Balancing freedom of expression and non-discrimination
image: Wikimedia Commons
Can politicians say whatever they want? What is the limit and when can the Public Prosecution Service act? PhD candidate Jip Stam examined the limits of free speech in criminal law. 'Intervening too soon can threaten democracy and the rule of law,' he warns.
Wilders’ ‘fewer Moroccans’ statement
‘Do you want more or fewer Moroccans?’, Geert Wilders, founder and parliamentary leader of the Dutch Freedom Party (PVV), once asked supporters at a party rally on the evening of the election results in 2014. The public chanted ‘fewer, fewer’, to which Wilders replied: ‘we’ll take care of it’.
It prompted thousands of people to press charges claiming discrimination, after which the Public Prosecution Service decided to prosecute the politician. Eventually in 2020, Wilders was convicted of group defamation, a judgment that was upheld at the Supreme Court. The highest court in the Netherlands ruled that Wilders and his 'fewer Moroccans' statement ‘incited intolerance’ towards a certain minority in the Netherlands. The verdict was that as a politician, he should have known better.
This ruling by the Supreme Court was the starting point for Stam’s research into freedom of speech and the question of when politicians’ statements are liable to punishment for group defamation or incitement to hatred or discrimination.
The role of politicians in public debate
Politicians fulfil a special role. Stam explains: ‘They are the elected representatives of the people and must be able to express themselves freely in that position. At the same time, they represent all Dutch people – including minorities. If they speak negatively about minorities such as people with a certain skin colour, origin or ethnicity, or their right to be in the Netherlands, it can have an impact on those groups. The right to freedom of expression can clash with the right not to be discriminated against.’
'Politicians often appear in the media and serve as role models for many people’
The special position of politicians also brings extra responsibility with it. Stam: 'Their words can have a major impact, precisely because politicians often appear in the media and serve as role models for many people.'
Politically motivated prosecution
Politicians must find a balance between what they do and do not say. When they attack a particular group, they are walking on thin ice. But, warns Stam, even if a statement is in bad taste, that does not necessarily mean it is illegal under criminal law. 'It is understandable that criminal law is used with good intentions to protect minorities. But it remains a far-reaching measure: public authorities are intervening to punish undesirable behaviour.'
According to Stam, there is a risk that the state will restrict expressions of opinion on arbitrary grounds – for example, from political opponents or from minorities that the government considers undesirable at the time. 'Intervening too soon can threaten democracy and the rule of law.'
'The “fewer Moroccans” statement wouldn’t be a criminal offence in the United States'
Stam: 'Because of the risk of politically motivated prosecutions, public statements in the United States, for example, can go very far. Actually, only expressions that directly incite violence are a criminal offence there.' He therefore argues that Wilders' 'fewer Moroccans' statement would not have been a criminal offence in the United States. 'Only if Wilders had said "then let’s catch them" or words to that effect, would an American judge have considered it to be criminal incitement to violence.'
The legacy of the 9/11 attacks and the murders of Pim Fortuyn and Theo van Gogh
In the Netherlands, therefore, there are more limits to freedom of speech than in the United States. However, the spirit of the times also has a clear influence on what is punishable. According to Stam, more can be said today than in the past. He recalls the conviction of Hans Janmaat, a right-wing nationalist politician in the 1980s and 1990s. 'That went really far; his conviction would no longer be handed down so quickly today.' In 1997, Janmaat was convicted for inciting discrimination against foreigners because of their race. Stam explains: 'That was because of his statement: "As soon as we come to power, we’ll abolish the multicultural society."'
Since the late 1990s, the courts have become far more lenient as a result of developments in society, Stam notes. '9/11 and the murders of Pim Fortuyn and Theo van Gogh had a lot to do with this,' he says. 'Fortuyn was murdered for his political views, Van Gogh for his sharp criticism of Islam. These events heightened the debate about the multicultural society and emphasised the importance of protecting freedom of expression.'
For example, Wilders was taken to court in 2011 for other statements he had about Muslims. 'He was acquitted of that, even though his statements went further than those of Janmaat.'
How freedom of expression develops in the future partly depends on how society changes. Stam: 'But ultimately, it’s politics that decides how criminal law develops. My research shows that it would be beneficial to review these laws again to clarify which expressions of speech are punishable and which are not.'
Stam defended his dissertation ‘Freedom of speech and the suppression of discrimination in the Netherlands: a constitutional-developmental approach’ on 12 November 2025. Before the defence ceremony, Stam gave a lay talk which you can read here (in Dutch). The English summary of his dissertation is available here.