"All things are wearisome, more than one can say." - Ecclesiastes 1:8

Thursday, January 18, 2007

Banning Holocaust denial

There's a good piece by Timothy Garton Ash about the suggestion by the German justice minister that all European states adopt a law similar to those that can be found in Germany, Austria and France that proscribe Holocaust denial.

His arguments are sensible and supported by evidence but they are, unless I've missed something, entirely utilitarian.

But another reason for opposing this would be on simple free speech grounds, the preservation of which no-one can ever guarantee will produce a utility-maximising outcome in every case. There is a genuine risk in this case but it has to be taken because if the spirit of intellectual freedom is to be preserved, it is not tolerable for the state to make the falsification of history a crime.

I do accept you could argue that this is a utilitarian argument as well.


KB Player said...

"First of all, if passed, it would further curtail free expression - at a time when that is under threat from many quarters. Free expression is a unique and primary good in free societies; it's the oxygen that sustains other freedoms. You must therefore have very good reasons for restricting it by law."

I think you have missed something, Shuggy That was the third paragraph down.

I wonder why this keeps turning up - it is one of those things that seems to me to be self-evidently crazy, that you jail people for giving out false versions of history. And I hate it that the President of Iran has some substance to his jeers at the hypocrisy of Western declarations of freedom of speech.

David Irving is now free - when will be offered a chair of history at the University of Tehran?

waterdragon52 said...


It's been four decades since I read A.S. Neil's "Freedom Not License" but I think there's a lesson to be found there for people who confuse "freedom" with "license".

Neil's contention was that freedom came with certain boundaries of respect for others, where license was a grant of rights as permitted by the particular license granted.

When it comes to the "right" of expression, there is some obligation to be truthful and Holocaust denial tends to rely on serious destortions of history, and such destortions of history, being invoked for malicious intent as it is, does not deserve the protection from sanctions any more than any other defamatory communications.

KB Player said...


I think you have confused "legally defamatory" with "morally defamatory". If I go about saying "Shuggy is a pxxxdophile" (I put it that way in case it turns up in search engines) he can sue me for defamation because if it was believed he could lose his job and standing. If I say "there was no evacuation of Dunkirk in World War II and this was a story cooked up by the British government to beef up the British cause" that is stupid and malicious but not defamatory in the same way. My stupidity and malice should be glaringly evident, I would have thought, and I would be judged accordingly. Putting me on trial and sending me off to jail for stupidity and malice is idiotically tyrannical.

Big Fez said...

On the 'is this entirely utilitarian' question, I ought to point out that TGA also says:

"...the burden of proof is on the proponents of the ban. In a free society, any restriction on free speech must have a compelling justification - and that is not available here."

This suggests a slightly more sophisticated justificatory procedure at work - the utilitarian-seeming calculations are carried out against a background assumption that "Free expression is a unique and primary good in free societies".

It is no doubt possible to frame a definition of 'utilitarianism' which this falls under, but to do so would be to stretch the label to encompass much which does not belong in the tradition of Bentham and Mill.

keelie said...

"Putting me on trial and sending me off to jail for stupidity and malice is idiotically tyrannical."

Quite right. But we seem to have forgotten the other half of the equation: that freedom of speech does not imply or guarantee freedom from the consequences of your "free speech."

And on a human (as opposed to a legal) level, the consequences could be quite catastrophic.

All a matter of perception...

KB Player said...

Keelie says:-

“But we seem to have forgotten the other half of the equation: that freedom of speech does not imply or guarantee freedom from the consequences of your "free speech.”

“And on a human (as opposed to a legal) level, the consequences could be quite catastrophic.”

First of all, why the inverted comma around “free speech”? Do you think such a thing doesn’t exist? Surely you must notice how your own speech becomes freer with your friends rather than at work or with your in-laws, and even freer than that when commenting on a blog under an assumed name. There are degrees of freedom of speech, depending where you are speaking or writing.

“Consequences” could mean anything. The catastrophe should be immediately and glaring eg someone telling an excited group of vigilantes with weapons in their hands that that chap who has outraged them in some way is in that house over there. As for other consequences, the chain is too long. David Irving should be clapped into jail because reading his writings may turn someone into a violent anti-semite. They turn me into a (metaphorically) violent loather of David Iriving.

dearieme said...

Suppose I were to say that I don't believe that 6 million were killed, it was really 5.7 million, or 7.1 million, or whatever? There's every chance that a law would be so drafted that I would just have broken it. Idiocy!

keelie said...

kb player,

The inverted commas were to subtly indicate that "free speech" is now a sacred altar at which all of us are forced to worship. As if the idea of free speech supersedes everything else of divine origin. At the risk of sounding cynical, most people are huge supporters of free speech... as long as this free speech doesn't affect them adversely. TAking this a little further, any overt angry reaction to free speech (as you point out) is not supposed to happen; it violates the divine free speech edict, according to the free speech worshipers.

And therein lies the problem. In the name of free speech worship, consequences - or talk of consequences - are politely avoided. Supposing David Irving's crap didn't turn you "metaphorically" into a violent loather? Supposing, because of the fact that you lost everyone you love, the loathing wasn't "metaphorical." The "catastrophic consequences" I politely talked about could simply involve puting a bullet into this person,either emotionally or unemotionally. We, because we have no direct experience of what this type of "free speech" can do, have the luxury of tut-tutting such barbarity, but such judgements are meaningless in reality.

Sorry about all these "inverted commas."

SnoopyTheGoon said...

Right you are, Shuggy. The prevailing in EU tendency to solve any issue by slapping a law or regulation onto it is just a bureaucratic mind in action.

Does not work. Never did.

KB Player said...

Yes, you should be sorry about all those inverted commas. Exclamation marks bring to my mind someone shouting! And banging the table! And otherwise being unreasonably noisy! Inverted commas indicate someone sitting there with a knowing, superior smile and are thoroughly irritating. Living in this “democracy”, they say, they being the smart, the clued-up, the sceptical while the rest of us are na├»ve fools. So don’t use them unless you are actually quoting something (or unless you want to piss me off, which is a possibility of course).

As far as I can follow the rest of your argument, it seems to state that people should refrain from saying/writing things which might turn other people violent. So don’t criticise Islam in case some fanatics burn down an embassy or, in Salman Rushdie’s case, bring a fatwa against you. Don’t talk about genocide in Armenia in case you get murdered by a nationalist Turk. In fact everyone should just shut up generally and never say or write something in case somewhere, anywhere in the world some hyper-sensitive barbarian might take offence at it and might turn nasty.

eXTReMe Tracker

Blog Archive