Wilders in Wonderland

by Adam Turner  •  Jun 10, 2011 at 3:24 pm

https://www.legal-project.org/blog/2011/06/wilders-in-wonderland

At Big Peace, Ned May imaginatively compared the Austrian "hate speech" trial of Elisabeth Sabaditsch-Wolff for her comments regarding Islam to the infamous Trial of the Stolen Tarts, in Alice's Adventures in Wonderland. This fictional trial is a hyperbolic vision of a "kangaroo court," meaning "1) a mock court in which the principles of law and justice are disregarded or perverted" or 2) a court characterized by irresponsible, unauthorized, or irregular status or procedures…".

In the Trial of the Stolen Tarts, the King and Queen of Hearts put the Knave of Hearts on trial for stealing the Queen of Hearts' tarts. The result is a judicial farce. The incompetent and foolish King of Hearts acts as both biased judge and biased prosecutor, while the court uses trial procedures made up on the spot, and introduces evidence and witness testimony that are totally irrelevant to the question at hand. There is a jury here, but it is has no real power, nor any real inclination, to make a verdict. In fact, the real decider in this case seems likely to be the Queen of Hearts, who memorably demands, "Sentence first — verdict afterwards" and incessantly heckles the court and witnesses with her preferred punishment – "Off with her/his/their head(s)!"

Unfortunately, Elisabeth Sabaditsch-Wolff is not the only, or even the most prominent, "Knave" in the speech crime docket in Europe these days. Another true trailblazing Speech Knave is Geert Wilders, a Dutch MP who leads the third largest party in the Netherlands. Mr. Wilders admittedly is not the perfect hero– he is no fan of the religion of Islam, and frequently refers to it in impolitic language. Among other things, he has described Islam as "fascist" and compared the Koran to Hitler's Mein Kampf. However, this kind of nasty but non-threatening language should not lead to five hate speech charges, for inciting hatred and/or discriminating against Muslims, with possible punishments ranging from a prison sentence of up to a year or a 7,600 euro (i.e., $10,300) fine.

The Wilders kangaroo court opened in 2008, when Dutch prosecutors declined to prosecute Mr. Wilders, but a three judge appeals court panel in Amsterdam overruled the prosecutors' objections and began the prosecution. Among the judges on that panel was Thomas Schalken, the man who – as a member of the executive branch – originally formulated the laws that made it possible to overrule the prosecutors. No jurors participate in these trials. The three judge panel, including Schalken, was also going to decide the Wilders verdict and punishment—literally acting as prosecutor, judge, and jury.

On the opening day of the trial, October 4, 2010, the presiding judge, Judge Moors, made a snide remark about Wilders. Although Wilders filed judicial bias complaints, nothing came of them until October 22, 2010, when it became known that Judge Schalken had illegally met out-of-court with Hans Jansen, an expert witness, and attempted to influence Jansen to change his testimony to the detriment of Wilders. In this meeting, the judge also personally admonished Jansen: "(y)ou as an intellectual should not be mingling with such a chap (i.e., Wilders)." When this information came to light, the entire appeals court was embarrassed enough to approve Wilders' request for a new judicial panel— but not embarrassed enough to cancel the trial itself. There was no need to cancel, you see, because as the presiding judge said: "It isn't plausible that Schalken tried to influence Jansen," so "(w)e cannot conclude that the defendant's rights were violated."

At the end of May 2011 the new trial began. The prosecutors once again recommended an acquittal, because Wilders' "comments may cause anxiety and aversion" but they should "not be punishable by law." The judicial panel, once again, ignored the recommendation. After a short presentation, the defense called for Wilders acquittal in the name of free speech, justice and democracy. The lead defense lawyer also quipped that he had never before seen a trial where the defense could have adopted the prosecution's arguments. The judges are expected to deliver their verdict in late June.

In Alice in Wonderland, the Trial of the Stolen Tart's ends when Alice wakes up and realizes that the entire kangaroo court was nothing but a fanciful dream. The Geert Wilders case is unlikely to end in such a pleasing manner. Based on the judicial panel's steadfast insistence on going forward, over the prosecution's objections, it seems likely that Wilders will be convicted of something; perhaps he will be punished with a fine for his "criminal" speech. A great concern is that hate speech kangaroo court trials will continue to claim more victims in Europe and Canada – and maybe, eventually, in the United States. At least we have not reached the point where the Queen of Hearts' most desired punishment is meted out to these Western Speech Knaves. Sadly, in some Sharia-compliant nations, Speech Knaves may indeed be subject to just these kinds of punishments.

UPDATE:

In my previous piece on the Geert Wilders "hate speech" trial, I fearlessly predicted:

Based on the judicial panel's steadfast insistence on going forward, over the prosecution's objections, it seems likely that Wilders will be convicted of something; perhaps he will be punished with a fine for his "criminal" speech.

On June 23, 2011, the three judge appellate Dutch court proved me wrong. They acquitted Wilders of the five charges made against him.

I am very glad I was proven wrong with this prediction, but, considering the Court's reasoning, I must confess that I am still concerned about the freedom of speech regarding Islam in the Netherlands. To sum up their convoluted decision, the Court said that Wilders' comments – even if they met all of the elements of the Dutch code – were excused by the statement's "context." In other words, the Court said, we must decide this case based on not just a plain evaluation of the elements of the crime, but also with a review and weighing of the following factors: who said the statement in question, where the statement was made, what statements preceded or followed the specific statement, and why the statement was made, etc. Only if the elements of the speech crimes were met AND the contextual factors called for a punishment should the defendant be convicted.

In reference to my prior blog post, Geert Wilders has indeed awakened to escape his speech trial in Wonderland. Congratulations to him. His free speech has been protected. But what happens when some poor Dutch schlub who is not a Dutch MP and/or who is not as careful with his language has something he wants to say that is critical of Islam? Only the Dutch Court knows that answer.

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