Holocaust Denial and Free Speech

April 21, 2010

A German court last week found controversial British Catholic Bishop Richard Williamson guilty of inciting hatred by denying the severity of the Holocaust. Williamson had said in a television interview that “no more than 300,000 Jews perished in Nazi concentration camps ... not one of them by gassing in a gas chamber,” contradicting overwhelming historical evidence . The bishop, who acknowledged his statements in court, was fined $13,500.

Williamson is obviously wrong, and he seems like an unpleasant fellow with a history of stirring the pot with ridiculously false claims. But for free speech advocates such as myself, this case raises important questions about free speech and government interest. Holocaust denial is currently illegal in 14 countries, including Germany, Austria, Belgium, Czech Republic, France, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia and Switzerland. Understandably, these countries have a different relationship with the Holocaust than does the U.S. But isn't the market of ideas and speech supposed to be completely open, free of governmental policing? Isn't Williamson allowed to say whatever he wants to say (at risk of sounding like an idiot)? Why levy fines on such statements?

It is important to realize that, even in the U.S., speech is not completely free and open. For instance, one faces legal punishment for falsely yelling "fire!" in a crowded movie theater that is not, in fact, on fire. This is because such speech might cause serious harm on many people. To compare, the 14 governments above would likely charge that Williamson's statements might do more than just upset some citizens -- they might spark social unrest within a civil society.

On its face, this seems in line with the way the U.S. handles speech. In the U.S., citizens have the responsibility to review, and accept or reject, statements placed in the public square. But the government, with an interest in protecting its citizens, reserves the right to step in every so often and punish speech that either causes physical harm, or, within reason, might potentially cause physical harm. As we will see, these punishments are doled out on a sliding scale. This is seen as a safe middle ground between free speech and liberty, and protecting citizens. To illustrate, let us consider two examples.

As you might know, the Westboro Baptist Church shows up at many funerals for American soldiers killed at war wielding signs that charge the soldier is dead because the U.S. condones homosexuality. As crazy as these statements are, the government hasn’t banned such speech in these situations. Instead, the government has placed such speech under restrictions of time and distance. Those protesters, then, can say what they want, but cannot do it literally in the faces of mourning parents and family members. While this is partially a privacy issue -- about mourning the loss of a loved one -- I think it is also an issue of preventing an all-out brawl at a soldier's funeral. If protesters break the rules, they face legal punishment. This is free speech with restrictions.

A better example, considering the case at hand, might be yelling "fire!" in a packed movie theater. In this instance, charges would vary depending on whether or not everyone got out safely (fines and perhaps a short jail sentence); if people were injured (more fines, higher likelihood of jail time); or if people died (serious jail time). Notice the difference between two considerations: “what happened because of that speech?” and “what might happen if we freely allow this speech?” In effect, the government’s response to a criminal act is based not just on the act itself, but also on the potential for harm that act creates. So, while the “fire!” yeller’s punishment would increase as the consequences of the act itself worsens, there is still a baseline punishment that serves to punish people who commit the act, and set the conditions for harm.

Going back to the topic of this post, in 14 countries, Williamson can still spout his hurtful nonsense, but he will face some form of light punishment (a fine) for doing so, and worse punishment depending on the consequences of his speech. But the ban on Holocaust denial rests on the argument that such statements do actually set the stage for potential physical harm. There are two problems with this. First, even if there is a reaction to Williamson's statements, this is not the "fire!" in a movie theater case, where immediacy matters. Instead, reactions to Williamson's statements are freely and more slowly formed in the open society. Why punish him for those reactions? Second, and perhaps more to the point, I am not so sure the governments can actually make the case that such statements set the stage for potential harm -- in fact, I'm not sure they can even come close. While I am open to being proven wrong, from my research there isn't a single case one could use to paint the potential for physical harm. So, why punish such statements at all?

As the responsible citizens you are, I put these questions to you. Your thoughts?

Comments:

#1 John Rosenberger (Guest) on Wednesday April 21, 2010 at 1:53pm

This subject always puts me in a strange place.  I, much like you, am a staunch protector of free speech and feel it is one of our most important rights, one that I and many of my close friends have enlisted in armed service to protect.  However, I am also the son of a Holocaust escapee and the grandson, great nephew and countless other forms of relative of many victims of the Holocaust.

I believe the reason that such statements were punished, least suprisingly of all by Germany, is two fold.  First off, that nation has spared no effort to distance itself from those tragic times and are very sensitive about any implication in their involvement therein.  However, I think more to your point, the punishment of Bishop Williamson versus the placing of parameters of location and time on the Westboro Baptists comes down to the weight the speaker’s words carry.  I think the assumption was that since Williamson, a leader in the SSPX, spoke from a position of authority and therefore his words had a greater ability to incite potential harm.

#2 Old Rockin' Dave (Guest) on Wednesday April 21, 2010 at 5:56pm

It should be noted that every country listed has some relation to the Holocaust, as an occupied and victimized nation, as a perpetrator state, excluding Switzerland, which had a morally ambiguous relationship with Nazi Germany, and Israel, which is a state that speaks for the victims.
In all these states, it is part of living memory and the repercussions will persist for generations. I would guess that the reason for such laws is that Holocaust denial is one step away from whitewashing the crimes of Nazi Germany and her allies and collaborators, something that those states can not yet afford to tolerate.

#3 SimonSays on Wednesday April 21, 2010 at 7:33pm

That’s actually not the worst sentence for Holocaust denial. Historian David Irving got prison time in Austria a few years ago at around the same time that the cartoon controversy happened-something that did lead to charges of a double standard: http://en.wikipedia.org/wiki/David_Irving (not sure if worse sentences have been handed down).

John: I don’t think the US and UK cases are related in any way from a legal point of view.

60 years on I’m on the fence about these laws myself. It is worth noting that (to my knowledge) from an economic and political participation point of view (outside of Israel), American Jews probably fare the best worldwide, a place where similar laws are not in effect.

#4 Michael De Dora on Wednesday April 21, 2010 at 9:28pm

@Simon, thanks for that.

#5 Michael De Dora on Wednesday April 21, 2010 at 9:43pm

@John,

“I believe the reason that such statements were punished, least suprisingly of all by Germany, is two fold.  First off, that nation has spared no effort to distance itself from those tragic times and are very sensitive about any implication in their involvement therein.”

Interesting point. But I’m still not sure I would go as far as allowing the government to make talking about the Holocaust in a critical way unlawful.

I’m struggling to find a comparison here. I considered the KKK—but White supremacists do not deny slavery; they call for the end of segregation. They believe slavery is desirable.

“However, I think more to your point, the punishment of Bishop Williamson versus the placing of parameters of location and time on the Westboro Baptists comes down to the weight the speaker’s words carry.  I think the assumption was that since Williamson, a leader in the SSPX, spoke from a position of authority and therefore his words had a greater ability to incite potential harm.”

Aha. That makes sense. Here’s something to look into, though I bet the answer is yes: would these laws stand for the average citizen in other avenues—say a blog?

#6 Kelly O'Brien (Guest) on Thursday April 22, 2010 at 8:19am

My take on these laws is that they are a direct result of the fact that these countries have a relationship to the holocaust, and how sensitive they are to it. Denial, in the eyes of these countries, if allowed to take hold, may very well allow the same set of circumstances to set up that allowed the Holocaust to occur in the first place. So, in their eyes, in could be the equivalent of yelling “fire” in a theatre.

#7 John Rosenberger (Guest) on Thursday April 22, 2010 at 1:25pm

@Michael,

To be honest, I have written about 4 different screeds in response to this question and each time I re-read it, I disagree with my own point, so I would have to say my answer to that question is “Good question”

#8 L.Long (Guest) on Friday April 23, 2010 at 11:40am

NO!!!!
they should not be punished because that will only drive them underground.
I like knowing who the stupid people are.
But they may convert someone??? Ya So???
The only ones to be converted are other really stupid people.  Again I like knowing who they are.
Just imagine….you ask how many jews were killed in WWII.  They answer you mistaken it never really happened.
Instant knowledge that the person is really stupid!!!

#9 SimonSays on Saturday April 24, 2010 at 7:18am

L.Long is right. This does only drive speech out of the public sphere and underground. Putting people in prison purely for expressing an opinion in public (no matter how repugnant) is the opposite of democracy. I’m not on the fence anymore. These laws need to be repealed.

#10 Ophelia Benson on Saturday April 24, 2010 at 3:50pm

“But they may convert someone??? Ya So???”

That’s a tiny bit glib, isn’t it? Ya so if they convert enough someones, then there’s another Holocaust. It’s not as if systematic mass murder never happens - it’s not as if genocide died in April 1945 never to rise again - it’s not as if people can’t be worked up to go slaughter their neighbors.

The issue is more difficult than just “Ya So?”

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