Those of us who cleave to the classical liberal defence of free speech probably should show greater awareness that historically this right has always been more qualified than is often supposed. No civil society has ever understood the concept to mean the absolute freedom to say anything, anywhere, to anyone at anytime. Generally the context has been considered decisive - or to put it another way, liberal democracies have generally not recognised the right to cry 'fire' in a crowded theatre.
Perhaps one of the most obvious examples of restrictions to speech in order to prevent direct harm to individuals and groups is found in the way that all civil societies have some kind of prohibition against slander, defamation, misrepresentation, or as the English legal system has it, libel - a point to which I'll return.
Beyond ideas of direct harm, which also of course includes incitement to criminal activity of various kinds, another category of free speech restrictions has often been applied to activities that profane those values that societies consider to beyond negotiation. This can be understood as involving a more abstract form of avoiding harm to the social order but I also think it should be recognised that it has traditionally involved a non-utilitarian prohibition of censoring what is considered obscene, whether any such expression can be shown to cause direct harm or not. While the range of activities that fall foul of this category tend to be much smaller in liberal democracies, traces of the traditional desire to preserve the sacred from being profaned can still be seen.
I was thinking that both of these elements are behind the various laws proscribing Holocaust denial such as they are practiced in various European countries. Drawing from their respective histories, the idea of preventing harm to the individuals and groups most likely to suffer from the dissemination of racially-motivated fabrications of history is bound to be a very important consideration.
It is in this sort of situation that those of us who would describe ourselves as liberals should probably acknowledge that the Platonic argument is stronger than is usually admitted: what if what is known to be true loses out in a social contest with falsehood when it is possible for the latter to triumph, not on the strength of the available evidence or moral argument but by appealing to the lowest common denominator and with the degree of cunning employed in the propagation of lies and fabrications? Or more specifically, what if Europe with respect to the Holocaust was to find itself in the position of the United States where a significant and growing proportion of the population has been misled into believing the contest between a creationist interpretation of Genesis and the theory of evolution is in someway an unresolved issue amongst scientists?
Beyond this there is, surely, something of the prohibition of the obscene behind these laws? I've argued that no human society has ever completely forgone this perogative and no one should be in any doubt that Holocaust denial is indeed an obscenity.
Therefore to maintain the liberal position with respect to David Irving the British Holocaust denier who is currently facing the prospect of imprisonment in Austria,
isn't as obvious or as straightforward to me is it seems to be for many liberals. But I do, nevertheless, maintain it.
But in doing so, one should be careful never to yield to the fallacy that because these types of cases are about free-speech and its limits, the people involved carry even the faintest hint of embodying that principle themselves. We must never forget that fascists by their very nature claim a freedom for themselves that they never extend to others, and David Irving is no exception to this rule. This piece of Nazi detritus has attempted to use libel legislation to silence
those who have simply asserted what he is - a Holocaust denier whose disgrace as a historian extends way beyond the point where it can be considered purely a question of professional
Yet this forms part of the argument in favour of the traditional liberal view. Apart from a point one could make about libel laws, which can be used by more powerful and wealthy figures to close down criticism of their activities, is not the kind of mistake outlined above not more
likely to occur wherever the widespread contempt and revulsion felt for people if Irving's ilk is codified in law and carries a custodial sentence? Or to put it another way, I share the commonplace liberal view that it is unwise to give these enemies of the open society the opportunity to present themselves as martyrs for free speech by dignifying their putrid lies with the status of a trial.
This is related to the Platonic point mentioned above. In this case, one cannot object to it on the basis of epistemological scepticism since the basic facts of the Holocaust have been established with historical data that is conclusive as it is copious. Instead, it is what I understand to be crucial to JS Mill's
defence of free speech that I find persuasive: even when the truth of something can be known, there is more danger inherent in circumscribing the propagation of falsehood because thereby you risk established facts degenerating to the status of dogma. And truth presented as dogma, aligned as it must be to necessarily flawed human institutions, can then become more vunerable for the want of people of good will who haven't become unaccustomed to defending what can be known in a rational manner. Arguably this is a potentially dangerous position made all the more insecure when you've awarded your irrational opponent the status of victim.
Beyond this, attempts to regulate the expression of ideas - regardless of how repugnant - represents a step towards the marriage of cognitive infallibility and state power, historically a union that has never served the cause of human liberty very well. I would reiterate that this is not in my view because truths cannot be known - but rather that to enforce conformity to this carries the risk that the state could become a species of the very thing it sought to avoid by cirumscribing free speech in the first place.
On the idea of the obscene I have less to say except that I take the view that this sort of restriction should be kept to an absolute minimum. Particularly where it is concerned with the use and abuse of history, I think it unwise. Notions of the obscene carry with it shadows of the sacred and while I think it is naive to imagine our secular societies have completely dispensed with this or even that this would be entirely desirable, it is
part of the vocation of the historian to do so in order that difficult pursuit of rational objectivity is not to become obscured with the mists of legend and myth-making.
So while it is by no means unproblematic, it is better, and safer,
in my view to stick to the classic liberal position: because civil society is not an enterprise association, its subjects should not be legally required to believe anything and therefore should not be punished for the expression of ideas per se
, regardless of how false and iniquitous they may be.
This should apply David Irving as it should also apply to those who would fall foul of a law prohibiting the 'glorification' of terrorism. I would prefer these types to be in the open where they are subject to the widespread revulsion felt for them and their odious ideas by the thinking and the good, where I would never forget through lack of practice how to dismantle their intellectually and morally delinquent use of history and theology.
And I'd prefer to avoid the prospect of stupid relativistic arguments about what constitutes Holocaust denial and acts of terrorism becoming determinants in the outcome of a criminal trial - as if their moral idiocy was worthy of this kind of attention.
To be able to recognise the rights of those who represent the very negation of freedom is the glory and wisdom of liberal democracy. That this is so should be a vigorously defended tenet of our
beliefs. This requires more self-confidence than perhaps has been on display in recent years; we should understand that we can afford to do this because we have the strength
to do it.