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Noted Historian Arrested for Supposedly Spreading False History:

The AP reports:

British historian David Irving was arrested last week in southern Austria on a warrant accusing him of denying the Holocaust . . . .

Irving was detained on a warrant issued in 1989 under Austrian laws that make Holocaust denial a crime, Golia said. The accusation stemmed from speeches Irving delivered that year in Vienna and in the southern town of Leoben.

Irving in the past has faced allegations of spreading anti-Semitic and racist ideas. He is the author of nearly 30 books, including "Hitler's War," which challenges the extent of the Holocaust. . . .

If formally charged, tried and convicted on the charge, Irving could face up to 20 years in prison . . . .

Let me briefly explain why I think Holocaust denial laws are so pernicious:

Naturally, I don't remotely agree with Irving's views, as I've heard them described. But why? I haven't researched the subject myself. I'm relying on the consensus of scholars, as we must on virtually all topics (except the few on which we can do primary research).

Yet that conventional wisdom is only reliable to the extent that people are free to challenge it. If both sides are able to make the arguments, and the overwhelming majority of experts comes to a particular view, that's pretty strong reason to believe that view. But if one side is barred from making its argument, then the consensus of experts tells you much less about the true merits of the debate. Maybe there's some fact out there that would shatter the consensus, but it just isn't being exposed because it's a crime to make that argument.

Consider a subject on which we've heard much less, the death of millions of Armenians in Turkey during World War I. I suspect that this subject is much less familiar to our readers than is the Holocaust; it certainly is much less familiar to me. Ask yourself: Which scenario would most make you confident of the assertion that the Turks deliberately tried to exterminate the Armenians -- (1) leading historians all agree that this happened, and while contrary arguments may legally be made, leading historians aren't persuaded; (2) leading historians all agree that this happened, and it's illegal to make contrary arguments? It seems to me that scenario 1 would create far more confidence than scenario 2.

True, the fact that advocacy of a historical position is banned by a generally democratic country is some evidence that the position is false. In that sense, the laws banning Holocaust denial do have their intended effect of further discrediting the false theory. But it's not very strong evidence, it seems to me; even generally democratic countries are capable of promulgating myths, and political judgments will often turn on matters other than dispassionate historical inquiry. On balance, it seems to me that the fact that a theory may be spread but has been roundly rejected is much stronger evidence of the theory's invalidity than is the legal judgment that the theory may not be spread.

I've always had little patience for claims that speech can't cause harm. Of course speech can cause harm. If speech has the power to do good, it has the power to do harm; and many kinds of harm -- political violence, organized racial violence, and the like -- are almost always caused in large part by speech. People can vandalize, steal, rape, or kill simply because of their own purely internal passions. I suspect that they can even attack someone of another group without having heard bigoted speeches. But people generally don't plan suicide bombings without having been primed for this by political or religious advocacy. They generally don't organize pogroms without having heard racist hatred.

Rather, it seems to me that speech must be defended on the grounds that letting the government restrict speech ultimately causes more harm than protecting it. And it seems to me that letting the government decide that certain historical claims are illegal will ultimately do much more harm than good.

Joel B.:
So, just out of curiousity does it follow that the government should not decide that the teaching or advocacy of certain historical claims should be unconstitutional?
11.17.2005 1:08pm
Pragmatist (mail) (www):
A perhaps tangential thought: I suspect that the primary purpose of holocaust denial laws is not to surpress historical debate, but to provide an instrument to use against racist groups and gangs. Holocaust denial is a commonplace in white racist gangs in this country; I suspect that is also the case in the countries with holocaust denial laws. If such a law were used exclusively for breaking up groups and organizations which might bring their members to violence (recall that like-minded people tend to extremes in groups), its more unpleasant aspects might be somewhat less.
11.17.2005 1:10pm
Ted Frank (www):
I agree with Eugene's analysis completely. But I'd have a lot more sympathy for Irving if he hadn't previously tried to use British libel laws to shut down criticism of his position by Deborah Lipstadt.
11.17.2005 1:11pm
James of England:
I'm not sure if they still do, but when I was out there, Israel banned arguments that the Armenian Genocide took place, apparently on the grounds that it "reduced the uniqueness of the Shoah". The cynical explanation appeared to be that it was in support of Israel's only Middle Eastern ally. More than anything else I saw out there, that made it difficult for me to support or sympathise with Israel as a concept. I find holocaust denial laws hard to stomach partly because they legitimise the oppression of those who, perhaps wrongly, believe that their parents, grandparents, cousins, and so on were victims of genocide. Telling them that they cannot speak is not a derogation from Freedom of Speech that I have seen equaled anywhere else.
11.17.2005 1:18pm
John R. Mayne (mail):
I think the balancing test that countries need to use is complicated. I think Germany and Austria have better cases to make for restriction of this particular speech.

In the U.S., such laws would be foolish for the reasons Professor Volokh describes. But I'd be concerned, were I a former subset of Germany, that an upsurge in Nazi sympathizers - who correlate quite well with Holocaust deniers - would lead naturally to getting other governments overly interested in our internal politics, perhaps to the point of discouraging such sympathies through the use of standing armies.

The illegality of the Nazi party would not be enough if other groups of Nazi-sympathizers, like Holocaust deniers, were not suppressed.

Especially in Europe, where one's neighbors share the same land mass and there may well be some residual grumpiness over prior efforts to take over said neighbors, some care need be taken to avoid becoming Eastern France.

Well, OK, not France, but you get the idea.

As to where the balancing test should land in this particular case, I lack the knowledge to make even a well-informed guess. But this strikes me as, on its face, a sensible and self-preservationist restriction of speech in Austria.

--JRM
11.17.2005 1:26pm
James of England:
Pragmatist: These laws don't weaken the case of neonazis, they strengthen it. There's an awfully strong historical record on which to base claims of the horror of the Holocaust. To argue against it, your argument has to be based in significant part on conspiracy and governmental actions to alter the record. These laws are probably the strongest arguments in favour of Irving's position.

To put it another way, most neo nazi groups that I'm familiar with have tiny budgets and very little ability to persuade anyone who was even remotely educated of anything, much like the communist groups I've associated with. They thus have to rely heavily on the "That's what they want you to think" line of arguments, whereby the claims of obvious villains are put forth as evidence of the contrary position.
11.17.2005 1:30pm
Veggie_Burger (mail):
You can practice what you preach by NEVER deleting comments on your blog. I won't hold my breath for that to happen. The tendency to censor is present here in spades by the Conspirators. Free speech starts at home, Eugene. Your hypocrisy makes your argument flushable. It's like what I do with bad dates; I flush their phone numbers down the toilet.
11.17.2005 1:41pm
Michael B (mail):
Agree completely with Eugene's view. Too, the entire setting in Europe within which anti-Semitism is calibrated is rather more "intriguing" than de jure standards such as this Austrian case would seem to indicate. Policy Review, Oct. 2003, Anti-Semitism and Ethnicity in Europe, an essay of modest length, helps shed some critical light on various and sundry intrigues.
11.17.2005 1:44pm
Aidan Maconachy (mail):
There is a difference between a guy on a soap box denying the holocaust occurred, and educaters making it part of the curriculum, or even media outlets presenting it as a truth.

In Canada we had the case of Jim Keegstra, a high school social studies teacher, who taught a revisionist view of history that was extremely anti-semitic. He was was stripped of his teaching certificate and charged in 1984 under the Criminal Code of Canada with "wilfully promoting hatred against an identifiable group" by teaching his students that the Holocaust was a fraud. Absolutely right. I had no problem with this at all.

However, when it comes to the rights of individuals and groups in the context of an open and public debate - then I don't believe the authorities have any right to issue warrants condemning people for holding an unpopular, or even outrageous opinion. Naturally if the opinion comes with incitement to violence, it ceases to be mere opinion and becomes a threat to law and order - quite a different matter.

As Eugene correctly pointed out when using the Armenian example, if contrary voices in a debate are simply closed out, the prevailing view seems suspect and lacking in intellectual authority. Also when unpopular opinion is effectively banned people get the idea that perhaps it's worth taking seriously ... why else would governments need to ban it? Underground philosophies and ideologies has always acquired an enthusiastic following.
11.17.2005 1:51pm
eddie (mail):
Consistency is the hobgoblin:

First a caveat. I am aware that the following is a bit apples and oranges, but it is out of that difference I hope to shed some light on this "conversation".


the fact that advocacy of a historical position is banned by a generally democratic country is some evidence that the position is false.


Are you arguing for a "consensus" or a political sanction of historical views? Are there any facts for you? Did Hitler's outlawing of the Jews actually imbue them with moral depravity?

It is the argument that I am having trouble with. Perhaps we might agree that banning stupid speech is itself stupid. But I do not understand such moral relativism applied to first amendment values.

Can two abolutely opposite statements of fact both be true or are there no facts when talking about history. This is a very slippery slope you have constructed professor.

Are you arguing that no law should be passed against making false statements? But wait, then all of our established libel laws would fall by the wayside.

I too am not a fan of content based crimes, but I think most would agree (whether or not we seek proof in laws or other secondary sources) that Holocaust denial is a special case. Perhaps slavery denial will be next. And why not. If there are no limits to what is considered acceptable historical discourse, then perhaps I should demand that public schools be force to teach the history of Middle Earth.

My apples and oranges request for consistency is that I am somewhat surprised that on the one hand you are a major proponent of an historical "originalist" approach to constitutional interpretation, but base your argument here on the premise that denying a certain fact is still legitimate speach that is worth protecting (as a theoretical, dare I say Socratic, tool to expose the real truth). I tell you what, I deny that anything in the Federalist papers has any bearing on what eventually was codified in the Constitution. If that statement has equal weight as a principle, then upon what bedrock is any historical analysis to be based.

The real problem is that a line must be drawn. We can all agree that mistakes can be made in exactly where that line is drawn or how we interpret the meaning and context of where the line is drawn.

But you have made truth fungible. Or worse, truth has become that which those who have power to enforce it say it is.

Finally, is James of England saying that, notwithstanding someone actually being a victim, that a law validating that victimization somehow sanctions reverse discrimination. That is a tough argument to follow and put forth.
11.17.2005 1:53pm
Chris V.:
You can practice what you preach by NEVER deleting comments on your blog.

Last time I checked, Professor Volokh has not sought any warrants to arrest people whose comments have been deleted. It's possible I have missed it though.
11.17.2005 2:02pm
James of England:
Eddie, the law I was referring to as being validated was, as I understand it, a part of a broader holocaust denial banning legal scheme. So, yes, the holocaust denial laws can validate a law denying a genocide.

More than that, I'd take issue with the description of the oppression of Israeli Armenians as "reverse discrimination". It's straightforward, traditional discrimination.
11.17.2005 2:02pm
Eugene Volokh (www):
Veggie_Burger: Criminal punishment of speech is very different from people refusing to allow speech at their own parties (online parties or offline parties). I'd throw a guest out of my house was advocating Nazism, and never invite him again. It hardly follows that the government ought to criminalize Nazism. Likewise, that a history journal may refuse to publish articles that it thinks are historically unsound doesn't mean that the government may outlaw such articles.

Nor does the specific argument I make in my post apply to bloggers' decisions to delete certain comments. I'm pleased by the readership that this blog has gotten, but I'm surely under no delusion that my editing decisions will somehow affect public debate more broadly. The criminalization of some viewpoint on a subject may well affect the soundness and reliability of scholarly consensus on the subject. A blogger's removing posts expressing that viewpoint will have zero such effect.

Incidentally, I generally block posts based on offensive language, not offensive ideas. But, yes, I definitely reserve the right to throw out people who post sufficiently nasty ideas; it's just very different from a government's throwing such people in jail.
11.17.2005 2:05pm
Paul Davis (mail):
The two extreme groups are:
* The holocaust deniers
* The people who support Israel banning discussion on the Armenian genocide because it "reduced the uniqueness of the Shoah" etc

These two are symbiotic.
11.17.2005 2:11pm
simpchimp (mail):
The difficulty with outlawing holocaust denial is that it opens the door to any number of special interest groups demanding that denial of their national tragedies be criminalized. Would a historian in Germany arguing that genocide of aboriginal peoples occurred in North America be susceptible to prosecution under hate crime legislation? Would denial of the notion that Israel ethnically cleansed Palestinians from their land lead to prosecution as a "hate" crime? Would a panel of historians be convened to determine whether such an event occurred? I'm not particularly convinced as to the "uniqueness" of any historical event, be it genocide or other, warranting prosecution under hate crimes legislation.
11.17.2005 2:21pm
Anderson (mail) (www):
Concur with Prof. V. Such foolish laws only fuel conspiracy theories: "see, the gov't is AFRAID to let people deny the Holocaust, because they're afraid of what people would find out!"

No one has a law against denying the 2d law of thermodynamics.
11.17.2005 2:29pm
dfinberg (mail):
Well, the USPTO won't grant a patent that claims to invalidate the 2nd law, isn't that much the same thing?
11.17.2005 2:41pm
Thorley Winston (mail) (www):

It's like what I do with bad dates; I flush their phone numbers down the toilet.


Anyone else get the feeling that the numbers were probably fake anyways? ;)
11.17.2005 2:47pm
Houston Lawyer:
Based on the evidence, can we now prosecute the Senate Democratic leadership for their "Bush lied us into war" meme? If we're going to start prosecuting people for espousing false data, that's where I'd like to start.

Can I assume that Americans can't be extradited to face such charges?
11.17.2005 2:54pm
Duncan Frissell (mail):
Mercifully, the modern communications environment has rendered these discussions moot since anyone can spread whatever garbage they want far and wide without (effective) restraint.
11.17.2005 3:05pm
Robert F. Patterson (mail):
Freedom of speech is a relative thing. Should someone be free to speak libel? To use racist names publicly? To tell a woman face to face about her body parts? If the speech has deleterious effects on others, shouldn't there be laws against it? DEnying the truth of the Holocaust is tantamount to calling the victims, dead or alive, liars. I have personally met several victims of the Holocaust. After what they went through, should someone be free to publicly insult them?
11.17.2005 3:07pm
Thorley Winston (mail) (www):
Well, the USPTO won't grant a patent that claims to invalidate the 2nd law, isn't that much the same thing?


Only if they charge you with a crime.
11.17.2005 3:08pm
Robert Lyman (mail):
should someone be free to publicly insult them?

I certainly hope so. I'll be facing the chair if "insult" is the new standard for criminal conduct.

Certainly it is in exceedingly bad taste to insult victims of genocide and torture. I wouldn't shed many tears if Irving had his nose broken by someone whom he offended. But criminal punishment for hurting someone's feelings? Yikes.
11.17.2005 3:14pm
Steve:
I guess I don't see why a prohibition of this particular category of false statements is more pernicious than libel laws which punish false statements in general.

I understand the slippery slope arguments, but it doesn't seem that this law has led to any other laws of this type whatsoever. Presumably they justified the law initially by saying the Holocaust is unique, and it appears they continue to regard it as unique.
11.17.2005 3:26pm
Larry Faria (mail):
My mother was born in 1907. When I and my twin arrived at the table and wolfed down our food, she'd call us "starving Armenians." When we asked her what THAT meant, she told us the Turks tried to get rid of Armenians by driving them from their farms and many of them starved to death. I asked some friends of my mother, about the same age, and got pretty much the same answer. It was very well known at the time, but my mother was apparently one of the few who transmitted that to the next generation. It seems to me the only reason laws are needed to counter the claims of those who deny the holocaust is the ignorance of the public.
11.17.2005 3:38pm
Thorley Winston (mail) (www):
I guess I don't see why a prohibition of this particular category of false statements is more pernicious than libel laws which punish false statements in general.


Not in the United States, they don't.
11.17.2005 3:41pm
Robert Lyman (mail):
Libel laws do not punish "false statements in general." They punish false statements which cause harm in the form of diminished reputation. That is, they punish verbal attacks on individuals which cause those individuals actual harm.

Being a jerk generally isn't libel until you cause actual reputational harm to an particular person. So Irving might commit libel if he were to declare that some particular historian is a liar who warps the historical record AND the person suffered diminished standing in the historical research community. (The second half there seems pretty unlikely). But to simply assert a particular historical position, even if totally false, causes no such harm.

Besides, criminal liability for libel is quite rare. Prosecution is huge, much bigger than a lawsuit or the denial of a patent. Shall we stick to comparing apples to apples?
11.17.2005 3:46pm
LTEC (mail) (www):
1) I would like to see Eugene discuss libel laws at some point, and to tell us if he supports them, and why. I would like to get rid of libel laws completely.

2) Steve --
Anti-speech laws are definitely a slippery slope. In Canada, the "hate speech" laws began with mainly banning holocaust denial. Now they have banned criticism of homosexuality, and the proponents of these laws would like to ban a great deal more. Both Italy and Australia are trying people for saying bad things about Islam, and England is not far behind.

3) We should protect Irving's rights -- including the right not to be assaulted -- not because we like him but because of the very nature of rights.
11.17.2005 4:02pm
Eric:
James:

Israel never banned affirming the Armenian genocide, you seem to be confused.
11.17.2005 4:41pm
Paul Gowder (mail) (www):
Eugene's analysis is right, of course, but it doesn't go far enough.

Rather, it seems to me that speech must be defended on the grounds that letting the government restrict speech ultimately causes more harm than protecting it.

That type of utilitarian argument just begs for "particular exceptions" to be made. A person in favor of holocaust denial bans might simply argue that 99.99% of people accept that the holocaust happened anyway, and a denial ban in that one case won't significantly impair that number, so, in the absence of a proven slippery slope, the ban is perfectly ok.

Instead, the right to dispute the common wisdom ought to be a good in itself.
11.17.2005 4:58pm
Owen Hutchins (mail):

Well, the USPTO won't grant a patent that claims to invalidate the 2nd law, isn't that much the same thing?



No, because they will issue a patent if you present a working model.
11.17.2005 4:59pm
markm (mail):
"Well, the USPTO won't grant a patent that claims to invalidate the 2nd law, isn't that much the same thing?"

Denying a patent is hardly the same thing as a criminal prosecution - and the Patent Office also provides a simple way to contest the scientific judgement behind that policy. Just bring in a working model of your perpetual motion machine...
11.17.2005 5:02pm
Thorley Winston (mail) (www):
Instead, the right to dispute the common wisdom ought to be a good in itself.


Hear, here.
11.17.2005 5:29pm
MDJD2B (mail):
"Israel banned arguments that the Armenian Genocide took place, apparently on the grounds that it "reduced the uniqueness of the Shoah"...[which m]ore than anything else I saw out there, that made it difficult for me to support or sympathise with Israel as a concept."
James of England

(1) Is Israel a "concept", or is ita nation with 6,000,000 citizens,some of whom support this measure,some of whom oppose, and most of whom probably don't even know that this happened (assuming your assertion is correct).

(2) How do you feel about the "concept" of Japan, which has fialed to zcknowledge many of ITS OWN crimes against its neighbors during WWII, and does not teach them to its own childeren.

(3) Is Israel unique in that its legitimacy as a nation requires its conformity with your moral standards?
11.17.2005 5:31pm
A Guest (mail):
When I lived in Germany in the late 80's, it was illegal to publish or sell Mein Kampf there. One of my history professors at the university at which I was studying -- whose specialty was German-American relations -- had gotten special permission to keep a copy for research purposes. The book had to be kept under lock and key.

The point being, there do seem to be some geography-specific restrictions on free speech / freedom of the press that devolve from the unique historical context of greater Germany.

However, it all does seem a bit quaint now in the age of this here "interweb" thingy...
11.17.2005 5:53pm
Robert Lyman (mail):
However, it all does seem a bit quaint now in the age of this here "interweb" thingy...

Well, no. It just "points to the need for global cooperation" in suppressing speech. Or so some EU bureaucrat was saying on one of the videos when I visited the Anne Frank House.
11.17.2005 6:09pm
Joe in Australia (mail):
"Holocaust denial" laws have nothing to do with a desire to protect people's feelings: they are a strategic way of discouraging criminal activity. These laws allow governments to interfere with racist groups without having to prove other criminal activity on their part. There is another way to accomplish the same thing - wait for a member of the group to commit a crime, and then go after the group for mutual conspiracy or crime-facilitating speech or some such. Those strategies attack the same sort of speech; they merely cover it in a fig-leaf of responding to a physical assault. In reality both sorts of strategy are there because racist groups attract criminals and typically use violence and intimidation to achieve their ends.

Incidentally, "Holocaust denial" isn't a field of genuine academic enquiry. It's an intellectually bankrupt syllogism starts with a self-evident premise ("There are things we do not know about the past"); moves on to a conspiracy theory ("Jews are lying about the Holocaust") and ends with incitement ("Jews are manipulating us and Hitler was right to kill them"). If you read the transcript of David Irving's libel case against Debrora Lipstadt (Irving v Penguin Books, [2000] All ER 523) you may be astonished at the petty, casual hatred that characterises this sort of speech.
11.17.2005 6:10pm
Joe in Australia (mail):
Oh yes - and a single search on Google ("israel armenian genocide") comes up with a bunch of references to Israeli cabinet ministers speaking at Armenian memorials and condemning the genocide on the floor of the Knesset. It does look as though Israel is a bit embarrassed in its relations with Turkey over this, but that's not the allegation which was made by James: he said that it "Israel banned arguments that the Armenian Genocide took place". Perhaps James' trip took place earlier than the references on Google; perhaps he is misremembering.
What I find extraordinary is the uncritical way several commentators adopted James' claim without doing any research. How can you discuss whether Israel was right to ban discussion when in fact (it seems) Israel never did ban it? How can you describe supporters of this law as extremists, when (it seems) the law does not exist?
11.17.2005 6:26pm
Hank:
Paul Gowder: You are assuming that Eugene is taking an act utilitarian position, which means that one weighs the benefits and harms of each individual action, such as banning holocaust denial. His final paragraph, however, suggests a rule utilitarian position, which means that one should support a rule that results in greater benefits than harm, even if particular applications of the rule result in greater harm. He seems to favor a rule against letting the government ban certain historical claim in ALL instances.
11.17.2005 6:50pm
Seamus (mail):

When I lived in Germany in the late 80's, it was illegal to publish or sell Mein Kampf there. One of my history professors at the university at which I was studying -- whose specialty was German-American relations -- had gotten special permission to keep a copy for research purposes. The book had to be kept under lock and key.




Hey, great idea! I'm guessing that Marx's Communist Manifesto and Lenin's What Is to Be Done? are similarly banned in Russia, Poland, and the other countries where they led to such harm, right?
11.17.2005 6:59pm
Hank:
P.S. to Paul Gowder: That said, I agree with you that the right to dispute the common wisdom ought to be a good in itself. My point was that Eugene's different philosophy reaches the same bottom line.
11.17.2005 7:22pm
Aidan Maconachy (mail):
Within the context of a democratic society, you cannot start attaching secondary considerations to speech rights, without opening a can of worms you might never be able to close. I have no interest in living in a free society marked with parenthesis and footnotes. We are either a free people, or we aren't. Freedom above all, includes the right to speak your mind.

The creeping controls that are making their way into University life - aka speech codes, frankly make my skin crawl. Universities of all places, should strive to allow a wide range of diversity, even if such freedoms impinge upon a sense of propriety and harmonious relations.

This impulse to control speech is a slippery slope. There is no way in hell that you can pretend you are coming from some unassailable "objective" position when you assume the right to start determining what others can and can't say. As we have seen time and again with University speech codes, the intent is to muzzle speech that offends majority liberal opinion. This is not merely authoritarian, it is also anti-intellectual.

Bottom line, in a society that describes itself as "free", any authority, be it governmental or academic, that attempts to shut people up or set guidelines requiring pre-sanctioned P.C. speech, is in danger of undermining the intrinsic meaning of democracy.
11.17.2005 7:22pm
John (mail):
I thought these laws were an aspect of anti-incitement legislation, akin to banning yelling fire in a theater.

Banning public speech whose effect is incitement seems reasonable if carefully limited.

Of course what incites whom will differ from place to place, and in Austria and Germany I'd expect stuff like the Holocaust, Nazism, etc., to give rise to "fighting words" pretty easily--at least when this legislation was enacted.
11.17.2005 7:56pm
Hank:
The "fighting words" doctrine would only apply if one spoke the words in a setting likely to provoke a fight. Eugene didn't say whom Irving gave his speech to, but it might have been a sympathetic audience, or at least a staid audience. And the doctrine certainly does not apply to written words.
11.17.2005 8:01pm
Jerusalemite:
Another note on the Israel/Armenian genocide discussion: one quarter of the Old City of Jerusalem is known as the Armenian Quarter, and you can find this map plastered all over the walls. I first learned about the genocide by being a tourist in Jerusalem.
11.17.2005 9:05pm
James of England:
Various commentators are right that I probably didn't put enough of a disclaimer on my statement, which was based on the complaints from Armenians, supported by the Israeli media censorship on the subject that was noted in "From The Holy Mountain", by William Dalrymple. I'm happy to believe that the Armenian descriptions were overblown. As Jerusalemite notes, there is a lot of anonymous campaigning on this. At least part of this appears to have been because they believed that there would be legal sanctions against them if they were to publicise their case more openly. Ironically, this may have increased public awareness, which seems relevant to the root topic.
11.17.2005 9:35pm
Bleepless (mail):
Parenthetically, the copyright to Mein Kampf is held by Bavaria. Their policy, not always effective, is to threaten to sue (and then, if need be, to do so) anyonr who brings out an edition which was not already authorized by Hitler. The English-language edition was so authorized.
11.17.2005 9:37pm
James of England:
MDJD2B: Again, I apologise for my lack of clarity. I guess I should have said Zionism. Anyway, to go through your questions:

1. My reference to the concept of Israel, as separate from the people, might be analogised to the concept of "Democrats" (the party) as opposed to the people. I hope that they flourish, prosper, are safe, well, and so on. If a few things were a little different, I could easily see myself campaigning for them on selected issues. I regularly defend, in conversation with friends, both Democrats as people and Democratic political beliefs. Sometimes I defend the same on webpages, blogs, and suchlike. There are also things that make it more difficult to support Democratic positions, sometimes to the point of motivating me to oppose them in conversation, or in writing, perhaps even to the extent of inspiring me to contribute to some fund opposing them.

I think that all of the above is true for Israel, except that I've never funded opposition to Israeli activities.

2. I don't consider myself particularly informed about Japan. From what I understand, though, Japan has a more geographical sense of identity than Israel. More like the UK (identity as place) than like America (identity as myth/ idea). To the degree to which it is an ideological concept, I'm unfamiliar with the ideology. If I were called upon to put effort into supporting or opposing claims that were based upon the concept of Japan, I'd research it .

3. What? Huh? No, I could love Israel to bits and not have that make it legitimate. I could hate 'em, and not have them be illegitimate. Stuff like the Armenian issue has, in the past, made me reluctant to get off my butt and support 'em. I have likewise failed to support France, Scotland, pro-life types, pro-choice types, and lots of other places. If they're treating their Armenians better (which seems like a likely consequence of the Turks having treated them better since Bush came to power), then that might incline me to be more active in my support for them. I'll research to see if the govt. is still being jerks to my patriarchate out there, but if both issues are in the past then I'll consider myself a relatively unreserved supporter. At the moment I consider myself a supporter with reservations. I was pretty happy that the UN condemned Iran.
11.17.2005 10:48pm
Michael B (mail):
(Caveat: on the basis of recalling reports read some time ago.) I believe the Israel/Armenian genocide issue arose not because anyone of prominence in Israel ever wanted to deny it per se, out of a perceived concern it would somehow compete with Hitler's holocaust, but instead almost exclusively out of political pressures from Turkey, which has been a relatively stable, benign neighbor of Israel, one of very few within the Muslim world. That's in realpolitik terms, but there has been a stability there nonetheless and to the extent there was any motivation, to deny or be ambivalent, it was out of those realpolitik, stabilizing considerations.

Btw, in terms of an historical note which is also brought up to date in a manner which may be intriguing, the Armenian genocide was an act essentially permitted by the Ottoman Empire and the Habsburg regency. In the Policy Review article from Oct. '03 linked to several posts above, this one focusing on ethnicity, there's far more than a mere passing mention of a Habsburg descendent, Otto von Habsburg, who is now aging and was a steadfast opponent of Hitler's state, but who has been a primary factor in the continued ethnicization of European and EU politics. E.g., in the following excerpt Otto von Habsburg is a:

"There is one final regard in which Habsburg's comments are especially representative of a more general feature of contemporary European politics, one which may in fact hold the key to the entire problem of anti-Semitism in Europe."

[...]

"A European politician no less influential than Peter Glotz, who was the German representative to Valery Giscard d'Estaing's "Constitutional Convention" for much of its existence, has not hesitated to propose forms of ethnic-national representation as an appropriate substitute for the principle of "one man-one vote" throughout Europe. Not coincidentally, the Social Democrat Glotz is, along with Otto von Habsburg, one of the founding members of another influential ethnicist think tank, the Munich-based International Institute for Ethnic-Group Rights and Regionalism (INTEREG)."
11.17.2005 10:59pm
Michael B (mail):
Failed to preview, should have read "in the following excerpt Otto von Habsburg is a factor of note:"
11.17.2005 11:04pm
Michael B (mail):
The author of that Policy Review piece maintains a superb blog as well.
11.17.2005 11:07pm
Bruno (mail):
Although Volokh's analysis is convincing,but I have two thoughts: Holocaust denial is not some "alternative" theory that can be debated rationally. Holocaust deniers are conspiracy theorists par exelence. It would be like explaining the historical and archeological origins of the pyramids and debating the "theory" that they were built by creatures from outer space. Holocaust deniers live in another world.

This doesn't alter Volokh's point in the least, of course, and I'm glad we don't have comparabe laws in the US. But in spite of everything, I hope they throw the book at Irving and he spends the next 20 years of his life in Austria's worst prision.
11.18.2005 12:55am
Dan Simon (mail) (www):
On balance, it seems to me that the fact that a theory may be spread but has been roundly rejected is much stronger evidence of the theory's invalidity than is the legal judgment that the theory may not be spread.

That may be true in general, but in cases where the evidence is already overwhelming, it's far from clear that this extra measure of persuasiveness ("and on top of everything, people could argue for this claim, yet very few do") accomplishes much. And its cost--the freedom of those who wish to spread their false claim for pernicious reasons--may far outweigh the persuasiveness benefit you've identified.

And it seems to me that letting the government decide that certain historical claims are illegal will ultimately do much more harm than good.

Doesn't that depend on the claim? You give an example of a particular historical claim whose illegality would be a very bad idea--but then you don't specify any particular locale where that historical claim is in fact illegal. On the other hand, the particular claim whose banning prompted your posting is one that is so well supported by evidence, and so obviously denied primarily for pernicious reasons, that your reasoning in the analogous case you introduced doesn't carry over very well.

Of course, it's possible that democratic governments routinely abuse the power to ban historical claims by applying such bans to examples like the Armenian genocide. But so far I haven't heard any such examples. Perhaps democratic governments are more capable of self-restraint in this regard than you give them credit for?

(Note: I speak here of laws banning specific historical claims. I'll concede that vague laws banning "offensive speech" or "hate speech" are much more easily turned into political footballs.)
11.18.2005 1:49am
Bruce Wilder (www):
The U.S. has a strict free speech / free press regime. Clearly, holocaust denial could not be prohibited in the U.S. I would not think that assertion would be controversial.

Is the U.S. policy the right one? Is prohibiting holocaust denial a bad thing for Austria? How? Arguing that it represents a bad principle is essentially a criticism of Austria for not adopting the 1st Amendment. They have prohibited X, and prohibiting X may be OK, but having prohibited X, they may decide later to prohibit Y, and prohibiting Y would be very bad. This is not a sensible argument about whether prohibiting Holocaust denial; it is a sensible argument about whether to adopt the 1st Amendment, but may not be persuasive, if empirical results are to be entered.

Unless you can show some proximate harm to Austria of prohibiting holocaust denial, it seems like a pretty weak case. Lots of country regulate speech and press, without the sky falling. Britain has never had free speech or a free press, by American standards, and it has done very nicely over the years. Canada, in the British tradition, has adopted hate speech legislation. Where's the harm in these measures?
11.18.2005 2:57am
trotsky (mail):
I must second (or third or fourth) the voices questioning whether it's illegal to discuss the Armenian genociide in Israel.

I think I recall reading that such discussion is legally perilous in Turkey itself.
11.18.2005 10:59am
Michael B (mail):
Clarification. In the post above, was not in the least agreeing that anyone in Israel ever desired to suppress discussion of the Armenian genocide, very much to the contrary as it's been officially recognized within Israel and in forums such as the U.S. Holocaust Memorial Museum, among others still. Was only attempting to give some background as to how this discussion arose as such in the first place, based on a few international news and opinion pieces I recall reading within the last two or three years, focusing on Turkey/Israeli relations. Sincere apologies for any misunderstanding.
11.18.2005 12:14pm
Paul Gowder (mail) (www):
Hank: that's a good point. Although, generally, I think rule utilitarianism is an incoherent position (if you want to discuss that, we probably ought to take it off this comments section), it does seem to jibe more with what Eugene's arguing than act utilitarianism. As a dedicated deontologist, I'd still disagree (since I think speech should go unregulated as an expression of the dignity and the autonomy of the speaker), but it's less worrisome.
11.18.2005 12:26pm
Mike Lorrey (mail) (www):
David Irving, despite his curmudgeonly iconoclasm, is one of the few WWII researchers who actually has researched the original documents in their original language, interviewed actual eyewitnesses on BOTH sides. Even Lipstadt/Wiesenthal proponent academics reference Irvings work, but only by referencing those who reference his work.
Irving's suit against Lipstadt was also not about her criticisms of his work, but her attacks on him personally and baseless claims that he lied in his heavily referenced work. She won only because she was able to show a handful of minor errors in more than a dozen very thick books.
I personally don't like Irving, and am not a denier myself, and I've seen that he tends to attract fans who are generally anti-semitic already (at least at the Irving book talks I've been dragged to), but his oppositions attacks on him have been based on emotion and their own disinformation. What he seems to deny is the exaggerations of the victim industry, not historical facts that are documentable by original documents.
Now, Irvin claims he was never originally interested in the Holocaust. He was a WWII historian who claims he just saw too much contradictory evidence in original sources to deny what he saw.
Banning open discussion of Holocaust history is like banning open discussion about evolution: why should only one point of view always be considered indisputably correct and everyone else is criminally wrong? You can't stop idiots from being idiots by banning people from acting idiotically.
11.18.2005 12:56pm
Bruno (mail):
Mike:

You say

"David Irving, despite his curmudgeonly iconoclasm, is one of the few WWII researchers who actually has researched the original documents in their original language."

You can't mean this as it's written. Plainly, every Holocaust reseacher reads documents in German. Christopher Browning, for example, has documented the mass murders and their evolution to genocide by the Germans, by relying mainly on German documents produced by Germans during the war and secondarily on post-war testimony, which is also in German.

You say,

"Irving's suit against Lipstadt was also not about her criticisms of his work, but her attacks on him personally and baseless claims that he lied in his heavily referenced work. She won only because she was able to show a handful of minor errors in more than a dozen very thick books."

His suit was based on Lipstadt's claim the Irving is a Holocaust denier. She won because she showed that Irving lied, misrepresented, and distorted the historical record. They were not "a handful of minor errors" but a pattern of distortion aimed at "proving" the the Holocaust is a myth. Holocaust denial has little to do with honest debate. It's yet another way of expressing the "Protocols"-type myth of the international Jewish conspiracy.

You say that Irving "seems to deny the exaggerations of the victim industry." Could you clarify this. What, specifically are these "exaggerations" and this "victim industry"?

You ask, "why should only one point of view always be considered indisputably correct an everyone esle is criminally wrong?" In the case of Holocaust research, "one point of view" is that the Holocaust really happened and millions of Jews were murdered with the aim of totally elimininating Jews from Europe in the future Nazi utopia. Within this overarching "point of view", of course, people can disagree. Who is "everyone else", then, in your opinion? I'm asking you to clarify this.

Finally, it's only in Europe that people can be "criminally" wrong about the Holocaust, which is of course the point of Volokh's original post. In the USA, they are only "wrong". They may be excluded from academic debate, however, because their "point of view" is not based on rational methods of historical argument and is not subject to falisification. But they can promote their "ideas" anywhere else, and they obviously do so without the least risk of criminal prosecution.
11.18.2005 2:26pm
Michael B (mail):
11.18.2005 4:40pm
Hungerburg (mail) (www):
this must be the law, he is supposed to have violated: Verbotsgesetz 1947 Art. 1 - 3d

its not, like Eugene meant, against people who engage in a discussion to find the truth, but its against people who want to make a partisan statement for the NSDAP:

"to glorify the goals of the NSDAP, its institutions or actions..." (excerpt translated by me, badly)
11.20.2005 7:37am
HM (mail):
James of England:
I'm not sure if they still do, but when I was out there, Israel banned arguments that the Armenian Genocide took place, apparently on the grounds that it "reduced the uniqueness of the Shoah".


No. Completely and totally incorrect.

I did my Masters in Israel in Genocide Studies in the mid 1990's. There is total unanimity in among Genocide scholars in Israel that the Turkish policy with the Armenians was genocide.

There were a few developments that affected the discussion and views:
1) There was some discussion in academia about level of comparison with the Holocaust as a challenge to its uniqueness, but there was NEVER any question within serious academia in Israel (or the US) that the Armenian genocide was a definitive genocide.

After all every genocide studies program in Israel defines the first genocide as the of the Turkish government against the Armenians, and of course notes that Raphael Lemkin, the Polish Jew who coined the term "genocide," first refers to the Armenians in his own work.
.
2) The Israeli government's closeness to Ankara in the mid 1990's. This resulted in Israel requesting that Jewish American groups lobby on behalf of Turkey at the time. Half of the issues for Turkey in Washington consisted of genocide denial. This led to no dissonance in serious academia where the genocide is a taken as a fact, but it did lead to the major genocide historians in Israel, as well as the leading Jewish American genocide historians to publicly respond by protesting Israel Foreign Ministry and certain Jewish American groups' rather ironic attempts at denial on behalf of Turkey. There was one genocide conference in Israel at which the Armenian genocide panel was stricken at pressure from the government. Wiesel, who did not protest, later expressed his regret (and I personally know hew was embarrassed) and became a leading voice for defining the Armenian massacres as genocide, and more importantly the revisionism as classic denial.

But at no time has it ever been illegal to discuss this in Israel. Do not confuse a ham handed and gutless endeavor by few functionaries in the Israeli foreign ministry as a freedom of speech issue.
11.21.2005 10:41am