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Holocaust denial
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Yesterday, I stumbled across a news article about a man being tried in Austria for holocaust denial. That sort of story generally tends to terrify me, not because there are people who want to claim that the holocaust ever happened, but because there are countries (ten of them, according to the BBC) where doing so is illegal.

Don't get me wrong; I'm not a fan of holocaust denial. There are a lot of things, though, that I'm not a fan of, which I'm happy for them to remain legal.

I think there are three main reasons why I disike such laws. For one, it's an affront to free speech. If you believe in free speech -- which I do -- then you have to believe in freedom of all speech. Giving someone the right to speak freely unless they're going to say something you don't like is utterly useless. An exception ca be made for things like incitement to violence, since that has a direct consequence which denies other of their basic rights. With holocaust denial, the only direct consequence is mightily pissing off and offending a whole lot of people, and there is no universal right to avoid being pissed off.

Secondly, I believe that the fact of existance of the holocaust should be allowed to stand alone. By legislating against dissent, it just makes the facts seem on shakey ground. For me, personally, I have to say that I don't know that the holocaust actually happens. I have never studied it in any great depth and never seen any primary evidence of its existence. I choose to believe that it almost certainly did happen because of the preponderance of secondary evidence and because the people who have studied it in detail all tend to agree about it. Occams razor seems to favour existance over conspiracy on this one. But if I lived in a country where it was illegal to deny the existence of the holocaust, and someone were to say to me "I've done a lot of research on this, and the facts just don't seem to add up; I'd tell you more but I'm worried I might be imprisoned for it" then I really don't know what I'd think.

And finally, I find it disturbing that discussion of one genocide should be legislated, while others are not. Certainly, the holocaust was horrific and evil, but the same can be said of any genocide. Kurds in Iraq. Muslims in Bosnia. Albanians in Turkey. Indigenous people in the Americas. And so on and so forth. If it is wrong to refute the existence of the holocaust, is it not equally as wrong to refute any of these other genocides? Any sort of disparity of law here is very dangerously close to an implied message that the people who died in other genocides -- or their living relatives and kin -- are less important than the people who died in the holocaust.

Am I missing something? Do these laws actually make some sort of sense that I'm not seeing? Or are they as ridiculous as I'm thinking they are?

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I completely agree that it's an affront to free speech. I understand the cultural imperatives that make it so repulsive to acknowledge the rights of Holocaust deniers, but it is that moment in history that allows people to make a meaningful stand, that is, Voltaire's famous quote, I disagree with what you say, but I will defend to the death your right to say it.

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I've read a few things about holocaust denial and even a lot of the major researchers into the Holocaust believe that imprisoning someone for denial should not happen.

http://oracknows.blogspot.com/ is an american doctor who has been lurking on UsetNet for the last 10 years often on Holocaust discussion and sceptics threads. He's written quite a bit about David Irving as well as the people who have disputed him in research contexts.

I think Orac believes that making Holocaust denial a crime in Austria and Germany was necessary for the rehabilitation of those countries after WW2 ended. The argument now is that the evidence does stand for itself and it shouldn't be a specific crime.

Legislating against error?

If we were talking about laws making illegal ANY statement (purporting to be history) that is BOTH provably false AND obviously inflammatory to some ethnic or religious group, that would at least be impartial; it would obviously cover denial of the (WWII nazi) holocaust, and other stupidities such as claiming that most africans brought to the "new world" were voluntary emigrants, or that the catholic church never advocated burning witches.

The TEENSY little problem here is this would set up national governments as arbiters of historical truth. I wouldn't trust my own (U.S.A) very far on that front, and it's hardly the worst.

I can see Germany & Austria as being special cases though... much more concerned about blocking attempts to "rehabilitate" the nazis through revisionist history. Whether they still need those laws would be for the people of those countries to decide, regardless of my own feelings (which are that gag rules SUCK... let the scum publish, and give them the attention they deserve, i.e. none).

Re: Legislating against error?

The TEENSY little problem here is this would set up national governments as arbiters of historical truth. I wouldn't trust my own (U.S.A) very far on that front, and it's hardly the worst.

But we already do that for individuals, with libel and slander laws. Hate speech legislation applies those principles to groups instead of individuals. What is a judicial branch if not an arbiter of truth?

Re: Legislating against error?

"What is a judicial branch if not an arbiter of truth?"

Yeah. But I'm often disappointed by how well (or not) judges do at that part of the job.

Yeah, I felt uncomfortable about that too. The mindset of Holocaust deniers is alien to me and potentially repulsive, but so is the KKK, and we let them speak.

Yes, but the United States also lets Holocaust deniers speak. Canada, on the other hand, would let neither the KKK nor Holocaust deniers speak (although up here those tend to be the same people). I'm not familiar enough with the laws of Austria to know what sort of hate speech legislation they have against racial hatred, but it's not at all clear to me that Holocaust denial there is a specific exemption in a culture which otherwise prefers the absolute freedom of speech.

By legislating against dissent, it just makes the facts seem on shakey ground.

I agree. It gives the deniers a credibility they don't deserve.

I don't know the specifics of the law, so you get general thoughts instead, mostly shaped by Canada's hate speech laws (which David Irving has fallen afoul of before).

As best as I can tell there's basically three rationales for hate speech laws, whether against Holocaust denial, white-supremacist publication, or whatever else might fall under them:

  1. For much of Europe, the idea that the Holocaust is recent enough and of such a scale that it deserves special treatment, that the emotional wounds it involves remain too fresh, etc. I think this rationale is going to drop in importance over the next few decades as the last generation of Holocaust survivors dies; the argument that publications denying the Holocaust directly infringe on citizens' rights is a lot weaker when the publications are claiming to refute something that happened to the citizens' ancestors than when they claim to refute something the citizens experienced directly.

  2. The direct equivalent of libel and slander legislation and fraud legislation where the victims are large groups which are not otherwise in a position to take collective action against the slanderer. I think this is mostly where Canada's "incitement of racial hatred" legislation fits in: where the publication of Holocaust-denying or white-supremacist or anti-Catholic literature incites actions which infringe on the rights of other citizens and the basis of the publications are untrue. That libel against an individual can have real effects on the victim's quality of life and ability to enjoy his rights under law is well-established, thus there is the same opportunity for libel against all Jews or all Blacks and so on to deprive members of those groups of their rights. The fraud approach is similar: since it is illegal to profit from fraudulent claims about individuals or companies it becomes similarly illegal to profit from fraudulent claims about large groups.

  3. A practical tool to keep the prominent Holocaust deniers, white-power leaders, etc. out of your country. To avoid being jailed in Austria, David Irving didn't have to stop publishing Holocaust-denying books and recant his beliefs; he had to stay out of Austria. There's no grand moral cause behind the law except that it reflects that the citizens of a country would prefer that the Holocaust deniers stay out of their country.

I think the first reason was a strong one in 1950 but not for long after, when there was the possibility of real civil unrest and violence, if not more war, based on the claims. The third reason is only one of convenience, and introduces problems when the targets of prosecution are citizens; it's really only useful for keeping aliens out, and there's probably more to be said, for instance, for making Holocaust denial a reason to refuse a visa rather than a reason to imprison.

But the libel and fraud side has something going for it: if the basis of the publication in question is provably false to the standards the court applies to individual libel and slander cases, and the deprivation of rights or possibility of damages to members of the targeted groups is equivalent to that of an individual victim of libel, then why wouldn't the law protect those groups in the same manner? At that point the difference between libel and hate-speech laws becomes one of an individual pressing charges vs. the state pressing charges on behalf of the affected group. The fraud side seems even more straightforward: if one commits fraud by publishing a book sold as a copy of the McDonalds corporate manual but which has no basis in fact and is written to incite public anger at the company, one must also be committing fraud by publishing the Protocols and inciting public anger at Jews.

[one paragraph to come, silly comment-length limits. Sorry this is so long!]


The problem that I have isn't hate-speech laws. The exact boundary is up for debate, but I do believe that freedom of speech stops when one startsd materially breaching the rights of others. The problem I have is with there being so specific a law.

If someone is inciting racial hatred and promoting violence against a group, then let them be tried on that basis. Consider the two following statements:

"I do not believe the holocaust happened. There are gaps in the historical evidence, and I demand a greater burden of proof for such extraordinary claims."

"I do not believe the holocaust happened. It's all a big hoax perpetuated by those filthy Jews, and they deserve to be shot for it."

The first, to my mind, is acceptable; the second, quite uneqivocably, is not. With specific legislation against holocaust denial, you're legislating against both. Without it, you can likely still get the second person on existing hate-speech laws, whereas the first person would be safe. If the news item had been "Irving tried for inciting racial violence" then I'd most probably have thought "hah! serves the malodorous douchebag right". I make no claim of any great knowledge of the David Irving case, but if he has done such things, surely it's better to try him for them, rather than for expressing a historical opinion?

[continuing...]

Free speech is a high-profile right, especially in America and thus in the American media, but there are a lot of rights that speech without limits can deprive. It seems to me that legislation like Austria's or Canada's allows the courts to define the balancing point between an individual's right to freedom of expression and their targets' rights, balancing the harm to the publisher of hate literature in not being alloweed to publish with the harm to the groups targeted by allowing the literature to be published and distributed. Whether or not the laws and courts get that balance right is another question, but I think that they'll have a better chance at it with the tools to protect the rights of all involved than without.

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