An unexpected analogy
Scratch that for the moment.
I came across something that caught my attention and made me change my mind. Fear not, however. One good thing about blogging is that I can always revisit them tomorrow or next week. And, truth be told, what caught my attention earlier today is an article that combines two of the major themes of this blog in a way I hadn't thought about before:
David Irving, the infamous British war historian, is today sitting in an Austrian jail, accused of denying the Nazi Holocaust. So why is an American Jewish academic who dramatically crushed Irving in the British courts saying he should be released?
When you ask Professor Deborah Lipstadt for her thoughts on David Irving's forthcoming trial, the very last thing you expect her to say is: "Let the guy go home. He has spent enough time in prison."
Lipstadt, the American Jewish academic who exposes Holocaust deniers is not exactly David Irving's greatest fan.
But five years after she famously defended her own reputation in the High Court, and in doing so shredded Irving's, she is arguing that the Austrian authorities should probably let him go, saying the far-right will find a martyr if he goes to jail.
David Irving, 67, who made his name as a World War II historian, became infamous for suggesting that the Holocaust didn't happen.
But in November last year he was arrested in Austria for two speeches he made in 1989, during which he allegedly claimed there had been no gas chambers at Auschwitz.
"Generally, I don't think Holocaust denial should be a crime," she says. "I am a free speech person, I am against censorship."
"I don't find these laws efficacious. I think they turn Holocaust denial into forbidden fruit, and make it more attractive to people who want to toy with the system or challenge the system."
"We don't have laws against other kinds of spoken craziness. If you're a medical quack and you hurt someone, there's a law against that.
"But if you're a medical quack and you stand on the street corner preaching that you have an elixir that cures cancer and saves lives, no one throws you in jail."
My first reaction was that I didn't buy the analogy. It struck me as somehow invalid. The reason was that, depending upon the situation, preaching that you have an elixir that cures cancer you can potentially get in trouble with the law, depending upon the situation. Then I thought about it a bit, and, on second thought, Professor Lipstadt's analogy isn't as bad as I first thought. In fact, it's pretty good. Before I begin, though, I feel the need for a preemptive disclaimer, lest you think that Orac has fallen victim to a certain undead dictator with a hankering for brains (unlikely, anyway, since I doubt even the undead Führer likes Plexiglass and circuit boards): I am not saying, implying, or otherwise insinuating that quacks, alties, or alternative medicine practitioners are Holocaust deniers, anti-Semites, or Nazis. Professor Lipstadt's analogy works because advocating quackery is an example of free speech that is not criminalized even though it is potentially quite harmful.
Got that straight? Good. Let's begin.
What needs to be considered in this analogy is the difference between speech and action, as well as the consideration of the likely outcome of that speech. Let's consider the example of Holocaust denial first. One of the arguments for outlawing it, for lumping it in with "hate speech" is it is by its very nature anti-Semitic hate speech, and that it is offensive to the dead and to survivors. Further arguments in support of such laws is that their effect is to demonize a religious/racial group (the Jews) and to promote the rehabilitation of Nazi-ism. What is the likely outcome of such speech? It may offend survivors, and it may contribute to anti-Semitism. Yet these effects are simply emotional (offending survivors) or so nebulous (contributing to anti-Semitism or the rehabilitation of Nazi-ism) that preventing these effects is not not worth the serious infringement of free speech that laws against Holocaust denial produce. Freedom of speech means nothing if offensive speech is not protected. Besides, if the anti-Semitism in Holocaust denial is acted upon (vandalism, assaults, etc.) there are already laws against such crimes. It is not necessary to criminalize the speech, except under very narrow circumstances.
In fact, it could be argued that, if a government were to restrict potentially harmful speech, a much better case can be made for restricting the speech of quacks pushing bogus "cures" than for restricting speech expressing Holocaust denial. As an example, let's look at Professor Lipstadt's example of advocating quackery. In my discussion, I don't mean advocating "alternative" therapies that might have efficacy, but rather advocating clear-cut, down-and-out, undeniable quackery, such as claims to be able to cure all cancers (or AIDS) by killing an intestinal fluke. Again, considering speech versus acting upon the speech to cause harm, there are laws under which quacks can be prosecuted if they actually use unproven or ineffective treatments on patients, particularly if they made exaggerated or impossible promises about them beforehand. But what about if they just advocate quackery? Well, as Professor Lipstadt says, people don't get thrown into jail just for advocating quackery. Indeed, we have the example of Kevin Trudeau, don't we? He's the author of a best-selling book called Natural Cures "They" Don't Want You To Know About, which advocates the worst forms of quackery. This is a book that has also sold over a million copies. Trudeau's book claims that there are cures for cancer and a variety of other serious diseases out there that "they" (meaning the government, the pharmaceutical companies, "conventional" medicine) don't want you to know about, presumably so they can keep getting your money. (Note the similarity between the conspiracy mongering of alties like Trudeau and of Holocaust denials. In the case of Holocaust deniers, it is "the Jews" who "don't want you to know" the "truth" about the Holocaust; in the case of Trudeau, it is the government, big pharma, and conventional medicine that "don't want you to know" the "truth" about all these "cures.") Although Kevin Trudeau has been in a lot of legal trouble before for credit card fraud and for making false claims about a product he was selling, he has managed to sell this book and use his infomercials to advertise his book and website without running afoul of the law. In fact, he has managed to do this, even though he had been forced to sign an agreement with the FTC that
broadly bans him from appearing in, producing, or disseminating future infomercials that advertise any type of product, service, or program to the public, except for truthful infomercials for informational publications. In addition, Trudeau cannot make disease or health benefits claims for any type of product, service, or program in any advertising, including print, radio, Internet, television, and direct mail solicitations, regardless of the format and duration. Trudeau agreed to these prohibitions and to pay the FTC $2 million to settle charges that he falsely claimed that a coral calcium product can cure cancer and other serious diseases and that a purported analgesic called Biotape can permanently cure or relieve severe pain. (FTC press release)
What is the effect of such speech about quackery? It's really impossible to quantify it precisely, but, with over a million books in circulation, it's highly likely that many people have eschewed proven therapies in favor of Trudeau's brand of quackery. And, if it isn't Trudeau persuading people to choose useless therapies, there are thousands of others out there pushing similar sorts of medical misinformation and untold numbers of patients who, sadly, fall for it. Indeed, I've written about such patients before, patients such as the Orange Man, who eschewed conventional medicine in favor of coffee enemas and megadoses of carrot juice and paid a heavy price, or women who choose "alternative" medicine over conventional adjuvant therapy for their breast cancer. Where do you think they found out about these dubious therapies? Either from quacks who sell books or run websites promoting their quackery or from their legions of apologists touting either by word-of-mouth, public talks, or Internet postings their ability, for example, to "cure all cancers" or cure AIDS (Hulda Clark) or their recommendations that are claimed to "cure" many diseases (Kevin Trudeau), that's where!
In my book, it can certainly be argued that people claiming to have a cure for all diseases, even if they do not actually treat patients, likely do more direct harm than Holocaust deniers. Holocaust deniers represent a small fringe that few people pay much attention to, whereas "practitioners" pushing dubious "cures" are common, as are their apologists. The potential effects of Holocaust denial (offense to the survivors, promotion of anti-Semitism, rehabilitation of Nazi-ism), though potentially pernicious, are far less concrete than the potential effects of speech that steers patients to ineffective "cures" for serious diseases. Even so, unless they sell products through making false claims for them or directly treat patients, quacks can largely say or publish whatever they want about bogus therapies and make whatever claims they wish about them without fear of the law. Indeed, in Germany, for example, you can buy Kevin Trudeau's book quite freely on Amazon.de and elsewhere, and, as far as I know, Kevin Trudeau doesn't face arrest if he travels to Germany and Austria for his writings and talks.
Professor Lipstadt is correct. There is all manner of speech that is just as dangerous, or arguably more so, than Holocaust denial (albeit in different ways) but is nonetheless not criminalized. Putting up with such speech is part of the price of freedom. As despicable as he is, David Irving has said nothing that warrants prison and particularly not prison for decades, the maximum penalty. Even though he was clearly thumbing his nose at Austrian authorities by going there even though he knew there was a warrant for his arrest, prosecuting Irving for his Holocaust denial was a big mistake. Before his arrest, Irving was justly sinking into well-deserved obscurity, "talking to six people in a basement," as Professor Lipstadt put it. Now he has become a cause célèbre of the far right and finds himself in the news far more than he has been since his failed libel suit agains Professor Lipstadt in 2000. And if you think he's getting a lot of press now (at least in Europe), wait until his trial in February--all thanks to a harmful and misguided law that is almost certainly no longer necessary in a healthy democracy like Austria, its Nazi past notwithstanding.