It has been a weird week for fans of the First Amendment. In two distant land two controversial personalities have tested exactly what are the limits of civil discourse. Unless you are a compulsive news junky with feeds from multiple news sources ( guilty as charged your honor) nether Fred Phelps or Geert Wilders will be a name that causes any neurons to fire.
Actually they are very similar in the fact they happen to be very outlandish, very radical and very irritating. They are basically bomb-throwers, disturbers of the peace. Let us start with the dandy Dutch MP since most people in the U.S. would not know this guy from the lad that sits on the paint can.
Geert Wilders is a far-right politician who has caused the good people of the Netherlands more problems than Tulip collapse of 1637. He is the man behind the film Fitna; the film many consider to be anti-Islamic propaganda and hate speech. As a matter of fact that is why Mr Wilders is in the news. He stands accused of fomenting hate speech. In the Netherlands that is a crime.
Mr Wilders had made no secret of his dislike for Islam, and his with wish that every last Muslim depart the Netherlands for somewhere less European. He has championed Burqa bans, a halt to Mosque construction, a freeze on immigration (especially if the immigrant happens to be Islamic), and other bits of unfriendly suggestions about the followers of Muhammad.
These and other bits of excessive enthusiasm have landed good old Geert in criminal court. And court is Fred happens to be now also. Fred being Fred Phelps.
On this side of the Atlantic, the U.S. side, Mr. Phelps is every bit, if not more controversial. Fred Phelps is the leader of an ultra small, ultra conservative, ultra evangelical church in the beating heart of the bible belt; Topeka, Kansas. This the man who though it would be a dandy idea that he ,and his congregants, protest the funerals of service members. Fred has the notion that those men and women died because God wants to punish us for the great sin of THE GAY. This is the man who proudly proclaims that God hates fags.
Both these men bring into real life the usually philosophical questions of free speech. In short, the question becomes how much of jerk can you be before you loose your right to free speech. Exactly were is the line between obnoxious and toxic?
In the U.S. the Supremes have cut out exceptions to free speech. There is the “clear and present danger” exemption, there is also the notion of “fighting words.” Most people are familiar with the notion of fire in a crowded theater. Unfortunately that particular example, or argument is a MacGuffin. When Oliver Wendell Holmes Jr. tossed out this canard in the Schenck case. (The exact quote “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic.” ) he was being disingenuous. Shouting fire is no more speech than the profanity you may utter when you stub your toe. Shouting fire is to raise an alarm, it is utterance that communicates danger. It is a one way communication sent directly to the lizard brain. It is no way an attempt to communicate, to inform, to debate or to explain. Holmes used the example to justify the court’s ruling against WWI protesters.
So if Fred is not really falsely shouting fire in theater, are his words still so inflammatory that they must be suppressed? He is an obnoxious little cockroach, but does that allow the government to step on him? In Phelps’ case, no. Granted that’a a bitter pill to swallow, especially for the bereaved relatives of the slain; but free speech is often rather ugly. Phelps fits very comfortably in the meme of a tiny group of neo-Nazis protesting in Jewish Skokie, Illinois. Ours is great country because small collection of vicious jerks are allowed the same right of speech that our more erudite citizens are.
Geert is a different matter all together. He is not some leader of a small literally inbred cult; he is a politician with real pull and real power. He is the tip of the spear of an assault on some of the most cherished democratic norms in Europe. In him we can see the outlines of a conflict between the freedom of speech and the freedom of religion. Exactly how does a post-modern nation deal with the contradiction of using one freedom being used to suppress another?
We find once again the maxim that your freedom to swing your fists ends at my nose to be most useful. Geert is swinging his fists quite vigorously, and with possible bad intent; but for the moment no real damage is being done.
Criminalizing Geert Wilders would do more harm than good. It would make him a martyr to the very Iislamophobes that support his thinking. Holland needs to come to grips with the facts on the ground. A new barbarism is rising in Europe, a new tribalism, and Mr. Wilders is merely a symptom of the disease not its cause.
Tying to legislate against people like Wilders and Phelps is bad idea. Bad ideas are one of the foremost causes of bad law. Both Holland and the USA appear to be headed down the path of bad law.
Unfortunately the Supremes seem to be headed down that path of bad law. They will attempt to find some bogus cut-out to the first amendment with which they can slap Phelps and company down. Holland also seem to be working feverishly for a similar “solution” for Mr. Wilders. The outcome of these efforts will be a terrible precedent.
It may sound ironic but we must have a little faith here. We must hold firm to the great secular faith first outlined by Enlightenment thinkers. It is clunky, kludgy construct who’s only advantage is that is slightly less dysfunctional than every thing else us hairless apes have attempted. That faith is that more speech is better than less, that eventually good ideas will triumph over bad ones as long as discussion is full and free. It often does not work out that way, but tell me of faith that is 100% correct in its prognostications. Full, free and vigorous speech is always better than the alternative. To secure the blessings of liberty you have to put up with quite a few verbal bomb-throwers. Fred and Geert are, by there very existence, guarantors of our freedoms; let them speak.