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GROWING CALL TO STRIKE DOWN ANTI-FREE SPEECH AND ANTI-HISTORICAL ENQUIRY LAWS
 

Alistair McConnachie writes (Posted: 20 Feb 2006): On the 20th February 2006, David Irving, the controversial British historian, was sentenced to 3 years in prison in Austria for "denying the existence of the holocaust of European Jewry". He had disputed the existence of execution gas chambers in Auschwitz, in a speech 17 years previously.

The "Holocaust" is the name given to the trauma which afflicted the Jewish people, from the period of Hitler's rise to power in Germany to the end of WW2.

This aspect of Jewish history, like any history, is open to anybody to investigate and to debate. In that sense, there is nothing special about the "Holocaust".

Yet, those who try to debate certain aspects of "Holocaust" history -- such as the existence of execution gas chambers -- are usually slandered as "Holocaust Deniers" and in several European countries they can be convicted and jailed.

However, labelling someone a "denier" of the "Holocaust" because he debates an aspect of the period known as the "Holocaust", is as illogical and absurd as labelling someone an "Inquisition Denier" or a "Renaissance Denier" or an "Enlightenment Denier" because he debates an aspect of the "Inquisition" or the "Renaissance" or the "Enlightenment".

Let's be clear. Whether David Irving is right or wrong in his beliefs on the matter of Jewish history known as the "Holocaust", is not the issue.

What is at issue -- what is central -- is Irving's absolute right to raise these matters for historical investigation and debate. What is absolutely central is the right of us all to enquire, to concur, to dispute, to debate, to learn and to know about any matter, without being restricted by the power of the law.

The "Holocaust", like any other matter of history, is a topic that should be up for debate, not down for a prison sentence!

Thankfully -- as the following two articles indicate -- there is growing opinion in academia and journalism, calling to strike down those laws which prevent us fully debating, and knowing, "Holocaust" history.

Ronald Dworkin
Even bigots and Holocaust deniers
must have their say
The Guardian
Tuesday February 14, 2006
The British media were right not to publish the Danish cartoons, but that doesn't mean freedom of speech should have limits

The British media were right, on balance, not to republish the Danish cartoons that millions of furious Muslims protested against in violent and terrible destruction around the world. Reprinting would very likely have meant more people killed and more property destroyed. It would have caused many British Muslims great pain because they would have been told that the publication was intended to show contempt for their religion, and though that perception would have been inaccurate and unjustified the pain would nevertheless have been genuine.

True, readers and viewers who have been following the story might well have wanted to judge the cartoons' impact, humour and offensiveness for themselves, and the media might therefore have felt some responsibility to provide that opportunity. But the public does not have a right to read or see whatever it wants no matter what the cost, and the cartoons are in any case widely available on the internet.

Sometimes the media's self-censorship means the loss of significant information, argument, literature or art, but not in this case. Not publishing may seem to give a victory to the fanatics who instigated the violence and therefore incite them to similar tactics in the future. But there is some evidence that the wave of rioting and destruction -- suddenly, four months after the cartoons were first published -- was orchestrated from the Middle East for larger political reasons. If that analysis is correct, then keeping the issue boiling by fresh republications would actually serve the interests of those responsible and reward their strategies of terror.

There is a real danger, however, that the decision of British media not to publish, though wise, will be wrongly taken as an endorsement of the widely held opinion that freedom of speech has limits, that it must be balanced against the virtues of multiculturalism, and that the government was right after all to propose that it be made a crime to publish anything "abusive or insulting" to a religious group.

Freedom of speech is not just a special and distinctive emblem of western culture that might be generously abridged or qualified as a measure of respect for other cultures that reject it, the way a crescent or menorah might be added to a Christian religious display. Free speech is a condition of legitimate government.

Laws and policies are not legitimate unless they have been adopted through a democratic process, and a process is not democratic if government has prevented anyone from expressing his convictions about what those laws and policies should be.

Ridicule is a distinct kind of expression; its substance cannot be repackaged in a less offensive rhetorical form without expressing something very different from what was intended. That is why cartoons and other forms of ridicule have for centuries, even when illegal, been among the most important weapons of both noble and wicked political movements.

So in a democracy no one, however powerful or impotent, can have a right not to be insulted or offended.

That principle is of particular importance in a nation that strives for racial and ethnic fairness. If weak or unpopular minorities wish to be protected from economic or legal discrimination by law -- if they wish laws enacted that prohibit discrimination against them in employment, for instance -- then they must be willing to tolerate whatever insults or ridicule people who oppose such legislation wish to offer to their fellow voters, because only a community that permits such insult may legitimately adopt such laws.

If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to respect.

Whatever multiculturalism means -- whatever it means to call for increased "respect" for all citizens and groups -- these virtues would be self-defeating if they were thought to justify official censorship.

Muslims who are outraged by the Danish cartoons point out that in several European countries it is a crime publicly to deny, as the president of Iran has denied, that the Holocaust ever took place. They say that western concern for free speech is therefore only self-serving hypocrisy, and they have a point.

But of course the remedy is not to make the compromise of democratic legitimacy even greater than it already is but to work toward a new understanding of the European convention on human rights that would strike down the Holocaust-denial law and similar laws across Europe for what they are: violations of the freedom of speech that that convention demands.

It is often said that religion is special, because people's religious convictions are so central to their personalities that they should not be asked to tolerate ridicule in that dimension, and because they might feel a religious duty to strike back at what they take to be sacrilege.

Britain has apparently embraced that view because it retains the crime of blasphemy, though only for insults to Christianity. But we cannot make an exception for religious insult if we want to use law to protect the free exercise of religion in other ways. If we want to forbid the police from profiling people who look or dress like Muslims for special searches, for example, we cannot also forbid people from opposing that policy by claiming, in cartoons or otherwise, that Islam is committed to terrorism, however silly we think that opinion is.

Religion must be tailored to democracy, not the other way around. No religion can be permitted to legislate for everyone about what can or cannot be drawn any more than it can legislate about what may or may not be eaten. No one's religious convictions can be thought to trump the freedom that makes democracy possible.

Ronald Dworkin is professor of law at University College London. His book, Justice in Robes, is published in April.

Christopher Caldwell
Historical Truth
Speaks for itself
The Financial Times
18/19 February 2006, p. 13.

At the height of the worldwide demonstrations over caricatures of the Prophet Mohammed, some protesters claimed the west did not value free speech as much as it said. After all, the argument ran, many western countries ban Holocaust denial.

Mahmoud Ahmadi-Nejad, the Iranian leader, has recently thumbed his nose at the west by denying the Holocaust himself. A Belgian Arab group released a cartoon showing Adolf Hitler in bed with Anne Frank. "Europe, too, has its sacred cows," said the group's leader, Dyab Abou Jahjah, "even if they are not religious sacred cows."

The gesture may be tawdry, but the point is essentially correct. In much of Europe, there is a legislated "official truth" about the Holocaust. France passed its so-called Gayssot law, making Holocaust denial a crime, in 1990. Germany and Switzerland soon followed suit. Denying or minimising the Holocaust is now also a crime in Austria, Belgium, the Czech Republic, Lithuania, Poland and Slovakia.

The problem with this official truth is not that it is untrue.

The problem is that policing fringe opinion about the second world war creates more problems than it solves. Some are constitutional.

In The Guardian last week, Ronald Dworkin, the legal philosopher, wrote: "If we expect bigots to accept the verdict of the majority once the majority has spoken, then we must permit them to express their bigotry in the process whose verdict we ask them to respect."

He suggested using the European Convention on Human Rights to strike down laws banning Holocaust denial. There are also practical problems with such laws. They provide a bonanza of easy publicity for extremists who can present themselves as bold, censor-defying non-conformists, merely by brushing up to the law, without quite breaking it.

That is how the Anne Frank drawings made it into the Belgian papers. In France, the National Front leader Jean-Marie Le Pen's most reliable route on to the evening news is to stage some Gayssot law-related outrage, such as calling the Holocaust "a detail of history".

Madeleine Rebérioux, the late leftist historian, warned of the biggest danger of the Gayssot law as soon as it was passed. "One day", she wrote, "it's going to lead into other areas besides the genocide against the Jews -- other genocides and other assaults on what will be called 'historical truth'."

She was right. A law declaring the Turkish killings of Armenians early last century to be "genocide" was passed in 2001; later that year, another law defined the slave trade as a "crime against humanity"; a year ago, legislation mandated that teachers stress the "positive role" of the French presence in north Africa. Each new officialisation of remembrance calls into being more "moral lobbies", which press their claims with ever more insistence, in ever more obscure corners of political life, and with ever more legal clout.

Since the Gayssot law, sanctions against "crimes of opinion" have proliferated in all walks of life. Already in 1995, Bernard Lewis -- probably the most important scholar of Turkey in the past century -- was condemned in a French court for refusing to apply the term "genocide" to the Armenian massacres. Muslim and human-rights groups have brought complaints and suits against the novelist Michel Houellebecq, the journalist Oriana Fallaci, the philosopher Alain Finkielkraut and (for printing cartoons of Mohammed) the satirical newspaper Charlie Hebdo.

In January, a member of the national assembly who had said he found "heterosexuality superior to homosexuality on the moral level" became the first Frenchman convicted of homophobia.

Last year, Olivier Pétré-Grenouilleau, the best-known French historian of slavery, criticised the 2001 slave-trade law in an interview. A pressure group of "descendants of slaves" took him to court for "disputing a crime against humanity". In recent weeks, two petitions have urged the repeal or gutting of all memory laws -- and have won the support of much of the intellectual world in Paris.

The first, "Freedom for History", signed by the historians Pierre Nora, Michel Winock and Mona Ozouf, among others, noted the way claims to official memory multiply. The second, "Freedom to Debate", authored by Paul Thibaud, the anti-colonialist essayist, and signed by several of the country's most distinguished historians and philosophérs, deplored the recent "competition of memory".

The Gayssot law, Mr Thibaud argues, unleashed "a variety of anti-Semitism more dangerous than the one it restrained". Groups formed to promote the memory of slavery, for example, increasingly allege that Jews controlled the slave trade -- a favourite myth of Louis Farrakhan's US-based Nation of Islam.

In principle, what was done to the Jews of Europe during the second world war holds universal lessons. In practice, minority groups have not seen the Gayssot law that way. They reason that there are other prejudices in society besides anti-Semitism.

Once the state admits the principle of protecting minorities by restricting certain utterances about their history, new groups pop up to agitate for special protections against the prejudice that threatens them most. Mr Dworkin's case for abolishing laws against Holocaust denial on grounds of political legitimacy, is the right one.

Of course, no one should be under the illusion that being able to go out and deny the Holocaust will add much to any "debate". The official truth of western governments about the Holocaust happens to be the truth. Allowing delusions or anti-Semitic propaganda to masquerade as "opinions" will not change that. So those western countries with laws against Holocaust denial are now in a tricky position.

They must undo laws that have proved unworkable and counterproductive, and at a moment when some of those laws' most vocal detractors are violent people of ill will.

The writer is a senior editor at The Weekly Standard.


 
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