Hate Speech In The Netherlands: The Contention That The Marketplace Of Ideas Dangerously Fails

By Kelsey Elling

Issue

The Netherlands prohibits, limits, and punishes hate speech. The on-going debate is whether it is appropriate for governments to impose these restrictions or if it is just an arbitrary approach for a government to limit the speech of its citizens?

Background Information

Since the 1990’s, Countries have collectively begun to enforce stricter laws prohibiting and limiting hate speech, generally in Europe.[1] The Netherlands is one such country who has criminalized hate speech and racist speech.[2] However, the United States is a country on the opposite spectrum and does not limit hate speech.[3] This is because the First Amendment runs deep and is highly regarded in the U.S. and often times the rights of other individuals, like being free from discrimination.[4] A main reason that European Countries, like the Netherlands, limit hate speech traces back to 1945 and the influence of the Nazi ideology.[5] The Netherlands approach to human rights since 1945 have been highly influenced by the effects of the holocaust and is a step to answer to the crimes that the Nazi’s committed against individuals.[6] The Netherlands approach is shadowed by many European Countries.[7] For example, the European Union passed laws criminalizing denial of the Holocaust and other hateful speech in 2007, which has been implemented in 13 of the 28 member states.[8]

Analysis

How a country deals with hate speech is highly influenced by “collective concerns [of the nation] and other values such as honor and dignity.”[9] The notion of limiting speech is a foreign and often disregarded idea in the United States because the U.S. Constitution highly emphasizes individualism.[10] While the United States tends not to limit hate speech, other countries have taken steps to punish, ban, and limit hate speech.[11] For example, the Netherlands does not shape its freedom of speech law around individualism and libertarianism, but rather around protecting human dignity and rights.[12] European Countries believe that not limiting hate speech will lead to the promotion of violence, terrorism, or a path that leads to disregarding human rights.[13] The crux of the different approaches to limiting hate speech is an individual’s right to express beliefs versus the right of an individual not to be the subject of discrimination.[14] It is apparent that the United States believes in the marketplace of ideas and that bad ideas will be trumped by good ideas. However, European Countries take the position that the marketplace of ideas is not always successful, thus certain harmful speech should be prohibited or limited.

One layer of human rights law in the Netherlands is the idea that racist and hate speech should be limited under different conditions proscribed by law.[15] European free speech is based on the contention that free speech is important, but is not absolute and should be balanced against other important rights, including human dignity.[16] While each European country makes its own laws, the UN covenant on Civil and Political Rights was adopted in 1966 and legitimized hate speech laws throughout Europe.[17] The stand that the Netherlands takes on hate speech can be illustrated by the fact that it is criminal to sell Mein Kampf, Adolf Hitler’s autobiography.[18] The recent Charlottesville event, where individuals proudly displayed swastika flags would not have been legal or accepted in the Netherlands.[19] Furthermore, Geert Wilder, a far-right politician, was convicted for hate speech and inciting discrimination.[20]

The idea of prohibiting hate speech is rooted in European history. Proponents of limiting hate speech believe that the free marketplace of ideas can fail, leaving a group of individuals vulnerable and exposed.[21] The concern about hate speech is that dangerous ideas can spread like wildfire.[22] The Netherlands wants to prevent toxic ideas from spreading that could harm society.[23] Furthermore, when the government does not take actions to police dangerous ideas, the burden falls on the individuals, which results in harsher views from individuals.[24] “In an unregulated marketplace of ideas, private citizens need to take up the burden of holding the line against racist extremism.”[25]

There are some opponents of criminalizing hate speech. The opponents of such action believe that it may be counter-productive to addressing racial intolerance in the Netherlands and other countries.[26] The opponents argue that restricting speech and expression that harm other individuals’ feelings is a dangerous and slippery slope that is subjective and shuts down the idea of discussion and the marketplace of ideas.[27] Another issue with hate speech laws are used as a way to enforce one groups’ “social norms” onto the society as a whole.[28] Speech should be diverse and not restricted simply because it is offensive to a specific group of people.[29] Furthermore, opponents feel that the government’s restrictions on hate speech is a way to babysit the citizens and is not what the government is in place to do.[30]

Conclusion

            In conclusion, the Netherlands takes the stand that the government should be allowed to limit hate speech in order to protect the human dignity of citizens. On one side of this argument, proponents believe that limiting hate speech is important because the marketplace of ideas fails and prohibiting hate speech is appropriate.[31] On the other side of this argument, opponents believe that limiting hate speech is simply arbitrary and it heavily infringes on the marketplace of ideas, which opponents believe is successful.[32] A major reason the Netherlands has taken the stance on hate speech that is has is because it is trying to correct the mistake of Europe’s past.[33] Specifically, it is trying to atone for the past wrongs of individuals, stemming from the Nazi ideology and the Holocaust.[34] Part of the Netherland’s human rights laws includes laws about prohibiting and limiting hate speech to prevent history from repeating itself.[35] This idea may seem barbaric to the United States and opponents of pure freedom of speech, but it has been successful in the Netherlands and is a way to ensure that all vulnerable populations are equally protected.

[1] Hadweina Snijders & Ruth Wood, The Criminalization of Hate Speech in the Netherlands, Humanity in Action, https://www.humanityinaction.org/knowledgebase/294-the-criminalization-of-hate-speech-in-the-netherlands.

[2] Id.

[3] See Michel Rosenfeld, Hate Speech in Constitutional Jurisprudence: A Comparative Analysis, Public Law Research Paper No. 41 1, 2-3(2001).

[4] See id at 3.

[5] Snijders & Wood, supra note 1.

[6] See Rosenfeld, supra note 3, at 3.

[7] Mila Versteeg, What Europe Can Tech America About Free Speech, The Atlantic, (Aug. 19, 2017), https://www.theatlantic.com/politics/archive/2017/08/what-europe-can-teach-america-about-free-speech/537186/.

[8] See id.

[9] Id.

[10] Snijders & Wood, supra note 1.

[11] See generally id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16]Versteeg, supra note 7.  

[17] Flemming Rose, The Problem with Hate Speech Laws in Europe, El Pais, (June 30, 2017), https://elpais.com/elpais/2017/01/30/inenglish/1485772786_432779.html.

[18] Versteeg, supra note 7.

[19] Id.

[20] Netherlands: Wilders’ ‘hate speech’ conviction will not advance tolerance, Article 19, https://www.article19.org/resources/netherlands-wilders-hate-speech-conviction-will-not-advance-tolerance/ [hereinafter Hate Speech].

[21] Versteeg, supra note 7.

[22] Id.

[23] See id.

[24] Id.

[25] Id.

[26] Hate Speech, supra note 20.  

[27] Id.

[28] Rose, supra note 17.

[29] Id.

[30] See id.

[31] See Versteeg, supra note 7.

[32] See Hate Speech, supra note 20.

[33] See Rosenfeld, supra note 3, at 3.

[34] See id.

[35] See generally id.