Posted by Eugene Volokh:
Illegal To Compare Islam with Nazism?
http://volokh.com/archives/archive_2009_01_18-2009_01_24.shtml#1232576675
That's what a [1]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 [2]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 [3]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.
References
1.
http://www.rechtspraak.nl/Actualiteiten/Amsterdam+Court+of+Appeal+orders+the+criminal+prosecution+of+the+Member+of+Parliament+of+the+Dutch+S.htm
2.
http://www.rechtspraak.nl/Actualiteiten/Amsterdam+Court+of+Appeal+orders+the+criminal+prosecution+of+the+Member+of+Parliament+of+the+Dutch+S.htm
3. http://video.google.com/videoplay?docid=3369102968312745410
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