An effort is now being made across the European Union to illegalize Holocaust Denial. But is denying the Holocaust really a form of hate speech? What will be solved by criminalizing the denial? Could doing so make the lie more dangerous and powerful? To discuss this issue with us, Frontpage Symposium has assembled a distinguished panel. Our guests are:
Alan Dershowitz, a professor of law at Harvard. His most recent book is Preemption: A Knife that Cuts Both Ways (Norton, 2006).
Deborah Lipstadt, Dorot Professor of Modern Jewish and Holocaust Studies at Emory University, where she directs the institute for Jewish Studies. She is the author most recently of History on Trial: My Day in Court with David Irving which is the story of her successful defense against the libel charges brought against her in a British court by Holocaust denier David Irving. Irving sued Lipstadt for calling him a denier. Lipstadt won with the judge declaring Irving to be a denier, falsifier of history, a racist and an anti-Semite.
Roger Kimball, co-editor and publisher of the New Criterion and publisher of Encounter Books. He is the author of many books, including The Rape of the Masters: How Political Correctness Sabotages Art.
Dr. Gregory Glazov, Assistant Professor of Biblical Studies at Immaculate Conception Seminary School of Theology at Seton Hall University and the Coordinator of the Great Spiritual Books Program for the Seminary's Institute for Christian Spirituality. He earned an M.Phil. and a D. Phil. in Jewish Studies in the Graeco-Roman World as a Rhodes Scholar at Oxford University and is the author of The 'Bridling of the Tongue' and the 'Opening of the Mouth' in Biblical Prophecy (Sheffield Academic Press 2001). He specializes in Old Testament Prophecy, Wisdom Literature and Jewish-Christian Relations. One of his present areas of research in the course of writing a book on Models of Judaism for Christians is Holocaust Denial -- the perspectives from which various groups engage in it and the techniques used to defend it.
FP: Dr. Deborah Lipstadt, Alan Dershowitz, Roger Kimball and Dr. Gregory Glazov, welcome to Frontpage Symposium.
Roger Kimball, let me begin with you.
You recently wrote a piece in the New Criterion, Another stupid proposal from Brussels, in which you put forward the argument against criminalizing Holocaust Denial -- an effort that is now being made across the European Union.
Can you briefly summarize the proposed legislation for us and crystallize your own disposition toward it?
Kimball: I read about it in an article in The Financial Times. In a way, the headline says it all: "EU aims to criminalize Holocaust denial." You can get the details here, but the bottom line is that the bureaucrats in Brussels have proposed legislation that calls for jailing people for up to three years for denying or "trivializing" the Holocaust and/or the massacre of Tutsis in Rwanda. Why only those incidents? Why not the escapades of Stalin or Mao or Pol Pot? Why not the slaughter of the Armenians in 1915-1917? Well, never mind. The FT reported that the legislation had been crafted to avoid criminalizing satire, so I suppose Mel Brooks won't have to go to jail for "Spring Time for Hitler."
In a way this is old news. Back in 1992, the EU proposed legislation that made "racism" and "xenophobia" crimes that carried a prison sentence of "two or more" years. Back then, the EU defined the offense as harboring an aversion to people based on race, colour, descent, religion or belief, national or ethnic origin. If taken seriously, of course, such legislation would empty the streets and fill the jails of Europe.
It's hard to know where to begin to respond to such proposals. It is worth noting that as part of the package, the commissars in Brussels have also been seeking to "harmonize" its laws so that police can arrest and try citizens of the EU member-states anywhere in the EU. So if you are British and you say something nasty in about the French while on vacation in Greece, you might wind up in a Greek jail for two "or more" years. Since the EU made it illegal for journalists to criticize its policies, it is not clear what sort of debate such legislation will spark. It is also worth noting that this is not the first time that Europe has attempted to "harmonize" its laws. Beginning in 1933, there was a concerted effort to "harmonize" not only the laws but all of social life. The German word for the process was Gleichschaltung. That time the effort came out of Berlin. It almost worked. It took the combined military might of England, the United States, and the Soviet Union to stop that earlier push for "harmony." It is anyone's guess what it will take to stop this new, Brussels-based effort.
But back to the effort to criminalize Holocaust denial. As I said in the note you refer to, no one has less time for such chaps--David Irving & Co.--than I do. But should we send them to jail? (Irving, by the way, really was jailed for this offense and served about a year of a three-year sentence.)
But to say that denying or "trivializing" the Holocaust shouldn't be criminalized is not to say that such activities shouldn't be taken seriously. They should be taken very seriously. How?
For most of us, the idea of denying the Holocaust--the systematic extermination of some six million European Jews by the Nazis in World War II--is about as plausible as denying the sphericity of the earth. Of course we have all heard of Holocaust deniers. The image we are likely to conjure up is of a right-wing kook who visits the barber too often and distributes books like The Hitler We Loved and Why. Why should we take them seriously? After all, there are also people who deny that the earth is round. But as Deborah Lipstadt shows in her disturbing book, Denying the Holocaust: The Growing Assault on Truth and Memory, the phenomenon of Holocaust denial must be taken seriously, partly because it is sharply on the rise, partly because it undermines the idea of historical truth.
What is particularly troubling is the way in which such trifling with the historical record is proliferating. It is not simply that there are more and more crackpots declaring that the Holocaust was (in David Duke's phrase) a historical hoax. That, to be sure, is troubling enough. Yet even more worrisome is the legitimacy conferred upon such declarations by the actions of the media and the academy. This is not to say that the media or the academy grant the idea credence; denying the Holocaust has not--not yet--won respectability. But it has managed to win an audience. That itself is extraordinary. Instead of being instantly dismissed as pernicious nonsense, denying the Holocaust is increasingly accorded the status of a "different perspective," a "dissenting point of view," "another opinion."
Thus it is that Professor Lipstadt has repeatedly been asked by various television shows to debate individuals who deny that the Holocaust occurred. The usual plea made by television personnel eager to book her on a program is: "I certainly don't agree with them, but don't you think our viewers should hear the other side?" It sounds like good liberal doctrine: free speech, everyone entitled to his own opinion, and so on. But Professor Lipstadt consistently refuses these offers--rightly in my view--because she understands that to participate in such debates would be to grant her opponents a measure of credibility they do not deserve. She refuses because she knows that to deny the Holocaust is not simply to offer "another perspective" or express a "different opinion." It is to engage in the kind of ideological warfare that corrupts the very nature of opinion in order to promulgate historical falsehood.
It is a telling fact that this point meets widespread resistance today. Invoking the principle of free speech, many people of good will see nothing wrong--everything right--with providing a platform for those who deny the Holocaust. But this liberal sentiment plays directly into the hands of the Holocaust deniers. As Professor Lipstadt observes, "Unable to make the distinction between genuine historiography and the deniers' purely ideological exercise, those who see the issue in this light are important assets in the deniers' attempt to confuse the matter." As has so often been the case, the well-intentioned efforts of liberal apologists help create an atmosphere of legitimacy and tolerance for movements whose goal is to destroy those institutions and attitudes that guarantee liberal tolerance in the first place.
In this context, it is important to understand that denying the Holocaust is only one of many efforts to undermine the authority of historical truth. The phenomenon of Afrocentricism (which, incidentally, often indulges in a bit of Holocaust denial as a sideline) belongs here, as do many varieties of academic literary "theory" that now reign in the academy: deconstruction, extreme examples of "reader-response" theory, new historicism, etc. For all of them, facts are fluid and historical truth is a species of fiction: what actually happened in the past, or what a given text actually means, are for them ridiculous questions. Nor are these attitudes confined to the cloistered purlieus of the academy: in watered-down versions they have become standard-issue liberal sentiment: Rather than risk having to make an unpleasant judgment about the facts, deny that there are any such things as facts.
When we ask how this state of affairs came about, the first answer is the widespread acceptance of cultural relativism. As Professor Lipstadt points out, part of the success of the Holocaust deniers "can be traced to an intellectual climate that has made its mark in the scholarly world during the past two decades. The deniers are plying their trade at a time when much of history seems up for grabs and attacks on the Western rationalist tradition have become commonplace." This tendency, she notes, can in turn be traced to intellectual currents that have their origin in the emancipationist ideology of the late Sixties.
Professor Lipstadt tells the story of a teacher at a large Midwestern university who, in a class on the Napoleonic Wars, informed his students that the Holocaust was a myth propagated to vilify the Germans and that "the worst thing about Hitler is that without him there would not be an Israel." The teacher was eventually dismissed. But many students defended him, arguing that he had a right to present his "alternative" views. Professor Lipstadt comments: "These students seemed not to grasp that a teacher has a responsibility to maintain some fidelity to the notion of truth." This gets to the nub of the problem. Without an allegiance to the ideal of truth, teaching degenerates into a form of ideological indoctrination.
And this brings us me one of the gravest legacies of relativism. What we are witnessing is the transformation of facts into opinion. This process is not only destructive of facts--when facts are downgraded to opinions they no longer have the authority of facts--but, curiously, it is also destructive of opinion. As Hannah Arendt observed in an essay called "Truth and Politics," opinion remains opinion only so long as it is grounded in, and can be corrected by, fact. "Facts," she wrote, "inform opinions, and opinions, inspired by different interests and passions, can differ widely and still be legitimate as long as they respect factual truth. Freedom of opinion is a farce unless factual information is guaranteed and the facts themselves are not in dispute." What is at stake, Arendt concluded, is nothing less than the common world of factual reality and historical truth.
It will be pointed out that truth is very often difficult to achieve, that facts are often hard to establish, that the historical record is incomplete, contradictory, inaccessible. Yes. Precisely. But the recalcitrance of truth is all the more reason we need to remain faithful to the procedures for achieving it: without them we are blind. Behind the activity of the Holocaust deniers is an unhappy efflorescence of anti-Semitism. But the problem goes even deeper. As Professor Lipstadt warns, "at its core" such a denial of history "poses a threat to all who believe knowledge and memory are among the keystones of our civilization."
Exactly. But it is worth asking what sort of political failure has to happen that you would actually incarcerate people for denying a fact? How tenuous a grasp on power must a regime have before it entertains such expedients? We are in the process of discovering this in Europe. The European Union is a Janus-faced entity: ridiculous but also minatory, depending on which side you happen to face. The moral, Aesop (or Tocqueville) would have said, is: Be afraid, be very afraid.
Lipstadt: First of all, let me begin by thanking Roger for so succinctly summarizing many of the major points of my book Denying the Holocaust: The Growing Assault on Truth and Memory. I fully agree with him that an intellectual climate of intellectual relativism has been a fertile field for Holocaust deniers. When "opinion" trumps expertise, all bets are off. In fact, in recent years we have seen this in relation to 9/11 conspiracy theories. All sorts of people -- Rosie O'Donnell currently most prominent among them -- have been "convinced" that the World Trade Center and surrounding buildings were destroyed from within and not by planes piloted by Arab hijackers which were flown into them.
Equally, if not more, disturbing is a recent poll of American Muslims. According to a recent survey, only 40 percent of Muslims in America believe that the Sept. 11 attacks were carried out by Arabs. One other point that I would like to make prior to turn to the legislation itself. Roger's remarks and the legislation address themselves to what I call hard core Holocaust denial. By that I mean the kind of denial engaged in by David Irving, Robert Faurisson, David Duke, Ahmadinejad (though he is a bit more slippery about it than the others) and other people of this ilk. They specifically deny one or more of the following aspects of the Holocaust:
This is hard core denial. As a result of Irving v. Penguin/Lipstadt hard core denial has suffered a serious reversal. In fact, deniers themselves have described it "the most serious single blow that revisionism has ever received." My defense team's objective was not to prove the Holocaust happened but to prove to the court that people such as David Irving, i.e. those at the core of the denial movement, were liars and knew that they were lying. We took each of Irving's contentions about the Holocaust and followed them back to the sources Irving gave. In every case we found a distortion, fabrication, invention, or omission or as Richard Evans, my lead historical witness, succinctly put it, "a tissue of lies."
In other words, we pulled the ground out from under them and showed all their claims to be based on lies. We did not prove precisely how many people were killed at Auschwitz. We did prove that when Irving says it was "only" 68,000 who "died" there that he is basing his claim on partial data.
What we are witnessing today, at least in the Western world, is, rather than hard core denial, soft core denial particularly in relation to Israel. Talk about Israel's genocidal policies towards the Palestinians. [They may be tough. They may be cruel. They may be strategically wrong. They may be obstacles to peace. They are, however, NOT genocidal.] In European street protests Israel and its leaders are often compared to Nazis. This is soft core denial. It whitewashes the Nazis' wrongs while it ascribes to Israel policies that bear no comparison to what it actually practices.
To turn now to the EU proposed laws themselves. Initially the proposed laws would have criminalized not only Holocaust denial but any form of genocide denial. When the laws emerged from committee there had been serious compromises. The legislation currently under consideration would make denying the Holocaust punishable by jail sentences, but would also give countries across the 27-member bloc the option of not enforcing the law if such a prohibition did not exist in their own laws. This compromise necessitated reconciling the different concepts and interpretations of the notion of freedom of speech, particularly as it applied to racism and hate crimes held by each of the member countries.
In the form that the the legislation emerged from committee, violators could be given jail terms up to three years for "intentional conduct" that incites violence or hatred against a person's "race, color, religion, descent or national or ethnic origin." The same jail terms could be given to those who incite violence by "denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes. At the moment [negotiations are continuing so nothing is final] EU members have rejected attempts from former Soviet bloc countries, particularly those in the Baltic, to include in the outlawed activities denial of Soviet-era atrocities.
In what may be described as an attempt to pacify the former Soviet bloc countries, the EU has said it will organize public hearings on the "horrible crimes" of the Stalin era in the near future. Not included in the law are events such as the Armenian genocide.. The legislation includes only those genocides that come under the statutes of the International Criminal Court in The Hague, e.g. the Holocaust and the Rwandan genocide.
Interestingly, efforts were made to ensure that scholarly debates and artistic efforts [e.g. Life is Beautiful and The Producers] would not fall under its provisions.
Though some critics have argued that the law has been watered down so much that it is virtually meaningless, the EU's justice commissioner's office contended that "it sends a strong political signal that there is no safe haven in Europe for racism, anti-Semitism or Islam-phobia."
Muslin leaders argue that the EU is demonstrating a double standard because it has not defended Muslims -- in contrast to Jews and Christians -- against defamation.
I opposed the EU legislation when is was more all encompassing and continue to oppose it now. My opposition is based on the following points. First of all, this kind of effort enhances the deniers' importance -- I can hear them chortling: "We are important enough to be worthy of a UN resolution" -- and they allow soft-core deniers and others who voice deeply antisemitic sentiments to pass below the radar screen.
Many years ago I wrote [it's probably not on line so there is no link to it] about how Holocaust deniers make life more comfortable for the less "radical" antisemites. It is analogous to those so-called "pro-lifers" who are against abortion in any circumstances, even if it is a matter of incest, the mother's life is in terrible danger, and the victim is a young girl. They make life easier for those who will allow it only if the mother is certain to die. The latter look more reasonable.
Deniers through their extremism and their vile arguments make the more "respectable" antisemites look more acceptable.
The other reason I oppose this legislation is that it can create a climate where the person charged is seen by the general public as a martyr to the cause of free speech. For example, when David Irving was arrested in Austria there were all sorts of expressions of sympathy for him. And David Irving is no poster boy for free speech. He sued me for what I wrote about him. He has a legal action pending against a Gita Sereny who has criticized his work. He threatened to sue John Lukacs and his publisher if they did not remove critical remarks about him from a book. He was willing to settle his suit against me if I agreed to have my books pulped.
As I wrote then "there is a far better way to fight Holocaust denial than to rely on the transitory force of law. When David Irving forced me to go to court to defend my freedom of expression, my most important weapon was the historical truth. We have truth and history on our side. From both an ideological and strategic perspective, those are far more powerful weapons than laws, especially laws that seem to counter the ideal of freedom of expression.
Finally, I oppose such legislation because it seems to suggest that we don't have the historical documentation to prove the deniers are liars and distorters and must, therefore, fall back to a "reliance" on the law.
The Holocaust has the dubious distinction of being the best documented genocide in the world. One of the important things about my trial was that it demonstrated that relying on documents [we called no survivors as witnesses] we proved that everyone of David Irving's denial claims is a complete falsification.
One last caveat, I understand how Germany and Austria would have a different perspective on this issue. They are the countries in which the Holocaust was nurtured, grew, and came to fruition. While it had the support of people in many countries, Germany and Austria were and are its historical home. Given this context, I can fully understand why those countries would want to outlaw both Nazi symbols and Holocaust denial.
Dershowitz: I am opposed to criminalizing or censoring Holocaust denial speech for several reasons: First, it is wrong in principle for the government to sit in judgment over the truth or falsity of historical events. Although it is beyond any conceivable rational dispute that the Holocaust occurred, the principle of criminalizing or censoring "false history" would not be limited to the Holocaust, unique is that event is in human history. Governments would use the precedent to criminalize "false" claims about other more controversial events. The best answer to false speech is true speech. Holocaust denial speech should become the occasion for Holocaust education.
Second, criminalizing or censoring Holocaust denial speech is often counterproductive. It makes heroes of deniers and spreads their message. They often get the best lawyers, including prominent civil libertarians, to defend their right to free speech. This right sometimes becomes confused with the rightness of their speech.
Third, in the age of the internet, criminalization of speech is generally ineffective, since the internet knows no geographic boundaries and attempts to discover the true disseminators of criminal speech is difficult if not impossible. I was recently defamed by a Holocaust denier in Australia and have still not been able to locate him or her (he uses a pseudonym) or the precise source of the defamatory statement. History demonstrates that efforts to suppress speech, even the most despicable speech is generally futile.
Fourth, related to the above is the difficulty of defining precisely what would be criminalized or censored. Disseminators of hate speech are expert at circumventing the rules by employing euphemisms and other verbal fomuli that convey the message without violating the rules.
Fifth, the most dangerous "revisionists" are not those who deny the Holocaust outright, but those who minimize it, comparativize it, deny its uniqueness, question the veracity of survivors and try to turn it against the Jews or the Jewish state. Norman Finkelstein, for example, is far more dangerous than outright deniers because his acknowledgement that some form of genocide actually did occur, gives his other claims credibility. As the neo-Nazi Holocaust denier Ernst Zundel commented on Finkelstein's Holocaust-justice denying book, "I feel like a kid in a candy store. I can barely keep up with the glorious news. Imagine all these politically incorrect things being said by these Jews in their angst ... Nonetheless, this Finkelstein fellow is gutsy!" Zundel has said that Finkelstein is: "exceeding useful to us and to the Revisionist cause. He is making three-fourths or our argument, and making it effectively. Never fret the rest of the argument is being made by us, and will topple the lie without our lifetime. We would not be making vast inroads in Europe with our outreach program, were it not for his courageous little booklet,01. The Holocaust Industry.
Zundel's wife and fellow Neo-Nazi, Ingrid Rimland, has referred to Finkelstein admiringly as the "Jewish David Irving", a reference to the well-known Holocaust denier and admirer of Hitler. Finkelstein himself admires Irving's dubious research.
It would not be possible, nor desirable, to draft laws criminalizing or censoring Finkelstein and his ilk. They must be answered and proved wrong.
Finally, criminalizing or censoring the Holocaust shows a lack of faith in the marketplace of ideas and the power of truth. To some it may also show a lack of faith in the historical evidence supporting in the veracity of the Holocaust. If the evidence is so clear, some might argue, why do you need laws shutting down the marketplace? The evidence is clear to all who are willing to see and hear, and for those who are not, laws will make little difference.
Gregory Glazov: Thank you for the opportunity to enter the discussion at this stage. I see there is a strong consensus on not criminalizing Holocaust denial, both for utilitarian reasons (because it is counterproductive or ineffective or likely to be portrayed as making martyrs to free speech) and on principle (because it contradicts free of speech, faith in the marketplace of ideas and the power of truth). The reflections also share the intuition that Holocaust deniers are not misguided simpletons but liars. The revisionist admission that "Irving's defeat represents the most serious blow to their cause" acknowledges not only his camp's intellectual but also moral bankruptcy. The only way to salvage the operation is to "change the subject" and construe it as a test of free speech.
Consequently, the discussion clarifies that they operate by capitalizing on cultural drives towards relativism, by turning facts into opinions and thereby assaulting truth. This highlights an additional reason for using discretion in discussing or not the Holocaust with them and those who level opinion and truth. I share all these commitments and positions but discern several points of tension that would be interesting to unpack.
One revolves around Roger Kimball's concluding question: "what sort of political failure has to happen to prompt incarcerating people for denying a fact?" and Deborah Lipstadt's concluding caveat-response: "I understand how Germany and Austria, being the historical homes of the Holocaust, would want to outlaw both Nazi symbols and Holocaust denial."
When I first read Mr. Kimball's question, I read it as a critique of Germany and Austria. I inferred that for him, "incarcerating people for denying a fact" is not the result of "a political failure evincing the attenuation of a grasp on power" before a rising tide of frightening forces (which I take to be the resurgence of Nazi symbols) but a factor that contributes to this failure by falling back on using law rather than reason to correct public discourse. Dr. Lipstadt's response corroborates this point, but what is the meaning of her "I understand"? Does it mean, in spite of everything said earlier, "I sympathize", i.e. "I sympathize with Germany's and Austria's criminalizing of holocaust denial to the extent that, having expressed my opposition to this decision, I will not campaign against it"?
I know that Dr. Lipstadt opposed Irving's incarceration by speaking out against it when asked. But it is one thing to say: "I oppose incarcerating Irving; this gives him too much attention and turns him into a martyr." But it would be another thing to campaign for his release as one would for a person for whom freedom of speech and conscience were the heart of their cause rather than a tool for "changing the subject" and so levelling truth and opinion. If I have understood Mr. Kimball's final point, he laments that Germany and Austria would incarcerate someone for denying a fact, regardless of what that fact is. If so, this would indeed construe Irving's incarceration as a test case of freedom of speech and of the corruption that has set in to EU laws. Consequently, champions of free speech should have ardently campaigned for Irving's release and for a change in the law.
Does Dr. Lipstadt's position line up with such championing? I note that she said, with some precision: "I oppose this legislation because it can create a climate where the person charged is seen by the general public as a martyr to the cause of free speech." Accordingly, the legislation neither creates this climate nor martyrs necessarily. It can create the climate. The accused can be construed as martyrs but not necessarily.
There is thus some potential tension between Mr. Kimball's and Dr. Lipstad's positions. The first is a charter for campaigning for Irving's release because the law contributes to a political failure, the second may be but does not have to be opposed especially in contexts where it may be a coherent response to this political failure. If the gap I intuit between these positions is of my own misreading, let me take ownership for Dr. Lipstad's "I understand" in the sense of "I sympathize" and explore whether it in fact undermines commitment to free speech.
If the judgement is to be based on the principle that no "denials of facts" should ever be criminalized, the conversation stops. But the commitment to freedom of speech is variously balanced in Western democracies with incarcerating people for intentional speech-acts that incite violence and crime (terrorist training manuals) or irresponsibly precipitate tangible harm (screaming 'fire' in a theater).
On our soil, holocaust denial does not carry such meaning, but if there are quarters where it does, commitment to freedom of speech would not be incompatible with criminalizing holocaust denial. This is a big if. Dr. Lipstad's description of the processes by which the EU legislation has been developing suggests that this is the issue in Germany and Austria. The issue then is not necessarily one of principle (no denial of facts should ever be criminalized) but of the factual and historical meaning which holocaust denial plays in those lands, whether it plays the role of an incitement to violence. Dr. Lipstad's caveat supports a more sympathetic reading of German and Austrian legislation. She allows that it responds to a political failure, past and resurgent. In these lands, the abyss of terror that was the Holocaust was nurtured, grew and came to fruition. Holocaust deniers celebrate this history and would like to revive it. The judgment that their resurgence is linked to and incites hate-crimes is a question that must be considered. If the apprehensions of the legislators on this score are sound, they are clearly witnessing the resurgence of a "political failure" that cannot be resolved by civil politics and is therefore potentially very frightening. This may have been Mr. Kimball's very point.
Moreover, the earlier clarification that holocaust denial is dishonest at root stands in some tension with the argument that it should be fought only with truth as if faith in the latter would be compromised by "falling back to a reliance on the law." I don't see law and truth operating in such tension. Irving was defeated by truth but through the mediation of an English court of law. Had the debate been restricted to the spheres of the press and the academy, he would have never been so soundly defeated. The effect of law in this case was to clarify to the public, with the authority of the British legislative system, where truth and opinion lay and the difference between them.
This may be clarified further. The suggestion that reliance on law is in some tension with reliance on the power of ideas and truth is also implicit in Dr. Lipstad's observation that Irving is no poster boy for free speech because he sued her for what she wrote about him. Again, I don't see any contradiction between commitment to free speech and suing someone for libel. I surmise that she, grounded in an American system of justice possessing the first Amendment, believes that British law (by putting the onus on the defendant of a libel case to prove that what they had said is true) gives less protection to freedom of speech and press than American law (which constrains the complainant to prove that what had been said about them was false). The point is corroborated by Floyd Abrams in a recent piece in the Wall Street Journal (6/6/07).
Whatever be the virtues of each system, both allow for the criminalizing of some speech acts, striving variously to harmonize it with the commitment to the freedom of speech. If the arguments are not to be extended to accusing British libel and slander laws (which as Abrams sums them up, inhibiting speech on matters of serious public import by awarding counsel fees to the winning side) of compromising freedom of speech, it should not be automatically construed that freedom of speech is incompatible with having to pay penalties for certain forms of lying. It is a delicious irony to have Dr. Lipstadt point out that Irving's penchant for suing his critics shows his and his camp's commitment to penalizing and criminalizing certain forms of lying. But the outcome also illustrates that law, at this level, has not at all made a martyr of a holocaust denier but, on the contrary, trounced him intellectually and morally as no academic or public debate, book or t.v. program could have.
In losing his case in England, Irving was bankrupted. This is physical penalization. What is the difference between penalization of this form and the incarceration he suffered in Austria? Where else could he have gone to live and write on a low budget after his ordeal in Britain if not Austria? Joking aside, I would be grateful to understand the legal and social factors that might or might not make certain forms of lying such as libel, slander and holocaust denial matters for prosecution in various western democracies. Is there a hard and fast boundary between the lawfulness of suing someone for falsely defaming you and that of denying the existence of your relatives by denying the mechanisms set up to exterminate them so as to celebrate their extermination? Such denial does create tangible harm for the survivors / heirs of these relatives who may justly expect to recover the inheritance due to them and reparation for it from those responsible for detaining it.
This reflection resonates with most of Alan Dershowitz' points and is in part answered by them. Points two and three, being utilitarian -- "often counterproductive" and "generally ineffective" -- open the door for censoring Holocaust denial in contexts where it might be productive or effective. Does this apply to Austria and Germany? Point three concludes that "History demonstrates that efforts to suppress speech, even the most despicable speech is generally futile." In context, this relates to Alan's inability to locate the Australian Holocaust denier who defamed him and, presumably, sue him for this defamation. The generally ineffective futility of the attempt is taken as an illustration of the generally ineffective attempt to criminalize speech such as Holocaust denial. This tells me that my own attempt to highlight a link between criminalizing holocaust denial on the one hand and slander or libel on the other is relevant to this discussion.
Mr. Dershowitz's first and final point ground his opposition to Holocaust denial upon principle and on weariness about creating bad precedents. But again, some clarification is needed. Western democratic governments have legislative branches and are expected to make decisions that impact on the teaching of history (e.g. concerns over the teaching of creationism in this country and over holocaust modules of the national curriculum in the U.K.).
The fifth point, touching Finkelstein, is for me among the most relevant and interesting. But it raises many new issues, especially about the connotations of the more inimical and pernicious forms of Holocaust denial and of his role in them (e.g. was he or was he not in Tehran as testified by the Google cache of the Adelaide neo-Nazi website, caught that early morning by Mr. Dershowitz? And if Finkelstein wasn't there or didn't intend to go, how did his name appear on the schedule and why was it removed immediately when Mr. Dershowitz spotted it?). Some of these issues we may perhaps discuss in the next round. But one point is directly relevant to this conversation. The legitimate thrust of Finkelstein's argument, that upheld by Hilberg and by Schoenfeld in Commentary (#110, Sept. 2000) is the scandal over reparation money due to holocaust survivors victims. The scandal is two-fold: attaching to the excessive demands placed upon Swiss banks and the lack of due demands placed upon Austria and Turkey (the case of Poland will be resolved by its regime change). And maybe this is the rub: holocaust denial in those countries undermines the legal case for the reparation owed to its victims there and its affirmation at least acknowledges that they have a case.
Kimball: Let me try to clarify--very briefly--my position for Gregory Glazov. I agree of course that certain speech acts (shouting "Fire!" in a crowded theater, e.g.) are culpable. I don't think there is any disagreement there. And it is always possible to construct a hypothetical situation in which a given act could legitimately be judged criminal. Mr. Glazov spun out a few such thought experiments. But just as hard cases make bad law, so I believe we unnecessarily encumber ourselves when we burden a straight-forward political reality with the solvent of unconstrained possibility.
I believe that David Irving is deluded, mendacious, or both. But I do not think he ought to have been incarcerated--ignored, yes, ridiculed, by all means, but not incarcerated, any more than I think someone publishing a book arguing that the earth is flat or (more to the point) that Stalin was an idealist who may have "gone too far" but whose heart was on the right side ought to be incarcerated. Of course, there have been plenty of the latter, and, given the enormities of Communism, they might even be construed to have incited people to do nasty things. I think Patrick Devlin was right when he argued, in his book The Enforcement of Morals, that in general the "law should be slow to act." What we want--what I want, anyway--is what Lord Devlin described as "toleration of the maximum individual freedom that is consistent with the integrity of society." At the same time, I believe he was also right when he noted that "No society can do without intolerance, indignation, and disgust."
In the end, I believe we have more to fear from the (so far) soft totalitarianism of the European Union than we do from political fantasists like David Irving. Doubtless he and his ilk give aid and comfort to some pretty dodgy characters and ideas. Could it happen that "aid and comfort" might escalate to the level of incitement to violence? It might. But possibility is cheap. The reality is that criminalizing Holocaust denial, like the E.U.'s efforts to criminalize "racism" and "xenophobia," betoken not greater sensitivity but a troubling political failure exacerbated by a troubling current of smug self-satisfaction.
Lipstadt: Let me respond to some of the cogent issues raised by Gregory Glazov. He is troubled by my comment that "I understand" how Germany and Austria could have such laws. He strongly suggests that saying "I understand ... " constitutes an inconsistency when it comes from someone who says she opposes the proposed laws because she believes in freedom of speech. Moreover, he suggests that, if I am opposed to such laws I should have gone out and championed Irving's cause and campaigned for his release.
On the first matter: I have always believed that inconsistency is indeed the hobgoblin of small minds. Therefore, I have no compunctions about displaying such tendencies on occasion. More importantly, there is no such thing as "pure" free speech. One cannot cry fire in a crowded -- or not so crowded -- theatre. One cannot call 911 and say someone is dying when they are not. One cannot engage in libel. One cannot tell state secrets. One cannot incite. Therefore, to suggest that free speech does not have its limitations is to ignore the real world in which we all live.
Having said that, let's turn to the case of Germany and Austria specifically. It was in these two countries that the horrors of the Holocaust were conceived and nurtured. They are the home to it all. Many other factors played a role in the tragedy, but what happened in Germany and Austria was pivotal. Consequently, Holocaust denial has a different resonance in those countries than it does in other places.
This is a matter of historical context which is, of course, not unique to the Holocaust. In fact, I am writing this not far from Stone Mountain, Georgia, one of the cities [there are more than one] which claims to be the place where the Ku Klux Klan was founded. Where I to march down the main street of that town wrapped in a white bed sheet, with a cone head hat, and wearing a mask it would have only one connotation. Were I to wear the exact same outfit in Seville in the period right before Easter, it would have an entirely different meaning. Holocaust denial in Berlin or Vienna, has a very different meaning than in Ames, Iowa. It is ludicrous, a body of lies, and a form of antisemitism in both places, but its connotation in Germany and Austria is quite different.
When there are attacks on Jewish institutions in Germany or Austria the civilized world reacts in a different way than when similar acts occur in Birmingham England. There is far higher sensitivity level to such behaviors when they occur in the countries which count the Holocaust as part of their national legacy.
That is why I say "I understand" why these countries would institute such laws. And, truth be told, I would rather compromise my position on free speech than watch people march with swastikas aloft as they cross through the Brandenburg gate and continue down Unter den Linden.
Regarding my supposed failure to campaign for Irving's release: I did not only mention my opposition to his incarceration when I was asked. In fact, I gave dozens of interviews during the period of his trial and in the immediate aftermath. In every interview I stressed -- whether asked or not -- that I opposed the laws under which he was incarcerated. I also wrote 3-4 op-ed pieces in which I mentioned my opposition.
I did not, however, do more than that. Why? In part because of my sensitivity to Austria's historical legacy. Secondly, Austria is a democracy and its citizens support these laws and have made no moves to have them overturned. Something must be said for that.
Most importantly, however, is the fact that I do not think it is my responsibility to save David Irving from himself. As I have said before, David Irving was well aware of the warrants for his arrest. Nonetheless, he decided to go to Austria. He made no secret of the fact that he was coming. The students who invited him were also not secretive about his visit. He chose to make this trip even though he knew the potential consequences. [According to some reports his partner, Bente, said the went because he wanted to have some "fun."] In such a case, I do not think that such behavior obligates me -- or any free speech advocate -- to spend one iota of time shovelling up the dirt he leaves in his wake.
Let me offer an analogy. I may oppose the rules and regulations regarding women's dress in Saudi Arabia. I may find them degrading and a serious limitation on my freedom of movement. However, were I to show up in that country in shorts and a skimpy top and choose to drive my car -- something women are not to do in this Muslim country -- I would have to bear the consequences.
Similarly, I may think that America's rules regarding marijuana ridiculous. However, if I choose to pass through U.S. Customs and Immigration at JFK airport with a baggie full of hashish and am caught, I have to bear the consequences. I cannot cast myself as a martyr to silly laws. Irving knew there were consequences to what he was doing and he decided to go anyway. As his twin brother said in a rare interview after his arrest: "I mean, what part of 'you cannot come here' didn't he understand?"
Finally, Irving may have been bankrupted in the UK [there are serious people who are convinced that he has substantial sums of money squirreled away in this country], but I did not receive a penny of that. This bankruptcy was a matter of his own doing. Remember, he consistently lied about the Holocaust. He distorted and invented evidence. [When he followed his footnotes back to his supposed evidence his house of cards collapsed.] Then he sued me for calling him a liar. Just like his arrest in Austria, who is ultimately at fault here?
Dershowitz: All of the prior excellent comments correctly suggest that with regard to free speech, context is crucially important. Statements made in one context may be deserving of fuller protection than identical statements made in a different context. The Klansman walking down the street of a southern town in full Klan regalia poses a different threat and communicates a different message than the insensitive college student who dresses in the same outfit for Halloween. Holocaust denial in Berlin or Teheran is different from Holocaust denial in New York or Los Angeles. Chomsky, as usual, was wrong when he said
that he did not see any "hint of anti-Semitic implications" in [Robert] Faurisson's claim that the so-called Holocaust was a fraud perpetrated by the Jewish people. Chomsky, the linguist, assured his readers that "nobody believes there is an anti-Semitic connotation to the denial of the Holocaust ... whether one believes it took place or not."
Of course there are anti-Semitic implications in Holocaust denial. Holocaust denial is quintessentially anti-Semitic. It can have no other motive and no other intended affect.
It is precisely because context is so important that it is impossible -- and it would be wrong -- to try to criminalize Holocaust-denial. Although American law distinguishes between statements of fact about an individual and statements of opinion about an individual, in reality there is little difference.
Hate speech is almost always premised on false facts: "Jews are" ... "blacks are" ... "gays are" ... "women are" ... "Arabs are" ... So long as false factual statements are permitted about groups, as they are in America and many other countries, it is futile to try to ban hate speech of any kind.
I want to be clear that my position is based primarily on normative considerations: It would be wrong to prohibit Holocaust denial. To support my normative argument I do offer empirical and pragmatic arguments. Experience has shown that it is far better to live in a society in which false facts -- even facts as false as Holocaust denial -- are not criminalized, than in a society that puts people in jail for their malicious lies.
Gregory Glazov: We all clearly agree that societies which give people freedom to speak, write and think are best, for normative and pragmatic reasons. For me this boils down to anthropology. Since human beings are individual rational substances who make choices through reason that no one else can make for them, such choices are inalienable, robbing them of such choices would be detrimental to human nature.
Since theology and scripture are my area, I'll give this a scriptural twist. Not even God violates our freedom to choose. Thus, various biblical authors and commentators have frequently remarked that His choice to inhabit paradise with creatures capable of evil thoughts and choices was better than engineering a paradise that would run like clockwork and make the latter impossible. At the same time, scripture suggests that it is by the provision of principles, laws and commandments that free choice and human flourishing are grounded.
I take this principle to be the foundation of what is quintessentially European, in the positive sense, and hence to be defended. But if this is what Europe is about, the bottom line is that even holocaust denial, insulting as it is to truth and empathy, so long as it is not a threat, must be allowed, in Europe's heartland. Since freedom and security are often in tension, we note that balancing them presents legislators with the grand temptation to subordinate freedom to security, capitulation to which, perhaps, is Europe's perennial tragic flaw. This would seem to me to be Roger Kimball's position on the current EU legislation criminalizing holocaust denial. Accordingly, this legislation represents a capitulation to a grand inquisitorial temptation and represents the slippery slope and garden path toward totalitarian states. To mix our metaphors and follow the good book, we should permit snakes at the Brandenburg Gate.
But the good book also speaks of a battle and of the crushing of the snake by the seed of the woman. How is its head to be bruised if one is not to stoop to its own methods? I am not sure that recourse to talion law represents stooping. If the snake seeks to circumscribe freedom of speech by accusations of libel, the law should be invoked to expose its own lies and mendacity, and call it to account for damages. It's great to see in Dr. Lipstadt's victory an anticipation of an eschatological moment.
Analogies have been drawn to the debate in the US about tolerance levels to be accorded to hate-speech. The deliberations on this issue by Supreme Court justice Clarence Thomas would seem relevant. Several times he has sided with the Supreme Court majority in upholding the constitutionality of cross-burning by the KKK. This year, he did not, supporting the Virginia statute barring cross-burning conducted "with intent to intimidate." Inconsistency? Some argue not, noting that his last decision took stock of the fact that the Virginia law was framed not against insults but threats.
The question then is whether Holocaust denial, being quintessentially anti-semitic and hence insulting, can function as a threat. The EU legislation seems to be so circumscribed, restricting criminalization of Holocaust denial to public incitement of racial hatred, which is more than insult. Consequently, this legislation seems to follow Clarence Thomas' thought in Virginia vs Black. If so, it would be good to know his analogues in the EU legislative process. It speaks not just for the Jewish victims of the Holocaust, but also for many Germans and Austrians victimised and abused by the band of bandits that took a strangle-hold of their country. To cite Dr. Liptstadt, "something needs to be said" for that position. In light of that position, her expressed readiness to throw consistency to the winds and sacrifice free-speech so as to be spared the sight of swastikas processing through the Brandenburg gate, might not, in fact, violate her consistent opposition to censorship.
Clarence Thomas, of course, went against the majority decision of the US Supreme Court. And if the majority decision is correct in the grand scheme of things, it follows that he capitulated to the perennial subtle temptation. The same could be said of his EU legislators, but if Mr. Dershowitz's piercingly clear principle that "it is because context is so important that it would be wrong to try to criminalize Holocaust denial" is to trump his earlier admission that "holocaust denial statements made in (Germany or Austria) are different from holocaust denial statements made in (England or Holland), and to such an extent may be deserving of fuller protection in (England or Holland than in Germany or Austria)" [my paraphrases in brackets], then what is the value of such an admission? Something needs to be said for that position before we trump it completely.
Kimball: Very briefly: The dream of those who would criminalize "Holocaust denial" or "hate speech" is the politically correct dream that a reconstruction of language will issue in a reformation of reality--that refusing to call things by their real names will somehow make unpleasant realities vanish. I think it is a bootless project--more than bootless, really, since such proscriptions generally have the unintended consequences of fostering the very things they aim to destroy by endowing them with the attractive patina of heresy.
The best way to delegitimate something like Holocaust denial is to subject it to the astringent light of public scrutiny, not force it to fester in the fetid corners of whispered rumor and superstition. In my view, the growth of the coercive powers of the state presents a far graver danger to liberty and the public good than do cranks like David Irving. Is Holocaust denial generally fed by anti-Semitism? Of course it is. But then the same problem recurs: should we criminalize anti-Semitism, understanding the term as an *attitude* toward or belief about Jews? I would say no, we should not, any more than we should criminalize anti-black, anti-Catholic, anti-Nordic, or any other such sentiment. We should, by all means, criminalize tortuous *behavior*. But the effort to criminalize noxious attitudes is, as I suggested above, to dramatize a larger moral failure, applying the blunt instrument of legal penalties to a realm where argument, example, and debate -- not to mention ridicule and satire--should reign.
Lipstadt: I write this having just returned last night from Sarajevo and a meeting of the International Association of Scholars of Genocide. There was much discussion, not surprisingly, of what should be considered a genocide and what should not be. I watched in wonder as some people proposed that this be put to a vote of the membership. It seems to me that scholars do scholarship, they don't vote on their conclusions. Will such votes include all sorts of caveats, e.g. 8,000 killed in Srebrenica is a genocide while 6,000 is not?
If scholars have a hard time determining what is and is not a genocide, how much harder a time will politicians have. Politicians do vote but their votes are determined by the demands of their constituents and their desire to be re-elected. I shudder to think of them applying the same decision making process to a discussion and decision about genocide. One simply cannot legislate such things and one should not try. The result will be more problematic than not doing so.
Dershowitz: As I have previously argued, outright Holocaust denial is not the most dangerous form of hate speech against Jews. It is not even the most offensive genre of attack on the victims of Nazi genocide. Because Holocaust denial is so self-evidently false and so obviously motivated by bigotry, it rarely has its intended effect. Even in Iran today Holocaust denial has failed, and Iranian television is running a prime time program that does not overtly deny the Holocaust.
The most dangerous and insensitive responses to the Holocaust are those which acknowledge its broad parameters but then move on from there to attack survivors, those who seek justice and the state of Israel. It is Holocaust minimization, comparitivization, and politization that pose the greatest threat. If Holocaust denial were to be criminalized, the deniers would move away from their extreme position and become more effective in their propaganda efforts. There would be no way of criminalizing these more subtle misuses of the Holocaust by anti-Semites, anti Zionists and other assorted bigots. We must respond to all forms of bigotry in the marketplace of ideas, and not rely on the voracious appetite of the state's censor to do our work for us.
Gregory Glazov: Unresolved for me in this discussion is where, on the continuum between the blunt instrument of legal penalties on the one hand and the realm of argument, debate and satire on the other, should Irving's attempt to sue Dr. Liptstadt for libel and the penalties he suffered on losing his case in the legal process be placed?
Similarly, while democratic political decision-making is influenced by constituent and election pressures, it can and is steered by principles informed by scholarship. Is it not by reference to such that holocaust denial is or ought, like creationism, to be eliminated from national curricula or placed in library sections labelled "propaganda"? But how would such elimination or marginalization be legally differentiated from a form of criminalization, however soft?
What, for example, of the academic who would repeatedly flout these principles and scholarship? Should law of some form or other not come to rescue the principles and scholarship? And if so, should this academic's removal, for these reasons, whether by non-renewal of contract or non-bestowal of tenure, be necessarily seen as an infringement of academic freedom? I don't think so. The reason, I presume, has to do with my misgivings about comparing the sphere of intellectual exchange to a marketplace. The reason is also probably related to that which disturbs me about describing political decision-making as exclusively determined by political survival. No one in the conversation has limited the realm of ideas to a marketplace, nor said that politicians are exclusively political animals but the boundaries between these realms on the continuum between law, politics and reason are still in some need of clarification.
For me, among the more important themes running through our conversation has been that of the bigotry and mendacity underpinning Holocaust denial. Yes I agree that it is this that poses the greatest threat and requires much alacrity. I also agree that, sadly, in many cases, renewal of language will not lead to a renewal of the mind and heart, but I also believe that in many cases it will, for otherwise what is the point of responding to bigotry at all, even on the assumption that the realm of ideas should operate like a marketplace?
FP: Deborah Lipstadt, Alan Dershowitz, Roger Kimball and Dr. Gregory Glazov, thank you for joining Frontpage Symposium.
Read the entire article on the Front Page Magazine website (new window will open). Reprinted with permission.