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Historians Getting Into Legal Trouble:

In response to my post about how the European Union is requiring states to criminalize (among other things) "condoning, denying or grossly trivialising crimes of genocide ... when [the speech] is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group," a commenter writes:

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.

Well, here's a story I wrote about in 2002:

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof ... of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Say that a European country enacts the core EU proposal (especially without the modifications that the proposal would tolerate though not encourage). Say that a historian -- especially one who lacks Bernard Lewis's prominence -- likewise says that the mass killing of Armenians wasn't "part of a deliberate campaign of extermination by the Turks," which I'm sure some will say "grossly trivialis[es] crimes of genocide." And say that he says this in a way that condemns some Armenians who say the contrary (perhaps claiming that they're deliberately distorting the facts in support of their view), so that it is "likely ... to incite ... hatred against ... a member of such a group [i.e., ethnic Armenians]."

Would we say "to be fair [this historian] won't get jailed or arrested for doing serious scholarship"? (Recall that the EU proposal expressly calls for "effective, proportionate, and dissuasive criminal penalties," specifically with a statutory "maximum of at least 1 to 3 years of imprisonment.") Or is it that sharing Lewis's views, coupled with condemning some who you think are distorting the facts, is per se not "serious scholarship"?

Related Posts (on one page):

  1. Historians Getting Into Legal Trouble:
  2. Careful Doing History in Europe -- You Might Go to Prison:
tmittz:
For what it's worth, since we keep discussing the Armenians, according to this article, it will be specifically exempted.


In an attempt to assuage Turkish fears, several EU diplomats said the provisions would not penalise the denial of mass killing of Armenians by Ottoman troops in the aftermath of the 1915 collapse of the Ottoman empire. Turkey strongly rejects claims that this episode amounted to genocide.
4.20.2007 6:45pm
Viscus (mail) (www):
There is still a gap in your argument. There is no indication that the EU proposal you criticized in your previous entry requires other EU countries to adopt French-like law. It is a different proposal, and there is no reason to think it requires prosecution for merely disagreeing about whether a particular mass killing should be labeled a genocide when it is non-obvious (i.e. not the holocaust).

Second, the court specifically said the following, which you quoted and I repeat:


the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide (bold added)


If this is true, and he really did conceal contrary information, then I am afraid logicnazi is right. A scholar who "conceals" information contrary to his thesis, rather than addressing it, is not only unserious, but an academic fraud. Thus, even if the atrocious French standards were required to be adopted by this proposal (which, as previously mentioned, you have not shown) it still would not be the case that it would supress "serious scholarship."
4.20.2007 6:59pm
Solid State (mail):
Concealment is flexible. If you think an ommitted fact is material and contrary to the conclusion - then its ommission can be concealment. If, in the opinion of historian, the ommitted fact is irrelevant or not of sufficient weight to change the conclusions, then ommitting the fact in a newspaper article summarizing conclusions of a historian is reasonable.

Bernard Lewis is supposed to have 'concealed' facts in order to assert there was no 'serious proof'. Read this sentence all together. If a scholar says, "Nevertheless, no serious proof exists of a decision and plan of
the Ottoman government for extermination of the Armenian
nation," the 'concealment' of facts directly depends on the judgment of the court v. the historian about whether the omitted facts constitute 'serious proof'.

The critical point in EV's post, is that none of his statements were false - therefore concealment had to turn on ommission.
4.20.2007 7:18pm
Kazinski:
Viscus:

I think you are missing the point, Lewis wasn't convicted of leaving out contrary information in his scholorship, but in a newspaper interview. In a brief inteview you have to make your points sucinctly and if you add a lot caveats and contrary opinions then any resulting arguement is going to be a confusing mismash.

The fact is there that Western Europe is turning is back of free speech if favor of "correct" speech.
4.20.2007 7:20pm
Viscus (mail) (www):
Kazinski:

In a brief inteview you have to make your points sucinctly and if you add a lot caveats and contrary opinions then any resulting arguement is going to be a confusing mismash.


And maybe it should be confusing. Why should things that are not simple be communicated as though they are? I don't think the public is served by having this issue artificially simplified for easy digestion. (Although, simplification for understanding is good when it can be done without sacrificing substance -- that is not the case here.) Some things should remain a confusing mismash, when that is a reflection of a more complicated reality.

Furthermore, if Lewis was punished for this interview, the interview itself is obviously not "serious scholarship" so the argument that this shows that "serious scholarship" will be supressed is invalid. Now, Bernard Lewis may be a "serious scholar" (I have no idea) but that he is punished for something that is unscholarly is not equivalent to the supression of "serious scholarship."

Solid State:
"Concealment is flexible."

Any word can be said to be "flexible" depending on who is using it, for what purpose, and what the context is. The question is, what did the court mean by "concealment" in this case?
4.20.2007 7:34pm
Viscus (mail) (www):

concealment had to turn on ommission


An ommission based on ignorance is not concealment. Whereas, a self-serving omission based on a desire to strengthen one's conclusion or thesis is concealment. Of course, if the court is using the term in a "flexible" way to refer to mere ignorance, that would be very interesting to know.
4.20.2007 7:39pm
Viscus (mail) (www):
above, "desire" should be "knowing desire"
4.20.2007 7:39pm
Joe Bingham (mail):
They don't want to prosecute deniers; they just want to send them to the USA so they can feel even more morally superior when the HC is denied from over here, where's we're all uncultured, uneducated, capitalist, gun-toting Judeo-Christian swine.
4.20.2007 7:54pm
Bill Poser (mail) (www):
Viscus,

Have you ever been interviewed by a journalist on a scholarly matter? I have, and with the rarest of exceptions (the occasional science journalist who actually has a science background and so forth) you can't be complex and subtle. You can take a non-committal position, but they don't like that (it usually isn't sexy), and you don't want to if you actually think that one position or the other is correct. If you take position A but start going into detail on the arguments for position B, you're going to lose the journalist. And even if the journalist gets it right, the editor will probably garble it.

Much of the same applies if you get to write a newspaper piece yourself. You don't have the journalist's misunderstanding to deal with, but you may still have the intervention of an editor to worry about, and in any case you usually don't have much space and have to assume that many readers will not go beyond the first paragraph or two.

As a result, criticism, or prosecution, for omission in the case of press reports or newspaper articles is generally not fair.
4.20.2007 9:20pm
Elliot123 (mail):
Is there some reason we should be more concerned with the right to express serious scholarship than the right to opine?
4.20.2007 9:23pm
Eugene Volokh (www):
Elliot123: I don't think we should be. But some people are, and I'm trying to persuade them that these speech restrictions threaten High Scholarship as well as Low Bloggery.
4.20.2007 9:47pm
Tom Holsinger (mail):
The objective of many EU regulations is to give the enforcers as much unaccountable, arbitrary power as possible. This is commonly achieved with inconsistent, if not overly contradictory, regulations which the regulators may then apply as they wish.
4.20.2007 9:50pm
Viscus (mail) (www):
Bill Poser,

Science is a totally different context than what you have here. Simply put, science is much more complex and confusing, especially when presented with many small details and confusing nuances.

In contrast, in this case, the concept of evidence suggesting that a mass killing was or was not genocidal is simple enough for nearly any journalist to understand. One could easily mention a particular piece of evidence that suggests genocide and then explain why, in your opinion, that evidence has weaknesses. That should not be beyond the intelligence of the vast majority of journalists, even those with below-average intelligence. In contrast, with your science knowledge, specialized knowledge is required before even an intelligent journalist will understand how you assess and wiegh a particular piece of evidence, so you might not tell them about the evidence at all.
4.20.2007 10:18pm
John Burgess (mail) (www):
Viscus: Journalists work to fill a news hole, be it on paper or on a broadcast medium (Internet journalism may escape these bounds).

A newspaper reporter will not write a nuanced, 5,000 work article if the news hole he's expected to fill is 750 words. The person being interviewed has a choice of focusing the discussion on his/her main points or letting the journalist and whatever editors are in the back room focus the discussion.

I suppose a bad editing job might give the academic a legal out, if error can be demonstrated, but that's not the way the media works.

The more complicated an issue, the more sides there are to it. One book on the issue is expected to be as fair to all sides as possible, but not to turn every paper into a 2,000 page tome exhausting all possibilities. That's why there are many different books on the same topic: each has its viewpoint of what's important, weighty, critical, and what is not.

And please do not confuse journalistic writing with academic writing. They serve different purposes, apply different standards, and follow very different models.
4.21.2007 12:05am
Viscus (mail) (www):

And please do not confuse journalistic writing with academic writing. They serve different purposes, apply different standards, and follow very different models.


If journalists are sloppy and fail to write about basic evidence going the other way, it seems to me that it would be the journalist, not the interview subject, who would be in violation of the French law in question.

Journalism is different from academic writing. But that doesn't mean the journalists have a license to distort or ignore simple and critically important points. (i.e. there exists some evidence that suggests that the mass killings in Turkey were genocide). Nor do they have a license to present a controversial question as if there is only one side.

The above point about there being some evidence to suggest genocide in the case of Turkey took 16 words. That leaves 734. The difference between a journalist and an academic is that the academic would then proceed to write another 10,000 on what that evidence is, and why it is or is not reliable. But it isn't the case that a good journalist will not mention the controversy at all.

But thanks for making the insightful and deep point that journalism is different than academia. Since I too want to educate you, I must inform you that cats are different than dogs.
4.21.2007 12:30am
Ella (www):
Viscus - Journalists don't simply transcribe and publish an interview - they pick and choose what to put in the piece. Sometimes they even "fudge" the quotes. In order to avoid getting quoted out of context when the journalist puts the final product together, it's best to state your opinion clearly and succinctly and avoid hedging language or other extraneous statements. The supposedly "simpler" nature of history has nothing to do with it.

For instance, a history professor of mine was interviewed for a History Channel-type documentary of Ivan the Terrible many years before I had him in class. The part of his interview appearing in the documentary was used to a) support an opinion that he did not, in fact, support and b) make it appear that he shared the opinion. He's probably still ticked off about it.

Anyone as prominent as Professor Lewis is going to take care NOT to have that happen to him. He stated his professional opinion re: the atrocities against the Armenians and stated his assessment of the evidence regarding the Turks' motivation. Why should he go into detail regarding the basis for his opinion? He wasn't asked, he and the journalist probably didn't have time, he didn't want his statements to be misconstrued by an out-of-context quote, and (as evidenced by the subsequent lawsuit) there are plenty of people ready, willing, and able to challenge him publicly about it.
4.21.2007 12:31am
Viscus (mail) (www):
Ella,

If the journalist is going to hang himself or herself and violate French law, I say let them. I don't see why you should violate French law yourself so as to avoid being misquoted.

Further, no one is holding a gun to your head, saying you must talk to a journalist you don't or can't trust. What value is there to the public to hearing a distortion that fails to even mention that there are two sides to an issue? If your two options are either to present a distorted version of the truth (in order to not be misquoted) or say nothing at all, then you should say nothing. In such a situation, saying nothing is a win-win for the academic and the public.
4.21.2007 12:48am
Joe Bingham (mail):
Irony:

First they're coming for the holocaust deniers...
4.21.2007 12:49am
Henri Le Compte (mail):
For heaven's sake! Anyone who cannot see what an open invitation to mischief this is... well, they aren't trying very hard. There are so many weasel words and subjectively defined terms in these "rules" that a sensible scholar could very well conclude that it just isn't worth the trouble of speaking publically. And that is the very point! The public discourse becomes impoverished-- on a vitally important topic like genocide-- because nobody wants to run afoul of a bunch of vaguely worded "conversation laws." A perfect example of the law of unintended consequences.

Then-- as a thought experiment-- imagine what could be done with this nonsense by a skilled trouble-maker! Someone with an axe to grind, or a personal vendetta. A Mike Nifong, if you will. Ever see Les Miserables? We'll have poor academics pursued for 16 years over some off-hand comments at a book signing!

You would think that Europe's experience with tyranny in the 20th Century would have turned them off forever from this nonsense. Too bad cultural wisdom can't be inherited from generation to generation.
4.21.2007 12:59am
Ella (www):
Viscus - Nonsense. The whole point is that the French law is a trap for people who hold opinions that offend another group of people. Under this law or (in the Lewis case) interpretation of existing law, only the people who challenge the Armenian group's interpretation of history are required to go into an hours long discussion of the pros and cons of the evidence supporting their opinion. The Armenian group does not volunteer such contrary information, much less go through the exercise of debunking it in a brief interview with a journalist who knows next to nothing about the events. Nor should they. The Professor Lewises of the world stand ready to rebut their arguments in a variety of public forums, just as they are free to rebut his. What the French law does is impose a heightened burden on people who challenge a judicially or legislatively determined orthodoxy in a public forum. Professor Lewis, according to this court, has the burden of making his case and his opponents' when he grants interviews to journalists. His opponents only need to make their own. That's idiotic and intellectually dishonest.
4.21.2007 1:01am
Bill Poser (mail) (www):
I just read through the (original French text of the) opinion and was struck by the fact that the entire basis for the court's holding that Lewis concealed contrary evidence is the fact that the United Nations and several other political bodies have affirmed that what happened to the Armenians was genocide. The court cites no evidence whatever contrary to Lewis' position, nor does it give any reason to believe that Lewis should have assigned greater credence to such evidence than he did. The entire basis for the claim that Lewis concealed contrary evidence is the fact that others hold a different view, a fact which he not only mentions in the course of the interview but is the explicit premise of several of the questions he was asked by Le Monde. This is really appalling.
4.21.2007 1:30am
Viscus (mail) (www):

What the French law does is impose a heightened burden on people who challenge a judicially or legislatively determined orthodoxy in a public forum.


Which is precisely the point. To make the lives of those who hold unpopular views more difficult, so as to present an affirmative incentive to abandon such views. We actually are somewhat guilty of the same thing, as when we deny someone a license to practice law based on their racist beliefs. Indeed, if anything, denying someone a license to practice law after three years of law school is a much harsher penalty than fining someone 14,000 francs (about $3,000).

As I have mentioned -- at this point on numerous occasions -- I am against French law and the EU proposal, because I think that ideological minorities should be able to express even repugnant and evil views. However, this thread was written by EV to establish that the EU proposal is a threat to serious scholarship. He did that by reference to French law and the Lewis case in particular. My point is 1.) That Lewis's response cannot be considered "serious scholarship" if he knowingly concealed evidence contrary to his thesis in order to bolster it and 2.) This particular venue, a newspaper, is not a scholarly venue. 3.) In any case, there is no reason to think that the EU proposal requires the adoption of French law in particular, so the Lewis case is of limited relevance in evaluating the EU proposal.

If you want to argue that the French law is unwise, I will gladly agree. But that doesn't address points 1, 2, or 3 above, nor does it bolster EV's initial claim that the EU proposal is a threat to serious scholarship. One can effectively criticize something without claiming it has affects that it does not.
4.21.2007 2:31am
Bill Poser (mail) (www):
Viscus,

(a) if a scholar cannot give an interview about his scholarly work without fear of prosecution, that certainly interferes with scholarly work as anything other than a purely ivory tower pursuit.

(b) as I noted above, the French court's opinion reveals no sign that the court knows anything about the evidence, much less had any basis for the claim that Lewis concealed evidence. The entire basis for the conviction is that fact that his view is at variance with that of several political organizations.
4.21.2007 2:40am
Viscus (mail) (www):

The entire basis for the claim that Lewis concealed contrary evidence is the fact that others hold a different view.


Is it the fact that others hold a different view, or is it the fact that the UN has proclaimed something based on actual evidence? As to quote EV quoting the court:


the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide


Presumably, when the UN made a finding that there was genocide, the did so on the basis of evidence. At the very least, by not mentioning the basis for the UN findings, Lewis misled his audience into thinking that there was no evidence at all that should be considered by a serious person. Lewis should have mentioned the UN findings and why he does not give those findings much weight, not merely say there is no serious proof, which is likely to mislead the average reader into thinking there was no proof at all that is taken seriously by at least some.

Of course, if the UN made its findings based on no evidence whatsoever, that would be a different situation. Then, you would have correctly characterized the case as one that arises merely because "others hold a different view."


The court cites no evidence whatever contrary to Lewis' position, nor does it give any reason to believe that Lewis should have assigned greater credence to such evidence than he did.


Nor should it have. The point is not that Lewis should have given more weight to the evidence. The point is that he should have mentioned that it existed. To fail even to mention contrary evidence, even to a newspaper, is unscholarly.

To repeat. I think the French law is unwise. But not because it suppresses serious scholarship. It is unwise even though it doesn't.
4.21.2007 2:47am
Viscus (mail) (www):

if a scholar cannot give an interview about his scholarly work without fear of prosecution, that certainly interferes with scholarly work as anything other than a purely ivory tower pursuit


A scholar only needs to fear prosecution if they behave in an unscholarly manner. That is, if they fail to mention contrary evidence. Whatever you might say about giving a one-sided story to a newspaper reporter (i.e. it is necessary to avoid being misquoted) it cannot be said to be a scholarly activity. Furthermore, there are less egregious ways to ensure that you are not misquoted by a reporter, than giving simplistic and misleading statements. For example, you could extract a promise that if they quote or paraphrase one statement, that they must also quote or paraphrase another that puts that statement in context. You could also have a policy of never talking to a reporter again, if they intentionally or negligently distort your point of view.

Finally, a scholar's conclusions, unaccompanied by reasons and evidence, has little value anyway. If they don't want to talk about their evidence to outsiders, maybe they should just stay in their ivory tower. (The situation may be somewhat different in the physical sciences, where there is not as much room for subjectivity. But even then, there is reason to think that you should stick to reputable sources where the reporters understand science (i.e. those that write for the NY Times Science page) rather than giving distorted information out to the public.)
4.21.2007 2:58am
Ella (www):
Viscus,

I will just reiterate three final things in response -

1) Constraining one group of scholars to ether not speak to the press at all, speak to them in an entirely ineffective manner, or risk prosecution is absolutely unfair. I doubt that Professor Lewis or the Turks could maintain a cause of action in the French courts against the Armenian groups for similar behavior.

2) Professor Lewis did not "conceal" anything. He didn't claim that Mary Magdalene wasn't Christ's bride, whilst hiding a copy of the wedding video and marriage certificate in his desk dawer. He stated his opinion about an event, the evidence for which is widely available and the various interpretations of which are widely disseminated. He knew for a fact that people holding an opposing view could and would respond, so there was no need to go into a detailed discussion of the sources of his opinion.

3) Professor Lewis DID acknowledge that there was opposing evidence. He stated his OPINION that it was weak. You seem to think that he then should have gone on to reveal each bit of opposing evidence and tell the reporter WHY it was weak and that if he couldn't do so, he shouldn't speak to the press at all. Further, if he couldn't extract a promise from the journalist to get his approval for any paraphrases or quotes, he should have refused the interview. This brings us back to my first point, that this law effectively muzzles anyone who disagrees with a judicially determined orthodoxy. Only one side ends up being constrained. Even for areas of genuine scholarly dispute, such as the motivation behind the mass murder of Armenians, it effectively cuts of general public debate and consigns that debate to the ivory tower scholarly articles. And yes, I realize that is the goal of the law. THAT is the problem.

(And by the way, your statement that science has less room for subjectivity, thereby implying that there is less room for different interpretations of the evidence, is ludicrous. There are a number of things that scientists hotly debate before they become the established orthodoxy and sometimes even after. In just the past half century, see Einstein's Theory of Relativity.)
4.21.2007 9:34am
corneille1640 (mail):
One item that is missing from this discussion (probably because it's not directly relevant to the issues outlined by EV, Viscus, et al.) is the possibility that whether something is a "genocide" can be open to interpretation. I imagine, for instance, that Mr. Lewis's definition of genocide requires some coordinated state support for mass murder. I am unfamiliar with the UN's definition (perhaps someone can enlighten me) of genocide, but I imagine that the organization has somewhat broader criteria. At any rate, at least from the evidence presented in EV's posting here, it appears that Mr. Lewis was punished for holding an "incorrect" or unpopular interpretation of facts that he recognized openly. (In other words, apparently he believes that evidence suggesting the Turkish government's informed and coordinated complicity in the killings does not reach the standard of seriousness.)

One quibble with Viscus: Viscus stated that there is "no reason" to believe that the EU proposal will, if adopted, be enforced as it has been in France. Might it be wiser to say "insufficient reason"? I imagine that a law resembling the French one can be presumed to at least run the risk of being enforced in a similar manner as the French one.
4.21.2007 9:50am
markm (mail):
Tom Holsinger:

The objective of many EU regulations is to give the enforcers as much unaccountable, arbitrary power as possible. This is commonly achieved with inconsistent, if not overly contradictory, regulations which the regulators may then apply as they wish.

View the EU's assertion that it's genocide-denial law won't be enforced against scholars in regards to the Armenian genocide in the lights of Tom's statement. When it's politically important not to offend the Turks, the law isn't enforced - but how about when it's politically important to get a particular scholar? Or if it's really politically important to make the Turks happy, maybe scholars who call it a genocide will be prosecuted for "hate speech" against the Turks - and possibly Prof. Lewis too, since he seems to agree that the Turkish government drove the Armenians from their homes into the desert, and that many of them died in the process, but but thinks the deaths were due to incompetence, which doesn't put the Turks in a very good light either.
4.21.2007 11:27am
loki13 (mail):
It helped me to analyze this case by the following criteria:

Imagine that you have two scholars:

Scholar A writes that he believes there was a genocide committed against Native Americans by the early American government.

Scholar B writes that while horrible things happened, it was his opinion that it wasn't part of an overall government plan.

Scholar B then suffers the sanctions of the French law.

This is not an argument to the merits of either case (I lack the historical bona fides to judge it either way). Nor is it an argument to the merits of the Armenian genocide (which I think occured). And I dislike holocaust deniers (especially Illinois holocaust deniers) with a passion. But I believe it should be self-evident that speech codes such as the one in France will restrict serious scholarly research.

To paraphrase the trite cliche- the best response to bad scholarly research is more scholarly research.
4.21.2007 2:42pm
Pierre Trepagnier (mail):
Forget about Bernard Lewis, what about Mel Brooks?
Grossly trivializing is pretty much his whole shtick.
4.21.2007 6:32pm
Viscus (mail) (www):
Ella

I am unfamiliar with the specific facts of the case beyond what EV has posted. However, I will note that you have basically conceded the point I was making, even as you dispute individual issues. You concede that such debates can go forth unhindered in scholarly forums. At most, you are asserting that some communication of scholarship to those outside the ivory tower, but it appears that you concede that communication within the ivory tower remains unaffected. The bottom-line: serious scholarship is not threatened. Such scholarship does not take place in newspapers.

With respect to your point about science, I said there was less room for subjectivity, not that it was totally objective. If you are interpreting me thus, perhaps you should read more carefully before responding. Indeed, your counterexample illustrates my point. Einstein's argument came to dominate (after some initial skepticism) because it was objectively superior (and I mean objective in less than an absolute sense). There is subjectivity in science, as in all areas of life. However, that does not mean that science is just as subjective as, say, poetry.
4.21.2007 9:52pm
Viscus (mail) (www):
Loki and Ella,


Loki writes:

Scholar B writes that while horrible things happened, it was his opinion that it wasn't part of an overall government plan.


To the extent that I understand this case, which is not much as some, I would think that your hypothetical would need to be changed as follows:


Scholar B writes that while horrible things happened, there is no "serious evidence" that it wasn't part of an overall government plan.


If there was in fact "serious evidence" and if the courts characterization of what Lewis was doing as concealment is accurate (I have no opinion on this -- though Ella insists it was not) then this statement would be unscholarly. On the other hand, if Lewis in fact did not conceal anything (perhaps because he knew the reporter he was talking to already knew of the other evidence) then it would have to be conceded that nothing that Lewis did was inconsistent with good scholarship.

However, a newspaper is not a scholarly venue, thus, this case does not demonstrate that serious scholarly research in fact will be "seriously restricted" since such research occurs in journals, not newspapers.

That said, and I feel compelled to repeat, since people seem to be arguing for points with which I completely agree: The French law is bad policy. It does make communication outside of the ivory tower more difficult.

Ella argument above appears to be directed at whether French law is a good idea or a bad idea, whereas I am arguing that even, while I agree that it is a bad idea, I am only arguing that the Lewis case does not show that it significantly restricts scholarship. Now, there might be other cases that would show as significant impact of this law on serious scholarship, but the Lewis case is not one of them.
4.21.2007 10:08pm
Tom Holsinger (mail):
Viscus,

I suggest you look up the term, "chilling deterrent effect".
4.22.2007 2:10am
LM (mail):
The Europeans are giving suffocating political correctness a bad name.
4.22.2007 3:47pm
Viscus (mail) (www):
Tom,

If you want to make an argument, you will have to do better than a one liner.
4.23.2007 2:57am
Clint:
Viscus-

Delightfully entertaining.

Two quotes I particularly enjoyed:

- "Furthermore, if Lewis was punished for this interview, the interview itself is obviously not "serious scholarship" so the argument that this shows that "serious scholarship" will be supressed is invalid."

- "Presumably, when the UN made a finding that there was genocide, the did so on the basis of evidence."

One last thought -- drawing a stark distinction between holding an opinion on the actual truth of an assertion and on the seriousness of the evidence for that assertion -- simply brilliant!
4.23.2007 12:15pm
Steve Peers (mail):
Hi -- if we go back to the original text of the Framework Decision as agreed, in all cases it is necessary that the conduct is 'intentional'. So the speaker must intend that condoning or denying the Holocaust, etc. is 'likely' to incite violence. In the case of more generally 'racist' or 'xenophobic' comments, there must be a more direct incitement to violence.

Also there are a series of important provisos in the agreed text, ie 1(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.

1(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.

and furthermore:

Article 7
Constitutional rules and fundamental principles

1. 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.


2. 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.

It seems to me that a serious legal discussion has to take account of all of the text of the legislation which is relevant, not just an extract.
4.25.2007 12:57pm