Issue Report: Criminalization of Holocaust denial

Should denial of the Holocaust be illegal?

Holocaust denial is the claim that the genocide of Jews during World War II — usually referred to as the Holocaust — did not occur at all, or that it did not happen in the manner or to the extent historically recognized. For a variety of reasons outlined in this article, many governments have chosen to ban such holocaust denial. One of the most notable intentions is to prevent further anti-antisemitism and a resurgence of Nazism. Denial of the Holocaust is illegal in Austria, Belgium, the Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia and Switzerland. The European Union has issued a directive to combat racism and xenophobia, which makes provision for member states criminalising Holocaust denial, with a maximum prison sentence of between one and three years. Outside of Europe, bans on Holocaust denial are uncommon, particularly because the concerns of a “return” of anti-semitism and Nazism are not as relevant as in Europe, where the Holocaust occurred. And, in countries such as the United States, a ban on Holocaust denial meets stiff legal resistance based on “Free Speech” rights secured by Constitutions and a Bill of Rights. Holocaust denial is not an offence in the United Kingdom, although laws against libel or inciting racial hatred may apply. In countries where the laws against Holocaust Denial exist, those convicted can often be sentenced to a substantial term of imprisonment. The maximum sentence in Austria is ten years. One of the most prominent modern Holocaust deniers is David Irving, a British writer. In 2000, Irving brought a libel action against Deborah Lipstadt, an American author, in the British civil courts. The judge held that Lipstadt had been justified in describing Irving as a Holocaust denier. In February 2006, Irving was jailed for three years in Austria after pleading guilty to Holocaust denial. This debate is not usually between Holocaust deniers and those that believe it occurred, but rather between those that accept that the Holocaust occurred, but differ as whether those that choose to deny its occurrence should be charged with a crime. It is assumed in this article that the Holocaust occurred and that Nazi government of Germany (1933-45) pursued a deliberate policy of extermination of certain groups, including Jews, people of Jewish ancestry, the Roma (eastern European travelling people), Communists, homosexual people and the mentally handicapped. During this period, this article accepts that between 5 million and 6 million people were killed as a result of this policy.

Freedom of speech: Is criminalization of holocaust denial consistent with free speech?

Harm done by Holocaust denial exempts it from protections.

While many claim that free speech rights protect individuals that deny the Holocaust, free speech principles can be justly limited in cases where speech does direct harm to other individuals or society as a whole. Holocaust denial does such direct harm, as is outlined in multiple arguments below, so is exempted from the protections offered by freedom of speech.

Holocaust denial psychologically harms Holocaust survivors

Ronny Naftaniel, head of the Hague-based Center for Information and Documentation Israel – Holland’s largest Zionist group: “Holocaust denial causes psychological pain to survivors. Rutte underestimates the intensity of the pain that this allowing this will needlessly cause them.”[1] The fact that Holocaust denial does such harm is what justifies restricting it.

Holocaust deniers do further injustice to Holocaust victims

David Matas, Senior Counsel for the “League for Human Rights” of the Zionist B’nai B’rith organization in Canada: “The Holocaust was the murder of six million Jews, including two million children. Holocaust denial is a second murder of those same six million. First their lives were extinguished; then their deaths. A person who denies the Holocaust becomes part of the crime of the Holocaust itself.”[2]

Holocaust denial is inherently descriminatory and damaging

In so far as Holocaust denial is a form of discrimination and racism, it can defined as a form of hate speech. And, if hate speech can be made illegal, then Holocaust denial is open to being outlawed within this category.

Racist Holocaust denial is distinctly bad form of discrimination.

Ronny Naftaniel, head of the Hague-based Center for Information and Documentation Israel – said holocaust denial is worse than other forms of discrimination such as religious descrimination because, “people can choose a religion, but they cannot choose their ethnicity or the color of their skin.”[4]

Outlawing Holocaust denial helps prevent resurgence of Nazism.

The resurgence of Nazism is a real possibility in Europe and elsewhere. In so far as Holocaust denial perpetuates anti-semitic and Nazi ideas, it risks inciting a return of Nazism. Such risks are unacceptable, justifying a ban.

Holocaust deniers advance cause of post-War Nazi deniers.

The first Holocaust deniers after the war were the Nazis themselves. Modern Holocaust deniers can be seen as the modern bearers of this propaganda machine. In perpetuating the Nazi legacy in this way, Holocaust deniers perpetuate the threat posed by Nazism. In this sense, they are not protected by free speech laws.

Outlawing Holocaust denial is uniquely necessary in Europe

Where the Holocaust actually occurred, Holocaust denial is uniquely threatening even today, and so a ban on it is uniquely justified.

Criminalization protects against flood of Holocaust denial ads

Holocaust denial advertisement are a common problem around the web and in newspapers. Criminalization of Holocaust denial prevents this unfortunate avenue for spreading hateful Holocaust denial messages.

Criminilizing holocaust denial infringes free speech

"Free speech, even if it hurts". Los Angeles. February 22, 2006:

“Freedom is a principle that must be applied indiscriminately. We have to defend Irving in order to defend ourselves. Once the laws are in place to jail dissidents of Holocaust history, what’s to stop such laws from being applied to dissenters of religious or political histories, or to skepticism of any sort that deviates from the accepted canon? […] No one should be required to facilitate the expression of Holocaust denial, but neither should there be what Supreme Court Justice Louis Brandeis called the “silence coerced by law — the argument of force in its worst form.”

Holocaust denial does not directly threaten the public.

Holocaust denial does not directly threaten the public. It is not akin to inciting violence, a riot, or to calling “fire” in a crowded theater – forms of speech which can be justifiable regulated as a means of ensuring the public safety. Because Holocaust denial does not incite violence directly in this way, it should not be deemed illegal.

Holocaust denial wrongly promotes some rights over others

Beate Rudolf, an expert on European law at Berlin’s Free University: “This is a difficult argument because they [supporters of banning Holocaust denial] are saying that to promote one basic human right you need to limit freedom of speech, which is another basic human right.”[5]

Danger of public accepting holocaust denial should be fought by logic.

While Holocaust denial may be dangerous if it gained public support, the government’s responsibility should be in fighting this with logic and reasoning opposed to a ban. Rather, it means that the State has a responsibility to ensure that the public are exposed to the arguments that show that Holocaust deniers are wrong. This is best done through compulsory History teaching about the Holocaust in schools.

General statements against criminalizing Holocaust denial

In 2000, historian Deborah Lipstadt confronted Holocaust denier and pseudo-historian David Irving in one of the most famous trials in recent British history. Irving had sued Dr. Lipstadt for libel after she correctly labeled him as a Holocaust denier. Irving was later imprisoned for his views, yet Lipstadt called for his release, arguing, “Generally, I don’t think Holocaust denial should be a crime. I am a free speech person, I am against censorship. I don’t find these laws efficacious. I think they turn Holocaust denial into forbidden fruit, and make it more attractive to people who want to toy with the system or challenge the system.”[6]

Value of debate: Does allowing debate legitimize holocaust denial?

Debating Holocaust implies there are two reasonable viewpoints.

This is not the case: there are no reasonable grounds for believing that the Holocaust did not happen. If reputable historians debate with Holocaust deniers, it implies that the claims of Holocaust deniers have sufficient merit to be considered on the same level as interpretations based upon a fair reading of historical evidence. Thus, saying, as many do, “all ideas should be open for consideration and debate, including Holocaust denial” is an unjustifiable position; it give undue credit and consideration to a desriminatory, discredited, and socially threatening viewpoint.

Allowing debate on Holocaust fosters hate groups

Michael Arrington. "Holocaust Museum Death Won’t Change Facebook’s Mind On Hate - But Advertisers May Be Able To". June 12, 2009:

“for those of you who will argue that the best way to handle hate is to shine a light on it, debate these people openly, and generally assume that reason will prevail: you’re wrong. Read this USA Today opinion piece that is talking about the steady rise of hate groups in the U.S. – ‘the Internet gives formerly isolated racists, whether individuals or small groups, a means to stoke one another’s smoldering anger. With the ready availability of weapons, even a single person can do enormous harm.'”

Holocaust deniers are not persuaded by reason; penalties necessary.

Proper historians seek to consider evidence to reach conclusions, rather than working in reverse. Holocaust deniers refuse to be persuaded by debate. Debate therefore does not stop Holocaust deniers spouting their dangerous myths: it is necessary to use criminal penalties to stop them from doing so.

The impressionable must be protected from holocaust denial.

Holocaust deniers are often able self-publicists. We cannot assume that members of the public will hear academic rebuttals of Holocaust deniers. It would be highly dangerous if Holocaust deniers gained public support (the reasons for this are outlined under 1 above): Holocaust denial must therefore be banned.

Allowing Holocaust denial helps expose and deligitimize it

In fact, it will be shown to be wholly without merit and Holocaust deniers will be exposed as anti-Semitic liars. It is dangerous to argue that the matter should not be debated: Holocaust deniers will say that this is an admission that academic argument is not strong enough to defeat their beliefs.

Outlawing denial makes Holocaust's occurrence seem suspect

James Miller. "Holocaust Denial". Hovercoming Bias. April 18, 2007:

“criminalization perhaps shows (from the viewpoint of the Syrian) that believers in the Holocaust want to foreclose debate on the subject and thus indicates that they fear they might lose an honest debate.”

Publics can reject holocaust denial without a ban

Robin Davis. "Holocaust Denial and Uncomfortable Truths". June 6th, 2009:

“It is likely that most people regard the real deniers of the Jewish genocide – the ones who say the extermination crimes never happened at all – in the same light as those who espouse any number of other oddball ideas. Do we need laws to protect us from those who make obviously unsupportable claims?”

Ideas should not be banned just because they are dangerous.

This does not mean it should be banned. Rather, it means that the State has a responsibility to ensure that the public are exposed to the arguments that show that Holocaust deniers are wrong. This is best done through compulsory History teaching about the Holocaust in schools.

Defining "denial": Can Holocaust denial be appropriately defined so as to outlaw it?

Holocaust deniers are those calling it a hoax and Jewish conspiracy.

Most Holocaust denial claims imply, or openly state, that the Holocaust is a hoax arising out of a deliberate Jewish conspiracy to advance the interest of Jews at the expense of other peoples. For this reason, Holocaust denial is generally considered to be an antisemitic conspiracy theory. The methodologies of Holocaust deniers are criticized as based on a predetermined conclusion that ignores extensive historical evidence to the contrary. This is different than historical revisionists that dispute only the numbers of those killed or certain methods used, but whom do not dispute that the event occurred and whom do not argue that the Holocaust is a Jewish conspiracy. This simple definition and distinction of “Holocaust denial” can be easily applied to ban the practice.

Defining Holocaust denial is too difficult to outlaw it

Barbara Kulaszka. "What is Holocaust Denial". Institute for Historical Review:

“Should someone be considered a ‘Holocaust denier’ because he does not believe – as Matas and many others insist – that six million Jews were killed during World War II? […] if that is so, then several of the most prominent Holocaust historians could be regarded as ‘deniers.’ Professor Raul Hilberg, author of the standard reference work, The Destruction of the European Jews, does not accept that six million Jews died. He puts the total of deaths (from all causes) at 5.1 million. Gerald Reitlinger, author of The Final Solution, likewise did not accept the six million figure. He estimated the figure of Jewish wartime dead might be as high as 4.6 million, but admitted that this was conjectural due to a lack of reliable information.”

Slippery slope: Does criminalization of holocaust denial open slippery slope to other bans?

Holocaust denial is a unique exception to free speech.

The Holocaust is currently unique in terms of the certainty that it happened, its scale and its effects on current politics (i.e. the rise of the Far Right). Criminalizing it, therefore, does not risk opening a slippery slope to curtailing the exercise of free speech in other instances of a much lesser notability and degree of importance historically and in contemporary politics.

Evidence is a precondition for an argument's legitimate presentation.

If scholars can support their views with evidence, they have nothing to fear from laws against the denial of historical events. If they cannot support their views with evidence, they should not express them.

Holocaust denial opens doors to harmful, non-factual views

David Oshinsky and Michael Curtis of Rutgers University: “If one group advertises that the Holocaust never happened, another can buy space to insist that American Blacks were never enslaved. The stakes are high because college newspapers may soon be flooded with ads that present discredited assertions as if they were part of normal historical debate. If the Holocaust is not a fact, then nothing is a fact….”[7]

Criminalizing holocaust denial opens slippery slope to oppression.

There are many historical events that have modern political implications. Criminalizing denial of all these events would stifle academic discussion. Scholars would be afraid to question existing theories in case they were punished.

Outlawing Holocaust denial risks revisionists being called "deniers"

Laws against Holocaust denial risk being used to stifle proponents of more moderate historical revisions regarding the Holocaust. Those arguing that a smaller number of Jews were actually killed in the Holocaust may be at risk of being labelled “deniers”. Such threats and risks of persecution are a major concern inherent with laws banning Holocaust denial.

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