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Free speech: In defense of the indefensible

By Charles C. Haynes

If any speech should be a crime, denying the Holocaust would be at the top of my list.

That’s why it’s easy to understand the motivation behind Germany’s announcement Jan. 8 that it will push for legislation that would criminalize “Holocaust denial” throughout the European Union.

Germany, France and eight other European nations already have laws that make denying the Holocaust punishable by prison sentences. Last year, British author David Irving was convicted in Austria under one such law and sentenced to three years in jail (he was released in December and is now on two years of probation).

Germany’s move to expand the ban on Holocaust denial comes in the wake of Iran’s one-sided conference “debating the Holocaust” in Tehran last month. By giving credence to some of the most deluded and bigoted Holocaust deniers in the world, Iran’s President Ahmadinejad stirred outrage in Europe and elsewhere.

But however well-intentioned, Germany’s proposal is the wrong response to this ugly problem. Criminalizing speech denying the Holocaust not only threatens free speech, it also gives power to the vile views it seeks to suppress.

Once Europe heads down the slippery slope of state censorship, where will it stop?

Consider the French slide toward state censorship of speech. In 1990, France passed a law punishing Holocaust denial with a year in prison and a 45,000-euro fine. Last October, the lower house of the French parliament added to the list of forbidden speech by passing a law that would make it a crime to deny that Armenians suffered genocide at the hands of Turks in 1915 (the measure still needs Senate approval).

While French Armenians celebrated the vote, Turkey reacted with predictable anger — not in defense of free speech, but because Turkey itself denies that any genocide against Armenians ever happened.

Turkey, which aspires to join the European Union, is already near the bottom of the anti-speech slope. Not only can you go to jail for calling the Armenian tragedy a genocide, but you can also be arrested for any speech that insults the republic, parliament or any organs of state.

In 2005, Turkish novelist Orhan Pamuk was put on trial for questioning the official version of the mass killing of Armenians. After intense international pressure, an Istanbul judge halted the trial.

Meanwhile in Sweden, the Rev. Ake Green was convicted of “hate speech” for preaching a sermon against homosexuality. Although Green was acquitted by the Swedish Supreme Court in 2005, his trial provoked worldwide concern about the use of hate-speech laws to limit freedom of speech and religion.

Although the United States prides itself on strong protection for freedom of speech under the First Amendment, we are not immune from the temptation to censor unpopular speech. This is especially true on college campuses, where speech codes and anti-harassment policies are frequently invoked to punish speech by students and faculty.

And in the land of the free, we have plenty of ugly, repulsive speech that pushes the limits of public support for robust free speech. Exhibit A is the Rev. Fred Phelps and his small band of followers who have incensed Americans with their protests at funerals of soldiers killed in Iraq. Carrying inflammatory signs with anti-gay messages, Phelps and Co. declare that the soldiers’ deaths are God’s punishment for the nation’s support of gay rights.

Thanks to Phelps, some 27 states and the Congress have passed legislation limiting protests at funerals. Critics of these laws argue that they go beyond constitutionally permissible limitations on such things as noise level and disorderly conduct by imposing overly broad and vague restrictions on free speech and assembly.

By giving the state the power to ban the offensive speech of a few, we give the state the power to limit the fundamental rights of us all.

Moreover, state censorship doesn’t work. Putting people like David Irving in prison only makes them martyrs of the extreme right. Attempting to silence people like Fred Phelps only makes them media magnets and pushes them to more outrageous behavior.

After Irving’s conviction, historian Deborah Lipstadt (whom Irving unsuccessfully sued for libel in 2000) put it this way: “I am not happy when censorship wins, and I don’t believe in winning battles via censorship ... . The way of fighting Holocaust deniers is with history and truth.”

It’s never easy (or pleasant) to defend the indefensible. But for Europeans, Americans and people in any nation that would be free, the familiar battle cry of free speech still applies: Fight bad speech with good speech — not with state power.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va., 22209. Web:

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