Vrijheid van meningsuiting en de bestrijding van discriminatie in Nederland: een constitutioneel ontwikkelingsperspectief

Stam, J. (2025)

Doctoral Thesis

This thesis concerns the use of criminal law to restrict freedom of expression in public debate, a topic that has been the subject of both societal and academic interest since the conviction of politician Geert Wilders in 2020. A notable aspect of this case was the application of a consideration by the Dutch Supreme Court in which repressive action against 'hate speech' – criminalised in the Netherlands as group defamation (Article 137c of the Criminal Code) and incitement to hatred or discrimination (Article 137d of the Criminal Code) – is considered a matter of liberal-democratic self-defence. More specifically, this consideration concerns the question whether statements made by politicians “incite intolerance”. By applying the Articles 137c and 137d CC in this way, these provisions have become more than just offences against public order; they have also acquired a function in a constitutional doctrine that aims to protect the liberal democratic constitution as such. This thesis explores how this doctrine has become part of the relevant European and Dutch case law and attempts to explain its origins from various theoretical perspectives. This reveals that weighing up the importance of combating hate speech against the protection of freedom of expression as a matter of liberal democratic self-defence or the paradox of tolerance is, on the one hand, a logical development but, on the other hand, also entails major risks that could undermine liberal democracy as well. To substantiate this thesis, various theories are employed, including the theory of constitutional development of Wim Couwenberg (1926-2019). This theory in particular offers a number of useful tools for explaining and assessing the turbulent development the legal framework has undergone and will undoubtedly continue to undergo.

• Hate speech
• Weerbare democratie
• Uitingsdelicten
• 137c
• 137d
• Vrijheid van meningsuiting
• Discriminatie
• Ontwikkelingsperspectief
• Minderhedenbescherming

• All authors: Stam, J.
• Supervisor: Ellian, A.
• Co-supervisor: Rijpkema, B.R.
• Committee: Schermer, B.W.; Noorloos, L.A. van; Molier, G.; Schutgens, R.J.B.; Doomen, J.
• Qualification: Doctor (dr.)
• Awarding Institution: Institute for the Interdisciplinary Study of the Law, Faculty of Law, Leiden University
• Date: 2025-11-12