Racism and Free Speech: Part II

Holocaust Denial and Holocaust Denial Laws

Denying or minimizing the significance of the Holocaust is one contemporary form of Anti-Semitic speech, often coupled with other Anti-Semitic expression. (See the following link for an overview of Holocaust Denial:

http://www.jewishvirtuallibrary.org/jsource/Holocaust/denial.html )

A number of countries, mostly in Europe (and also Israel), have laws against denying the Holocaust. (See the following article on Wikipedia:

http://en.wikipedia.org/wiki/Holocaust_denial#Laws_against_Holocaust_denial.

As with all content on Wikipedia, use caution, but this article seems to have good content [at least at the time I wrote this].)

The Wikipedia article points out that most countries with Holocaust Denial laws also have other laws slightly abridging free speech by banning speech that incites racial hatred or intolerance. A number of other countries, including Canada and the UK, have such laws banning incitement of racial hatred and sometimes use such laws to prosecute Holocaust Denial, without having specific Holocaust Denial laws.

The article has this to say about countries with Holocaust Denial laws:

“In the words of D. Guttenplan, this is a split between the "common law countries of the US, England and Wales, and former British colonies from the civil law countries of continental Europe and Scotland. In civil law countries the law is generally more proscriptive. Also under the civil law regime the judge acts more as an inquisitor, gathering and presenting evidence as well as interpreting it"[64]

This is an interesting argument, and an accurate one with regard specifically to Holocaust Denial laws, but given laws banning incitement of racial hatred in places like Canada and the UK, there seem to be at least two contrasts at play – one between common and civil law countries, and another between some common law countries (e.g. England or Canada) and others (e.g. the United States). (There is another contrast as well, also pointed out in the article – many of the countries with Holocaust Denial laws have some direct tie to the Holocaust, e.g. Israel, Germany, Austria.)

The law systems of all western nations embody a valuation of freedom, but we see in the reactions to Denial of the Holocaust somewhat different emphases on Enlightenment values stemming from the different strains of Enlightenment thought. It seems to me that the French and other continental traditions, while highly valuing liberty or freedom, have more emphasized the other two components of the revolutionary triad of liberty, equality, fraternity (hence the banning of Muslim head scarves in some public contexts). The English-speaking Enlightenment traditions have emphasized individual liberty to a somewhat greater extent, with this markedly so in the U.S. (where equality has often gotten short shrift, and fraternity never had the sort of resonance it did in France), stemming probably from the experiments with partially democratic self-government in the North American colonies, the American revolutionary experience, and the specifically American variety of Enlightenment thinking (embodied by writers like Thomas Paine and Thomas Jefferson, thoroughly grounded in the English-speaking tradition [especially influenced by John Locke], but nonetheless distinct).

Against Holocaust Denial and Holocaust Denial Laws

I’m obviously against Holocaust Denial. It’s one of the most repellent and repugnant forms of contemporary racist thought and expression.

I’m also against Holocaust Denial laws, though, or any other laws that make any political or social commentary illegal. As offensive and contrary to fact as Holocaust Denial might be, the speech act alone doesn’t significantly harm anyone nor infringe on others’ freedoms. (If Holocaust Denial is used in conjunction with or as a form of threat or harassment – that’s different, but it’s the threat or harassment, and not the offensive content, that would make such instances acts that I don’t think should be protected or allowed.)

I sympathize with the supporters of Holocaust Denial laws (especially in countries like Germany and Austria where there is a clear relationship between the nation-state and the Holocaust). I just think that restrictions on speech are not a good strategy (pragmatically or in terms of protecting free action) for combating Holocaust Denial and Anti-Semitism.

I’m aware also that my own simultaneous opposition to Holocaust Denial and Holocaust Denial laws is probably largely the result of the grounding of my own thinking in North American traditions of thinking about politics and culture. (Though such an awareness really says little about the merits of any arguments I might make; it’s simply a contextualization – and likewise with recognition that Holocaust Denial laws themselves are grounded in other varieties of Enlightenment thought.)

Why is Freedom of Expression Important even for Racist Speech?

As I argued in my previous post, freedom of expression should not be abridged lightly. Denying the Holocaust is seriously offensive and repulsive to most people. I don’t think this is sufficient to make illegal such denials. (I understand why others disagree, and even sympathize.) Protecting freedom of expression seems to me more important than protection from offense.

There are pragmatic reasons too to maintain freedom of speech even in the face of high offense. (Again, when speech also constitutes slander, direct harm, assault, or harassment, this changes things.)

Restrictions on speech drive those with offensive ideas completely out of the mainstream and contribute to the sense of persecution and martyrdom common among the racist fringe. On the other hand, allowing the free expression of even offensive ideas allows for engagement. Truly hardcore bigots are typically not open to reasoning, but more run of the mill racists, or the person who might be prone to occasional racist thinking (perhaps without even realizing it) might be. In open discussion, most can clearly see how counter-factual the sort of conspiracy theorizing typical of racist thinking is. But for engagement to happen, free speech has to be protected even at the risk of being highly offended.