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Careful Doing History in Europe -- You Might Go to Prison:

From a newly adopted EU proposal:

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group....

1b. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.

So if you're writing about whites' relations with American Indians', or the Crusades, or the reconquest of Spain from the Moors, or for that matter about any aspect of history that involves ethnic-based slaughter — think how much of that there has been in history — you might be violating the law. True, this would be covered only if your actions are "carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group." Is that really great comfort, though? If a tribunal concludes that your actions were likely to incite hatred against the defeated group, or even a member of the group, you're a criminal.

The enactment does give states the latitude to limit this:

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting....

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.

Thank you very much; states may choose not to suppress discussion of history quite as much as the EU suggests. For instance, until a court "establishe[s]" the Official View Of The Crusades, you're free to write history about them; only after the court establishes the True Historical Account would any attempt to question the new legally announced historical orthodoxy become a crime.

Oh, and here are the penalties:

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by effective, proportionate and dissuasive criminal penalties....

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

But of course there's no danger of restricting free speech: "This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.... This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to [...] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from [...] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability." Well, OK, then.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Historians Getting Into Legal Trouble:
  2. Careful Doing History in Europe -- You Might Go to Prison:
PersonFromPorlock:
The object of enlightened government in Europe is to provide as much liberty as is consistent with good order... which is to say, none.

Not that some places here in the US are a lot better.
4.20.2007 4:29pm
Tomm:
This is obviously joke. The EU wouldn't seriously consider such a broad restriction on speech. It might have been funnier, though, if they tried to ban cartoons.
4.20.2007 4:33pm
Mark_in_Texas (mail):
There were news stories a few weeks ago telling that British schools had stopped teaching about the Holocaust because it offended Muslim students by contradicting what they were learning during religious instruction at their mosques.

I will wait patiently to hear news that the clergy teaching Holocaust denial at the mosques have been arrested and prosecuted under this law.
4.20.2007 4:42pm
msimpson (mail) (www):
Isn't even worse that you say, EV? It looks to me that you can get in trouble merely by "trivializing" some event. Suppose you wrote an article saying that the Holocaust, all told, wasn't "unique" in some fashion (in comparison, say, with Stalin's killing). (Not necessarily my view, but it's one that people make in various ways). Wouldn't this open you up to prosecution? And even if it failed, wouldn't it provide a pretty good deterrent against that kind of argument?
4.20.2007 4:47pm
A. Zarkov (mail):
Turkey wants to become a member of the EU. However in 2005 Turkey introduced a new penal code, which contains Article 301making it a crime to insult "Turkishness," and this leads to problems for a Turk who wants to talk or write about the Armenian genocide. For example Ferit Orhan Pamuk, a Turk who won the 2006 Nobel Prize winner in literature had criminal charges brought against him for his remarks in an interview with the Swiss publication Das Magazin. He said, "Thirty thousand Kurds, and a million Armenians were killed in these lands and nobody dares to talk about it."

Thus absent a change of law by someone, if Turkey is admitted to the EU it will be a crime for Turks either to deny or confirm the Armenian genocide. Could a non-response about the subject be construed as a denial? Or a confirmation? Will the EU dispose of the fundamental law of the excluded middle in logic?

Another reminder that mass immigration from countries that do not share our fundamental beliefs about free speech and the power of the state is going to lead to profound changes and conflict in America.
4.20.2007 4:57pm
Elliot123 (mail):
Public order can easily be disturbed by the actions of various religious extremists. A case in point is religiously inspired suicide bombers. So, would it be criminal to suggest Mohamed was just another guy, Jesus wasn't god, or Krishna wasn't divine?
4.20.2007 5:01pm
Nick (www):
Wouldn't this also impact the ability of someone accused of said crimes to put forth a defense? Does this only apply to crimes that have been successfully prosecuted, or merely accusations of those crimes?
4.20.2007 5:02pm
ys:

Suppose you wrote an article saying that the Holocaust, all told, wasn't "unique" in some fashion (in comparison, say, with Stalin's killing). (Not necessarily my view, but it's one that people make in various ways). Wouldn't this open you up to prosecution?

Quite likely. Indeed a motion by the Baltic states to include denial of the Stalin era mass murder in the law was rejected. Thanks at least for the Danes, who apparently carved out some leeway in non-prosecuting all speech. Still I wonder if the decision not to condemn Mohammed-cartoons publishers could be taken under the new regime.
4.20.2007 5:02pm
Bill Poser (mail) (www):
This is written so broadly that you can probably get in trouble even for your choice of terminology in condemning genocide. For example, many people object to the use of the term "Holocaust" to refer to any genocide other than that of WWII because they think that this denies its uniqueness. I can imagine being prosecuted for trivializing "the" Holocaust by using the term, a I have, in reference to the genocide in Darfur.

Laws against "hate speech" are insane. There's no way to ensure that they are used intelligently and as intended and they do no good. Indeed, they do further damage by giving those whose speech is suppressed evidence for their beliefs since they can reason that if they were wrong their views would be countered by argument and evidence rather than censorship.
4.20.2007 5:03pm
wooga:
"..the dark night of fascism is always descending in the United States and yet lands only in Europe."
-Tom Wolfe
4.20.2007 5:07pm
logicnazi (mail) (www):
I'm not a fan of such laws because of free speech concerns and I think they do more to encourage hate speech (making it forbidden attracts the very people you want to discourage) however to be fair you won't get jailed or arrested for doing serious scholarship.
4.20.2007 5:12pm
Bill Poser (mail) (www):
Reading this again, it seems to me to written in such a way as to forbid not only denying war crimes etc. in a general way (e.g. "the Holocaust didn't happen"), but also that particular individuals were not guilty. That really widens the net. For example, many historians who are firmly convinced that Japan committed war crimes and crimes against humanity in WWII believe that Hirota Koki, who was hanged as a Class A war criminal, was innocent. Is making this argument now a crime in the EU?
4.20.2007 5:15pm
wooga:
Laws against "hate speech" are insane.

Not only that, they are silly. If a particular speech was not offensive to someone, then there would be no need for a law protecting that speech.

Anyone who calls for laws protecting "free speech but not hate speech" is, to put it mildly, an enemy of liberty. I would question not only their patriotism, but their sanity.
4.20.2007 5:16pm
wooga:
How about we follow the Euro model, and change the First Amendment to "Everyone is allowed to say only pleasant things which are universally agreed upon"?!?!
4.20.2007 5:19pm
ys:

Thus absent a change of law by someone, if Turkey is admitted to the EU it will be a crime for Turks either to deny or confirm the Armenian genocide. Could a non-response about the subject be construed as a denial? Or a confirmation? Will the EU dispose of the fundamental law of the excluded middle in logic?

Armenian genocide denial was another event not specifically included and thus falls into Goedel's purgatory of unverifiable statements, until that is you go outside the framework for a higher power. That power seems to be the International Criminal Court, which apparently caused the Rwanda killings to be on the approved list of non-deniable facts.
4.20.2007 5:25pm
A. Zarkov (mail):
Belgium has already criminalized racism and xenophobia. To merely express an opinion that we (Belgium) should have less immigration or that immigration is undesirable could result in a criminal charge of xenophobia against the speaker. The south of Belgium is ground zero for this kind of thinking. For example look at the papers in the ENAR Conference on Racism as a Crime, Brussels 2004. From the welcoming speech:

"Racism is not opinion, it is a crime."

"Fortunately, According to the explanatory memorandum for the Commission's
proposal for a Council Framework Decision on combating racism and xenophobia
and through various other documents, statements, treaties and directives, the
EU Member States and the EU institutions have acknowledged that racism,
xenophobia and racial discrimination cause severe problems throughout Europe."

"What should the criminal law legislation cover?
We all know that racism is manifested in many forms and ways. Right from open
and direct to hidden and indirect, conscious to action oriented, individual
attitude racism to state permited cultural discrimination and group oriented
structural to ideological based political racism. The list is long and confusing."

"That is why the criminal law legislation should cover a wide range of actions,
from violent acts based on racial motivations to be considered as aggravating
circumstance over statements and publications of individuals or groups inciting
racial hatred to violations of the human right to equal treatment and non-
discrimination …"
4.20.2007 5:31pm
ys:
logicnazi:

however to be fair you won't get jailed or arrested for doing serious scholarship.

And who defines which scholarship is serious? Not to mention that an interested person/group would be delighted to drag you through the court just to see you labeled "non-serious" and as a result a convicted criminal.
4.20.2007 5:32pm
Viscus (mail) (www):
I certainly don't agree with this proposal. However, I don't think that "writing about history," to the extent that implied in the term "history" is a respect for the truth, includes "condoning, denying, or grossly trivializing ... genocide, crimes against humanity and war crimes."

If you write something, say, denying the existence of the holocaust or other true event, I would not call that "writing about history." If you write something in favor of, advocating, or condoning genocide or war crimes, that is not "writing about history" either. Finally, I would not call "grossly trivializing" mass killings or war crimes "writing about history" either.

Granted, any of the things above can be done in a writing that is generally about history. But when you go out of your way in your piece to "condone, deny, or grossly trivialize" a true historical event, that particular part of your work is not about history. Rather, it is about you communicating a particular point of view -- one that is thought to be repugnant and evil.

If I write about the life of George Washington, that is history. When, in the same work, I go out of my way to say that George Washington was evil because he owned slaves, that is not history. That is merely my point of view.

Overall, I don't approve of this EU proposal outlawing certain speech. But, I don't think that valid opposition lies in concerns about preserving history but rather in a concern about preserving the unfettered ability of ideological minorities to express their point of view, no matter how repugnant or evil.

A commentator above suggests that this proposal is even worse than EV suggests, because it outlaws the "mere trivialization" of some event. But it should be noted that it outlaws "gross trivialization" not "mere trivialization." Reasonably interpreted, this would be a higher standard than merely suggesting that other mass murders are just as much of a tragedy as, say, the holocaust. Some self-centered individuals might argue that to compare any tragedy that implicates another to a tragedy that implicates themselves is a "trivialization" of the tragedy that implicates them. David Frum, a former speech writer for the President famous for the "axis of evil" line, demonstrated such a self-centered tendency when he asserted that Mel Gibson's comparison of the holocaust to other mass killings was evidence of Gibson's anti-semitism. Mel Gibson might or might not have anti-semetic tendencies, but merely suggesting that one human tragedy is bad as another is not evidence of that. But even for the likes of David Frum, it would be beyond hubris to suggest that such a comparison is not only a "trivialization" but rather a "gross trivialization."

I think the proposal is bad enough. There is no need to exaggerate its badness. Either as an obstacle to the carrying on legitimate historical research or suggesting its scope is wider than it really is, in order to effectively oppose it.
4.20.2007 5:35pm
A. Zarkov (mail):
"… however to be fair you won't get jailed or arrested for doing serious scholarship."

Be fair to whom? Do you think only scholars are entitled to free speech? Who decides what is "serious scholarship." I know the government.

How about Oriana Fallaci's book, The Rage and the Pride? In November 2002 a Swiss judge issued an arrest warrant for violations of article 261 and 261 bis of the Swiss criminal code and requested the Italian government to either put her on trial or extradite her. Do you consider her work as not "serious scholarship," so she can be arrested and jailed?
4.20.2007 5:46pm
Bill Poser (mail) (www):
Viscus,

This law criminalizes purely objective statements, not just subjective evaluations. In cases like the Holocaust of WWII it may seem that only the insane or liars would deny the fact of the Holocaust, but there are cases in which there is legitimate controversy, where one can easily see valid historical debate being criminalized. A case in point is what happened to the native population of the Americas post-Columbus. Many people characterize this, or specific aspects of it, as "genocide", and get very upset if contradicted. Whether it really was genocide, in the sense of the intentional elimination of an entire people, is quite debatable and probably can only be answered with respect to specific cases. For example, although the arrival of the Spanish in the Carribean resulted in fairly short order in the extermination of the Indians, and the conduct of the Spanish was certainly vile, there is a strong case that they did not intend to kill them. They wanted them as slave labor and were in fact greatly put off by the fact that they died off so rapidly. That is why the Spanish had to import slaves from Africa at considerable expense. In other areas the Europeans wanted the Indians to go away but did not care whether they died or just went elsewhere. In still other areas, the Europeans really did intend to kill off the Indians.
4.20.2007 5:47pm
A. Zarkov (mail):
Viscus:

You can't write about history without expressing a point of view. The events and people you write about and the references you cite all involve a point of view because you are exercising judgment in what you include and what you don't. If someone writes a biography about George Washington that excludes his heroic acts as a general and concentrates on his activities as a slaveholder, then he's expressing a point of view, by trivializing Washington's accomplishments as a general.

Now I agree that some works are mostly opinions and others are mostly facts. But in this postmodern age of "deconstruction" many people don't really believe in facts, they interpret everything in a subjective/political framework. I heard feminists level a charge against a scholar that he is "fact obsessed," and fails to understand the ultimate truths. This is the kind of mentality driving the EU race hustlers.
4.20.2007 6:04pm
Viscus (mail) (www):
Bill Poser,

The proposal is obviously aimed at denying the actual events underlying a genocide (i.e. the killings themselves) rather than having a legitimate intellectual argument about whether the term genocide is the right word to use.

Your hypothetical advocate for not using the term genocide for the mass slaughter and enslavement of natives by Columbus and his ilk would have to actually deny the underlying events for this proposal to have any effect whatsoever.

Not only that, the denial must be "likely to incite to violence or hatred against such a group or a member of such a group." You would have to be living in an alternative universe to think that arguing about whether the term genocide should be applied to the malicious murder and enslavement of natives by Columbus and his ilk would actually be "likely to incite violence or hatred" against such natives. An argument that the term genocide should not be used, when it is intellectually valid (i.e. not the holocaust), is not the sort of thing that incites violence or hatred against the victim group. Such an argument might incite hatred against the person arguing that genocide is not the right word, but it would not incite it against the victim group.
4.20.2007 6:13pm
Viscus (mail) (www):

You can't write about history without expressing a point of view.


But you can write all the history you want with out "condoning, denying, or grossly trivializing ... genocide, crimes against humanity and war crimes."

I agree that all historians have points of view, that that what they write will inevitably be influenced by that point of view. However, the point of view itself is not history and these particular points of view never need be expressed. Further, we would lose nothing of historical value if they weren't expressed.
4.20.2007 6:17pm
wooga:
But it should be noted that it outlaws "gross trivialization" not "mere trivialization." Reasonably interpreted, this would be a higher standard than merely suggesting that other mass murders are just as much of a tragedy as, say, the holocaust.

Viscus, who gets to make the "reasonable interpretation"? An unelected european lawyer (to the extent you can call them a 'lawyer' with their minimum legal schooling). Get a handful of these self-righteous folk in a room, and they get to decide whether you go to jail or not.

Here's an example. Suppose someone (Prof X) wants to write a paper about just how many millions of jews were murdered in the Holocaust. Prof. X argues for 5 million, saying the written records only support that much, and criticizes those who say 6 or 7 million as unsupported (albeit plausible) extrapolation. Prof. X's goal in his research is to convince the deniers that yes, in fact, the Holocaust happened, and he is worried that any statistical weakness in the "7 mil" argument is being exploited by deniers to attack the Holocaust as a whole.

However, the death of 1 million people is no small matter, and to deny the deaths of that 1 million would easily be "gross trivialization" of those deaths. Prof X, for all his efforts to prove the Holocaust, ends up being sent to prison for trivializing the Holocaust. European justice at its finest.
4.20.2007 6:22pm
Christopher Cooke (mail):
I think everyone is making a big fuss about what is likely to be very little. First, as noted by EV, there is a free speech exception, which may swallow this rule. Second, in Germany, it has long been illegal to associate with, or display symbols of, the Nazis. This is just taking that one step further, and attempting to outlaw neo-Nazi propoganda and Holocaust deniers like Irving. Fourth, while I don't agree with laws against hate speech, I note that speech is not universally protected in the US. Speech threatening physical violence may constitute assault, speech planning criminal conduct may constitute a criminal conspiracy, speech proposing a fraudulent transaction is illegal under a variety of state or federal laws, and racist speech uttered in the workplace may subject one to civil liability. In short, speech is regulated, and the scope or extent of the regulations just reflect our values about which speech is so important to be immune from government censorship and which speech is not. I guess it is fair to say that in the USA, we care less about offensive, racially charged speech than they do in Europe, but that is about all I read into this law.
4.20.2007 6:22pm
MDJD2B (mail):

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order....


Does this give a heckler's veto to groups that are likely to react to assertions they don't like by disturbing the public order?
4.20.2007 6:36pm
Elliot123 (mail):
We don't have to argue about what would incite violence; we only have to observe it. The violent will have the power to control the application of the law. If violence follows a speech, then one can reasonably say that speech incited violence. Anyone who wants to control what is said just has to throw a few bricks to have that topic added to the list of things that incite violence.

This is a gift to the violent in society, and I would expect it to cause more violence than it prevents.
4.20.2007 6:40pm
Viscus (mail) (www):

Viscus, who gets to make the "reasonable interpretation"? An unelected european lawyer (to the extent you can call them a 'lawyer' with their minimum legal schooling). Get a handful of these self-righteous folk in a room, and they get to decide whether you go to jail or not.


First of all, if you have a problem with the EU system in general i.e. unelected but democratically accountable lawyers interpreting statutes, that is way beyond the scope of this proposal.

If you have a problem with people in positions of power who will make twisted and unreasonable interpretations of law, then you have problems much bigger than this mere proposal. By the way, we also have a potential problem in the U.S. with unelected judges applying unreasonable interpretations. Especially Judge Kozinski of the 9th Circuit. That is just the way it goes. It always is a potential problem, and the solution is to make judges accountable. We probably should do that here. Lifetime tenure is a mistake. 10 years is probably a better term of service Supreme Court justices, appellate court judges (is anyone else sick of reading Posner decisions?), and even District Court judges.


However, the death of 1 million people is no small matter, and to deny the deaths of that 1 million would easily be "gross trivialization" of those deaths. Prof X, for all his efforts to prove the Holocaust, ends up being sent to prison for trivializing the Holocaust. European justice at its finest.


If you have judges that are this unreasonable, they will be making many other, even more important decisions -- presumably also in an unreasonable way. If that is the case, you are f***ed anyway. That really is not an argument against this proposal in particular, but rather an argument for the necessity of ensuring a mechanism whereby those interpreting law are held accountable. I feel sorry for any person accused of a regular crime or any business person who has to come before the judge like you are describing here.
4.20.2007 6:45pm
luispedro (mail) (www):
This completely misunderstands the value of the agreement which exactly zero.

In Europe this was seen as a defeat for the prohibitionist group (headed by Germany). This is void until translated into law by the individual states. Since all states already condemn "incitment to violence" no one really needs to change their law. The countries who would be more stringent, already are (Bernard Lewis was convicted in France and fined for saying that the Armenian tragedy did not constitute a genocide --- a 1€ fine in a kind of judge annulment of the law).

The only thing that could happen would be for a state to be sued in European Justice Court by one of the groups fighting Holocaust deniers, but I doubt the plaintifs would win.
4.20.2007 6:45pm
Elliot123 (mail):
louispedro,

If this is considereed a defeat, it shows how deeply entrenched such attitudes against free expression have become. It could also have been defeated by a firm expression of support for freedom of expression.
4.20.2007 7:19pm
Bill Poser (mail) (www):
Viscus,

I don't believe that the text supports your narrow view of the law. You might be right about the intention, but the use of laws is frequently not limited to what they are intended to apply to. In the American Indian case, for example, a historian who claims that Indians in the Carribean were done in by European diseases is not denying that they died but he is denying that homicide occurred. That can certainly be construed as denying that an event occured. It's just a matter of whether you construe the event broadly as "death" or narrowly as "homicide".

The restriction to cases in which the denial is likely to incite hatred etc. does not eliminate my concern. In a rational world, I would agree with you - we might be able to limit the application of such laws to the case of "fighting words", as it were. In practice, I don't believe that that will happen since where such laws exist they have frequently been used in situations in which there was little or no likelihood of violence. It is possible that this formulation of the law is intended to emasculate it while allowing the proponents of censorship a symbolic victory, but too many people are willing to make and to accept the argument that any kind of denial constitutes oppression of the alleged victims and an incitement to violence against them. It is far safer to take a strong position for the freedom of speech and reject such laws outright.
4.20.2007 7:35pm
David M. Nieporent (www):
This is written so broadly that you can probably get in trouble even for your choice of terminology in condemning genocide. For example, many people object to the use of the term "Holocaust" to refer to any genocide other than that of WWII because they think that this denies its uniqueness. I can imagine being prosecuted for trivializing "the" Holocaust by using the term, a I have, in reference to the genocide in Darfur.
Well, Bill, I wouldn't accuse you of "trivializing" the Holocaust by doing this, but I'd accuse you of butchering the English language. "Holocaust" isn't a synonym for genocide. As a proper noun, it refers to the Nazi genocide. As a lower-case noun, it refers to destruction by fire; it's from the biblical term for a burnt offering. So it doesn't make sense to refer to Darfur as a "holocaust," as opposed to genocide. (At least as far as I know; I don't think the Darfuris are being burned to death.)

(Now, if you refer to the Israeli treatment of Palestinians as a "Holocaust," then you're trivializing the Holocaust.)
4.20.2007 7:37pm
Viscus (mail) (www):
David M. Nieporent,

One thing intersting about language is that it evolves. The term Holocaust might originally refer to a specific event, but then, as that event becomes entrenched as the example of a particular thing (I for one can't even hear the word genocide without thinking about the Holocaust) the word referring to the specific thing is likely to become more general. This happens with other words all that time. Think about escalator, frisbee, xerox, coke or band-aid.

I don't think Bill Poser is butchering the English language at all. I think he is merely part of a bigger natural and inevitable evolution of language. I am personally pro-evolution when it comes to language. There is absolutely no risk in misunderstanding when Bill Poser refers to a holocaust in Darfur and means it to be equivalent to genocide. Your complaint is entirely non-substantive. You prefer he uses a different word, but not because there is any serious risk of confusion. But language will not be held back - it will evolve.
4.20.2007 7:56pm
David M. Nieporent (www):
If you write something, say, denying the existence of the holocaust or other true event, I would not call that "writing about history." If you write something in favor of, advocating, or condoning genocide or war crimes, that is not "writing about history" either. Finally, I would not call "grossly trivializing" mass killings or war crimes "writing about history" either.

Granted, any of the things above can be done in a writing that is generally about history. But when you go out of your way in your piece to "condone, deny, or grossly trivialize" a true historical event, that particular part of your work is not about history. Rather, it is about you communicating a particular point of view -- one that is thought to be repugnant and evil.
Even assuming your distinction were valid, as usual you miss the point. This statute by definition can't criminalize the falsification (or "grossly trivializing") of history; this statute criminalizes the falsification/gross trivialization of what the government decides is history. That's the concern here. But your distinction isn't valid. All history is about communicating a particular point of view. (Don't mistake me for a postmodernist; I think some points of view are true and some aren't.) There's no such thing as history which doesn't advocate a particular view. There's no such thing as history which doesn't "trivialize" some events and magnify others.

Not only that, the denial must be "likely to incite to violence or hatred against such a group or a member of such a group."
Which is back to you missing the point. It's the government which decides whether your speech does that. Even if you think that you would be "reasonable" (by your own standard) -- and based on our conversations, I would disagree with that assessment of you -- that doesn't mean government bureaucrats would be reasonable by your standards. You seem to think that because you think something is unreasonable, other people will, too. They may feel they're being completely reasonable by defining any historical heterodoxy as "likely to incite violence or hatred. But like most non-libertarians, particularly on the left, your response to "What about government overreaching" is "We should pick good people to be in government" rather than "We should limit the power of government."
4.20.2007 8:12pm
David M. Nieporent (www):
I don't think Bill Poser is butchering the English language at all. I think he is merely part of a bigger natural and inevitable evolution of language. I am personally pro-evolution when it comes to language.
And one day, "chimpanzee" may come to mean "a large orange vegetable," but until it does, someone who uses it that way is wrong.
4.20.2007 8:15pm
Viscus (mail) (www):
Bill Poser


a historian who claims that Indians in the Carribean were done in by European diseases is not denying that they died but he is denying that homicide occurred


First, this is not a good example. Countless natives were in fact murdered. To deny that homicide did not occur would be to state something that is plainly false. Now, one might deny that a particular death, or most deaths were homicides (in fact, most deaths were caused by disease), but one cannot deny that there was in fact mass murder and enslavement as well.

Second, the example you used is not the right context. The legitimate question is whether the mass murders that did occur should be called genocide or not. The question is not whether there was or was not mass murder. Denying that there was mass murder is very different from denying that the label genocide should be used to describe the mass murder we know occurred.


In practice, I don't believe that that will happen since where such laws exist they have frequently been used in situations in which there was little or no likelihood of violence.


What you are in essence arguing, is that the legal system cannot be relied on to arrive at reasonable intepretations. This is a legitimate concern, but not particular to this proposal. When unaccountable judges make unreasonable interpretations, we are all f***ed. The law deals with many important and critical issues, many of them having nothing to do with speech per se.


It is far safer to take a strong position for the freedom of speech and reject such laws outright.


I agree with your conclusion, but not your reasons. I think that ideological minorities should be able to voice repugnant and evil opinions. However, if we believe that they should not, I have confidence that the legal system would be able to limit the infliction of punishment to ideological minorities with such opinions with a high degree of accuracy. If and when mainstream opinions were supressed, their would be a political backlash sufficient to curtail it.

Really, we only need the First Amendment to protect ideological minorities, not mainstream opinion. There was no danger, social or legal, in holding racist opinions when such views were mainstream. Now that such views are not only fringe, but widely condemned, there are definite risks, both social and legal. (i.e. see Mathew Hale, head of the World Church of the Creator or some other such absurd outfit, who was denied the privilege of practicing law due to his racist beliefs.)

If what you suggest about the legal system is true, that it cannot be trusted to arrive at reasonable interpretations in the vast majority of cases, then we have deeper and more serious problems.
4.20.2007 8:16pm
Viscus (mail) (www):
David M. Nieporent,

Ahh... Nothing like vicious sarcasm. You are more like me than you think. Well, except that I recognize that people have an inalienable right to food, and you don't. And your an evil libertarian, while I am a kind, generous liberal. And that you hate puppies and kittens. And that you think it is property, life, liberty not life, liberty, property.


And one day, "chimpanzee" may come to mean "a large orange vegetable," but until it does, someone who uses it that way is wrong.


I say that day is today. When people refer to a holocaust in Darfur, I know exactly what they are saying and never think to correct them.

Some people might think to appoint themselves the language police. But unless they are a professor (or teacher) who gets to impose their views on students, or an editor who gets to impose their views on a writer, who cares?? Language is kind of like the Internet. It is decentralized. It is messy. And this drives people who would like to control it crazy. That it drives certain people mad I consider to be a feature, not a bug.
4.20.2007 8:25pm
Viscus (mail) (www):
David M. Nieporent,

Strictly speaking, yes, everything, including history and science is a "point of view," since all data comes to use through our senses, and we are situated in the world in a particular manner.

That said, there is a major conceptual difference between fact and opinion. If the dog jumps over the stream, that is a fact, although my perceptions of that fact have something to do with my point of view. However, my approval of that dog jumping or disapproval, while also informed by my point of view, is opinion. And it really is neither true or untrue. To condone or deny something is clearly opinion. To "trivialize" it can be more fuzzy. If you don't talk about something, are you trivializing it? But, when you add the word "grossly" to trivialize, it becomes much less fuzzy. To grossly trivialize something is not merely to avoid mentioning it, but it is to mention and belittle it, at a minimum.


Even if you think that you would be "reasonable" (by your own standard) -- and based on our conversations


You are confused about what I am saying is reasonable. I do not think the EU proposal is reasonable. In fact, I am against it. However, I do think that a reasonable interpretation is much more narrow than has been suggested. And if that wasn't enough, the incitement language adds even more protection. However, I do not believe that we should supress ideological minorities who express repugnant and evil points of views. That is, such minorities should have an inalienable right to express such views. Thus, I do not view the proposal as reasonable, but rather am its affects are likely much more narrow than has been suggested by certain alarmists.


But like most non-libertarians, particularly on the left, your response to "What about government overreaching" is "We should pick good people to be in government" rather than "We should limit the power of government."


That is because most non-libertarians recognize that alternatives to government can also be abusive. That some "private" abuses are worse than some "government" abuses. That the simplistically applied labels "government" and "private" are not enough to establish what is the lesser evil. That a more nuanced and sophisticated consideration of the problem is called for if true liberty and human flourishing are to be obtained.

I have a theory. Interestingly, the vast majority of libertarians are relatively privileged and well-off white males. That is, in the private sector, they probabilistically tend to be in the position of the abusers, rather than the abused. Of course, they would be against any countervailing power that checks them, and the major countervailing power that concerns them most is government.

But in the words of Lord Acton, "Power corrupts, and absolute power corrupts absolutely." This concern is valid whether the power is labeled "public" or "private."

I am a liberal, because I believe in checks and balances. On you too.
4.20.2007 8:45pm
Duncan Frissell (mail):
It's hard to imagine with the quantity of speech on the Nets (which are much larger than Europe) that such restrictions can effectively reduce the total volume of prohibited remarks by a statistically significant amount.

Just as EMI and Apple were forced by impossibility to give up music DRM (and as software vendors were forced to give up copy protection 20 years ago), Eurocrats will have to eventually notice that such speech restrictions are impossible in the modern world.
4.21.2007 12:42am
olivier (mail):
This EU law is mostly meant to target influent people (politicians, scholars) who publicly express a personal opinion that is contrary to clearly established scientific facts (concept of race, for example) or historical facts (denial of the Holocaust, for instance), and could lead to endoctrination and racial violence. This law is not meant to persecute scholars who base their research on facts.

However, the European notion that free speech can be restricted poses a real problem, especially to an American mind. Yet, I would like to point out that freedom of speech in the US is somewhat selective. If I'm correct, you could be charged for threatening to kill the president, or to bomb an airplane, but not for advocating the murder of black people (KKK is legal) or the use of children for sex (pedophile associations are legal). My belief is that freedom, whether freedom of speech or other kinds of freedom, can never be absolute. There will always be limits imposed by the society to the freedom of individuals to do or say something that is judged potentially harmful. The popint is that these limits are different in Europe than in the US, due to cultural and historical differences.

Another example: many Europeans living in the US are disturbed by having to show their ID at the entrance of a bar, something that never happens in Europe, and is perceived by them as a restriction of individual freedom.
4.21.2007 8:16am
Elliot123 (mail):
Bar owners in Europe may also refuse service to potential patrons.
4.21.2007 3:12pm
b:
David M. Nieporent,

From the American Heritage Dictionary:

Usage Note: Holocaust has a secure place in the language when it refers to the massive destruction of humans by other humans. Ninety-nine percent of the Usage Panel accepts the use of holocaust in the phrase nuclear holocaust. Sixty percent of the Panel accepts the sentence As many as two million people may have died in the holocaust that followed the Khmer Rouge takeover in Cambodia.

You wrote:

And one day, "chimpanzee" may come to mean "a large orange vegetable," but until it does, someone who uses it that way is wrong.

One day, pretentious, self-important idiots will do a few seconds' worth of research before flaming people about trivialities, but until then, we have you to entertain us.
4.21.2007 4:57pm
Alan K. Henderson (mail) (www):
European antiwar leftists must be aghast at this law, since it means they can't legally draw Bush-Hitler parallels in their protests.
4.22.2007 1:27am
Charlie Feather (mail):
All of this talk is like arguing about what caused the fire while the roof is caving in. The lesson I retain is that the Orwellian nightmare of Big Brother is actually upon Europe, and soon to be in the US also. When public morality is gone, there remains only the law.... and those who make it.
4.22.2007 9:24pm
Rich Rostrom (mail):
This proposal demonstrates a deep and irresolvable conflict. History shows that it is Bad for authority to establish Truth and impose that Truth by force. History also shows that when there is no established truth, villains will spread dangerous and destructive lies, and that such villains sometimes have sufficient energy and support and organization to do major damage.

In one areas at least, we do have official Truth established by force: pharmaceuticals. The state decides whether a drug is safe and effective. If the state decides it isn't, then selling it anyway becomes a crime. Before this rule was in place, frauds and cranks swindled people out of $millions.

Europe has had sad experience with historical liars begetting crime and destruction.
4.24.2007 3:13pm