A Tough Question About Thoughtcrimes

[Update: Irving has been sentenced to three years.]

As you can probably imagine, I don’t have a lot of love for Nazi apologists, or Nazis themselves, especially Illinois Nazis (see here).

But reading the London Times about the trial of right-wing Holocaust denier David Irving, I felt a twinge.

He’s on trial for what is – essentially – a thoughtcrime. I haven’t read his stuff directly, but from all reports, he denies the existence of the Holocaust.

He’s now on trial for that.

Mr Irving faces a maximum sentence of ten years in jail under Austria’s 1946 Banning Law which makes it an offence to publicly diminish, deny or justify the Holocaust. He has been held without bail since November on charges stemming from two speeches he made to Austrian rightwingers in 1989.

And having pled guilty, and facing the issue of sentencing, the issue isn’t his actions but his thoughts.

“Irving walked in with a swagger but soon ended pushed up against the wall in cross-questioning by the judge that forced him to apologise or express regret for almost every utterance he had made over the past 20 years.

“He admitted saying in 1989 that there were no gas chambers in Auschwitz. But he is saying that since he saw various documents in 1992 he has changed his mind and now accepts that Jews were killed.

“It’s a jury trial and Irving keeps on making references to his daughter, hoping that he will get a suspended sentence so he can leave Austria tonight. But the judge is pushing him all the time, demanding apologies – he’s being even tougher than the prosecutor.

Now I don’t know about you, but there’s something deeply creepy about this to me. I accept that we’re in an ideological battle more than a military one – it’s about the War on bad Philosophy, after all. But having spent the weekend reading reviews of the latest movie Sophie School: the Final Days about the White Rose, a short-lived student protest group in Nazi Germany, I’m just damn uncomfortable to be reading about a judge demanding to know that in his heart, David Irving has changed his mind.

31 thoughts on “A Tough Question About Thoughtcrimes”

  1. Now I don’t know about you, but there’s something deeply creepy about this to me.

    I too find it so. Europe needs more free speech, not less. Without free speech there is no forum in which the concerns of the people can play out. Europe is a bit of a pressure cooker and the governments have wired down the relief valve. I think the risk of explosion outweighs the minor nastiness of holocaust denial.

  2. This so-called “thought crime” is the same as hate crimes to me. A hate crime is something that one ‘thought’ about doing and just took action as a result. In Austria, I would think that the sensitivity of the Holocaust would be around for a long, long time. And the Banning Law seems to be a knee jerk reaction to the horror of that period – re: it was 1946.
    What Mr. Irving has done is more of “incitement to riot” than a thought crime. He apparently went public in spite of the law. It sounds like he is no longer real keen on the notion that he is correct.
    I think you are having a problem with the “law” as enacted – and that’s understandable from our (America’s) perspective. We don’t have thought laws here but there are Federal hate crime laws which are pretty close, I think.

  3. Since the Holocaust is a demonstratively provable historical event,there are German records,film,oral history of the victims and the troops who relieved the camps,vast archival documentation,this kind of prosecution of thought crime somehow demeans the suffering.
    It is as if it isn’t about the victims any more but the power of the state.If they want to show how wrong Irving is, just run the contemperory newsreels that were shown at the end of the war.

  4. I have a problem with this, too. Civil society needs to handle this one.

    I’d have no issue with people protesting his employment in any university as an historian, and shutting him out of the job market thereby. Nor would I have problems with a law that restricts the right of neo-nazi or similar parties who deny the Holocaust (or, parties who themselves do not believe in democracy – which would include communists and islamists) to run in elections. The first is a set of private decisions, the second a reasonable prohibition whose narrower form is present in Germany as well.

    But jail for thoughtcrime is way over the line.

  5. I think Peter’s post can be summed up as “the solution to bad speech is good speech.”

    While it might be emotionally satisfying to some to try to ban absurd and outrageous comments, ultimately it is more effective to simply put out the mountains of evidence (which will still remain even after the last survivor has passed away) up against the few holdouts that persist in placing their fingers in their ears chanting “la la la, nothing to see here.”

  6. I think DenBeste made an important point a while ago:

    There are too many cases where small groups, or sometimes not-so-small groups, can come up with answers that I don’t like and with which I profoundly disagree and would consider terribly dangerous to implement. But I do not feel any need to use any kind of force (physical or legal) to shut them up, because I feel extremely confident that the strong noise rejection implicit in our system will make sure that their ideas don’t ultimately affect the policies of our nation. As a result, I believe in the full right of White Supremacists to make their case publicly, or for blacks to parade in Washington demanding reparations for slavery.

    They can do those things because they can’t cause any important harm that way; their contribution has no chance of ever rising high enough to penetrate above the noise rejection threshold. And thus we can structurally permit the widest possible range of expression because it might help and it has virtually no chance of causing harm.[…]

    In a system with a lower noise threshold, which permits minority viewpoints a greater chance of rising about the noise rejection threshold, you’ll find a distinct nervousness. There will be a fear of the common voice, the worry that extremists may somehow manage to influence the system all out of proportion to their numbers. I think you’ll find that in such nations there are always going to be more restrictions on free expression in at least some areas. That means that they’re being forced to use explicit semantic filters to eliminate things which their election process permits through structurally. We do some semantic filtering too, but we haven’t had to modify ours in response to transient political movements. We don’t ban Nazi symbols, or suppress hate speech, because we don’t have to. Our filtration is implemented as court challenges to election results, not as suppression of freedom of expression.

    Our system controls those things on the structural level by content-neutral means of a higher noise-rejection threshold, which means we don’t have to use semantic filters (i.e. censorship) and we don’t have to be as nervous about expression of extreme viewpoints.

    I think that the failures of the much vaunted “European third way” are coming to the surface at an alarming and growing rate.

  7. Of imporance is that this is *not* David Irving’s *first* *trial*.

    His first was roughly 10 years ago, and documented well in Richard J. Evans book “lying about hitler”. (I have since given the book away, so my facts might not be perfect)

    The prologue basically explains that David Irving was accused by British writer/historian Lipstadt using intentionally misleading facts about the holocaust. David Irving decided to sue Lipstadt for libel, and the trial was started.

    In order to win the suit, Lipstadt had to hire several historians (one historian witness was evans) for the trial. Evans then studied Irvins book/primary sources in order to *prove* that David Irving intentionally misued facts and sources to prove his position. He points out numerous times that this is very difficult: it is easy come to different conclusions by reading the same primary document, and coming to your own interpretation from various documents is safe. Intentionally modifying the language, or using ‘edited’ language of a document is not.

    When the trial came to pass, Evans and several other historians were able to prove that Irving:

    1)intentionally used only documents that proved his case, or only cite ‘fragments of documents’ that proved his case
    2)selectively use only interpretations of the same document that proved his case (in one instance he used part of an old translation that supported him; and then used part of a new translation that also supported him, without notifying readers that he was using two different translations selectively)Note: the bulk information from each document did not.
    3)used quotes outside of proper context
    4)Used ‘intentionally misleading’ figures, graphs, and numbers to downplay Halocaust victim numbers, and to increase Dresden death numbers
    5)Refer to letters/communications/trial data by some German officers as inaccurate/misleading/intentionally incorrect (and would then use them latter without notifying readers).

    So Irving lost, in court, easily. He was actually considered to have some scholarly ability before this, but that was basically all sripped from him in this trial. *Now* he wants to say that there is new evidence, that was not part of the trial, and he is right again.

    How convienent. Let’s take him to court and put his money where his mouth is.

  8. Bold talk from people in a country whose press is so terrified of Muslim mobs that it, by and large, refuses to print real news that might provoke an angry reaction. Freedom of speech is supposed to be a shield to help protect us against the siezure of power by those of a genocidal bent, but it is useless when it remains idle because those who would stand up against evil remain silent, perhaps because they have been disarmed, either by law or by their own timidity.

    It’s easier to be a free speech absolutist when one is an ocean away from Auschwitz rather than in its shadow, and when one’s government hasn’t within living memory murdered millions of its own citizens because the masses failed to use “good speech” to object to a blood libel.

    But even in the relative sanctuary of the USA, all the talk of “speaking truth to power” now rings hollow. It holds true only so long as the power is a benevolent one. It is a demonstrably empty boast when those claiming such courage quiver in fearful silence, not before any so-called “power,” but before what is merely a lawless mob half a world away who might have a few unhinged friends in the neighborhood.

    I also think that the cure for speech like Irving’s is more speech. But speech alone might not get the job done for the good guys if the bad guys have speech plus a willingness to use violence to intimidate would-be critics. Perhaps it’s time to recall that freedom of speech isn’t something that was secured by passivity, but by violence applied to those who would deny that freedom. It’s not a coincidence that the right to bear arms immediately follows the right to free speech in our Constitution.

    Let Irving and his ilk have their say, and let the Muslim mobs express their displeasure with cartoons, but when they cross the line and advocate forcibly silencing some or all of the rest of us, they cease to be speakers — then they become targets. The sooner we make it clear that violence or the threat of it for the purpose of abridging our most precious freedoms will not be met by speech, but by overwhelming force, the sooner the thugs acknowledge our freedom.

  9. Sorry, he should be on trial for lying about facts, not merely saying the halocaust doesn’t exist.

    Still, shouldn’t Halaucost victims be able to *SUE* *HIM* for libel?

  10. Does anybody think the State leaning on Irving is going to make one jot of difference to Holocuast deniers?

    Irving is a sacrificial lamb to a State trying to improve its reputation. He will come out more popular in all the old familar places.

  11. Continuing — thoughtcrime laws aren’t needed in a society where a citizen can defend himself against those who would use violence or the threat of it to thwart his excercise of free speech. They’re a disarmed population’s substitute for self-help. Hate speech walks very close to the line dividing speech and action, and when the target of the speech has no means to protect himself against violence incited by the speech, the nanny-state response is to preempt the offending speech. The public policy that Austria is carrying out in prohibiting Holocaust denial is preventing an assembly of citizens with dangerous ideas, because there is no effective counter to such an assembly except by the state itself. No individual citizen will challenge the mob who may be incited by someone like Irving, because even though the state cannot protect the individual citizen who does so, it nevertheless has denied the individual citizen the right to an effective means of self-defense. Prior censorship, therefore, achieves domestic peace and security, but because any prior censorship will be overbroad, the price of such peace and security is a bit of the speech that should be free.

  12. “I’m just damn uncomfortable to be reading about a judge demanding to know that in his heart, David Irving has changed his mind.”

    Austria is not the United States. First, the role of a judge in a legal proceeding in Europe is much more activist than it is in the US. It’s not wrong. It’s just different.

    Second, Austria has a history, and that includes Nazism. One of the things that post-war law makers wanted to do was to keep any former Nazis from re-writing history. Not that they have been totally successful, but it has helped to keep a lid on things.

  13. alchemist, a law permitting causes of action for libel against an extremely large group is itself a threat to free speech. One of the ways that the law prevents libel suits from chilling free speech is to require that the person suing for libel be able to show that he has been harmed in a way that the law can recognized — lost employment opportunities, etc. When the target of the libel is a large group — Jews, for example — the likelihood of anyone in society accepting the libel as truth and using the false information to the detriment of the plaintiff is so small as to be considered a legal impossibiity. So, Irving can lie about the Holocaust without fearing a lawsuit for libel. If libelous statements regarding large groups wree actionable, political discourse, at least as it is presently conducted in the US, would be a legally risky activity (for example).

  14. I’ve always had a special place on the sole of my foot for halocaust deniers…. I’ve just always had an obsession for events like the Halocaust, and trying to understand how people can become so… _twisted_.

    … and with deniers, they usually aren’t just denying. They’re still pumping up the rhetoric that Jews are beneath us, still printing the same anti-semitic rhetoric. And it makes my blood boil.

    Where is that line drawn between free speech and hate speech? I also agree that these people should be allowed to speak… but to be tolerated? I have alot of trouble with that.

  15. AFAIK, Holocaust denial per se is a crime in just a couple of jurisdictions — Germany, Austria, and France. Frankly, when it comes to the Holocaust, I see why German laws would be different from the Canadian laws we are used to.

    The question of whether these laws are still reasonable today is an interesting one. But you cannot convince me that having these laws in Germany in 1946 was somehow unfair or inappropriate.

    The actaul laws in Germany and France, incidentally, are not so much about Holocaust-denial as about *not* glorifying the Nazis. Why these laws are always described in the media as being about the Holocaust (i.e., a “Jew” thing) as opposed to being about the Nazis (i.e., a “German/Frenchman” thing) is an interesting question on its own.

  16. Joe: _Nor would I have problems with a law that restricts the right of neo-nazi or similar parties who deny the Holocaust . . . to run in elections._

    I agree with those restrictions in the context of 1946, because NAZI-ism was a popular ideology that threatened the democratic government. Fifty years later I think the restriction is not needed to protect democracy, but serves only to filter views unappealing to the State.

    Neo-NAZIs benefit from those restrictions today because it gives them a rallying cry of grievance and allows them to claim that their views are secretly popular without actually having to prove so in an election.

    The Genocide Convention requires member states to criminalize the incitement of genocide. The incitement of crime should always be illegal.

  17. Frankly, when it comes to the Holocaust, I see why German laws would be different from the Canadian laws we are used to.

    I am not so sure. When I worked in Germany in the early 60’s I shared a worker’s dorm room with a young Nazi just out of the German army. He kept a copy of “Conversations With Hitler” on the nightstand and read the National Zeitung (NZ). There were also old Nazis around who, after a few drinks, would show you pictures from the eastern front and complain about the bombing. So Nazis didn’t all just fade away and people can always find ways around thought laws. I can’t help wondering if Germans wouldn’t have been better served if they could have debated these things in the open. It is one thing to be taught things are bad, it is another entirely to understand the temptation and the historical persistence of certain viewpoints and, if you are one of the “bad” guys, to have to defend your views in public argument.

    As to my German experience, of course there were also sane young Germans who aspired to nothing more than beer, big cars, and pretty girls, and older Germans who wished for nothing more than work and security. I think those Germans would have carried the day in open debate.

  18. It might seem striking to an American but, free speech is regulated in Europe. Sadly, there is nothing here such as the First Amendment.

    The only good result, in my opinion, concerns Germany and Austria, were Neonazis can be, and have been, tackled much easier. In fact Police pressure on extremists in the old Eastern Germany would have infringed many American Constitutional Rights, but it has been very effective.

    It is also true that sometimes those groups circumvent restrictions moving to other European countries for some time or showing other symbols, such as the Kaiser’s Navy flag, which did not have much to do with their ideology.

  19. angua: _Why these laws are always described in the media as being about the Holocaust (i.e., a “Jew” thing) as opposed to being about the Nazis (i.e., a “German/Frenchman” thing) is an interesting question on its own._

    Its not merely an interesting question. The Muslim reaction will be “predictable.”:http://www.arabnews.com/?page=7&section=0&article=77428&d=7&m=2&y=2006 Jail-time for anti-semitic views (Irving) and laurels for anti-Islamic views (cartoons). It sounds like the German and French laws are at least better tailored by focusing on NAZIs.

  20. The concept of free speech has four distinct advantages as follows:

    One is that purveyors of hatred tend to use it to display their true colours to the world, thus leaving us better informed about their inner demons. Furthermore, it exposes our own vain pieties to the ridicule we deserve.

    The second is we get to see the followers who flock to their cause. We probably need that information for future reference. Thus can dingos be banned from kindergartens.

    Third is, the rest of us can ridicule them in print without risk of criminal prosecution.

    Finally, freedom to voice their views tends to lead them to greater excess, such as incitement to violence, for which they can face custodial sentences. The more rope we give ‘em, the longer the sentence.

    I just watched an Auschwitz survivor arguing against the law that convicted Irving. And I was very impressed with his stance. He was rational, brave, and confident. The rest of us have to get that confident, that audacious.

    Let the flypaper hang free, and we shall see who sticks to it.


  21. I am amazed at some of the responses, particularly those that see (acceptable) extenuating circumstances in favor of thought and/or hate crimes (any further distinction therein is meaningless). I too felt a twinge when I read of this verdict. Why couldn’t it have been something less ‘slam dunk’ cretinous or vile. No, the thought crime had to be holocaust denial and it had to be associated with Nazis. So be it. Any person (idiot, genius, lunatic, or abject hater) should have the right to believe what they believe and so state – within the bounds of existing legal norms. Myself, I believe the harm done to human kind by commies dwarfs that done by the Nazis, but not for one second do I want to put doctrinaire communists in jail or criminalize their belief structure. Every stinking one of them should be free to believe and/or argue publicly that Stalin, Mao, or Pol Pot didn’t murder tens of millions.

    Doug Rivers

  22. Doug, you don’t think that, say, criminalizing communism in post-glastnost Russia might have an extentuating circumstance that criminalizing communism in Canada doesn’t?

    We don’t, as the saying goes, have the freedom of speech to shout “fire” in a crowded theatre. I am not personally big on “speech” crimes, but I live in Canada. In countries where certain speech have recently led to war crimes, there is some justification for controlling it. You can argue that the justification is not suffient. You cannot argue that justification does not exist.

  23. Angua,

    I challenge the assumption that speech led to war crimes. It was the personal predisposition of the war criminal(s) and not speech, anybody’s speech, that was and is at fault. All of us can (and should be able to) hear outrageous allegations and charges but only the criminal capable/minded decide that such discussions and charges warrant criminal acts.

    And yes criminalizing the big C in post glasnost Russia would be different than doing it in Canada but doing it in modern Russia, as an ostensible, practical anti-crime measure, mis-diagnoses the problem as the existence and utterance of controversial thought as opposed to the actions taken on behalf of that thought.

  24. There is a difference between criminalizing speech and criminalizing conduct.

    A number of Austrian officials joined a movement that sought and achieved the end of the Austrian state. These criminals should never have been allowed to hold elected office again. This was the punishment meted out in the U.S. to those government officials that joined the Confederacy insurrection. (“Fourteenth Amendment”:http://caselaw.lp.findlaw.com/data/constitution/amendment14/ ) Non-governmental rebels (the farmers that made up the bulk of the infantry) were not so punished.

    My understanding is that deNAZIfication was not truly performed in Austria. The job was too tough, the numbers too large and the continuum of culpability too subtle. The Americans and their Allies probably acquiesced to all this since their attention was turning to communism.

    Speech prohibitions sound like a poor substitute for criminalizing insurrection. I would be willing to accept speech prohibitions until the new government stabilized.

    The USSR is a more difficult case because communism was no longer an insurrectionary movement by the 1980s. The people that should have been punished for instigating or assisting the revolution were all dead.

  25. PD Shaw,

    Austria was divided after the war and that probably contributed to the incomplete DeNaz (remember The Third Man).

    And the USSR problem wasn’t limited to insurrection (which, for corporate communism, sort of died out with the collapse of the Comintern), but, again, acts committed in its name well after the Bolshevik revolution. The focus must be on the illegal or immoral act, not the supposed motives or speech of the protagonist. I’m sure government (and university)officials see speech and thought criminalization as a ‘nip it in the bud’ peace-making technique, but it actually will only allow the odious ideology to flourish sub strata. Sunshine kills.

  26. >>Let holocaust deniers like Irving, Zundel, Chomsky et. al. put themselves on record in public… and let us see who flocks to them.

    Uhh, Chomsky? Are you refering to the Cambodia situation?

  27. I find it had to believe that you try to link your having read a review…. not seen the film…. of Sophie School: The Final Days…. to the case of David Irving.

    On the one hand you have a story that stood up to protest against a tyrannical regime. And on the other you have a man who has twice been deported from Austria and been banned from the country for agitation.

    Meh…. if you see the link, you see the link…. and if you can’t see why it is insulting, then that’s your problem….

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