David Irving to stand trial in Austria

And now for something completely different...

A trial date has been set in Austria for Holocaust denier David Irving. His trial will commence on February 20. Although it has been reported that he is being tried for "denying the Holocaust," in fact, he will stand trial on the charge of minimizing the crimes of the Third Reich, a law passed in the early postwar period. (In practice this is a distinction without a true difference.) It also appears that he will remain in prison until his trial date.

As I've said before, I detest Irving and everything he stands for. He is a Holocaust denier (British courts have affirmed that characterization of him), and he foolishly and vindictively tried to ruin historian Deborah Lipstadt for telling the truth about him in her book by suing her for libel in the U.K, where the libel laws are far more favorable to the plaintiff. Indeed, it is nauseating to see him try to represent himself as a some sort of champion of free speech when he did everything within his power to stifle Lipstadt's free speech. Fortunately, he lost, but unfortunately he has never paid the judgment against him and still somehow manages to travel about the U.S. and elsewhere in style to give talks (and sell books) to far right wing admirers I've even admitted that I have a bit of schadenfreude over his present predicament, although he did largely bring it on himself. He knew damned well there was a warrant out for his arrest in Austria, yet he went anyway, thinking he could sneak in and out of the country undetected by authorities. In that, he showed great hubris. Either that, or he wanted to be arrested. Only David Irving knows which.

That being said, I remain strongly opposed to laws such as those in Austria that criminalize speech, no matter how odious that speech may be. There may well have been some reasonable rationale for them in the early postwar period, but the time when there was a real threat that Naziism might rise again is long past. Certainly now the threat is so small that it no longer justifies the cost of such laws with respect to free speech rights. Putting Irving on trial for his Holocaust denial will only allow him to claim the mantle of free speech martyr with some plausibility to those who do not know his history of trying to suppress speech he doesn't agree with, particularly given the potential penalties involved. True, it's probably highly unlikely that Irving will be given the maximum of 20 years if he is convicted, but the size of the potential punishment is far out of proportion to any "crime." Also, although I had speculated that Irving's recent "admission" that there were gas chambers at Auschwitz might mean that he is finished as a force in the Holocaust denial movement, given that some deniers are already wondering if he has now "betrayed" them, I'm not so sure now. I can now foresee a situation in which Irving makes such an admission, gets either a very light sentence (or even time served) and then returns to Britain, where he repudiates his previous "admission" and treats us to the nauseating spectacle of his parading around Britain and the U.S. as a free speech martyr. Prominent "revisionist" Bradley Smith, while wondering if Irving will "betray" revisionists, has even hoped for as much:
If we are to believe his lawyer, who sounds like a practical man, David Irving is going to recant his views with regard to Auschwitz, the gas chambers, and who knows what else? He may. He may not. It would not be beyond him. This is a man for whom there is nothing “beyond.” But I feel a betrayal in the works. I hesitate to say it, but betrayal is in the air. My hope? That he recants to the Austrian court, is freed, and when he is out in the world again that he stands up in public to declare:

“I lied before a corrupt court. There is no honor in telling a corrupt court the truth if you do not enjoy being punished at the hands of corrupt law. The Auschwitz story is crap. I know it, and millions of people all over the Western and Muslim worlds know it. When I said ‘Auschwitz is a sinking ship,’ I was right. I meant it then, and I mean it now.”
Personally, as much as I detest David Irving and all that he stands for, I do not want to see him in jail for a long time (or even for a short time) for his Holocaust denial (although I wouldn't mind if he ever ended up in jail in Britain for failing to pay the judgment levied against him for his failed libel suit against Deborah Lipstadt while somehow managing to live quite comfortably otherwise).

It is cases like this that make me grateful indeed for the First Amendment. The First Amendment may not always be successful in preventing attempts by the government to stifle free speech, particularly during wartime, but it does at least make infringements on free speech considerably more difficult. And it's not just Austria or Germany where free speech is under assault. Look at Britain, where an ill-advised proposed law against religious hatred seriously threatens free speech rights by potentially proscribing any criticism or mockery of specific religions, even radical ones, and in Denmark the UN is investigating a newspaper for running cartoons that contained caricatures of the prophet Mohammed. The problem is, such laws can easily be harnessed in service of the state or nationalistic interests under the guise of protecting the sensibilities of those who don't wish to hear offensive speech. For example, in Turkey, Orhan Pamuk is going on trial for "publicly denigrating the Turkish identity" because during an interview with a Swiss newspaper he complained that it was taboo in his native land to discuss the Armenian genocide that occurred 90 years ago.

The right to free speech means nothing if only speech that does not offend is "protected," but that seems to be where we are heading in much of the world, and, to a lesser extent, even in the U.S.. The wisdom of our Founding Fathers in crafting the First Amendment becomes more and more clear to me the older I get.

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


  1. Voltaire once famously wrote to an adversary, "I disagree with all you say, but I will fight to the death for your right to say it." As one who so often disagrees with you, Orac, I feel obliged to note the occasions when we agree, as we do on this subject. Thanks for keeping this case in our view; it's important.

  2. On a somewhat related note, I'm sure you saw this:

    TEHRAN, Iran (CNN) -- Iranian President Mahmoud Ahmadinejad has described the Holocaust as "a myth" and suggested that Israel be moved to Europe, the United States, Canada or Alaska.

  3. For once I have to disagree, on two fronts:
    (1) "but the time when there was a real threat that Naziism might rise again is long past" - this suggests you havent examined the political scene in Germany & Austria: both support a lively and alarmingly large fraction of Neo-nazis, roughly 5-10% of voters .. and that's when the economy is _good_ ... if they ever go through another Depression, this support might grow rapidly (again).
    (2) It's all very well to want free speech, but when someone like this deliberately flaunts a well-known, existing law, he absolutely deserves to be incarcerated, for his unspeakable arrogance if nothing else.

  4. I do think it worthwhile to observe that European laws which infringe freedom of speech should be viewed from the perspective of European history - not least because freedom of speech as enshrined in law has little or no history in Europe (hence the more plaintiff-friendly British libel laws, for one).

    Americans, for whom freedom of speech is a constitutionally enshrined right, tend to default to freedom of speech over any other consideration when confronted with issues such as hate speech - and to regard with astonishment any dissenting attitude. My impression is that this is often a dogmatic rather than a genuinely thought-through position (though not, I am certain, in this case).

    Europeans have always been rather more equivocal on this issue. There are those (like myself) who are passionate about freedom of speech, but there is less tendency to regard this as an absolute and inalienable right - and in the modern context this opens up debates about how far the right to freedom of speech should trump (say) the right to live unthreatened by vocal hatred.

    I guess my point (if I'm trying to make one) is twofold; there is no sense that any law here placing some restriction of free speech is the start of a slippery slope because there has never been a default position of absolute freedom of speech, and no holocaust denier is going to be regarded as a free speech martyr here for the same reason (though what Americans may do with him I dread to think).

  5. "Fortunately, he lost, but unfortunately he has never paid the judgment against him ..."

    Since he was the plaintiff, I presume he is liable for Lipstadt's legal expenses (and rightly so).
    Could someone explain how David Irving has been able to go for more than five years without paying up? Has he no attachable income? Has he been able to delay the process?
    I'm curious, but too lazy to do the research; thanks in advance.

  6. Let's make sure we define our terms. Freedom of speech means nothing if the only speech that is free is that which is approved by the government. Speech that causes or threatens actual harm can be and is limited in the US. Most (I hope) Americans think free speech is worth the potential cost of allowing such people to speak freely. However, it is up to he Austrians to decide whether they want free speech, and I certainly have little sympathy for someone who knowingly violates the laws of a country while visiting that country.

  7. To firefalluk: I'm not entirely convinced the modern-day situation in Germany and Austria is comparable to the immediate post-war situation. Back then, the remaining Nazis and their sympathizers had only recently held positions of real political power, and there were realistic worries they could take it back. The present neo-Nazis, as far as I'm aware, haven't held such power. It's *far* easier for a 5-20% minority that was part of the immediately previous government to take over (especially since some of them may have made it into the new government) than for a similar-sized minority of complete outsiders to do so.

    Outeast: the problem with the "right to live unthreatened by vocal hatred" is that whether or not hatred is vocal has no bearing on how dangerous it is (as opposed to how *scary* it is). Suppressing overt expressions of hatred doesn't make the hatred go away; it just sweeps it under the rug, where history shows it has a tendency to catch fire. Suppressing the visible manifestations of hatred and thinking that solves the problem is really a form of magical thinking akin to trying to hide a melanoma with makeup. It really amounts to trying to ameliorate evil by forcing the evil to remain secret; phrased that way, the irrationality is obvious, as evil feeds on secrecy.

  8. "and the European Union is investigating a newspaper for running cartoons that contained caricatures of the prophet Mohammed."

    You knew I was going to comment on this, didn't you?

    First of all, you got it wrong - it was not the European Union, which has a higher tolerance towards free speech than Denmark, but the UN. To quote from the original article:

    "'I'm confident that they will take action in an adequate manner,' [United Nations' High Commissioner for Human Rights] Arbour said in her letter to the 56 governments, which have requested the UN to address the issue with Denmark.

    A diplomat from one of the countries told the newspaper that the governments were pleased with Arbour's answer.

    Foreign Minister Per Stig Møller said Arbour's involvement in the matter was natural, given her position.

    As Møller points out, it is quite natural for Arbour to look into something when 56 countries ask her to do so.
    However, unless international treaties have been broken, there is nothing the UN can actually do, because of this, even they felt that there were some reason for them to do something. It's simply out of their juridiction.

    Second of all, the article in the Danish newspaper was made for the sole purpose of raising the wrath of the Muslim community in Denmark. Not only was it blaspheous in their eyes, it also made Islam equavialent with terrorism.
    This obviously made Muslims pretty upset.
    It was not, as the newspaper claims, an attempt to raise an issue. That could have been done in a much different way, that would center the debate on the point they claim to be focused upon. Instead, it became another part of the demonization of Islam, which is the issue that most Danish Muslims have focused on.

    You have to bear in mind that the Danish debate is very polarized, and Muslims are by many (including by one of the major political parties) frequently presented as immoral rapists, who are just waiting to make terror, or try to take over the country.

    However, there is no doubt that neither the Danish blasphemy nor the Danish racism paragraph was broken, so there are not going to be any legal matters as a result of this.

  9. Oops. Thanks for pointing out my little error. I'll fix the EU reference. It was a mistake, you know, the kind where the brain says "UN" but for some reason the fingers type "EU," even though the very source I cited makes it clear which is the correct one. I guess that's what I get for adding something that wasn't in the original draft quickly very early in the morning, with the time pressure of my having to get to work...

  10. Orac, I agree entirely - on all counts. We are noving to a society where controversy is bad (I am sure you get the sorts of reactions to your blog that I get to mine), and where freedom of speech means freedom of politically correct speech. Instead, of course, freedom of speech means "freedom of politically incorrect speech".

    It means that because one person's correct is the other person's incorrect.

    When I moved to Canada in the 90s, I literally could not believe that they had laws against "hate crime". I thought I was being told a joke. Have none of these people ever read Orwell? Depressingly, it seems that the answer is "no".

  11. Please only invoke Orwell, when appropriate. Orwell was by no means a free speech absolutist, and nothing in his works is a condemnation of not having free speech.

    In Nineteen Eighty-Four, he focused on a big brother society, where the past was redefined to fit with the current, and where certain words were given the opposite meaning, so to make them meaningless concepts ("War is peace").

  12. I would also point out, that most hate crime laws are not ment to stand alone - it's a supplement to the ordinary laws. This means that you can't get convicted of a hate crime, unless you could get convicted of the ordinary crime, which was aggrevated by being a hate crime.

    I'm not a free speech absolutists.
    I think the Danish racism paragraph works pretty well. It is ment as a protection against slander and libel towards entire ethnic groups. However the Danish blasphemy paragraph needs to go. It is never used, and out of touch with current times.
    I am also for general slander and libel laws - I find it rather good that there is some kind of judicial mean to force people to back up their claims about other people.

  13. ebohlman:

    While your sentiments are laudible, and as I have said I am myself prejudiced in favour of free speech, I do not think that your argument has very solid foundations. It is fashionable to claim that hatred feeds on secrecy etc, but I am not sure that the case has really been made. Certainly the most outrageous historical examples of hatred - such as the race hatred expressed by the nazis - flourished perfectly happily without repression or secrecy.

    The best arguments for free speech are philosophical and moral; the claim that 'evil feeds on secrecy' is a very uncertain one on which to base a defence of free speech, and it also suggests that if it could be demonstrated that repression is more effective than liberalism then the former would be morally defensible.

    I would be happy to debate with you about your other points but this is goint to be an overlong comment anyway.

    michael willems:

    I think that your post reeks of the dogmatic (rather than thought-out) presumption of the all-trumping importance of freedom of speech to which I referred in my earlier post. My knowledge of hate speech laws is from Britain, not Canada, but I would assume there is soome comarability - and if so the kneejerk resort to cries of Orwellianism is simply a ludicrous instance of the slippery-slope fallacy.

    The race hate laws in Britain are against the use of speech intended to stir up racial hatred - meaning that the court must prove intent. With the burden of proof on the prosecution 'intent' is a hard thing to prove, and indeed instances of successful prosecutions are rare. It's certainly no Orwellian nightmare! (The proposed new religious hatred law is another matter, though, since it has been drafted by idiots with no conception of law and replaces the key requirement of intent with likely effect.)

    I'm not advocating hate speech laws, but it's as simply and demonstrably nonsense to claim that their existence is the gateway to an Orwellian dystopia as it would be to argue that the existence of the criminal charges of intent to commit crimes are the start of a similar slippery slope to Thought Crimes.


    Sorry this comment is so long. You don't have to post it, but since I've written it...

  14. "I would also point out, that most hate crime laws are not ment to stand alone - it's a supplement to the ordinary laws. This means that you can't get convicted of a hate crime, unless you could get convicted of the ordinary crime, which was aggrevated by being a hate crime."

    Yes, but that's not the case with hate speech laws. In fact, I don't have much problem with most hate crime laws, as long as they are, as you describe, add-ons that increase the penalty for something that is already a crime outside the context of being done as a hate crime. We take context into account in deciding sentencing all the time, and this is codified into law in many cases.

    Hate speech laws, on the other hand, criminalize speech. I view, for example, the proposed British law against "inciting religious hatred" to be a key example of how good intentions can put freedom of speech at grave risk.

  15. 'Hate speech laws, on the other hand, criminalize speech. I view, for example, the proposed British law against "inciting religious hatred" to be a key example of how good intentions can put freedom of speech at grave risk.'

    IM[NSH]O, there are two critical aspects to be considered with regard to the British bill.

    The first pertains to the (debatable) right to 'stir up ... hatred against a group of persons defined by reference to religious belief or lack of religious belief'
    (that's in the wording of the bill). This is an area where I think there is room for some debate - on pragmatic grounds, if nothing else.

    The second pertains the the bill's emphasis on whether 'the words, behaviour or material are (or is) likely to be heard or seen by any person in whom they are (or it is) likely to stir up racial or religious hatred.' As I suggested previously, this it the true danger area here because it removes the critical constraint of 'intent'.

    This having been said, there's a lot of ignorance about the bill. The accompanying notes make clear that:

    'The words, behaviour, written material or recordings or programme must be both threatening, abusive or insulting and intended or likely to stir up racial or religious hatred. Hatred is a strong term. The offences will not encompass material that just stirs up ridicule or prejudice or causes offence. Further what must be stirred up is hatred of a group of persons defined by their religious beliefs and not hatred of the religion itself. Of themselves, criticism or expressions of antipathy or dislike of particular religions or their adherents will not be caught by the offence.'

    Yes, there is cause for concern. No, there is n ot cause for hysteria.

  16. I didn't think I was being hysterical, but I do think the law proposed in Britain about "inciting religious hatred" is a monumentally bad idea.

    These laws tend to have unintended consequences and to expand and metastasize. However, even if the law were passed and didn't expand (and no "slippery slope" applied), I'd still be very concerned about a chilling effect on speech from this law--specifically because of the mushiness of the law with regard to intent. Rowan Atkinson expressed it best.

    One major problem I find with such a law is the self-censorship that it will encourage. Rather than run afoul of the law, it is likely that some commentators will simply err on the side of safety and water down what they say and write.

  17. I wasn't accusing you of being hysterical, Orac, though Willems' 'Have none of these people ever read Orwell?' comes close.

    I do think that there is a lot of slippery slope fallaciousness going on here, though. I also think that your concerns about self-censorship may be misplaced (though again I add my strong concerns about this nebulous 'likelihood' qualification). It may be true that 'some commentators will simply err on the side of safety and water down what they say and write', but I'm unconvinced - you yankees have no such laws yet when it comes to criticism of the religious you have some of the most insipid journalism in the world.

    Frankly, I suspect the people most likely to be at risk of prosecution under this law would be the more - ahem - strident religious leaders. It would be very difficult to argue in court that even the most stridently atheistic or mockingly anti-religion speech would 'stir up ... hatred against a group of persons defined by reference to religious belief' (PZ would be safe enough, for example), but a mullah who preached that the ungodly would burn in hell and could be murdered with impunity would meet this criterion perfectly.

    Again, I emphasise that I am personally opposed to this legislation.

  18. An apparent difference between the British bill (as I assume it to be) and similar laws in the US is that in the US, as far as I know, it's legal to say we should hate someone or someone's religion. Speech that includes "fighting words", or words that actually incite violence or illegal behavior, may be made illegal in the US. I have a problem with laws that prohibit speech that tries to make us feel a particular way, as opposed to laws that try to make us behave illegally.

    Apparently a lot of people outside the US, and some inside, do not understand that rights in the US pertain to individuals, not groups of people or society in general. We believe (or are supposed to, based on the foundation of the Constitution) that the good of society is protected when the rights of individuals are protected, not the other way around. That belief tends to allow individuals to behave in ways that society frowns on as long as the behavior does not cause actual harm to others. It is true that this belief has eroded in some ways, and that not all Americans understand the implications. I happen to believe this, and that's why I think laws prohibiting certain types of speech are dangerous, whether they are good or not.

  19. I am in favour of freedom of speech. But it is still necessary, in my opinion, to protect innocent citizens (whatever their religion, race, gender or sexual orientation) from being persecuted by propagandists whose malevolent ambitions are always a threat to a law-abiding society.


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