Jefferson and Free Speech:

One of the threads in the comments on the postings regarding a recent obscenity conviction (upheld by the 4th Circuit) for "receipt of obscene cartoons" involved my friend Mr. Jefferson, and his views on the First Amendment and "the freedom of speech." One reader added a helpful link to Jefferson's Kentucky Resolutions, in which he argued that the Sedition Act, "which does abridge the freedom of the press, is not law, but is altogether void, and of no force."

I always like to comment on Jeffersoniana, and in this case his views really do help to explain my own. I spend a fair bit of time in my book on Jefferson and the Internet -- you haven't forgotten to get a copy of my book, have you??! -- talking about Jefferson's free speech positions, both because they're interesting in and of themselves and because they're of particular relevance to the many speech-restricting laws that have been enacted in response to Internet communication. I devote a chapter late in the book to comparing Jefferson's views on free speech law with his views on intellectual property law -- the two issues that "have been featured in virtually all of the Internet's Big Cases, the legal disputes generating lots of public debate and commentary, the ones that made it onto the onto the docket of the Supreme Court or the front page of the New York Times, during the first couple of decades of its existence."

Here's an excerpt (Jefferson's words in italics) [I've posted a copy of the free speech discussion at the website, if you want to see the full discussion]:

In no subjects in the law was Jefferson more interested, and about no subjects in the law did he have more interesting and important things to say, than these two [i.e., free speech and intellectual property]. His views regarding the line between permissible and impermissible speech were pretty simple -- there shouldn't be any line, because there shouldn't be any impermissible speech. Jefferson was America's first, and probably its greatest, First Amendment absolutist; he wasn't kidding when he said were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter. Not even a moment!! To preserve the freedom of the human mind & freedom of the press, every spirit should be ready to devote itself to martyrdom; for as long as we may think as we will, & speak as we think, the condition of man will proceed in improvement.

It was all an inter-connected whole, for Jefferson -- republican self-government, freedom of speech, freedom of conscience, and freedom of the press. You couldn't have one without the others; they were inextricably bound together into a single system, and they would stand, or fall, together. The principle of self-government -- government not imposed on the governed but operating with the consent of the governed -- meant that everyone had a stake, and an equal stake, in governing: The true foundation of republican government is the equal right of every citizen in his person and his property, and in their management. The mother principle, he called it: Governments are "republican" only in proportion as they embody the will of their people and execute it. Everyone, henceforth, gets to form his or her own opinions on all questions of public import, and regarding the administration of the laws: No other sure foundation can be devised for the preservation of freedom and happiness [than to] enable every man to judge for himself what will secure, or endanger, his freedom.

It is honorable for us to have produced the first legislature who had the courage to declare that the reason of man may be trusted with the formation of his own opinions [and] that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual way hitherto found is the freedom of the press. It is therefore, the first shut up by those who fear the investigation of their actions. . . .

Unrestricted public discourse, and an unfettered press, were the only "avenues to truth," because nobody ever knows, in advance, where the truth may lie. Reason and free enquiry are the only effectual agents against error. In a Jeffersonian world, the government simply has no role to play in telling us what we may think or what we may say. Freedom of discussion, unaided by power, is sufficient for the propagation and protection of truth. It is error alone which needs the support of government. Truth can stand by itself. Governments may trample upon these rights of free speech and free thought and free inquiry by force, but they can never do legitimately, by right.

The right to speak and to think as we wish is a "natural right"; it is neither given to us by law, nor derived from law, but antecedent to it -- lower down in the protocol stack, if you will, than law. It derives not from the statute books but from what Jefferson called, in the Declaration of Independence, the laws of Nature and of Nature's God -- it is just in the "nature" of things, the way the world is, that if you bring two human beings together, they will think, and they will attempt to communicate with one another about what they are thinking, even without any law to help them. . . .

Humans communicate with one another not because the law enables them to do so; they communicate with one another because -- well, because that's the kind of beings we are, and that is what is in our nature. Law's job is not to enable that communication to occur but to protect it when it does occur -- that is one of the "objects for the protection of which" we make law. . . .

And finally, some powerful positive feedback: only by forming a government that doesn't trample upon these rights can we preserve our ability to create a government that doesn't trample upon these rights. Where the press is free, all is safe. Our liberty depends on the freedom of the press; it cannot be limited without being lost. Limit our freedom to think and speak as we wish, and republican government can't work -- that is, it can't produce a government that will protect and preserve our right to think and speak as we wish. No other sure foundation can be devised for the preservation of freedom and happiness [than to] enable every man to judge for himself what will secure, or endanger, his freedom. Without this no republic can maintain itself in strength. [The United States] will demonstrate the falsehood of the pretext that freedom of the press is incompatible with orderly government. To open the doors of truth, and to fortify the habit of testing everything by reason, are the most effectual manacles we can rivet on the hands of our successors to prevent their manacling the people with their own consent. Where the press is free, and every man able to read, all is safe. . . .

To a Jeffersonian, then, free speech questions are always simultaneously (a) of supreme importance and (b) pretty easy. The answer always (or almost always) is simple: The more protection for, and the fewer the restrictions on, speech, the better. Lay down true principles, and adhere to them inflexibly.

[Not so for intellectual property, by the way -- but that's a different matter entirely]

martinned (mail) (www):

He was absolutely a great man, but what a way to study the law. This has less similarity to legal scholarship than to Christian theology, another discipline where people spell out the holy writings and settle disputes by quoting ancient books at each other.
Hmm .... funny, but I don't have that feeling when, say, philosophers quote from Plato or Aristotle to buttress their arguments ... It's not about "holy writings," it's about good ideas, and propagating them./DGP
12.22.2008 1:57pm
all the more reason for our govt to bail out the newspaper industry, immediately:)
12.22.2008 2:13pm
einhverfr (mail) (www):
Just one note about my point on Jefferson's Kentucky Resolution....

This work was a legal document aimed at preventing the Alien and Sedition Acts from being enforced in Kentucky. For this reason, Jefferson approaches a much more narrow argument than what he probably personally believed which was that no power was given to the federal government to regulate speech and cites the first and tenth amendments as the basis. I think this is indicative of Jefferson's views of what the Constitution required more than what he things a free republic requires.

Jefferson's views on Free Speech would have more likely taken a clearer point in state politics where narrow arguments would not likely succeed. So I think Professor Post's points are quite welcome, but probably bear less on what the First Amendment originally meant than other writings.

Unrestricted public discourse, and an unfettered press, were the only “avenues to truth,” because nobody ever knows, in advance, where the truth may lie.

BTW, this is one of the few valid points that David Irving made to the press prior to his trial. Suppose some evidence is found that the Allies moderately inflated Holocaust casualty numbers. Obviously such findings would not really make the Holocaust any less horrible in my opinion, but places where holocaust minimalization is a crime may be unable to assess the evidence neutrally for fear of prosecution.* Where freedom of speech is heavily curtailed, the search for truth is fundamentally abridged.

* My personal views on the holocaust are not relevant to this topic, but I don't think that most history books provide an accurate or representative picture of what actually happened. There are systematic reasons that this distortion has occurred. Addressing the distortion would deny Neonazis and others key propaganda points and we should do so.


He was absolutely a great man, but what a way to study the law. This has less similarity to legal scholarship than to Christian theology, another discipline where people spell out the holy writings and settle disputes by quoting ancient books at each other.

I think that Jefferson's arguments are persuasive. Censorship always abridges the search for truth. Also it is a useful starting point for discussion.

As I have noted elsewhere, the ECHR protects free speech about as much as English common law did in the days of the American Revolution (protects anything that is not a "bad tendency"). The real problem here is that it makes real academic debate over controversial issues impossible in many cases. For example, I don't think I would feel comfortable discussing the holocaust in Germany because I am not entirely sure what would be protected speech. For example, if one says "Yeah, the holocaust was horrible, but Stalin was far worse, and most other countries at that time did have genocidal and eugenics programs" is that permissible in Germany?
12.22.2008 2:26pm
matthewccr (mail):
Lest we forget, despite all the talk about freedom and happiness, the man was still a slave owner.
12.22.2008 2:31pm
einhverfr (mail) (www):

Look up "ad hominem." "The man was still a slave owner" addresses perhaps whether he was a great man, but hardly addresses his ideas on the role of free speech in a free republic.
12.22.2008 2:36pm
martinned (mail) (www):
@einhverfr: Please not that my comment above was about method, not content.

As for your example, that is absolutely permissible. No question. The crime is Holocaust denial, i.e. denying it ever happened, or claiming it was only very small.
12.22.2008 2:39pm
martinned (mail) (www):
@enhverfr: Since you brought up this example several times, let me look into it more closely. This is what section 130 of the German (Federal) Criminal Code says, in German:

§ 130
Volksverhetzung(1) Wer in einer Weise, die geeignet ist, den öffentlichen Frieden zu stören, 1. zum Haß gegen Teile der Bevölkerung aufstachelt oder zu Gewalt- oder Willkürmaßnahmen gegen sie auffordert oder
2. die Menschenwürde anderer dadurch angreift, daß er Teile der Bevölkerung beschimpft, böswillig verächtlich macht oder verleumdet,

wird mit Freiheitsstrafe von drei Monaten bis zu fünf Jahren bestraft.

(2) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer 1. Schriften (§ 11 Abs. 3), die zum Haß gegen Teile der Bevölkerung oder gegen eine nationale, rassische, religiöse oder durch ihr Volkstum bestimmte Gruppe aufstacheln, zu Gewalt- oder Willkürmaßnahmen gegen sie auffordern oder die Menschenwürde anderer dadurch angreifen, daß Teile der Bevölkerung oder eine vorbezeichnete Gruppe beschimpft, böswillig verächtlich gemacht oder verleumdet werden,
a) verbreitet,
b) öffentlich ausstellt, anschlägt, vorführt oder sonst zugänglich macht,
c) einer Person unter achtzehn Jahren anbietet, überläßt oder zugänglich macht oder
d) herstellt, bezieht, liefert, vorrätig hält, anbietet, ankündigt, anpreist, einzuführen oder auszuführen unternimmt, um sie oder aus ihnen gewonnene Stücke im Sinne der Buchstaben a bis c zu verwenden oder einem anderen eine solche Verwendung zu ermöglichen, oder
2. eine Darbietung des in Nummer 1 bezeichneten Inhalts durch Rundfunk, Medien- oder Teledienste verbreitet.

(3) Mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe wird bestraft, wer eine unter der Herrschaft des Nationalsozialismus begangene Handlung der in § 6 Abs. 1 des Völkerstrafgesetzbuches bezeichneten Art in einer Weise, die geeignet ist, den öffentlichen Frieden zu stören, öffentlich oder in einer Versammlung billigt, leugnet oder verharmlost.

(4) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer öffentlich oder in einer Versammlung den öffentlichen Frieden in einer die Würde der Opfer verletzenden Weise dadurch stört, dass er die nationalsozialistische Gewalt- und Willkürherrschaft billigt, verherrlicht oder rechtfertigt.

(5) Absatz 2 gilt auch für Schriften (§ 11 Abs. 3) des in den Absätzen 3 und 4 bezeichneten Inhalts.

(6) In den Fällen des Absatzes 2, auch in Verbindung mit Absatz 5, und in den Fällen der Absätze 3 und 4 gilt § 86 Abs. 3 entsprechend.
12.22.2008 2:44pm
martinned (mail) (www):
My loose translation:

subsection 1: 3 months to 5 years in jail for hate speech.
subsection 2: Up to 3 years prison for hate speech in writing, or transmission of the stuff of subsection 1.
subsection 3: "Punishment of up to five years in jail or a fine for him, who publicly or in a meeting excuses, denies or trivialises the genocide that was committed under Nazi rule in such a way that it tends to disturb the peace."
subsection 4: "Punishment of up to three years or a fine for him who publicly or in a meeting disturbs the peace by disturbing the dignity of the victims of the Holocaust by excusing, glorifying or justifying the Nazi reign of violence and arbitrariness."

Sorry for the clunky language here and there German is only my 3rd best language. I guess maybe there is a better translation somewhere.
12.22.2008 2:57pm
martinned (mail) (www):
Here is my source. At the bottom, there are some highlights of the case law on this article.

For example, there are 12 rulings by the Bundesgerichtshof, the non-constitutional supreme court.
12.22.2008 3:05pm
einhverfr (mail) (www):
For Martinned's benefit, since I know he is in Europe, I am going to post one small piece of my views on the holocaust as a demonstration of where truth can be found in offensive viewpoints. Please note this deliberately takes my viewpoint out of context in order to place it in the worst light possible. It is thus intended as a discussion piece on how unpopular (and even deeply offensive) viewpoints may help us find the truth. I am not saying this is all correct as I confess to misrepresenting my own views somewhat. However, I am saying that there is overlooked truth in it nonetheless.

Was the Holocaust a Good Thing?

Current estimates tend to be at least twelve million people were killed in the Holocaust, in one of the major mass crimes in history. It may thus be horrifying to ask whether the holocaust as a whole may have actually had a positive legacy, and whether at some point in time (whether this is in the past or the future is a matter for another debate) have a net benefit to humanity may seem an unconscionably question to ask, but I will provide an affirmative answer nonetheless.

World War II marked a number of important turning points in US history in terms of the brutality of war and oppression. We saw the firebombings of Tokyo and Dresden, followed by the debut of the atomic bomb, and we saw mass genocide in a more organized fashion than was previously seen. Yet every one of these patterns built off of what was past, and these things were so horrifying that they have transformed world politics in beneficial ways.

Prior to WWII and even afterwards for some time, many countries had genocidal programs. I would define such programs as those designed to destroy the cultural integrity of minority ethnicities either by killing people, forced sterilizations, or forced reculturation efforts. These included the Genocide of Armenians at the hands of the Turks, the Terror Famine by Stalin (which killed more people and with the same goal), and the forced sterlization of Native Americans in this country. Softer programs such as programs aimed at eradicating Native American languages, for example, persisted until much later. However, the worst of the programs tended to be abandoned shortly after WWII wound down in any given area.

Those programs which were not ended gained international condemnation in a way which did not happen before or during the holocaust. In cases like Rwanda, Bosnia, or Chile, people who commissioned crimes against humanity were often eventually tried and convicted.

The Nazis are remembered in a way that none of these other programs are. The criteria is not one which relates to the number of people killed, the waves of cultural destruction, or any other rational criteria. By any of these criteria, the Holocaust was not the worst crime of its sort. Current estimates from the Chinese Communist Party, for example, suggest more than 20 million killed in Mao's attempts to destroy the high culture of China. Most likely this is a conservative estimate which would mean we might be justified in assuming more than twice as many people were killed by the Maoists in their cultural revolution than were killed by the NSDAP.

Although the Holocaust was not the worst crime in its class by any rational measure, it changed the way we look at eugenics and genocide in a way which none of the other examples did either before or after. In this way, it seems likely that our human desire to prevent similar incidents, and terminate similar programs in our own countries, has enriched the world policy-wise, and if we are not at the point where the holocaust has not already saved lives, eventually we will be at such a point. How many people in the Balkans owe their very lives to those killed by the Nazis? How many in Africa? How many elsewhere?

How many Native American languages and tribes would now be extinct if the Nazis hadn't shown us where acceptance of such programs eventually leads? Could the very survival of the Roma as an ethnic group have been assured by the fact that most of them were killed by the Nazis? Slower genocidal programs against the Roma were in place long before the Nazis, and were largely accepted by European governments. These have now been largely forgotten and we pretend like they never existed. However we were only shamed into this behavior by what the Nazis did. We would never have come to such a viewpoint by ourselves.
12.22.2008 3:07pm
martinned (mail) (www):
Here's an ECHR ruling, Wirtzsch v Germany (2005):

The applicant, Mr Hans-Jürgen Witzsch, a German national, was born in 1939 and when introducing the application lived in Fürth.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In an article published in a German weekly review on 30 September 1999 a well-known historian, Professor Wolffson (thereafter "W.") made inter alia the following statements:

"(...) Hitler wanted the murder of the Jews. He ordered it and certainly knew about it. Although he had not given a written order, there is evidence that he had given oral orders on several occasions. The murder of the Jews was wanted and organised from above and by NS-activists from the bottom (...)."

In a letter of 3 December 1999 the applicant wrote to Professor Wolffson in reply to this article:

"(...) Your statements which are false and historically unsustainable shall not stand unanswered (...).

It is actually established that there is no indication in party programs of the National Socialist German Workers' Party, the NSDAP (Nationalsozialistische Deutsche Arbeiterpartei), that the NSDAP and Hitler intended to murder the Jews. Anybody who - with all the means at his disposal - fostered the emigration of the Jewish minority until late after the beginning of the Second World War can hardly be said to have prepared the murder of the Jews. A long time ago, the historian Irving has publicly proposed to pay a thousand pounds to any person who could prove that Hitler had ordered, for racial reasons, the murder of one single Jew. So far, nobody has produced evidence. After the war, tens of thousands of totally immaculate officials of the NSDAP have attested on oath not to have known until the end of the war about the murder of Jews. None of the dignitaries of the German Government accused in Nuremberg admitted to have known about the mass murder of Jews. Not even in their closing words under the gallows! (...)

The normalisation of the relation between Germans and Jews depends on the will to historical truth and requires not only that one party is blamed for the responsibility it admits but also that the other party refrains from suppressing its negative contribution to history (...). Last but not least, the normalisation requires the Jews' clear distancing from the war and post-war atrocity propaganda (Kriegs- und Nachkriegsgreuelpropaganda) against Germany, directly or indirectly concerning the Jews.

You, Professor Wolffsohn, would highly contribute to this if you would abandon the false or questionable statements against Germany and seriously endeavour to become acquainted with the actual academic discourse of contemporary history."
On 27 July 2001 the Fürth District Court (Amtsgericht) convicted the applicant of disparaging the dignity of the deceased pursuant to Section 189 of the German Criminal Code (see "Relevant domestic law and practice" below) and sentenced him to three months' imprisonment. With reference to the case-law of the Federal Constitutional Court (Bundesverfassungsgericht), it recalled that it was historically proven that the mass killing of Jews in concentration camps was planned and organised by Hitler and the NSDAP. Accordingly, no evidence in this respect had to be adduced, as requested by the applicant. Although the applicant had not denied the Holocaust as such, his denial of Hitler's and the NSDAP's responsibility in this respect was tantamount to a negative value judgment (negatives Werturteil). He had thereby denied the victims' extremely cruel and unique fate and accordingly disparaged the dignity of the deceased. Furthermore, as the pertinent passages of the applicant's letter did not express an opinion but had to be categorised as allegations of facts which had been proven untrue, they did not fall within the ambit of Article 5 § 1 of the German Basic Law which protects the freedom of opinion. Given their polemic nature, they neither fell within the ambit of Article 5 § 3 of the German Basic Law which protects the freedom of research. In fixing the sentence, the court took into account that the applicant had been convicted in 1995 and 1996 respectively of disparaging the dignity of the deceased for denying the existence of gas chambers and that the letter at issue had been written during the probationary period.

On 28 January 2002 the Nürnberg-Fürth Regional Court (Landgericht) dismissed the appeals lodged by the applicant and the Public Prosecutor. According to the Regional Court, it was not contested that the applicant had written and sent the letter to W. It further noted that a valid request for prosecution had been filed with the public prosecutor. Although W. had not lodged himself a request for prosecution, the circumstance that he had transferred the applicant's letter to the police showed that he had not considered its contents as unoffending.

The Regional Court considered that the extermination of the Jews in gas chambers is a clearly established historical fact. It is also common knowledge that Hitler had wanted and initiated the murder of the Jews in Germany and that the NSDAP had planned and organised the systematic extermination of Jewish people. It was therefore not necessary to adduce the requested evidence. The applicant's allegations that none of the accused dignitaries of the German Government in the Nuremberg Trials had known of the extermination of the Jews, was absurd and monstrous and offended the Jews murdered by the Nazis. The applicant's statement that the opinion expressed by W. was part of the war propaganda and after-war atrocity propaganda combined with the denial of Hitler's and the national Socialists' responsibility in the extermination of the Jews showed the applicant's disdain towards the Jews, the principal victims of the systematic extermination. The court concluded that statements concerning facts which had been proven untrue were not protected by Article 5 of the German Basic Law.

On 10 July 2002 the Bavarian Court of Appeal (Bayerisches Oberstes Landesgericht) dismissed the applicant's appeal on points of law as not disclosing any legal errors to the detriment of the applicant.

On 28 November 2002 the Federal Constitutional Court (Bundesverfassungsgericht), sitting as a bench of three judges, refused to admit the applicant's constitutional complaint.
12.22.2008 3:09pm
martinned (mail) (www):
@einhverfr: Nothing that I've seen of German law on holocaust denial would lead me to believe that anything you've written there would be in violation of German law.
12.22.2008 3:13pm
einhverfr (mail) (www):
BTW, my above post is a self-admitted troll. However, it is done in the spirit of discussing whether a post like it contributes to a) public policy debate and b) understanding of history even if it is done in a way as to be as patently offensive as possible.

Also I would ask whether claims I occasionally get about whether specific victims of the holocaust (for example. F. B. Marby) deserved what they got. Marby, for example, was probably antisemetic to the level of the average contemporary German, was quite active in German nationalist circles but was imprisoned, had all his property confiscated, etc. and repeatedly tortured and threatened with his life because he refused to join the NSDAP and the SS.
12.22.2008 3:14pm
MarkField (mail):
Any discussion of Jefferson and free speech wouldn't be complete without reference to Leonard Levy. Though I think Levy overstates his case, Jefferson certainly did support state prosecutions for seditious libel. My sense is that Jefferson was more offended by the fact that Congress passed the law than by the free speech infringement, though I've no doubt that offended him too.
12.22.2008 3:47pm
einhverfr (mail) (www):

Here is another semi-troll for discussion purposes:

Who did the Holocaust Target?

Perhaps the Jews were merely incidental targets of the Holocaust, and that the real approach to the final solution was conditioned on the building of an infrastructure of death and destruction which was squarely aimed at political and economic enemies of the NSDAP. The idea that it was primarily aimed at the Jews seems unsupportable given the details.

The initial plan for removing the Jews from Europe was the Madagascar Plan which involved forced deportation, and was officially cancelled due to logistical reasons (unable to guarantee safety of ships involved). However, there is a second instance which is worth considering: the attempts by LEHI (aka the Stern Gang) to get the Madagascar plan revived with the target of British Palestine.

Were the Germans to have adopted Stern's proposal, Jewish property would have been confiscated to pay for transportation costs, and the Jews would have been forcibly deported to British territories in a time when Jewish resistance forces were engaged in a war against Britain. Such a plan must have been very appealing because it would have turned the Jews into a strategic asset to the Third Reich and possibly helped to cement German control over the Middle East.

I think the answer to this problem must be seen in the dynamics between Hitler and Himmer and how both of these NSDAP leaders sought to use the death camp system to the political advantage of the NSDAP. Hitler, epitomizing the Communist wing of the NSDAP, sought primarily to get rid of the problem (for him) of the Jews in Germany and didn't seem particularly concerned as to whether death camps or deportation was used. Himmler on the other hand sought clearly to maximize the impact of the death camp system for use primarily against whatever political enemies he could reach.

It is often easy to assume that Hitler had total control over the Holocaust, but in reality, Himmler was calling the shots. Admiral Doenitz discusses Hitler's attempts to remove Himmler from the government and how these failed (Doenitz later succeeded in this after Hitler's suicide). It is not entirely clear whether Hitler ordered or merely approved of the death camp system in its inception, especially given the past advocacy of the NSDAP for the Madagascar Plan, but it is very clear how Himmler and the SS used the system later. This may make Hitler bear more command responsibility or responsibility as an accomplice by giving approval to the system) than direct responsibility.

Although certain groups (most notably the Jews) were targeted directly by Hitler at least prior to the death camp system being up and running, a number of other important groups were thrown in the death camps by Himmler. These groups are quite notable in their scope and included prominent Volkishe groups, as well as closely organize religious fraternities (the Fraternitas Saturnii for example). The unifying factor here is that these groups posed ideological competition to the SS either in nationalist or provided an alternate framework of mysticism other than the nationalist mysticism Himmler preferred (the differences between Hitler and Himmler on the place of religion in the Reich are also worth noting. Hitler followed basically a Communist model, while Himmler followed what has been later called an "Aryosophic" model).

Whatever the initial stated motivation for the death camp system, it is fairly clear that the long-run goal of the system was to have an efficient system for getting rid of any enemies of the state, however the state wanted to define it. Therefore, we should stop thinking of the victims as primarily defined by ethnicity and understand that the scope of the system was intended to be a sword of Damocles hanging over the head of every German citizen.
12.22.2008 3:52pm
martinned (mail) (www):
@einhverfr: This one, like the last one, is a serious historical argument that does not in any sense deny or disparage the holocaust. So again this should, as far as I can see, be OK. Just compare to the what Wirtzsch wrote in that ECHR case I quoted. The kinds of things you're suggesting don't go to the heart of Holocaust denial, so even if someone took offense, you would get the opportunity to proove that your statements are historically plausible. (See ECHR ruling, above.)

FYI, did you hear about this book yet? It's essentially the literary sensation of the century so far.

New York born French writer Jonathan Littell wrote a "the fictional memoir of Dr. Max Aue, a former Nazi officer who survived the war and has reinvented himself, many years later, as a middle-class entrepreneur and family man in northern France. Max is an intellectual steeped in philosophy, literature, and classical music. He is also a cold-blooded assassin and the consummate bureaucrat. Through the eyes of this cultivated yet monstrous man, we experience the horrors of the Second World War and the Nazi genocide of the Jews in graphic, disturbingly precise detail. During the period from June 1941 through April 1945, Max is posted to Poland, the Ukraine, and the Caucasus; he is present at the Battle of Stalingrad, at Auschwitz and Cracow; he visits occupied Paris and lives through the chaos of the final days of the Nazi regime in Berlin. Although Max is a totally imagined character, his world is peopled by real historical figures, such as Eichmann, Himmler, Göring, Speer, Heydrich, Höss, and Hitler himself.

Massive in scope, horrific in subject matter, and shocking in its protagonist, Littell’s masterpiece is intense, hallucinatory, and utterly original. Critics abroad have compared this provocative and controversial work of literature to Tolstoy’s War and Peace, a classic epic of war that, like The Kindly Ones, is a morally challenging read."

Even though the French are quite strict about their hate speech laws, he didn't get into any legal trouble whatsoever. Also, somewhat to my surprise, I see that it was published in German translation as well.
12.22.2008 4:12pm
martinned (mail) (www):
Then there is Der Untergang, a movie that painted Hitler in such a "sympathetic" light that it was heavily criticised in Germany. But not prosecuted.
12.22.2008 4:14pm
einhverfr (mail) (www):

Having said the above (once again, somewhat truthfully, but at the same time also non-representative of what I actually think), suppose I quickly summarize them as:

All in all, the Holocaust was probably a good thing as it has changed the course of history away from much larger crimes. Perhaps in the final judgement the Nazis have been unjustly held as worse than the Stalinists, Maoists, and others who were simply more tenacious and successful in their crimes.

Furthermore, we really need to see the Holocaust as what it really was: Nothing more than the opening shots of a system which is more similar in direction but much smaller in scope to Stalins Gulags, terror famines, and purges than it was different.

If the Nazis didn't make such good enemies, perhaps the holocaust would simply have been a footnote to history.
12.22.2008 4:30pm
martinned (mail) (www):
@einhverfr: I think now you would be crossing the line into excusing and/or trivialising the Holocaust. (For the record, though, I would like to note that I'm not German, so my impression of the law here may not be entirely accurate.)
12.22.2008 4:36pm
einhverfr (mail) (www):

So long discussions would be OK, but quick summaries of positions would not?
12.22.2008 4:40pm
martinned (mail) (www):
@enhverfr: Well, nuance would always tend to reduce the impression that you're trivialising the holocaust. But more importantly, my impression is that your summary is much harsher than the two longer texts.
12.22.2008 4:46pm
David Post said:

His views regarding the line between permissible and impermissible speech were pretty simple – there shouldn’t be any line, because there shouldn’t be any impermissible speech.

Does this apply to civil libel suits too, or only to criminal prosecutions?
12.22.2008 4:49pm
einhverfr (mail) (www):

What one invariable ends up with is a discrimination against certain viewpoints in media that requires concise description. For example, cartoons are easier to prosecute than movies, and letters to the editor are easier to prosecute than book-length manuscripts, even if the same thesis is present in both. This largely ends public dialog and replaces it at most with a series of public monologs and private dialogs.

Aside from basic issues of fairness, one of the big questions is whether this is a good idea from a public policy perspective. To this I would point out that the times of censorship against the NSDAP between the wars was also the time of their most rapid growth percentage-wise. It thus seems to me that the old adage that sunlight is the best disinfectant seems to make good policy, and that the right of the public for a rebuttal against offensive or hateful speech is a fundamental necessity for the maintenance of a free state in the long run. This right only exists when unsavory types are encouraged within reason to advocate unwholesome causes in the public square.

BTW, the 2-dimensional nature of American politics is not due to our freedom of speech but rather certain parameters around our electoral process. This is something else that needs to be addressed and is a separate but related issue.
12.22.2008 5:57pm
Henry679 (mail):
"Der Untergang" ("Downfall") was sympathetic to Hitler?

The version I saw depicted a madman willing to have his nation destroyed and his own people's children slaughtered because Germany turned out not to be not "worthy" of him in the end.

Short of making him wear a pair of horns throughout the film, I don't know what more could have been done, within the claustrophobic confines of the narrative, to make him MORE unsympathetic.
12.22.2008 5:59pm
martinned (mail) (www):
@Henry679: I didn't say that was what I took away from that movie, but it has been suggested (here in Die Zeit, for example), that by making him seem insane, and generally weak and ill, they downplayed the sheer evil of it all. (In one of those glorious, untranslatable German words, the author in that article calls it "Verharmlosung", i.e. making him seem more harmless.)
12.22.2008 6:10pm
martinned (mail) (www):
@einhverfr: There's no question that the ban on Holocaust denial discriminates against certain viewpoints and certain ways of communicating viewpoints. That's exactly the idea. In any other country other than Germany and Austria, I would oppose it for that very reason. Nevertheless, I think that it is a fairly workable rule. It isn't "vague" or "overbroad". And I think our little thought experiment above has shown as much. Certainly in combination with a body of case law on the issue, I think all Germans are in a position to know with sufficient certainty what is and is not allowed under this law. (Remember that Germany, like my country, does not have juries, so it is all up to the court, meaning that it is easier to develop a body of case law on the issue.
12.22.2008 6:16pm
einhverfr (mail) (www):

See this is what I am saying though. The Nazis have become essentially a myth of evil, and that questioning that element in particular is what gets one into trouble.

However, objectively, what makes the Nazis far worse than the Stalinists? Or the Maoists? By any objective measure I can find those two were worse. The goals were the same (getting rid of cultural groups who would oppose the state), but the number of those killed were smaller by the Nazis (though this was largely a matter of them losing the war). Instead we have what has largely survived as Lewis Spence's wartime propaganda see The Occult Roots of Nazism by Lewis Spence.

Spence's propaganda was largely based on two prongs:

1) Germanic people are EVIL (the Niebelungenlied is the primary evidence here), British Celtic people are GOOD (see the Arthurian Romances for evidence here).


2) How dare Hitler claim that the Germans are the master race!? We all know it is really the British!! (Remember that eugenics programs were common at the time, and were certainly found in the UK as well.)

Now, one thing that is also undervalued in a lot of these studies is how insane things had become in Germany in nationalist circles (I am not convinced that Hitler was a sincere nationalist of the sort Rudolf Hess or Heinrich Himmler were. His career prior had been largely communist.) If we look at the development of Aryosophic thought, we see a very different picture (see The Occult Roots of Nazism by Nicholas Goodrich-Clark).

Aryosophic thought really starts out with Guido von List. I would classify von List as a pan-nationalist, as his views were that everyone should be a nationalist (interestingly von List really lived this and was involved in several Jewish organizations and actively recruited at least one Rabbi into his Germanic mystical groups-- I am not sure if his work Der Runen und die Kabbalah has survived WWII). My own approach to religious thought is very close to von List's although my methodology varies.

Yet by 1932, Sigfried Kummer wrote that all languages were derived from the ancient Germanic mother-tongue (see Runenmagie. Edred Thorsson's translation is both uncensored and passable) and he largely accuses Jews of stealing everything of value in their tradition from the older Germanic traditions. Hitler's rhetoric (adjusted after the DAP failed) was very much a product of these times.

One thing I will say about my own viewpoint is that I think that of all the reasons the holocaust happened, "Hitler was evil" is one of the ones which really needs to be thrown away. Personally I think that we say this to avoid the ultimate point that these things happened because of complex mass-psychology reasons and hence we all have a responsibility to recognize the structural problems when they start to appear. One of the best views on this is Mass Psychology of Fascism by Wilhelm Reich. Interestingly, Reich identifies an emphasis on authoritarian families, and the control over sexuality as key leading indicators.

So what happens with holocaust denial laws is that, at best, they essentially distract everyone from the real lessons from WWII. At worst they may actively help the fringe political groups move back to a position where such horrors are possible.

However one point I would make is that the Nazi persecutions were anything but arbitrary. In fact they were extremely systematic and directed at economic cultural sectors of the community with a potential to challenge the NSDAP. Of course some groups (like homosexuals) were just added IMO largely for effect (to reinforce the idea that those thrown in the camps were BAD) but this was very well thought out from an authoritarian perspective.

The problem with obscenity laws are fundamentally different. One doesn't see the viewpoint discrimination element. However, there is a fundamental vagueness element. What is obscenity in one community can be great art in another... Here the issue is that one cannot know in advance with any certainty where, for example, Mapplethorpe's photographs of nude children, can be shown.
12.22.2008 6:48pm
martinned (mail) (www):
@einhverfr: You're right, the Holocaust is only one of many genocides. (Note that section 130 that I "translated" above partly applies to all genocides.) However, the Holocaust is not like all the others if you're German. For the Germans, this is the one that really matters, when their ancestors made a pact with the devil. That is why it makes sense for Germany and Austria to have this law: they're doing penance.

This whole thing was only tangently related to the topic of this thread, on which, BTW, we don't really disagree very much. Case closed?
12.22.2008 6:54pm
And a gem from his colleague, George Washington:

"If the freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter."
12.22.2008 8:13pm
These laws against Child Porn, are a veritable pogrom.

"Power is the ultimate aphrodisiac", goes the old saw. Even if we were to accept the premise that the marginalization and dehumanization of young people is good, the cancer from the betrayal of and encroachment upon the First Amendment, doesn't stop there. It has metastasized into the otherrwise adult population, with intrusions such as 18 U.S.C. § 2257, and the design of Windows operating system for government forensics first, (with the retail customer as an afterthought), and countless others, ad nauseum.

Another saw goes, "Those that start by first by burning books, eventually end up burning men".

Even if one pretends that the Constitution's First Amentment is not in absolute language, it is easy to recall the less-pelucid, half-hearted attempt to include black people, by enumerating them as three fifths of a person. The Ku Klux Klan failed to racially cleanse, even despite that three fifths of a person, enumeration.

These anti-pornography pogroms appear to never stop. Justice Jackson brought justice to Nuremberg and today Germans are among the more sexually liberated in the world. But in the United States we seem to lack contemporary jurists of his caliber, so bringing prosecutions for the pogroms is perhaps initially less likely than simply slowing their mission creep that has accelerated into a rush, these days, to a surveillance and lock-down society.

There is no shortage of cases of government and its employees sexually abusing people under the color of authority, and in some of the worst cases imaginable. These laws appear to largely facilitate government's sexual appetites. The prevalence of those in power to sexually abuse under color of authority is in fact so pervasive, it spawned an entire film genre, known as "Women in Prison" films.

The tendency for those in power to distract with moral panics while they loot and plunder is a familiar tactic, such as was perpetrated by Charles Keating when he ranted during his moral crusade against pornography, all while he looted Lincoln Savings and Loan. The sheer scale of the current moral panic against Child Porn is a sure-fire measure and vivid predicter of the grand heist of trillions of dollars, actually going on now.

Government's "cure" for CP is worse than the "disease". The conditioned hysteria is a distraction from a far worse fate for young people, that governments hold in store, such as the engineered coming economic depression and eugenics, to name but a few.

Government has been quietly installing see-through-the-clothes scanners which will be all but certain to collect photographs for mass dossiers and will doubtless, surely include children.

It is easy to predict the inevitability of government cameras in children's bedrooms, "in order to protect the children", and cradle-to-grave sexual histories on everyone, as are already being compiled on some "sex-offenders".
12.22.2008 8:54pm
martinned (mail) (www):

"Those that start by first by burning books, eventually end up burning men".

Wo die Bücher brennen, brennen bald auch die Menschen. (Literally: Where books burn, soon people will burn as well.)
12.22.2008 8:59pm
einhverfr (mail) (www):
martinned: Ok, case closed.

Methodact: Interesting. Does this mean that after 2006, some of the artwork at issue in the Mapplethorpe obscenity case are now properly classified as child pornography instead of high art?
12.22.2008 11:05pm
Seamus (mail):
So what's the connection between Jefferson's views on freedom of the press and his views on intellectual property? If he was such a first amendment absolutist, does that mean that he believed it should be legal for person A to publish works for which person B held the copyright? (And if not, then isn't this an exception to the oft-repeated generalization (and maybe even his own claim) that he believed there should be no restrictions on freedom of expression?)
Seamus: Afraid you'll have to read the book for that (Chapter 12) ... it's a complicated story.DGP
12.23.2008 11:47am
einhverfr (mail) (www):

What exactly does copyright protect? Copyright protections are a separate issue from freedom of the press, because there are many ways to say something.

However, I think the current copyright system has gone entirely out of control. "Limited times" has become a bad joke.
12.23.2008 12:59pm

Why even bother to run a red herring against Cassandra warnings? But hey, since you did, art long used to belong to the realm of wealthy patrons who would keep it to themselves.

I was actually surprised that the question went to Robert Maplethorpe and was not about if i saw any difference between children knowing the art, (the very word "possession", is so loaded), as opposed to adults knowing the art, i.e., porn treatments of children.

Surely a more Constitutionally defensible and sensible approach to "combating" child pornography, would be to simply withhold the protections of copyright laws from being extended to the genre, thus more effectively removing it from the world of commerce.

But you did ask an interesting question, in the sense that, if any originalists even accepted that these laws are somehow Constitutional, that begs the question of whether or not existing collections or individual works were properly and rightfully grandfathered in.

One of the tragedies of criminalizing possession of even mere digital copies of much art is all of those truly great masterpieces that will never exist now, that were killed even before being created, yes, otherwise epic great works. But the extremely rich can afford them. The peons cannot. Those that cloak themselves as "fighting the scourge" also enable their access, (think Mark Foley), and that is frequently why they do it. That access is a badge of the rank of the highest of power.

There are now full government archives amassed of the genre. If the penalty is say $50,000 per image and 10 years imprisonment, (think Arizona), wouldn't the price alone of that art automatically place it into such a category as "high art" or "fine art"?

Yes, there are those willing to risk everything for such art, their freedom, their fortunes, even their lives, wouldn't that alone be enough to make the art fine? (i.e., aesthetics over utility?)

And what about the artists themselves? Of course it is no coincidence that totalitarian systems crush the intellectuals and artists first.

Nevermind the issue of the New World Order making so many laws with such draconian penalties that everyone is guilty of multiple felonies, subject only to the whim of prosecutorial discretion. (Let's pretend they {DHS; DoJ, et al} are not actually already even moving towards technologies for busting "pre-crime", as envisaged in the futuristic film, The Minority Report). The coping mechanism is to pretend "I will just avoid doing whatever they make illegal". But they want everyone dirty. They will pass those laws that technology allows them to enforce, and create the demons out of whole cloth.

Our rights were purchased with blood and lives of those that made a stand. The precious rights fall like dominos unless these rights are defended whenever and wherever they are in peril.
12.23.2008 3:03pm
einhverfr (mail) (www):

I was actually surprised that the question went to Robert Maplethorpe and was not about if i saw any difference between children knowing the art, (the very word "possession", is so loaded), as opposed to adults knowing the art, i.e., porn treatments of children.

The issue is that in 1990, two of the allegedly obscene works were nudes of children with at least allegedly some sexual suggestion in their poses. At the time, I believe this was somewhat excluded from the laws regarding child pornography even without artistic intent. The law was later amended to include language pretty much from the Mapplethorpe indictment.

My own thinking would be if this were retried today with child pornography charges being included, there would be a strong case for an as-applied challenge to the inclusion of those specific works in child pornography laws.
12.26.2008 5:15pm

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