In February 2008, the CIC dropped its complaint, having come to “understand that most Canadians see this as an issue of freedom of speech, that that principle is sacred and holy in our society.”100 Levant still had to defend himself against a complaint by the Edmonton Muslim Council until August 2008, when the Alberta Commission decided that, while the cartoons were “stereotypical, negative and offensive,” they were “not gratuitously included” but rather “related to relevant and timely news.” Levant disputed the commission’s implication that it could have penalized him had they not considered the cartoons properly contextualized: he maintained that the officials had “assume[d] the role of editor-in-chief for the entire province of Alberta.”101
The Netherlands
The cartoon affair seems to have created a lingering suspicion of provocative caricaturists in the minds of at least one country’s law enforcement officials. In mid-May 2008, a Dutch cartoonist, using the pseudonym Gregorius Nekschot, whose work had been published, among other places, on the late Theo van Gogh’s website, was arrested, had his computer and other materials seized, and was briefly held by police after an Internet monitoring group told authorities his work was racist and insulting to Muslims. The group had received numerous complaints, many apparently coming from followers of Imam Abdul-Jabbar van de Ven, who has also publicly wished for Geert Wilders’s death. Nekschot’s cartoons linked immigrants, particularly Muslims, to crime, bestiality, and welfare dependence. Released after one day, he remained under suspicion of “insulting people on the basis of their race or belief, and possibly also of inciting hate.” If prosecuted, he could face two years in prison or a fine equivalent to about $25,000.
The initial complaints about Nekschot’s cartoons had been lodged in 2005, leading some to speculate that his arrest in 2008 was an effort to placate Muslim opinion after Geert Wilders’s Fitna controversy. Officials claimed they had previously been unable to discover Nekschot’s true identity, which he kept secret to forestall violent retribution from those offended by his work; both he and his publisher had received death threats. The arrest also led to protests from a number of Dutch politicians. Even some Muslim leaders suggested that the charges were excessive, with one remarking that Dutch officials appeared “more afraid” of alleged insults to Islam than were Muslims. A controversial figure whose work had been considered too vulgar for publication in mainstream outlets, Nekschot had been relatively unknown until the authorities took an interest in him, after which daily views of his website multiplied from a few thousand to over 100,000, and his cartoons began appearing in papers that had previously shunned them. Meanwhile, the media discovered during the course of the controversy that the government had established an “Interdepartmental Working Group on Cartoons” after the Danish cartoon affair, apparently to keep officials apprised of any drawings that might lead to future controversy.102
Politicians
Ayaan Hirsi Ali
As discussed previously, in 2003, Amsterdam prosecutors opened an investigation into, but did not prosecate, complaints that Ayaan Hirsi Ali—a vocal ex-Muslim, champion of Enlightenment values, and then a member of the Dutch parliament for the People’s Party for Freedom and Democracy (VVD)—had incited hatred of Muslims. Since she was a Somali immigrant, this undermined the oftcited “fighting racism” justification for the prosecution of critics of Islam.
She had called Islam’s prophet a “perverse tyrant,” comparing him to “all those megalomaniac leaders in the Middle East: Bin Laden, Khomeini and Saddam.” Her anger was linked to present-day abuses against Muslim women: “Mohammed says that women must stay at home, wear a veil, cannot take part in certain activities, do not have the same inheritance rights as their husbands and can be stoned to death if they commit adultery.” After she announced plans for a sequel to Submission (the film on abuses against Muslim women that led to the murder of its director, Theo van Gogh) that would deal with the treatment of homosexuals in Islam, a group of Dutch Muslims filed a civil lawsuit to prevent her making unnecessarily hurtful or offensive remarks, or blasphemous statements, against Islam.103 In 2005, a judge found that although she had “sought the borders of the acceptable,” her speech did not warrant prohibition. Though she prevailed, the defense cost her 8,000 Euros.104
Geert Wilders
The historically tolerant Dutch also prosecuted other politicians for speech critical of Islam, including MP and Party for Freedom (PVV) leader, Geert Wilders, who has built his political identity on challenging Islam. In March 2008, the Dutch Islamic Federation filed a case to bar the release of Wilders’s film Fitna and to charge him for his anti-Islamic statements.105 The suit focused on his calling the Qur’an a “fascist book” and Muhammad “a barbarian.” Initially the case was dismissed.
In January 2009, following persistent legal efforts by complainants demanding Wilders’s prosecution, the Amsterdam Appeals Court ruled that he should be charged with incitement to hatred and discrimination. It suggested that his “method of presentation” produced hatred; his offending technique apparently involved using “biased, strongly generalizing phrasings with a radical meaning, ongoing reiteration and an increasing intensity.” His statements also “substantially harm the religious esteem of the Islamic worshippers.” Wilders’s criticism of Islamic beliefs was treated as a crime against Muslim people: “Wilders has indeed insulted the Islamic worshippers themselves by affecting the symbols of the Islamic belief as well.” Thus, although “Islamic immigrants may be expected to have consideration for the existing sentiments in the Netherlands as regards their belief, which is partly at odds with Dutch and European values and norms,” criticism of this belief must be limited, and the court sought to “draw a clear boundary in the public debate” on the matter.106
Attempts by Wilders to halt the case were turned down by the Dutch Supreme Court in May 2009 and by a lower court in January 2010. He was formally charged with violating the Dutch penal code, Article 137c (concerning group insult) and Article 137d (concerning incitement to hatred, violence, or discrimination).107 According to a copy of the summons made public on Wilders’s website, his offending expressions include, among many others: the claim that “a moderate Islam does not exist”; comparisons of the Qur’an to Mein Kampf; calls for the Qur’an to be prohibited; and calls to end “non-Western” immigration and to deport those who do not assimilate. Also cited were statements that “Islam is a violent religion,” offered as an explanation for high crime rates among Moroccan youth, and that Muhammad would be expelled from the Netherlands were he alive today. The list includes denunciations of Dutch officials as “cowardly folks” who are “cooperat[ing] in the transformation of the Netherlands into Netherabia as a province of the Islamic super state Eurabia,” along with the full content of his movie Fitna.108
In a move that led to predictions that the trial could become a referendum on Islam, Wilders’s defense team planned to summon eighteen witnesses, including legal experts, experts on Islam, former Muslims, Islamic extremists—among the latter Muhammed Bouyeri, the murderer of Theo van Gogh—and popular Islamist leader and media figure Sheikh Yusuf al-Qaradawi. However, in early February 2010, the court approved only three witnesses. Those permitted, including outspoken American ex-Muslim Wafa Sultan, could testify only in closed session.109 In October 2010, a Dutch judicial oversight body ordered that he be tried anew after finding that judges in the initial court proceedings appeared to be biased. Wilders was finally acquitted in June 2011.
Wilders’s rhetoric also seemed to run afoul of British law, or at least policy, since, on February 10, 2009, after warnings of demonstrations by opponents, Home Secretary Jacqui Smith banned the Dutch MP on public order grounds from entering the United Kingdom. He had planned to speak at the invitation of members of the House of Lords and to show his film Fitna. The British ban drew protests from the Dutch foreign minister and a warning by Lord Pearson, who had invited Wilders, and by Baroness Cox, that “[o]ur western society, and indeed the majority o
f peaceful Muslims, are being intimidated far too much by violent Islamists.”110 When Wilders landed at Heathrow, he was sent back to the Netherlands.111 (The United Kingdom has also barred entry to other controversial figures through similar “exclusion orders,” including Sheikh Yusuf al-Qaradawi, and, in May 2009, it issued a list of sixteen banned individuals—mainly Islamist hate preachers but including American “shock jock” Michael Savage.)112
The Wilders travel ban was overturned eight months later by an immigration tribunal, whose chair declared that the government had shown no “[s]ubstantial evidence of actual harm” adequate to justify suppressing discussion on “matters that might form the opinions of legislators, policy makers and voters.”113 Wilders entered the United Kingdom in March 2010 and spoke at the House of Lords without incident about his controversial ideas.
The British National Party
In other cases, hate-speech laws have been invoked against extreme right-wing politicians, with equally questionable results. In December 2004, Nick Griffin, chairman of the anti-immigrant British National Party (BNP), was arrested, along with a number of colleagues, on suspicion of inciting racial hatred. Although other BNP members admitted to committing racially motivated crimes, Griffin’s prime offense appears to have been calling Islam a “vicious, wicked faith.” Another of the charges concerned his prediction, made in 2004, before the London Tube bombings of July 7, 2005, that local Muslims would one day stage a terror attack in Britain. In an Orwellian turn, a court official instructed jurors to exclude from consideration whether Griffin’s statements were factually correct.114 After the prosecution failed, the case was retried in November 2006, and Griffin was acquitted on all counts, while garnering valuable publicity.115
Other Politicians
In January 2009, far-right Austrian politician Susanne Winter was sentenced to a fine of approximately $30,000 and a suspended three-month prison term after being convicted of incitement and “humiliating a religion.” A Muslim organization and private individuals had filed charges against her for calling Muhammad a “child molester,” stating he had written the Qur’an in “epileptic fits,” and accusing Muslim men in general of sexual misconduct. Winter had also received Islamist death threats for these statements.116
Other complaints concerned criticism of Muslim practices or representations of Muslims as a danger to society, with most eventually dismissed. In 2007, three members of the Danish People’s Party (DF) were reported to police by an “antiracism” NGO for criticizing Muslim veils as a symbol of totalitarian repression comparable to Nazi swastikas. Prosecutors decided against pressing charges, citing “a particularly wide freedom of expression for politicians on controversial social issues.”117 In Switzerland, the Federal Court dismissed a local prosecutor’s complaint over a poster issued by the Swiss People’s Party (UDC)—an anti-immigration group also responsible for the 2009 referendum banning minarets in that country—that showed Muslims praying outside the Swiss parliament and urged voters to “Use your heads” and support UDC in the 2007 elections. Another UDC poster, featuring a woman in a burka and an image of minarets that resembled missiles atop the Swiss flag, was denounced by a federal antiracism body for “inciting hatred” and was banned from publicly owned spaces in some cities, but permitted in others.118 In Sweden, Jimmie Akesson, of the small Sweden Democrats party, was reported to authorities by an “antiracism” group over an op-ed arguing in dramatic terms that Sweden was threatened by Islam’s spread, which the group contended was hate speech. No prosecution ensued.119
Media
A U.K. media exposé of radical Muslim preachers triggered an investigation because it appeared to cast Islam in a negative light. In January 2007, Channel 4, a public-service television broadcaster, aired a documentary titled Undercover Mosque that showed preachers at some British mosques “condemning the idea of integration into British society, condemning British democracy as un-Islamic and praising the Taliban for killing British soldiers.” In response, West Midlands Police, who some thought should have investigated the documentary’s subjects, instead inquired whether Channel 4 could be prosecuted for inciting racial hatred. A Crown Prosecution Service lawyer argued that the way the statements were spliced “appears to have completely distorted what the speakers were saying.”120 In November 2007, Ofcom, Britain’s media regulator, found that Channel 4 “had accurately represented the material it had gathered and dealt with the subject matter responsibly and in context.”121 West Midlands Police and the Crown Prosecution Service apologized and gave restitution of £100,000.122
Theology and Philosophy
As we already seen in Australia’s Catch the Fire Ministries case, blasphemy and religious hate-speech laws also punish and chill those expressing certain theological beliefs. Another notable example occurred in France, where writer Michel Houellebecq was tried in September 2002 on charges of inciting religious hatred in an interview with a literary journal. Regarding his feelings about Islam, he stated, “You could call it hate.” While rejecting all forms of monotheism, he claimed that “the stupidest religion of all is Islam.” The Paris mosque rector demanded that Houellebecq be punished because “Islam has been reviled.” Houellebecq responded that, in his own mind, his comments had been directed at beliefs, not people: “I have never shown any contempt for Muslims, but I still have as much contempt as ever for Islam.” Asked if he still believed Muslims to be stupid, he replied, “I didn’t say that. I said they practice a stupid religion.” Stressing that Islam was not a race but a religion, he also argued, “You can’t be racist against Islam.” The court terminated the case, finding Houellebecq’s remarks displayed “ignorance” about Islam, but not an intention to affront Muslims.123
Citizens
Charges have also been leveled at ordinary citizens for peaceful—albeit sometimes distasteful—expression about Islam. In 2006, a sixty-one-year-old German man, who sent toilet paper printed with the words “Koran, the holy Qur-an” to the media and mosques, was convicted under German law of disturbing public order and slandering religious beliefs. He had also sent a letter describing the Qur’an as a “cookbook for terrorists.” His notes led to death threats against him, and, in July 2005, Iran’s government sent a démarche to Germany’s Foreign Ministry.124 Prosecutors argued that his writings “posed a risk, under the cover of free speech, to peaceful coexistence” between cultures, and he was sentenced to a year’s imprisonment—which was suspended for five years—and 300 hours of community service.
Angered by van Gogh’s murder, a Dutch man hung in his window a poster advertising a far-right movement and stating, “Stop the tumour that is Islam. Theo has died for us. Who will be next?” After being convicted by two lower courts, he won on appeal, arguing that he was criticizing radical forms of Islam hostile to Western society.125
In Austria, Elisabeth Sabaditsch-Wolff was put on trial for a briefing on Islam that she gave to a gathering of an anti-immigration party in Vienna. A diplomat’s daughter who had lived in Iran and Libya, she depicted Islam as a danger to Western values and spoke critically of the treatment of women. The court found that Austria’s free-speech guarantees protected her from hate-speech charges. However, the case turned on the judge’s reasoning that her statement that Islam’s prophet Mohammed was a “pedophile” was false since his child bride Aisha (usually reported as age six at the time of marriage and nine at the time it was consummated) remained his wife when she turned 18. On February 15, 2011, the trial court found her guilty of defaming Islam’s prophet and thus of vilifying Islam and fined her 480 Euros.126
Religious speech regulations were also invoked to police in a Muslim-Christian dispute in the United Kingdom, resulting in further rupture of social harmony. After a religious dispute with a guest in March 2009, Ben Vogelenzang and his wife, who owned a bed-and-breakfast hotel in Liverpool, were charged with the “religiously aggravated” use of “threatening, abusive or insulting words,” an offense under the Public Order Act 1986 and subject to increa
sed penalties in cases involving religious hostility, under the Crime and Security Act 2001.127 The Vogelenzang’s guest, sixty-year-old British Muslim convert Ericka Tazi, contacted the police following a heated religious debate with the Christian owners, which she claimed began when the hotelier saw her wearing an Islamic headscarf, or hijab. Tazi reportedly complained that Vogelenzang called her “a terrorist or a murderer” and labeled Muhammad a warlord, comparing him to Saddam Hussein and Hitler. Vogelenzang’s wife, Sharon, was said to have described the headscarf as a form of “bondage.” Vogelenzang, in turn, said Tazi called the Bible false and Jesus a minor prophet. The couple, who, according to various reports, had once either fostered or adopted a Muslim child, strenuously denied being Islamophobic. The charges were dismissed, but the case led to an 80 percent drop in business for the Vogelenzangs over a nine-month period.128
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