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The space for strategic manoeuvring in adjudicating a freedom of speech case in the Netherlands

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Abstract

In this article it is shown that the institutional preconditions of the activity type adjudicating a freedom of speech case leave much room for strategic manoeuvring with topical selection. To this end, an analysis is presented of the argumentation of the District Court in a case against the Dutch anti-immigration politician Geert Wilders. In order to show the space for manoeuvring, this argumentation, resulting in acquittal, is compared with the argumentation put forward by the Court of Appeal, which had ordered, after the Public Prosecution Service’s refusal to do so, that Wilders be prosecuted. The analysis shows that the District Court made ample use of the space for manoeuvring provided at the normative level concerning the interpretation of legal rules and case law, and the space provided at the factual level of classifying the contested facts in light of the previously identified meaning of a rule.
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Keywords: activity type; classifying facts; freedom of speech; inciting discrimination; inciting hatred; institutional preconditions; insult; legal argumentation; legal interpretation; strategic manoeuvring; topical selection

Document Type: Research Article

Publication date: 16 October 2017

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