More stomping free speech flat in Europe: Genocide "denial" to be criminalized?

Remember how often I rail against misguided laws that seek to criminalize Holocaust denial, laws such as the one in Austria under which David Irving was imprisoned? I've referred to them more than once as "stomping free speech flat," and I still believe that's what they do. I've also pointed out the danger of a potential slippery slope, an assertion for which I've been criticized, sometimes vigorously. Well, take a look at this (via the History News Network):

PEOPLE who question the official history of conflicts in Africa and the Balkans could be jailed for up to three years for "genocide denial", under proposed European Union legislation.

Germany, the current holder of the union's rotating presidency, is to table legislation to outlaw "racism and xenophobia". Included in the draft EU directive are plans to outlaw Holocaust denial, creating an offence that does not exist in British law.

But the proposals, seen by the Telegraph of London, go much further and would criminalise those who question the extent of war crimes that have taken place in the past 20 years.

Deborah Lipstadt, professor of modern Jewish and Holocaust studies at Emory University, Atlanta, said the proposals were misplaced. "I adhere to that pesky little thing called free speech and I am very concerned when governments restrict it," Professor Lipstadt said.

"How will we determine precisely what is denial? Will history be decided by historians or in a courtroom?"

The proposals extend the idea of Holocaust denial to the "gross minimisation of genocide out of racist and xenophobic motives", to include crimes dealt with by the International Criminal Court.

The text states: "Each member state shall take the measures necessary to ensure that the following intentional conduct is punishable: 'publicly condoning, denying or grossly trivialising of crimes of genocide, crimes against humanity and war crimes as defined in'... the Statute of the ICC."

I kid you not; they're actually trying to get the E.U. to pass a law that would criminalize "minimization of genocide out of racist" motives. Earlier drafts of this legislation included a law that would outlaw the swastika in all E.U. member states, a provision that was only removed when Hindus complained that the swastika was a sacred symbol to them that was hijacked by the Nazis. As Holocaust historian and author of the book, History On Trial, Deborah Lipstadt put it:

I understand and sympathize with them [the Hindus]. Imagine if the USA had banned the cross because the KKK turned it into such a symbol of racism and hatred?


I can just picture the Holocaust deniers' glee over this: "Look how dangerous we are! We're so dangerous that the E.U. isn't just banning Holocaust denial, but trying to ban all denial of 'politically incorrect' history." It's just the sort of thing that allows these scumbags to look plausible to the uninformed when they don the mantle of free speech martyr. Professor Lipstadt put it this way: "When you pass these kinds of laws it suggests to the uninformed bystander that you don't have the evidence to prove your case."


Of course, the larger issue here is who decides what does and does not constitute a "genocide"? Historians? What if historians disagree? Politicians and judges? Yes, unfortunately, that's exactly who would end up deciding what does and does not constitute "genocide denial" if such horribly misguided and--yes, I'll say it--breathtakingly idiotic laws are passed, potentially with these consequences:

A German government spokesman said: "Whether a specific historic crime falls within these definitions would be decided by a court in each case."

If agreed by EU member states, the legislation is likely to declare open season for human rights activists and organisations seeking to establish a body of genocide denial law in Europe's courts.

European Commission officials insist that the legislation is necessary: "racism and xenophobia can manifest themselves in the form of genocide denial so that it is very important to take strong action".

But the legislation faces stiff opposition from academics who fear it would stifle debate over some of the biggest issues in contemporary international relations.


Even without the threat of prosecution, there is concern that academics will try to avoid controversy by ignoring or even suppressing research that challenges genocide claims or numbers of those killed.

David Chandler, the professor of international relations at the University of Westminster's Centre for the Study of Democracy, fears that the draft law could inhibit his work.

"My work teaching and training researchers, and academic work more broadly, is focused upon encouraging critical thinking. Measures like this make academic debate and discussion more difficult," he said.

Prof Chandler also worries that the legislators will close down democratic debate on foreign policy. "Genocide claims and war crimes tribunals are highly political and are often linked to controversial Western military interventions. Should this be unquestioned? Is it right for judges to settle such arguments?" he asked.

Norman Stone, the professor of history at Turkey's Koç University, argues that any attempt to legislate against genocide denial is "quite absurd".

"I am dead against this kind of thing," he said. "We can not have EU or international legal bodies blundering in and telling us what we can and can not say."

"Absurd" is an amazing understatement. These pernicious laws would take a huge whack at free speech. The chilling effect on speech would be profound when it comes to anything that has to do with massacres, ethnic cleansing, or genocide. I know that if I were an academic studying such issues and such laws existed, I'd think twice before writing or saying anything that might get me entangled in such laws, even if the evidence is still in dispute. Remember, this law wouldn't just apply to the Holocaust, the most extensively documented genocide in history; it would apply to more recent events, where investigations by historians are still ongoing and where the evidence is not nearly as clear.

These sorts of laws wouldn't just "stomp free speech flat" in Europe, as I'm fond of saying, they'd shoot it in the head ten times, chop the body up and put it in a burlap sack, tie the sack to a hunk of concrete, and drop it into the middle of the Atlantic Ocean. Fortunately, there is resistance. There is a backlash. We can only hope that it will be enough to preserve free speech in Europe. The greatest victory that Holocaust deniers and fascists could ever have over free nations is if those free nations, in an attempt to combat them, willingly throw away their own freedoms that have taken so long to achieve. If these nannies get their way, Europeans won't be allowed to criticize (or, as the they would put it, "defame") religion because it might offend someone belonging to the religion criticized and won't be able to dispute versions of genocide given the official imprimatur of the law and the courts without risking prison or fines. That's an unacceptable price to pay to fight Holocaust denial and religious bigotry.

They say that the road to hell is paved with good intentions. This "genocide denial" law is the best example supporting that contention that I can find.

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The genie's been out of this bottle since Gutenberg, friends. There's nothing about this that isn't wrongheaded.

"For the rest of us thankfully there's plenty of media available today that demonstrates in no uncertain terms the shockingly criminal behavior of the Nazis."

That isn't different in germany. The atrocities of the third Reich feature very prominently in history lessons and it is quite impossible to grow up in germany without getting to know a lot about them. (No homeschooling either)
This of course also means that no holocaust denial will happen due to simple ignorance. Well maybe expect for people who slept a lot during school.

As for burying, yes your right, especially young people in germany wish to get over that part of history, however there is a difference to that and to forgetting about it. Noone is especially keen to hear about it from foreign tourists first thing you meet them. (though it's probably our fellow europeans who are the prime offenders, not americans) Especially people of my generation, whose parent's were still toddlers when Hitler died.

Still, even given the special situation with regard to this topic in germany and austria, i tend to agree that this law is overdoing it. I'm not one for being tolerant towards the intolerant, but this looks very much like another case of politicians overshooting the target by a wide margin.

"The most perfidious way of harming a cause consists of defending it deliberately with faulty arguments."

Friedrich Nietzsche, The Gay Science, section 191

Somehow I find careful planning in this overreaction, those clever neo-nazis!

This will present some real complications for Turkey's petition to enter the E.U. It's taboo to talk about what happened to the Armenians.

By Flying Fox (not verified) on 04 Feb 2007 #permalink

Free speech isn't unlimited, you can't yell "Fire!" in a crowded theatre, you can't threaten someone, and you can't libel/slander someone, at least without there being legal consequences. While this proposed law is ill-conceived and dangerous, that does not mean that there should be no laws regarding speech at all.

I hate to tell you this, but that's a huge straw man.

I've never said there should be no laws regarding speech. My position is, however, that we should minimize restrictions on speech as much as possible. The more I read about it, the more I come to the conclusion that the proposed EU law, quite frankly, is idiotic, dangerous, and more than a little totalitarian-minded. It would stifle legitimate political and academic debate in the name of political correctness and not offending. Anyone in Europe who values free speech should be very alarmed right now, given the repeated attempts by the EU leadership to pass vile laws like this one and previous proposed laws criminalizing Holocaust denial (for example). As for the "Fire!" in a crowded theater, that's a bit of a cliche. Indeed, it's a myth based on a misquoting of Oliver Wendell Holmes, Jr.'s opinion in Schenck v. U.S. It is not illegal to yell "Fire!" in a crowded theater, unless it was for the purpose of "inciting imminent lawless action."

The standard the Supreme Court laid out in Brandenburg v. Ohio (which is the ruling that overturned Shenck v. U.S.) is to me a reasonable, albeit imperfect, balance between free speech and public safety. I've mentioned this standard many times on this blog.

At least Ed agrees with me about how idiotic and dangerous this proposed law is.

Europeans won't be allowed to criticize (or, as the they would put it, "defame") religion because it might offend someone belonging to the religion criticized and won't be able to dispute versions of genocide given the official imprimatur of the law and the courts without risking prison or fines. That's an unacceptable price to pay to fight Holocaust denial and religious bigotry

The proposed law referenced here bans "incitement to religous hatred". In Victoria, Australia we have such a law. Our appeals court made clear our law bans speech which makes hearers hate followers of the religion. Offending followers of the religion is clearly not considered "incitement to religous hatred". Making people hate the religion seems to be borderline. This is quite different from racial villification laws where offending people because of their race is banned.
The Victorian law is a much more reasonable and careful law than most descriptions of it. The law is also much more reasonable and careful than its implementation in the first case heard under it, so the appeals court sent it back for re-judgement.

Davidp, you're trying to make a distinction that does not and should not exist in the law. Only incitement to break the law or cause injury to another, and specifically where that incitement is actually likely to cause that action ought to be subject to curtailment (compare advocating burning down a building over a quiet family dinner to advocating it to an angry crowd; the latter will tend to cause the act, while the former will not). Injury here means physical injury, not just the psychological injury caused by being hated by someone else.

Why? Multiple reasons. We should insist on an actual physical harm/law breaking standard because judging based on the "psychological damage" that follows from religious hatred is far too nebulous. If we judge on the breaking of the law, then there is a clear standard to follow, because laws are spelled out pretty specifically. Judging on any other standard allows the unscrupulous to claim that speech incites hatred. Almost anyone who dislikes what a speaker is saying could argue that those statements incite hatred of followers of a religion. "You're just saying that because you want people to hate Christians!" is a completely stupid argument, but a defensible one under the law you describe.

Second, how do we draw the line between what simply causes distrust and what causes hatred of a particular group? A rabid anti-Semite would need little provocation to hate a particular Jewish person, but the average person stopped on the street would need considerable convincing to hate, if that were possible at all. One man's trash is another's treasure, and so forth. We avoid such problems in the law by not drawing those lines in the first place.

My final reason (though these are by no means the only reasons) to oppose it is how insulting such laws are: no speech "makes" the audience hate or love or buy something or vote for a particular candidate. We as human beings have free will, and the law ought to reflect that fact. It can do so by not restricting speech up to the very tipping point where our good judgment would be overwhelmed by words and circumstances. Hence, advocating violence to an angry mob could be restricted. But even (say) a speech given to a Neo-Nazi organization that advocates the worst kind of violence against Jews should not be criminalized unless there is a compelling reason to think that someone would stop using words and instead start using fists.

I am glad to see (I think) that you don't agree that simply being offended is enough reason to pass a law restricting speech, but your defense of such laws is troubling nonetheless. The role of government is not to reserve the power to itself, then decide when to dole out punishment, but to defend the rights of its citizens by passing laws that allow the exercise of those rights. A law like that described in Victoria is dangerous and inappropriate.

"The more I read about it, the more I come to the conclusion that the proposed EU law, quite frankly, is idiotic, dangerous, and more than a little totalitarian-minded."

I agree with you Orac though idiotic, dangerous, and more than a little totalitarian-minded seems to be a pretty good summary of EU policies generally.

I hate to tell you this, but that's a huge straw man.

Actually it's not, in that the argument comes up quite frequently when discussing the Canadian hate speech laws.

I did not accuse *you* of arguing so.

Orac wrote, "Of course, the larger issue here is who decides what does and does not constitute a "genocide"? Historians? What if historians disagree?"

Previously, the next generation of historians would continue to argue until everybody got tired with it. (Then the disagreement would be disinterred by later historians. It's one of the joys of scholarship!)

However, is there any relationship between these proposed laws and the continuing battles over reparation?

I read somewhere that real revolution begins with the strengthening of the power of the state, which of course creates more oppression and drives ordinary folks int radical causes.

I suspect the neo-Nazis have the same belief, and think that if such laws are passed, it will enable them to complain about the repressive and fake nature of "liberal democracy," paint themselves as martyrs to the truth, and leaders of a cause being banned for its potency. They also probably believe that such strengthening of the power of the state will, indeed, drive more ordinary people into their ranks.

I think Holocaust denial speech should be ridiculed, debunked, and opposed. I think responsible media gatekeepers should exercise their common sense and good taste and deny liars, fanatics, and racists a forum or soap box. I think that neo-Nazis protests should be greeted with ridicule, contempt, and derision -- not fear.

But the state should make no laws banning their speech. Nor would I bar them from protesting or using their own resources (web sites, protests, and so on) to spout their garbage. They should be visible, so everyone can see what pathetic and demented idiots they are. They should not be allowed to cloak themselves in the garb of martyrdom. That is a lofty status they have neither earned nor deserved.

Instead, they should be given every opportunity to look the fools they are.

There's got to be a law against being a lying hateful jerk. Perhaps, like the early motorcars at the turn of another century, someone with a red flag should walk in front screaming "The person behind me is a lying, hateful jerk!"

And it's not the swastika that's the problem per se; it's the one that's (usually) rotated 45 degrees, inside a white circle that is bordered by red, that is the problem. If they specify "the Nazi swastika", that lets the Hindus off the hook.

Orac, I see where you're coming from; but you have to admit, it's human nature to want to muzzle jerks like that, if only because decent people get tired of listening to it, and because the people (or their descendants) who are being hated get sick of remembering/being reminded of what happened last time nobody did anything decisive.

By Justin Moretti (not verified) on 12 Feb 2007 #permalink

I wish there could be laws against being a lying, hateful jerk.

In a sense, the often do walk around with the light-up neon sign and bell, because their behavior is often egregious. Case in point: Eric Hunt, who stalked and harassed Elie Wiesel.

Unfortunately, such behavior and warning signs don't result in action. Either the lying, hateful jerk realizes his misdeeds or he commits a heinous act that forces intervention, as we are seeing.