Marci A. Hamilton

Why British Authorities Made an Error

When They Refused Entry to Dutch Legislator Geert Wilders, Based on His Extremist Views on Islam and Terrorism

By MARCI A. HAMILTON


Thursday, Feb. 19, 2009

Last week, British authorities turned Dutch legislator Geert Wilders away from their borders because of his extremist views on Islamicism. Wilders is responsible for the short film Fitna, which juxtaposes verses from the Koran with images of terrorist bombings and violence. In the Netherlands, he would like to ban the Koran as a "fascist book" and forbid the construction of mosques. British authorities explained their action by saying that allowing him to enter would"threaten community harmony and therefore public safety."

There is no question that Wilders's views are disgraceful and offensive, but the British decision is a serious blow to global liberty. Britain admitted that it acted as it did because it feared upheaval from the Islamicist community in response to Wilders and his far-right views. This is the epitome of the "heckler's veto," where those offended by the message are permitted to use their disapproval to prevent speech they do not like.

There is no question that free speech principles are not absolute and that governments may appropriately forbid terrorists from entering a country's borders. But Wilders is not a terrorist; he is a hatemonger. And when governments try to avoid hypothetical violence (on the part of the audience, not the speaker) by suppressing pure speech, they cross the line.

The Heckler's Veto: Accepted by the U.S. Supreme Court, But Only in Narrow Circumstances

The United States Supreme Court introduced the concept of the "heckler's veto" in Feiner v. New York. The case arose when Irving Feiner, then a student at Syracuse University, was holding forth in a public park on political matters, and in response to mild threats from the audience, the police arrested Feiner. The case came to stand for the proposition that if the police fear a potential riot, they can remove the speaker. However, the Court has never extended Feiner beyond its facts, where the police are on the scene, directly gauging the live response. In contrast, the British authorities turned Wilders away on the theory that his views would be disruptive in some future, undetermined place, at some possible time.

The Wilders situation is thus more similar to National Socialist Party of America v. Skokie. There, the Illinois Supreme Court found a First Amendment violation where the Chicago Park District tried to require that a large bond be posted (to cover potential damages) before a Neo-Nazi group could hold a march. Such a bond had not been required of other marchers. Victims of the Holocaust asked that the march not be permitted, and that the Nazi swastika not be permitted to be displayed, but they lost on both counts, despite the extraordinary offensiveness of the march and the symbol.

Britain Should Not Have Excluded Wilders From Entry Based on Speculation About Possible Future Incidents

Although Britain lacks a First Amendment, it nevertheless possesses some free speech values, and they should have been invoked here. Without a percolating riot or imminent illegal action, Britain should have permitted the anti-Islamicist Wilders to enter the country, express his views, and learn that the vast majority of Britain finds his views reprehensible. It would have been a classic case of permitting the venting of extreme views in order to defuse them.

Had individuals or groups threatened violence against Wilders, they would have been properly subject to arrest. Moreover, it would have been perfectly legal for police to attend public speeches by Wilder in order to keep the peace. The British government might also have offered Wilders security protection. While his views are appalling, violence against him would not just be attacking the views, but also his right to safely voice them – a right Britain could legitimately opt to protect. In short, there were many solutions the government could have chosen, short of simply excluding Wilders from the country.

Not only a Free Speech Controversy, But a Threat to Church/State Separation

Ultimately, the problem here is not just that free speech and public debate were sidelined, but also that a religious viewpoint was permitted to drive government censorship. Virtually all religious entities hold views that will cause them to object to some public speech or position. For instance, the Roman Catholic Church does not approve of abortion or the death penalty. And a multitude of right-leaning religious groups disapprove of homosexual unions and marriages. That does not mean, however, that either can determine what will be discussed in the public square. Those who disagree with controversial speakers can debate, but they cannot riot, nor can they physically threaten those with whom they disagree. Imagine if, in the U.S., the government barred entry to foreign pro-choice, pro-life, pro-gay-marriage, or anti-gay marriage speakers simply because it predicted their words would spark violence somewhere, at some time.

In the United States, the Establishment Clause is intended in part to keep religious entities from setting public policy unilaterally, according to their particular world views. One of the most disturbing aspects of the Bush Administration was its willingness to permit particular, unfiltered religious viewpoints to determine public policy. That was a betrayal of the role of the federal government.

The Establishment Clause, if properly enforced, should foreclose mistakes like those committed by the British against Mr. Wilders from ever occurring in the United States. Why did the Framing Generation embrace the Establishment Clause? It was decidedly not because, as some have recently tried to argue, they simply hoped to protect religious liberty. Quite to the contrary, the Establishment Clause reflects their knowledge (especially James Madison's) of Europe's long and sordid history of abuse of political power by religious entities. No one should underestimate the willingness of religious entities to take whatever power they can if it serves their religious universe, without reference to the larger public good. This is a harsh, but a necessary insight, if we are to be protected from government overreaching under the influence of religion.

There is no more apropros philosopher at this time than Friedrich Nietzsche. He fundamentally understood and identified the "will to power" that leads humans to turn religious institutions into vehicles of domination. In the end, the problem is not religion, but rather human nature.

Regardless of their beliefs, Islamicists should not be permitted to silence public debate, even when they are the subject and even when the message is noxious and wrong. The same principle applies to bishops, rabbis, and patriarchs as well. Britain has set a very bad example in the Wilders case – one that the United States would do well to examine closely, so that it is not repeated here.



Marci Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback.

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