Free Speech

Netherlands Prosecuting Man for Insulting Turkish President Erdogan

The insults were in e-mails sent to the Turkish embassy.

|The Volokh Conspiracy |

NLTimes.nl (Janine Pieters) reported last week:

In one email he wrote: "Erdogan, you fucking goat fucker, burn in hell." An attachment added to the email showed Hitler and Erdogan, with a swastika between them and the text: "There's no difference". In another email he said: "Erdogan takes the whole world hostage with his pernicious ideas. More than seventy years ago, a similar dictator made exactly the same mistake. I regret the Turkish people with this idiot, you do not deserve better."

According to the newspaper, the Dutch man is facing charges of insult, insulting an official, and insulting a friendly head of state.

Hurriyet Daily News [Turkey] had a similar story.

I should note that American law was sometimes seen as authorizing similar prosecutions back in the day under the rubric of criminal libel law, though usually by states rather than by the federal government. Truth was not an absolute defense, and the rationale for the prosecutions was often that such statements insult foreign countries and thus threaten to damage peaceful relations with other countries; for a mix of quotes on the subject as of 1887, see Wharton's Digest of the International Law of the United States.

A prominent early opinion supporting such speech restrictions came in a grand jury charge by Pennsylvania Supreme Court Justice Thomas McKean, aimed at William Cobbett, who was accused of libeling the King of Spain and the Spanish ambassador (Spain was then in the pocket of Napoleon's France):

At a time when misunderstandings prevail between the Republic of France and the United States, and when our General Government have appointed public ministers to endeavour to effect their removal and restore the former harmony, some of the journals or newspapers in the city of Philadelphia have teemed with the most irritating invectives, couched in the most vulgar and opprobri­ous language, not only against, the French nation and their allies, but the very met in power with whom the ministers of our country are sent to negociate. These publications have an evident tendency not only to frustrate a recon­ciliation, but to create a rupture and provoke a war between the sister Repub­lics, and seem calculated to vilify—nay, to subvert,—all republican Governments whatsoever.

Impressed with the duties of my station, I have used some endeavours for checking these evils, by binding over the editor and printer of one of them—licentious and virulent beyond all former example—to his good behaviour; but he still perseveres in his nefarious publications. He has ransacked our language for terms of reproach and insult, and for the basest accusations against every ruler and distinguished character in France and Spain, with whom we chance to have any intercourse, which it is scarce in nature to forgive. In brief, he braves his recognizance and the laws. It is now with you, gentlemen of the grand jury, to animadvert on his conduct; without your aid it cannot be cor­rected. The Government that will not discountenance, may be thought to adopt it, and be deemed justly chargeable with all the consequences.

Every nation ought to avoid giving any real offence to another. Some me­dals and dull jests are mentioned and represented as a ground of quarrel be­tween the English and Dutch in 1672, and likewise caused Louis the XIV to make an expedition into the United Provinces of the Netherlands in the same year, and nearly ruined that Commonwealth.

We are sorry to find that our endeavours in this way have not been attended with all the good effects that were expected from them; however we are de­termined to pursue the prevailing vice of the times with zeal and indignation, that crimes may no longer appear less odious for being fashionable, nor the more secure from punishment for being popular.

The grand jury declined to indict Cobbett, but McKean had required Cobbett to put up a bond, and there were complicated further legal proceedings in Pennsylvania as a result; Wharton in the 1870s seemed to think that McKean's view was legally sound, and indeed in 1909 one Carlo de Fornaro, apparently a prominent cartoonist, was convicted of libel for his harsh criticisms of a prominent Mexican politician, delivered in the course of a general criticism of Mexican leader Porfirio Diaz.

I'm pleased to say, though, that American law has turned sharply against attempts to punish speech that insults or even defames foreign political leaders; the old libel rules wouldn't survive New York Times Co. v. Sullivan (1964) and later cases. A foreign leader could presumably still bring normal civil libel suits, but would have to show not just insults but false statements of fact said with knowledge that they were likely false. (In theory, the states that still recognize criminal libel law could also bring criminal prosecutions in similar situations, with the same required showing, though they would also have to prove the case beyond a reasonable doubt; but I know of no successful prosecutions related to libels of high foreign officials—or of high American officials—n the last 50 years.) I'm sorry to see that the Netherlands' view is less protective of its citizens' speech.

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  1. It is my understanding that Erdogan prefers kittens, for size compatibility reasons.

    1. A case like this foreshadows things to come here should we ever let the progressives back in power.

      1. Regardless if who’s in power, let us hope that NYTimes v. Sullivan is overruled and that criminal libel laws are reenacted throughout our great nation. Clearly there is no excuse for offending a foreign head of state, and those who do such things deserve to spend time in jail, just like those who libel university presidents by sending out inappropriately deadpan tweets in their names. Would Eugene be “pleased” if such insidious tweets were considered “protected speech”?

        It’s of course quite another thing if the tweets explicitly make it clear that they are only intended as lightly comedic parody, of if they are “puerile” enough to escape prosecution, or if they convey a “message” acceptable to our distinguished appellate judges (or, in some instances, even to Eugene himself). Anything else is like randomly shooting a gun out there in the air, and should be strictly forbidden due to the severe offense and embarrassment so likely be caused. See the Second Circuit’s lucid reasoning and the distinctions it draws between the texts of various Gmails in our nation’s leading criminal “satire” case, documented at:

        https://raphaelgolbtrial.wordpress.com/

        1. For a more balanced look at the Raphael Golb case, see
          https://en.wikipedia.org/wiki/People_v._Golb

          The courts got it right. Satire is fine, but identity theft is not.

      2. LOL yeah remember the Progressive Purges of ’52 and ’77, bodies in the streets, blood flowing into the storm drains, people hung on inverted crosses because they said “republicans are cool” , I remember it, Pepperidge farms remembers it too.

  2. Would these qualify as fighting words?

    1. The “fighting words” exception is limited to “face-to-face words plainly likely to cause” an immediate fights. Words addressed to a national leader e-mailed to an embassy wouldn’t qualify. (But, yes, if you go up to someone, politician or not, and call him a “fucking goat fucker” to his face, then that might constitute fighting words.)

      1. But isn’t the absolute truth an appropriate defense?

        1. Under US law? Yes. For almost all of history and/or in almost any other country? No, truth is no defense at all.

          1. it’s a defense to libel and slander, is it a defense to fighting words laws?

      2. Thanks for the clarification.

  3. “the basest accusations against every ruler and distinguished character in France and Spain, with whom we chance to have any intercourse, which it is scarce in nature to forgive”

    Intercourse? Is this where the goats come in?

    1. I’m certain that this gentleman was merely pointing out that Erdogan was someone whose accomplishments were overshadowed by a single mistake.

      1. “I am a strong leader, but do they call me Erdogan the Strong? No.

        “I strike fear into my enemies, but do they call me Erdogan the Terrible? No.

        “But screw just one goat…”

        1. No true Turkman.

        2. Do they call me McGregor the bar builder? https://www.youtube.com/watch?v=KxDwieKpawg

          1. Wow, they should release a “best of the TED talks” album. Everyone will get smarter.

  4. Remember, the US has “problems” with free speech and all. Not Europe. Don’t look over there. The problems are ALL over here.

    1. Why do people always talk about Europe as if it was one single nation?

      1. Because Europe wants to present itself as a unified front, arrayed against the barbarism of the colonies and terra incognita (that’s where the non-Indo brown people live).

      2. It’s not like there are European countries with robust speech protections as is.

      3. Because of the European Union compacts, EU law supercedes national laws, and crap like this often happens. They would rather give up free speech than make a dictator feel uncomfortable.

  5. >”Truth was not an absolute defense, and the rationale for the prosecutions was often that such statements insult foreign countries and thus threaten to damage peaceful relations with other countries; for a mix of quotes on the subject as of 1887, see Wharton’s Digest of the International Law of the United States.”

    Even though it isn’t an absolute defense, what is level or type of truth are we talking about? This case alleges that someone compared Hitler and Erdogan, writing “[t]here’s no difference” between them. Because of the exaggerated “no differences,” the statement is false. And regardless of many perceived similarities, there are many differences. Just to name one: Hitler was an Austrian politician while Erdogan is a Turkish politician.

    And thank you for the link to Wharton’s Digest. I read a few entries, and they are intriguing.

    1. I couldn’t find “Humor in Uniform…” wait, *Wheaton’s* Digest, never mind.

    2. You don’t understand rhetoric?

      To be sure, there are differences between them. Both are fascist dictators. One was genocidal, the other just jails anyone who he dislikes or who he thinks might dislike him.

    3. While Erdogan is no Hitler, he is certainly headed that way as the crow flies.

  6. The Spectator had a President Erdogan Offensive Poetry competition. Boris Johnson won it, but this was my submission:

    There once was a lad named Tayyip
    Whose speeches put Turks to sleep
    Once he turned to agress
    Against people and press
    They knew the price they paid was too steep.

    1. Nice, it leaves the reader hanging.

      1. There once was a man named Erdogan
        Who to be a tyrant does the best he can
        Blah blah blah blah blah
        Blah blah blah blah blah
        And he had to send his suit to the cleaners to get all the wool of it.

        1. get all the wool *out* of it

          1. One job, Eddy. *One* *lousy* job.

        2. Well if anyone can submit an entry….

          There once was a despot named Tayyip,
          And Turkey he ruled with a firm grip,
          He said with a smirk,
          “I’m the new Ataturk”,
          As the goats were all ordered to strip.

          1. No more calls, please, we have a winner.

            1. Oh, why not pile on.

              Erdogan’s favorite book is Green Eggs and Ham because Sam I am finally agrees he’d do it with a goat.

  7. Good thing this guy didn’t express his message in hippity-rappity ghetto fashion, else he would have lost the proprietor’s support.

    1. Straight outta Turkey, like Prince Albert out of a can
      A crazy m_____f_____ named Erdogan
      When I think of my coreligionists my heart gets bigger
      So here’s a shout-out to all my Uighurs

  8. One wonders if the Netherlands is unaware of any of their citizens who insulted President Trump.

    1. They should be prosecuted.

      1. And they may well be, particularly if the US Embassy pressed charges.

        1. but that would be two-faced given we let our citizens do it (and rightfully so given the 1st amendment), so it’s not going to happen. You can’t really Libel a leader by calling him names or exaggerating about his love for our horizontal pupiled compatriots.

    2. The charge is ‘insulting a friendly head of state’ so that leaves Trump out.

  9. Question: Are there any countries currently that have *more* free speech protections than the United States? With all of our problems; it was always my sense that we had more such protections than any other country in this area.

    1. I wouldn’t say we have ‘more’ speech protections.

      We really only have one: 1A.

      I would say we have less restrictions.

    2. We do not have more. We are really the only country with ANY speech protections.

  10. About 2 1/2 years ago, there was a similar case in Germany, though it never got to the stage of a full-fledged prosecution. In short a TV satirist, Jan Boehmermann, recited a similar poem, doggerel really, about Erdogan. (The Germans don’t have a “seven words you can’t say on TV” rule, though they do limit their use to contextually appropriate situations. And they love the word “shitstorm”, which they use as is.)
    Anyway, Boehmermann lost his TV show on ZDF and was basically banned when Erdogan complained and the public prosecutors started a criminal investigation. He actually went into hiding based on the dual threats of prosecution and from local Turkish fans of Erdogan (remember, Germany has a substantial minority of Turks, many of whom were born in Germany but have never fully assimilated). This investigation was required by their law at the time. It also caused a good bit of brouhaha at the intersection of the (present-day) German value of “meinungsfreiheit” (freedom of speech and opinion) and duties pertaining to foreign relations. The gist of it was “we really deplore what Boehmermann said more for the way he said it” (IIRC it also involved sheep) “but we also cannot find tolerance for a line where speech can be banned, lest we destroy meinungsfreiheit.”

    1. CONTINUED

      After a year or so Boehmermann started getting work again about the same time the prosecutors dropped the investigation. There was talk about changing the law to preclude such prosecutions in future but I’m not sure whether that went anywhere.

      Keep in mind, also, that there is a lot of friction between Erdogan on the one hand, and the Germans and Dutch on the other. During a referendum campaign (on amending the Turkish constitution, last year, I think) Erdogan tried to have some of his ministers hold what he characterized as akin to “town meetings” or “informational sessions”, and what the Germans and Dutch viewed as campaign rallies, in Germany and Holland, in favor of giving Erdogan more power. Turks not residing in Turkey were, IIRC, eligible to vote in that referendum. Both Germany and Holland viewed this as infringing on their sovereignty. The Dutch went so far as to preclude a Turkish minister from entering the country from Germany – no small feat in the EU world of “open borders”, escorting her out regardless of her pleas of diplomatic status.

  11. CONTINUED

    And after the 2016 coup attempt on Erdogan, when he was purging the military, government and academia of perceived enemies, there were many press reports of Turkish military wanting to avoid being returned to Turkey at the conclusion of their tours in NATO and related postings in Germany and elsewhere, for fear of being purged. IIRC, some of them actually sought asylum.

    This is just one chapter in a long, ongoing back-and-forth between Turkey and the West and needs to be seen in that context.

    BTW, that “He has ransacked our language for terms of reproach and insult” is a description I aspire to.

    1. Which explains why Erdogan wants to execute search warrants on NATO and US facilities in violation of the Status of Forces agreement.

  12. Cobbett’s Federalists, by the way, were cheerleaders for the Sedition Act which put Republicans (McKean’s party) in prison – though not for insults to foreign leaders as such.

    The Republicans said that criminal libel prosecution was the job of the states, a key reason they cited against the federal Sedition Act.

    1. (Even the founding generation had trouble getting to the concept of free speech meaning free speech for the other side)

  13. Would Hustler Magazine, Inc. v. Falwell also apply here or is that case only for US “public figures and public officials” only?

    Hustler published a parody ad where Falwell states that his “first time” (i.e. sexual intercourse) was during a drunken incestuous rendezvous with his mother in an outhouse. He sued Hustler but they prevailed at the SC.

    “In order to protect the free flow of ideas and opinions on matters of public interest and concern, the First and Fourteenth Amendments prohibit public figures and public officials from recovering damages for the tort of intentional infliction of emotional distress by reason of the publication of a caricature such as the ad parody at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury when that speech could not reasonably have been interpreted as stating actual facts about the public figure involved.”

    1. So I guess Hustler would be protected if they published a parody saying Trump had a sex with a prostitute while his 3rd wife was pregnant.

      Wait a minute. . .

      1. Or (insert name of most male democrats) in the exact same situation.

    2. Late 1800s senator: “What good is electricity to the home, anyway?”

      Engineer: “Sir, in 20 years, you’ll be taxing it.”

      ===Re: Fallwell: The State’s interest in protecting public figures from emotional distress is not sufficient to deny First Amendment protection to speech that is patently offensive and is intended to inflict emotional injury===

      “Yeah! Yeah! Deliberately causing emotional distress with speech cannot be outlawed! What good is it to society?”

      “Sir, in 30 years, you’ll be suing for billions in a whole industry over it.”

  14. I wish to contend that we have a variety of blatant self-censorship going on with the Near-Monopoly Leftist Mainstream Media in America throwing a blackout curtain over the reality that a basically racist radical land redistribution program is underway in South Africa.

    Perhaps the intents and purposes of that program by the ANC resemble too closely what a reasonable person might expect from “democratic socialists” here in the USA. Worse yet, the results will likely mirror the consequences of uncompensated property seizure under mob rule authority.

    All in all, current day progressivism seems determined to smother free speech, precisely for the reason that the lambs being prepped for the processing plant should have no clue where they are headed. In the last century National Socialists were certainly aware of the value of a Fake News media. All those Jews so obediently boarded the trains to “labor camps.”

    1. We really need tot do something about our leftists here in the US. Even when they’re out of power they are enormously destructive.

      We should go back to stamping out communism as soon as possible.

      1. You should stop wasting time at this comment section, Last. The leftists are trying to stop the rural Republican racists in Georgia from enacting a race-targeting voter suppression program, and the conservatives need your help in Randolph County.

      2. Shitlord. How appropriate. You’re on a libertarian site, you’re not going to find much support for “stamping out communism”. Please go back to stormfront.

  15. Professor Volokh,

    I’m surprised that you didn’t cite Boos v. Barry, the seminal 1988 Supreme Court decision striking down a DC ordinance prohibiting protesting at foreign embassies and announcing a new rule that henceforth, there would be no special exceptions to the First Amendment for the benefit of foreign governments. The decision overturned a ruling by Judge Bork, who had said the existing line of cases carving out an exception to the First Amendment remained good law. This is the relevant case. The others you cited simply aren’t, because they don’t address the specific issue of a foreign-government exception.

    One of my difficulties with your handling of certain matters that have a specific line of associated court cases is that you sometimes cite general cases as controlling as if the specific cases weren’t even there. It’s one thing to argue there shouldn’t be specific cases and the general rules should control. On his issue, this was the view that ultimately prevailed. But on other issues, the specific-rule cases still control, and if you think they shouldn’t, you need to acknowledge their existence and make an argument why they should be overruled, not simply pretend they aren’t there.

    1. Clarifying the other 20th century cases you cited (e.g. New York Times v. Sullivan) aren’t relevant, because they don’t address the special issue of foreign governments in the context of contemporary First Amendment theory.

  16. “According to the newspaper, the Dutch man is facing charges of insult, insulting an official, and insulting a friendly head of state.”

    He should be honored, instead.

  17. I mispoke. Boos V. Barry did not abolish the doctrine. The idea that protecting foreign governments from ridicule is a compelling state interest under First Amendment analysis appears to have split 4-4 in Boos v. Barry and hence remains the law. The majority said that assuming without deciding that it is a compelling interest, the DC ordinance was not sufficiently narrowly tailored. But they upheld a narrow no-protest zone. The approach used seems to have been similar to ones used in subsequent abortion-protest cases.

    At rate, the idea that there is a special government interest in protecting foreign governments from being disturbed or ridiculed, and this interest is a compelling one, not only remains part of our law, but may well have guided the development of the law on other matters (such as protests near abortion clinics).

    Boos v. Barry was a protest case, not a libel case. But nonetheless I respectfully suggest that it, and not libel cases like New York Times v. Sullivan, is the best framework in which to evaluate how the special compelling government interest in protecting foreign governments works in a First Amendment context.

    1. NYT v. Sullivan (coupled with the cases following it, such as Garrison v. Louisiana) was important because, before that, insults of all sorts could theoretically be prosecuted as defamation, even if they didn’t include knowingly or recklessly false statements of fact. Insults of foreign officials would be equally punishable under that doctrine.

      1. But Boos v. Barry assumed that “protecting the dignity of foreign diplomats by shielding them from criticism is a ‘compelling’ state interest for First Amendment purposes.”

        But if this is so, it arises from special obligations under customary international law to protect the peace and dignity of ambassadors and the like, and isn’t remotely comparable to libel law. The criticism doesn’t have to be false, for example. Whether it’s true or false is irrelevant.

        1. And to clarify, if the United States had a law similar to the Dutch law, the first thing any lawyer defending it would do would be to say foreign dignitaries are a special sui generous case for First Amendment purposes and should be evaluated under Boos v. Barry, not under general libel law. And a such a lawyer would of course say that a law specifically protecting foreign dignitaries from criticism is in fact narrowly tailored to the compelling interest in protecting foreign dignitaries from criticism, and obviously so, and hence survives Boos v. Barry analysis. They would say that it is obviously distinguishable from the DC ordinance prohibiting congregating within 500 feet of an embassy for any reason that Boos v. Barry partially (only partially) struck down.

          And they would say libel cases not implicating foreign dignitaries are totally irrelevant to the point, because criticism of foreign dignitaries gets its own special First Amendment analysis different from domestic criticism.

  18. Old joke: An American is visiting his friend in Moscow. He says, “America is a great country. We can stand out in the street, insult our President, and nothing happens”.
    Russian friend: “We have great country here, too. We can stand out in the street, insult your President, and nothing happens”.

    1. Variation of the old joke. Krushchev is visiting the U.N. in New York City. While being transported back to his hotel in a limousine, three very drunk men in suits urinate on the side of his car while it waits for a light to change. Infuriated, Krushchev exclaims: “In Moscow that would never be tolerated!” and he orders his body guard to jump out and shoot the men. The deed is done, the bodyguard jumps back in the light changes, and the black limousine speeds away.

      The headline the next day: THREE RUSSIAN EMBASSY STAFF GUNNED DOWN IN DRIVE-BY..

  19. I know this is off topic, but can somebody post an article on whether Michael Cohen’s payments for NDAs violated campaign finance law?

  20. I wonder if truth is a defense in the Netherlands.

    This particular allegation may be hard to prove.

    1. “If the accused has anything to say in his defense, he should goat to it.”

  21. Refraining from commenting about Trump is already branding the Conspirators as obsequious partisans angling for judicial nominations from what may be the last Republican president for a good while. Why not just go straight to full, fawning sycophancy?

  22. Being Dutch, I don’t mind these “special insult” offences very much. Just like insulting the King should be an offence because the law prevents the King from speaking out in response, insulting foreign heads of state should be an offence because such speech comes with externalities that normal speech doesn’t have.

    (As does, for example, Geert Wilders’ Mohammed cartoon contest, his most recent and wildly successful attempt to avoid oblivion. Not sure what to do about that one, but I’m pretty sure that rugged free speech absolutism isn’t the answer. A bit more pragmatism wouldn’t go amiss.)

    1. Man, you guys are going to be locking up a hell of a lot of your countrymen when you realize that Trump is a head of state

      1. Nobody gets locked up for any of this. We’re not the US, we don’t give people five consecutive life sentences for stealing a loaf of bread.

  23. Just like insulting the King should be an offence because the law prevents the King from speaking out in response

    The proper solution– as the Stones recognized — is to have no king.

    That song was banned, too. It is one of Artie Ray’s favorites.

  24. “Erdogan, you fucking goat fucker, burn in hell.”

    Well, it may be insulting, but at least it isn’t libel.

  25. This is off topic, but it comes back to it at the end, so be patient. I have happily blogged away for months on the assumption that Rosenstein, Mueller, and Comey saw themselves as king makers or king breakers. I pictured their all-out attempt to destroy Trump as a purely personal ideological and raw ambition type of thing.

    Then it hit me. Suppose this trio (they are the key three BTW) aren’t so bad? Suppose at some level they are honorable guys who suddenly found themselves in a horrible historical situation?

    What I am alleging is this: suppose they do have all of Hillary’s emails and they have had them all along, her vigorous acid washing and hammering efforts notwithstanding? Suppose those emails contain material so troubling, so inflammatory, that letting them ever see the light of day would be spectacularly cataclysmic for at least one political party and maybe the two party system itself.?

    The trio is afraid to just destroy the evidence. They know, however, that the upstart Trump is vulnerable on a lot of things (none of which is related to the Russians.) They will go at him tooth and nail and hopefully in the distraction emails can stay hushed up for decades.

    Or, we have to depose the present king, in order to protect the last king and the monarchical system itself and a whole palace full of courtiers, so we will revile this king and he will rebuke us!

    Heads will be rolling around floors, reviling and rebuking. Pray the emails survive to tell their tale.

    1. So… you’re saying that maybe Erdogan isn’t a fucking goat fucker?

      Doesn’t seem plausible.

      1. Listen, I am a poor farm boy from Montana. I was hatched on jokes about dating the prettiest ewe in the pasture.

        1. #ewetoo?

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