Holocaust Denial and Free Speech

April 21, 2010

A German court last week found controversial British Catholic Bishop Richard Williamson guilty of inciting hatred by denying the severity of the Holocaust. Williamson had said in a television interview that “no more than 300,000 Jews perished in Nazi concentration camps … not one of them by gassing in a gas chamber,” contradicting overwhelming historical evidence . The bishop, who acknowledged his statements in court, was fined $13,500.

Williamson is obviously wrong, and he seems like an unpleasant fellow with a history of stirring the pot with ridiculously false claims. But for free speech advocates such as myself, this case raises important questions about free speech and government interest. Holocaust denial is currently illegal in 14 countries, including Germany, Austria, Belgium, Czech Republic, France, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia and Switzerland. Understandably, these countries have a different relationship with the Holocaust than does the U.S. But isn’t the market of ideas and speech supposed to be completely open, free of governmental policing? Isn’t Williamson allowed to say whatever he wants to say (at risk of sounding like an idiot)? Why levy fines on such statements?

It is important to realize that, even in the U.S., speech is not completely free and open. For instance, one faces legal punishment for falsely yelling "fire!" in a crowded movie theater that is not, in fact, on fire. This is because such speech might cause serious harm on many people. To compare, the 14 governments above would likely charge that Williamson’s statements might do more than just upset some citizens — they might spark social unrest within a civil society.

On its face, this seems in line with the way the U.S. handles speech. In the U.S., citizens have the responsibility to review, and accept or reject, statements placed in the public square. But the government, with an interest in protecting its citizens, reserves the right to step in every so often and punish speech that either causes physical harm, or, within reason, might potentially cause physical harm. As we will see, these punishments are doled out on a sliding scale. This is seen as a safe middle ground between free speech and liberty, and protecting citizens. To illustrate, let us consider two examples.

As you might know, the Westboro Baptist Church shows up at many funerals for American soldiers killed at war wielding signs that charge the soldier is dead because the U.S. condones homosexuality. As crazy as these statements are, the government hasn’t banned such speech in these situations. Instead, the government has placed such speech under restrictions of time and distance. Those protesters, then, can say what they want, but cannot do it literally in the faces of mourning parents and family members. While this is partially a privacy issue — about mourning the loss of a loved one — I think it is also an issue of preventing an all-out brawl at a soldier’s funeral. If protesters break the rules, they face legal punishment. This is free speech with restrictions.

A better example, considering the case at hand, might be yelling "fire!" in a packed movie theater. In this instance, charges would vary depending on whether or not everyone got out safely (fines and perhaps a short jail sentence); if people were injured (more fines, higher likelihood of jail time); or if people died (serious jail time). Notice the difference between two considerations: “what happened because of that speech?” and “what might happen if we freely allow this speech?” In effect, the government’s response to a criminal act is based not just on the act itself, but also on the potential for harm that act creates. So, while the “fire!” yeller’s punishment would increase as the consequences of the act itself worsens, there is still a baseline punishment that serves to punish people who commit the act, and set the conditions for harm.

Going back to the topic of this post, in 14 countries, Williamson can still spout his hurtful nonsense, but he will face some form of light punishment (a fine) for doing so, and worse punishment depending on the consequences of his speech. But the ban on Holocaust denial rests on the argument that such statements do actually set the stage for potential physical harm. There are two problems with this. First, even if there is a reaction to Williamson’s statements, this is not the "fire!" in a movie theater case, where immediacy matters. Instead, reactions to Williamson’s statements are freely and more slowly formed in the open society. Why punish him for those reactions? Second, and perhaps more to the point, I am not so sure the governments can actually make the case that such statements set the stage for potential harm — in fact, I’m not sure they can even come close. While I am open to being proven wrong, from my research there isn’t a single case one could use to paint the potential for physical harm. So, why punish such statements at all?

As the responsible citizens you are, I put these questions to you. Your thoughts?