David Irving, Holocaust Denial, and Free Speech

A reader wrote to me:

At the moment I am watching on Sky News that [David Irving] has been jailed in Austria for three years for Holocaust Denial. This gives me a really bad feeling in my stomach for whilst I would completely disagree with him jailing, somebody who has a different point of view to the norm (which does not incite violence etc.) just seems plain wrong. I of course accept I may not have the complete story.

I am a strong supporter of free speech and believe that any sanctions on speech should be reserved for the absolute worst and most extreme cases, like incitement to murder or riot. Of course, I am coming from an American perspective where denying the Holocaust could not possibly qualify — is Austria really the same? I don’t agree with making Holocaust Denial a crime, but I am willing to allow that for Austria, it is something that qualifies as much more extreme than here. This law usually gets used against local neo-Nazi groups which, from an Austrian perspective, may represent a nascent but real threat to the future of democracy and liberty. I can sympathize with such fears.

I wouldn’t for a second support or be sympathetic to such laws in Canada or New Zealand, but it’s not unreasonable for Germany and Austria to treat the matter differently. This is especially true of Austria where they haven’t really come to terms with their Nazi past. Germany largely has, but Austria continues to regard itself more as a victim than a victimizer — they see themselves as having been taken over by Germany, not accepting the fact that they welcomed Hitler with open arms. I’m not speaking about every Austrian citizen, obviously, but Austrian society as a whole still has a long way to go to even come close to what Germany has done.

One of the problems with criminalizing any type of speech is that you set a precedent: certain ideas and expressions are made out of bounds, and it becomes easier to decide that other ideas should be out of bounds as well. Thus, if you criminalize one unpopular idea (Holocaust Denial), you may start criminalizing other things people don’t like. Has this happened in Germany and Austria? No, not that I am aware of — and a reason is that Holocaust Denial is criminalized not because it’s “unpopular” or because it offends some people but because it’s part of Nazi ideologies which they are trying to keep out of their political system.

Ideally, such restrictions would never be necessary - or at the very least, such restrictions would fade away and be eliminated over time, relegated to the dust bin of history as a necessary evil. Is this an ideal situation, however? If Germans and Austrians feel that they need such restrictions in order to prevent themselves and their children from once again descending into murderous madness, I’m reluctant to tell them that they are wrong, however much I think that the restrictions are a bad idea in principle.

I wish that they were wrong, of course, and I wish that in these nations Nazi speech could be countered with “more speech,” but maybe that’s not possible. This wouldn’t be the best way to keep fascism out of American politics, but what if this is the best way for them to keep fascism out of their politics? We should at least be sympathetic to the possibility before condemning it out of hand - and if we do condemn it, we should be prepared to demonstrate why it doesn’t work and why alternatives will work better in these nations with these histories.

That’s what differentiates this situation from the Muhammad cartoons in Denmark. Aspects of Nazism are banned to prevent a return to murderous, fascist, totalitarian regimes; banning the cartoons could not conceivably be done for any remotely similar goal and is, instead, being advocated by proponents of murderous, fascist, totalitarian regimes. Banning Nazi parties, symbols, and so forth may be wrong, but so is lumping supporters of such bans together with those calling for the death of the Danish cartoonists or calling for a worldwide ban on anything that insults religion.

All this aside, it appears that Irving got a stiff sentence because the judge knew he was being deceived. Irving pled guilty, but insisted that he had changed his mind about the reality of the Holocaust back in the 1990s. This was false — he sued Deborah Lipstadt in 2000 and it was clear at the time that he continued to deny the reality of the Holocaust. The judge had those trial records with him and so knew for a fact that Irving was playing a game. Judges don’t like that, no matter what country they are in. It is my understanding that the judge was harder on Irving than even the prosecutor was, showing just how annoyed the judge really was. Had Irving really changed his mind back in the 1990s, it’s likely that little to nothing would have happened to him.

Irving knew that there was an arrest warrant for him in Austria and he publicized the fact that he was going there. He knew what was going to happen. He was, in effect, daring the Austrian government to do something about him. If he was let go, it would have been great publicity. Now that he has been put in jail, he can be a martyr. He brought all this upon himself and it’s likely that what’s happening to him is precisely what he wanted all along. Perhaps he didn’t expect such a long sentence because he didn’t anticipate that the judge would be so familiar with his legal history, but he had to figure that this would be probable outcome.

 

Quick Poll: What do you think about laws that ban Nazi parties, Nazi images, Holocaust Denial, and similar expressive speech?

1. I'm all for it - Nazism is too much of a threat.
2. I don't like it, but I can understand it and hope they eventually move beyond it.
3. I can see banning actual Nazi-type political parties, but not questioning or denying the Holocaust.
4. It's all bad and reminiscent of the Nazi policies they are trying to avoid.
5. I don't know - there are good arguments on both sides.
6. I don't care.

Click an option to vote, or View Current Poll Results

 

Read More:

• Adolf Hitler, Nazi Germany, and Christian Nationalism
• News on Free Speech and Civil Liberties
• Recent Books on Free Speech
• Court Decisions on Free Speech and Censorship