[Paleopsych] Index on Censorship: D D Guttenplan: How Many Jews Does It Take...?

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How Many Jews Does It Take...? : Should freedom of speech stop at 
Holocaust denial?  By D D Guttenplan
http://www.indexonline.org/en/news/articles/2005/1/britain-holocaust-rememberance.shtml
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
    Holocaust denial? 
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    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
    Jews".
    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
    suicide pact".
    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
    interpreting it.
    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
    risk.
    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.