The Western race for freedom of expression is, surprisingly, won by the Dutch. Uniquely and after a process that did last for more than four years, of which one and a half years as a trial in an Amsterdam courtroom, Geert Wilders was acquitted and declared ‘not guilty’ on all charges. In our recent European history Wilders is the only Islam and immigration critic accused of hatespeech, discrimination, and racism who walked out of his law suit as a free man. In Denmark, Austria, Norway, Sweden, France, Belgium and the UK all prominent and less prominent whistle blowers of a gaining Islamization of the West have been convicted either before national courts or before the European Court.
The Amsterdam judges did a rush job on Thursday the 22nd of June 2011. In a packed courtroom and live on national TV they presented their verdict as a 20 minutes summary. The written version isn’t much longer, though. Most of the reasoning of the Public Prosecutor (who pleaded in great detail and length in 2008, 2010 and 2011 for a complete acquittal) is ignored. All of Wilders’ lawyer Moszkowicz reasoning is ignored. The complainants cries are brushed off. European Court jurisprudence is only used highly eclectically. And Dutch High Court jurisprudence is either applied superficially or dismissed while being quoted and interpreted plainly wrong.
The judges simply stated that Wilders has shocked, disturbed and offended nearly everybody, muslims and non-muslims, with his rude and offensive criticism of Islam, but that he did so as a politician participating in a public, European and vehement debate on mass-immigration and Islamization, and, hence, was not guilty of transgressing the thin line between freedom of speech and inciting hate. On two occasions Wilders was thought to act illegal, but on closer examination his discriminatory critique on muslims was actually Islam bashing. Which is allowed according to a Dutch High Court ruling of 2009: “criticizing a religion can never be illegal”. Most stunningly the lower Amsterdam judges saw fit to use the Dutch “Combat 18” High Court ruling of November 2011 in exact the opposite way it was meant to be. The High Court had ruled that an accusation of hate speech ought to be judged by the text itself, the context of time and space, and, most crucially, by the association(s) the expression caused in society and in the heads of the claimants. Clearly the High Judges had created this jurisprudence to get Wilders convicted. The lower judges, however, ignored ‘associations’ and ruled that the context of Wilders’ texts and film actually did set him free: the years around 2006 where tough times, which allowed his aggressive tone of voice. To add insult to injury: in the Wilders verdict the “Combat 18” High Court ruling is cited wrongly.
Off course, these close observations have only been made by a few dedicated legal experts, and they have not been picked up by the media. Two questions loom large, however: why was Wilders acquitted and what does the one dimensional verdict truly tell?
Four years ago, with Wilders as a promising but not yet spectacular politician, his conviction would not have been too difficult. The animosity between Public Prosecution and its Department of Justice prevented this, however. Public Prosecution felt pushed and bullied in their professional weighing of Wilders’ case and decided to take a highly theoretical stand on article 137 (freedom of expression/hate speech), and not to prosecute Wilders. Even two years ago, before Wilders’ stunning victories in Dutch elections, a conviction would have been a certainty if only Public Prosecution would have cooperated.
But the past year witnessed Wilders’ success so overwhelmingly that only ‘a revolution’ puts it correctly. His criticism on Islam’s subversive nature, non-Western immigrants lack of integration in Western civilization, and the utter failure of the ideology of multi-culturalism and cultural relativism is not only copied but recently even surpassed by leading Dutch politicians who once called Wilders ‘the Evil’. Tellingly, one week before Wilders’ acquittal the Minster of the Interior, Piet Hein Donner, once the close ally of the former prime-minister Balkenende, Wilders fierce opponent, cited newly published statistics and concluded multi-culturalism to be a very costly mistake. Also, he called for complete assimilation of non-Western immigrants, something which even Wilders never asked for.
Geert Wilders has become the most powerful Dutch politician, not by being corrupt or Machiavellian, but by being the most talented one who knows exactly what makes the problem tick. The lie of effortless and profitable mass-immigration and multi-culturalism; the lie of a safe Euro without EU-unification; the lie of a benevolent Dutch elite who understands their ‘subjecti’ best –Wilders forces all his opponents to take him very seriously, indeed. Prime-minister Rutte applauded Wilders’ acquittal. The next day nearly all political parties asked for the abolishment of the articles on censoring freedom of speech. Only the calling for violence ought to remain illegal, they stated. Because of Wilders outstanding behaviour as the condoning partner of the Dutch minority Cabinet, his power as the leader of 2 million very worried Dutch, and his ability to make the political agenda nationally and internationally, it became impossible to check him with a court ruling. He would have become a martyr in a rift which might have resulted in a civil strife. The only solution was an acquittal. And to make the whole dirty Dutch dogfight political again.
The judges booted him out, fast. Where they pressured? They would never admit openly. That would undermine the trust of the Dutch in their judiciary even more. The Wilders’ case has already showed the abyss of the Dutch legal system in an uncomforting way with High Judges trying to corrupt the process. The High Court and the legal system could get away with it by claiming their ‘independency’. Admitting pressure would cut their last thread.
But the very superficial and flawed verdict shows that the lower Amsterdam judges are really saying: “don’t take us seriously, please, we’re merely the messenger boys –we have to let him go”. The implication of this message is serious and has eluded everybody: Wilders is acquitted by the lowest court. The verdict of such a lower court brings forth some sort of jurisprudence, but not a new ‘dogma’, which is the jurisprudence of the High Court. Hence, Wilders is acquitted in a minor sentence for these charges, said to have been committed between 2005 and 2008, with his movie Fitna as the most profiling aspect. That leaves opportunity for his fanatic opponents to charge him again for ‘hatespeech’ committed after 2008. Which is precisely the strategy employed in the UK to silence critics of Islam: sue people to bankruptcy. It was with reason that the late chief editor Toeger Seidenfaden of the Danish newspaper Politiken went to London in February 2010 to ask for forgiveness for printing Westergaard’s cartoons. People and institutions have been prosecuted to death for less.
The Amsterdam Court and the High Court has learned its lesson –for now. The fanatic muslims are in disarray –for now. Dutch politics is geared towards its new master –for now. The Dutch elite is trying to adapt and survive –for now. But nothing is more fleeting than political prominence and power. The knife is always near, which in Wilders’ case especially is true. So, only time will tell whether Wilders’ unique victory over a European trend towards (self)censorship marks a new beginning of a Western call for freedom of speech, or is a clever manoeuvre to pacify and charm a political opponent and his 2 million Dutch voters.
Still, the day after his triumph and in his first interview in De Volkskrant (the Dutch ‘Politiken’), Wilders was able to present himself as a responsible whistle blower, only applying his aggressive tone of voice when called for, and insisting that the politician’s option to shock, disturb and offend ought never to be illegal -freedom of speech matters most to those expressions that are not mainstream. After writing about Wilders’ court case for over two years, these remarks have become a cliché to me. But I’m very happy that at least in the Netherlands they are a reality again –for now.