International Herald Tribune, France
Jan 19 2007
Is it a crime or just idiocy?
Ronald Sokol Published: January 19, 2007
PUYRICARD, France: Last week, Germany proposed that all European
Union members adopt a uniform law to make Holocaust denial a criminal
offense. Denial of the Holocaust is already a crime in Austria,
Belgium, the Czech Republic, France, Germany, Lithuania, Poland,
Romania, Slovakia, Spain and Switzerland.
The proposal has prompted a sharp debate on whether denial of an
historical event should ever be criminalized.
The dominant theme in American law is that of Supreme Court Justices
Oliver Wendell Holmes Jr. and Louis Brandeis, who believed that
"unless the incidence of the evil is so imminent that it may befall
before there is opportunity for full discussion the remedy to be
applied is more speech, not enforced silence."
The lineage of that theme traces back to John Milton, who wrote that
if Truth and Falsehood were to grapple in a free and open encounter,
Truth would always win.
There is no doubt that freedom to advocate one’s thoughts and ideas
is a vital ingredient in any healthy society. It is the principal
means by which change can occur and a society can correct the errors
of its leadership.
The vexatious issue is where to draw the line. Even under the
expansive American view there are limits to free speech. In Justice
Holmes’s famous phrase, "The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theater and
causing a panic."
In an inversion of Germany’s criminalization of Holocaust denial,
Turkish prosecutors have sought to punish those who affirm the truth
of the Armenian genocide. If denial of an event can be made a crime,
then logic compels that affirming an event can also be punished.
Yet when governments begin to legislate what is true and what is
false, they embark upon what has historically been a very slippery
slope.
Even on major historical events men and women rarely agree upon a
single truth. Was Napoleon a hero or a tyrant? Each generation must
interpret history anew and discover its own truths, and competing
versions can coexist. The Holocaust itself was not named and
categorized until almost a full generation after the event.
Today only a person in a state of appalling ignorance or advanced
dementia can deny the facts of the Holocaust. Yet if the facts are
true, then why is legislation needed to make the denial a crime?
The American view is that government has no right to forbid speech
unless it will incite imminent lawless action. If that test is
applied to those who deny the Holocaust, there would appear to be no
need for a law. While Holocaust deniers do attract followers, they
are largely ignored by the general public and, at least to date, have
not incited or produced imminent lawless action.
Yet there are also valid arguments for punishing Holocaust denial.
The Holocaust was a methodical effort to exterminate an entire
people; it plunged far deeper into the maelstrom of human depravity
than anything before it.
Holocaust denial is not really about denying a historically
established event. Human language is not limited to conveying verbal
information. It also conveys emotional information and can influence
and incite by the unspoken message it contains. It can be a powerful
message.
The recent Holocaust-denial conference hosted by the Iranian
president is a good example. The emotive message was both anti-Israel
and anti-Semitic. That was in fact its whole purpose.
Holocaust denial can thus be seen as a way to incite hatred against
Jews and the Jewish state. And inciting hatred, whether religious,
ethnic or racial, is generally deemed to be unprotected speech. Just
as there is no right to shout fire in a crowded theater, so there can
be no free- speech right to incite racial or religious hatred.
Of course there are ways of discouraging speech intended to stir
hatred other than by prohibiting it. Laws can be passed enabling
those who are targeted to sue the speaker and to recover substantial
damages.
As ministers of justice throughout the European Union begin to
consider a uniform Holocaust-denial law, they ought to ask whether
this might have a chilling effect on other speech. If a uniform law
is adopted, will it tempt legislators to descend the slippery slope
and begin to legislate about other historical events perhaps not so
clearly documented and to impose by law what can and cannot be said?
They might ask what precisely a Holocaust-denial law intends to
accomplish. Is it to silence the quacks who deny the fact or to
prevent false information from influencing others?
They can then reflect on whether the law will accomplish either of
those ends and whether it will further or hinder the goal of an open
society.
Ronald Sokol, former lecturer in law at the University of Virginia,
practices law in Aix-en-Provence, France.
From: Baghdasarian