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The Criminalization of Hate Speech in the Netherlands

In approaching the topic of the criminalization of hate speech in the Netherlands, it was necessary as an American-Dutch team to bring our own culturally-indoctrinated ideas about freedom of speech to the drawing board at the outset of our working relationship. A few weeks ago our outlooks on limiting speech were significantly different than we find them to be after having explored in depth this complicated issue. From an American standpoint, the idea of limiting free speech sounded foreign, oppressive, and against the aims of any first-world democracy that claimed to promote human rights. From a Dutch perspective, the idea of not placing limitations on speech sounded like a sure-fire way to promote violence, terrorism, and complete disregard for human rights. 

Over the course of interviewing a professor, a journalist, two Holocaust survivors, and an extreme-right activist and engaging in detailed discussion and reading on the topic, we observed gradual transformations and complications arise out of our formerly held and, for the most part, unquestioned beliefs. In this paper we aim to present objectively the various views and complexities that came out of our interviews and to present these views in conversation with each other. With regard to some of the issues we address, we have come to clear-cut conclusions about how we each personally feel. With regard to other issues, however, we have gained a deeper understanding of the complexities involved, yet continue to struggle personally with nuanced, philosophical underpinnings. Our attempt in this paper was not to arrive at one neatly packaged conclusion, but rather to gain a deeper appreciation for multiple culturally-influenced ways of looking at the criminalization of hate speech in the Netherlands and to begin to clarify in our own minds our personal stances on a multi-faceted challenge facing present-day society.

International Human Rights Law and the Netherlands 

The complex structure of international human rights law since 1945 has been constructed as a moral answer to the Nazi ideology of racism. The primary focus of human rights since 1945 has been efforts to guarantee freedom from discrimination on grounds of race, gender, or religious belief. The 1948 Human Rights Convention of Geneva spoke directly to Holocaust atrocities of World War II. Two decades later, over 125 countries have ratified the main international treaty against racial discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) of 1966. Other treaties aiming to ensure freedom from discrimination include Article 19 of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention for the Protection of Human Rights and Fundamental Freedoms. Although Article 1 of the Dutch Constitution prohibits discrimination, courts may not rule legislation unconstitutional, but may instead invoke certain provisions of the international anti-discrimination treaties mentioned above. Because the Netherlands lacks its own comprehensive anti-discrimination act, it often occurs that the above-mentioned anti-discrimination provisions are referred to in the court system (Coliver 1-7).

Complicating freedom from discrimination is the issue of ensuring freedom of speech in a society. A clear divide exists between the approach toward freedom of speech advocated by the United States and that advocated by the Netherlands. In the US, the balance is struck in favor of freedom of speech without limitation, whereas in the Netherlands, the balance is struck in favor of the belief that racist speech must be limited under conditions prescribed by law (Coliver 1-7).

Out of the Dutch ratification of the CERD in 1971 came an expansion of Dutch criminal law towards limiting the public expression of hate speech. Because of increasing hate speech in the late 1980s and early 1990s and new waves of anti-Semitism throughout Europe, the Dutch government committed itself to enforcing stricter limitations on racist speech and criminalized Holocaust denial. 1994, for example, marked the first time in Dutch history that political party leaders were personally convicted based on their official party platform when leaders of the Centrumdemocraten party were prosecuted for the espousal of their extreme-right ideology. Additionally, the political party itself was convicted the same year for its racist agenda. Also rooted in a more direct commitment on the part of the Dutch government to limiting and prosecuting hate speech is the difficulty extreme-right groups face when attempting to secure permits for public events and demonstrations (van Donselaar 32).

Ideological vs. Pragmatic Approaches

In analyzing the opposing perspectives of various individuals involved directly as professors and reporters in the ongoing dialogue surrounding hate speech as well as those involved indirectly as citizens living under the limitations imposed by the Dutch government, it is essential to distinguish between what Dr. Jaap van Donselaar, of the Anne Frank Foundation and Leiden University, explains as the principle or ideological view of the debate on one hand and the pragmatic view on the other hand. “There exist so many different views on this topic because people approach it from two distinct levels,” he explains. He reveals that many of the discussions in which he has participated tend to become quite confusing as participants mix up these distinct approaches. The ideological way of conceptualizing the debate on criminalizing hate speech is “a way of thinking about democracy and political rights” based on fundamental principles that disregard actual implementation. The pragmatic way of addressing the situation does not concern itself with philosophical principles, but rather examines the probable tangible societal effects of maintaining or curbing limitations on free speech. 

Just as Van Donselaar has observed the difficulties that arise when those with opposing viewpoints attempt to reach mutual understanding by way of opposing approaches, we observe throughout our discussion that follows the nuanced complications that arise when reporters, journalists, politicians, and citizens approach the topic from either an ideological or pragmatic perspective. An additional complication interestingly arises when individuals subtly switch from one approach to the other throughout the course of their argument.

Inherent Contradiction of Basic Human Rights

A recurring theme that surfaced in discussions about the criminalization of hate speech centered around the idea that basic human rights are, by definition, often at odds with each other and, as a result, present complex challenges when one attempts to forego or limit one right in favor of preserving the purity of another. At the crux of our exploration of limiting hate speech in the Netherlands is the multi-faceted challenge of simultaneously protecting the right of individuals to express opposing opinions and the right of individuals not to be the objects of discrimination. Both the right to freedom from discrimination and the right to freedom of expression are protected in the Dutch Constitution in Articles 1 and 7 respectively and these rights are viewed as holding equal importance (Boerefijn 206). Implicit in this lack of hierarchy is the question of what occurs when a situation arises that calls into question both freedoms. As Boerefijn explains: In cases where...rights are found to be in conflict, they are weighed against each other within the framework of Parliament’s constitutional authority to impose limitations on them...The government believes that this constitutional system guarantees a carefully balanced relationship between the exercise of one right and respect for another (206).

Not all observers of this system are satisfied, however. Rinke van den Brink, a reporter at the weekly publication Vrij Nederland who has been covering the extreme right since 1983, understands the complexities involved in finding a solution that allows freedom of speech without risking discrimination, but he explains, “I’m rather afraid of solving problems by forbidding [freedom of speech]. It [discrimination] will not disappear because it cannot be said aloud.” Dr. van Donselaar agrees that, by definition, basic human rights are often at odds with each other. Consequently, he believes that “it’s not a matter of limiting or not limiting [certain rights]; it’s a matter of when and under what circumstances [to do so in order] to limit violence, terrorism...” 

Van den Brink’s commitment to the importance of ensuring free speech can be analyzed as stemming from an ideological commitment based on a highly principled view of the role that freedom of expression plays in a society, whereas Van Donselaar’s argument is based on a more pragmatic attempt to foresee and address the tangible effects that unlimited speech might have on individuals in a society. Thus, the question remains of how to strike a livable balance between freedom of speech and freedom from discrimination. This discussion increases in complexity as experts like Van den Brink and Van Donselaar approach it from ideological or pragmatic levels that are challenging to reconcile.

Hate Speech and Human Nature

While one hope is that limiting what people can say will, over time, lead to a decrease in racism by changing the way they think, Holocaust survivor Frieda Menco emphasizes her belief that it is human nature to hate and discriminate against others. She believes that hate speech is prevalent in society for this reason and she explains that if minorities were not the targets of racist sentiment in modern-day Germany, for example, “it might be bad for the Jews again...People seem to need groups to despise because in despising someone else, you see yourself as wonderful...I think we all have to check ourselves for that constantly. We all have that inclination in us.” She continues by explaining that cultural differences lie at the core of discrimination: “The unknown, the difference of culture, causes a lot of discrimination. The only thing that helps is getting to know people and getting to know that they have the same heart and soul and liver.”

Self-described National Socialist agitator and vocal member of the extreme-right, Joop Glimmerveen has been imprisoned three times for the expression of his extreme political beliefs and presently faces another three-month sentence for a hate speech incident three years ago. He agrees that it is in the nature of human beings to discriminate and also believes that discrimination is rooted in difference and feelings of superiority. While he says that he is “infamous for hate speech and discrimination” he rejects the suggestion that his party, the Dutch People’s Union (Nederlandse Volks Unie), engages in hate speech. “We agitate against foreigners. That is not hate speech. We are doing nothing to them. We only don’t want them in the Netherlands,” he explains. Glimmerveen does not consider his message hate speech, but rather “a political statement” motivated by “political beliefs and idealism.” Glimmerveen has been disseminating his “idealism” in the Netherlands as chairman of the extreme-right Dutch People’s Union from 1974 until 1986 and again from 1996 until early-June 2000 when an organizational power struggle caused him to step down from the position.

The Extreme-Right’s Seduction of the Defenseless

Ms. Menco approaches the discussion on limiting freedom of speech in the Netherlands from a distinctly pragmatic viewpoint as she explains her fear of extreme-right groups, if given unlimited opportunity to espouse their racist messages, appealing to juveniles and to those without the capacity to understand the implications of their messages. “Not the whole world consists of bright people so they listen to hate speech because of course it’s a way of being nice to yourself,” she explains, echoing her belief that discrimination occurs because in presenting others in a negative light, people feel more positive about themselves. Ms. Menco supports limitations on freedom of expression and is acutely aware of the danger the extreme-right presents to those she considers defenseless: “When you have a group together [i.e. an extreme-right group] and when you attract young people, you are dangerous...I think a lot of people are, in fact, defenseless because they are not able to think critically.” Holocaust survivor Berry Dotsch shares Ms. Menco’s fears that extreme-right groups depend on membership from young people and those who are defenseless.

Journalist Rinke van den Brink understands but finds fault with Ms.Menco’s fears about the extreme right appealing to young people and to people of lower intelligence: “Frankly spoken, she might be right. I understand what she means, of course. But I think it’s a very elitist view...There’s only one way to protect people from being seduced by undemocratic parties--to ameliorate their lives, to get them jobs, houses...” Van den Brink explains that it is the task of the school system to prepare students to be responsible, critically-thinking citizens who will not be easy targets of extreme-right groups.

When questioned about the ease that Menco believes his group has in seducing juveniles and the defenseless, Glimmerveen emphasizes that “we don’t look for them; they come to us.” Nonetheless, he reveals that his party is “rapidly growing” and almost one hundred percent of the growth can be attributed to people between the ages of fifteen and thirty-two. He boasts that his is the youngest party in the Netherlands, based on average age of members.

Just as Van den Brink espouses a view of schools playing a fundamental role in the education of independent thinkers and responsible citizens, Glimmerveen harshly criticizes schools for limiting political views by promoting only one liberal perspective and, in doing so, acting against the aims of public education. He specifically rails against the educational system for influencing youth to hold views in favor of the multi-racial society and for failing to present the right-wing point of view which he holds: that immigrants and asylum seekers should be removed form the Netherlands “for the integrity of our people. The multi-racial society is a failure; it’s a despair, a catastrophe.” 

Limitations and the Changing Nature of the Extreme-Right

Glimmerveen’s explanation that the Dutch People’s Union is “rapidly growing” calls into question the hopes of many that criminalizing hate speech in the Netherlands will lead to a decrease in the size of extreme right groups and a change in their mentality toward a less overtly racist stance. Despite reports such as Glimmerveen’s that extreme-right groups are increasing in size even with limitations in place, Dr. van Donselaar supports limitations aimed at curbing hate speech and believes in their effectiveness. In attempting to reconcile his ideological and pragmatic approaches to the debate, he explains: “Principally spoken, I’m not in favor of limiting freedom of speech. On a more practical level, I have observed in the international research that it really works against organized racism.” Here, Van Donselaar reveals that he perceives limitations as working specifically against extreme-right groups more directly than against individuals. Berry Dotsch echoes Van Donselaar’s sentiments that limitations on hate speech are necessary in counteracting organized racism: “If freedom of speech was not limited,” he explains, “the danger is that [the extreme-right] would grow in size because there is always room for fascism.”

Thus, critics like Dotsch and Van Donselaar support limitations on free speech as an obstacle used to deter racist ideas from being disseminated in society. Van Donselaar finds the act of “placing more doors and more gates and more barriers and more hurdles” in the way of the extreme-right an effective mechanism that decreases their activities. He emphasizes, however, that criminalizing hate speech is just one obstacle that can be utilized to deter racist expression. He also notes the roles that negative media attention and the risk of stigmatization play in decreasing the strength of the extreme-right by decreasing the inclination of potential members to join. He discusses the risk faced by post-war extreme-right leaders of being labeled a Neo-Nazi, an anti-Semite, or a political criminal and explains that potential members of extreme-right parties are less inclined to associate themselves with a group that holds these labels and runs the risk of being prosecuted or banned. As a result, Van Donselaar explains, gaining mass support under these conditions is difficult and extreme-right organizations, contrary to what Glimmerveen reports, do not gain in popular support. Van Donselaar emphasizes that limiting the expression that is tolerated from the extreme-right does not attempt to change the way they think and to make members less racist through education. Rather: it’s an approach through threat, the threat of being prosecuted, the threat of being banned. It doesn’t affect the mentality of hard-core extremists, but it does influence the way of thinking of those who don’t want to be part of a criminal group or associated with a group linked with second world war fascism. Additionally, Van Donselaar cites the negative media attention which the extreme-right attracts. This non-neutral coverage influences people’s decisions not to join the extreme-right as well.

Criminalizing hate speech also succeeds in decreasing the potency of the extreme-right, according to Van Donselaar, by forcing groups to become more moderate. When pressured to restrain their racist expression, extreme-right groups refine their message to one that includes less overt racism. In moving toward this more moderate positioning, they risk little distinction between group political profiles which leads to potential members opting to join other groups that are not associated with the stigmas that extreme-right groups have collected. As gaining member support becomes more difficult, fissions within groups lead to organizational instability among the extreme-right.  Interestingly, Glimmerveen reiterates Van Donselaar’s belief that criminalizing hate speech changes the nature of political parties, but he suggests not that the extreme-right becomes more moderate, but rather that other groups that subtly espouse rightest agendas mask these agendas behind facades of liberalism and, in doing so, gain more mass support than extreme-right groups that espouse similar philosophies in a more open manner. As support for this position, Glimmerveen claims that the Volkspartij voor Vrijheid en Democratie (VVD), a liberal party in the Netherlands, holds the same anti-immigrant ideas that the extreme-right Dutch People’s Union espouses, yet the VVD gains more support because in presenting their ideas more covertly, they avoid the stigmas associated with the extreme-right.

VII. Limitations and Racist Mentality

While the nature of extreme-right political parties is, perhaps, affected by limitations on free speech, it remains unclear whether decreasing the amount of hate speech tolerated in a society actually leads to decreased levels of racist thought and action. Changing mentality, however, is not the aim, Van Donselaar clarifies in his comment that limiting hate speech is “not an educational approach toward changing mentality,” but rather an attempt, as outlined above, to put obstructions in the path of the extreme-right in an attempt to limit through threat and stigmatization the dissemination of their views. In keeping with his belief that changing racist mentality is not the primary aim of hate speech limitations, he explains that “just because people’s opinions aren’t being changed by laws doesn’t mean we should throw away the penal code and not prosecute crimes.” 

Extreme Right Party Politics and Free Speech

Our research suggests that the present limitations on freedom of speech in place in the Netherlands are aimed more directly at the extreme right than at individuals espousing racist views. With this distinction in mind, it is essential to examine opposing viewpoints on how limitations on freedom of speech apply and should apply to political parties as organizations in the Netherlands. Two very distinct and, to some degree, irreconcilable philosophies arise from this debate: one side focuses on the need, outlined above, to obstruct extreme-right parties with the aim in mind to decrease their potency; the other side holds as its mantra that “in a free society tolerance requires us to tolerate the intolerable” (Tuerk and Joinet 50). Van den Brink opposes limitations on free speech, regardless of whether those limitations are aimed at extreme right parties or individuals. He is committed to upholding rights to free speech for the extreme-right, calling this stance “a very ugly position to defend,” but emphasizing that “people have the right to their opinions.” Here, he unquestioningly links attempts to limit free speech with attempts to limit free thought and this idea is one he finds extremely problematic. In discussing the role that extreme right parties play in the Netherlands today, he introduces the challenge of dealing with “people who use democracy to someday abolish it.” With regard to this struggle, he emphasizes that “you must be very careful about using undemocratic methods against organizations with undemocratic aims, even if they play the game by the rules of democracy.”

While Van den Brink strongly opposes limiting the expressions of the extreme right, he concedes that the law must be used occasionally to remind these groups that they are being closely monitored: You cannot forbid people to have ideas, even stupid or racist ideas, so I don’t believe in the effectiveness of repression. But, on the other hand, if you have laws, you can’t allow people to constantly break these laws, so I do support prosecuting from time to time people who go too far, who put the deed with the word. In a way, it’s to let them know that they are watched, that they can’t do something without consequences. Here, Van den Brink reveals that he supports occasional prosecution, but he makes it clear that prosecution should only result when a racist act has actually been committed that stems from racist expression. He does not support prosecution for expression alone. Because of the complications inherent in this distinction, V

an den Brink believes that pragmatically, political parties should not be forbidden until after they cross the line of putting “the deed with the word.” He also opposes forbidding a political party for acts committed by a few members, even if these members are leaders, and equates this action with “shooting a tiny fly with a big gun.”

Van den Brink vocally opposes Van Donselaar’s interest in using limitations on free speech and various other measures to obstruct extreme right parties. He cites Mr. Hans Janmaat’s extreme-right Centrumdemocraten party that gained a seat in Parliament in 1994 on a platform advocating the end of multicultural society in the Netherlands. “No one protested against this program during elections,” Van den Brink stated. “Two years after his election, Janmaat addressed the first public rally his party had ever held and quoted his electoral platform, telling the ‘crowd:’ if we get the power, we end multicultural society. Although the platform of the Centrumdemocraten had never been subject to any charges, the public prosecutor now charged Janmaat with racial hatred and discrimination.” In response to this case, Van den Brink explains that “in a parliamentary democracy, I think that when a party is accepted in elections...you gave this party an approval which you cannot easily withdraw [by way of attempts to obstruct and limit the party’s political message].” He continues by explaining that if a party has succeeded in gaining the votes needed for a seat in Parliament, it has a right to a place to meet and a right to express its views without limitation. Once a part of Parliament, it is undemocratic, from Van den Brink’s perspective, to place limitations on a political party. With regard to prosecuting hate speech, Ms. Menco and Mr. Dotsch present a viewpoint in opposition to that of Van den Brink: that insulting, offensive expression must be prosecuted. “I think especially when you are a person who has not been protected in life...it gives you a good feeling when you are living in a country where hate speech is forbidden by law,” Ms. Menco explains. She continues that if she were living in a country without limitations on hate speech, she would feel much more threatened because of her background. “The law is made to protect us,” adds Mr. Dotsch, referring to targets of hate speech including Jews and ethnic minorities.

While Dotsch sees the goal of the law as protecting minorities, Glimmerveen has a very different perspective: “Anti-discrimination laws are used to put down politicians who are a danger for the establishment. They always say that a strong democracy must not be scared, but they are scared.” Glimmerveen echoes the beliefs expressed by Van den Brink that a free society demands the right to free speech for all political parties. In support of this view is the outlook reported by Tuerk and Joinet: “Democracy is indeed a ‘tragic’ political system, for it is the only regime that openly faces the possibility of its self-destruction by taking up the challenge of offering its enemies the means of contesting it (38).” From Glimmerveen’s perspective, it is this view that lies at the heart of the fear he points to that motivates those around him to attempt to limit the expression of his rightest agenda. Glimmerveen points out that “when you don’t have freedom of speech for a political party, you can’t change something fundamental.” While Glimmerveen vehemently opposes limiting the speech of political parties in the Netherlands, he concedes that it is acceptable for hate speech “on a personal level” to be punished. He defines personally-directed hate speech as racially or ethnically insulting attacks made by groups or individuals against other individuals in a setting outside the realm of politics. At the same time, however, he strictly and vocally opposes inter-racial marriage which can certainly be viewed as falling outside the realm of the political and inside the realm of the personal.

The Risk of Driving the Extreme-Right Underground

Arising from and complicating the debate surrounding criminalizing hate speech is the fear of some that enforcing limitations will drive racist expression underground where it is more difficult to monitor. From his background as a journalist, Van den Brink explains that it is easier to “put informants in or to find informers within, a party with, say, 400 members, than in 20 groups with 15 to 20 members that know each other far better.” While Dotsch remains loyal to his belief that prosecuting must occur when groups or individuals participate in insulting or offensive speech, he struggles with reconciling his ideological and pragmatic view on limitations. He explains that ideologically he would opt for forbidding extreme-right expression, but concedes that perhaps it is more practical not to completely forbid because “it will drive them underground where it’s more difficult to watch them.” He reconciles these views by supporting limitations on speech, but opposing complete banning of extreme-right parties.

Conclusion

After examining various sides of the issue of the criminalization of hate speech in the Netherlands through the eyes of a professor, a reporter, two Holocaust survivors, and an extreme-right activist, we observed that, to some extent, we refined our deeply-held, culturally-instilled beliefs about the role that freedom of speech plays in democratic society. We recognize that there exist many compelling reasons why limitations on free speech enhance the democratic nature of society and we clearly understand how a perceived need for limitations imposed on hate speech would exist in post-Holocaust Europe. Nevertheless, even with the trade-offs and benefits that must be foregone in order to protect complete freedom of speech, we are personally committed to a system in which citizens can, without limitation, voice their beliefs and opinions, regardless of how reprehensible these positions may be to those around them. When we live under a government that limits what we are permitted to express, we inevitably face the frightening questions of where the line is drawn and who makes that decision. As Jewish females, we are prepared to defend the Nazi’s right to march and express their views in our cities if that means that our own rights to free speech and, in turn, to free thought remain untouched.

 

References

Articles and Books:

“Arbejdsmarkedsrapport” Dansk Arbejdsgiverforening 2000 

Camre, Mogens “Vi oensker ikke de fremmede” Politiken 21 April, 1998

“Handlingsplan om etnisk ligestilling” Arbejdsministeriet March, 2000

“Iraker fandt dvaergbaendelormen” Dansk Veterinærtidsskrift 16 June, 2000

Necef, Mehmet Ümit “Indvandrere, arbejdsmarkedet og dansk nationaloekonomi” Information om indvandrere, 1. 3 (1998)

Necef, Mehmet Ümit “Positiv særbehandling eller liberalisering?” Information om indvandrere, 3. 3 (2000)

“Trends in International Migration” OECD 1999 Report

Interviews:

Mehmet Ümit Necef, Syddansk Universitet

Jette Lykke Jensen, LO

Nina Smith, Handelshoejskolen i Aarhus

Michael Hjarnoe, Syddansk Universitet

Lars Christensen, Oekonomiministeriet 

 

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Netherlands Netherlands 2000

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