Free Speech and Other Stuff

--by Sebastian Holsclaw

David Irving was recently sentenced to three years in prison for Holocaust denial.  The man is a moral idiot.  He is a Holocaust denier, racist and a modern Nazi sympathizer.  But he ought not be in jail.  I say that not because I respect his views in any way--they are intellectually and morally bankrupt.  I say that not out of any personal sympathy for him--he is loathsome.  I say that he ought not be in prison because speaking loathsome thoughts should not be a legal offense in a free society.  The government of a free society should not police the loathsome expressions of its citizenty.  Irving should be socially ostracized and intellectually ridiculed, but not subject to legal sanction. 

This provides an interesting counterpoint to the recent Muslim cartoon riots.  Saying offensive things is permitted in free societies, whether they be offensive to religion or offensive to historical fact.  You should argue with people who say such things, or perhaps ridicule them.  But you ought not ban them. 

This reminds me of an interesting discussion I read a few years ago--I regret that I can't remember exactly where.  The gist was that one of the practical reasons European countries have more restrictive speech laws than the US is that their political systems allow small group extremists to wield more electoral power.  Our system tends toward only allowing two successful parties at a time.  This is reinforced by first-past-the-post vote counting and by the fact that the administrative branch is elected apart from the legislative body.  The parliamentary system of many European democracies and the voting schemes tend to make small parties very powerful when coalition governments are required.  As a result, a party which is popular in only a very few areas can have enormous power from time to time.  The US system tends to filter out small extremist parties.  As a result we can tolerate a somewhat larger range of outrageous speech because the speaker can rarely gain the leverage needed for real power without appealing to a broad spectrum of people.  I don't know if there is something to that, but it struck me as an interesting conjecture. 

Comments

[Anarch]

While I tend to be a diehard proponent of free speech, there's something in not letting Neo-Nazism rekindle in Altdeutschland...

[Pooh]

Time, place and manner, as they say. I'm not prepared to say to what extent proto-nazi or holocaust denial in Germany, Austria or Poland might be comparable to "fire in a crowded theatre" of 'fighting words', but I can certainly see the argument.

[bob mcmanus]

I am a fervent believer in the protection of minority rights as the basic prerequisite for freedom. If minority rights were universally protected there would have been no Holocaust. But David Irving and whatever following he might have is also a minority.
His pernicious ideas likely thrive in the dark moist places they belong, and wilt in the light.

I have said that because of the aniconism of certain Islamic factions, the single particular injunction against depicting Muhammed might be permissable. I would prefer it be done by civil consensus instead of law,but if illegal, punishment be symbolic just to show respect. It would be otherwise completely limited, and would not extend to the "Satanic Verses", for instance I see a small cost and no benefit to this one concession. But ideas, even the worst, must be free.

I find three years, I find any jail time, or any punishment at all for Irving outrageous.

[liberal japonicus]

I really don't have an strong opinion, but I have to ask Bob, do you not consider the possibility of civil suits a punishment or should Irving be protected from that? (I know that most of Irving's problems stem from him suing Lipstadt, but I'm just curious how you see civil suits in this regard)

[TH]

"Wiederbetätigung" lit. renewed activity is not a "speech crime", it is a crime of action. It is the crime to *act* upon nazi beliefs or promote action. Irving is not a harmless idiot, but one of the chief ideologues of renewed nazi activity.

It pains me, that our laws do not give freedom of hatred to nazis and thus give offense to poor innocent little USians, but I shall be strong and survive.

[liberal japonicus]

TH, are German speakers able to use smileys?

But seriously, does the time gap (17 years?) between the act and the trial raise any concern? Or is there no statute of limitations in Austria?

[TH]

japonicus, german speakers are able to use smileys. I just prefer not to, mostly.

As Irving has been continuously active as a nazi propagandist, the time interval is no concern to me. The legal status of the statute of limitation (yes, we have something like that) may be trickier, as far as I recall, the trial/investigation started in 1989. How the limitation applies or not, I do not know.

[TH]

Well, obviously it does not apply, or it would have been a mistrial. But I don't even play a lawyer on tv, so I have no idea at all.

[Jesurgislac]

The US system tends to filter out small extremist parties.

The US system consists primarily of a very large and powerful extremist party anmd a center-right party. It's arguable that the reason the Republican Party has become so extremist is because there is no political balance in the system - no smaller parties providing a means of giving voters any choice between extreme-right and center-right.

Saying offensive things is permitted in free societies, whether they be offensive to religion or offensive to historical fact. You should argue with people who say such things, or perhaps ridicule them. But you ought not ban them.

As I recall, you're a passionate defender of the global gag rule, Sebastian. So your argument rather falls to the ground there.

[liberal japonicus]

TH,
Again, I don't have a strong opinion about this, so please don't assume that I am opposed to your position and I am in no way defending Irving or what he espouses. Also, I'm assuming that you are Austrian, so I hope you don't mind me asking your opinion. The first is how do you define being 'continuously active'? Second, do you feel the consensus is that he is being tried for what he did in Austria or what he did outside of Austria? I'm wondering if these laws are longstanding or if they have a more recent provenance. I know that there is the problem of Austria considering itself the 'first victim' of Nazism as well as the controversy over the Historikerkommission in the late 90's, not to mention the Waldheim controversy, so I'm wondering how the laws relate to that. Also, how does the decision relate to Schüssel's decision to have a coalition with the Haider's old Freedom party rather than more liberal/progressive groups? thnx

[otmar]

fwiw, the relavent law was enacted on May 8th 1945. See e.g. http://www.nizkor.org/hweb/orgs/austrian/austrian-resistance-archives/ld-14.html

Back then the need for such a law was clear. Over the last years, there have been discussion on whether we still need it, but the consensus is to be better safe than sorry in that respect.

[Jesurgislac]

otmar: Over the last years, there have been discussion on whether we still need it, but the consensus is to be better safe than sorry in that respect.

I tend to support that view. The freedom for all not to live in a country with openly Nazi politicians over the freedom for Nazis to speak their views openly... Sebastian may have a tough time choosing, but I don't. Then again, Sebastian has in the past expressed the view that he doesn't care how people elsewhere are discriminated against (example: the Republican party's homophobia) so long as he himself is unaffected.

[liberal japonicus]

Thanks otmar. The html at the end got cut off, so here is the link

the nizkor org site also has a page of links about Irving here

[TH]

japonicus,
I see that I'll need to elaborate a bit. First, thanks to otmar for the law quote. Please all, do read the whole thing at Nizkor.

Let's go through your questions:
The first is how do you define being 'continuously active'?
Iving has not stopped in his propaganda, nor has he stopped giving speeches at neo-(and old-)nazi events.

Second, do you feel the consensus is that he is being tried for what he did in Austria or what he did outside of Austria?
Well, I don't know about the consensus. He was tried and sentenced for speeches in Austria. As far as I can see, the investigation and trial have been clean. I don't think the offense is the equivalent of Al Capone's tax evasion, but of course I 'm sure that there are people outside of Austria who will be happy about the result.

[...] not to mention the Waldheim controversy, so I'm wondering how the laws relate to that.
I don't think there's a big influence. There has been discussion about the minimum sentence (1 year jail), as some commenters have argued for a lower minimum to get more convictions, but all in all the law has always been on the book, has always been prosecuted, although there have been notable failures to convict too.

One interesting part in this specific trial ist the precedent it will give to another trial underway also for holocaust denial against John Gudenus, who was a Bundesrat (far less powerful form of senator) for the FPÖ at the time. Personally I hope for 1 to 2 years.

Also, how does the decision relate to Schüssel [...]?
Not at all. The investigation is far older. Schüssel's coalition is odious and the dangerous party in that coalition is Schüssel's ÖVP -- at least in my opinion, but I don't think that current politics have played any role in that trial.

Maybe otmar can add to that.

[reinder]

The coalition theory seems unlikely on the face of it. In the countries whose politics I follow at all, small extremist parties *don't* get into government and certainly don't set the agenda. The Netherlands, for example, has in my lifetime had a succession of center-right, center-left and broad-spectrum coalitions; the only time extremists entered the government was when the party they were in, the LPF (which had no coherent ideology of its own and as a result was home to a wide range of viewpoints, some of which were extremists) became the second largest party. Elections a year later proved this to be a fluke result.
The same can be said of modern Germany; in Austria, the far-right FPÖ has been very influential, but that party too has had to gain its influence that old-fashioned way, by having many people vote for them.

[Dan S.]

"This provides an interesting counterpoint to the recent Muslim cartoon riots. Saying offensive things is permitted in free societies, whether they be offensive to religion or offensive to historical fact."

This is a false equivalence. Both examples do involve free speech issues: however, while the cartoon riots have to do with offensive depictions (at least on the surface), the Holocaust denial case -as TH points out - has to do with keeping a murderous, totalitarian and genocidal ideology from regaining power and influence. Whether this is an appropriate limitation of free speech is an open question, apparently, but let's be clear on the issues.

An even worse example of confusion (for the U.S.) is the claim that keeping creationism out of public school science classes is a violation of freedom of speech.

[Phil]

The freedom for all not to live in a country with openly Nazi politicians over the freedom for Nazis to speak their views openly... Sebastian may have a tough time choosing, but I don't.

I'd like to call this statement out as complete and utter bullcrap in its implications, and point out that somehow, despite our unwillingness to criminalize Holocaust denial, our country has managed to survive David Duke, Tom Metzger, and whatever other scumbags one might find in the annals of the SPLC's and ACLU's fights against hate speech.

Jes, how would you feel about choosing between "The freedom for all not to live in a country with openly Communist politicians over the freedom for Communists to speak their views openly?" Remember, like the US tried to have during the HUAC era? And how well that worked?

Yeah, that's what I thought.

[Phil]

Although to be fair I applaud all the Good Germans and Good Austrians throughout Europe for being Tough On Nazis. Sixty years and more than six million lives too late, but hey, credit where credit is due.

[st]

A couple of interesting things:

1) Iran is using the conviction to pimp its own World Series of Holocaust Denial (or whatever they are calling it) planned for this spring. Intersting quote from Iran's Foreign Minister: "We do not understand why the West so desperately insists on having committed this crime and killed exactly six million Jews.” As if the real problem is that western governments simply haven't yet realized the political advantages of holocaust denial.

2) Irving's defense included an emphatic rejection of holocaust denial:

"Naturally I apologise," he said, addressing the court in fluent German. "I'm not a Holocaust denier. Obviously, I've changed my views. I spoke then about Auschwitz and gas chambers based on my knowledge at the time, but by 1991 when I came across the Eichmann papers, I wasn't saying that any more and I wouldn't say that now. The Nazis did murder millions of Jews."

The prosecutor rebutted this with examples of denial speeches after 1991, but it is interesting to note that the threat of jail works like a charm sometimes.

3) It may be worth considering that the law was passed in 1945, at a time when holocaust denial was the blanket defense of the defeated German government, after an extensive program of covering up mass graves and destroying evidence in the waning days of the war. This blanket denial was only truly broken by the Nuremburg trials in the years after 1945. So at the time the law was passed, it was much closer to a law against obstruction of justice, as the denial of the holocaust, especially by public figures, was arguably abetting a conspiracy of silence and suborning perjury from the thousands of government functionaries that were being rounded up and questioned across the Anschluss.

So . . . is the law (and Irving's conviction under it) a good idea now? Probably not. Maybe the law was defensible in the short term, in the immediate aftermath of the war, but this battle is long since won. The historical record was preserved and rescued from the deniers and the defendants and anyone who seriously indulges in holocaust denial is simply ignoring vast libraries of documentary evidence, or explaining it all away as forgery, or whatever tortured arguments of necessity can be summoned in contravention of truth. As currently exercised, this law creates martyrs to one of the stupidest causes imaginable, and gives opponents of Western democracy an opportunity to label us hypocrites.

[votermom]

Wow. Jail time for spreading lies. I think I like it.

[TH]

[...] all the Good Germans and Good Austrians. [...]

Bzzzt. Game over. Thank you for playing. Better luck next time.

[Leonidas]

If Austria can outlaw that sort of speech, then we should be allowed to prosecute seditions speech as well. There's a good article about this at Townhall.

[TH]

I'm just trying to close st's italics.

[st]

Hmm, I previewed the message and it looked fine... Oh, well, thanks for the fix.

[Phil]

Sorry, TH, did you find that offensive? I apologize profusely for wishing that Germany and Austria had been as twitchy about National Socialism in 1939 as they are today.

[Jesurgislac]

Phil: our country has managed to survive David Duke, Tom Metzger, and whatever other scumbags

Meanwhile, your country has been moving further and further to the right politically, and the party currently in power is apparently supporting as a principle the concept that whatever the President does is lawful.

I apologize profusely for wishing that Germany and Austria had been as twitchy about National Socialism in 1939 as they are today.

No need to apologize for that, Phil. I wish that the US was as twitchy about the Republican party's slide towards fascism today as it will be in 2066. :-)

[Anderson]

Agree w/ Sebastian, tho Irving's utter stupidity could use more emphasis. And to repeat my own snark:

How many years does every Austrian get for "Holocaust responsibility denial"?

[Phil]

Meanwhile, your country has been moving further and further to the right politically, and the party currently in power is apparently supporting as a principle the concept that whatever the President does is lawful.

And this is attributable to a lack of laws criminalizing Holocaust denial because . . . ? Oh, it isn't -- in fact, it's irrelevant. Also, as you're well aware of -- since you make it a point to remind Charles, Sebastian, Slarti, et al. whenever possible -- more than half of my country did not vote for the current regime, so what my country is and is not moving towards is a matter of some debate.

By the way, didn't your country just make it against the law to "glorify terrorism?"

I'll take it you concede my question concerning criminalizing speech by Communists.

[Anderson]

See also this Crooked Timber post. Evidently, it's okay to ban a movie that might blaspheme Jesus. Quoth the Euro court: "respect for the religious feelings of believers can move a State legitimately to restrict the publication of provocative portrayals of objects of religious veneration."

If I were a European Muslim, I'd be a bit annoyed over that. Not to the point of rioting however.

[Dan K]

Speech should be free. Ok, ok, so make an exception for slander and libel. Ok, ok, so make an exception for denying the Holocaust in GrosserDeutschland. But speech should be free.

[Leonidas]

Sorry, but free speech must have its limits. There is no room for outright sedition, even in a free society. It doesn't matter if you're Al Gore or David Irving. Both should be prosecuted.

[Dan K]

And obviously, make an exception for infringing copyrights. But speech should be free.

[Jesurgislac]

Phil: By the way, didn't your country just make it against the law to "glorify terrorism?"

We did, and it was appallingly STUPID. Tony Blair has done worse things in his time as Prime Minister, but nothing quite as stupid as passing a law that would prohibit Blake's 7 but permit Battlestar Galactica.

[Anderson]

Sorry, but free speech must have its limits. There is no room for outright sedition, even in a free society.

Define "sedition," please.

[hilzoy]

I'm with Sebastian. Irving is loathesome, but he should not do time for speech.

[Dantheman]

Leonidas,

"There is no room for outright sedition, even in a free society."

I guess your free society would not be able to tolerate people like Thomas Jefferson, John Adams, Benjamin Franklin, Patrick Henry, Thomas Paine, et al.

[cleek]

There's a good article about this at Townhall

a logical impossibility.

to quote To The People:

Anyone who calls for trampling on the Bill of Rights and giving bureaucrats more power at the expense of citizens is a traitor who should go to jail. Do you see how easy it is, Ben?

[Paul]

Sixty years and more than six million lives too late, but hey, credit where credit is due.

I'm sure you imagined that was witty when you wrote it.

I'm generally opposed to legislation prohibiting the many varieties of fascist theatrics, but I think I'll leave Irving to the care of the Austrian judiciary and his lawyers. I don't need to spare him any concern. Do get back to me if he's rendered to a secret prison somewhere, though.

[Donald Johnson]

I'm not real clear on what point you're making, Phil. Are Germans today responsible for opposing the Nazi regime back in the 30's? when it would have done the most good? A little tricky without a time machine, it seems to me.

[Jesurgislac]

There was a reason why Holocaust denial was made illegal in Austria in 1945: because Holocaust deniers were lying in much the same way, and for the same reason, as Bush & Co lie in the 21st century about torture in Abu Ghraib and Guantanamo Bay.

There is a reason why such lies should be opposed by every force a society can bring to bear on them: because the people who tell these lies are intentionally obscuring the route that their values are taking them. As Jeanne at Body and Soul says:

Mora is right: Once you take the first unconscionable step, once you decide to throw away your values, even if you do nothing else, you are responsible for everything that comes after. And you end up in a place the civilized world doesn't recognize.

Phil quipped upthread that it was a pity Austria hadn't been as twitchy about Nazis in 1936 as they are today, seventy years later: but I think that any country that has discovered what horrors it is capable of committing ought to stay twitchy for a lot longer than sixty years. More's the pity the US isn't as twitchy now about Rumsfeld's lies as Austria is about Irving's.

[liberal japonicus]

While I wonder about him doing time, I would be lying if I said there wasn't a small amount of satisfaction when I read this (from the link st gave)

David Irving stumbled from court stunned and humiliated yesterday after receiving a three-year jail sentence for denying the Holocaust happened.

The Right-wing British historian had expected to be given a suspended term in Vienna after pleading guilty and recanting his previous claims.

He had even booked a flight back to London last night.

I suppose this disqualifies me from being a serious commentator, but Nelson Muntz's 'Ha ha' comes to mind.

[Paul]

Meanwhile, Berlusconi allies himself with Mussolini.

[Jesurgislac]

lj: I suppose this disqualifies me from being a serious commentator, but Nelson Muntz's 'Ha ha' comes to mind.

Oh, me too. Oh my. He'd booked a flight back to London? He thought "oh, I changed my mind since I spent years writing 30 books about how the Holocaust never happened" would get him off the hook? I am so disqualified. All I can do is giggle.

[Phil]

I'm not real clear on what point you're making, Phil. Are Germans today responsible for opposing the Nazi regime back in the 30's?

Of course not. I just get weary, from time to time, being lectured by Germans and Austrians on how to deal with Nazis and the Holocaust.

[LizardBreath]

I do have to say that I think it's wrong to imprison people for what they say, even for spreading pernicious lies. Fines, forbidding him to enter Austria, but putting him in jail seems wrong.

On the other hand, while I disapprove of jailing Irving as a matter of principle, I'm sharing the Nelson Muntz impulse. It couldn't have happened to a nicer guy.

[Anarch]

Of course not. I just get weary, from time to time, being lectured by Germans and Austrians on how to deal with Nazis and the Holocaust.

I've known dozens of Germans and Austrians, worked with some fairly closely actually, and I've never been lectured on "how to deal with Nazis and the Holocaust". Mind sharing some of your experiences in this regard?

[Phil]

Anarch, you can start with TH's comments in this very thread. They're up above yours.

[Phil]

I've also had the distasteful experience of having my company's Frankfurt-office employees, in a conversation about WWII, pull the old "Hitler fooled everyone! We didn't know!" Twice. So, if true, perhaps these laws are in fact a good idea. I'd hate for them to be fooled twice.

[trilobite]

Speaking as a Jew -- no, Irving should not be jailed. Our best protection against nightmares like the Shoah is our civil liberties. And 60 years after the fact, there seems no need for special exceptions even in Deutschland.

Admittedly, I'm not sure my uncle the Auschwitz alumnus would agree.

[otmar]

Phil, I've tried to explain how and why we do it. Not how it should be done.

[Dianne]

Is it worth pointing out that the US limits freedom of speech as well? Besides the famous "shouting fire in a crowded theater" example, it is also illegal to advocate assassination of elected officials, violent overthrow of the government, and (I think, in some cases) encourage illegal activity. Slander is also illegal, as are obscenity and pornography depending on "community standards". So why are we so worried about the restrictions on speech elsewhere?

Incidently, if the German law was enacted in 1945, it was almost certainly enacted with the approval of, possibly at the insistence of, the US government.

[Dianne]

"I've also had the distasteful experience of having my company's Frankfurt-office employees, in a conversation about WWII, pull the old "Hitler fooled everyone! We didn't know!" Twice."

And none of us in the US in recent years have heard anything about torture camps, the use of chemical weapons on civilians, illegal detention, shooting of wounded soldiers and civilians...We were fooled. And the soldiers who did it were just obeying orders.

[WDT]

I crosspost my comments from the Trackback at Brad DeLong:
"Holocaust denial is used in central Europe as a rallying point and intimidation tool of the violent radical ultra-right political sphere.
Austria and Germany have a special history, and a special ultra-right wing extremest sub-culture.
I grew up there. I have been beaten, threatened and intimidated by them.
I understand where you are arguing from, Brad, but I politely beg to differ from your conclusions.
I very well believe, that a democracy has the right to defend itself from it's violent and sworn enemies.
There is no, and there cannot be free hate speech in central Europe. This is not some calcified, illogical intellectual who bumbled into askew reasoning "well, perhaps, not all the evidence supports the finding of an organized 'Holocaust'".
This is a very unsavory political agitator, a sworn enemy of democracy.
He very well belongs behind bars for the consequences of his well calculated actions, this is not about his ideas.
His words have meaning, and they have resulted in tangible effects. He has spoken on Nazi Skinhead gatherings. His views were widely published and circulated in these circles.
In my days over there, resultantly us "Punk Rockers" got attacked and heads bashed in with baseball bats. In the last decades, non-caucasian looking individuals got attacked, injured, even murdered - incited by hate-mongering, not lastly propagated by the despicable David Irving. He has caused, so very intentionally, much suffering.
He gets off way too lightly, if he was to even serve out the three years."

[JR]

It just astounds me how Americans and Britons are so willing to lecture Germans and Austrians that they don't need their anti-Nazi speech codes. Those countries smashed themselves and their neighbors into ruin and committed unspeakable crimes - and they did it willingly, at the behest of a handful of leaders who began with nothing but words. There are still large numbers in those countries who want to do it again. If the majority remains so fearful of the possible effects of Nazi speech that they feel the need to outlaw it- who the hell are we to tell them that they are wrong?

[Christian]

The relevant laws over here in Germany go quite far with regard to the limitations of free speech, it's not only an issue with regard to holocaust denial, it's about "insulting someone's dignity" and such. I don't think that can be soley explained with historical experiences during the 30's and 40's.
I do also think it has to do with a different attitude regarding the role of the state and the courts in everyday's life in general, compared with say, the American approach, at least that's my impression.

As already pointed out,there are still blasphemy laws for example in some European countries, among them, if remember correctly, Denmark.

I recently discovered that the basic relevant German law (maybe some of you are familar with the term "Volksverhetzung") dealing with Holocaust denial came to be as reaction to a wave of antisemitic incidents during the 50's, and the wording got more specific over time, in 1994 it got specific paragraphs dealing with crimes under Nazi-rule. The basic wording before was more broad, dealing with incitement to hatred against ethnic groups etc.

Of course Holocaust-Denial is a crime in a number of countries, including Israel and France to my knowledge, but how specific these laws are with respect to this issue might be worth to check out. Maybe it falls under general "hate speech" or something like that.

[TH]

WDT, Danke. I wasn't able to put it into those words.
Phil, I won't comment further on your witticisms. I might get offensive, and I try to avoid that.

[Phil]

And none of us in the US in recent years have heard anything about torture camps, the use of chemical weapons on civilians, illegal detention, shooting of wounded soldiers and civilians...We were fooled. And the soldiers who did it were just obeying orders.

Well, actually, we have. Sooooo . . . OK, what are you really arguing here, Dianne? Help me out. That the Germans really were, by and large, "fooled" by Hitler? Because I don't think history bears that out.

TH, if you think I'm trying to be witty, try re-reading.

And I suspect some people here would pull a quick 180 on some of their comments if we replaced Nazism with some other "-ism." We all think HUAC was doing the right thing, right? And we all favor banning the speech of imams who preach political violence and hatred?

[WDT]

You are welcome, TH, I noticed your struggle to express your thoughts, as I am a native German speaker as well. Thusly, I did get the gist of it. And resultantly, I crossposted, which I commonly do not do.
One of the modus operandi of the ultra-right to mock the "weakness" of democracy. I might want to say, one of the big differences between the old and new world is, that Europe overall has an understanding that words do have meaning!
The US center-left (there is no "Left" in the US worth speaking of -none whatsoever) only in this last week started waking up to realize, that there is no compromise, bi-partisanship nor ever any satisfaction with the wingnuts, x-tian fanatics and corrupt cronies! Give 'em a finger, they take your arm!
Obsidian Wings and Brad DeLong have not read Hunter S. Thompson to the degree of understanding under what threat democracy has fallen at this point. Either you join the resistance, or there won't be anyone left to protest when they come for you in the middle of the night.

[WDT]

Phil, you are a fool. Sorry, can't comment any different on that.

[Kevin]

Any abridgement of free speech worries me, but this is the one exception I am so far willing to make.
I respect how hard Germany and Austria have worked to atone for what they did. I don't know any other case of any nation this willing.
If they decide to surrender this part of their own freedom of speech as part of that atonement, I respect that.

[Detlef]

Christian,

Just an addendum to your post.
The basic wording before was more broad, dealing with incitement to hatred against ethnic groups etc.

"The basic wording" from the 1960 law is still there in German law. Meaning that public acts (like speeches, publishing pictures or books) trying to incite hatred and/or violence against "one part of the population" (a group defined by their religion, race, nationality) is still punishable.

The special clause against trying to deny the Nazi crimes against humanity was added in 1994 as you said.

IIRC a majority of judges in the German "Bundesverfassungsgericht" (Supreme Court) later in 1994 decided that a law designed to "punish" Holocaust denial didn´t violate the German constitution and the basic law of "freedom of expression". Because "simply denying something that was proven beyond a doubt to have happened didn´t add anything to the public discussion".

So you could write a book saying that according to your research the number of victims should be X instead of Y.
(Since that adds something to the debate. And IIRC such research happened concerning the total numbers of victims of the Auschwitz concentration camp for example.)
Writing a book saying that the gas chambers were simply showers and nobody died however are simply wrong. Not scientific research but simply a try to rewrite history.
And given the German history, thus not protected by "freedom of expression".

-----

For all the Americans here, the German "Weimar Republic" (1918-1933) didn´t have such laws. It had freedom of expression even for political parties trying to destroy the republic. We all know how that ended. So we don´t have the confidence of a 200 year republic.

Personally I don´t know if these laws are really needed in Germany today. I don´t think a majority of Germans would suddenly support right-wing/Neo-Nazi parties if we abolished those laws.

I think it´s more a combination of
- trying to suppress even the beginnings of such a party
(see the reasons above).
- and a desire to avoid the bad publicity if we didn´t have the laws.
As in, we don´t want to see headlines in the NYT or WaPo reporting about "Look, look, the new German Nazi danger".

[Slartibartfast]

WDT, if you're going to comment here, please take the time to read the posting rules. What you just did is outside of the rules.

Thanks,

The management.

[Anderson]

Phil, you are a fool. Sorry, can't comment any different on that.

WDT, ObWi has its own speech codes ....

[Paul]

OK, what are you really arguing here

Phil, really, I still can't tell what you're arguing here, other than that you once took affront to foolish comments made by some Germans you knew. You resent being lectured by Germans and Austrians on this topic, but you seem very willing to lecture them.

I don't favor the adoption of speech-codes or legislation against Nazi theatrics in this country; and maybe such legislation is a bad thing in Europe, too. But I'm willing to give the citizens of countries with the experience of Nazism the benefit of the doubt that such laws are desirable; at least until I'm convinced that they are an egregious injustice. I don't regard Irving's conviction as such an injustice.

[Dianne]

Phil: What defense did US soldiers use when they were accused of war crimes in the Viet Nam war? That they were just following orders. The same excuse is being recycled in Afghanistan and Iraq. And I've heard people in the US repeatedly express suprise when new instances of abuse come out: I've heard people repeatedly say that they didn't know about torture in Iraq or innocent people being held in Guantanamo, etc. Gee, don't you remember when you heard it last week...I feel like I'm living in Oceania some days.

What I've never heard, even though I lived in Germany for 2 1/2 years and what my partner (who is of Jewish descent) says he's never heard, even after living in Germany for over 5 years, is any German excusing the Holocaust on the "we didn't know" grounds. I've also read history books used in German middle schools. They talk about how Hitler came to power and give the background reasons but they never deny that the central guilt belongs to the people who did nothing to stop Hitler and even helped him in his genocidal acts. I've never read any acknowledgement of guilt for the genocide of the Native American population, use of the atomic bomb on two cities (both essentially non-military), the massacres of civilians in Korea and Viet Nam, etc. in a US-American textbook. That's just my experience. YMMV.

[Dianne]

"As in, we don´t want to see headlines in the NYT or WaPo reporting about "Look, look, the new German Nazi danger"."

But you're going to see those, law or no law. Because the US loves the Nazi era. It makes them feel so warm and cozy to think about how at one time they could kill hundreds of thousands of civilians in a single night and still feel good about themselves in the morning because, just this once, their enemy really was evil. (Well, their government really was evil...I've never been able to figure out how that translated into it being ok to bomb Dresden and Hamburg, but apparently it does. Because that was the "Greatest Generation" and they could do no wrong.) Really, I think the US would like nothing more than for Germany to go facist so they could feel morally superior to it again. Instead of being lectured by Germans about how first strike wars aren't necessarily a good thing.

Sorry, this topic is making me snarky. I'll go away and do something useful now.

[Paul]

I've never read any acknowledgement of guilt for the genocide of the Native American population, use of the atomic bomb on two cities (both essentially non-military), the massacres of civilians in Korea and Viet Nam, etc. in a US-American textbook.

Hmm. Nothing like a round or two of "Dueling Genocides" to angry up the blood.

[Christian]

Detlef,
you are of course right, my wording was a bit misleading. It was just trying to say that an addition to the relevant article (§130) had been made not so long ago, making it clearer (I guess) how to deal with things like the "Ausschwitz lie".
Also fun fact: Originally, this article dealt with the "incitement to class warfare".

I agree with you that the abolishment of this laws wouldn't automatically lead to increased support for Neo-Nazi parties.
But there might be the need to engage them more them directly. Think of the NPD and it's success in local elections for example.

At some point they might indeed be able to build something of a larger voter base, and do not need to rely on "protest-votes".

Just addressing the issues they're supposed to gain their votes from (you know the usual, unemployment etc. though I think there's much more to it) and not trying to give them a platform in the media and such might not be enough in the long run.

[M. Scott Eiland]

Unless someone had a gun to Irving's head and forced him to visit a country that had evidenced a strong interest in prosecuting him unaccompanied with any ability to extradite him, I'd be inclined to file this case under "self-inflicted incarceration," and join the chorus of those who suggest that it couldn't have happened to a nicer guy. Basically, it's a similar reaction to the one I have when hearing that someone has been sentenced to death for smuggling drugs in Malaysia--everyone should pretty well be on notice by now that getting caught smuggling drugs in Malaysia will win you an appointment with a noose. Irving deseves sympathy far less than one of those poor foolish souls, but it's the same sort of thing.

[liberal japonicus]

Plus the fact that he was travelling to Austria to address a (presumably right-wing) student group. Though it would have been nicer if they could have let him speak and then arrested him as he was leaving the country.

[Anarch]

Leonidas: It doesn't matter if you're Al Gore or David Irving. Both should be prosecuted.

I missed this the first time through, but on what possible grounds could David Irving be prosecuted for sedition? That's just dumb.

Phil: I was actually thinking about other "ism" examples earlier this afternoon and I have to say that while I might not support them, I could definitely respect Russia, say, putting a ban on the propagandizing of Communism or preventing "purge-deniers" from promulgating their beliefs.

The key aspect to me is that the existence of the rights for the weak -- whether the individual or a group like Jews or kulaks that lack numbers, materiel, etc. -- is contingent upon the acceptance of those rights by the strong, or at least acceptance of the legitimacy of the institutions which safeguard those rights. But this majority acceptance cannot simply be taken for granted; there have been times and places where a particular idea (a meme, if you will) took root and caused the powerful to lose all respect for those institutions and those rights, and it seems prudent to at least consider whether those ideas, in those places, should be prohibited. I like to think of these ideas as being something like a memetic pathogen, ideas so terrible and transformative that their expression can fundamentally destroy the very environment which allowed them to be expressed.

Thus, for example, I have no problem defending the right to free speech of Nazis or Stalinists here in America -- loathesome though I may find them -- because we've never fallen prey to either memetic plague; but I can see real merit in preventing Nazis in Germany, or Stalinists in Russia, from propagandizing because we know that those countries have fallen victim to those ideologies in the past and could well do so in the future. [I could likewise see China criminalizing the promotion of Maoism, or Iraq the cult of Saddam, for much the same reasons.] I'm not saying I find such prohibitions persuasive, mind, just that I see merit there where I genuinely don't in the US (or most of the Anglosphere, actually).

This is purely ad hoc and I have no particular reason to regard this is an ideological stance of mine, if you were wondering. If anything, it's realpolitik interfering with my ideological stances... which is, to me, sort of the point: free speech may look good on paper, but in the limit -- and I do mean, the limit -- it's not at all clear to me that it remains so.

[Katherine]

long winded alert:

I'm a little surprised to see so many people here support this prosecution. I thought there was an emerging consensus in favor of hate crimes laws and opposed to hate speech laws--apparently I have once again totally overestimated how popular my own views are.

Here's my favorite quote (dated references to "orientals" aside) on the subject of hate speech laws, from Justice Douglas's dissent in Beauharnais v. Illinois:

"The Court in this and in other cases places speech under an expanding legislative control. Today a white man stands convicted for protesting in unseemly language against our decisions invalidating restrictive covenants. Tomorrow a Negro will be haled before a court for denouncing lynch law in heated terms. Farm laborers in the West who compete with field hands drifting up from Mexico; whites who feel the pressure of orientals; a minority which finds employment going to members of the dominant religious group - all of these are caught in the mesh of today's decision. Debate and argument even in the courtroom are not always calm and dispassionate. Emotions sway speakers and audiences alike. Intemperate speech is a distinctive characteristic of man. Hotheads blow off and release destructive energy in the process. They shout and rave, exaggerating weaknesses, magnifying error, viewing with alarm. So it has been from the beginning; and so it will be throughout time. The Framers of the Constitution knew human nature as well as we do. They too had lived in dangerous days; they too knew the suffocating influence of orthodoxy and standardized thought. They weighed the compulsions for restrained speech and thought against the abuses of liberty. They chose liberty. That should be our choice today no matter how distasteful to us the pamphlet of Beauharnais may be. It is true that this is only one decision which may later be distinguished or confined to narrow limits. But it represents a philosophy at war with the First Amendment - a constitutional interpretation which puts free speech under the legislative thumb. It reflects an influence moving ever deeper into our society. It is notice to the legislatures that they have the power to control unpopular blocs. It is a warning to every minority that when the Constitution guarantees free speech it does not mean what it says."

The founders, one might say, lived before the Holocaust. But I think anyone who believes that hate speech laws prevent genocide is kidding themselves. They will only pass in countries that don't need them--where there is no danger or it's much too late.

If ideas are unpopular enough that the public supports sending people to jail for them, there's no danger that those people are going to be voted into power. If people who hold these ideas are popular enough to present a serious threat of taking power, they're more than popular enough to avoid jail time. Inciting hatred of Jews is banned in Germany in 2005--not 1939, 1933 or 1928. In 2006, holocaust denial is a crime in Austria, where it's a lunatic fringe position. It's not a crime in Iran, where the President is a holocaust denier. The Iranian government criminalizes--and tortures people for--other speech.

I mean, think about it: what kind of speech would you be most okay with criminalizing? I bet it's a really unpopular idea. And it's not because only unpopular ideas are repugnant and immoral--many are, but not all of them, especially these days--but if you support criminalizing widely held, immoral ideas, you support clapping a healthy % of your political opponents into prison. I hope that makes everyone here blanch. But if it's wrong to jail people for repugnant ideas, it's wrong to jail people for repugnant ideas.

Of course, lunatic fringes can still be dangerous. It's not speech alone that makes them dangerous, though. It's violence, conspiracy to violence, or incitement to violence--and I'm talking about incitement under the Brandenburg v. Ohio test, just to be clear. There are other laws to deal with that.

And (as someone who has a pathological need to feel like she's right more than a pathological need to win) I resent thinking that this horrible person has been treated unjustly. I don't want to be on his side even a little. As if we needed jail to deal with this pathetic, sick liar and his pathetic, sick lies.

There's a Jefferson quote that's relevant: "It is error alone which needs the support of government. Truth can stand by itself." I think it's actually an exagerration. I don't think the truth can stand by itself. It needs people to stand up for it. I'm in favor of paying the BBC and NPR and PBS to stand for it, and a vigorous FCC, and all the rest.

But it does not need governments to threaten people with years in prison for denying it. That's the last thing it needs. Government who throw people in jail for what they say or think have a pretty freaking lousy track record as defenders of truth and preventers of genocide and human rights violations.

Don't get me wrong--I don't think this slope is likely to be all that slippery, necessarily. The U.S. didn't have a really robust First Amendment jurisprudence until the Warren Court, and the Republic survived. European governments have never committed to free speech as fully as us, and they've functioned pretty well as democracies. In some ways, some of them function a lot better. In some ways.

But why go down this road at all? Some powers, governments just plain cannot be trusted with. You can tell yourself you're only making a tiny exception for an evil terrorist with a ticking time bomb, or a holocaust denier, or someone horrible who really deserves it. There are always calls to expand it soon enough, and now you no longer have the argument that these are things your government is simply not allowed to do to anyone. You're left "just haggling over the price", as the punchline goes--arguing over how much the government gets to do this, how often, to what people.

[M. Scott Eiland]

I'm a little surprised to see so many people here support this prosecution. I thought there was an emerging consensus in favor of hate crimes laws and opposed to hate speech laws--apparently I have once again totally overestimated how popular my own views are.

If the prosecution had happened in the United States, I'd have opposed it (and the First Amendment would have probably prevented it from happening in the first place). If Austria had sought to extradite Irving, I'd have opposed US cooperation with the order. However, since he went to Austria of his own free will, presumably knowing that he was sought for violations of Austrian law regarding Holocaust denial, I have a hard time feeling sorry for the guy. Particularly considering that he's, well, a Holocaust denier. Given that I wasn't the one who chose to prosecute the guy, I can live with having that possibly somewhat discordant set of attitudes within my brain.

[Katherine]

Here's a better argument than mine, from Glenn Greenwald.

[Jesurgislac]

Katherine: I'm a little surprised to see so many people here support this prosecution. I thought there was an emerging consensus in favor of hate crimes laws and opposed to hate speech laws--apparently I have once again totally overestimated how popular my own views are.

The ninth commandment is "Thou shalt not bear false witness against thy neighbour."

Both David Irving, who claims the Holocaust never happened, and Scott McLellan, who claims he has never heard of any allegation of the US sending people to Syria, are telling a peculiarly pernicious kind of lie. You nonetheless feel that it would be wrong to send Scott McLellan - or anyone else - to jail for claiming that they knew nothing at all about sending innocent people to be tortured - even if it could be proved that in fact McLellan and others did know? At what point, in your view, do lies cease to be free speech which ought to be protected, and become, well, criminal lies? Or do they ever? Will you support President Bush's right to lie about prisoners in Guantanamo Bay?

[CaseyL]

Austria's and Germany's laws against Holocaust denial are a reaction to the fact that the Holocaust was their doing. Not a guilt gesture, I think, so much as a determination not to whitewash that bit of history. Not merely to ensure historical honesty, but also as a political prophylaxis: to prevent rightwing politicos from denying or minimizing the Holocaust in order to sell race hatred as a governing philosophy.

I don't know if German neo-fascists use denial or minimization as part of their race-baiting rhetoric, but other fascists in other countries certainly do. Holocaust denial is a big part of Arab rhetoric, and of America's various Nazi/fascist organizations. So we can't say no one anywhere tries to pull that crap - and it's impossible to know if the reason no one in Austria or Germany tries to pull that crap is because there's a law against it, and the law is enforced.

I'm not defending Irving's sentencing; I'm just opining on why the law exists and why it's enforced. If it happened in a US court, I'd be outraged. But it didn't: it happened in Austria, where Austria's laws apply. I tend to think other countries' laws are their business, unless they're barbaric.

[Katherine]

Jes--yes, of course they are telling pernicious lies. Do you think I don't know that?

What do you mean by "right to lie"? If you are asking whether I support sending White House press secretaries to jail for lying during press conferences? The answer is no. Presidents for lying during speeches? No. What sort of lies should be punishable by imprisonment? Well, there are some sorts of lies that are federal crimes--perjury, obstruction of justice, fraud, that sort of thing. There are also lies that are contempt of court.

But do I support a blanket criminal prohibition on lying, or on lies about specific topics where the dishonesty is especially reprehensible or damaging? No.

Also, McClellan's lie during his press conference was not a crime under federal law at the time, so that would be an ex post facto law. Also unconstitutional.

Based on this and your comments during the spy thread, you seem to neither understand nor respect the First Amendment, Jes--certainly not as it's now understood by the U.S. Supreme Court. (There was a time when the Supreme Court misused the "fire in a crowded theater" analogy as badly as you did the other weak, but that time is past. This is one area where the current liberals and conservatives on the Court tend to see eye to eye, but it was to a great extent the liberals who led the way here: Brandeis, Jackson, Douglas, Black, Brennan...)

Which is understandable, I guess. Your country doesn't have a First Amendment. You guys seem to do surprisingly well without it, too--your press corps seems a lot better than ours to me, though perhaps the grass is greener. But my country does have one, and I'm pretty attached to it. We're not going to see eye to eye on this one, ever.

[Katherine]

by "other weak" I meant "other week."

by "spy thread" I meant "cartoon thread". Don't ask me where that one came from. I think this is a sign I need to go watch figure skating, since my brain's not functioning anyway.

[Anarch]

But I think anyone who believes that hate speech laws prevent genocide is kidding themselves. They will only pass in countries that don't need them--where there is no danger or it's much too late.

The horrible truth is: it's never too late. There's always, potentially, a next time.

If ideas are unpopular enough that the public supports sending people to jail for them, there's no danger that those people are going to be voted into power.

Yes -- but the point, as noted by CaseyL, is that it's (potentially) a prophylactic against them becoming powerful. Among other things, it can help reinforce the notion that such ideas are dangerous, morally bankrupt, and to be shunned by any right-thinking or decent individual; and that kind of societally-internalized value system can be invaluable in preventing their spread -- in particular, to their attaining the kind of popularity that could prevent the prosecution. It's a self-stablizing system, at least in theory.

I mean, think about it: what kind of speech would you be most okay with criminalizing? I bet it's a really unpopular idea.

Phrased as a comparative, demogoguery aimed at whitewashing, revitalizing or propagandizing a political or sociopolitical ideology that had previously committed crimes against humanity -- by which I really do mean mass slaughter, not just the lesser evils of, say, slavery or wars of conquest -- on a mass scale in the culture in question. I'm not okay with it at all -- I've primarily been playing Devil's Advocate here -- but I see the point of these restrictions. Anything else, not so much.

[Anarch]

Actually, scratch "revitalizing" above and replace it with "rehabilitating". One can revitalize an ideology by fundamentally transforming it -- consider the differences between, say, the Christianity of the Renaissance, the Muscular Christianity of the British Empire, the modern American evangelical fundamentalist movement and the progressive theology of Martin Luther King Jr, each of which could be considered a "revitalization" of the various Christianities proceeding it -- and I really do mean the act of keeping the ideology fundamentally the same, just giving it a fancy new haircut (so to speak).

[WDT]

Firstly, I apologize for my ad hominy use of the "f" word above.

Secondly, regarding "Austria's and Germany's laws against Holocaust denial are a reaction to the fact that the Holocaust was their doing" -no, that is not the reason why.
The reason is, over there Holocaust denial is used by the ultra-right as CODE language, to very factually incite violence or the impeding threat thereof.

Just imagine if Ice T in the '80 would not have been forced to pull the song "Cop Killer" off the market in the US.
Imagine, that song then had become a non-stop anthem in many a neighborhoods in the US where the citizens felt, that they don't get their fair share out of the American Dream, and that the judicial system in the US was not treating them fairly.
Imagine, if then a non-stop wave of indiscriminate Police Officer shootings would have followed, seemingly random, all over the US.
Imagine, it would have done so to the point, that the semblance of a nation under the rule of law would have crumbled in vast or even all parts of the US.

Imagine, if that all had happened in the US, and after a hard, long struggle and great losses civilization was finally reestablished - imagine that AFTER all that had happened, and somebody wanted to establish a radio station network, dedicated to broadcasting the song "Cop Killer" 24/7 @365 nationwide, would there be a majority wondering whether that should be protected speech?

Indeed, this did not happen in the US - Ice T pulled the song "Cop Killer" off the market, and it was not widely broadcast.

But Austria and Germany have been through something much more horrific than a wave of Police Officer mass murder.

And because of their specific situation and history, they cannot function as democratic states without legal means to interfere when the language of hate is used to rally, incite, and intimidate.
Words sometimes have meaning.
Nobody ever did, nor ever will be arrested for simply drunken lulling in a bar : "I don't really believe all of that Holocaust stuff".

Nazis are not all dumb. Sociopaths can be extremely intelligent even. It only takes the will to be ruthless and callous to open the floodgates of hell.
The US, with it's admirable virtues and wonderful Constitution is simply in a different socio-political and historical stage.

One day, Germany and Austria will be able to allow any right wing, incendiary CODE hate speech. But that day has not come yet.
Immigrants come to the USA because of it's freedom of speech.
Immigrants don't come to Germany and Austria, if they don't see themselves protected from racist Code hate speech.

[Sebastian Holsclaw]

"The horrible truth is: it's never too late. There's always, potentially, a next time."

Darfur suggests that we don't have to lie to allow genocide to continue. We just have to ignore.

[Katherine]

1. It's too late to prevent the genocide that already happen. The next one, I would say is extremely unlikely in countries passing hate speech laws.

2. Why only genocide and not slavery or sufficient amounts of torture or rape? If it's useful to criminalize denial of and rehabilitation of ideologies that promoted some gross human rights violations why not others? Isn't the omission of slavery and wars of conquest arguably special pleading to avoid applying this to America, England, etc.? It's a line, but it's not a very defensible or principled line. An arbitrary limit is better than no limit at all, but it leaves you open to charges of hypocrisy--witness the Danish carton meshugas. A lot of European countries can't just say "free speech, full stop," honestly. Might come in handy.

2. Define "rehabilitating" with examples. It seems as precise and helpful as "glorifying".

3. Why is this so past-oriented? Do you believe some countries are particularly prone to genocides of particular types of people? Isn't it equally plausible that the next mass slaughter would be the former victims killing the perpetrators, in which case this sort of law might be made into an asset? Isn't it even more plausible that the next genocide will arrive elsewhere?

4. Have you looked into how the Kagame regime in Rwanda throws the "promoting genocidal ideology" charge around to silence its political opponents--including human rights groups? Despite this, or perhaps partly because of it, denial of the genocide is widespread in Rwanda. I realize you support these laws being used against actual deniers of genocide, not being abused by dictatorships, but restrictions on free speech are prone to abuse. Democracies that can be trusted not to be abuse them can generally be trusted not to commit genocide.

5. From my point of view, you trade in a good safety valve--free speech--for a far more doubtful one. And what does all this accomplish that, say, a decent elementary school curriculum for public schools and regulations on how a subject was taught in private schools getting state funding does not? Or trials of the actual perpetrators of these crimes? Or a truth comission? I guess these things are not mutually exclusive, but it's not as if there aren't other ways.

I mean, whatever, it's not my country--I've got plenty to worry about the future of democracy in America without getting into Austria. But I just cannot get behind the European/Canadian consensus on free speech, or the general constitutional approach in many of those countries that there are no rights that can't be balanced away.

[Katherine]

Just so everyone knows what "Brandenburg" is--I'm referring to the seminal incitement case in the US, Brandenburg v. Ohio, involved the KKK, in 1969.

Here's the key holding of Brandenburg--very short:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

[WDT]

Katherine, and I don't disagree with Brandenburg.
After all, the last public lynchings in the south were in the mid '60, the KKK was on the decline at the time of the finding.

But, there is active racial violence and hatred, even murder in Austria and Germany today.

If the KKK would have been on the up and up in 1969, Brandenburg might have been found different too.
Not that it should have.
Nonetheless, I am just saying that the context of Brandenburg is not thusly transferable to Austria right now.

[bob mcmanus]

American Political Values

Good enough to link again.

I think the Greenwald article supports my thesis or position that it is not the law itself that protects us, but the broad political consensus as to common values. The Constitution itself is not even the meta-law. "Respect for the law" is in a way an attack on the foundations of the law, a weakening of freedom's supports.

[liberal japonicus]

I'm not too excited about telling Austrians what they should do in regards to this. I do worry (and this shouldn't be taken as an attack on anyone here) that the prosecution of Irving may lead Austrians to think that Nazism is under control (or worse, that the problem is foreigners bringing these ideas in) rather than viewing it as a constant challenge. I stress that I don't think this is a problem for one country, as I think every country has its skeletons. I'd also point out that my point is undercut by the reference TH makes to John Gudenus. This article says that the prosecution was stopped, but the wikipedia suggests it was restarted.

Also, Katherine, I'd ask you the same question that I'd ask Bob: are civil penalties included in punishment or would you allow them because it is not the state that is going after someone but an individual (again, I realize that Irving went into bankruptcy not because he was sued, but because he sued)

[liberal japonicus]

I see there was a number of comments after I composed mine and went off. apologies if it comes off a bit non-sequiturlich (suffix for our German speaking friends here)

The Greenwald link is good, but I still disagree for a number of more emotional reasons. The first is that after Iraq, I am a hell of a lot more respecting of national borders. Full stop. I think TH's first point about Americans telling Austrians how to run their country is spot on in that regard, regardless what one's personal opinions are.

The second is that if Irving doesn't want to get thrown in jail, he shouldn't have gone back into Austria. And if he does get caught, he doesn't go walking in the court clutching his book _Hitler's Law_ and declaiming that Austrian law 'is a ass'. I say again 'ha ha'.

The last is that it is precisely the elision of US values to "Western" values that gets the US in so much trouble in the first place. Greenwald, to his credit, is very careful (note that Greenwald titles his piece _Are there American political values that transcend ideology?_) I agree that this may be a lot more fundamental than social welfare or flex-time or any of these other things that we find they do differently there, but complaints about it violating Western values seem to take us down the road of thinking that we can impose our will on other nations. I can understand making it a bedrock principle, and I can go along with it here, but when it becomes implied criticism for some European consensus, I have to disagree. Respectfully of course ;^)

[WDT]

Dear Liberal Japonicus.

Firstly, Greenwald is a genius, I admire his views and eloquence greatly.

Secondly, Austria is in no danger to think that Nazism is "under control" - quite contrary, it is its clear and immanent danger that causes these restriction of freedom of speech. I have tried to make clear that it is not only speech issues that we are dealing with in this case - it's a very blurry line, to where speech ends and violence starts, IMHO. I see David Irving and his cause in the very darkest shades of grey, if indeed he is still in a grey zone.

I have lived in Austria, Germany, the US and now in Canada. I have views and insights into the ultra-right wing, it's tactics and aims.
I can say little about how Rwanda is using freedom of speech issues to repress or endorse whatever causes. I do know that many hundred thousands died there because of inaction and disinterest.

[bob mcmanus]

"would you allow them because it is not the state that is going after someone but an individual"

Exactly. My instant response is that I recognize no limits to the right to sue; I could try to sue you for your comment.

I am very ignorant as to civil law; I presume I would have to show damages before a judge or magistrate even started a proceeding. And there is a danger of the rich and powerful(or majorities) using the civil courts to suppress and intimidate.

But judges can be elected and subject to a variety of pressures and juries can surprise and I would rather take my chances for justice there.

[bob mcmanus]

I decided I was hopelessly ignorant and thoughtless in my 12:44 comment and need to go look up "Civil Law" at Wikipedia or something.

[Anarch]

1. It's too late to prevent the genocide that already happen. The next one, I would say is extremely unlikely in countries passing hate speech laws.

Agreed.

2. Why only genocide and not slavery or sufficient amounts of torture or rape?

Why not?

As I said previously, this is ad hoc and that's where I'm drawing the line. I'm drawing it with such precision partly because I think the virtues of a clear line outweigh the demerits of its arbitrariness; and partly because that's where it feels "right" to me, for reasons far too nebulous to warrant putting on the page.

Isn't the omission of slavery and wars of conquest arguably special pleading to avoid applying this to America, England, etc.?

No -- it's because almost every (major?) nation dabbled in one or the other at some point in time, often both, so such a restriction becomes essentially worthless in application. The restriction on "wars of conquest", in particular, would render most of European history... rather strange. You could certainly draw the line elsewhere, of course, so YMMV.

2. Define "rehabilitating" with examples. It seems as precise and helpful as "glorifying".

I can't offhand since I don't have the relevant references, but the genre of things I'm looking at: the resurgence/reemergence of Stalinists in the 1990s, Neo-Nazi rallies invoking e.g. Speer or Himmler, that sort of thing.

And incidentally: the descriptors aren't meant to be either "precise" or "helpful" in a legalistic sense. [Any more than "cruel and unusual" or "general Welfare" are precise or helpful.] They are, like a lot of things I've read in this regard, intended to be descriptive of the kinds of behaviors to be proscribed, subject to the interpretations of those applying them; but mainly, they're not particularly precise of helpful because I'm making this up as I go along. See above re Devil's Advocate.

3. Why is this so past-oriented? Do you believe some countries are particularly prone to genocides of particular types of people?

I believe that once a country -- really, a culture, but I'm letting the country stand in as a proxy for same -- has gone down that path once, there will be those who will want to return to the glory days of old. Unlike new, emergent ideologies, which are an unknown -- and therefore, IMO, should be given the benefit of the doubt qua speech, although not qua activities -- these ideologies are known, with known destructive effects, and I think it's not unreasonable to seek to curtail them.

[Don't get me wrong, I'd like for there to be a magic test that will discern these Destructive Ideologies(tm) from regular, everyday hateful bigotry or whatever, but absent that...]

Isn't it equally plausible that the next mass slaughter would be the former victims killing the perpetrators, in which case this sort of law might be made into an asset? Isn't it even more plausible that the next genocide will arrive elsewhere?

Possibly, and yes. Que sera.

4. Have you looked into how the Kagame regime in Rwanda throws the "promoting genocidal ideology" charge around to silence its political opponents--including human rights groups?

Not recently, but I'm familiar with the concept, yes.

Despite this, or perhaps partly because of it, denial of the genocide is widespread in Rwanda. I realize you support these laws being used against actual deniers of genocide, not being abused by dictatorships, but restrictions on free speech are prone to abuse.

Well, yes.

Democracies that can be trusted not to be abuse them can generally be trusted not to commit genocide.

The number of states that have committed genocide (in the sense I'm referring to) is pretty damn small; of them, only one could properly be described as a democracy (Weimar, in the sense that Nazi Germany was something of a parasitic overgrowth of the democratic apparatus there) and only a few more might qualify loosely (pre-Menshevik Russia and Chiang Kai-Shek's China are the only ones that come to mind). So I'm not sure that your statement has any particular force here, since so few states ever commit genocide.

5. From my point of view, you trade in a good safety valve--free speech--for a far more doubtful one.

Safety valve? I thought you were defending this as a right, not as a pressure control.

To that end, I agree that unlimited free speech is generally a better safety valve than the carefully curtailed version of free speech I'm talking about -- hence my ambivalence, hence the Devil's Advocate, etc. -- but again, I'm not convinced that unlimited free speech is itself a good thing in the limit. Maybe you can draw a clear line between speech and incitement that somehow allows the former without the latter ever becoming legitimized by a sufficiently powerful group; what I am fairly sure about is that there are certain ideologies which, in their promulgation, so radically transform the environment as to destroy the laws we have to prevent their further spread. The cure may well be worse than the disease, I don't know -- in fact, I tend to think it might be in general -- but it's something I've thought a fair bit about and I'm not convinced that there's an easy answer either way.

I mean, whatever, it's not my country...

Nor mine. So we both have the luxury of idealism... which is somewhat my point.

[Katherine]

well, I'm not even a little bit convinced. What can I say. Devil's advocate arguments where you have to keep going "I'm just playing devil's advocate" don't actually work that well. It's a quite arbitrary line, and yes you can draw it there, but the point is that once you move the line there, it's hard to have a leg to stand on when you tell people not to move it further.

I really despise, for reasons you could guess, the idea that basic human and civil rights are a "luxury." And the idea that Europe today is comparable to the Weimar era is comical. These laws are multiplying as the need for them declines.

[Jesurgislac]

Katherine, whenever I find myself on the other side of an argument from you, I always want to take a very long hard look at where I am and think about what I'm arguing for. Being on a different side makes me as uncomfortable as disagreeing with Jeanne D'Arc (which I have done, though only, as I recall, over the importance of algebra).

[liberal japonicus]

I'm impressed (and a little bit intimidated) by Katherine's full throated defense of free speech. But I hope she won't mind if I explore this just a bit further. The first question do the 'basic human and civil rights' constitute an indivisible block? I think that we can rank them and when we look at the Irving case, we can see that it is possible to argue for some of the kind of laws that Austria has in place. I'm not asking you to accept that, I'm just asking you if you could accept that someone could argue from that position in good faith.

The second is that when we look at the history not of free speech, but the notion of sedition, we can see that the US has not had such a long time to argue that free speech is the end all be all. I'm not defending the 1940 Smith Act and how it was used to prosecute communist party leaders, but given that Germany and Austria suffered from something much worse than was ever experienced in the US, your position seems a bit aggressive.

[Sebastian Holsclaw]

"I think that we can rank them and when we look at the Irving case, we can see that it is possible to argue for some of the kind of laws that Austria has in place."

Of course all rights end up weighing against each other in tough cases. Which right do you think is weighing against the right to free speech here?

[Gromit]

I wholeheartedly endorse everything Katherine has said on this thread. I, too, am pretty taken aback at the defense such speech restrictions are finding here. Of course I respect sovereignty, as far as that goes, but there's quite a bit of distance between respecting sovereignty and refraining from criticizing the policies of other nations.

I can't really add anything to Katherine's argument; it is far more developed than anything I would ever come up with. But there is one other point I think is important to make:

I am disturbed by the special status afforded Nazism in this, and other, discussions. It certainly ranks high among the most intensely murderous ideologies of the 20th century, and perhaps of all time, but we are kidding ourselves if we think it is unique, and I feel like we are continually walling it off in a special compartment, where Nazism is "Pure Evil" and everything else is more complicated and nuanced. But, as Katherine says, and as we have clearly seen over the decades since the defeat of Nazi Germany, the next genocide will almost certainly come from somewhere else entirely, and will do so under an entirely different name. I worry that making the Nazi ideology literally unspeakable from a legal standpoint affords undue legitimacy to other potentially murderous ideas. Part of the what makes freedom of speech critical, in my view, is that when you define one idea as officially unacceptable, you are more or less implicitly tolerating everything else. Or, at the very least, you are simply defining a radar ceiling below which folks need to fly to get their eliminationist rhetoric out without facing public sanction.

I would also add, given our history with the American Indians, that a law against rehabilitating genocide in the U.S. might effectively ban a good chunk of American literature, art, and cinema. But that all depends on what you consider genocide vs. ethnic cleansing, I guess.

[liberal japonicus]

Which right do you think is weighing against the right to free speech here?

I tried to avoid suggesting that I was weighing one right against another, just that you can rank rights, so when Katherine says 'basic human and civil rights', I wonder if that is a basic unitary set (which, if we could get some worldwide consensus, would be a good thing) or, in an absence of a consensus, that some nations/societies have the ability to consider some of those rights, at least in cases like this, as bending to other principles. I believe that you have argued on several occasions that the set of rights granted to American citizens is larger than the set of rights granted to non-citizens. That being the case, what do you feel are the 'basic human and civil rights'?

[Sebastian Holsclaw]

"That being the case, what do you feel are the 'basic human and civil rights'?"

That is a large question. Whatever the set, it includes free speech. The US limitations on free speech tend to be tied to things like not getting trampled to death as people immediately try to exit a crowded theater.

When a right is limited, it is usually limited by the need to respect another highly important right.

Which highly important right, or concern if you will, is implicated here? What is so important about it that it ought to limit speech??

[Donald Johnson]

Whether the US ever suffered something as bad as what happened in Nazi Germany depends on your POV and how you rate crimes against humanity against each other. Such rating scales aren't worthwhile, IMO. I think if you outlaw Holocaust denial in Austria, than you should outlaw the kinds of propaganda the KKK might put out about slavery, or at least you should if you thought the danger of a KKK takeover were comparable to the danger of a Nazi takeover in Austria. (Something I know little about.)

I'm not completely sure where I stand here, except that I don't like arbitrary lines being drawn.