[NOTE: Due to interesting developments on the Holocaust denial front yesterday, your regularly scheduled frivolous Friday post has been preempted. It will appear sometime next week.]

Well, well, well...

Despite my general dislike of hate speech laws and laws in some European countries against denying the Holocaust and incitement to racial hatred, it's still rather hard for me not to feel a wee bit of schadenfreude upon learning of this story yesterday:
VIENNA, Austria (AP) - Right-wing British historian David Irving, who once famously said that Adolf Hitler knew nothing about the systematic slaughter of 6 million Jews, has been arrested in Austria on a warrant accusing him of denying the Holocaust.

Irving, 67, was detained Nov. 11 in the southern province of Styria on a warrant issued in 1989 under Austrian laws making Holocaust denial a crime, police Maj. Rudolf Gollia, a spokesman for the Interior Ministry, said Thursday.

Austrian media said the charges stemmed from speeches Irving delivered that year in Vienna and in the southern town of Leoben.

In a statement posted on his Web site, Irving's supporters said he was arrested while on a one-day visit to Vienna, where they said he had been invited ``by courageous students to address an ancient university association.''

Despite precautions taken by Irving, he was arrested by police who allegedly learned of his visit ``by wiretaps or intercepting e-mails,'' the statement alleged. It said that en route to Austria, Irving had privately visited German playwright Rolf Hochhuth, a friend he had not seen in 20 years.

I despise Holocaust deniers and all that they stand for, hence the schadenfreude. However, in general, I oppose hate speech laws and think that laws against Holocaust denial are a very bad idea. I can understand why Germany and Austria might have considered strong laws banning anti-Semitic hate speech necessary in the aftermath of the fall of the Third Reich. For decades afterward, there was a very real fear of Nazi-ism rising again. But it's been 60 years now. Germany and Austria are stable democracies, and I have to question whether such laws are advisable or necessary anymore. (As an aside, my general opposition to hate speech laws is an area where I have sometimes disagreed with fellow travelers countering online Holocaust denial, and we have occasionally had some rather heated--but civil--debates on this issue.) Even though it is rather unlikely that the maximum penalty of 20 years in prison would be applied in this case and it is uncertain whether the prosecutor will even choose to press charges over a 16-year-old warrant, it is hard for me not to find it disturbing that the potential penalties for violating these "hate speech" laws would be so harsh, even when applied to someone like Irving. Moreover, since Irving is considered likely to offend again if released, he may well remain in prison until trial. In fact, although I can understand the sentiment, I find it very troubling to read this quote:
The Britain-based Holocaust Educational Trust congratulated Austrian authorities on the arrest. Trust chairman Lord Greville Janner, noting that Britain has no such laws that make denying the Holocaust a crime, praised the Austrians ``for doing what our law should but does not permit.''

``I hope this will lead to a successful prosecution,'' Janner said.
Am I wrong to find this casual dismissal of free speech troubling?

Even so, in a way, it's hard for me to feel too much sympathy for David Irving, who has spoken in front of far right wing groups like the National Alliance. (Indeed, regarding his associations with extremists, Irving has made the excuse that he is simply speaking the "truth" as he knows it, and cannot help it if those whom he attracts are old Nazis, neo-Nazis, antisemites and white supremacists; yet he does nothing to discourage these associations, suggesting he does not find them that troubling. I suspect that he likes the attention and especially the financial support.) He seemed almost to be asking to get busted. He must have known that there was an open warrant on him in Austria; yet he went there anyway, leading me to wonder how many times he may have sneaked into Austria before. Perhaps it was the hubris that had developed over his years of being able to travel in style to address adoring audiences of far right wingers and Holocaust deniers, even though he had a judgment against him from his loss in his lawsuit in 2000 against Deborah Lipstadt. On the other hand, perhaps he has developed a martyr complex. In the days before he went, he worried on his own website whether the students to whom he was going to speak had been blabbing about his trip:
TYING up loose ends. . . I am becoming apprehensive about the [...] event; so much can go wrong, especially if it is a trap. How much have the students talked about my coming?
On previous trips to the United States at least, Irving seemed to have been a bit more clever just to avoid protests or the appearance of people (some of whom I know) at his talks who might challenge him and ask him very uncomfortable questions about his Holocaust denial. He would generally be very careful about not announcing where he would appear until the last possible moment and circulating the information through difficult-to-penetrate means. It is odd that he would seemingly not be as careful when the stakes were so much higher, and arrest, rather than annoyance by protesters, would be the penalty for mistakes. Was he getting careless? Who knows? The student group that invited him, the Burschenshaft Olympia, is known for inviting far right wing speakers, but they seem to have had more notice than is typical for an Irving appearance. It seems rather likely that communications among the students were what tipped the authorities off.

All in all, it's been a bad few months for Holocaust deniers. Just this week, the U.S. deported Holocaust denier Germar Rudolf to Germany, where he is serving a sentence previously passed and may face new charges. Before that, Ernst Zundel was deported from Canada to Germany, after having previously been deported from the U.S. to Canada and is standing trial. In the case of Zundel and Rudolf, I have little problem with their being deported for breaking our immigration laws, and, while here, they did consort with some far right wing groups whose purpose was not always lawful. Indeed, it terms of being prosecuted under laws against Holocaust denial, it is pretty uncommon for that to be the sole reason an individual Holocaust denier is tried. When Holocaust deniers are tried for violating laws against Holocaust denial, it is usually not so much their espousing of Holocaust denial and anti-Semitism that gets them into hot water but their associations with violent far right and neo-Nazi groups, and that is likely true. Hopefully, these associations will come out at their trials.

Nonetheless, I am uncomfortable about deporting these Holocaust deniers, no matter how much I despise them and their views, to nations that will prosecute them primarily for their speech, no matter how despicable. (Irving is a different case, however; no one forced him to go to Austria.) No, I don't want them here in the U.S. and would prefer them gone back to their native countries, but I don't want them in jail, either, unless they committed other crimes. When Holocaust deniers consort with violent right wing extremist groups and break the law, they of course should be prosecuted and locked up, but prosecuting them for their Holocaust denial alone may in fact be counterproductive. What will likely come out in most news reports about their incarceration is not their associations with violent far right extremists, but rather that they are being prosecuted and jailed for denying the Holocaust, allowing the most odious and despicable anti-Semites to claim the mantle of persecuted free speech martyrs with some credibility, at least to people who know little about the Holocaust or Holocaust denial. Making someone like Irving into a free speech martyr is particularly laughable, given his attempts to stifle Professor Lipstadt's free speech by suing her in England, which has libel laws slanted highly in favor of plaintiffs.

Posts on this issue:
  1. Schadenfreude
  2. More schadenfreude: David Irving now admitting that there were gas chambers?
  3. David Irving to stand trial in Austria

ADDENDUM: Andrew Mathis has taken on the issue. Like me, he has a problem with anti-Holocaust denial laws. He also comes up with the best quote about Holocaust deniers I've seen in while:
Now I have a big problem with such laws. All laws against Holocaust denial do is make the deniers, who would have to hang around with pedophiles to do social climbing, seem like martyrs. Let them spew their rot and them let them be refuted by truth.
Damn. I wish I'd said that! Let me just add that the antidote to hate speech such as Holocaust denial is not incarceration, but refutation with the truth.


  1. I understand your discomfort with Holocaust-denial laws. Personally, I'd say they represent a subset of hate speech, and as such, an appropriate limitation of personal liberty in service of public safety.

    "When Holocaust deniers consort with violent right wing extremist groups and break the law, they of course should be prosecuted and locked up..."

    Well, that's an interesting conjunction there. Unless the deniers are *themselves* breaking the law (e.g., violence), this just shifts the justification for prosecuting them, from their speech to their associations.

    I submit that Holocaust-deniers are in fact injuring society, by attempting to manipulate public beliefs (aka consensual reality) to their own vicious ends.

    Then too, their logical contortions include many false accusations against then-and-current Jewry, (deception, conspiracy, malingering, etc). Many of those accusations would be criminal in their own right, if levied without evidence against an individual person.

    It occurs to me just now, that these also resemble the abusive tactics often used by defense attorneys in a rape trial, trying to "prosecute the victim". I'm not sure how significant that is....

  2. "I understand your discomfort with Holocaust-denial laws. Personally, I'd say they represent a subset of hate speech, and as such, an appropriate limitation of personal liberty in service of public safety."

    Yes, but I oppose hate speech laws in general, not just laws against Holocaust denial.

  3. I too cheered when I saw this on the news last night (I live in Vienna). But I agree about the counterproductivity of the Wiederbetätigung laws- it just give the Neonazis a martyr complex. I suspect the laws were largely motivated by a desire to show the world that Austria and Germany were deadset against Nazi ideals.
    cheers, zilch

  4. While the particular way the anti-hate laws were worded in Germany ( and no doubt in Austria too ) was motivated by after war fears of giving "old Nazis" a chance of regaining influence and certainly to a point also motivated to show the rest of the world "we are not allowing that" ( and we bdy needed that kind of demonstration back then - we still needed it in the 60ies which I remember ) there is no easy way to abolish those laws.
    If the specific Holocaust denial laws were revoked the small but existing and potentially vociferous neo-Nazis ( most of the old ones having died ) would read and pronounce that as " it is allowed to deny" and "We can finally say the truth" - not the kind of signal one wants to give.
    We can't just abolish those laws.
    Neither can we for the same reason abolish the "incitement to hatred speech" laws.
    I am not happy about this as I strongly believe that 'free speech' is the better stronger concept.

  5. OK, I happen to be mildly supportive of laws against hate-speech. Briefly, my reasoning runs: The ultimate goal is liberty for the general population. Free speech is part of that, but so is personal safety. I feel that to set absolutely free speech above protection of targeted persons, is to "make the perfect the enemy of the good". Thus, I'm willing to accept some limits on public speech in the pursuit of other aspects of liberty.

  6. I'm not a fan of anti-hate speech laws either. However, it's just that kind of law that Irving used to go after Deborah Lipstadt (especially since he brought the suit against her in England, where the burden of proof was on the defence).

    Sow the wind, I say. I hope this costs Irving everything he has.

  7. Just touching base to respond to m@ and clarify some confusion s/he seems to have about the difference between hate speech laws and libel laws. For better or worse (for David Irving, at least), David Irving sued Deborah Lipstadt in an English court for libel. Libel, however, is not "hate speech," per se, but the publication of injurious lies about another individual. If you can show that another person lied about you and it caused harm to your reputation, you can recover damages in a civil action. It's the same thing in the U.S., with the only differences being (a) in the U.S., if you bring a libel suit, you have the burden of showing that the other guy lied, whereas in England it would be the other guy's burden to show he told the truth; and (b) in England, if you lose, you have to pay the other guy's legal expenses. Irving brought suit against Dr. Lipstadt in England, apparently figuring she couldn't prove that she was telling the truth when she called Irving a Holocaust denier because (in his mind, anyway) there are questions to be raised about whether the Holocaust actually occurred. In a tour de force of legal defense, Dr. Lipstadt's lawyers (or barristers, as they call 'em over there) mustered overwhelming evidence that the Holocaust did, in fact, occur and that Irving had intentionally fabricated allegations to the contrary. In other words, she proved that Irving was a Holocaust denier. She obtained a verdict in her favor, and a whopping judgment against Irving for her legal fees. Professor Richard Evans, a professor of German History, was retained as an expert witness by Dr. Lipstadt, and his memoir of the trial, "Lying About Hitler," is a riveting account of the whole affair.

    All that being said, a civil action for damages caused by false and injurious speech is not at all the same thing as a law that outlaws certain speech as "hate speech," and imposes criminal penalties on persons who engage in the specified category of speech.

  8. I think it was Brandeis who said something along the lines of freedom of speech not meaning much until it comes to defending something you don't agree with. I have always felt that it was important to have holocaust denial pop up when googling the term just to know it's still out there. And in this case it's really hard to envision many innocent websurfers hitting links to holocaust denial and being horribly mislead. They decide to mislead themselves and then find the links.

  9. I should have said "defending the right to say something you don't agree with". Though if Brandeis HAD said what I originally wrote he wouldn't have been the first lawyer to express the sentiment, though in that case it would be free speech that doesn't come free.

  10. Too often the people who are against "hate speech" define it as anything in opposition to their views, no matter how gently it is phrased.

  11. I owe a debt of thanks to both David Irving and Ernst Zundel. They convinced me that holocaust denial is completely false. They are after all the best of the bunch, and what they produce is, on close inspection, rubbish.

    The anti-semitism is so obvious. If every single historian who wrote about the holocaust was Jewish, maybe they would have a point (although that doesn't affect facts etc). That isn't the case though. As Orac has frequently pointed out, all holocaust deniers are anti-semitic, so there is a common thread there.

    On the laws against denying the holocaust in Germany, there is a good reason (6,000,000 reasons actually) why those laws are in place. The problem is how you would get rid of such a law. Germany would be condemned internationally for "covering up the past" or some such nonsense for trying to abolish the law.

    For historical reasons, it doesn't disturb me too much that freedom of speech is restricted in one subject in Germany and Austria, just as long as it doesn't spread to other places for no good reason. There needs to be somewhere that these idiots can air their nonsense so that it can be publicly refuted.

  12. Interesting coincidence -- today I was in a used bookstore here in the US with a German friend of mine and we were going through a box of old German books, and we found a Nationalsocialist novel (published in 1936) called ...wie unser Gesetz es uns befahl and all about victory by the force of will over the internationalist hordes or some such thing. Anyway my friend leafed through this, looking slightly shocked, and said "I don't think you'd be allowed to sell this in Germany."

    Unfortunately I didn't get a chance to ask him what he thinks about anti-Nazi and Holcaust-denial laws. I wonder what the effect is of teaching about the Nazi period (with kid gloves, I think) but having actual documents from the period not available. Isn't that part of what Orac said about "confronting deniers with the truth" -- making original materials available? I doubt there's much danger of people nowadays reading such books in the same spirit they were written. Compared to all the modern German writings I've read, this book sounded frankly bizarre. Anyway, food for thought...

  13. In the comments to the HNN article Orac cited the other day, I made the analogy that anti-Denial laws were an extension of laws against reckless endangerment: we know what these ideas lead to, and are unwilling to consider them harmless.

    Ultimately I think these laws are more harmful than helpful, but if they limit prosecutions to egregious offenders like Irving, it's awful hard to get worked up about them (as Bradley Reed Smith was trying to do in those comments). The man has an awful martyr complex.

  14. Late (returning) to the party... nolo, I do understand the difference between hate speech/denialist speech laws and libel laws. However, both sets of laws -- despite one being criminal, the other civil -- seek to limit what people can say.

    In my view, Irving sued Lipstadt ostensibly because she made injurious statements about him, but really because he wanted to deny her the ability to state her opinions about him. That he was arrested for making statements that were injurious to an entire society (at least, I understand that to be the reason for these laws) seemed deliciously ironic, to me.

  15. I'm ambivalent about such laws. I think that in the modern democratic world they're counterproductive, but I can entirely understand why Austria and Germany would have them. The principled argument is as follows. We ban incitement to violence. Even the US forbids advocating the violent overthrow of the government. Nazism is inherently violent (in the most hideous of ways). The only purpose of holocaust denial, given the evidence we have, is to rehabilitate Nazism. Therefore it is incitement to violence.

    Now personally I think the pernicious effects of an outright ban (creating an image of martyrdom, potentially suppressing genuine historical research) outweigh the benefits, certainly nowadays. But I don't think it's all that clear cut.

    Ginger Yellow


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