We didn't start the fire: should Holocaust Denial be criminalized?

The controversy over yesterday's David Irving conviction, and the more general question of whether Holocaust denial should be a criminal offense, seem on the surface to be no-brainers, easily resolvable by saying that the principle of free speech dictates that Irving should be given a get out of jail free card, and that the crime itself be wiped off the books.

That's my knee-jerk answer, and the answer of most of those who wrote in the comments section here.

But, as with almost everything on earth, the actual situation is a bit more complicated than that. First, a little background.

When I started doing the research for this post, I was surprised to find that Holocaust Denial is not a crime in just Germany and Austria, as I'd previously thought. Ten European countries, plus Israel, have established criminal penalties for it:

There are laws against public espousal of Holocaust denial in Austria, Belgium, Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia and Switzerland.

The first thing I noticed is that Holocaust Denial itself is not a crime; it's the public pronouncement of it that is penalized. The speech itself is allowed; what is not allowed is to say it publicly in front of groups--that is, to preach it. It may seem a small distinction, but it's an interesting one.

The second thing I noticed was that, with the exception of Switzerland (and of course Israel, which represents an obvious special case), the countries involved have characteristics that Great Britain, the US, and Canada do not share: their experience of Nazism or of Nazi occupation in WWII.

To Germans and Austrians the danger of public promulgation of Holocaust denial may indeed (especially when the laws were first passed) have seemed like the danger of yelling "Fire!" in a crowded theater. Likewise--although to a lesser extant--to countries such as Poland, who have reason to know the Holocaust in a way that countries such as Britain and the US never can, Holocaust denial may seem a particular affront and a special danger. "He jests at scars that never felt a wound;" and so it is much easier for countries who have not experienced such a cataclysmic upheaval to be absolutist about protecting freedom of speech.

Author D.D. Guttenplan has some insight on these points, as well as a discussion of the differing legal history of the Anglosphere vs. the continent:

In Britain and the United States we regard Free Speech as sacred. Americans venerate the First Amendment, while Britons cite Milton, who in Areopagitica said true Liberty only exists "when free born men / Having to advise the public may speak free". Holocaust denial is currently a crime in Austria, France, Germany, Israel, Belgium, Poland, Lithuania and Switzerland. Do the citizens of those countries value freedom less than we do? Or might other factors be involved?

Robert Kahn, author of Holocaust Denial and the Law, points to a ‘fault time’ separating the ‘common law countries’ of the US, Britain, and former British colonies from the ‘civil law countries of continental Europe’. In civil law countries the law is generally more prescriptive. Also under the civil law regime the judge acts more as an inquisitor, gathering and presenting evidence as well as interpreting it.

Unlike the Anglo-American adversarial system, where fairness is the primary attribute of justice, and the judge functions as a referee, trials under the continental system aim at arriving at the truth...

Ultimately, though, it is the difference in historical experience that ought to constrain our attitude to other countries. In Germany and Austria Holocaust denial is not ‘mere’ Jew-baiting but also a channel for Nazi resurgence much like the Hitler salute and the display of the swastika, which are also banned.

The case for a ban in Israel should also be obvious, if not beyond argument. Similarly, countries where the experience of occupation and the shame of collaboration still rankle ought to be able to make their own decisions...

Guttenplan believes, in the end, that countries such as Britain, with its combination of the adversarial legal system and a history free of the Holocaust collaboration shared by much of continental Europe, should never outlaw Holocaust denial, because the danger it represents here is very small compared to the larger negatives of restricting freedom of speech. But he refuses to say the same for countries such as Germany.

Professor Hajo Funke, a German historian, agrees:

"In Germany and in Austria there is a moral obligation to fight the kind of propaganda peddled by Irving. We can't afford the luxury of the Anglo-Saxon freedom of speech argument in this regard," he says.

"It's not that I don't understand it, it's just not for us. Not yet. Not for a long time."

It was about sixty years ago that WWII ended. To those who are young, it may seem to be ancient history. But it really was not so long ago. Countries that know, through bitter and personal experience, the dangers to which anti-Semitism led a mere sixty years ago do consider it (and other hate speech) to be the equivalent of yelling "Fire!" in that proverbial crowded theater.

I can't find the quote right now, but I remember reading (I believe it was in Primo Levi's fine and highly recommended Survival in Auschwitz) that one of the ways in which the guards taunted prisoners in the concentration camps--those prisoners who were "lucky" enough to have escaped the ovens, at least for a little while--was by saying to them that they would never live to tell their tale, and that the world would never know or care what they had suffered. What's more, the guards said, if by some slim chance some of them did somehow survive and report to the world what had happened, the world would never believe them. And in fact the Nazis worked hard to cover their traces, in hopes that the evidence would remain hidden.

Holocaust denial, seen in this light, is a continuation of Nazi thought, and was in fact part of the Nazi plan--and, if allowed to grow and spread, might represent their final triumph. And so (to continue to use the fire metaphor) the who espouse criminalizing it want to snuff it out while it's still a harmless little brush fire. Because they know that brush fires can grow into--well, into Holocausts.

The Anglosphere has no direct experience of that, fortunately for us. And it has a stronger tradition of freedom of speech.

My personal opinion on Holocaust denial is aligned with that tradition: I believe that it should not be criminalized. I believe it shouldn't be a crime in the Anglosphere, nor should it (at this late date) be one in Europe.

But I also see Guttenplan's point about why Europeans are particularly sensitive to this issue, and why they come down harder on Holocaust deniers: these European countries (and Israel) are the ones who've been burned.

As for David Irving (remember him?), the Wikipedia article has some interesting background information:

The Holocaust denial movement grew into full strength in the 1970s with the publication of Arthur Butz' The Hoax of the Twentieth Century: The case against the presumed extermination of European Jewry in 1976 and David Irving's Hitler's War in 1977. These books, seen as the basis of much of the deniers' arguments, brought other similarly inclined individuals into the fold.

So, far from being a peripheral figure in the movement, Irving has been instrumental in fanning the flames for quite some time.

In addition, the Austrian government has a special reason for wanting him in jail--and that is that he has openly defied its warnings. Austria issued the warrant against him in 1989, and informed him that if he returned he'd be arrested. And so he did, and so he was:

He was arrested in Austria on 11 November last year when he arrived to give a lecture. He was detained on a warrant issued in 1989 under Austrian laws that make Holocaust denial a crime.

During the trial the judge, Peter Liebtreu, compared him to a "prostitute who has not changed her ways for decades".

Mr Liebtreu told the court: "He showed no signs that he attempted to change his views after the arrest warrant was issued 16 years ago in Austria. Although he tried to persuade the court, he failed.

"He is not just someone who sold Hitler statues or who made people do Hitler salutes. He served as an example for the right wing for decades."

So, what about the argument that arresting Irving only gives him publicity, and sympathy for his new status as a free speech martyr? A good point, in my opinion. But here's a differing one that broadens the geographic context of Irving's influence:

The fact is, however, that Irving and his ilk have become dangerous. The interests of the European and North American Holocaust deniers - from Ernst Zundel (on trial in Germany) to the French "scholar" Robert Faurisson - are merging with those of the anti-Semitic ideologists of Arab nationalism and Iranian theocratic rule. If Irving walks free from the Wien-Josefstadt Prison next week he will soon be packing his suitcase for the Holocaust conference in Tehran.

The German authorities have already sensibly confiscated the passport of Horst Mahler - a neo-Nazi who has been advising Zundel on his courtroom defence - to prevent him travelling to Iran. Will we do the same for Irving? Of course not. Suspected English football hooligans will be under virtual house arrest during the World Cup, but Irving, as usual, will be free to travel anywhere. You know: freedom of speech.

The Irving-is-a-chump school describes him as a "fringe academic addressing a group of loopy far-right radicals wearing silly hats in a basement in Vienna". Jailing the man is supposed to award him an undeserved importance. This is a truly parochial view, given that the problem is not strange, skinheaded Austrians in lederhosen (though I worry a bit about them, too) but bearded men in turbans who have never made their peace with Israel. The European input has always been important to the development of anti-Semitism in the Middle East. The widespread Arab hatred of Jews does not derive from the Koran: it stems from the need of national liberation movements for hate figures.

European anti-Semites have fed them from the start. Palestinian nationalists aligned themselves with Nazi Germany, identifying Zionism as the enemy. As the state of Israel took shape, Arab writers (borrowing heavily from European deniers) presented the Nazi gas chambers as a flimsy myth designed to justify a land-grab.

An interesting point. But, in the end, an irrelevant one. Because the sad truth is that the damage has already been done. The horse is out of the barn, the cat is out of the bag, Humpty Dumpty has fallen off his wall and all the king's horses and all the king's men and all the jailers in Austria will not undo the influence of the European anti-Semitism that has been tainting the Arab world for much of this century.

So it seems to me that the only remedy is free speech in the theater of ideas. We must believe in the ability of truth to ultimately triumph, and in our ability to wage war against those who would preach hate and follow through on it with destruction. If Irving and his ilk have influenced Iran, the damage is long done, and the remedies lie elsewhere--unfortunately.

[ADDENDUM: Sigmund, Carl, & Alfred has related thoughts. In addition, thought-provoking posts on the subject are provided by fellow psychobloggers Shrinkwrapped and Dr. Sanity.]