Stomping free speech flat in Europe

Regular readers of this blog know that I have a particular dislike for Holocaust denial and that, indeed, I’ve tried to do my small part to counter the lies spread by Holocaust deniers, beginning on Usenet eight years ago. Regular readers will also know my opinion regarding laws in certain European countries such as Germany and Austria banning Holocaust denial upon pain of prison and other penalties. Although I can understand why such laws may have been necessary in the early postwar period, when the resurgence of Nazi-ism was a real danger, now, nearly 62 years after the end of the war, I fail to see any compelling reason to justify the onerous restrictions on free speech that these laws demand, which is why I was actually happy when Holocaust denier David Irving was released from prison last month.

I’m not so happy to learn of this:

BERLIN: Germany wants to use its European Union presidency to push through legislation that would make denying the Holocaust punishable by stiff jail sentences in all 27 EU member states.

The country’s justice minister, Brigitte Zypries, said Thursday night that Germany’s commitment to combating racism and xenophobia — and keeping the memory of the Holocaust alive — was both an enduring historical obligation and a present-day political necessity.

“We have always said that it can’t be the case that it should still be acceptable in Europe to say the Holocaust never existed and that six million Jews were never killed,” she said. Under the German proposal, she said, those who deny the Nazi slaughter of Jews during World War II could face up to three years in prison.

No, no, no, a thousand times no! This is an absolutely horrible idea. Zypries is correct in saying that it should not be acceptable to say that the Holocaust never happened, as in socially not acceptable, much the way passing a loud, stinky fart in public is frowned upon in most places. However, she is painfully, woefully, and utterly misguided in concluding that to make Holocaust denial “not acceptable” the EU needs to pass a law to outlaw it throughout all of its member nations. Combatting racism and xenophobia should not necessitate stomping free speech flat, but misguided busy-bodies like Zypries seem to think that it does.

Fortunately, not all EU members are likely to go along with this stupendously wrong-headed plan, but unfortunately Italy is thought to have dropped its previous resistance to a similar plan:

Zypries said the proposal, which will be debated by the bloc’s justice ministers in the next six months, would also seek to criminalize racist declarations that are an incitement to violence against a specific person or group. The aim, she said, was to harmonize national legal systems in their approach to combating racism and xenophobia.

Unifying hate crime rules in countries with vastly different legal cultures could prove difficult, analysts said. European leaders have been unanimous in condemning those who deny the Holocaust, and have sharply criticized the Iranian government for sponsoring a recent conference that cast doubt on it.

But the question of whether to criminalize such acts has divided Europe between countries like Germany that view a common EU law as a moral imperative and other countries, like Britain, Italy and Denmark, that have resisted common rules as infringing on free speech and civil liberties.

Two years ago, Luxembourg tried to use its EU presidency to push through legislation to unify legal standards for Holocaust denial, but was blocked by Italy on the grounds that the legislation breached freedom of speech. At the time, several countries rejected attempts to ban Nazi symbols, which gained force after the release of photos of Prince Harry of Britain wearing a swastika armband at a costume party.

Zypries said she was confident Germany could now succeed in overcoming such resistance since Italy, under a left- of-center prime minister, Romano Prodi, had dropped its opposition. But she cautioned that the legislation would need to be sufficiently narrow in scope if it were to gain support.

The Luxembourg proposal, which Germany is studying with a view toward emulating it, states that racist declarations or Holocaust denial will not be prosecuted if they are expressed in a way that does not incite hatred against an individual or group of people.

“Expressed in a way that does not incite hatred against an individual or a group of people”? What on earth does that mean. Holocaust denial is inherently anti-Semitic and designed to express or incite hatred against Jews. How on earth would prosecutors determine what speech of this ort does and does not “incite hatred”? The problem with laws against this sort of speech is that prosecutors inevitably interpret these laws as broadly as they can get away with; in other words, as broadly as the courts will let them. Even if the courts ultimately slap them down for overreaching, a lot of people can get hurt in the meantime. Besides, my confidence in European prosecutors to appreciate the nuances and recognize who is and is not truly “inciting hatred,” given that they can’t or won’t distinguish between the use of banned Nazi symbols to protest neo-Nazi-ism and to glorify it, leading to the prosecution of anti-Nazi protestors who include swastikas and other Nazi symbols in their signs and literature.

I would go even further and argue that, while it is certainly desirable to curb direct incitements to violence, such as threats, it shouldn’t be against the law to “incite hatred.” I get the distinct feeling that the laws being proposed aren’t exactly going to be too exacting in defining what constitutes “incitement. I get the feeling that little distinction is going to be made between incitement to “hatred” and incitement to imminent violence. Such is the distinction that was made by the U.S. Supreme Court under Brandenburg v. Ohio, which stated:

…[our] decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action

It’s a reasonable standard that places minimal reasonable restrictions on free speech.

I realize that Europe has a different history and that many European nations place different values than we Americans do on the right to free speech compared to the desire to restrict incitement, but these sorts of lawas are scary stuff to me. One big problem with the proposed law is that it seems to criminalize all Holocaust denial but says that it won’t be “prosecuted” if it doesn’t result in incitement. Who decides what is and isn’t “incitement” in Holocaust denial? I have to wonder: What if someone simply says that the Holocaust never happened? Would that be legal, as long as he didn’t say the Holocaust was some sort of Jewish conspiracy? Another problem with the description of the laws that are being proposed is that they seem frighteningly vague on defining what constitutes “incitement to racial hatred.” Let’s say someone starts ranting about how “Jews control the world” and that whites must “resist Jewish domination,” adding, for example, some canards from The Protocols of the Learned Elders of Zion or the Blood Libel to spice things up. In the U.S., as disgusting as this sort of speech is, in the U.S. it is protected under the First Amendment, as long as it doesn’t include speech that a reasonable person would consider to be likely to incite imminent lawless action or harm to another person. Under the “harmonization” of incitement laws, it sounds as though these vague sorts of expressions would be illegal.

Even if you could make a compelling case for criminalizing such speech, it doesn’t end there:

The debate about how to reconcile freedom of speech with the fight against racism gained added momentum recently when the French National Assembly passed a law making it a criminal offense to deny that the massacre of Armenians by Turks during World War I was a case of genocide. While the Armenian community applauded the law, Turkey accused France of restricting the freedom of expression and rewriting history for political ends.

The publication last year of Danish cartoons satirizing the Prophet Muhammad, which provoked fury in the Muslim world, has prompted some Muslims to accuse the EU of double standards in its fight against racism.

Abdullah Gul, the Turkish foreign minister, last March called on European nations to review laws to ensure they outlaw defamation of all religions. He told a meeting of EU foreign ministers that many Muslims believed European laws protected established Christian religions, and banned anti-Semitism, while doing nothing to defend Muslims who felt offended.

Repeat after me, everyone: There is no “right” not to be offended. Or at least there shouldn’t be. That some speech will offend is the price we pay for freedom of speech. Yes, as the above shows, when you make one form of bigotry against the law, it’s hard to come up with a legitimate reason not to ban all forms of bigotry when other groups complain. The government tried to do this once before in the U.K. Fortunately they failed. I certainly hope that Turkey doesn’t succeed in persuading the EU to pass such a measure to “outlaw defamation of all religions.” In any case, why on earth should religion be protected from criticism. It would be manna from heaven for religious extremists, who could use it to shut down criticism of their activities on the grounds of “defamation” of their faith.

Here’s a proposed conundrum for the EU. Let’s say Germany gets its way and bans Holocaust denial throughout Europe. Then let’s say that Turkey gets its way, and “defamation of religion” is similarly outlawed. How would such laws deal with a group like the former World Church of the Creator (now known as the Creativity Movement), a virulently anti-Semitic white supremacist group that represented itself as a religion, one of whose precepts is that the “white race is nature’s highest creation.” And it denies the Holocaust as well, with all of these vile beliefs said to be part of the religion. Moreover WTCOC is not alone; there are all sorts of racialist, Odinist, Christian Identity, and other groups who claim that Jews are the enemy; that their dislike of Jews or blacks or their white racism is part of their religion. Would laws against “religious defamation” prevent antiracists from criticizing such groups? Or would they have to lock up both the racist group and those who criticize them?

I hope this sort of thing never comes to pass, but it’s certainly something that could come up.

But getting back to the original focus of the proposed Holocaust denial law, EU legislators couldn’t do Holocaust deniers a bigger favor than passing this proposal if they tried. Unable to convince any reasonable historians or people based on the facts, Holocaust deniers love nothing better than to don the mantle of free speech martyrs. David Irving has done it ever since he was arrested, and the recent Holocaust denier conference in Tehran was filled with disgusting displays of racist Holocaust deniers patting each other on the back and painting themselves as victims of “conscience” who dare to “speak the truth,” even though they risk jail. Expect to see even more of that if this sort of measure becomes EU law.

The bottom line is that the best approach to hate speech like Holocaust denial is refutation with more speech, not censorship or criminalizing such speech. Being thrown into jail for his Holocaust denial revived David Irving’s fame far better than anything else possibly could have done. Before his imprisonment, he was a humiliated little man not taken seriously by anyone other than far-right wing groups, who turned out in smaller and smaller numbers to hear his speeches and buy his books; since his imprisonment, he has been traveling about, giving interviews to mainstream newspapers, and is more well known that he had been at any time since the Deborah Lipstadt trial. Attempting to criminalize Holocaust denial across the EU will do more to enhance its attractiveness to racist malcontents as “so dangerous that the government has to ban it,” than just about anything else that I can think of. Shining the light of day on these slugs is the way to combat them, not throwing them in jail. As Deborah Lipstadt put it, as disgusting as they are, Holocaust deniers should be “free to say what they want” and “equally free to sink in sink in total and glorious oblivion.”

Criminalizing Holocaust denial will do nothing but slow that descent into glorious oblivion.