Tom Herrenberg* | PhD candidate and lecturer at Leiden Law School | Co-editor of The Fall and Rise of Blasphemy Law (Leiden University Press, 2016) (together with Paul Cliteur)

1. Introduction

“Do you want more or less European Union?! … Do you want more or less Partij van de Arbeid (the Dutch center-left Labor Party, added)?! … And thirdly, although actually I’m not allowed to say this … Do you want, in this city and in the Netherlands, more or fewer Moroccans?!”

These were the three questions Geert Wilders, the leader of the popular Dutch right-wing Partij voor de Vrijheid (Party for Freedom), asked his supporters at a rally on the night of 19 March 2014. The public, which was instructed beforehand by a party representative, answered each question with a resounding Minder! Minder! Minder! (Minder means Less/Fewer). After the crowd’s chanting response to the third and final question, Wilders said: “Ok, we’re going to take care of that.”

The third question of the rally, together with an earlier interview in which Wilders envisioned The Hague as “a city with fewer burdens and, if possible, fewer Moroccans,” caused the Public Prosecution Service to prosecute Wilders. He was accused of “group defamation” and “incitement to hatred or discrimination,” crimes covered, respectively, by articles 137c and 137d of the Dutch criminal code. In a judgment (English summary) delivered on 9 December 2016, the Hague district court found Wilders guilty of group defamation and incitement to discrimination for the events at the rally. Wilders was acquitted, however, for his remark about “a city with fewer burdens and, if possible, fewer Moroccans.”

This article discusses Wilders’ conviction. In order to provide some background, this article will continue with a brief historical overview of articles 137c and 137d of the Dutch criminal code (section 2). Subsequently, the judgment in the Wilders case will be discussed (section 3). Some final remarks will be presented in the conclusion (section 4).

2.1 The 1934 group defamation ban

Article 137c was added to the Dutch criminal code in 1934.[i] In short, this provision made it a crime to publicly express oneself in an offensive manner about a group of people belonging to the Dutch population.

The minister of justice, who drafted the ban, mentioned a number of reasons why he sought to criminalize expression that denigrated groups of people. The primary reason for the ban was a fear of civil unrest and violence, which was fueled in particular by the instable political situation of the 1930s and the looming rise of fascist ideologies abroad. He considered instances of group defamation “a direct threat to public order”[ii] which made the ban “first and foremost directed at the protection of the public order.”[iii] “The continues degrading of parts of the population must over time lead to riots and breaches of the peace, and in fact has already led to local disturbances of the public order,” the minister pointed out.[iv]

Other reasons the minister mentioned for the ban include that group defamation was “contrary to Christian charity” and “ethically reprehensible,” that it went against a “long-standing national tradition,” and that it “posed a threat to the sense of solidarity between different parts of the nation.”[v] He also argued that all people living in the Dutch Kingdom were entitled to protection of “person and property” and that “honor and good name form an integral part of one’s personality.”[vi]

2.2 1971: The introduction of the ban on incitement to hatred and discrimination (137d) and a renewed group defamation ban

This group defamation ban stayed in place for almost four decades. In 1971, as a result of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1969), the provision was repealed and replaced by a new ban (the article number remained the same, 137c).[vii] At the same time, a prohibition on inter alia incitement to hatred or discrimination was added to the criminal code in article 137d. The government argued that articles 137c and 137d were important in order to “emphasize a standard of tolerance in an ideologically and religiously diverse Dutch society.”[viii]

These changes to the criminal code were particularly inspired by article 4 (a) CERD, which obliges all state parties to “declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another color or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof.”

Although the CERD did not explicitly oblige states to criminalize group defamation, the Dutch government was of the opinion that it would fail its duties regarding the implementation of the convention if a provision against group defamation would be left out of the criminal code. Besides this international law rationale, there was a felt need for a ban on group defamation because of Dutch society “becoming increasingly composed of different ethnic and ideological groups,” according to the government.[ix] The new ban, which was drafted “in the context of possible intercommunal conflicts in society,”[x] sought to “banish from the public sphere, expressions that seriously harm the honor of people belonging to specific groups.”[xi]

Article 137c was formulated as follows: “He who publicly, orally or in writing or by image, intentionally insults a group of people because of their race, religion, or philosophy of life, will be punished with imprisonment of up to a year or a fine of up to ten thousand guilders.”

The government also proposed an entirely new incitement provision: article 137d. This provision was intended to “banish from the public sphere, expressions that threaten the elementary rights of people belonging to a specific group.”[xii] This ban was formulated as follows: “He who publicly, orally or in writing or by image, incites hatred towards people, incites discrimination of people, or incites violence against persons or their property, on the basis of their race, religion, or philosophy of life, will be punished with imprisonment of up to a year or a fine of up to ten thousand guilders.”

Whilst “hatred” was not given a legal definition by the government, the term “discrimination” was defined in article 90quater of the Dutch criminal code: “Any distinction, exclusion, restriction or preference which has the purpose or possible effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

Articles 137c and 137d entered into force in 1971 and have been part of Dutch criminal law ever since.

3. The conviction of Geert Wilders

3.1 The issue of “race”

The judges in Wilders’ trial first took to task whether or not articles 137c and 137d could be applied to the facts of the case (i.e., Wilders’ statements). After all, these two provisions are concerned with offensive or hateful expression about a race, and as such, it had to be established whether or not “Moroccans” are a race for the purpose of the law. During the parliamentary debate on articles 137c and 137d in 1969, the government had argued that the definition in article 1(1) CERD should function as a guide line in interpreting the term “race.”[xiii] Article 1(1) CERD stipulates that “racial discrimination” means “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin (emphasis added) which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

The Wilders court came to the conclusion that the way Wilders had used the term “Moroccans,” namely by singling that specific group of people out on the basis of their shared origin, falls within the scope of the CERD’s clause about “descent, or national or ethnic origin.” According to the court, the term “national or ethnic origin” refers to “persons who have ties to a nation state or territory because they are from that state or region, and who share a history, traditions, a culture and/or a language.” The court was of the opinion that “virtually all of these aspects can be found in the Moroccan community in the Netherlands.” That being the case, it established that “Moroccans” are a “race” for the purposes of article 137c and 137d—while the court acknowledged that the legal definition of “race” is “much broader than is typical in common parlance and academia.” (§ 5.4.2. of the judgment)

3.2 Group defamation: Application of the “three-stage test”

After it had established that Wilders’ statements were about a “race” as defined in articles 137c and 137d, the court continued its substantive analysis of the statements in light of the so-called “three-stage test.” Under this test, developed in (Supreme Court) group defamation case law, a court first looks at the content of an utterance: Does the utterance contain a defamatory content? If that is the case, the court considers the context of the utterance: Does the specific context nullify the defamatory character of the utterance? Dutch law acknowledges a number of specific contexts in which people have more leeway to express opinions, even a prima facie defamatory opinions. Contexts that have been acknowledged as being capable of “nullifying” the first stage (the defamatory content) of the “three-stage test” include “artistic expression,” opinions that are directly related to a religious conviction, and “expression that contributes to or serves a public debate.” Third, in case the broader context nullifies the defamatory character of an utterance, the court has to decide whether the utterance is nonetheless “unnecessarily offensive.” If so, the defendant fails the test anyway.

With regard to the first stage, the judges were of the opinion that Wilders had indeed “denigrated and thereby defamed” Moroccans as a group with his question about “more or fewer Moroccans.” They reasoned that “an utterance can be regarded as defamatory if it’s tenor is to show someone in a bad light and to impugn his honor and good name.” (§ 5.4.3.1 (i)) The court reasoned that Wilders had “set apart a whole group of people. In the eyes of [Wilders] this group is less entitled to reside in the Netherlands and has to decrease in size.” The court also argued that Wilders had “assaulted the collective self-worth” of the Dutch Moroccan community and that he had “set them apart as inferior as compared to other Dutch citizens.” (§ 5.4.3.1 (i))

In the second stage of the test, the court considered the broader context in which the utterance occurred. The court focused on the “public debate” context, and it came to the conclusion that Wilders had not contributed to the public debate on integration and immigration. (§ 5.4.3.1 (ii)) In its reasoning, the court pointed at a number of free speech cases decided by the European Court of Human Rights (ECtHR)—due to article 94 of the Dutch Constitution, international regulations that “that are binding on all persons,” such as the European Convention on Human Rights, are of a higher order than national law. The Wilders court took the following circumstances into account:

• Wilders made his statements at a moment when he was sure that the media would record and broadcast them on national television. The Wilders court stated that the ECtHR has mentioned a) the great impact audiovisual media can have b) on the electorate which can be reached via national television, c) the circumstance that an expression can reach the intimacy of the home, and d) the fact that an audience, including minors, is barely able to escape from an utterance (a “captive audience,” added).
• The Wilders court mentioned an ECtHR case concerned with the exchange of ideas during a debate. In this case, in which the applicant had made controversial statements about politics and religion during a television debate in Turkey, the European court saw a violation of article 10 of the European Convention on Human Rights. Yet, the Wilders court argued that Wilders had not participated in a “debate”—in the “classic sense” of the word, namely a discussion between two or more people.
• The court argued that Wilders’ statements were well thought through, discussed beforehand, and uttered in a rousing manner. Also, Wilders had made sure that the audience present at the rally chanted the right answers to Wilders’ questions. According to the Wilders court, this is all contrary to cases in which the ECtHR has accepted a wider freedom of expression.[xiv]
• With regard to the pre-planned nature of the chants at the political rally, the Wilders court made reference to M’bala M’bala v. France. In this case, in which the ECtHR upheld a conviction of a French comedian, the European court included in its analysis the fact that the comedian had encouraged the public to applaud anti-Semitic expression during a show.

Furthermore, the Hague district court noted that Wilders had not made the distinction between Moroccans and “criminal Moroccans,” something which he had done in earlier statements on the Moroccan community.

The court concluded its analysis by stating that Wilders’ expressive conduct on 19 March 2014, with its “galvanizing and inciting presentation of the questions,” constituted “an insulting remark about a minority group” with which he “had not contributed to the public debate on integration and immigration.” Since the second stage of the three-stage test was to the detriment of the defendant, the court did not examine whether or not Wilders’ statements were “unnecessarily offensive” (stage three). (§ 5.4.3.1 (ii)) Wilders had failed the “three stage-test” and was found guilty of group defamation.

3.3 Incitement to hatred or discrimination

After concluding Wilders had violated the ban on group defamation, the court considered whether has was also guilty of “incitement to hatred or discrimination” (article 137d). The court evaluated Wilders’ words in “light of the specific circumstances of the case and the associations that go along with them.” (§ 5.4.3.2)

In its analysis, the court defined “incitement” as “persuading someone to do something illegal (in this case: to discriminate and/or hate).” “The tenor of the expression is decisive. Moreover, it is not required that the incitement results in specific behavior, nor that it can be reasonably expected to do so,” according to the court. Subsequently, the judges defined “hatred” as “an extreme feeling of abhorrence and hostility.” Incitement to hatred requires “an additional reinforcing component, beyond merely strong rhetoric, which instigates people to take action.” The court found that Wilders’ statement lacked such a component and acquitted him from incitement to hatred. (§ 5.4.3.2)

Next, the court examined whether Wilders was guilty of incitement to discrimination. It observed that “incitement to discrimination” requires neither any discrimination to have taken place as result of the incitement, nor “an additional reinforcing component.” Rather, the court had to determine “whether the utterance encourages the exclusion of a specific group of people.” The court was of the opinion that Wilders’ statements at the political rally had “a discriminatory nature” in the sense of article 90quater of the Dutch criminal code. In the opinion of the judges, “The tenor of those statements was clearly to make a distinction between the Moroccan community and other groups living in the Netherlands. With this, those statements can be regarded—bearing in mind the circumstances under which the statements were made, especially their inflammatory nature—as statements that incite others to discriminate against persons who originate from Morocco.” (§ 5.4.3.2) This being the case, Wilders was found guilty of incitement to discrimination.

4. Conclusion

On 9 December 2016, the Hague district court convicted Dutch right-wing politician Geert Wilders. Wilders was found guilty of “group defamation” and “incitement to discrimination” for his role in an anti-Moroccan chant at a political rally on 19 March 2014. His behavior on that day “contributed to further polarization, whilst the principle of equality and respect for (the rights of) others are of great import in our diverse society,” according to the judges. (§ 8.3) The court imposed no penalty on Wilders, rejecting the prosecutors’ request to fine him 5,000 euros. It argued that a conviction was sufficient punishment for a politician in his position. (§ 8.3)

For the student of American free speech doctrine, many aspects of this trial—and of Dutch laws against defamation and incitement in general—will probably appear unusual. The deference to international law in determining the free speech limits of Dutch citizens’ and their political representatives is one such aspect, I think. Another feature is the extent to which the law protects political expression. Dutch law does not protect political expression to the extent the First Amendment does, and I assume that for proponents of the American approach, the outcome of the Wilders case seems repressive and intolerant.

One possible explanation for this difference between the two countries, I believe, lies in the emphasis the law places on the display of civility in public discussions. A noticeable aspect of the First Amendment is its suspension of civility norms in public discourse. As constitutional scholar Robert Post puts it:

“Respect for the equality of diverse communities underlies the American constitutional conclusion that social norms of civility, which always reflect the view of some particular community, may not be used to regulate speech within public discourse. American constitutional law is concerned to protect public discourse as a sphere that remains equally open to all communities, to all potential visions of the good and the decent.”[xv]

Dutch law, on the contrary, routinely enforces a civility norm upon those who engage in public discourse. It has done so for many decades on a wide variety of contested topics including immigration, ethnic minorities, and race relations.[xvi] This is still the case today. In a recent interview about the Dutch Public Prosecution Service’s strategy for combatting online defamation and discrimination in the run-up to this Spring’s general elections, the prominent public prosecutor Theo Hofstee stated: “Of course, all opinions can be expressed, but in a decent manner.”

Had Wilders uttered his criticism of the Dutch Moroccan community more calmly and decently, he most likely would not have been prosecuted, let alone convicted. How Dutch group defamation and incitement regulations will evolve in our multicultural society remains to be seen—an important indicator will be whether Wilders’ conviction will be upheld by a higher court.

* I would like to thank Caroline Ceriello for her careful editing of this article.

[i] Stb. 1934, No. 405 at 3.

[ii] Parl. Doc. 1933/34, No. 237 (3) at 4.

[iii] Parl. Doc. 1933/34, No. 237 (5) at 16.

[iv] Parl. Doc. 1933/34, No. 237 (3) at 4.

[v] Ibid.

[vi] Ibid.

[vii] Stb. 1971, No. 96.

[viii] Parl. Doc. 1970/71, No. 9724 (22a) at 4.

[ix] Parl. Doc. 1969/70, No. 9724 (6) at 4.

[x] Ibid., at 3.

[xi] Parl. Doc. 1967/68, No. 9724 (3) at 5.

[xii] Ibid.

[xiii] Parl. Doc. 1969/70, No. 9724 (6) at 3-4.

[xiv] The court pointed at Nilsen & Johnsen v. Norway, Eur. Ct. H.R. (1999), Fuentes Bobo v. Spain, Eur. Ct. H.R. (2000), Andreas Wabl v. Austria, Eur. Ct. H.R. (2000), and Barata Monteiro Da Costa Nogueira & Patrício Pereira, Eur. Ct. H.R. (2011).

[xv] Robert Post, Hate Speech, in Extreme Speech and Democracy (Ivan Hare & James Weinstein eds. 2009) at 133.

[xvi] The Dutch law against “scornful blasphemy,” which was officially on the books until 2014, was merely aimed at the regulation of uncivil anti-religious speech: “Contesting Theism as such, no matter how fiercely, is not at issue; as long as, in terms of manner, a certain line is not crossed, the law remains idle,” according to the minister of justice who drafted the blasphemy ban in the 1930s. See: Parl. Doc., House of Rep., 1930/31, No. 348 (3) at 1. Moreover, for many decades, insulting foreign heads of state could also land you in hot water. People have been convicted in the Netherlands for attacking “the honor and good name” of, amongst others, President Lyndon B. Johnson (a “war criminal”), Mussolini (a “coward”), and Hitler (a “liar” and a “murderer”). The ban on the defamation of public bodies, which no longer exists, also differentiated between sober criticism and opinions uttered in “an insulting manner.” The minister of justice gave as an example the opinion that a certain government body is “made up of a bunch of scoundrels.” This would violate the acceptable manner of speech, in contrast to an opinion expressed in a “clinical manner” on the presence of corruption within a government body. See: Weekblad van het Recht 21 August 1934 at 4.

Featured image source: http://www.gregshapiro.nl/hillary-bernie-or-geert-wilders/