The Desert Sun, CA
Jan 30 2007

Inside the First Amendment: In defense of the indefensible

Charles C. Haynes
Gannett News Service
January 30, 2007

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If any speech should be a crime, denying the Holocaust would be at
the top of my list.

That’s why it’s easy to understand the motivation behind Germany’s
announcement Jan. 8 that it will push for legislation that would
criminalize `Holocaust denial’ throughout the European Union.

Germany, France and eight other European nations already have laws
that make denying the Holocaust punishable by prison sentences. Last
year, British author David Irving was convicted in Austria under one
such law and sentenced to three years in jail. (He was released in
December and is now on two years’ probation.)

Germany’s move to expand the ban on Holocaust denial comes in wake of
Iran’s one-sided conference `debating the Holocaust’ in Tehran last
month. By giving credence to some of the most deluded and bigoted
Holocaust deniers in the world, Iran’s President Mahmoud Ahmadinejad
stirred outrage in Europe and elsewhere.

However well intentioned, Germany’s proposal is the wrong response to
this very ugly problem.

Criminalizing speech denying the Holocaust not only threatens free
speech – it gives power to the vile views it seeks to suppress.

Once Europe heads down the slippery slope of state censorship, where
will it stop?

Consider the French slide toward state censorship of speech. In 1990,
France passed a law punishing Holocaust denial with a year in prison
and a 45,000-euro fine. Last October, the lower house of the French
parliament added to the list of forbidden speech by passing a law
that would make it a crime to deny that Armenians suffered genocide
at the hands of Turks in 1915. The measure still needs Senate
approval.

While French Armenians celebrated the vote, Turkey reacted with
predictable anger – not in defense of free speech, but because Turkey
itself denies that any genocide against Armenians ever happened.

Turkey, which aspires to join the European Union, is already near the
bottom of the anti-speech slope. Not only can you go to jail for
calling the Armenian tragedy a genocide, but you also can be arrested
for any speech that insults the republic, parliament or any organs of
state.

In 2005, Turkish novelist Orhan Pamuk was put on trial for
questioning the official version of the mass killing of Armenians.
After intense international pressure, an Istanbul judge halted the
trial.

Meanwhile in Sweden, the Rev. Ake Green was convicted of `hate
speech’ for preaching a sermon against homosexuality. Although the
Swedish Supreme Court acquitted Green in 2005, his trial provoked
worldwide concern about the use of hate-speech laws to limit freedom
of speech and religion.

Although the United States prides itself on strong protection for
freedom of speech under the First Amendment, we are not immune from
the temptation to censor unpopular speech. This is especially true on
college campuses where speech codes and anti-harassment policies are
frequently invoked to punish student and faculty speech.

And in the land of the free, we have plenty of ugly, repulsive speech
that pushes the limits of public support for robust free speech.
Exhibit A is the Rev. Fred Phelps and his small band of followers who
have incensed Americans with their protests at funerals of soldiers
killed in Iraq. Carrying inflammatory signs with anti-gay messages,
Phelps and Co. declare that the soldiers’ deaths are God’s punishment
for the nation’s support of gay rights.

Thanks to Phelps, some 27 states and the Congress have passed
legislation limiting protests at funerals. Critics of these laws
argue that they go beyond constitutionally permissible limitations on
such things as noise level and disorderly conduct by imposing overly
broad and vague restrictions on free speech and assembly.

By giving the state the power to ban the offensive speech of a few,
we give the state the power to limit the fundamental rights of us
all.

Moreover, state censorship doesn’t work. Putting people like David
Irving in prison only makes them martyrs of the extreme right.
Attempting to silence people like Fred Phelps only makes them media
magnets and pushes them to more outrageous behavior.

After Irving’s conviction, historian Deborah Lipstadt, whom Irving
unsuccessfully sued for libel in 2000, put it this way: `I am not
happy when censorship wins, and I don’t believe in winning battles
via censorship. … The way of fighting Holocaust deniers is with
history and truth.’

It’s never easy (or pleasant) to defend the indefensible. But for
Europeans, Americans and people in any nation that would be free, the
familiar battle cry of free speech still applies: Fight bad speech
with good speech – not with state power.