On March 2nd, 2017, the EU parliament voted to strip French presidential candidate Marine Le Pen of her parliamentary immunity for a tweet she made in December 2015, featuring three graphic images of ISIS executions.

One of these images featured the murdered American journalist James Foley, and after substantial media backlash and condemnation by members of Foley’s family, Le Pen was accused of distributing violent images that undermined “human dignity.” Though her tweet was prohibited under Article 227-24 of France’s Penal Code, her status as a member of the European Parliament protected her from being put on trial for violations of free speech. However, she can now be tried in French courts and, if convicted, faces up to three years in prison and/or a maximum fine of €75,000 ($79,000). Le Pen has characterized this vote as a “political inquiry” linked to her anti-immigrant, anti-E.U. party platform, intended to undermine her before the French election on April 23rd.

Many factors contribute to a populist leader and party’s success. However, there is an alarming link between political trials and rising support, as measured by popularity polls and election predictions and results. For example, Le Pen has faced and became more popular after a previous prosecution. In September 2013, the EU lifted her parliamentary immunity, and allowed four anti-racism and human rights groups to raise a case against Le Pen, under the claim that she had “incited discrimination, violence, or hatred towards a group of people on the basis of their religion.” This case was tied to her comment during a rally in 2010 in which she described Muslims praying on the streets as an act similar to Nazi occupation during World War II.

When the trial started in October 2015, historian Jean Garrigues predicted that Le Pen would use the publicity from the trial to garner more support. In line with his prediction, Le Pen’s presidential support rating rose 2 percent from August to November 2015, and she was able to use the trial to portray herself as the subject of “judicial persecution.” On December 15th, 2015, state prosecutors acquitted Le Pen, noting that she spoke about a “minority” of Muslims rather than the entire community, so her words were not legally considered hate speech.

Populist leader Geert Wilders, who heads the anti-immigrant Party for Freedom (PVV) in the Netherlands, similarly became more popular after he was found guilty of hate speech in 2016. The Maurice de Hond Institute noted that predictions about the number of seats the PVV would receive rose from 27 before the trial to 34 once Wilder’s trial began, which suggests that providing Wilders with a platform to defend his views legitimized his candidacy and increased popular support for his party.

Wilder’s 2016 trial was based on a speech he had made in 2014, wherein he asked his supporters if they wanted to let in “fewer or more Moroccans,” and replied to the audience’s confirmation by saying, “We’ll take care of that.” This comment conveyed the same anti-Muslim sentiment he had been prosecuted for in 2011, when he compared the Koran to Hitler’s “Mein Kampf.”

Judges acquitted Wilders in 2011, noting that he criticized the religion of Islam rather than its believers. In contrast, Wilders was found guilty of inciting hatred in 2016, because his 2014 remarks about Moroccans were considered attacks on a specific minority. In response to his 2016 verdict, Wilders said, mirroring Le Pen’s claims of “judicial prosecution,” that his trial was a “charade” and that judges had “restricted the freedom of speech for millions of Dutch people.”

In the most recent Netherlands election, Wilders lost the position of prime minister to Mark Rutte, leader of the center-right VVD party. The surge in popularity from Wilder’s trial was not enough to propel him to a major win, but Wilder’s PVV party gained 13.3 percent of the vote and 20 seats—5 more than the 15 they had in 2012. In contrast, the VVD not only lost eight of the seats they had in 2012, but also adopted components of Wilder’s anti-immigrant rhetoric to attract votes. Support for populist politicians and parties has continued to rise, and a popularity boost for Le Pen due to a trial could still increase her chances of winning the presidency.

Both Wilders’ and Le Pen’s trials illustrate the problems with using trials to limit hate speech: persecution not only provides populist politicians with a platform to air their grievances, but also validates a pernicious narrative—that far-right politicians and parties are victims of political elites who seek to silence them. Individuals like Wilders are able to frame attempts to silence him as attempts to silence the opinions of all his supporters. Thus, those who oppose Le Pen should be wary of attempting to prosecute her again, if they truly wish to diminish her popularity and power.

Image Credit: Rémi Noyon/Flickr

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