By Ronald Sokol
International Herald Tribune
PUYRICARD, France — This month Germany proposed that all European Union members adopt a uniform law to make Holocaust denial a criminal offense. Denial of the Holocaust is already a crime in Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania, Slovakia, Spain and Switzerland.
The proposal has prompted a sharp debate on whether denial of an historical event should ever be criminalized.
The dominant theme in American law is that of Supreme Court Justices Oliver Wendell Holmes Jr. and Louis Brandeis, who believed that "unless the incidence of the evil is so imminent that it may befall before there is opportunity for full discussion the remedy to be applied is more speech, not enforced silence."
The lineage of that theme traces back to John Milton, who wrote that if Truth and Falsehood were to grapple in a free and open encounter, Truth would always win.
There is no doubt that freedom to advocate one's thoughts and ideas is a vital ingredient in any healthy society. It is the principal means by which change can occur and a society can correct the errors of its leadership.
The vexatious issue is where to draw the line. Even under the expansive American view there are limits to free speech. In Justice Holmes's famous phrase, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."
In an inversion of Germany's criminalization of Holocaust denial, Turkish prosecutors have sought to punish those who affirm the truth of the Armenian genocide. If denial of an event can be made a crime, then logic compels that affirming an event can also be punished.
Yet when governments begin to legislate what is true and what is false, they embark upon what has historically been a very slippery slope.
Even on major historical events men and women rarely agree upon a single truth. Was Napoleon a hero or a tyrant? Each generation must interpret history anew and discover its own truths, and competing versions can coexist. The Holocaust itself was not named and categorized until almost a full generation after the event.
Today only a person in a state of appalling ignorance or advanced dementia can deny the facts of the Holocaust. Yet if the facts are true, then why is legislation needed to make the denial a crime?
The American view is that government has no right to forbid speech unless it will incite imminent lawless action. If that test is applied to those who deny the Holocaust, there would appear to be no need for a law. While Holocaust deniers do attract followers, they are largely ignored by the general public and, at least to date, have not incited or produced imminent lawless action.
Yet there are also valid arguments for punishing Holocaust denial. The Holocaust was a methodical effort to exterminate an entire people; it plunged far deeper into the maelstrom of human depravity than anything before it.
Holocaust denial is not really about denying a historically established event. Human language is not limited to conveying verbal information. It also conveys emotional information and can influence and incite by the unspoken message it contains. It can be a powerful message.
The recent Holocaust-denial conference hosted by the Iranian president is a good example. The emotive message was both anti-Israel and anti-Semitic. That was in fact its whole purpose.
Holocaust denial can thus be seen as a way to incite hatred against Jews and the Jewish state. And inciting hatred, whether religious, ethnic or racial, is generally deemed to be unprotected speech. Just as there is no right to shout fire in a crowded theater, so there can be no free- speech right to incite racial or religious hatred.
Of course there are ways of discouraging speech intended to stir hatred other than by prohibiting it. Laws can be passed enabling those who are targeted to sue the speaker and to recover substantial damages.
As ministers of justice throughout the European Union begin to consider a uniform Holocaust-denial law, they ought to ask whether this might have a chilling effect on other speech. If a uniform law is adopted, will it tempt legislators to descend the slippery slope and begin to legislate about other historical events perhaps not so clearly documented and to impose by law what can and cannot be said?
They might ask what precisely a Holocaust-denial law intends to accomplish. Is it to silence the quacks who deny the fact or to prevent false information from influencing others?