The Politicisation of Hate Speech Bans in the Twenty-first-century Netherlands: Law in a Changing Context

Abstract

In the past decade, the intense debate about multiculturalism and immigration has led to a questioning of the limits of criminal law on hate speech in the Netherlands. The freedom of expression/hate speech dilemma, with its delicate relationship between freedom of expression, non-discrimination and freedom of religion, has itself become a battle ground in public discourse about multiculturalism. This paper seeks to analyse how legal developments around hate speech bans in the Netherlands (in legislation, case law and prosecution policy) have interacted with sociopolitical changes in a multicultural society in the twenty-first century, and how hate speech bans have become politicised. It will show how developments in the Dutch ‘free speech v. hate speech’ debate have led to contestation over fundamental rights and the role of the judiciary versus the legislature, now that the judiciary is being called in to regulate a sensitive sociopolitical conflict. The paper also shows how since 9/11 there has been an ‘asymmetrical’ use of hate speech bans, to protect the majority against radical minorities, and examines what this implies in terms of the ‘militant democracy’ idea. Asymmetry is also apparent in the way freedom of speech functions in public debate, where many use the free speech argument rhetorically as the right to ‘say what they think’, but do not necessarily grant the same right to their adversaries.