[Paleopsych] Index on Censorship: D D Guttenplan: How Many Jews Does It Take...?
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Tue Feb 1 18:47:51 UTC 2005
How Many Jews Does It Take...? : Should freedom of speech stop at
Holocaust denial? By D D Guttenplan
This article will appear in issue 2/05 of Index on Censorship:
Forgive or Forget.
As the world commemorates the 60th anniversary of the liberation of
the Nazi death camp at Auschwitz as Holocaust Memorial Day, there are
still those who for their own reasons, deny the testimony of history.
D D Guttenplan, author of The Holocaust on Trial: History, Justice and
the David Irving Libel Case asks: should freedom of speech stop at
The ironies of history are seldom subtle. Thus Charles Clarke's
announcement, on the eve of Holocaust Memorial Day, that the
government will seek to end the centuries-long right of habeas corpus
and that henceforth mere suspicion of certain terrorist activities may
result in detention.
Listening to the Prime Minister's plea that we retain a sense of
proportion, and that the new measures will only affect "a handful of
people" (though the newspaper accounts suggested that coverage would
extend to animal rights activists and Northern Irish militants as well
as suspected al-Qaeda cells) one could hardly help recalling Martin
Niemoller's auto-indictment: `First, they came for the Communists...".
So I may perhaps be excused for pointing out that the conflict at the
centre of proposals to outlaw Holocaust Denial in Britain -- between
freedom of speech and freedom from a form of racist harassment -- has
its own history. In 1949 the United States Supreme Court had to decide
whether the city of Chicago acted rightly in fining Arthur
Terminiello, a Roman Catholic priest, $100 for breaching the peace by
making a speech attacking "atheistic, communistic Jewish or Zionist
The record doesn't show whether Terminiello's career as a Jew-baiter
extended to Holocaust denial, but his case is relevant to the current
debate even without such obvious cues. Robert Jackson, one of the
judges who heard Terminiello's appeal, had been chief US prosecutor at
Nuremberg. Weimar Germany's failure to defend its constitutional order
was still fresh in his mind when Jackson warned his colleagues "if the
court does not temper its doctrinaire logic with a little practical
wisdom, it will convert the Constitutional Bill of Rights into a
Not everyone who favours making Holocaust Denial a crime in Britain
advances a rational argument for doing so. When Tony Blair said in
1997 that there was "a very strong case" for a law against Holocaust
denial he never went into specifics -- an omission which looks prudent
now that his government has apparently lost its enthusiasm. Still,
while it is unfashionable to say so, I believe there are at least two
strong arguments in favor of such a law, and that both arguments
deserve to be taken seriously.
The first argument is that Holocaust denial is a form of racial abuse
directed not just at Jews but at a particularly vulnerable subset of
Jews. As someone who spent more time than I liked reading the works of
Robert Faurisson, Arthur Butz and David Irving I can attest that this
is the case.
For all their pseudo-scholarly decoration, the deniers' devotion to
historical argument is on a par with Terminiello's contribution to
theological disputation. To fail to acknowledge the pain felt by
Holocaust survivors at the negation of their own experience -- or to
treat such pain as a particularly Jewish problem which need not
trouble anyone else -- is to deny our common humanity.
Which in many cases is precisely the abuser's aim--not to lure the
rest of us into joining in, but simply to further isolate the victims
by our indifference.
And as a general proposition Jackson was right. Free societies do have
not only a right but an obligation to defend themselves. As
individuals we are free to emulate Voltaire's willingness "to give my
life to make it possible" for someone whose views we detest to
continue to express them. But we do not have the right to impose such
self-abnegation on our fellow citizens.
Jackson's fellow justices needed no reminder of where Jew-baiting
could lead. Yet by a 5-4 majority the court overturned Terminiello's
conviction, and though I think they were right to do so, the thinness
of the margin also seems appropriate. This is not a question where
certainty is warranted on either side.
In Britain and the United States we regard Free Speech as sacred.
Americans venerate the First Amendment, while Britons cite Milton, who
in Areopagitica said true Liberty only exists "when free born men /
Having to advise the public may speak free". Holocaust denial is
currently a crime in Austria, France, Germany, Israel, Belgium,
Poland, Lithuania and Switzerland. Do the citizens of those countries
value freedom less than we do? Or might other factors be involved?
Robert Kahn, author of Holocaust Denial and the Law, points to a
"fault time" separating the "common law countries" of the US, Britain,
and former British colonies from the "civil law countries of
continental Europe". In civil law countries the law is generally more
prescriptive. Also under the civil law regime the judge acts more as
an inquisitor, gathering and presenting evidence as well as
Unlike the Anglo-American adversarial system, where fairness is the
primary attribute of justice, and the judge functions as a referee,
trials under the continental system aim at arriving at the truth.
This divergence has a number of consequences.
One of them was on view when David Irving, a British author, sued
Deborah Lipsadt, an American academic. Irving claimed that since the
Holocaust never happened, it was libellous to call him a Holocaust
denier. As the claimant under British law Irving was able to force
Lipstadt to prove him wrong by in effect proving the historical
actuality of the Holocaust. This put an enormous additional burden on
Mr Justice Charles Gray, who in presiding over the trial had to
constantly attend to the claims of truth as well as justice.
Continental judges also have much greater latitude in taking "judicial
notice" -- ie in declaring that certain facts are well-established and
need not be proven anew. The result is a system where, by habit if not
by aptitude, the courts are more comfortable in simply pronouncing on
questions of historical fact.
Ultimately, though, it is the difference in historical experience that
ought to constrain our attitude to other countries. In Germany and
Austria Holocaust denial is not "mere" Jew-baiting but also a channel
for Nazi resurgence much like the Hitler salute and the display of the
swastika, which are also banned.
The case for a ban in Israel should also be obvious, if not beyond
argument. Similarly, countries where the experience of occupation and
the shame of collaboration still rankle ought to be able to make their
own decisions. Blasphemy is still illegal in this country, and though
Americans are theoretically free to do all sorts of things no American
these days can afford to be smug about anyone else's liberty. Nor,
after Bosnia and Rwanda, can we pretend that free speech is an
absolute value. Sticks and stones may break bones, but name-calling
can clear a path for genocide.
Where should we set the balance in Britain? My own view is that the
existing laws against incitement to racial hatred are sufficient.
Making a special case for Holocaust denial might be justified if
British Jews were in jeopardy, or if there were a fascist movement in
this country, fueled by Holocaust denial, which posed a genuine threat
to democracy. Happily we are far from such dangers, and if we take the
Prime Minister at his word and retain our sense of proportion we ought
to recognise that we have far more to lose from even such a tiny
erosion of our liberties.
In 1949 the radical journalist I F Stone described himself as "exactly
what Terminiello in his harangues meant by an 'atheistic, communistic,
zionistic Jew'. I would not demean myself or my people by denying him
the right to say it." Stone's denunciation of judges "who would have
permitted some measure of suppression in my protection" as "not men
whose championship I would care to have" could have been written of
any number of recent Home Secretaries.
In rejecting Justice Jackson's analogy between Weimar Germany and
post-war America Stone proved a better historian as well as a more
robust libertarian. As an American Jew resident in twenty-first
century Britain it seems to me that free speech is still worth the
D D Guttenplan is the author of The Holocaust on Trial: History,
Justice and the David Irving Libel Case. London correspondent for The
Nation, he is currently writing a biography of I F Stone.
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