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David Irving and Holocaust Denial.--

Kausfiles analyzes the efforts of Austrian prosecutors to punish David Irving more severely for holocaust denial (tip to Instapundit).

Austrian prosecutors are asking to increase the three year sentence meted out to (despicable, creepy, infamous etc.) British writer David Irving for violating a criminal statute that penalizes anyone who "denies, grossly plays down, approves or tries to excuse" the Holocaust in print "or other media."

Denying the Holocaust may or may not be the same thing as merely depicting the Prophet, but jailing someone for denying the Holocaust seems like the same thing as jailing someone for depicting the Prophet. The New York Post, shamefully, ran the story of the sentencing under a nyah-nyah headline of "Deny This!" We'll see how the Post's crack editorial writers reconcile this glee at Irving's imprisonment with their criticism of the administration ("Bushies betray free speech") for having failed to defend in stronger terms the "freedoms that Americans hold dear" in the case of the Danish cartoonists.

The Anti-Defamation League, also shamefully, limits its criticism to "acknowledging that America's constitutional system bars prosecution for hate speech" before rushing to congratulate the Austrian court for having "sent an unmistakable and important message." I'm afraid it did.

I don't think that holocaust denial--or flag burning--should be a crime. Although I have thought this for at least two decades, the cartoon riots have confirmed and strengthened this opinion. The Imams are right to point to the inconsistency in European treatment between holocaust denial and blasphemy against Mohammed.

There is a lot we can learn from the furor over the cartoons. The disutility of flag-burning and holocaust denial statutes is just one of them. Another lesson (which universities should do more to teach): No one has a right not to be offended.

More from Eugene and from Andrew Sullivan.

Related Posts (on one page):

  1. Mickey Kaus on the Austrian Prison Sentence for Denying the Holocaust:
  2. David Irving and Holocaust Denial.--
Hoosier:
An additional question: NPR reported yesterday that this conviction came under a 1992 Austrian law. But the speeches were given in 1989. If this is not correct, apologies. If it is, there is an additional principle at work here: Even if ex post facto prosecution is legal in Austria, it should not be.
2.22.2006 12:03pm
James Lindgren (mail):
Hoosier: If the facts are as you say (via NPR), I completely agree.
2.22.2006 12:08pm
Steve:
Most people seem to be in agreement on this issue, although virtually everyone thinks Holocaust denial is loathsome. While I respect the historical reasons that Germany and Austria have these laws, they don't really fit with our American concept of free speech.

I do think the analogy to flag burning laws, as was discussed in a post last week, is a good one. If you're against making a special exception to free speech for Holocaust denial, maybe you should be against other special exceptions, too.

There is a bit of a lesson in the other direction as well. These laws may not seem quite right to us but they haven't converted Germany and Austria into totalitarian states where no one can speak their mind, either. Right or wrong, a special exception doesn't always create a slippery slope that must be skied all the way to the bottom; and this applies to flag burning laws, too, should they ever be passed. I think it's a dumb concept that gets pushed by pandering politicians, but it would hardly be the death of the Constitution.
2.22.2006 12:13pm
HLSbertarian:
Steve said: These laws may not seem quite right to us but they haven't converted Germany and Austria into totalitarian states where no one can speak their mind, either. Right or wrong, a special exception doesn't always create a slippery slope that must be skied all the way to the bottom...

Two weeks to three years in jail for soccer fans who poke fun at Germany's past? That doesn't strike you as a couple of moguls down the hill?

Not to mention that even if these laws will only ever muzzle the unsympathetic fringe, they also keep those fringe arguments out of the daylight where they can be refuted on their merits and thus lend strength to their underground appeal. Give me Ward Churchill on his constitutionally-protected soapbox any day.
2.22.2006 12:34pm
Steve:
Am I supposed to get what you mean about the soccer fans?

I hope you understood that I'm not advocating for laws like this, but I can't help but find the notion of defeating these views through public debate to be a tad idealistic. The Protocols of the Elders of Zion are still kicking around, after all. It's not like centuries of free speech and "daylight" have eliminated the crackpot theory that the Jews are out to get us.
2.22.2006 12:41pm
Seamus (mail):

Am I supposed to get what you mean about the soccer fans?



There was an article a week or so ago about how the city of Nuremburg was prepared to throw British soccer fans in chokey if they dared to mock the Germans with Basil Fawlty-type goose-stepping or similar ridicule making the German=Nazi connection.
2.22.2006 12:45pm
Steve:
I'm not sure the Ministry of Silly Walks is subject to the jurisdiction, but call me up when someone gets jail time.
2.22.2006 12:52pm
Thorley Winston (mail) (www):
The Anti-Defamation League, also shamefully, limits its criticism to "acknowledging that America's constitutional system bars prosecution for hate speech" before rushing to congratulate the Austrian court for having "sent an unmistakable and important message." I'm afraid it did.


Yes the message being that the Anti-Defamation League is fundamentally opposed to freedom of speech if it disagrees with the content of said speech.
2.22.2006 1:02pm
George Gregg (mail):
MetaFilter has an interesting comment thread on this, with many of the key arguments in favor and opposed.

As with most controversial topics, the MeFi comments can reflect the spectrum of human nature.
2.22.2006 1:11pm
HLSbertarian:
Steve said: The Protocols of the Elders of Zion are still kicking around, after all. It's not like centuries of free speech and "daylight" have eliminated the crackpot theory that the Jews are out to get us.

This is a perfect example, actually. In countries respecting free speech, the Protocols have been exposed for the fraud they are and information regarding their history is readily available. In many middle-eastern countries with government-controlled media, the Protocols persevere unexposed to many.

The goal isn't to eliminate such crackpot theories, the goal is to allow people to judge such theories for themselves. The Protocols are not a fraud because they're anti-Semitic, they're a fraud because they are literally fake. Repressing them because of the former prevents people from making a judgment based on the latter, and that fuels the fire of those who believe anti-Semitic ideas are legitimate.

Much of the same, though of course with certain distinctions, can be said for repressing theories that come to a certain conclusion (that the Holocaust didn't happen as most people say it did) instead of letting scholars refute these theories on the evidence.

Anyway, I undestand we're basically on the same side. Just wanted to bat the idea around a bit. Now I have to goosestep to class.
2.22.2006 1:19pm
Freder Frederson (mail):
Much of the same, though of course with certain distinctions, can be said for repressing theories that come to a certain conclusion (that the Holocaust didn't happen as most people say it did) instead of letting scholars refute these theories on the evidence.

But honestly, what do you do about people who just won't believe undeniable facts even in the face of overwhelming evidence--especially when those abhorrent untruths are used to advance an agenda that denies genocide and ignores and absolves (indeed condemns the justice system for trumping up charges) war criminals for their crimes. If there is such a crime as criminal libel and slander, then Holocaust denial is certainly it.

We have people in this country, some supposedly intelligent, who continue to deny settled scientific facts and theory like evolution and global warming. No matter how many facts and rational arguments you present them with, they still stick to their myths, truthiness, denial, and crackpot theories that agree with the world as they would like it to be rather than as it really is. Maybe we should have reeducation camps for these people. Even our (us liberals) deathgrip on higher education doesn't seem to have much effect on them.
2.22.2006 2:42pm
Joegator:
Yet another reason to reject Breyer-esque appeals to "International Law."
2.22.2006 3:01pm
Paul McKaskle (mail):
Irving is in jail, and I presume will remain in jail during any appeals. Ultimately the case is likely to get to the European Court on Human Rights which has been somewhat more willing to defend free speech, even unpopular free speech. (Its record is far from unblemished in this respect, however, which is why I used the term "somewhat.") But, it takes years for a case to get to the ECHR and to be decided there. (It has a horrendous backlog, among other problems.) So, Irving may well have served a three year sentence before the ECHR weighs in. If the ECHR hears the case, it is likely to decide it one way or another rather than dismiss it as "moot." In theory the ECHR is obligated to hear any case presenting a human rights issue—it has no discretionary jurisdiction—though in reality it probably is selective. Insofar as I know, the ECHR hasn't had occasion to deal with Holocaust denial, although LePen was fined several hundred thousand dollars for claiming that the holocaust was merely a "detail" in the history of WWII. Apparently he didn't appeal to the ECHR.
2.22.2006 3:23pm
HLSbertarian:
Freder said: [W]hat do you do about people who just won't believe undeniable facts even in the face of overwhelming evidence--especially when those abhorrent untruths are used to advance an agenda that denies genocide and ignores and absolves (indeed condemns the justice system for trumping up charges) war criminals for their crimes.

What do you do about them? You don't elect them. You don't listen to them. You don't let their rhetoric affect the rule of law. And you shoot them when they try to blow you up.

I'm uncomfortable with doing more than that to people just because they don't accept what may be "undeniable" to you or me.
2.22.2006 3:25pm
Houston Lawyer:
Yes, clearly those who doubt that global warming must be man-made must be locked up. Can't have anyone argue with that or even conduct research to counter the idea. I must be especially careful not to fall off the flat surface of the earth.
2.22.2006 3:29pm
Freder Frederson (mail):
I'm uncomfortable with doing more than that to people just because they don't accept what may be "undeniable" to you or me.

We're not talking about "undeniable" to you or me--we are talking about objective truth. David Irving has had it proved to him in a court of law that the holocaust occurred and yet he persists in telling the same lies. (Apparently David Duke is also in danger of arrest under similar laws if he enters certain European countries). We have criminal laws against lying and there are civil penalties for libel and slander. Hell, we impeached a president for lying. This merely extends that concept a little bit further. In a Civil Law system there is more of a general obligation to society. Remember there is also an affirmative duty to offer aid to people at accident scenes, something that simply doesn't exist in our systme.
2.22.2006 4:00pm
anonymous22:
Holocaust denial does not play any role in furthering truth in the marketplace of ideas-- it simply pollutes the marketplace with incorrect arguments.

Human beings are often blinded by ethnic and cultural identity to oppose the truth. A lot of Germans would be convinced by otherwise superficial argumentation because in their hearts they "know" that Germany is an essentially good nation that is not capable of a crime like the Holocaust. I get the same sense from British history/propaganda which is designed to convince Brits that imperialism/colonialism was essentially a good thing that advanced worldwide progress, as well as continued Japanese denial of crimes against the Chinese during WWII.

Plus, we criminalize libel in the U.S., and group libel laws remain constitutional.
2.22.2006 4:16pm
Thorley Winston (mail) (www):
Plus, we criminalize libel in the U.S., and group libel laws remain constitutional.


Really? Cite please.
2.22.2006 4:25pm
Thorley Winston (mail) (www):
Yes, clearly those who doubt that global warming must be man-made must be locked up. Can't have anyone argue with that or even conduct research to counter the idea. I must be especially careful not to fall off the flat surface of the earth.


And therein lies the rub, proponents of supposedly "settled" issues who wish to criminalize contrary points of view do so because it's hard having to actually make and sometimes remake or even modify your argument with those who disagree or might be undecided. Far easier to simply slap the cuffs on someone or threaten them with civil or criminal penalties to silence them.

Which no doubt is one of the things holocaust deniers are hoping for.
2.22.2006 4:29pm
nk (mail) (www):
Austria has been called the most anti-Semitic country in Western Europe. Hitler learned his anti-Semitism in Vienna. Do they still have a city called Judenburg? This seems like over-compensation. On the other hand, you can say that the defendant is being hoisted by his own petard. Very much more repugnant policies than this killed 12 million people in the concentration camps.
2.22.2006 4:57pm
mqt of atlanta (mail):
For those who think that truth is necessarily a defense, consider the "false light" lawsuit:

http://www.rcfp.org/news/2003/1216anders.html
http://www.poynter.org/content/content_view.asp?id=58793

Is anyone interested in writing on "false light" suits? I understand that there is a bill introduced in Florida to rein them in.

As to Irving: Remember that this "gentleman" attempted to use the looser defamation laws of Great Britain to silence Professor Lipstadt of Emory University. His misuse of the system (all right, it is permitted in GB) caused her to engage for about six years. And then afterword some dolts wanted her to publicly debate him. And the courts slapped him down. But he did indeed get due process and had his days in court.

But are we surprised that there are no anti-Irving riots going on anywhere? Or anti-Protocols riots? Or burning of effigies?

Mayhaps Irving needed to read 2 Corinthians 9:6? Something about "sowing and reaping"?
2.22.2006 5:09pm
DonBoy (mail) (www):
The next step:
An Israeli lawyer, Ervin Shahar, says he has asked Germany to charge Iranian President Mahmoud Ahmadinejad with denying the Holocaust.
2.22.2006 6:35pm
anonymous22:
Beauharnais v. Illinois (1952) upheld group libel laws.
2.22.2006 7:06pm
mqt of atlanta (mail):
More on the false-light invasion of privacy business: On 2/14 the NW Florida Daily News ran an editorial entitled "Defending Free Speech in Florida." The paper discussed a lawsuit against the Pensacola News Journal resulted in an $18.28 million judgment against the paper by a plaintiff who accidentally shot his wife on a hunting trip. The suit was based upon the use of "shot and killed" in the article because Plaintiff said it implied murder. Now a state senator named Rod Smith dropped SB 1346 of 2006 into the hopper to attempt a remedy for future similar claims. Has anyone written about this elsewhere?
2.23.2006 3:16pm