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The Netherlands’ Burgeoning Free Speech Problem

Are refugee activists getting punished for incendiary rhetoric more than right-wingers are?

Geert Wilders (Carl Court/Getty Images)

In 2014, Geert Wilders, leader of the Dutch far-right populist Party for Freedom (PVV), asked a roomful of supporters a very on-brand question: “Although actually I’m not allowed to say this … Do you want, in this city and in the Netherlands, more or fewer Moroccans?!”

“Fewer!” the crowd enthusiastically chanted. “Well, we’ll take care of that,” Wilders replied.

Three years earlier, in 2011, Joke Kaviaar sat down at her computer and published an article on her personal blog. The Dutch political activist and poet, who has been involved in social justice movements and refugee rights in her home country since the 1980s, had long been writing left-wing texts highly critical of Dutch immigration policies and the country’s treatment of migrants.

“Where is the Dutch rebellion? Who is going to storm and empty the offices of the IND [Immigration and Naturalization Service], pour petrol over the archives and computers and destroy them with fire?” she wrote this time. “It’s time for a new generation to stand up and to take the torch over from RaRa,” she added, referring to the Revolutionary Anti-Racist Action, a violent Dutch activist group from the 1980s and 1990s.

In the United States, where freedom of expression is guaranteed by the First Amendment, courts have ruled a person must demonstrate physical intent to harm in order to be prosecuted; such a statement of a small-time leftist activist—or even a politician—wouldn’t be taken as a literal threat. Not so in the Netherlands.

While freedom of expression is protected under Article 7 of the Dutch constitution, “this right is not absolute” Tom Herrenberg, Assistant Professor of Constitutional Law at the Open University in the Netherlands explained to me. Article 131 of the Dutch Criminal code prohibits incitement of violence; Article 137c restricts group defamation and Article 137d incitement to hatred or discrimination. Statements that are seen to be inciting violence, even against an inanimate object, are illegal.

Wilders was charged with incitement and encouraging discrimination for his speech in 2014, but was given no financial penalty or jail time. Shortly after Kaviaar published her post, by contrast, Dutch police arrived to search her house and arrest her; she was held in isolation for three days. Kaviaar was convicted in December 2013 under Article 131 and given a suspended sentence of prison time. After several appeals and a violation of her operational period—she was arrested while protesting the opening of a detention center for refugees in 2015—she began her seventy-one day prison sentence in January 2019. “Everyone has the right to freedom of movement in order to seek a good life,” she wrote to me from prison, explaining that her texts were “meant to wake people up, to shake things up.”

In northern European countries, there is a razor-thin line between what constitutes freedom of expression and what could be defined as statements inciting violence or hatred. “Don’t look for too much coherence or consistency,” Eric Heinze, a law professor at University of London and author of Hate Speech and Democratic Citizenship, told me. “When you’re talking about fundamental rights, like expression, the rule of law really matters,” he said. “It’s very distinctive of democracy.” But the statutes and their enforcement aren’t always as clear as one would wish.

According to Kaviaar’s lawyer Willem Jebbink, it’s not unusual for people to be charged with inciting violence, hatred, or discrimination in the Netherlands, but “70 to 90 percent of cases don’t go to trial.” It’s unclear why Kaviaar’s case specifically has made it so far in the legal system—though the Dutch secret police has been aware of Kaviaar since at least 2009 when they referenced her texts in a report on so-called extremist migration activism. Her blog receives little traffic, and when the first attempt to take it down was thwarted by Anonymous, authorities did not bother to try again. “It’s very strange that a text is considered a threat to society and [they] don’t do anything to take it down,” Jebbink told me.

The Netherlands has one of the toughest refugee policies in the EU, which is facing a rise of right-wing populism. In past years, many countries have jostled to get around refugee quotas, and so-called “gateway” countries have become host to overcrowded camps rife with violence, psychological distress, and disease. “Dutch, and more general[ly] European migration policies are very much focused on keeping or getting refugees out...Mainstream public opinion has also gone through a significant shift to the right on this subject,” members of Steungroep 13 September, an anarchist collective founded to support Kaviaar and advocate on behalf of migrants, told me via email. There’s been an increase in arrests or fines of pro-refugee activists in Europe, including cases in Greece, Italy, and Sweden. The General Intelligence and Security Service “tries to exaggerate how dangerous we are,” Steungroep 13 collectively wrote to me: “We sometimes wish we would be as effective as they try to paint us.”

One common theory around contemporary European human rights law and freedom of speech law is that it partially emerged as a response to the devastating fascism of Nazi Germany, when toxic hate speech about Jews, Romas, homosexuals, and other vulnerable people in society had a profound and fatal impact. “On the continent, largely because of its more turbulent history, this idea that enemies of democracy can be excluded from democracy is taken much more seriously,” explained Heinze.

But Kaviaar’s situation, particularly when compared to Wilders’s hate-mongering remarks, raises important questions about how such a principle should be applied.

Classic liberalism suggests that attempting to distinguish between hate speech “punching up,” i.e. attacking the powerful on behalf of the vulnerable, and “punching down” as Wilders frequently does, would be difficult. “I’m not sure what the cost would be in terms of a fair democratic process and social cohesion if this imbalance would be implemented in the law,” said Herrenberg. “Once we draw that kind of line then we’re using the law to favor our own politics,” agreed Heinze. The situation becomes murkier still, he added, as we determine litmus tests for vulnerability: Should a prominent, economically well-off gay politician like Pim Fortuyn, who was assassinated for his racist remarks against Muslims, be considered oppressed?

But sociologically, there’s ample evidence that there is a difference in terms of how speech is perceived and acted upon. Researchers have found that violent or hateful language can encourage people already predisposed to violence to act on their feelings. When a person like Wilders has both the platform and power for his hateful messages to be widely disseminated and acted upon, as well as the money to fight any legal battles or fees, his speech has greater impact.

Ironically, Wilders, who has gotten off comparatively easy with regard to hate or violence-promoting speech, has been extremely successful portraying himself as a victim of anti-free speech pundits: Support for the PVV has grown in recent years, and Wilders has received large donations from American right-wingers who see him as a free-speech martyr. By contrast, Kaviaar’s comments and arrest did not lead to a groundswell of support for refugees or migrants in the Netherlands. At a time when xenophobia and hate speech are on the rise, according to the European Commission Against Racism and Intolerance, many pro-refugee activists are finding these disparities increasingly difficult to swallow.