No "Content Neutrality" in Belgium

A group of concerned Danish, British, and German citizens planned to stage a demonstration entitled "Against Islamisation of Europe" on September 11th, 2007, in front of the European Parliament buildings in Brussels, Belgium. The demonstration was intended to protest the spreading of Islamic sharia law across the European continent and honor the victims of the 9/11 terror attacks.

But Brussels, which also happens to be the seat of both the European Union and NATO, was unfriendly to the idea. On August 9, 2007, Freddy Thielemans, the mayor of Brussels, banned the demonstration, on the basis that the demonstrators were coming to Brussels on September 11, stating:
“First and foremost the organizers have chosen the symbolic date of 9/11. The intention is obviously to confound the terrorist activities of Muslim extremists on the one hand and Islam as a religion and all Muslims on the other hand. […] Such incitement to discrimination and hatred, which we usually call racism and xenophobia, is forbidden by a considerable number of international treaties and is punished by our penal laws and by the European legislation. The European Court of Human Rights has repeatedly pronounced judgments condemning this type of acts.”

The organizers decided to appeal the mayor's decision in court. They were armed with strong precedent, too: Five years earlier, Belgian courts had prevented the mayor of Antwerp, Belgium, from banning the demonstration of a pro-Islamist group. It would make sense to apply the same logic to proponents of the other side of the argument, right?

The Belgian court didn't think so. It upheld the mayor's ban yesterday, stating that the organizers cannot prove "irreparable damage" from the mayor’s decision not to allow them to demonstrate on 9/11. I have not seen the actual court opinion yet, but considering the symbolic value of 9/11, and the nature of the content of the protest, the protesters would seem to have a pretty good case for irreparable damage. Moreover, if the rationale of the court was simply that a ban on that specific date would not yield irreparable damage, did it allow for rescheduling on September 12, 2007? After all, Mr. Thielemans' justification seemed broader than that -- he stated very specifically that he found the demonstration's subject to be objectionable.

The next time someone accuses the U.S. of being a fascist country, remember how significant it is that we retain First Amendment rights, while some of our Western European allies are increasingly losing sight of the importance of such rights.* Though our Supreme Court has allowed restrictions to be placed on the "time, place, and manner" of demonstrations here, there has been a strict adherence to the requirement that such regulation must be "content-neutral," i.e. that the regulation not discriminate among points of view. It was this concept that famously (or rather, infamously) won the Nazis the right to demonstrate in the highly Jewish-populated area of Skokie, Illinois in 1978. In his opinion, Judge Bernard M. Decker described the reasoning behind this principle of free speech:
"It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear ... The ability of American society to tolerate the advocacy of even hateful doctrines ... is perhaps the best protection we have against the establishment of any Nazi-type regime in this country.
The right to free speech is at its core the right to communicate ideas that have the potential to persuade and inform people through the content of one’s message. Oftentimes a message that is effective in being persuasive is also effective in offending those who oppose it.

* However, I don't want to overstate my case here. Our constitutional law on free speech is far from perfect. The text of the First Amendment states, in no uncertain terms, that "[c]ongress shall make no law. . . abridging the freedom of speech. . .or the right of the people peaceably to assemble." Our Supreme Court has interpreted that to mean that Congress may make a law restricting speech in the public forum on the basis of content where (1) the restriction serves a compelling state interest and (2) there is no way of serving the interest that is less speech-restrictive. Despite these shortcomings, at least the burden is on government to justify its actions, as opposed to the Belgian case discussed above. In addition, the burden is difficult to satisfy -- it's known as "strict scrutiny," and it is the highest level of scrutiny applied by the courts.