On the Laws that Prohibit Holocaust Denial

Free speech and the protection of vulnerable minority groups are two vital commitments of liberal democracies. Ideally, and indeed a lot of the time, the two work in harmony; but sometimes they appear to conflict. One touchy case of such a conflict is the denial of the Holocaust and the various ways in which different countries have dealt with it. In 2006, British historian David Irving–who had become infamous for arguing a moronic revisionist history of World War II that called the Holocaust a “myth” and denied Hitler’s role in the extermination of six million Jews–was arrested in Austria for the speech crime of trivializing the Holocaust and was sentenced to three years in prison. The subsequent controversy, which saw a variety of reactions from the West to the sentence, illustrated the legal and cultural differences that countries have in the subject of genocide denial.

Genocide denial is typically considered a form of hate speech. It insults the victims of genocide and the racial, ethnic, or religious group of which they are members. But it is also feared for its potential to teach future perpetrators the lesson that they may commit genocide and simply deny it afterwards. Denial typically takes three forms: the denial of the facts of the genocide, the denial of the responsibility for it, and the denial of the applicability of the term “genocide” to whatever happened. For Holocaust denial in particular, the usual motivations are political and/or anti-Semitic. Holocaust deniers assert a number of ludicrous claims, including the idea that the “hoax” is part of a conspiracy to make the white Western world feel guilty or to advance the interests of Jews or of the State of Israel. Others actually believe in the value of Nazism as a political philosophy.

Countries with laws prohibiting Holocaust denial, including 16 European countries and Israel, tend to have a stronger tradition of Civil Law–a legal system in which core principles are primarily codified in law–and to restrict other kinds of hate speech, with the aim of ensuring equal treatment to all. Some of these countries, such as Germany and Austria, strictly enforce restraints on the public display of Nazi symbols, such as the swastika, as well as Holocaust denial (in Germany a violator is subject to up to five years in prison), whereas others such as Romania and Lithuania have laws on the book that they laxly enforce. The countries without such laws, including the United States, the United Kingdom, and the Scandinavian countries, tend to place greater value on individual liberty and free speech. The United States, with a strong tradition of Common Law–a legal system in which principles are based primarily on judicial precedents–protects the public expression of Nazism under the First Amendment.

Laws against Holocaust denial were first enacted in Europe to curb far-right extremism, with Germany leading the way. After World War II, Germany criminalized and banned the Nazi Party to stifle any remainder of its message of ethnic hatred. Holocaust denial did exist in most of post-World War II Germany, but it did not attract wide-scale public attention until the 1970s, when it began to be featured increasingly in the propaganda of the far right. In response, Germany introduced a law in 1985 that outlawed Holocaust denial and other forms of Nazi symbols, and a subsequent law in 1994 that made Holocaust denial a more serious criminal offense under the general anti-incitement law. Considering its history, Germany felt a special obligation to curb anti-Semitic extremism, but throughout that decade, a handful of countries followed its example. France banned Holocaust denial in 1990 under the Gayssot Act. Austria, although it previously had laws to suppress any revival of Nazism, did not have laws banning specifically denial until 1992. Then came Belgium and Spain in 1995 (though Spain rescinded the law in 2007), Poland in 1998, and so on.

In evaluating these laws, it is important to remember that no society has completely unrestricted speech. The United States and the United Kingdom have libel laws and laws against direct incitement of violence, and other democracies have even greater restrictions. There are, moreover, countries going through transitional phases in which memory laws–laws that enshrine state-approved interpretations and narratives of history–prove not just prudent but absolutely necessary.

Take Rwanda as an example. In the decades following the Rwandan genocide of 1994, state leaders, though expressing an eagerness to facilitate a greater environment of open discourse, also had to take into account the real danger of the revival of ethnic conflict, which had brought about the recent genocide. The Rwandan government therefore passed laws in 2003 and 2008 to criminalize the denial of the genocide of the Tutsis by the Hutus. An analysis by the international think tank Legatum Institute, dispelling the “Myth of Free Media,” makes the compelling argument that transitioning countries such as Rwanda must focus on finding the “acceptable limits” of speech instead of abandoning all limits. Such limits should be assessed on a country’s particular situation and stage of development. Thus, present-day Rwanda seems to have the context to warrant laws against the denial of its genocide. The question, then, is whether present-day Europe also has such a context.

Critics argue against the government’s role in interpreting history and fear a slippery slope of censorship. After the conviction of David Irving, many Americans, who generally have a hard time coming to terms with such relatively strict legal censorship in Europe, weighed in. Peter Singer, for example, makes the point that Holocaust deniers likely will be more persuaded of their error if their views are refuted by argument and evidence and that, on the other hand, they will be more inclined to believe in a conspiracy if the likes of them are being imprisoned. Roger W. Smith suggests that legislation makes martyrs of the deniers, and he raises the alternatives of “education, scholarship, and advocacy.” He also emphasizes the inconsistency of these laws, since no European country other than Switzerland prohibits the denial of the Armenian genocide–a fact that, by the logic of the advocates of these laws, insults the Armenian genocide’s victims. Noam Chomsky in 1981 added another American voice to this the issue: defending the right to speech of a Holocaust denier in the midst of a controversy in France in 1981, he said, “It seems to me something of a scandal that it is even necessary to debate these issues two centuries after Voltaire defended the right of free expression for views he detested. It is a poor service to the memory of the victims of the Holocaust to adopt a central doctrine of their murderers.”

Moreover, the critics’ fear of the dangerous precedent that these laws set has been realized in a few instances. In an evaluation of Rwanda’s memory laws, human rights lawyer Nani Jansen observes that the laws have been used to “restrict a free and open debate on matters of public interest in the country,” emphasizing “especially the restrictive effect the laws have had on free speech in the media”; as described in an article in Foreign Policy, Rwanda’s then-prosecutor-general responded that Western critics were hypocritical to censure the same kind of laws that many European countries themselves have. A 2014 memory law in Russia, which prohibits the “circulation of false information about the activities of the USSR during the years of the Second World War,” was invoked to convict blogger Vladimir Luzgin for mentioning the role of the USSR in collaboration with Nazi Germany in the invasion of Poland in 1939–a historical fact. The law has received international criticism, but its precedents are the memory laws of Europe. Another instance: to the 1998 memory law that was implicitly understood to criminalize Holocaust denial, on February 6, 2018 Poland’s far right government, for nationalist purposes, passed an amendment that also criminalized the term “Polish death camps”–a ridiculous and entirely counter-productive outlawing of a mere historical misnomer, which does nothing for the cause of any serious historical discussion of the Holocaust.

It is challenging to assess precisely the efficacy of the laws prohibiting Holocaust denial. One analysis attempting to do so for the case of Germany reported that the laws enacted in the 80s and 90s did cause a substantial decline afterwards in public Holocaust denial; but, instead of outright eliminating Holocaust denial in Germany, they drove the Holocaust denial “underground or overseas”–those deniers continued to influence the German public by propaganda. In light of the recent rise of alt-right populism throughout Europe and the increasing difficulty of stifling the spread of pernicious ideas on the internet, some may argue that there is a need now more than ever for regulation of all forms of hate speech. No one doubts that these laws are well-intentioned; and if one takes the perspective, for example, of Germany, it is easy to see why Germany felt its particular history to warrant memory laws.

It is difficult to take a personal stance on these laws; I watch with horror the rise of a new anti-Semitism in Europe. Yet, in final analysis, the laws as they currently stand are misguided. They infringe on free speech, the essence of which is the protection of even the most disagreeable opinions. They set a precedent for the government’s role in interpreting history, and they serve as justifications for authoritarian regimes to stifle dissent on historical matters. The fact that the laws were enacted not directly after World War II but rather in the 90s indicates that they were not necessary to curbing extremism and anti-Semitism in Europe. The best way, therefore, of eradicating the virus of Holocaust denial is not censorship but open discourse, education, and criticism.

Photo: “Berlin – German Jewish Holocaust Memorial”