A version of this article appeared in The Weekly Standard on April 10, 2006.
Post-World War II anti-Nazi speech laws have increased in scope over the past sixty years. Instead of silencing extremists, however, the laws reduce political debate in Europe and often punish mainstream politicians and parties.
On February 20, an Austrian court sentenced the notorious British writer David Irving to three years in prison for denying in a 1989 speech that Auschwitz contained gas chambers. Many American observers had mixed reactions. They saw Irving as a loathsome anti-Semite but were uncomfortable with the thought of a person serving time behind bars for something he wrote or said, no matter how noxious. Journalist Michael Barone probably spoke for more than a few when he said that he “shuddered” at the news of Irving’s imprisonment, “yet I can understand why Austria, like Germany, has laws that criminalize Holocaust denial and glorification of Nazism. History has its claims—heavy ones, in the cases of Germany and Austria.” In other words, criminalizing speech might not be the American way of doing business, but it’s understandably Austria and Germany’s way of dealing with their unique Nazi past.
The trouble is that Austria’s anti-Nazi legislation is the tip of an iceberg of political speech laws across Europe.
This is unfortunate, because anti-Nazi laws gradually expanded to cover other historical events. In 1993, Bernard Lewis, the eminent Princeton historian of the Middle East, was asked in an interview with Le Monde about the mass murder of Armenians in Turkey during World War I. He readily acknowledged that terrible massacres took place but questioned whether the murders were the result of a predetermined—that is, genocidal—plan. That conclusion brushed up against French laws that now prohibit denial of more crimes against humanity than just the Holocaust. Several activist groups in France filed complaints. Two civil and one criminal suit were dismissed, but Lewis was found guilty in another civil suit and condemned by the court for having not been “objective” regarding events that the European Parliament and other bodies had officially certified as a “genocide.”
The expansion of the speech laws beyond the Holocaust is revealing. Especially once it became evident that neo-Nazis were politically marginal, it was unclear exactly what risk Holocaust deniers posed. An alternative interpretation is that bans on denial were never really about averting the menace of Nazi revivalism. They were motivated instead by the fact that good people were offended by Holocaust denial. That this is really what is at work is confirmed by laws prohibiting denial of events like the Armenian murders—cases that pose no risk of old genocidal agendas’ being revived.
So genocide-denial laws can now be used to sanction professional historians whose research leads them to findings that these laws classify as unacceptable. And the anti-Nazi slope has proven more slippery than that. Denial laws have been supplemented by new laws that are even more prone to sanctioning reasonable people.
Targeting the Political Mainstream
But the anti-incitement laws now regularly target people who are well within the political mainstream. This is political correctness backed up with prison time. Britain’s then-home secretary Jack Straw remarked in 1999 on criminal activity by people, many of whom posed as gypsies or “travelers”—hardly a slur on all gypsies even without that qualifier. But a travelers’ group filed a complaint of inciting racial hatred, prompting a formal investigation and extensive media coverage asking whether Straw was racist. In 2002, the prominent French novelist Michel Houellebecq was charged with inciting racial hatred in a novel and interview in which he referred to Islam as “the stupidest religion.” Veteran Italian journalist Oriana Fallaci was motivated by 9/11 to criticize Islam as violent and subversive of traditional European mores. As a result she faced a French attempt in 2002 to ban her book as racist, and she is scheduled to stand trial in Italy in June for statements “offensive to Islam.” One of her accusers, in turn, faces charges for calling the Catholic Church a “criminal organization.”
In May 2005, Le Monde, France’s premier center-left newspaper, was found guilty of defaming Jews in a 2002 editorial that criticized Israeli policies while referring to Israel as “a nation of refugees.” The appeals court found that such juxtapositions made Israelis synonymous with Jews, so criticism of the former constituted incitement of hatred against the latter. After it published a series of controversial cartoons of Muhammad, the Danish newspaper Jyllands-Posten was formally investigated to determine whether the cartoons constituted prohibited racist or blasphemous speech.
First of all, it turns out that some denials and incitements are more equal than others in Europe. For all the trials on charges of Holocaust denial, it is not clear that anyone has been charged with denial or minimization of crimes committed by Communist regimes. And the laws banning incitement of hatred on grounds of race, religion, ethnicity, or national origin do not ban incitement based on political orientation or economic status. Moreover, these laws protect speech that incites hatred against Americans and some others. And while there have been some convictions of Islamist radicals for inciting hatred against Jews and others, Europeans have been shy to move against the incitement pervasive in Islamist circles.
In other words, Europe’s speech laws are written and applied in ways that leave activists on the political left free to whitewash crimes of leftist regimes, incite hatred against their domestic bogeymen of the well-to-do, and luridly stereotype their international bogeymen, often with history-distorting falsehoods such as fictitious claims of genocide said to be committed by the United States and Israel. It may be no coincidence that Socialist and extreme-left parties have played central roles in the design of speech laws. The crafter of France’s 1990 Gayssot law, for example, was Jean-Claude Gayssot, a longtime Communist Party officeholder. All this matters. It sends an important signal to the broader culture when Hitler is the symbol of evil while Stalin and Mao are given a pass, and when, in effect, Pat Buchanan’s ideas risk indictment while Michael Moore’s are protected.
In response, many Europeans have found it difficult to justify these inconsistencies. Several European governments take the expected and untenable middle road: they refuse to ban the [Mohammed] cartoons but plead with their media not to publish them either. Other Europeans, though, seem to be using their discomfort over the idea of banning the cartoons to ask whether they shouldn’t get out of the business of banning political speech altogether.
If they try, they will not have the backing of international law. The International Covenant on Civil and Political Rights—the code the U.N. Human Rights Committee is charged with enforcing—insists on the banning of “advocacy of national, racial or religious hatred.” They also won’t command the support of the world’s best-known human rights organization. Amnesty International accepts speech laws as legitimate, so it generally excludes from its list of “prisoners of conscience”—that is, people “imprisoned solely for the peaceful expression of their beliefs”—anyone imprisoned for “advocacy of hatred.”