Free speech on trial. What we can learn about the Wilders trial from other hate-speech prosecutions.
On May 17th 2018 Geert Wilders was once again asked to appear in court. The reason for his prosecution were his vilifying remarks about Muslims. The present trial concerns his infamous statement in which he asked for "less Moroccans". If found guilty, Wilders risks receiving a 5000 euro fine. Yet, thorough analyses of other hate-speech trials in Europe have revealed that irrespective of the punishment, politicians may employ these trials for their own political gain. In this blog, I ask what we can learn about the Wilders trial from other hate-speech prosecutions in Europe.
Politicians on trial?
How much tolerance should we have for the intolerant? This is the question that many contemporary democracies are facing when dealing with populist radical right politicians and parties. Not only do these actors challenge the pluralist foundations of liberal democracy, in many cases their attempts to vilify certain minorities has pushed the envelope of what we consider acceptable speech. Increasingly, we observe a trend towards the mobilization of hate-speech laws, aimed to protect the human dignity of minorities and to curb the speech of the defendant. This "legal revolution" has resulted in many prosecutions across Europe, including Jean-Marie Le Pen, Marine Le Pen (Front National, France), Nick Griffin (British National Party, UK), and of course Geert Wilders (Party for Freedom, PVV). As a result of this revolution, today hate-speech trials against politicians are now a recurring practice.
Or free speech on trial?
Notwithstanding their progressive intention, evidence that these trials achieve their aims is mixed at best. Even more so, there is some evidence that trials achieve the exact opposite of what they are intended to do: rather than punishing the defendant, they create a platform that can be used for their own political gain. This is perhaps best illustrated by the prosecution of Jussi Halla-aho (True Finns, Finland), whose election into parliament in part could be explained by the vast amount of media attention he received throughout his trial. Similar patterns have emerged in France, where the several trials against Jean-Marie Le Pen and the two trials against Marine Le Pen have certainly not inhibited further electoral success. Although this evidence may be anecdotal, it is clear that at the very least these trials do not harm the reputation of the defendant.
The latter conclusion is somewhat ironic because media coverage of hate-speech trials tends to be loaded with criticism, widespread hostility and accusations of political extremism. But why, then, did it not harm the reputation of those standing on trial? Moreover, what it is that makes being prosecuted rewarding? A case-study of the prosecution of British BNP politician Nick Griffin has revealed that it is not so much the attention that allows the defendants to turn the table to their favor, but the ability to weigh in in public debate. Key to understanding the beneficial impact of these trials for the reputation of the defendant turns out to be the use of reactive rhetoric. By providing opportunities to reply, news media had created a platform for Griffin to 'rebrand' himself, his party and the trial. In all cases I discussed, the beneficial implications of these trials for the defendants could be reduced to a single characteristic: the ability to rebrand the trial in such a way that it seemed like free speech was put on trial, rather than themselves. It is this reactive rhetoric that may provide Wilders with the opportunity to gain from what is otherwise considered a punishment.
What have we learned?
The main purpose of the trial against Wilder is (1) to ascertain whether the infamous "less Moroccans" statement should be qualified as hate-speech and (2) -- if so -- to punish him for these statements. Drawing on what we know about the other trials that were discussed in this blog, it is likely that the second objective will not be realized. The Wilders trial has received an extensive amount of media attention, thereby creating an opportunity for Wilders to frame this event in a way that suits him. All in all, the degree to which Wilders is able to employ this trial as a strategic instrument, will be dependent upon whether his attempts to frame these events as attacks on the freedom of speech are successful. This leaves an important task for the media not to adopt this free-speech frame in public discourse. After all, free speech is not on trial, but Geert Wilders is.
* Further research on the electoral and societal impact of hate-speech prosecution is presently carried out by an NWO VIDI team led by Joost van Spanje, consisting of Laura Jacobs, Lisanne Wichgers, Rachid Azrout, Roderik Rekker and me. More information about this project can be found on https://www.polcomm.org/research/legal-action-against-politicians/
Sjifra de Leeuw is a PhD researcher in Political Communication and Journalism at the University of Amsterdam School of Communication Research (UvA ASCoR). Her research project is embedded within the NWO VIDI project "Defending or Damaging Democracy", which concerns the legal prosecution of anti-immigrant parties and politicians in Europe.