Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.

Conclusion

There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

Human Rights and International Law (7): Crimes Against Humanity

A crime against humanity is a large scale atrocity against a civilian population, such as genocide, ethnic cleansing or the massive killing of civilians during war, and is the highest level of criminal offense. It is either a government policy or a wide practice of atrocities tolerated, condoned or facilitated by a government. Atrocities such as murder, torture and rape are crimes against humanity only if they are large scale and part of a widespread or systematic practice organized or condoned by a government. Isolated atrocities are certainly human rights violations, and can perhaps even be war crimes, but they don’t fall into the category of crimes against humanity. (And acts which do not violate human rights can never be crimes against humanity, even if they are widespread and systematic and even if they cause suffering).

Crimes against humanity can take place during a war or in peace time, and can be committed by a state against its own citizens or against the citizens of another state.