The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
"Should there be more or fewer immigrants from Muslim countries to the U.S.?" It's an important question—as all questions about immigration are (because when you let in immigrants, you are letting in your future rulers). One can certainly argue that immigration laws shouldn't turn on the religion of the immigrants, or on the religion of the majority in the immigrants' home country. One can indeed argue that the Free Exercise Clause forbids such religious considerations. But one can also argue the opposite; the Supreme Court has generally allowed the federal government extraordinary latitude in choosing who can come into the United States.
And even if the Free Exercise Clause is properly understood as barring such discrimination, the Constitution can always be amended. Answering the "Should there be …?" question would be necessary to deciding whether such an amendment is called for (if an amendment would indeed be required). One way or another, Americans should decide which foreigners they will share the country with.
All this should, I hope, be uncontroversial—and yet leading Dutch politician Geert Wilders has just been criminally convicted for asking this very question in the Netherlands, with regard to Moroccan immigrants, and suggesting that the answer should be "fewer." From Friday's Post (Karla Adam):
A Dutch court found anti-Islam politician Geert Wilders guilty Friday of insulting an ethnic group and inciting discrimination after he led chants against Moroccans. …
In March 2014, Wilders sparked outrage at a rally in The Hague after asking supporters whether they wanted more or fewer Moroccan immigrants in the Netherlands.
The crowd chanted: "Fewer! Fewer!" Wilders responded, "We're going to organize that." More than 6,400 people filed official complaints to the police, a sampling of which were read out in court. …
Wilders was not fined or otherwise by the court, which said that "the conviction was punishment enough." But future speakers, especially ones who are less politically prominent, have no assurance of such forbearance.
This means that, according to the Dutch government, Dutch citizens aren't allowed to forthrightly debate the matter, and to question egalitarian doctrine on the subject. Recall that the Netherlands has a population about one-twentieth of the U.S. population. What to us may be a small wave of immigration may to them be a deluge that fundamentally transforms Dutch culture and society, including the Dutch legal system. Perhaps such changes would be good. Perhaps, even if they are bad, they should not be resisted using in immigration policy. But "shut up about it, or we'll prosecute you" is not an acceptable answer to people asking questions about what is to be done.
We should also remember incidents such as this when we hear calls for changing American free speech law to track the European model (see, e.g., here). The Wilders case is precisely what such proposals would lead to—the Dutch, and Americans, losing the ability to even discuss what is to be done about the future of their countries, when the discussion runs afoul of whatever orthodoxy the government has set up.