Limiting Free Speech

This argument appeared in the November 2008 edition of Standpoint.

‘Is there an absolute measure to settle the argument on limits of freedom of speech? No. Each law-making democracy must decide for itself’

What is hate speech? Who defines it? Who decides if it should be punished or not? An Australian, Frederick Toben, has been arrested in London as German courts seek his extradition. In Germany, he has been accused of Holocaust denial, a crime that could inspire others to reawaken Nazism. He and his supporters, like David Irving and the Lib-Dem MP, Chris Huhne, say he should not face his accusers in Germany because Holocaust denial is a question of freedom of expression. In Los Angeles, two British citizens, Simon Sheppard and Stephen Whittle, are also in police custody. They were convicted this summer by Leeds Crown Court of publishing anti-Semitic and racist material. They skipped bail and flew to the US hoping that the authorities there would defend their right to freedom of expression.
There is a separate question of whether courts in one country can ask for the extradition of people to reply to accusations over crimes that may not be considered as such in the original country. The European Arrest Warrant allowed one of the 7/7 accused terrorists to be sent speedily back from Rome. By contrast, before the EAW was introduced in 2003, an Algerian Islamist, Rachid Ramda, accused of financing the 1995 Paris Metro bombing, was able to resist extradition from Britain to France for 10 years before being returned in 2005. He is now serving a life sentence.
However, there is not a settled liberal view on crimes like Holocaust denial. British libel laws are notorious for attacking free expression. Equally, British tabloids destroy families through invasions of privacy merely to boost circulation. Each democracy has its own interpretation of where the boundaries of absolute free expression lie. Even in the US, there is no right to cry "Fire" in a crowded theatre. Britain's race-relation laws going back to earlier public-order acts do not allow speech and publications that stir up hate against black or other ethnic minority citizens.
For some European countries, denying the historical factuality of the Holocaust is an untruth and a core ideological expression of modern anti-Semitism. If Jews were not exterminated by Nazi Germany, there is less moral blame to be attached to Hitlerism, which simply becomes a banal expression of German nationalism, and Nazism can thus be resurrected in modern political forms.
Holocaust denial's founding father was the French anti-Semitic politician, Paul Rassinier, who, like so many who ended on the far Right, started as a Communist and wartime résistant. He was briefly a French MP but lost his seat in 1946 to the Jewish socialist Pierre Dreyfus-Schmidt, a distant relative of the famous Captain Dreyfus. This seems to have triggered a decision to create the ideological theme of post-war anti-Semitism - Holocaust denial. Rassinier's 1950 book Le Mensonge d'Ulysse (The Lie of Ulysses) argued that an international Jewish lobby unleashed the Second World War and that the Jews had invented reports of gas chamber extermination. Following in Rassinier's footsteps, the former Vichy "Commissioner for Jewish Affairs", Louis Darquier de Pellepoix, said in 1978, "The only things gassed at Auschwitz were lice." The theme was taken up by Holocaust-denier Roger Faurisson, who told French radio: "The invented massacre of the Jews and the invented existence of gas chambers unite to create the political financial fraud whose main beneficiaries are the state of Israel and the international Zionist movement."
Holocaust denial unites European, American, Middle Eastern and other modern anti-Semites. The leader of the far-right British National Party, Nick Griffin, has written that "the very idea of Zyklon-B extermination has been exposed as unscientific nonsense". One of David Irving's loudest backers, Lady Michele Renouf, addressed the 2006 Holocaust Denial conference called by Iranian President Mahmoud Ahmadinejad. Her speech was entitled "The Psychology of Holocaustianity", whatever that means. In Germany, the far-right breakaway outfit "The Association for the Rehabilitation of Those Persecuted for Denying the Holocaust" is, as its name suggests, a classic front group seeking to portray anti-Semitic politicians as victims of pro-Jewish political correctness.
Post-1945 Germany and Austria based their policies, in part, on the concept of Nie Wieder - Never Again. They decided not to take the risk of allowing a form of post-war anti-Semitism any legal expression. France followed suit as it came to terms with its own complicity in the extermination of French Jewry. Britain has taken other routes, with tough legislation on stirring up race hate, which like Holocaust denial can be defended on freedom of expression grounds, as indeed the BNP seeks to do.
Is there an absolute measure that can settle the argument? No. Each law-making democracy has to decide for itself when speaking or writing crosses the line and becomes a crime because it so generates hate and violence against citizens that the right of each to live free of fear becomes endangered. While organised anti-Semitism is such a potent force in early 21st-century geo politics, it would be wrong to lower vigilance on Holocaust denial.