that American notions of freedome of expression are not universal, even in the Western (European) world. I once saw (here on the VC?) a list of Western European laws that punished various forms of speech (blasphemy, etc) in ways that would never fly in the US. On freedom of speech, the US is much more of an outlier than we sometimes think.

I think of this whenever I see reports of anti-speech conduct by Arab or Muslim governments or groups, such as punishments for depictions of Muhammad. I very much disagree with those prosecutions. But they are analogous, perhaps roughly so, with conduct by Western governments.
1.21.2009 8:27pm
martinned (mail) (www):
@Specast: That's true, but I would like to add that there is a big difference between the number of countries that have these kinds of laws on the books (almost all EU countries) and the number of countries that use them frequently enough that the law would have a noticeable effect on speech (only Germany and Austria, as far as I am aware).
1.21.2009 8:37pm
@matinnned: Fair point, though the law and prosecution referenced in this post and comments suggest that we could add the Netherlands to that list. I'd tiptoe a bit if I were a Dutch MP (at least if I was overcome with a desire to equate Islam with Nazism).
1.21.2009 9:33pm
Joshua House (mail) (www):
I <3 the 1st Amendment.
1.22.2009 12:07am
Harry Eagar (mail):
So, can we expect prosecutions in Holland for calling Jews Nazis?
1.22.2009 12:48am
martinned (mail) (www):
@Specast: While everyone's talking about this prosecution, I can't imagine that anyone would let this stuff "chill their speech" about anything. Much worse things are said (and written in the comments sections of blogs and newspapers) on a daily basis, and the only person against whom charges are brought is the big shot MP. (Who went from 1 seat to 7 in the last election, to about 15 seats in the latest polls.) That's not because this is a political prosecution, but because speech by a politician makes a bigger bang, it "displeases" more people.
1.22.2009 6:43am
Andy Freeman (mail):
> So the lawyer's bill will be manageable, especially since I'm sure one of the top lawyers will volunteer to do it for free. (If not, some other rich fan of Wilders' will probably take care of the lawyer's bill for him.)

That doesn't mean that his defense will be free, it merely means that someone else is footing the bill.

Those who believe that footing the bill is no big deal are invited to do so themselves....
1.22.2009 11:12am
David Drake:
As some of the others have suggested, I look forward to Dutch Imams, to the extent that they rabble rouse against the Jews as they do in England, either shutting up or being prosecuted. I am not holding my breath, however.
1.22.2009 1:52pm

@John: The point is that comparing muslims to Nazis is offensive to muslims.

Screw them.

It seems that everyone is so PC that they ignore or overlook the fact that nearly everything that Muslims have to say about anyone not a Muslim is offensive to just about everyone they ever say anything about.

I for one am sick of the mollycoddling of Muslims for all the hatred and violence that comes from them pretty much constantly. "Tolerance" and "multiculturalism" have been taken way too far in order to avoid "offending" the adherents of this religion of Perpetual Outrage. Some cultures are actually better than others, and most of them are one hell of a lot better than theirs, at least a lot less violent.

While they saw off the heads of little girls for the crime against Allah of going to school, we beat ourselves to death over whether subjecting their most fiendish killers to sleep deprivation is enough to attempt to throw the former President into prison.

There is going to come a cataclysmic confrontation in the next generation or two between non-Muslims and those who wish to force us back to the 7th century with them. A hefty percent of the world's population may die in the conflict.

Of course, we've become such feminized wussies in the West that we may just give into them so that we can all just get along. It's already happened to much of Europe.
1.22.2009 7:07pm
Richard Aubrey (mail):
Somebody quoted Mark Steyn to the effect that Holland has chosen societal euthanasia and is jailing people who make the observation that it may not be as painless as anticipated.
1.23.2009 2:37pm
David Warner:
Could one of our progressive friends point me to some links sympathetic to the anti-Geert side, or are we all in agreement on this one? This is serious request - I'm getting a sneaking suspicion that we're not hearing the whole story.

If we are, I'd say some good old fashioned protest marches might be in order. Anyone know how to smart mob?
1.23.2009 10:02pm

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