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Think Again: Are Holocaust denial
statutes worth it?
By JONATHAN ROSENBLUM
12/10/2010 15:38
They are, in fact, likely to be counterproductive. Worse, they could
add credibility to the claims of the deniers.
Growing up in the US, I never gave much thought to statutes criminalizing Holocaust
denial. Any such statute would almost surely be struck down under the First Amendment
of the Constitution. Such statutes, however, are common in Europe. Most Jews probably
have an instinctive sympathy for outlawing Holocaust denial and experience satisfaction
when some European Holocaust denier is sentenced to jail or fined. And indeed there
are at least two powerful arguments in favor of such statutes. The first has to do with the
special pain felt by the victims of the Holocaust caused by the denial of the hell they
went through and inhuman cruelty inflicted upon them. Few of them could have imagined
in their worst nightmares that within 50 years of their liberation, there would be a whole
cottage industry devoted to denial of their suffering.
The more compelling argument lies in the role of Holocaust denial in the arsenal of the
most virulent of contemporary anti-Semites. Until reading Prof. Robert Wistrich's The
Lethal Obsession, I never fully appreciated how important Holocaust denial is to present
day Hitler wannabes. Wistrich details how Holocaust deniers fan the flames of potentially
lethal anti-Semitism with their claims. For them, the "Holocaust myth" is but the latest
example of the Jews' talent for manipulation – a gigantic conspiracy that has
brainwashed almost the entire Western world and has been used to extract huge
reparations from the Germans and create sympathy for Jews and the State of Israel.
At the end of the day, however, anti-Holocaust denial statutes are likely to be
counterproductive. The very existence of such statutes will always be pointed to by anti-
Semites as further proof of the reach of the Jewish tentacles that hold European
legislators in their clutches. Worse, they could very well add credibility to the claims of
the deniers. The latter will point to the illegalization of Holocaust denial as proof of the
power of the their arguments. Precisely because they cannot refuted, the deniers will
claim, must their ideas be ruled outside the pale of legitimate discussion.
THE MOST powerful argument, however, has nothing to do with Jews. Such statutes
create a dangerous precedent for other efforts to outlaw certain discussion as beyond
the pale.
In his classic On Liberty, John Stuart Mill observes, "All silencing of discussion is an
assumption of infallibility."
Most of us could come up with a few candidates of propositions that we consider beyond
legitimate debate. Some global warming enthusiasts, for instance, refer to opponents as
"deniers" to link them to Holocaust deniers in their depravity.
Classical liberals are largely protected from the "assumption of infallibility" by their
emphasis on what Isaiah Berlin termed "negative liberty," the absence of barriers or
constraints on individuals, particularly on their freedom of thought and expression. But
those who conceive liberty positively, in terms of the liberation or self-realization of the
individual, or more typically some collectivity, are subject to the totalitarian temptation,
for that self-realization, particularly of the collective, requires the coercive power of the
state.
The totalitarian temptation, and its less extreme expressions, is further heightened
among those who have grown up in an environment in which one political viewpoint is so
dominant that it is easy to suspect anyone holding opposing views of being mentally
incompetent or morally corrupt. That would describe students at many elite universities
in the West. Not surprisingly, the speech and conduct codes at some American
universities are perhaps the most glaring examples of limitations on freedom of speech
in America. Opposition to homosexual behavior, for instance, as immoral, or even
quoting the biblical prohibition, could run afoul of some such codes.
WITH RESPECT to no subject is freedom of speech so imperiled as to Islam and its
adherents. Under a Council of Europe framework decision that went into effect on
November 28, all European Union member states are required to combat "certain forms
and expressions of racism and xenophobia by means of criminal law."
Inevitably, those laws will be used to prosecute critics of Islam and those who warn of
the dangers from Europe's growing Muslim population.
Indeed they already have. Elisabeth Sabaditsch- Wolff has been charged with "inciting
hatred against a religious group" and "defamation of religion" for a 2009 presentation on
the "Islamization of Europe."
And an Amsterdam Appeals Court overruled the Dutch Prosecutorial Services decision
not to charge Geert Wilders, the head of the Freedom Party, for comparing the Koran
toMein Kampf. An Austrian court even fined a retiree whose Muslim neighbors
complained that his yodeling sounded like the muezzin's call to prayer and was thus
insulting.
In both the Sabaditsch-Wolff and Wilders cases, the presentations for which they were
charged consisted primarily of quotations from the Koran and the hadith literature. Quite
likely, those presentations were tendentious and one-sided. Certainly some of
Sabaditsch-Wolff's examples of the imposition of Shari'a (Muslim religious law) – i.e.,
Muslim parents preventing their daughters from mixed swimming – will strike most
Americans and all religious Jews as legitimate exercises of freedom of religion. But
where the gravamen of a criminal complaint consists of quotes from Muslim sources,
then legitimate debate about an Islamic threat to Europe is being cut-off.
By attempting to shut down discussion of Islam, under the rubric of combating
Islamophobia, European policymakers are helping to bring about their worst nightmares.
Those nightmares involve bloody clashes between Muslims and native Europeans who
feel that their culture is under assault from fast-growing, poorly assimilated, immigrant
populations. That is indeed possible. But placing Islam or the behavior of Muslims so far
beyond the pale of discussion that even truth is no defense only exacerbates the danger.
Nothing injects more bitterness into the political system than the widespread feeling that
the playing field is tilted. If native Europeans see that prosecutions are never brought
against local imams for incitement against the infidels or that Christianity, but not Islam,
may be denigrated with impunity, their fury will only grow.
In addition, limits on discussion of issues of public concern because of the
uncomfortable implications of certain facts make it less likely that appropriate solutions
will be found in time.
Airport security in the US is a good example. The refusal to acknowledge that likely
terrorists are drawn from a small and largely discernible slice of the population imposes
an immense burden on air travelers and delivers a victory to terrorists.
The rising Muslim population in Europe, especially as that population grows more
radicalized, is a threat to European civilization, and pretending otherwise will not make
the threat go away. But such pretending by policy-makers will prevent the adoption of
immigration and social welfare policies that can reverse, in part, those trends.
Legal prohibitions on Holocaust denial serve as an attractive example for government
meddling in the free marketplace of ideas. But given the costs of any precedent for
allowing European elites to determine what is proper and improper speech, and what
topics may be discussed, giving up Holocaust denial statutes is a small sacrifice.
The writer is the director of Jewish Media Resources. He has written a regular column
inThe Jerusalem Post Magazine since 1997, and is the author of eight biographies of
modern Jewish leaders.
More about: Isaiah Berlin, Geert Wilders, Robert S. Wistrich, Council of Europe
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