Monday, February 20, 2006

An Anti-Semitic "historian" goes to jail. Why should we care?

David Irving pled guilty to denying the Holocaust and has been sentenced to three years in prison by an Austrian court. I find this deeply troubling because the West has been championing the right to free speech and has held up our freedom of press and publishing to the world as an example. How can we claim freedom of speech and yet jail a man for writing revisionist history?

The Associated Press refers to David Irving as a “Right-wing British historian.” This is a bit of a misstatement. Among his false claims is that there were no Nazi gas chambers in Auschwitz and the assertion that most of those who died in the concentration camps “succumbed to diseases such as typhus rather than execution.” (AP) He has echoed Goebbels in saying that Hitler was not aware of the Final Solution. He’s not much of an historian and the possibility of 10 years in jail brought out a much more conciliatory tone. He attempted to recant some of his earlier claims, but the court did not seem impressed.

My first instinct is to say “so what?” I mean, we have our own manipulators of history. Denying the Holocaust is pretty standard fare for White Supremist groups and David Duke became a national political figure on the back of this lie. Why should we care that another liar goes to jail?

We, correctly, made a big deal of the RIGHT of publications to display religious cartoons. As a Catholic, I have had to suffer through malicious cartoons for the better part of three years now. It is generally accepted that the law provides for a robust freedom of speech, tempered only by exigent circumstances and malicious intent. Plainly stated, we defend the right to say horrible things, to insult, offend, humiliate, and injure. Where, in this context, do laws against revisionist history rest?

And this isn’t merely a European hypocrisy. We have our own version in terms of “hate crimes.”

Conceptually, the attachment of additional penalties for crimes on the basis of intent, where intent is already taken into account in the grading or definition of the offense, is an attack on free speech. Take, for example, an unlawful killing or an assault. We have already taken into account intent when we charged the individual. What is the attachment of an assessment of the defendant’s state of mind in engaging in the crime, other than a means for penalizing distasteful thoughts?

I have heard the argument that these laws exist as a disinducement to others who have such thoughts. In essence, by penalizing the thought as well as the action, we discourage like-minded individuals from acting on their inclinations. This is a cop-out.

The disinducement is the penalty for the crime. The penalty already takes this, worthy, societal goal into account. (Witness the effects of racial and sexual discrimination suits in the workplace.)

My point is that this relatively new type of law is in direct conflict with one of our deepest and most carefully protected liberties… Free Speech. I’d love to hear some thoughts on this topic.


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