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Free Speech Under Threat?

Jane PaulickJanuary 19, 2007

Germany is using its six-month European Union presidency to push for EU-wide criminalization of Holocaust denial. But where does that leave freedom of speech?

Germany wants to ensure Europe learns the lessons of historyImage: AP

To its long list of ambitious goals as EU president, Germany recently added a controversial one that is set to spark debate across Europe about whether governments can uphold freedom of expression on one hand and outlaw certain viewpoints at the same time.

German Justice Minister Brigitte Zypries said she would like to see Holocaust denial -- already a crime in some European countries -- become punishable by up to three years in prison in all 27 of the bloc's member states.

"We have always said that it should not still be acceptable in Europe to say the Holocaust never existed and that six million Jews were never killed," Zypries said recently. "I am optimistic that over the next six months we will manage to get a result," she said.

Germany's timing could not be better given the recent formation in the European Parliament of Identity, Sovereignty and Tradition, a far-right group headed by Mussolini's grand-daughter Alessandra and French National Front leader Jean-Marie le Pen.

The group's founder, French politician Bruno Gollnisch, was found guilty this week of questioning the Holocaust by a French court. In its ruling the court said Gollnisch had called into question the number of Jews killed during World War Two and whether gas chambers had been used to kill them.

The European Commissioner for Justice and Home Affairs, Franco Frattini, pledged immediate support for the German proposal.

"While preserving freedom of expression, we have to criminalize concrete incitement," he said.

Symbolic value

Polen Jahrestag Konzentrationslager Auschwitz
The former Birkenau Nazi death camp in Oswiecim, PolandImage: AP

But that's easier said than done.

When Luxembourg tried a similar push two years ago, it was blocked by Italy. This time, opposition is expected to come from countries keen to protect civil liberties come what may -- including Britain and Denmark.

But Robert Kahn, author of "Holocaust Denial and the Law," believes that freedom of speech would not be unduly restricted.

"Laws against Holocaust denial do not per se restrict free speech -- rather they restrict a given type of speech," he says. "In this regard, the laws are no different from laws against obscenity, blasphemy or libel," Kahn said, pointing out that even the United States, often held up as a model of freedom of speech, banned cross-burning and the wearing of Ku Klux Klan masks.

"A law against Holocaust denial can be effective as a symbolic statement, even if it is rarely used," he stressed. "It would serve the important symbolic function of stating that society will not tolerate a return to Nazi practices of mass murder."

The specter of the past

It is therefore not surprising that as Kahn pointed out, "the measure would find support in the EU parliament more from countries with direct experience with a Nazi past."

And indeed, the nine European countries in which Holocaust denial is already an offense include Germany, Austria, Poland, Belgium and France.

Other countries might well insist this is a matter to be decided at a national level.

"I think this question should be up to each nation to settle according to its own democratic mechanisms and procedures," said British Member of the European Parliament Daniel Hannan from the Conservative European People's Party, who also sits on the Parliament’s Committee on Civil Liberties, Justice and Home Affairs. "I see no reason to impose a decision from Brussels."

Do bans work?

Hannan also doubts that a ban can even be effective.

Österreich Holocaust David Irving vor Gericht auf Bewährung frei
Holocaust denier, British author David IrvingImage: AP

"In Britain, there is a consensus that a ban would be disproportionate, and would only serve to give additional publicity to Holocaust deniers -- indeed, it might confirm their view of themselves as persecuted martyrs," he stressed. "The historical evidence for the deportations and murders is overwhelming. No one, looking at the facts, can be in doubt about the enormity of what happened. So why create the impression that we have something to hide?"

Others point out that a ban often achieves the exact opposite by piquing interest in something considered strictly off-limits.

Christoph Kreutzmüller, a historian at Berlin’s Humboldt University said that one had only to take a closer look at most right-wing extremist propaganda to recognise its weakness.

"You only have to skim through Mein Kampf (the Hitler autobiography) to realize what rubbish it is," he said. "But the fact that it is banned (in Germany) will always make more people want to read it."

Action Reconciliation Service for Peace is a German peace and volunteer service organization founded in the aftermath of World War II to confront the legacy of the Nazi regime. According to its spokesman Johannes Zerger, it too has reservations about the efficacy of Holocaust denial laws and would prefer to see right-wing extremism tackled at its roots.

"We would support it as part of wider governmental measures," he said. "But we attach greater significance to taking political steps to tackle the problem."

The advantages

JAhrestag Befreiung Konzentrationslager Buchenwald bei Weimar von den Nazis
BuchenwaldImage: AP

But according to Imanuel Baumann from the association that runs the site and museum of the former concentration camp in Buchenwald, a Holocaust denial law can serve an educational purpose.

"We would welcome this legislation," he said. "Drawing attention to any dissemination of Holocaust denial by criminalizing it can be useful. It pinpoints areas we need to focus on -- not just for the purposes of lawyers and educators, but for the general public."

As Robert Kahn points out, it could also be used to get tough on right-wing extremists who currently use legal loopholes to get away with incitement to hate.

"Europe-wide legislation would make it easier to prosecute neo-Nazi groups who take advantage of gaps in the coverage of European hate speech laws," he said.

The right to be insulting

Viele leere Köpfe
Will the new law help contain neo-Nazis?Image: PA/dpa

But with opinion divided on the viability of a Holocaust denial law, it seems Europe has yet to figure out how to reconcile the fight against racism with freedom of speech -- and is still struggling to accept that a society that defends freedom of expression also has to tolerate views it doesn’t like.

The dilemma was catapulted back into the public consciousness over the last year after the publication in Denmark of cartoons satirizing the Prophet Mohammed, which drew accusations from the Muslim world that the EU operates double standards in its attempts to protect religions from insult and injury.

Months later, Turkey leveled a similar accusation at France, after the National Assembly passed a law making it a criminal offense to deny that the massacre of Armenians by Turks during World War I was a case of genocide.

However eager Europe is to protect Judeo-Christian sensitivities, said Ankara, it is far less interested in combating defamation of Islam.