How free is free?
Isn’t it extraordinary how our news seems to arrange itself into themes?
British ‘historian’ (actually racist crackpot) David Irving was imprisoned in Austria yesterday for Holocaust-denial. In his (unsuccessful) defence, he claimed both to have changed his views, and that it was a matter of free speech.
Here's the report from the Times:
On the one hand it does seem excessive to jail a man for views expressed 16 years ago (although he has made similar statements in public as recently as 2001).
On the other hand, three years in the nick couldn’t have happened to a nicer bloke.
British ‘historian’ (actually racist crackpot) David Irving was imprisoned in Austria yesterday for Holocaust-denial. In his (unsuccessful) defence, he claimed both to have changed his views, and that it was a matter of free speech.
Here's the report from the Times:
DAVID IRVING, the far-right British historian, sat stunned and open-mouthed yesterday when an Austrian court found him guilty of denying the Holocaust and sentenced him to three years in jail.
“I’m very shocked and I’m going to appeal,” Irving, 67, said as he was bundled out of the Vienna courtroom by armed anti-riot police.
From the public gallery a British supporter shouted “Stay strong, David”, before he too was led away.
But in Britain there was dismay at a verdict that could turn Irving into a right-wing martyr.
Irving had pleaded guilty to denying the Holocaust in two speeches in Austria in 1989. He was arrested when he re-entered the country, where it is a crime to deny the Holocaust, last November, and had been in custody since.
During his seven-hour trial yesterday Irving sought to convince the jury that he had changed his mind and now acknowledged the murder of six million Jews by the Nazis.
“I made a mistake when I said there were no gas chambers at Auschwitz,” he told the court.
But the judge and jury were unswayed. One hundred and fifty-eight people have been convicted of Holocaust denial in Austria between 1999 and 2004, but only a handful other than Irving have been imprisoned.
Lord Janner of Braunstone, chairman of the Holocaust Educational Trust, was pleased by the conviction.
He said: “It sends a clear message to the world that we must not tolerate the denial of the mass murderers of the Holocaust. The Nazis tried to wipe out an entire people . . . We must learn the lessons of the past to build a decent society for the future.”
The verdict came amid a furious debate in Europe over freedom of expression, with many defending the media’s right to publish cartoons of the Prophet Muhammad. The Arabic television station al-Jazeera broadcast the verdict to its Islamic audience.
Nick Griffin, the leader of the British National Party, was recently acquitted of making speeches inciting racial hatred. Abu Hamza, the radical Islamic cleric, was sentenced last week to seven years in prison for inciting racial hatred and soliciting murder.
In Britain there was alarm at the sentence. “Anyone who denies the Holocaust is off their rocker,” Gerald Howarth, Tory MP for Aldershot, said. “But to send a man to prison for three years for something that he said sixteen years ago and has since changed his view — what are we coming to?”
Anthony Beevor, the military historian, said: “However nauseating, these people should be confronted in debate rather than chucked into jail and turned into martyrs.”
The verdict will end for good the career of a man banned from a dozen countries from Canada to South Africa for belittling the murder of the Jews and glorifying Hitler.
In 2000 Irving was forced into bankruptcy when he unsuccessfully sued Deborah Lipstadt, an American academic who had called him a Holocaust denier. He was ordered to pay £3 million in legal costs and had to sell his Mayfair home.
She said yesterday: “He should have been met by the sound of one hand clapping. The one thing he deserves, he really deserves, is obscurity.”
On the one hand it does seem excessive to jail a man for views expressed 16 years ago (although he has made similar statements in public as recently as 2001).
On the other hand, three years in the nick couldn’t have happened to a nicer bloke.
posted by Brit at 5:47 AM
27 Comments:
Yes, there won't be many tears shed for Mr Irving. But on principle I believe that these laws are wrong. Once you criminalize some speech based on cultural sensitivities, there is no principled reason not to open up all speech to the scrutiny of aggrieved parties. Then you start greasing the squeaky wheels, and you will have a race to the bottom to see which group can squeak louder than the next.
Further to condemn Irving, Holocaust denial is of course a specific offence in many European countries, which he was doubtless aware of.
And yah-boo cartoons are one thing when it comes to 'freedom of expression' or opinion, whereas claiming as historical fact that there was no Holocaust is another.
I still doubt that imprisonment is appropriate though. Humiliation would be more effective.
I support absolute freedom of expression -- not of conduct, necessarily; you cannot express yourself by burning down the Danish consulate -- but there are few absolutes in this world.
The antinazi content-control laws in Germany are, in my opinion, OK, under the Rabid Dog Rule, which I just made up.
But Irving isn't a German.
I'd be more impressed, though, if Waldheim was the one going to the slammer.
While Irving isn't a German, he did go to Austria and make statements there, which seems remarkably stupid. Austria's ban has no effect on anyone not actually in Austria.
I also disagree the law, but given that it's about historical fact rather than opinion, and has strong political relevance (via the Mad Dog Rule), I am prepared to not think too badly of the Germans and Austrians on that account.
He was banned from a dozen countries, but NOT from Austria, one of the few nations willing to actually imprison him for being mentally or emotionally ill ?!?
Was this a trap of some sort ?
Of course free speech fights are over the honor of very ugly, pock-marked damsels - nobody's foolish enough to attack the good looking free speech maidens, they'd get swarmed.
Peter:
Your argument sounds almost like atheism of the elites.
That this prosecution occurred, never mind Mr. Irving was imprisoned is pathetic.
Free speech creates a Jeffersonian marketplace of ideas, aka the hive mind. In that marketplace of ideas, Mr. Irving had already well and truly lost. Prior restraint was both unnecessary, and, ultimately, self defeating.
How many people would know, or care, about Mr. Irving had the legal system ignored him from the outset? Maybe the name for this is the Fatwah Effect. Nothing like threatening to punish the author for sending book sales through the roof.
As part of that libertarian pack (your conflation of that term with liberal would not withstand much scrutiny, BTW) I fully understand that the liberties we enjoy come precisely from declining to accept the prior restraint reflexes of Genuine Conservatives.
There is no law against Holocaust denial in the US, or in Britain, or most European countries.
They also suffer no plague of denial, nor any tradeoff with peace and decency on this issue.
It is very difficult to conclude these intrusions on free speech, like all others, are other than useless and self-defeating.
Oroborous is right. Defending free speech is never about protecting the ability to praise widely accepted notions.
Susan's Husband:
Since that is my name in real life, I had a momentary out-of-body experience reading your post.
At one time in the West it was commonly accepted that the Bible was historical fact, and had strong political relevance. Should that have made questioning the Bible vulnerable to prosecution?
Brit & Peter
OK, so what are the principles upon which society regulates speech? Or is all speech, in principle, subject to regulation and we leave it up to the voters to decide? Will you really be happy with letting a majority of voters decide what you can say and what you can't?
Duck:
The way we run it at the moment is about right, though not perfect.
For example, it is illegal to provoke violence or promote racial hatred.
It is up to the courts to decide if the law has been applied correctly to individual cases and decide the appropriate punishment for the seriousness of the crime.
It was tested twice recently. Nick Griffin got away with it, Abu Hamza got imprisonment for 7 years.
I wouldn't advocate allowing Hamza out to say what he wants, would you?
Skipper:
"Free speech creates a Jeffersonian marketplace of ideas, aka the hive mind. In that marketplace of ideas, Mr. Irving had already well and truly lost."
That's ok as a general rule, but it is not enough on its own.
Two problems immediately arise:
1) What about when the hive mind decides that Nazism is a good idea?
2) If you're freely promoting, for example, suicide bombing on tube trains, it only takes a couple of bees and what the hive thinks is moot.
Brit,
But what principles are these laws based on? I understand that you don't have the equivalent of the 1st Amendment, but are there any governing principles that would (or should) prevent Parliament from passing laws that do away with free speech during some emergency? I'm wondering how you would deal with the slippery slope problem where speech restrictions, once imposed, are used to prop up a governing elite or ruling cultural/religious group.
There can be a fine line between sedition, which ought to be legal, and subversion, which ought not.
Hamza was a subversive, I think, though I am not sure evidence sufficient in a court of law was presented to prove that.
It'll be a dark day when we make it illegal to be a jerk.
On most American campuses, Brit would be expelled for saying, "fagpaper."
Brit:
I don't mean to sound pollyanish about the hive mind, but if I was rolling dice, I'd say they are pretty heavily loaded to coming up snake eyes if something other than the hive mind is doing the rolling.
(And if I was rolling dice on the above being an example of metaphor abuse, I'd probably come up sevens.)
I think it is easy to focus on Mr. Irving's rants, while simultaneously forgetting they were greeted by something not even closely silence, or approbation. I was living in England when Mr. Irving (who, IIRC, had been something of a well respected historian) first floated his Holocaust nonsense.
As befits the hive mind, and freedom of speech, the sheer ridiculousness of his views were hoisted for all to see. There was simply no having them incubate in some hidden offal pile. Which is where such ideas go when they don't have the opportunity to succumb to the best disinfectant of all: sunlight.
That's why I don't think the hive mind is at all likely to decide Nazism is a good idea. Because it isn't, and it won't survive scrutiny.
As for freely promoting suicide bombing on tube trains, that is something of a dilemma. But I'm not sure if suppression makes matters any better. Perhaps you want your nutters above ground, where it is easier to play whack-a-nutter, then scurrying about, completely hidden from view, in their nutter warrens.
"Given that it is clearly and obviously illegal to go to Austria on a speaking tour and make a speech to a room full of people stating that the Holocaust didn't happen and that it is all a Jewish conspiracy, then if you choose to do exactly that, you must accept the consequences."
What does it mean to "accept" something? Does it mean merely to acknowledge reality or does it mean you must approve of it?
Of course you must "accept" reality. But that doesn't mean you have to approve of it.
Skipper:
I think of it this way. Sensible borrowers with a variable-rate mortgage insist on an upper cap, and sensible lenders insist on a lower cap.
Sensible societies allow the hive mind to do it's thing, so long as there's a cap. Nazism and incitement of violence seem reasonable caps, but there's room for debate.
Mark:
It means I don't much sympathy for Irving's defence of 'but I don't like your law'.
I understand that you don't have the equivalent of the 1st Amendment, but are there any governing principles that would (or should) prevent Parliament from passing laws that do away with free speech during some emergency? I'm wondering how you would deal with the slippery slope problem where speech restrictions, once imposed, are used to prop up a governing elite or ruling cultural/religious group.
Duck, there's no easy way to break this to you, so I'll just come out and say it: Our protection against Parliament abusing laws to prop up a governing elite is....ahem.... cough cough ... the Queen.
Fear not, you wouldn't be first American to argue that Royal Assent, pragmatism, a vague idea of 'if it ain't broke don't fix it' and a sense of fair play are rather flimsy safeguards against tyranny, and that we ought to get busy scribbling a constitution.
We even have a few over here suggesting it, only we call them "the Liberal Democrats".
Peter:
Bravo!
You go, Anglo-Canadian small-'c'-conservative pragmatism-over-first-principles Tag Team Member!
The other problem is that a more pragmatic test based upon reasonableness takes cognizance of the problem at an individual level and doesn't hide behing abstract collectivities. It's fine to talk about "Christians" and "Muslims", but if a teenaged girl is subject to ongoing religious taunts all day long from her peers, is she just supposed to suck it up in the name of free speech?
No, of course she is not supposed to suck it up. Oddly enough, that is the response that my parent's generation would expect to hear from their parents. And I don't know of any free speecher that would defend ongoing harassment in a school setting on free speech grounds.
Yet I still fail to see how the both of you equate that situation with the Danish cartoons in their level of seriousness. It is one thing to control to control the kind of violent harassment that you describe, it is another to try to insulate people from unpleasant or disagreeable ideas. I fail to see the distinction between your views and the political correctness movement. How will you feel when you are told that you can't criticize secular people because they take it as an offense? Or that you can't proclaim the superiority of Judeo-Christian culture because it offends Asians and Native Americans?
The best defense against offensive speech is more speech, speech critical of the offensive speech. Your scenario makes it seem that noone will come to the defense of an offended or aggrieved person or group, or that there are no defenses against hate speech other than legal remedies. People can be fired from jobs as well as ridiculed and isolated from the community based on what they say. Having free speech doesn't earn you a podium on which to broadcast your views.
The free speech view is a conservative view, because it doesn't assume that laws can remedy the flaws in human nature. If you think that you could keep society decent and content by being the language cop for society, I think you'd be sorely disappointed if you were ever given the job. You would become the most hated man in society in very short order.
Duck:
I don't think either of us thought the cartoons should be illegal - the law is the wrong tool to deal with them - we just disapproved of them.
I think we've left the cartoons behind here, and moved on to a broader debate about whether free speech has limits, and if so why, where they are, and how we should determine where they are.
Peter and I take a more pragmatic line than you. The principles are important, but so are the circumstances.
An old duffer in his colonial club raving drunkenly to the barmaid about 'rivers of blood' is one thing; the same views expressed by a fist-pumping demagogue to a gang of wired white neo-Nazi males in a pub in an ethnically-diverse neighbourhood is another.
I cannot be as optimistic as Skipper about how the hive mind will tend to drive crazy ideas to the wall. Depends where the hive is.
Public opinion in Muslim countries now or in Georgia during my teenage years is/was nothing to admire.
On the other hand, if I'm asked whether to side with Flynt or Brit's friend, I don't think that's the option. But if it is, I'll take Flynt.
I was called some pretty nasty things when I was marching with SCLC in 1963.
And I was a schoolboy.
We have, right now, the example of the Westboro church attacking vets' funerals.
Public opinion has reacted with a sort of posse, but so far no action has been taken.
I'd say it's past time for that preacher to be run out of town on a rail, but we Americans are all pansies nowadays. In my time, when a gentleman said he would horsewhip another gentlemen across the town square, he did so.
The problem with running away from principle in favor of pragmatism is that it's a principle like pregnancy: cannot have only a little bit.
I think the principle has been misstated. It is equality before the law. If I am not good enough to tell you what to say, you are not good enough to tell me what to say.
And when I look at the practical results of UK libel law, I cannot conclude that Britain's version of free speech is just as good as ours.
Forgot to say that I have not seen Skipper defending Irving nor attacking those who object to him. Nor do I think that is the inevitable result of standing up for free speech.
The Skokie Nazi march cases are the case to look at.
There are about as many Illinois nazis now as then, but they gave up marching in Skokie pretty soon.
Peter:
I'm with you all the way to The problem with Skipper's approach of just imposing the same old philosophically pure template regardless of the who-what-why-where-whens is that he will inevitably come to defend the thug or racist or pervert and blame the victim/object for not being good sports.
And I may even be with you here, depending upon what you mean by "good sports".
If by that you mean I will blame the victim if said victim knifes the thug/rascist/pervert for speech alone, then, yes, I will blame the victim.
But I certainly don't expect the victim to not retaliate in kind.
And I expect that the hive mind will be able to, by and large, over the long run, distinguish between sense and non-sense.
Well, he should try it sometime and see how his sense of community loyalty and patriotism hold up when he and his family are subject to the wrath and contempt of those around him.
Well, I haven't been surrounded by contempt in that manner. But I have been accused of subverting our society, inability to comprehend the Declaration or Constitution, inherent amorality, and an affinity with Nazism. For those sins, I should be punished in various ways, and/or deported.
Now those who accuse me of those things are not, at the present moment, of sufficient number to surround me with compatriots equal in their contempt.
In the case at hand, Mr. Irving is similarly unable to actually do anything with his delusional nonsense. The only difference is that he has gained far more notoriety than those who accuse me of, when you get right down to it, some pretty nasty stuff.
For the same reason I wouldn't dream of limiting the free speech of those who attack me personally, I completely disagree with punishing Mr. Irving for what he has said. By all means editorialize, demonstrate, repudiate his arguments or shun his company. Those are the appropriate consequences for offending people.
Finally, the absolutist/logical/first principles approach is based upon articles of faith like "truth will win out in the end" that, however noble, are hardly scientific verities.
No, of course they aren't. But I'm not arguing certainty, only the odds. The favorite argument of Leftists against the free market is the presence of "market failures," where the market fails to produce the outcomes it should. Never mind "should" being in the eyes of the beholder, the argument fails instantly because it presumes the people in an appointed group will behave more intelligently than the market.
While that may happen on occasion, in the main that notion has been a spectacular failure.
Free speech is little different than the free market. It may be that appointed guardians may, on occasion, produce a better outcome than the hive mind, but it is impossible to know a priori which occasions those will be.
What is possible to know, though, is that the box score of appointed guardians will be decidedly inferior to the hive mind.
Harry says he isn't as optimistic as I am about the hive mind's ability to drive crazy ideas to the wall.
Keeping in mind that my outlook is between varying degrees of pessimism, it should be noted that public opinion in Georgia, while far from perfect (at least if my experience in Alabama is any guide), is undoubtedly much better than it was when Harry lived there.
A state of affairs for which free speech is largely to blame. Would you have appointed guardians then?
Well, that's a puzzle isn't it? No question public behavior is lots better in the South than it was 40 years ago.
A triumph for public opinion but also for the coercive power of the state. We'd never have got to where we are if we had depended on libertarians, and if we'd depended on conservatives we'd be back with slave markets.
But whether white southerners have really changed their opinions, or their speech when they are among friends, is something I cannot dope out.
And I try, whenever I'm visiting Dixie.
It's easier to endure overwhelming social contempt if you're certain your ideas are superior to theirs, which made it easier for me to bear.
Unfortunately, their is no correlation between belief that your ideas are superior and having ideas that really are superior.
Peter:
Do you remember a few years ago we had a big debate on Brothersjudd about telemarketing? As I reacll, you took a "rights" approach and after many posts concluded your constitutionally protected property rights were being violated if they called without your prior consent.
Yes, I do remember that debate. I seem to remember OJ arguing that telemarketers had an absolute right to call. IIRC, my entering argument was that freedom of speech necessarily included freedom from speech: that someone has the right to say whatever they desire does not include the ability to make me listen. At the end of the day, again IIRC, David convinced me I had to change my mind on this somewhat. Once more with the IIRC, I found your utilitarian argument the most persuasive: sure I can turn off the phone during dinner, but how is my teenage daughter to call me when she is out with her friends?
I'm not sure the two situations are sufficiently similar to make the analogy work. Telemarketers represented an unavoidable intrusion (or avoidable at some cost, which might be considerable) into the home, using instruments that you pay for.
Mr. Irving, or any similar ugly, unshaven, warty example of free speech in action, isn't like that. His speech has always been eminently avoidable, and becomes prominent only through prosecution. The Fatwah Effect is always self defeating, in that it brings far more attention to the object of suppression than would have occurred otherwise.
I do not ignore David the Emminently Reasonable's warnings regarding maximum lawful free speech. Where I differ with him and you regarding the required underlying firm social conventions is the source of those conventions.
One cannot, on one hand, argue that Americans, say, are extremely conformist, and on the other argue that we need a priori restraint on speech. The US has virtually no restraints on speech, and while I won't argue that contemporary discourse in America is likely to eclipse Plato, it is also not particularly noteworthy for its incendiary nature -- there is darn little slander and (pornography aside, which really isn't at issue here) obscenity.
So I simply don't see a price, some either or tradeoff, in eliminating essentially all prior restraints on speech. I am arguing in support of free speech as it exists in most of the West now; prosecuting Mr. Irving is antagonistic to that, and, as I noted above, self defeating.
What's more, the arguments against free speech often rest upon the resulting offense. That puts my irony meter right back into the red, because those making that argument are themselves guilty of doing the very thing they condemn.
You, we, live among Muslims. You also live among a far greater number of people who do not adhere to any religion, or any particular notion of God. Those people are hard working, successful parts of society who are routinely subject to all manner of opprobrium. In my previous post I had noted obvious, recurring, examples of religionists slandering the firmly held spiritual beliefs of others. Until adherents of revealed religions stop publicly and routinely demonizing areligionists as they do, any claim to restraining speech based upon resulting sacred offense simply reeks of hypocrisy.
Those who can't take it had best stop dishing it out.
I will be a lot more receptive about suggestions to restrain speech as a means to promote respect and decency for others (or as a means to hide disrespect and indecency) when they start doing to same me.
Harry:
As an agnostic libertarian, I am troubled by your assertion that we would never have seen the change in the behavior of white southerners over the last 40 years absent the coercive power of the state.
Unfortunately, I think you are probably right.
I lived in Montgomery, AL, for nearly a year in the early 1990s. And while public behavior was undoubtedly a huge improvement over the 50s, I was astonished at how often white southerners automatically assumed I , simply due to the color of my skin, shared their racial beliefs.
My guess (hopefully not pollyanish) is there is a generational component to that; Southerners in their 30s and 40s probably don't view African Americans in nearly the same way as those in their 50s and 60s.
Ironic, though, that overt expressions of racism occur in the same place that has more houses of worship per square foot than any other region in the known universe.
I'd like to think that my marching with SCLC allowed racially tolerant or indifferent white Southerners (like my father) who had allowed themselves to be cowed by the extremists to stand up and tell the racists to go to hell.
If so, it wasn't a huge number who took advantage of my small effort.
The problem of discourse, which Peter states so eloquently, is that you don't get it if you don't have it. We didn't have open discourse in the South. (The language we did have was coarse and offensive; the two are not, as Peter imagines, connected at all.)
As for Islam, by not mocking Mohammed you are -- through indifference, fear, ignorance, misguided brotherhood or something else -- conceding a public discourse argument to the wrong side.
Muhammad may be admired but that does not mean he is admirable. A society of decent values that does not include the decency to mock evil men is not getting the elevator to the top floor.
There may have been many profoundly kindly and helpful white Americans in the South, and for sure there were some (like my mother) who were terribly distressed by what they took as assaults on their way of life.
I know I distressed my mom by my marching. I terrified my dad, who thought I was going to get hurt (he was right about that, too), but I think he was a little bit grateful and proud of me, too.
After I started marching, he started voting for the first time in his life.
To all the alleged decent Muslims, I say, if you're not with me, you're agin me.
I said the same thing to my family, including my Bircher uncles.
Are human rights important?
They are to me.
Harry,
I think you make a good point. To the extent that free speech can be limited in defense of societal norms, it will more often than not be limited in favor of the majority and at the expense of the minority. Peter imagines that the majority is always for decency and respect, and that the minorities whose speech rights are defended are the provocative troublemakers who would destroy the civil, decent society that the majority has wrought. And he also imagines that this provocative streak is something recent, and represents a fall from the civil past.
I'd say that the opposite is true. This sensitivity to the feelings of other groups is something recent. How civil was the established order to the Irish when they first came ashore? Or the French Canucks, Italians and Germans? Not to mention the Blacks, either before or after emancipation. Discourse between groups was a no holds barred combat compared to today, and it was considered decent if bad feelings were only confined to words.
So Peter, I think that rather than painting our times in your normal gloomy hues, you should celebrate the fact that we've achieved such a level of civility that we can make such a big deal over cartoons printed in Denmark.
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