Irving sentenced to jail for Holocaust denial

David Irving, who started out as a Hitler-admiring, anti-Semitic historian and became an outspoken Holocaust-denier, has been sentenced to three years in prison in Austria for statements he made in that country in 1989.

We need to sort out two sides of this issue. I can understand that if a country had been taken over by a demonically evil party that launched a civilization-destroying war in which tens of millions of people were killed, and that systematically dehumanized and murdered millions of unarmed civilians because of their ethnicity, that country, after being liberated from that party, would have a legitimate interest in outlawing it and any adherence to it and its principles. As a Western traditionalist who would like to restrict the practice of Islam in this country, I cannot object to any government that would outlaw Nazism.

But Irving is not being sent to jail for promoting Nazism. He is being sent to jail for stating an opinion about a question of historical fact. To take away a person’s liberty for mere speech is terribly wrong, an unacceptable violation of the most basic human liberty. Europe could legitimately outlaw Nazism and Nazi activism, without criminalizing speech denying the Holocaust. And I say this as one who, since I first read the Holocaust denial literature and realized where it was coming from, have considered the Holocaust deniers to be the scum of the earth.

Just before I posted the above, a reader wrote to me about the Irving verdict:

This should be a topic tailor-made for you. You defended the right of the Danish Press to publish cartoons of the prophet so you should also defend Mr. Irving however wrong he may be.

While I oppose the criminalization of Holocaust denial, I don’t accept the reader’s underlying premise that all free speech rights must be equal, regardless of content. A civilization has the right to ban that which is incompatible with its fundamental character or threatens its existence. Yes, within our current liberal society, we deal with the cartoon issue primarily as a matter of free speech, and in that context I completely support Jyllands-Posten; I also say that any religious group that threatens to murder people over a cartoon does not belong in our society and should be expelled, purely on liberal, free-speech grounds.

But in addition to the free-speech argument in favor of publishing the cartoons and excluding Muslims, I think our civilization ought to attack Muhammad for substantive reasons, in order to show the truth about him and defend ourselves.

Does this mean I am pushing a pro-Western, anti-Islamic double standard? The question of a double standard only comes up when we assume a single, universal, liberal standard based on a single, universal, liberal community, without any particularity that matters. But the liberal vision, if it is the ruling vision, makes the preservation of any culture impossible. As I have said many times, to be non-destructive, liberalism must be part of, and limited by, a social/cultural order that is not itself liberal. Thus a Western society should allow the free exercise of religion for all Jews and Christians, but not for Muslims. The range of rights should be determined, not by the notion of some abstract sameness of all humans, but by the particular nature of the society. A Christian society should favor Christianity over Islam. Indeed, given the nature of Islam, a sane Christian society should not even permit Muslims within its borders except in very small numbers for purposes of diplomacy and trade.

One reason that we Americans keep assuming a single universal standard as the only legitimate basis for moral order is that we have allowed our federalist constitutional order to be destroyed and do not even remember it. Under the original American system, the notion of some universal fairness to all conceivable parties in the whole world wouldn’t have come up. Each state, based on its own majority culture, morality, and religion, could restrict whatever speech or whatever religion it wanted to restrict. If a state wanted to defend its Christian character and outlawed the practice of Islam or the publication of atheistic opinions, it could do so, and no power on earth could gainsay it; for that matter, if a state had a ruling majority of libertines and wanted to outlaw Christianity, I suppose it could have done that. Subject only to the requirement that they have a republican form of government (meaning that the government not be a monarchy or dictatorship but represent, in some manner, the community as a whole), the states could police their own internal matters as they thought best. But in the 20th century the Supreme Court illegitimately claimed that the Fourteenth Amendment submitted the states to the same restrictions against controlling religion and speech that the Congress is subjected to under the First Amendment. As a result, in today’s America, every controversy over what the government should permit or not permit has been split off from any sense of a particular, self-governing community and instead can only be handled liberally, on the basis of the universal equality of all persons. In our current view, there are only universal rights, which all Americans and even all persons equally enjoy. We thus assume that we have to treat Islam the same way that we treat Christianity. And we project this same way of thinking onto the world at large, such as in the European cartoon controversy, so we think that Western newspapers are obliged to treat Islam by exactly the same rules that they treat Christianity. This is all wrong.

However, our loss of federalist self-government, as regretable and harmful as it has been, is not the current issue. Even in the absence of a federalist order, it remains the case that Islam would destroy the Western world, both its traditionalist/Christian aspect, and in its liberal, free-speech aspect, and we must therefore defend both aspects if we want to survive. Whether we think of Denmark as a pure liberal society with equality of rights for everyone, or as a traditional Western society with a favored majority Christian culture, on either basis Jyllands-Posten would have the right to publish the cartoons, and the Danish government would have the right to expel followers of the Islamic religion who threaten to slaughter anyone who mildly insults their religion.

How does this relate to the Irving trial? As I said at the start, for a European country that had been ruined by Nazism, Nazism is an existential problem, and the state has the right to outlaw it. At the same time, though many Holocaust deniers have Nazi sympathies, Holocaust denial is not identical to Nazism. It remains an opinion about certain historical facts that can be countered by other opinions. It does not threaten the society in the way that the promotion of Nazism would. I loathe the deniers with my whole being. But to throw a man in jail for expressing the opinion the Nazis killed one million Jews instead of six million Jews is an outrageous violation of the most fundamental human rights. Absent a strong argument to the contrary by the European governments, the expression of disbelief in the Holocaust cannot be said to be justified or required in the same way that excluding the actual promotion of Nazism is justified or required.

There is an analogue of the above reasoning in the great Davis v. Beason decision (1890), in which the U.S. Supreme Court found that the territorial government of Idaho’s ban against both polygamy and speech promoting polygamy was constitutional. The banned speech was speech actively promoting a particular banned practice; it was not speech merely stating an opinion about some fact.

A reader offers a good response:

You are probably right that people (even “the scum of the earth”) shouldn’t be prosecuted for stating an opinion about an historical event. There are certainly prudential grounds for not doing so. But I’m not sure that “stating an opinion about a historical event” is a sufficient description of what people like Irving are actually engaged in. Isn’t there a basic difference between the person who says “on reviewing the documents, I believe that the number was one million, not six million, for these reasons….” and the person who in effect posits an unprecedented mass conspiracy by an ethnic group to fabricate an event in order to achieve control of its host population—by necessary implication, a demonic ethnic group, because who else would attempt such a thing? Even if it should turn out that both kinds of person are actuated by the same motives, isn’t the second sort of person doing much graver damage to civil society by engaging in a form of criminal libel? and if so, is it altogether unreasonable to prosecute him for it?

This is a powerful argument. I agree that this is what many or most of them are up to.

What to do then? Prosecute people who allege the vast Jewish conspiracy, while leaving alone people who just deal with evidence, however dishonestly? Or prosecute them all?

Also, does the reader want such laws here? We have plenty of deniers here, after all, alleging the vast Jewish conspiracy. Should anti-Semitism be a crime?

Perhaps I can answer my questions based on the reasoning I used at the beginning. America has not had a Nazi movement take it over, turn Jews into the absolute enemy, and dehumanize and exterminate Jews. Europe has. Therefore allegations of a demonic Jewish conspiracy to create a Holocaust myth in order to gain power over non-Jews are of the very nature of the Nazism that earlier revaged Europe and destroyed European Jewry and that still represents a threat in Europe. Therefore, in Europe, though not in America, it is justified to criminalize at least some kinds of Holocaust denial, those alleging that the Holocaust is a Jewish conspiracy.

The reader replies:

I certainly wouldn’t prosecute the person who just deals with evidence, however dishonestly—that would amount to making bad-faith arguments illegal, surely a Utopian project! As far as the Irving-types go, I probably wouldn’t prosecute them either, but only out of prudence, since, as we both know, hate-crime laws in the hands of liberals are all too easily turned against non- and anti-liberals. Too bad, though; I’d dearly like to see Irving in the ducking-stool. Kevin Macdonald, too.

The reader has softened his position, and I’m not sure what his position is . One of the things Irving said in Austria in 1989 for which he was convicted was that the Holocaust was a “fairy tale.” Well, who concocted this fairy tale? The Jews. So he was implicitly alleging a vast Jewish conspiracy to bamboozle the world and to give Jews vast power on the basis of a fraudulent belief in Jewish victimhood. Hitler made the Jews into hate objects and then mass-killed them. Now Irving by saying the Jews concocted all this for their own nefarious purposes is making them into hate objects a second time. So what Irving and other deniers are doing is monstrous, devilish, and a part of the Nazi project. By the logic I laid out above, that would be an offense punishable by imprisonment, at least in Europe.

Yet this still doesn’t sit easily with me. Maybe the answer, then, is to fine deniers rather than imprison them. That will serve as a deterrent, without the outrage of putting people in jail merely for saying things.

Posted by Lawrence Auster at February 20, 2006 04:15 PM | Send