Free Speech, Holocaust Denial and Defamation of Religion

Michael Moynihan, writing at the Jewish online magazine Tablet, points out the similarities between laws that punish the “defamation of religion” — meaning saying anything that offends the religious — and laws that prevent the public expression of Holocaust denial.

After the Danish newspaper Jyllands-Posten published its now-notorious cartoons of the Prophet Muhammad in 2005, the Iranian government responded with a Holocaust cartoon contest and an “International Conference to Review the Global Vision of the Holocaust,” featuring a multiethnic assortment of lunatics and racists who denied that Nazi Germany pursued a policy of genocide against European Jews. A spokesman for the Iranian regime laid out the logic behind the contest: “They allow the Prophet to be insulted. But when we talk about the Holocaust, they consider it so holy that they punish people for questioning it.”

There are clear differences between denying a historical event like the Holocaust and mocking religious prophets, but the Islamists who see a free-speech double standard in Europe are correct. In Germany and Russia, for example, the printing and selling of Mein Kampf is banned (though Germany has recently considered publishing a version of the book annotated by historians). Holocaust deniers can be prosecuted in Austria, Belgium, Czech Republic, France, Germany, Hungary, Romanian, Poland, and Luxembourg. Other European states don’t explicitly outlaw denial but often prosecute offenders on other statutes, like inciting racial hatred. In all these countries, though, the mocking of religious belief—be it Islam or Christianity—is protected speech.

The right thing to do is to ban neither form of expression. He also points out that those European laws have done little to combat racist extremism:

If the goal of free-speech restrictions is to prevent the rise of right-wing extremism, such legal measures have been largely unsuccessful. In Austria, for instance, where David Irving was imprisoned for Holocaust denial, the populist Freedom Party—whose current leader recently posted a photo of a hook-nosed Jew wearing Star of David cufflinks on his Facebook page—has been hugely successful, with recent opinion polls showing their support at 21 percent. Compare that to the United States, where toxic polemics claiming to have uncovered a “Holohoax” are protected by the First Amendment, fascism is almost nonexistent as a political force, and levels of anti-Semitism are significantly lower than in European countries that criminalize Holocaust denial.

All such laws are not merely unjust, they are also ineffective. In the age of the internet, a copy of Mein Kampf and of the full range of Holocaust denial claims are a mouse click away. Christopher Hitchens got this exactly right, including rightly calling Oliver Wendell Holmes “greatly overpraised.”

59 comments on this post.
  1. Raging Bee:

    There are clear differences between denying a historical event like the Holocaust and mocking religious prophets…

    This fact alone easily disproves the “double standard” charge. Criticizing or mocking the founder of a religion is NOT the same thing as systematically attempting to erase a significant event from the history books. There are good reasons to take legal action against the latter that don’t apply to the former.

    All such laws are not merely unjust, they are also ineffective. In the age of the internet, a copy of Mein Kampf and of the full range of Holocaust denial claims are a mouse click away.

    So what’s the problem? If a law against historical denialism has the effect of at least making people aware that denialists exist, and maybe keeping the lies out of certain venues like public school classrooms, without actually preventing the denialists from expressing themselves, then the law is doing some good without really stifling anyone’s free speech.

  2. Miriam:

    I don’t think that holocaust denial should be illegal because that’s just…weird to me. Nobody would consider making it illegal to deny that American settlers stole land from Native Americans and murdered them, and in fact, that denial takes place in classrooms all the time.

    However, denying the holocaust (or the oppression of Native Americans, for that matter) should be a dealbreaker for any job in which one is required to educate others, work closely with clients/patients of different cultural backgrounds, and so on.

  3. Raging Bee:

    Nobody would consider making it illegal to deny that American settlers stole land from Native Americans and murdered them, and in fact, that denial takes place in classrooms all the time.

    Thanks, you’ve just pointed out one good reason for anti-denialism laws: such laws would at least go some way toward offsetting people’s natural tendency to whitewash and ignore the uglier and more shameful chapters of their ancestors’ history. There SHOULD be some sort of law against lying to minor students about significant events that they need to know. If such a law were to be carefully written so it punishes significant misrepresentation of material fact, and not mere opinions, I would at least seriously consider supporting it.

  4. jehk:

    So we’re going to punish people for denying reality? I can understand that for teaching but not beyond that.

  5. matty1:

    I would think there is an obvious difference between keeping a claim out of the school curriculum and making it illegal to publish a book or website making that claim. Given Ed’s history I’m pretty sure he would have no problems with stopping schools from teaching holocaust denial but would deny, as would I, that you need to make it illegal to make denialist statements at all in order to keep denialism out of schools.

  6. robertbaden:

    So who decides what claims should be outlawed? The Ministry of Truth?

  7. eric:

    Criticizing or mocking the founder of a religion is NOT the same thing as systematically attempting to erase a significant event from the history books.

    I don’t know of any campaign to erase accurate holocaust material. The denialists publish their own material and, for sure, want that material read and taken seriously. But AFAIK they aren’t attempting to outlaw or prevent the publication of mainstream moterial. Do you have examples of them doing so?

    Thanks, you’ve just pointed out one good reason for anti-denialism laws: such laws would at least go some way toward offsetting people’s natural tendency to whitewash and ignore the uglier and more shameful chapters of their ancestors’ history.

    Empirically speaking, you’re wrong. That’s what Moynihan’s second quoted paragraph (and lots of other people) are saying. Laws preventing whitewashing do not in fact seem to offset people’s tendency to whitewash history. If anything, such laws seem to encourage it. These laws seem to create a sort of historical Streisand effect; people get more interested in (baloney) historical theory X when they are told by the government they are not allowed to read (baloney) historical theory X. In places where the government does not forbid it, interest goes down.

  8. kosk11348:

    In all these countries, though, the mocking of religious belief—be it Islam or Christianity—is protected speech.

    And? I’m not seeing the double standard.

  9. Raging Bee:

    Laws preventing whitewashing do not in fact seem to offset people’s tendency to whitewash history. If anything, such laws seem to encourage it.

    Perhaps I misspoke a bit. What I should have said is that anti-denialism laws might offset the EFFECTS of people’s tendency to deny or whitewash the uglier chapters of their history.

    These laws seem to create a sort of historical Streisand effect; people get more interested in (baloney) historical theory X when they are told by the government they are not allowed to read (baloney) historical theory X. In places where the government does not forbid it, interest goes down.

    Are you sure about the cause-and-effect link here? I think the more likely possibility here is that where interest in denialist nonsense is already low, there is less incentive to pass anti-denialism laws; and the places where denialism is already entenched in the public discourse are the places where decent people push to get anti-denialism laws passed. In other words, the laws don’t cause interest in denialism, the pre-existing interest in denialism causes the laws.

  10. Irreverend Bastard:

    So we’re going to punish people for denying reality?

    Wouldn’t that kill off religion?

    If it’s legal to claim that mankind never went to the Moon, then it should be just as legal to claim that the Holocaust never happened. I don’t see why one particular historical happening should have special protection from crackpot denialism. Or has the Holocaust been declared “Holy”?

    If people want to loudly and publicly profess their delusions, then let them. It’s like nature’s own warning signals. If they’re crazy or possibly dangerous, then isn’t it better that we all know about it?

    The winners (of wars and politics) (re)write history all the time, and a lot of bullshit is presented as fact. See also: Texas.

    I do believe that the Holocaust happened. But it happened so long before I was born that, frankly, I don’t give a damn. Both Mao and Stalin killed off more people than Hitler. And that also happened long before I was born.

    So, how do you pick up women in a concentration camp? With a dustpan, of course.

  11. mobius:

    I have at times disagreed with what Mr. Hitchens has said. But no matter what he has said, I have always found him to have been thoughtful in his remarks. For what he said in this speech…

    BRAVO

    Not only do I find it thoughtful, but in this case agree with what he said.

  12. eric:

    I should have said is that anti-denialism laws might offset the EFFECTS of people’s tendency to deny or whitewash the uglier chapters of their history.

    Same problem. The real effects of denialism are stronger in countries that where denial is illegal. Look at the political power of (not so secretly) denialist parties in Austria vs. the US. There’s no comparison; they are stronger and more popular in the country where such positions are technically illegal.

    Are you sure about the cause-and-effect link here? I think the more likely possibility here is that where interest in denialist nonsense is already low, there is less incentive to pass anti-denialism laws

    Of course I’m not sure, but whereas I have an empirical correlation backing me up, you don’t even have that. I’m fine pointing out that the flawed and limited evidence we have supports the value of free speech. Because however flawed and limited it is, its still got more evidential support than your alternative.

    Your counterargument is very analogous to the fundie creationist one against evolution: “I see flaws…therefore Jesus!” You probably agree with me that such an argument doesn’t work, right? Before a belief in creationism is warranted, we’d need actual, positive evidence supporting creationism. Well, where’s your actual, positive evidence that legal restrictions on holocaust denyisc speech reduce holocaust denial?

  13. Raging Bee:

    The real effects of denialism are stronger in countries that where denial is illegal. Look at the political power of (not so secretly) denialist parties in Austria vs. the US. There’s no comparison; they are stronger and more popular in the country where such positions are technically illegal.

    Have you read ANY history of that region? Hatred of Jews — the primary force behind all this denialism — has been “stronger and more popular” in central Europe for CENTURIES before any of these laws were written. Antisemitism isn’t becoming popular because of any laws; it’s becoming popular because people’s memories of the Holocaust are fading — and for other reasons having more to do with the economy than with laws.

    This tired old canard about prohibition making prohibited activity more popular is being mindlessly repeated with no regard for actual facts on the ground. There are good reasons not to support anti-denialism laws, but this ain’t one of them.

  14. Bronze Dog:

    One advantage I see in allowing Holocaust deniers to speak freely: It more likely encourages dedicated people to openly counter denier claims, which means more people will have heard the counterarguments and will be able to look them up. The truth gets supported by the evidence and logic, not government endorsement. Bad speech gets countered with good speech.

    In contrast, if Holocaust denial is banned, reporting a denier to the government might be more tempting than writing a detailed refutation of his claims. Fewer refutations means less chance that someone will have access to good counterarguments if he encounters a denier who starts spouting canards. Also, a lot of people tend to assume government censorship means a lack of substantive counterarguments.

  15. Draken:

    @Raging Bee: systematically attempting to erase a significant event from the history books

    That is, as eric also suggested, speculation if not clearly demonstrated. Likewise many American christians seem to be convinced that atheist action against religion in the public space is merely a liberal conspiracy to remove religion from society altogether. They don’t trust atheists, so they ascribe a sinister motive to our doings. Maybe we’re doing the same with these rightwing extremists.

    So what’s the problem? If a law against historical denialism has the effect of at least making people aware that denialists exist, and maybe keeping the lies out of certain venues like public school classrooms, without actually preventing the denialists from expressing themselves, then the law is doing some good without really stifling anyone’s free speech.

    Laws against holocaust denial are exceedingly convenient to be construed as laws against holocaust revisionism. This has the nasty side effect that serious scholars from Europe who dispute the exact number of victims can become subject to legal persecution. (There’s an article on Rationalwiki discussing some of this).

    Furthermore, such laws that are kept on the books “just in case” tend to fall asleep and suddenly stick up their head decennia later, like WWI gas grenades in a muddy field. In the very secular Netherlands, for example, is still a blasphemy law that I think has never been applied in practice, but still it’s there and politicians keep dragging their feet in scrapping it. You really don’t want such skeletons in your law books.

  16. Raging Bee:

    If people want to loudly and publicly profess their delusions, then let them. It’s like nature’s own warning signals.

    Yeah, because if we do anything to keep bigots from monopolizing our attention, we’ll all forget they exist.

    If they’re crazy or possibly dangerous, then isn’t it better that we all know about it?

    Not always, as Amanda Todd’s family might remind you.

  17. AsqJames:

    There are clear differences between denying a historical event like the Holocaust and mocking religious prophets

    I would put it a little differently. There are clear differences between offending the feelings of people who believe something true (and may even have directly experienced it) and offending the feelings of those who believe something false (or for which there is little or no evidence).

    The remedy for both remains the same though: demonstrate the true facts through evidence, logic and rational debate. In other words allow true speech to crowd out false speech.

    One of the dangers of banning the promulgation of certain bad ideas is that people think this makes the ideas has go away. It doesn’t, but we act as if it does and no longer rehearse the arguments against those bad ideas. The way we record and retrieve information (books last centuries after all) means we’re highly unlikely ever to completely kill off such ideas, so maybe allowing a small number of people to continue to spout their BS is like having a vaccination program for a disease we can’t entirely eradicate.

  18. AsqJames:

    For a clearer and more succinct version of my comment @17, see Bronze Dog @14 ;)

  19. Raging Bee:

    In contrast, if Holocaust denial is banned, reporting a denier to the government might be more tempting than writing a detailed refutation of his claims.

    What makes you think those two responses are mutually exclusive? If you wanted to report a denier to the cops, you’d probably have to compile a detailed refutation in order to prove him guilty.

  20. typecaster:

    Compare that to the United States, where toxic polemics claiming to have uncovered a “Holohoax” are protected by the First Amendment, fascism is almost nonexistent as a political force.

    I would be very interested in knowing exactly what this guy’s definition of fascism is. True, we don’t have any significant parties that define themselves as Fascist organizations. However, I certainly see a number of traits that I consider to be part of the fascist worldview emerging on the far right. After all, fascism is defined as a radical authoritarian nationalist political ideology. I’m pretty sure we’ve got one of those.

  21. Nick Gotts (formerly KG):

    The right thing to do is to ban neither form of expression. He also points out that those European laws have done little to combat racist extremism – Ed Brayton

    Neither of these claims is established by anything you say. Without a systematic study of the effect of such laws – and if you know of one, you’ve kept it to yourself – you are simply expressing your prejudices. How do you think you know “those European laws” have done little to combat racist extremism? In response to your USA/Europe comparison, I could equally point out the comparison between inter-war and post-war Germany: in the former, there were no laws against hate speech, and Hitler used it extensively in his rise to power; in the latter, there are hate speech laws, and no neo-Nazi party has come anywhere near it. I could also note that the one place in Europe where a party that goes out of its way to advertise its links to Nazism has had any success is Greece – where indeed, such laws exist, but are not enforced. thirdly, I could point out that very few European countries have a party of the far right with a realistic prospect of power, as the USA does. Are there other variables in these cases that I’m not taking into account? Of course – just as there are with your own facile comparison of the USA and Europe.

  22. Raging Bee:

    Compare that to the United States, where toxic polemics claiming to have uncovered a “Holohoax” are protected by the First Amendment, fascism is almost nonexistent as a political force.

    The most charitable response I can muster to this rubbish is “He’s kidding, right?” How can anyone be that ignorant of present-day American politics? The 9/11 hijackers showed a better understanding of America than this fool is showing.

  23. rork:

    People say stuff that is mathematically false daily, and though I find it very offensive, I’m not proposing laws. The small minority that are below the median in math knowledge could still flood the jails. Also, we’d need an inquisition.

  24. Raging Bee:

    The remedy for both remains the same though: demonstrate the true facts through evidence, logic and rational debate. In other words allow true speech to crowd out false speech.

    Actually, there are plenty of cases where that’s nowhere near enough. That’s why we have laws against slander, libel, defamation, fraud, etc. — because mere criticism doesn’t always stop innocent people from getting hurt.

    One of the dangers of banning the promulgation of certain bad ideas is that people think this makes the ideas has go away.

    I have not met anyone, on either side of this debate, who thinks this. I’m sure that decent people in central Europe have a pretty good idea of how hard their peoples’ bigotries are to get rid of; and passing a law won’t magically make them forget all that.

  25. rork:

    Bee: we have laws about slander etc. So you need to say whose leg is being broken, else straw man.

  26. Raging Bee:

    Whose leg is being broken? Try the entire population who are, in effect, accused of fabricating a genocide story. And that’s not counting all the people, of all ethnicities, who could be misled into some serious mistakes by the systematic spreading of such lies. This scale of lying picks everyone’s pocket and breaks everyone’s legs.

    I don’t have to support any new laws to know that Holocaust denial causes real harm.

  27. Raging Bee:

    I would put it a little differently. There are clear differences between offending the feelings of people who believe something true (and may even have directly experienced it) and offending the feelings of those who believe something false (or for which there is little or no evidence).

    In other words, the way you “put it” is to deny the importance of objective and verifiable facts, and pretend it’s all about “feelings.” And the way you “put it” is plainly false.

  28. rork:

    If all falsehoods are made illegal, we will have lots more inquisitors, lawyers, prison guards and inmates. Not my idea of utopia.
    The greatest harm from holocaust denial I’ve seen is the bloody hole it leaves in the speaker’s foot, if the foot didn’t get blown clean off.

  29. eric:

    Nick Gotts:

    How do you think you know “those European laws” have done little to combat racist extremism?

    I suppose one could claim that the Freedom Party would have 40% support instead of 21% without such rules. But again, that’s just speculation and you’re just using the “you have gaps! Therefore Jesus!” creationist counter-argument. There is zero evidence these rules do what you want them to do, and a refuting correlation. Does it prove causation? No. Is it a rock-solid case for free speech? No. But is the evidentiary support for free speech better than the evidentiary support for your position? Absolutely.

    IMO the burden of proof (in the US) is going to be on those who want to restrict speech. Absent any clear evidence one way or the other, free speech is going to be preferred because of the 1st amendment. You certainly haven’t met any, even minimal, burden of proof that your proposed solution will work. The fact that other countries have been trying it for decades and they still have relatively higher levels of antisemitism may not settle the matter. But it does provide more credibility to free speech defenders than it does to you.

    In response to your USA/Europe comparison, I could equally point out the comparison between inter-war and post-war Germany

    You could, but everyone would laugh. Comparing how antisemitism has shrunk (or not) in a variety of postwar countries with different speech laws may not be perfect, but its a far sight more reasonable and relevant than the comparison you offer as “equal.”

  30. Nick Gotts (formerly KG):

    There is zero evidence these rules do what you want them to do, and a refuting correlation. – eric

    Your claim is simply false. I have provided you with three counter-examples, two of which you ignore, and one which you dismiss without argument. Suppose Weimar Germany had had, and enforced, laws against hate speech: would Hitler have found it so easy to stir up pathological hatred against Jews? He’d either have spent most of his time in prison, or been forced to curb his rhetoric. The case of Austria is an interesting one: it was allowed to get away with claiming to be the Nazis’ first victim, in plain contradiction of historical facts, and so never underwent the kind of de-Nazification Germany did. I doubt that it’s simply a coincidence that (covert) neo-Nazism is so strong there.

    rork,

    you need to say whose leg is being broken, else straw man.

    I used to know very well a daughter of Jews who fled the Holocaust. She found Holocaust denial intensely frightening, interpreting it, quite reasonably, as an implicit threat to repeat the genocide. There should be, as I think all here agree, no right not to be offended; but there should be a right not to be terrorised, and in the case of Holocaust denial, this conflicts with the right to free speech. It’s very easy to be a free speech absolutist if you are either not going to be on the wrong end of hate speech, or are psychologically robust enough for it not to frighten you.

    If all falsehoods are made illegal

    Do you actually read what you write? How the fuck can you be such an idiot as to follow a claim of “straw man” against Raging Bee, with this piece of garbage? Absolutely no-one, anywhere, at any time, has ever proposed that all falsehoods should be made illegal.

  31. khms:

    I can’t speak for the rest of Europe, but my understanding of the situation in Germany is this:

    * The laws against holocaust denialism, and against using Nazi symbols, are essentially about politics – the first, because (people believe, quite possibly correctly) it would be disastrous politically for Germany to be seen as tolerating those, and the second, because when those laws were created after WWW II, people were afraid the Nazis would just reorganize and get to power again.

    * Nobody (at least these days) seems to expect those laws to make the ideas go away. That is why there are lots of programs to engage with the people who are attracted to those ideas, documentaries, and so on; and why the Verfassungsschutz (literally “constitution protection”, the intelligence service for the interior, one federal and one in each state) is supposed to keep an eye on them (and we currently have a big scandal where they failed to catch some right-wing terrorists, mainly, it seems, through incompetence).

    * And as far as I can tell, in Germany, those ideas are nowhere near a 20% party, as it looks to me might be the case with several of our neighbors.

    So: no, those laws don’t make the ideas go away, it takes hard work – but that hard work is actually happening, as far as I can tell, and looking at our neighbors, it seems to be fairly successful. I get the impression our neighbors might not have motivation as strong as ours to do that, given our history around WWW II.

    Personally, I think these laws have done whatever they could do, and are superfluous; but killing them would still be a bad idea, because however good the intentions, it would be seen as supporting those ideologies by lots of people, especially in other countries. And that is, unfortunately, something we really can’t afford. On the other hand, they don’t seem to cause much of a problem, either.

  32. Scott Simmons:

    Irreverend Bastard says:

    jehk says:
    So we’re going to punish people for denying reality?

    Wouldn’t that kill off religion?

    It might. But it would probably have some bad effects as well.

  33. Raging Bee:

    I used to know very well a daughter of Jews who fled the Holocaust. She found Holocaust denial intensely frightening, interpreting it, quite reasonably, as an implicit threat to repeat the genocide…

    I can’t read this person’s mind, but I’d venture a guess that she’d view Holocaust denial, not merely as an incorrect notion, but as a blanket accusation that all Jews had deliberately fabricated a genocide story. And if the denialism had wide currency in the places where she went about her business, that would amount to a majority creating a hostile atmosphere for a minority: if so many people were seeing, and repeating, such stories, could she trust anyone else to believe anything she said? If a significant fraction of the population were regularly exposed to a belief that Jews had told such a huge lie, and allowed that belief to be repeated everywhere, then a Jew living among this population might have a hard time trusting others to believe her if, say, she had to report a crime or seek government assistance to which she is legally entitled. Would this Jew feel able to step up and exercise her legal rights in such an atmosphere on the same level as non-Jews? Probably not.

  34. lofgren:

    If I understand correctly, based on a documentary about such a case that I saw many years ago, the process of proving somebody guilty of Holocaust denialism requires proving that their statements are so egregiously false that they must be malicious. In other words, the law basically requires that the denier publicly defend his beliefs against a panel of experts, and then the if he loses that debate he goes to jail.

    I kind of feel like the “go to jail” aspect of this is superfluous, but a massive, public, rhetorical flogging of denialists seems like a very good thing.

    I agree with Raging Bee. Making laws against speech absolutely has a chilling effect on the expression of that speech, which absolutely hinders the spread of those ideas. Why the fuck do you think free speech is so important?

  35. lofgren:

    The thing that drives me crazy about these conversations about free speech with Raging Bee is that he always manages to keep them so general that it is essentially impossible to argue, because he can just shift the goalposts and claim that he is not arguing what you think he is arguing.

    Let’s assume that there is significant national support for modifying the freedom of speech to make certain statements illegal. How, exactly, should this law be phrased? Is it illegal to say, “I don’t believe in the holocaust?” Or do you need to say why you don’t believe in it? What if you believe it, but don’t think it was as bad as everybody says it was? Do you have to contradict proven facts? At what point is a fact sufficiently proven that it can be considered a matter of law? Is it illegal to express this idea vocally, or do you have to write it down? Is it legal to tell your schoolteacher? Is it legal to tell your family at the dinner table? What should be the punishment? Is it illegal to write a book about it? Is it more or less illegal to publish that book? Is it illegal to say you don’t believe in the holocaust anonymously on a web forum? Does the moderator of that forum face any penalty if they fail to take the comment down quickly enough? What if you’re at a party where there are, say, twenty people present? What if you write it in a personal journal?

    I want to know exactly what we are talking about here, because it’s the details of such a law where I believe the greatest danger lies. “There oughtta be a law!” isn’t much of a position. What law ought there to be? How do phrase such a law so that it is actionable but not vulnerable to misinterpretation or manipulation? What is the actual line that we are drawing here?

  36. eric:

    Nick,
    I suspect there is a point we can agree on: the data is murky. But my main point – and the one you ignored – is that the most reasonable policy response – at least in the US, given the importance of the 1st amendment – to murky data is to not restrict speech. Any argument in favor of restricting such speech is going to have to do more than point to the data and say “problems!” or “the data doesn’t prove beyond a doubt that it won’t work! It might work!” The burden of proof is going to be on you to show that there’s a good chance that it will work. NOT that the end-state is a good one – I’d agree that less holocaust denial is a noble goal – but that your solution is going to work. IMO, you haven’t done that.

  37. AJ Milne:

    lofgren/#35:

    This is generally my concern with these conversations, too.

    Oddly enough, though I’d like to take eric/#36′s direction too, regarding the whole ‘it doesn’t work argument’, I don’t consider it so much empirically demonstrated either way, really well, but:

    Honestly, I’d be more surprised if it didn’t work. We’re very much a language-using species, and controlling language very much does control thought. That’s why freedom of speech and freedom of conscience are frequently linked. That’s why if you want to get someone to agree with a creed, you coax them to keep mouthing it even when they don’t, so on.

    I think it works. And I think it’s a very, very brute force method of compelling agreement, forcing it through the power of law, this way, then, therefore. And rendering things unthinkable with that kind of force is kind of… implicitly repugnant, even when what you’re trying to render unthinkable is itself repugnant.

    That, I think, is one of the chief reasons I generally regard all such attempts, however well-intentioned, with profound anxiety and suspicion. It seems to me too much like the same ugliness and carelesness I see when someone starts trying to force stuff out of bounds through other methods of brute power–like threatening violence, trouble, threatening your relatives, whatever the hell it is.

    Nick, especially, I want you to understand this because I’ve given you some trouble over this before. I don’t expect it’s going to be the last time.

    Try to understand this: this isn’t some debate club thing with me. This isn’t some la de da, watch me quote More thing…

    It’s a lot more visceral than that.

    I’m not saying it’s entirely rational, but listen: talking with people like you about this stuff, sometimes it feels like someone is standing on my trachea. There are things about this world I don’t just want to say; I want to fucking scream them. The notion that this might be ruled out of bounds, honestly, it seems to me I might as well just give you the damned garotte now, get this over with.

    Like I said: not entirely rational.

    But try to get this, anyway: people talking like you really do scare me. It isn’t some cutesy rhetorical debate club pose. You really fucking do.

  38. lofgren:

    There should be, as I think all here agree, no right not to be offended; but there should be a right not to be terrorised, and in the case of Holocaust denial, this conflicts with the right to free speech.

    It’s still the Heckler’s Veto. Just because you feel something really, really strongly doesn’t mean that it’s rational, nor that other people’s rights ought to be curtailed so that you can avoid that thing.

  39. laurentweppe:

    No, No, No, No, and No.
    That’s a lot of Noes, huh?
    But trust me, each one is warranted:
    .
    No number one:
    Holocaust denial does not qualifies as free speech because it is not, has never been, and will never be in any form speech
    Holocaust denial is a lie. A big. Fucking. Lie. No peddler in holocaust denial has ever believed his own speech: it’s not possible, since the reality of the Shoah is what fuel the denial.
    Holocaust denial is the lie invented by antisemites who are so turned on by the slaughter of Jews that they can’t help but wanting to do it again, yet are unwilling to aknowledge their own repugnant bloodlust. So they claim that the very massacre they want to restart never happened and that it’s righteous indignation which fuels their contemporary antisemitism:

    Jews claim we slaughtered them, That’s a lie!, therefore we as slandered innocents are entitled to want to kill them all now!

    Lies are not speech. Lies meant to justify hatred and murder even less so.

    ***

    No Number Two
    .
    There is no double standard.
    Holocaust denial and bashing religious figures are two things so different that trying to put them under the same sets of standard is meaningless.
    .
    If you want to compare comparable things, you should compare attacks and criticism on Muhammad’s character and life and legacy with attacks and criticism on other religious figures.
    And the fact is you can bash Maimonides and Buddha and Saint Peter your heart content in Europe: no law in Europe forbids you to do that. Of course, there is always the possibility of ending up facing a zealot judge who decides to make up a fantasist interpretation of the existing law, or to go retrieve from the books an ancient article inherited from the middle-age which the law makers have yet to abolish, but when that happen the European Court of Human Rights end up censoring the judge.
    What you cannot do is using the outward appearance of criticism as a rhetorical trick to disguise your intent to oppress or banish or downward slaughter a religious or ethnic or sexual minority. Unlike the US, the judiciary in many european countries will not play dumb and oblivious of where your dogwhistling is going.

    ***

    No Number Three:

    This is going to be the biggest one:

    Compare that to the United States, where toxic polemics claiming to have uncovered a “Holohoax” are protected by the First Amendment, fascism is almost nonexistent as a political force

    Fuck This

    The idea that “fascism is almost nonexistent as a political force” in the US is a fucking lie almost as big as the holocaust denial one.
    .
    You know what? I’m starting to get really sick and tired of seeing this form of chauvinistic pretense.
    .
    Fascism is not existent in the US?
    How confortable it must be to have a two-party system allowing one to pretend that fascists do not exist since they are hidden in plain view. One can, say, point fingers at France, or Holland, or Austria, and say that far-right parties earn 15-20-25% of the vote. Tell me Ed: if the GOP did split, between a classical conservative and a Tea-Party/Racism/Dominionist wing, how many votes would this Made in USA fascist party earn? Because with a quarter of the american public identifying with the Teabaggers’ collective on the eve of the 2010 elections, I’m pretty sure that the US has the same ratio of fascistic voters in his electorate than Europe, if not more.
    .
    Also, you know what: for all their efforts, european fascists have yet to manage to reshape our prison systems into an industry meant to rig the political and economical competition by keeping millions of our compatriots away from the ballots and the workforce. They also have yet to completely sabotage our school systems, or our healthcare, or our energy policies, or our diplomacy, and unlike your “fascist free” utopia we can still put corrupt cops in jail without seeing the far-right threatening to take up arms against the state with the tacit benediction of a majority of the political class.
    .
    So Fuck Moynihan for writting this and while I’m at it: Fuck You for quoting his shitty argument like it was some self-evident unquestionable truth: because for all your posturing about the supposed superiority of your system, fascists have much less influence on my side of the Pond than on yours.

    ***

    No Number Four:

    Why do you think the “moderate” right never merged with the far-right in Europe? What’s stopping right-wing pundits and politicians from openly getting in bed with the fascists and completely incorporating the far-right plateform into theirs?
    .
    Certainly not the lack of wanting: everytime one Big, Bad, Evil Socialist start talking about taxing them more the standard bearers of the upper-class start wispering about allying themselves with the far-right. Certainly not the fear of losing voters: they know their electorate and know that it is far too submissive to even threaten to go to the over side: if an alliance with the far-right were to happen, the moderate right-wing voters would be disgusted, but would still vote for the Right. This is not ethic or morality (because, once again, what good does one’s conscience when some mean lefty is about to take from you your grandad’s grandfather’s hard earned money.) and I doubt it’s De Gaulle’s, Churchill’s and Adenauer’s ghost are haunting them.
    .
    What keeps a merging between the traditionnal representatives of the upper-class and the far-right is the fact that by merging with the far-right, they would be forced to start to openly defend the lies and biggoted fantasies of the far-right, which could lead them to fines, prison sentences, or being forbidden from running for election.
    .
    European Laws against racial hatred are not meant to be used against some idiots quoting Mein Kampf on an internet forum: their role is to be used to keep politicians and pundits in check, and in the end, it has worked better than in the US where one may be forgiven for wondering who’s the master and who’s the lackey when watching the current state of the GOP.

    ***

    No Number Five:

    For the love of God, Darwin and Sid Meier, stop using Hitchens as your pro free-speech joker.
    The man displayed in the past a very nasty side. After he displayed such a bonner for slaughter, I, for one, cannot see his advocacy of free-speech as anything but dishonest attempts to disguise his desire to rub his bloodlust on everyone’s nose as some sort of great high-minded principle. I know he fancied himself as some sort of modern mix of Voltaire and Orwell, but the more time pass, the more I see him as the pundit version of Violentacrez, with more wit and fantasies involving the massacre of people he saw beneath him instead of middle-schoolers showing their rib cages.

  40. Raging Bee:

    Try to understand this: this isn’t some debate club thing with me. This isn’t some la de da, watch me quote More thing…It’s a lot more visceral than that.

    So our talking about the visceral reactions of people facing the consequences of hateful lies, is causing a visceral reaction on your part…and you want us to respect your visceral reactions and not theirs? Do you have any idea how selfish and hypocritical that sounds?

    But try to get this, anyway: people talking like you really do scare me.

    Ed already admitted from the get-go that Germany’s Holocaust-denial laws weren’t having all that draconian effect on free speech. Maybe you should chill a bit and come back to this later.

    It’s still the Heckler’s Veto.

    What about laws against slander, defamation or fraud? Is that “the heckler’s veto” too?

    Just because you feel something really, really strongly doesn’t mean that it’s rational…

    Read the comments again: this isn’t about feelings, it’s about deliberate and malicious misrepresentation of significant material facts.

  41. AJ Milne:

    So our talking about the visceral reactions of people facing the consequences of hateful lies, is causing a visceral reaction on your part…and you want us to respect your visceral reactions and not theirs? Do you have any idea how selfish and hypocritical that sounds?

    I’m going to point out two things, here:

    First, I did not say ‘don’t respect theirs’.

    Second, it isn’t at all anyone’s talking about those reactions that’s creating my reaction. As, of course, I made perfectly fucking clear.

    And I also figure Bee knows this. But Bee figured, hell, let’s slip that charming little insinuation in, what the hey, see if it passes.

    Oh, wait. Third thing:

    There’s no ‘us’, there. That’s your third mistake.

    The thing is, I didn’t ask you. And I never would.

    Yes, I would worry if you ever started to respect my concerns, Bee. Yea, as this would lead me to question my own judgement far more even than I usually do.

    Oh, and re ‘chill’:

    With people like you dominating conversations like these?

    Well, actually, noting this, I probably will breathe a little easier, for now.

    It’s probably not real fair to Nick’s concerns, mind, for all that this latest bent of his has alarmed me. But still. Reassuring.

    (/So, y’know: thanks awfully.)

  42. pacal:

    I have absolutely no respect for Holocaust deniers. They are largely anti-semitic / racist loons. Those that arn’t in that catagory, and they are darn few who arn’t in that catagory, are poseurs who like to shock people and get a frisson from so doing. So they suck also.

    One of the prevalent features of Holocaust denial is a worship of Nazi Germany and a real hatred of democracy. Since so many of them admire Nazi Germany they admire one party police states.
    Starting with Irving, Zundal etc, they most clearly desire the establishment of a “Fascist” style dictatorship.

    That being the case they would very clearly desire the supression of any but their view of the Holocaust by police state methods. Afterall the central motive of Holocaust denial is clearly the rehabilitation of Nazism in order to make it a viable political movement again.

    That their goal is the rehabilitation of Nazism is revealed quite clearly in their account of how the “hoax” arose, which resides in a regurigitation of anti-semitic and Nazi myths of a vast, omnipresent, satanic jewish conspiracy.

    Too me it is pretty clear that most of them devoutly desire a Nazi style dictatorship and that their protestations of free speech are entirely opportunistic.

    Of course they should be free to spread their poison after all I’m guarding my freedom by guarding theirs, but I have no illusions that these people have any real belief in free speech and I’m free to call them the poison that they are.

  43. lofgren:

    It’s still the Heckler’s Veto.

    What about laws against slander, defamation or fraud? Is that “the heckler’s veto” too?

    Just because you feel something really, really strongly doesn’t mean that it’s rational…

    Read the comments again: this isn’t about feelings, it’s about deliberate and malicious misrepresentation of significant material facts.

    What a perfect example of the habit I described in my earlier post. It’s particular rich following this claim in the exact same comment:

    So our talking about the visceral reactions of people facing the consequences of hateful lies, is causing a visceral reaction on your part…and you want us to respect your visceral reactions and not theirs?

    But this isn’t about feelings! Of course not!

    My comment was a response to one argument in one comment, which I quoted. My comment made no attempt to address or rebut any other arguments in favor of holocaust denialism. I have no need to “read the comments again,” because I was not responding to all comments, only one. I have no need to defend slander, defamation, or fraud – fraud isn’t speech, by the way – because none of those concern feelings or the heckler’s veto.

    Are you ready to put some definition to your vague and hysterical rants? Supposedly you are advocating a law here. Laws are made of words, not feelings. I want to know exactly what you want on the books in order to allow us to punish holocaust deniers. Until then, you’re nothing more than a windbag that blows “NUH-UH!” as loud as it can. Pin yourself down to a specific position, then we can talk about whether or not it is reasonable. I am sure as hell not going to concede that outlawing holocaust denial is reasonable until I know precisely what I am conceding to.

  44. lofgren:

    My comment made no attempt to address or rebut any other arguments in favor of holocaust denialism.

    Obviously this should be “…other arguments in favor of outlawing holocaust denialism.”

  45. eric:

    LaurentWeppe:

    Lies are not speech. Lies meant to justify hatred and murder even less so.

    I am green and in many cases, yes it is. Actually I”d say its always speech, but in some cases US law carves out an exception for it being protected (in a courtroom, etc.).

    What you cannot do is using the outward appearance of criticism as a rhetorical trick to disguise your intent to oppress or banish or downward slaughter a religious or ethnic or sexual minority.

    This is your strongest argument, but still not great. General hatred and “I wish you were dead” speech is allowed. Direct incitement to an immediately illegal act is not. Even as a dogwhistle, it mostly falls in the first category.

    Moreover, you have to demonstrate malice on an individual basis. You’re

  46. eric:

    Ack…

    …You’re going to have to demonstrate malice on a case by case basis. Eliminating an entire subject matter because many or most of its proponents are malicious (i) makes guilt the default rather than innocence and (ii) sets a horrible precedent.

    Because with a quarter of the american public identifying with the Teabaggers’ collective on the eve of the 2010 elections, I’m pretty sure that the US has the same ratio of fascistic voters in his electorate than Europe, if not more.

    Ed’s argument might be overbroad but I’d maintain that neo-nazism and violent antisemitism is still lower in this country. The one where the holocaust can be denied.

    European Laws against racial hatred are not meant to be used against some idiots quoting Mein Kampf on an internet forum: their role is to be used to keep politicians and pundits in check, and in the end, it has worked better than in the US where one may be forgiven for wondering who’s the master and who’s the lackey when watching the current state of the GOP.

    This is a complete nonsequitur. Name one position that Mitt would have to change if the US had an anti-holocaust-denial speech restriction. Heck, name one position ANY of this election’s eight or so GOP primary candidates would’ve had to change.

    There are none. None. Such rules would not have changed any 2012 candidate’s official position because the GOP does not deny the holocaust. And they reached that position without having being told they must.

    For the love of God, Darwin and Sid Meier, stop using Hitchens as your pro free-speech joker.

    I sympathize…but this is not really an argument against free speech on this subject. Its just the association fallacy.

  47. Raging Bee:

    Ed’s argument might be overbroad but I’d maintain that neo-nazism and violent antisemitism is still lower in this country.

    In 2000 I would have agreed. Today, it’s totally false, as we can see from the radical right’s actions WRT Katrina, uppity high-school atheists, Terri Schaivo, the Patriot Act, the Iraq war, the lies and anti-liberal hatred used to justify it, the recent voter-purge campaign, the War on Women, stand-your-ground laws, gerrymandering, union-bashing, and more other examples than I have time to remember tonight.

  48. laurentweppe:

    General hatred and “I wish you were dead” speech is allowed

    I’m not talking about someone ranting “I wish you were dead“.
    I’m talking about telling an Audience X “I’m not saying members of Tribe Y should be harmed, I’m just saying that if it happens, they will have had it coming” hoping that someone within Audience X will get your coded message and do your dirty work.
    Saying that this is not direct incitment is a way to say that demanding murder is OK so long as one express themselves through coded messages.

    ***

    Ed’s argument might be overbroad but I’d maintain that neo-nazism and violent antisemitism is still lower in this country

    An assertion which has yet to be demonstrated.

    ***

    Name one position that Mitt would have to change if the US had an anti-holocaust-denial speech restriction. Heck, name one position ANY of this election’s eight or so GOP primary candidates would’ve had to change.

    First, several of the GOP primary candidate would not have been Republicans Party members if the GOP elite had not allied themselves with the Dixiecrats, fundies and other conspiracy fabulists who today make up the GOP right wing: There would have been no Santorum, no Bachmann, no Gingritch… In fact, there would have been no room for Gingritch to raise to prominence during the nineties.
    And had the US had similar laws regarding not simply holocaust denial but every form of bigoted dogwhistle, it would have been a lot harder for the GOP to implement the Southern Strategy: because everytime a politician would have tried to wink at his racist audience, he would have risked fines, time in jail, and even a ban on running for elected office.
    .
    So the thing is, I have a hard time imagining Romney even running if the US had European styled laws against bigotry. For All I know, this year election would be about Obama/Biden running against a Bernie Sanders/Paul Krugman ticket, with most of Romney plateform being represented by Third Party far-right candidate Bachmann.

  49. lofgren:

    Saying that this is not direct incitment is a way to say that demanding murder is OK so long as one express themselves through coded messages.

    Actually, and maybe a lawyer could correct me if I’m wrong, I believe it is perfectly legal to say “I think we should kill all the Jews.” In fact white supremacists say this with some regularity.

    It is not legal is to say “I think we should kill those Jews, right now.

    To the extent that Holocaust denialism is a coded message – and I would agree that in most cases this is true – it’s a coded message for the former, entirely legal statement, not the latter.

    And the fact that something can be a coded message does not mean that we can go making the code illegal, anymore than we can make Morse code illegal if somebody uses it to spell out “Kill all Jews” (or even “Kill those Jews, right now.”)

    Yes, I realize we’re not talking about that kind of code. I stand by the position, even if the analogy is flawed.

  50. =8)-DX:

    From the Czech Republic – as far as it’s ever been explained to me or what I’ve understood, the anti nazi and anti-holocaust denial laws are not about stifling freedom of speech or “thought-crimes”. Rather the Nazi party is seen as having been a criminal organisation, so the laws are essentially against propagating a criminal ideology (criminal because it advocates murder) or lying to propagate or excuse criminal behaviour.

    Basically you can get arrested for giving the nazi salute in public, for swastikas or nazi emblems and for shouting things like “gas the jews”, but it’s not the emblems or actions themselves – it’s the criminal intent that’s prosecuted. For instance parodying nazism or neonazis (through the use of the same kind of speech) is perfectly legal.

    The logic is something along the lines of organising a group of people to perform a heist being illegal, or conspiring to bomb parliament.

  51. rork:

    “Do you actually read what you write? How the fuck can you be such an idiot as to follow a claim of “straw man” against Raging Bee, with this piece of garbage? Absolutely no-one, anywhere, at any time, has ever proposed that all falsehoods should be made illegal.” That’s the polite Nick @30. I figured someone might say that.

    The logic of why holocaust denial should be made illegal by Raging Bee appears to me to make it possible to pass laws prohibiting almost any kind of speech that we can brand as untruthy, if we can find anecdotes of it causing pain to some people. Why should holocaust lying be special? Just because it’s your pet cause? Maybe birther talk, or spewing the lie that increased U.S. oil drilling can cut gas prices in half, should also be make illegal. Germans and some others think they do have a special reason for this particular lie. I don’t agree with it, but moreover I think it’s not a special case in America. I’ve seen 10 times more terrifying speech from gay-haters and racists.

  52. eric:

    I’m talking about telling an Audience X “I’m not saying members of Tribe Y should be harmed, I’m just saying that if it happens, they will have had it coming” hoping that someone within Audience X will get your coded message and do your dirty work.

    My response to this is substantially the same as @49′s.

    First, several of the GOP primary candidate would not have been Republicans Party members if the GOP elite had not allied themselves with the Dixiecrats, fundies and other conspiracy fabulists who today make up the GOP right wing: There would have been no Santorum, no Bachmann, no Gingritch… In fact, there would have been no room for Gingritch to raise to prominence during the nineties.
    And had the US had similar laws regarding not simply holocaust denial but every form of bigoted dogwhistle, it would have been a lot harder for the GOP to implement the Southern Strategy: because everytime a politician would have tried to wink at his racist audience, he would have risked fines, time in jail, and even a ban on running for elected office.

    You and Bee both seem to think that pointing out the existence of a wide variety of bad republican things is a legitimate defense of free speech restrictions on holocaust denial. Its not a legitimate defense – its not even revelant. Yes the dixiecrat move to the GOP changed voting patterns. Yes they use dogwhistles. Racist ones mostly. How would making holocaust denial illegal change who they vote for?

    And to Bee – Hurricane Katrina? Gerrymandering? WTF do those things have to do with this conversation? Do you realize gerrymandering is 50 years older than the civil war (and, thus, the GOP), named after a member of the forerunner of today’s Democratic party? You sound like a conspiracy theorist, trying to link everything to everything, with no concept of historical context at all. How exactly is a political practice invented in the ~1810s by a democrat evidence that 2012 statements about events occurring in the 1940s are really secret code for imminent violent attack?

    So the thing is, I have a hard time imagining Romney even running if the US had European styled laws against bigotry

    Again, name one policy position Romney has made that would be illegal under your speech restriction. You can’t, because this is a complete nonsequitur.

  53. rork:

    “It’s very easy to be a free speech absolutist if you are either not going to be on the wrong end of hate speech, or are psychologically robust enough for it not to frighten you.” @30

    I have caught not just hate, but spit, fists, and had my car set on fire. When I was young, if you dressed provocatively (how I do miss my former powers to make ‘em burn) or had a car sporting a pink triangle, these extras were common. If there’s been decrease of that, it’s not cause of any law I know.
    Point: The law is not the only or surest way to win the argument.

  54. neuroguy:

    It absolutely boggles the mind that there could be posters, on a blog dedicated to atheism/skepticism/social justice, who could in any way think the right to free speech should be minimized or derided. Aside from the fact that we would have been, ourselves, not that long ago, imprisoned or killed for saying there is no God, the earth revolves around the sun, humans descended from a common ancestor, etc., the main point is this.

    The truth of a proposition is much more important than its social utility.

    If you don’t believe this, than why not support organized religion and control people by getting them to believe the Sky Daddy will punish them if they don’t behave.

    I’m sure Raging Bee and those who agree with him will say “but Holocaust denial and organized religion are both lies!!” He’d find plenty of company in Muslim countries from those who would say “Atheism and evilution are both lies, as are the vile falsehoods being spread about the Prophet (may he rest in peace). Death to all infidels!”

    The secondary point is, The government does not get to decide what is truth. I much prefer a free society to 1984 or Communism, thank you very much. We find truth by free debate and rational arguments, not by the government deciding what is truth.

  55. laurentweppe:

    You and Bee both seem to think that pointing out the existence of a wide variety of bad republican things is a legitimate defense of free speech restrictions on holocaust denial

    Are you playing dumb?
    Why, Yes, you are playing dumb.
    You are pretending that all my argument was centered on defending the laws making holocaust denial illegal, while only my first point out of five was a defense of forbidding holocaust denial.
    Which means that you either did not bother to read what I wrote or decided to pull a Romney and start bashing a fictionnal strawman with my name on it..

  56. lofgren:

    while only my first point out of five was a defense of forbidding holocaust denial.

    Once again, the problem is that every one of you has refused to state explicitly what law you desire to be written, and how it should be implemented.

    What exactly are you advocating? Even within your comment, you seem to be referring to several different laws – one banning bigotry in all its forms, one banning racist dog whistles, one banning rationalizations for racism, and finally one banning messages that you interpret to be coded endorsements of killing. I say again: state clearly exactly what law you are advocating, or this conversation is pointless.

  57. laurentweppe:

    Once again, the problem is that every one of you has refused to state explicitly what law you desire to be written, and how it should be implemented.

    I’m not talking about laws I “desire” to be written: I’m talking actual laws, which are already written, are already enforced, and have already produced better results than the american ones.

  58. lofgren:

    I’m not talking about laws I “desire” to be written: I’m talking actual laws, which are already written, are already enforced, and have already produced better results than the american ones.

    Fine. Citation please.

  59. pelamun, the Linguist of Doom:

    I basically agree with laurentweppe, but let me add one tidbit:

    Germany is not considering making Hitler’s book legal, as it was never banned.

    Only, the state of Bavaria is heir to his estate, which includes the copyright to his books. They tried to suppress circulation based on that. But in 2015, it will be 70 years since Hitler killed himself, and the books will fall unto the public domain.

    Which is why there are efforts to republish the book in a new critical edition.

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