In the United States, for instance, Donald Trump has described Mexican immigrants as rapists and criminals, proposed a temporary ban on Muslim migration to America, and called for the mass deportation of illegal immigrants and Syrian refugees. He and his surrogates have softened these positions over the course of the campaign. But they haven’t done so because they’re concerned about violating hate-speech laws. As the law professor Eugene Volokh has written, there is generally no exception to the First Amendment for hateful ideas: In America, “One is as free to condemn Islam—or Muslims, or Jews, or blacks, or whites, or illegal aliens, or native-born citizens—as one is to condemn capitalism or Socialism or Democrats or Republicans.” (Wilders is an enthusiastic supporter of Trump’s and attended the Republican National Convention in July.)
Many European countries, by contrast, have laws against hate speech, in part as a response to the horrors of the Holocaust. Last year, for example, the right-wing French leader Marine Le Pen went on trial for incitement after likening Muslim street prayers to the Nazi occupation of France. (Le Pen was eventually acquitted.) Liberal democracies are all situated somewhere on the spectrum between absolute sensitivity and absolute free speech, and they’re being forced to reassess where they stand in this new age of nativism.
Wilders, the leader of the right-wing Party for Freedom, has been in the courtroom before. In 2011, he was acquitted of hate-speech charges after comparing the Koran to Hitler’s Mein Kampf and repeatedly denouncing Islam. A year before the verdict, the Dutch newspaper NRC Handelsblad examined Wilders’s rhetoric from the perspective of Dutch Muslims:
Day in and day out, Dutch Muslims are told their religion is “a fascist ideology” and “a threat to Dutch society.” They hear their “so-called prophet Muhammad” is “a barbarian, a mass murderer and a paedophile,” or words to that effect. The indignities come from a member of parliament: Geert Wilders.
In the 2011 case, the judge ruled that while Wilders’s comments were “offensive” and “shocking,” they were not criminal because they came in the context of a political debate about Muslim integration and multiculturalism in the Netherlands. The court’s decision raised the question: Was there any context in which such comments by a politician would be considered unlawful, given that politicians are always participating in public debates?
By December, we may have an answer. This time, prosecutors argue, Wilders targeted a specific group—all Moroccan immigrants in the Netherlands—rather than, say, convicted Moroccan criminals or the entire religion of Islam, which might have been permissible under Dutch free-speech laws. “Islam is an idea, a religion, but according to the public prosecution service, you have a lot of room to criticize ideas, but when it comes to population groups, it’s a whole different matter,” as a spokesman for the Dutch public prosecutor’s office put it to The New York Times. In other words, Wilders’s remarks were specific enough to single out an ethnic minority in the country and general enough to potentially turn people against that group as a whole. (Ahead of March 2017 elections, which his party could win, Wilders has also advocated closing mosques and Islamic schools in the Netherlands, banning the Koran in the country, and halting immigration from Muslim nations.)