Thursday, January 05, 2006

An unexpected analogy

Remember how I said yesterday that I was going to post something today that I had been planning since before Christmas, you know, get back to normal after all the disruption of the last couple of weeks?

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.
So far, I'm in agreement. As I've written before, as odious as I consider Holocaust deniers and their message, I consider laws that criminalize Holocaust denial (or other forms of "hate speech," for that matter) to be serious infringements upon free speech and do not want to see David Irving, as detestable as he is, in jail for his Holocaust denial. (Of course, his failure to pay the court costs of his failed libel suit against Professor Lipstadt is another matter.) Although I understand that, as some have argued (including Professor Lipstadt, by the way), the history of Austria and Germany made such laws advisable in the early postwar period, I believe that now, over two generations after the end of World War II, these laws no longer serve any useful purpose. Indeed, I consider them more detrimental through their effects on free speech than beneficial in preventing the rise of fascism. All such laws do is to allow Holocaust deniers prosecuted under them to claim the mantle of free speech martyrs. Professor Lipstadt agrees:
"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."
Now here's where Professor Lipstadt made an unexpected analogy:
"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."
An analogy between laws against Holocaust denial and quackery! See why I couldn't resist commenting about this?

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)
Clearly, what got Trudeau into trouble before was selling a product and making claims about it. So he got around that by simply making claims in a book rather than advertisements. Even then, he couldn't help but use the book to advertise his coral calcium about which he had made claims before that got him into trouble.

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.

More reading:
  1. Irving? Let the guy go home'
  2. Free speech in Europe: it's all or nothing
  3. Free Speech and Laws vs. Holocaust Denial
  4. Stupidity, Thy Name Is Irving

10 example(s) of insolence returned:


At 1/05/2006 9:18 AM, Blogger Matt McIrvin said...

I got into an argument with an Austrian-American about this once: he said that the one thing he simply couldn't fathom about the US was the First Amendment, and the way we let avowed Nazis run around free here preaching Nazism. I mumbled some stuff about the marketplace of ideas, but my heart wasn't in it. You've made a better case...

 

At 1/05/2006 9:58 AM, Anonymous eric bloodaxe said...

I am somewhat of the opinion that there are far too many people in the world, allowing some quackery will tend to remove the less intelligent.

 

At 1/05/2006 10:30 AM, Anonymous Mark Paris said...

"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."

I have a problem with defending freedom of speech on the grounds that a particular law prohibiting it doesn't work. The whole concept of freedom of speech is meaningless unless it defends unpopular, and indeed, even loathesome speech. Defending someone else's right to speak in a manner that I do not like helps insure that I will be able to speak freely when my opinions don't conform to the government's opinions. Like under the current administration, for instance. The only right way to defend freedom of speech that does not actually cause harm to another (not "hurt feelings") is absolutely.

 

At 1/05/2006 12:42 PM, Blogger nolo said...

I'm not sure I like the analogy between quack speech and hate speech, and for one simple reason: Quack speech, nine times out of ten, is about perpetrating a fraud in the good old sense of trying to bamboozle frightened people out of their money. No one has a first amendment right to run a con job.

 

At 1/05/2006 1:11 PM, Blogger Orac said...

All the more reason that a better argument can be made for outlawing advocating quackery than for outlawing Holocaust denial!

 

At 1/05/2006 2:03 PM, Blogger Ginger Yellow said...

" No one has a first amendment right to run a con job."

Does anyone have a first amendment right to slaughter Jews?

Like Lipstadt, I think anti-denial laws are counterproductive, but I think there's a stronger case for them than Orac lets on. Offense doesn't matter, here, it 's all about the potential for harm. We don't allow incitement to violence, let alone incitement to racist violence, and a strong argument can be made that holocaust denial is inherently incitement to violence. It's only purposes are to rehabilitate Nazism and justify anti-semitism. Nazism is an inherently violent ideology/movement, while anti-semitism has led to horrific violence throughout history.

Frankly, especially outside of a first amendment context, I think there's more "moral clarity" on the anti-denial law side than on the free speech side, but politics and anti-fascism isn't about moral clarity, it's about results.

 

At 1/05/2006 3:00 PM, Blogger martyr69 said...

at this point (in Irving's case) it all seems moot. using his case to knock down a law in court would be a giant victory for him and holocaust denial. i'm not sure even what argumenst his defence could use to win it in an accepable way. they're not about to argue that holocaust denial is so silly or irrelevant that no one should be worried. they'll likely just argue that he doesn't really deny it. which he does. so it seems unlikely (in my non-lawyer head) that he can win. if the austrian legislature were to step in... i don't know. that seems like a giant victory and legitimization for holocaust denial too (if the Irving Trial is still in porgress).
what i'm saying is that though i agree this law shouldn't still exist, it seems like there's no way out of prosecuting Irving at this point. which is unfortunate.

 

At 1/05/2006 3:24 PM, Blogger BigHeathenMike said...

Another great post. I hear my fill of quackery as a massage therapist, but having information handy to help people understand reality is quite an aid. As much as I loathe Kevin Trudeau, it is OUR job to confront him and his book and show it for the silly fear-mongering, conspiracy crap that it is.

 

At 1/06/2006 12:10 PM, Blogger nolo said...

" No one has a first amendment right to run a con job."

Does anyone have a first amendment right to slaughter Jews?


No one has a first amendment right to slaughter Jews. Nor does anyone have a first amendment right to say, "go slaughter Jews," or "go slaughter that Jew." Aside from the criminal implications that come with conspiring to kill people, the legendary Morris Dees has proven, time and again, that any person or organization whose advocacy of violence against a certain ethnic group can be linked to a particular instance of violence is accountable for the consequences of the violence they instigated. But Holocaust denial laws are aimed at something more removed than direct advocacy of violent action. Statements like "I don't believe any Jews were killed by the Nazis," or "I don't believe as many Jews were killed by the Nazis as you say," or "I don't believe the Nazis killed Jews in the way you say they did," or "I don't believe the Nazis had an organized plan to kill Jews," as reprehensible as they are, cannot be conflated with the statement "Go slaughter Jews," let alone the actual killing of Jews.

People who advocate goofy health approaches but have no motive of direct material gain (like, say, Christian Scientists) may be deluding people, but they're not running con jobs in the narrow legal sense of aiming to fleece gullible people of their hard-earned money. Likewise, people who deny part or all of the Holocaust aren't slaughtering Jews, nor are they directly advocating that others do so. If Holocaust deniers cross the line into advocating actual violence, they've gone beyond what the First Amendment will protect. But you don't need a Holocaust denial law to get there.

Another reason I'm not so enamored of the quack speech/hate speech analogy is also rooted in First Amendment jurisprudence, which traditionally has given much less protection to commercial speech than it has to other forms of speech. Quacks may like to whine that their critics are politically or ideologically motivated, but when you're talking about health care options that you're trying to sell to someone, you're engaging in commercial speech. On a related note, as anyone who's a member of a regulated profession probably knows, a licensed professional can be expected to give up some of his or her speech rights in return for the privilege of being permitted to practice. Medical doctors, nurses and chiropractors are subject to such restrictions, as are lawyers. You may remember the infamous Matthew Hale, whose application to join the Illinois bar was rejected based on Hale's virulently racist views. The rejection withstood constitutional challenge. In the quack speech department, I'd assume that the licensing bodies for the medical professions are quite capable of exerting similar regulatory efforts, and I'm equally certain that their efforts would be even less susceptible to constitutional challenges.

 

At 1/08/2006 5:08 AM, Blogger Anna in Portland (was Cairo) said...

I am a really strong free speech advocate and usually against curtailing what many people think is hate speech, on the basis that "offensive" is a term that means such different things to different people. With holocaust denial though, I think it can be a lot more harmful than this post suggests. It would be nice to believe that Jew-hating conspiracy theorists are 6 people residing in a basement, but actually the European form of anti-semitism has, due to the Arab-Israeli conflict, been seized by demagogues in the Middle East and used to manipulate the masses there for the past two or three generations, and this sort of stuff has a much wider audience than people residing in the West choose to believe.

Ahmedinajad's recent comments about Jews and the Holocaust are an example of this. He did not come by this opinion on his own, as he is not a student of Western history. Rather, he heard a holocaust denier, and liked what he heard, and it matched his own political agenda so he decided to believe it. This happens a lot more than people probably want to think.

This does not mean I am in favor of censorship - I still actually think these types of speech should be protected even though they're harmful. I just am trying to show that the results of holocaust denial can be much farther-reaching than either you or Deborah Lipstadt think.

 

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