The Case for Austria's Anti-Nazi Law
Sunday February 26, 2006
Category: Free Speech | Human Rights in Europe
Earlier this week, I blogged on the three-year prison sentence of British white supremacist David Irving, who was recently found guilty of denying the Holocaust by the Austrian government. I find the law troubling from a free speech perspective and think it should probably be revoked, but there is a good argument to be made in its favor. Austin Cline writes:
I don’t agree with making Holocaust Denial a crime, but I am willing to allow that for Austria, it is something that qualifies as much more extreme than here. This law usually gets used against local neo-Nazi groups which, from an Austrian perspective, may represent a nascent but real threat to the future of democracy and liberty. I can sympathize with such fears.
I wouldn’t for a second support or be sympathetic to such laws in Canada or New Zealand, but it’s not unreasonable for Germany and Austria to treat the matter differently. This is especially true of Austria where they haven’t really come to terms with their Nazi past. Germany largely has, but Austria continues to regard itself more as a victim than a victimizer — they see themselves as having been taken over by Germany, not accepting the fact that they welcomed Hitler with open arms. I’m not speaking about every Austrian citizen, obviously, but Austrian society as a whole still has a long way to go to even come close to what Germany has done.
One of the problems with criminalizing any type of speech is that you set a precedent: certain ideas and expressions are made out of bounds, and it becomes easier to decide that other ideas should be out of bounds as well. Thus, if you criminalize one unpopular idea (Holocaust Denial), you may start criminalizing other things people don’t like. Has this happened in Germany and Austria? No, not that I am aware of — and a reason is that Holocaust Denial is criminalized not because it’s “unpopular” or because it offends some people but because it’s part of Nazi ideologies which they are trying to keep out of their political system.
Ideally, such restrictions would never be necessary - or at the very least, such restrictions would fade away and be eliminated over time, relegated to the dust bin of history as a necessary evil. Is this an ideal situation, however? If Germans and Austrians feel that they need such restrictions in order to prevent themselves and their children from once again descending into murderous madness, I’m reluctant to tell them that they are wrong, however much I think that the restrictions are a bad idea in principle.
Be sure to read the whole thing.
But even from the standpoint of isolating fascists and antisemites from the public sphere, there are at least three problems with the law:
1. If the government actually enforces the law in question, it may create martyrs (much like Irving) and thereby have the indirect effect of making the prohibited ideas chic.
2. The Supreme Court has generally looked at least-restrictive-means standard when evaluating free speech restrictions. Is this the least restrictive means of keeping Nazi ideas out of public policy? No; laws revoking the public office or temporarily revoking the voting rights of anyone who denies the Holocaust, for example, might work just as well.
3. It's probably not cost-effective. Spending the equivalent to $1.5M in legal fees and sweat equity to put an attention-crazed crank behind bars means shelling out $1.5M that could be spent on a new Holocaust education initiative, or on hiring twenty new full-time Holocaust scholars.
Still, none of the alternative options would convey the same level of condemnation as actually arresting the Holocaust deniers and locking them up--preventing them from spreading falsehoods and organizing political movements. So what do you think? Is the Austrian statute arguably necessary in order to prevent fascism from resurfacing?
Earlier this week, I blogged on the three-year prison sentence of British white supremacist David Irving, who was recently found guilty of denying the Holocaust by the Austrian government. I find the law troubling from a free speech perspective and think it should probably be revoked, but there is a good argument to be made in its favor. Austin Cline writes:
I don’t agree with making Holocaust Denial a crime, but I am willing to allow that for Austria, it is something that qualifies as much more extreme than here. This law usually gets used against local neo-Nazi groups which, from an Austrian perspective, may represent a nascent but real threat to the future of democracy and liberty. I can sympathize with such fears.
I wouldn’t for a second support or be sympathetic to such laws in Canada or New Zealand, but it’s not unreasonable for Germany and Austria to treat the matter differently. This is especially true of Austria where they haven’t really come to terms with their Nazi past. Germany largely has, but Austria continues to regard itself more as a victim than a victimizer — they see themselves as having been taken over by Germany, not accepting the fact that they welcomed Hitler with open arms. I’m not speaking about every Austrian citizen, obviously, but Austrian society as a whole still has a long way to go to even come close to what Germany has done.
One of the problems with criminalizing any type of speech is that you set a precedent: certain ideas and expressions are made out of bounds, and it becomes easier to decide that other ideas should be out of bounds as well. Thus, if you criminalize one unpopular idea (Holocaust Denial), you may start criminalizing other things people don’t like. Has this happened in Germany and Austria? No, not that I am aware of — and a reason is that Holocaust Denial is criminalized not because it’s “unpopular” or because it offends some people but because it’s part of Nazi ideologies which they are trying to keep out of their political system.
Ideally, such restrictions would never be necessary - or at the very least, such restrictions would fade away and be eliminated over time, relegated to the dust bin of history as a necessary evil. Is this an ideal situation, however? If Germans and Austrians feel that they need such restrictions in order to prevent themselves and their children from once again descending into murderous madness, I’m reluctant to tell them that they are wrong, however much I think that the restrictions are a bad idea in principle.
Be sure to read the whole thing.
But even from the standpoint of isolating fascists and antisemites from the public sphere, there are at least three problems with the law:
1. If the government actually enforces the law in question, it may create martyrs (much like Irving) and thereby have the indirect effect of making the prohibited ideas chic.
2. The Supreme Court has generally looked at least-restrictive-means standard when evaluating free speech restrictions. Is this the least restrictive means of keeping Nazi ideas out of public policy? No; laws revoking the public office or temporarily revoking the voting rights of anyone who denies the Holocaust, for example, might work just as well.
3. It's probably not cost-effective. Spending the equivalent to $1.5M in legal fees and sweat equity to put an attention-crazed crank behind bars means shelling out $1.5M that could be spent on a new Holocaust education initiative, or on hiring twenty new full-time Holocaust scholars.
Still, none of the alternative options would convey the same level of condemnation as actually arresting the Holocaust deniers and locking them up--preventing them from spreading falsehoods and organizing political movements. So what do you think? Is the Austrian statute arguably necessary in order to prevent fascism from resurfacing?
Comments
The law against Holocaust denial in any country is absolutely stupid. Just on free speech grounds alone it defies logic. But it also has a chilling effect on scholarly research. The United States still has documents from the WWII era that are classified. Great Britain and France may very well have documents that haven’t been released to the general public. And God only knows what the former Soviet Union might be holding onto. It wasn’t until 1993 that the Russians acknowledged that they had found the remains of Adolf Hitler. Considering that the Soviet Union were the first ones to get to Berlin and had liberated all the concentration camps east of Berlin (including Auschwitz), they surely had hundreds of thousands of pages of documents left behind by the Nazis that could change our perceptions of what really happened if these documents are ever released. What if a researcher found a crudely drawn map in a Russian archive that led to a previously unknown mass gravesite outside of Auschwitz containing the remains of 100,000 people that forensic analysis concluded had died from typhoid during the mid-1940s? Well, one of the claims of the holocaust deniers is that there was no policy of extermination but that the huge numbers of deaths was caused by disease and malnutrition. Finding the remains of people who died from disease and not gassing might be seen as bolstering the claims of the holocaust deniers and dissemination of that information could lead to an indictment. No scholar would open himself up to a five year prison term by publishing that knowledge. That is the biggest danger of anti-holocuast denial law–knowledge will stagnate.
I see no reason to imagine that critical skepticism about specific holocaust claims in any way favors the return of Nazism or fascism. Consider that if the Nazis had won World War II they would almost certainly have enacted laws prohibiting critical skepticism of their version of the holocaust. It would seem to me that laws outlawing holocaust skepticism are more likely to encourage Nazi and fascist-like behavior than simply allowing citizens to research the subject and draw their own conclusions. Prohibiting freedom of expression is a likely precursor to and not a protection from undemocratic political movements. This should be obvious to anyone who thinks about it.