Dispatches from the Creation Wars

Irving Sentence Not Long Enough?

Not content with sentencing a man to 3 years in prison for speaking his mind, vile as his thoughts may be, Austrian prosecutors have appealed that sentence and demanded that the 67 year old historian David Irving spend ten years in prison instead for the crime of having made an unapproved speech in 1989. Austria seems quite intent on engaging in the very fascist behavior they allegedly want to prevent with such laws. And I, for one, would like to hear my fellow civil libertarians, who have stood up for the right of a Danish newspaper to print cartoons that some find offensive, to stand up and be heard in this case as well. The very same principle is at stake.

Comments

  1. #1 James Hrynyshyn
    February 22, 2006

    Count me in. It is indeed the very same principle, and given the current political context, I have to ask whether the Austrian prosecutors have completely lost their marbles.

  2. #2 Hume's Ghost
    February 22, 2006

    Hell. That’s outrageous. I saw this comment at Deborah Lipstadt’s blog (she’s the woman who smashed Irving when he sued her for libel)

    “Doctor Lipstadt: I am like you dismayed at the verdict but unlike you I am not “in principle” for free speech. I am for free speech, full stop. The Germans and Austrogermans with such speech suppressing laws once again demonstrate that they know what is wrong in their character but do not know what is right; do not understand the rights of man; do not know how to comport themselves consistently as free men, and thus the potential for dictatorship remains.

    David Irving is a twisted, puny man. He is a stranger to honor and to integrity. He is a racist, a liar and a scoundrel. Condemnation and ostracism are his deserved lot, not state crime committed upon him, no matter how many millions on millions democratically approve.”

    Michael Shermer has a piece in the LA Times that states that defending Irving is tantamount to defending ourselves from opression. Its worth reading.

  3. #3 Dave S.
    February 22, 2006

    Ed said:

    Not content with sentencing a man to 3 years in prison for speaking his mind, vile as his thoughts may be, Austrian prosecutors have appealed that sentence and demanded that the 67 year old historian David Irving spend ten years in prison instead for the crime of having made an unapproved speech in 1989.

    Having re-read the article, to be fair, it does not actually say the prosecutors are asking for the full 10. It only says that they are asking for more time, in light of the fact that the maximum sentence is 10 years and Irving only got 3. They may indeed be asking for 10, but not having seen their brief or any specific time quoted, we can’t say for sure.

    From the article:

    The public prosecutor believes the ruling was too lenient in light of a possible sentence of up to ten years and Irving’s special importance to rightwing radicals,” Herr Geyer said.

    Granted, that is beside the point, and even 3 years is an outrage.

  4. #4 eeore
    February 22, 2006

    I too stood up for the cartoons, for the simple reason that they were legal. A complaint was made against them, and the Danish authorities found that they broke no law. Therefore to suppress them is a to deny freedom of speech.

    But Irving’s views are not only criminal but they are dangerous. Austria, Belgium, Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia, and Switzerland have not imposed laws against Holocaust denial because they are repressive regimes bent on withdrawl of liberty…. indeed it could be argued that they are more open and progressive societies than the USA…. they certainly have a lower prison population.

    These laws were imposed by those countries because people who shared Irvings views deprived millions of people of their civil rights, stole their homes and properties and then systematically murdered them.

    And equally in each of those countries there are millions of people who took part or gained advantage of those abuses. Who have traded punishment and recrimination for the sake of not boasting about or attempting to diminish what they have done.

    There is also the issue of Irving being twice deported from Austria and being banned from the country and completely ignoring this.

    And it isn’t just Austria that do not want him or his poisonous message, he is banned from Canada, South Africa, Germany, New Zealand, Australia and has been deported from America and Italy.

    In the words of Mr Irving, “if I may get distastful with you”, I am tired of being lectured by Americans, who wrap themselves in the flag and spout about the 1st Amendment: completely ignoring MacCarthy, the suppression of the Civil Rights Movement and the racist past, the shameful treatment of Native Americans, Guantanamo bay, the lies surrounding the war on terror and the fact that their choice in politics is the Pepsi challenge.

    Sure you are free to say what you want: until someone shoots you: Martin Luther King learned that lesson the hard way.

    That Europe chooses to attempt a civilised, legal regulation of free speech is Europe’s affair.

    And you do yourself no credit by defending a Nazi…. who was so infatuated by that creed that he refered to the judge at his libel trail as Mein Fuhrer.

    Oh and if you feel like educating yourself you might like to read the summing up in that case, to find out exactly what you are defending:
    http://www.bailii.org/ew/cases/EWHC/QB/2000/115.html

    Have a nice day.

  5. #5 Dave S.
    February 22, 2006

    eeore –

    Nobody here doubts that Mr. Irving is a scumbag and his views vile and detestable.

    However, to jail him simply for having such views is absolutely wrong. It’s as wrong in Austria as it would be in Germany or Lithuania or Mongolia or the United States.

    And that is speaking as a Canadian.

    Thanks for the link. I was looking for that.

  6. #6 Dave S.
    February 22, 2006

    Please add “and expressing” after “having” in the above post.

  7. #7 Ed Brayton
    February 22, 2006

    eeore wrote:

    I too stood up for the cartoons, for the simple reason that they were legal. A complaint was made against them, and the Danish authorities found that they broke no law. Therefore to suppress them is a to deny freedom of speech.

    This is a circular argument, as though the law itself determines what the law ought to say.

    But Irving’s views are not only criminal but they are dangerous. Austria, Belgium, Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia, and Switzerland have not imposed laws against Holocaust denial because they are repressive regimes bent on withdrawl of liberty…. indeed it could be argued that they are more open and progressive societies than the USA…. they certainly have a lower prison population.

    This is a red herring. The law under which Irving is being punished is either just or it is unjust, and the overall goal of the society does not determine which it is. They may be more “progressive” in some ways, but when it comes to protecting freedom of speech they are far less progressive. The justness of this particular law is not decided on some overall scale of progressiveness, it is decided by reference to basic principles.

    These laws were imposed by those countries because people who shared Irvings views deprived millions of people of their civil rights, stole their homes and properties and then systematically murdered them.

    Another red herring. Just imagine how far a government could go in infringing upon free speech based on such a flimsy pretense. They could certainly justify any speech minimizing the crimes of communists using this same argument. They could make the same argument to justify imprisoning those who advocate Islam or Christianity, pointing to centuries of abuses by the Church throughout the West and by the Caliphates of Islam in Asia and Northern Africa. Free speech would be little more than an empty phrase if such a flimsy pretense can overrule it.

    And it isn’t just Austria that do not want him or his poisonous message, he is banned from Canada, South Africa, Germany, New Zealand, Australia and has been deported from America and Italy.

    It is one thing to refuse to grant a visa for entry into a country and quite another to imprison them for speaking their mind. Irving was not charged with violating immigration laws, he was charged with making a criminal speech. That is unjust, regardless of how heinous that speech is.

    In the words of Mr Irving, “if I may get distastful with you”, I am tired of being lectured by Americans, who wrap themselves in the flag and spout about the 1st Amendment: completely ignoring MacCarthy, the suppression of the Civil Rights Movement and the racist past, the shameful treatment of Native Americans, Guantanamo bay, the lies surrounding the war on terror and the fact that their choice in politics is the Pepsi challenge.

    And I am sick and tired of this idiotic argument. I have written volumes of criticism of my own government when they violate the same principles I am standing up for here. I have hammered my own government for violating the rights of dissidents and those accused of crimes. I apply my libertarian principles consistently, without regard for whether they are violated by my government or another government. The hypocrites are the folks in my country who will hammer other governments for violating the principles of liberty but excuse their own, and people like you, who want to criticize my government but not your own. It is the consistent application of principles that matter, not whether the person making the argument is an American, an Austrian, or a Martian for that matter.

    That Europe chooses to attempt a civilised, legal regulation of free speech is Europe’s affair.

    More circular nonsense. That a regulation of free speech is “legal” only means that they have passed a law to regulate free speech. It doesn’t mean such a law is just. What if they passed a law saying that you can’t advocate the severity of the Holocaust? Would that be a “legal regulation of free speech”? Of course it would, the very fact that they passed a law makes it “legal”. But is it just? Of course not. And it’s unjust because no government has the legitimate authority to punish people merely for advocating ideas they find heinous.

    And you do yourself no credit by defending a Nazi…. who was so infatuated by that creed that he refered to the judge at his libel trail as Mein Fuhrer.

    I couldn’t possibly care any less about “credit” for defending a Nazi. Only an imbecile would believe that I am defending a Nazi rather than defending the principle of free speech. My track record of defending the freedom to express ideas I find repulsive speaks for itself. David Irving is a vile, hateful little man. I will gladly spend the rest of my life shouting my opposition to his views and all those like him. I will not, however, give up my principled support of freedom of consience and freedom of speech for the short term expedience of silencing those I oppose. Because I know that if the government has the authority to silence those whose views I find repulsive, then it also has the authority to silence me.

  8. #8 Troy Britain
    February 22, 2006

    And I, for one, would like to hear my fellow civil libertarians, who have stood up for the right of a Danish newspaper to print cartoons that some find offensive, to stand up and be heard in this case as well. The very same principle is at stake.

    When you’re right you’re right and you’re right Ed.

  9. #9 Raging Bee
    February 22, 2006

    I am against the ban on Holocaust-denial, but I can easily see why countries that were recently destroyed by the Nazis’ Big Lie would want to silence the modern continuation of that lie. All nations suppress speech that they feel (rightly or wrongly) would cause unrest or incite violence, and maybe the Europeans felt that denying a painful and painfully-obvious fact would cause more hurt and unrest than they wanted to handle. Besides, it’s not as if Nazi or fascist opinions are suppressed as a general rule — anti-immigrant parties with “fascist” leanings are a real force in some countries’ politics. I don’t remember Georg Haider (Austria) or Jean-Marie LePen (France) being hauled off to jail.

    It is not appropriate, however, to compare this ban to the suppression of free speech that right-wing theocrats now demand. The ban in Europe applies only to one particular misrepresentation of objectively-knowable fact, while the theocrats demand a broad, open-ended ban on…whatever statement, opinion, joke or alternative doctrine makes the most thin-skinned of their flock cry. The mullahs who try to link the two are either ignorant or dishonest; and the ban on Holocaust-denial is important to them only because their own media practice it daily.

  10. #10 Ampersand
    February 22, 2006

    Austria seems quite intent on engaging in the very fascist behavior they allegedly want to prevent with such laws.

    Actually, the specific fascist behavior they “allegedly” want to prevent is organized mass murder, not censorship.

    Don’t get me wrong, I also disagree with prison for Irving, but I also think that your rhetoric here is over the top.

  11. #11 Matthew
    February 22, 2006

    I haven’t followed the case close, but is it accurate to say that he was arrested for denying the holocaust? I thought he was arrested because he was banned from the country (for denying the holocaust).

  12. #12 Roman Werpachowski
    February 22, 2006

    No, he was convicted for denying the Holocaust.

  13. #13 Ed Brayton
    February 22, 2006

    Ampersand wrote:

    Actually, the specific fascist behavior they “allegedly” want to prevent is organized mass murder, not censorship.

    I don’t buy this, for one simple reason – murder, whether of the mass and organized variety or not, is already illegal. Preventing someone from expressing a heretical historical opinion does nothing to prevent murder, it only censors free speech.

  14. #14 Raging Bee
    February 22, 2006

    This isn’t just a “heretical historical opinion” — it’s a denial of a known fact, an allegation that one of the worst atrocities in human history was fabricated by the Jooos. Given the amount of anti-Semitism that already exists in large parts of Europe, as well as the bad feelings created by WWII in general, such an allegation is at least a little bit likely — and probably intended — to incite hatred.

    Most nations have some sort of laws against slander and libel — lies told with reckless disregard for the truth, with the clear intent to harm innocent people. Holocaust denial is not slander, strictly speaking, but it comes pretty damn close, especially in places where millions of people have already been killed over similar issues.

    Europeans are increasingly having to deal with science-denial, in the form of creationism. They really don’t need Holocaust-denial as well. Let’s cut our allies a break here, shall we?

  15. #15 Ian Gibson
    February 22, 2006

    Actually, the specific fascist behavior they “allegedly” want to prevent is organized mass murder, not censorship.

    There are already laws against inciting murder. He was convicted for Holocaust denial, not for advocating violence.

  16. #16 Ed Brayton
    February 22, 2006

    Raging Bee wrote:

    This isn’t just a “heretical historical opinion” — it’s a denial of a known fact, an allegation that one of the worst atrocities in human history was fabricated by the Jooos. Given the amount of anti-Semitism that already exists in large parts of Europe, as well as the bad feelings created by WWII in general, such an allegation is at least a little bit likely — and probably intended — to incite hatred.

    It’s an opinion. A wrongheaded, patently absurd opinion, but still an opinion. The government has no legitimate authority to punish the expression of opinions, period. It really is that simple. People have lots of such absurd opinions. There are people who claim that slavery was a predominately benign institution that treated blacks well. There are people who still think that the Soviet Union was just a bunch of misguided idealists. Those opinions deserve to be laughed at, debunked and mocked. But the moment a government, any government, claims the authority to imprison those who express them, that government is engaging in tyranny.

    Most nations have some sort of laws against slander and libel — lies told with reckless disregard for the truth, with the clear intent to harm innocent people. Holocaust denial is not slander, strictly speaking, but it comes pretty damn close, especially in places where millions of people have already been killed over similar issues.

    It isn’t even in the ballpark of slander. It’s just a false claim. People make false claims all the time.

    Europeans are increasingly having to deal with science-denial, in the form of creationism. They really don’t need Holocaust-denial as well. Let’s cut our allies a break here, shall we?

    I won’t cut our allies any slack on the basic principles of liberty any more than I will cut my own government any slack on that issue. It is not a principle I will compromise on merely because I find the speech offensive. Indeed, that’s the most important time to remain consistent.

  17. #17 Roman Werpachowski
    February 23, 2006

    Europeans are increasingly having to deal with science-denial, in the form of creationism.

    I think it is still a mostly American problem. At least where I live, we will deal with it through education, not censorship.

  18. #18 outeast
    February 23, 2006

    Ed, while I agree with your principles I think that you’re committing a fallacy of yor own here. Remember, ‘rights’ themselves are a philosophical construct (albeit a good one!), not an absolute: it is societies that decide what ‘rights’ are. The US has a constitution which sets ot rights for American citizens; the Human Rights Act sets out rights for Europe. These, however, differ in critical ways. When you say:

    The government has no legitimate authority to punish the expression of opinions, period.

    You commt an error of reasoning – in America, this might be true as authority is conveyed on your governments by the Constitution (a Good Thing, imho) but in European countries it is not. If ‘has no legitimate authority’ is merely a shorthand for ‘should not, in my opinion, have the legitimate authority’ then well and good, but it is a philosophical stance and that’s all (it’s a stance I agree with, by the way).

    Europe has always had an ambiguous relationship with free speech; for many Americans, it trumps all other rights(such as the ‘right’ to live in freedom from fear), but in Europe there is much less certainty about this. Hence, almost every European country has Hate Speech laws; and while you may disagree with them (as I do) it’s damned arrogant of you to maintain that our governments have ‘no legitimate authority’ to impose them.

    There are many different conceptions of where the legitimate powers of governments should end, and these are constantly being renegotiated and there is always and will always be disagreements ovr this because there is not and cannot be an objective source of legitimacy that is universally applicable (one of the disadvantages to the nonexistence of God).

  19. #19 outeast
    February 23, 2006

    Erratum: I should have said ‘European Convention on Human Rights’, not Human Rights Act (which is the British legislation empowering the Convention in Britain).

  20. #20 Raging Bee
    February 23, 2006

    As I said before, I’m not trying to justify any of these restrictions on moral grounds; I’m just saying we should leave this minor battle for later, and keep public attention focused on the important battle today: standing up to Islamofascist intimidation-by-tantrum, which is proving far more dangerous than European hate-speech laws. We should also reject any talk of “moral equivalency” between the two — they’re both wrong, but they’re not the same.

    I also think we should look, not only at what the hate-speech and Holocaust-denial laws say, but at who, exactly, gets targeted in the enforcement. Do the cops arrest anyone who voices a “hateful” opinion, or is it only people like Abu Hamza, who made lots of specific statements and stockpiled a suspicious array of gear in his home?

    Also, as wrong as these laws may be, as long as they exist, they can serve a short-term PR purpose of proving to Muslims that Europeans do indeed take a stand (however imperfect) against the most truly vile, hateful and inflammatory expressions of bigotry.

  21. #21 Ed Brayton
    February 23, 2006

    outeast-

    You are collapsing into the sort of postmodernist relativism that I despise. It comes down to “who are you to say that they’re wrong”. My answer: I am me, and I’m making an argument for it. If you cannot defeat that argument, you simply fall back on “well there is no objective right or wrong, it’s just a matter of choices”. Sorry, I don’t buy it. I begin from this premise: that all human beings own themselves and no one else, that as a result of that fact we are endowed with rights which are unalienable, that no government may justly violate. This is the principle stated in the Declaration of Independence, and it is the defining premise of my entire political philosophy. Merely pointing out that others disagree doesn’t make that premise false.

    You say it’s arrogant of me to maintain that your government has no legitimate authority here. I disagree. I think it’s arrogant of your governments, and of those who suppport this policy, to believe that you have the legitimate authority to punish others for their expressed opinions. It’s also foolish, because the moment you give to government that authority, how do you make a coherent argument against them when they want to punish you for your opinions? You are left with no principles of liberty to appeal to, only the brute force of majority rule, because you’ve already sacrificed the very idea of freedom of conscience and granted to government the power to imprison people for their ideas as long as enough people don’t take a stand to stop them. If you do not apply that principle consistently, even when the ideas expressed are offensive to you, then you have no recourse or defense when the government turns that power against you and your opinions as well.

    Remember Martin Niemoller’s famous statement about the Nazis themselves: when they came for the communists, the trade unionists, the Jews, I did nothing for I was not one of them. When they came for me, there was no one left to speak out. If it is arrogant of me to speak out when the power of the state is turned against someone for the expression of an opinion, however offensive I may find that opinion, then I guess I’m arrogant. But I’d rather be arrogant than be either a tyrant or a fraud who won’t stand up for his principles even when it’s not convenient to do so.

  22. #22 Ed Brayton
    February 23, 2006

    Raging Bee wrote:

    I also think we should look, not only at what the hate-speech and Holocaust-denial laws say, but at who, exactly, gets targeted in the enforcement. Do the cops arrest anyone who voices a “hateful” opinion, or is it only people like Abu Hamza, who made lots of specific statements and stockpiled a suspicious array of gear in his home?

    Also, as wrong as these laws may be, as long as they exist, they can serve a short-term PR purpose of proving to Muslims that Europeans do indeed take a stand (however imperfect) against the most truly vile, hateful and inflammatory expressions of bigotry.

    Oh, I think this cuts strongly in the other direction. The fact that the law is used only against one type of hatred and not another makes it worse, not better. And the fact that the state will punish this type of speech because it’s offensive to one group only feeds the anger in the Muslim world that they won’t treat expressions that are offensive to them in the same manner. And this is exactly the problem with all such laws – once you give government the power to punish the expression of ideas, you will never have a shortage of groups seeking to use that power against those they despise. And once you allow it to happen to one group, you no longer have any principled and coherent argument against it other than appeal to the brute force of numbers – whoever manages to capture the machinery of the state may use it to punish their opponents for their ideas. But what if their opponents manage to do so? What is their argument going to consist of? They can’t argue that the state is exercising illegitimate authority because they’ve already given such authority to the government. No, you either take this stand each time, every time, no matter how heinous you find the ideas, or you put your own liberty at enormous risk. You cannot claim your own freedom without protecting the freedom of others, no matter how vile you find their expressions to be.

  23. #23 outeast
    February 24, 2006

    Ed, you’re straw manning me here – though perhaps this is because I failed to make myself wholly clear. What bugged me was you use of the term legitimacy because that carries with it the implication that there is some abstracted standard which cannot be disputed.

    In truth, your stance on free speech is largely logical, and I know that you can defend it on wholly rational grounds. In that, I would agree with you: I am a free speech absolutist, if only because I have seen how the recent attempts to curtail speech in the religious hatred bill in Britain have demonstrated that the curtailment of speech really can be the lead into a slippery slope.

    What I dislike is when you make what is in effect an appeal to authority, something implicit is your use of the term ‘legitimate’. In fact, the legitimacy of governments does depend on their historical origins: the legitimacy of US govenments is derived from the constitution, the legitimacy of the British government is derived from the monarch… Legitimacy is a legal, not moral principle.

    As to decrying my ‘moral relativism’, this is one arrow that totally misses. Observing that there is no absolute standard for morality is simply to observe a fact: one conclusion that can be drawn from this is that there can be no standards for right and wrong (your ‘moral relativism’), but that is by no means the only conclusion. My conviction is that morality, a human construct, is essential to civilization, and that we can arrive at moral standards rationally. That has nothing, however, to do with what governments have the legitimate right to do: thus my point stands that while the US government has no legitimate right to limit free speech, this may not be the case in Austria.

  24. #24 Ed Brayton
    February 24, 2006

    outeast wrote:

    Ed, you’re straw manning me here – though perhaps this is because I failed to make myself wholly clear. What bugged me was you use of the term legitimacy because that carries with it the implication that there is some abstracted standard which cannot be disputed.

    There is nothing in the world that “cannot be disputed”, but that has no bearing on reality at all. The fact that an idea may be disputed does not mean it isn’t true. I believe that there is an objective, rational standard by which the legitimacy of governmental actions may be judged. I further believe that standard to be applicable all over the world. I’ve made an argument as to why. To point out that this standard can be disputed is, quite frankly, to say nothing at all. Of course it can be disputed. Your existence can be disputed. That does not, of course, mean you don’t exist.

    What I dislike is when you make what is in effect an appeal to authority, something implicit is your use of the term ‘legitimate’. In fact, the legitimacy of governments does depend on their historical origins: the legitimacy of US govenments is derived from the constitution, the legitimacy of the British government is derived from the monarch… Legitimacy is a legal, not moral principle.

    I could not disagree more. The legitimacy of government is not measured by mere procedural fidelity but by an independent standard of justice, and that is absolutely a moral principle. I go back, as I so often do, to the principles found in the Declaration of Independence, to the premise that governments are instituted to protect man’s unalienable rights. That is the measure of the legitimacy of government. We long ago did away with the notion that legitimacy flowed from the whim of a monarch and the world is surely better off for having done so. If human beings have rights which it is unjust to infringe upon, then this is as true in Austria as it is in America.

  25. #25 JY
    February 24, 2006

    In fact, the legitimacy of governments does depend on their historical origins: the legitimacy of US govenments is derived from the constitution, the legitimacy of the British government is derived from the monarch… Legitimacy is a legal, not moral principle.

    This argument is entirely circular. All governments have a historical origin, and all governments have the power to transform themselves. The British booted their monarch for a period, and during the interregnum, there still existed a government that saw itself as ‘legitimate’ (as did a large number of the governed). When the Americans booted the monarch, and parliament along with it, it’s certain that the British certainly didn’t view the new government as ‘legitimate’, it was only the realpolitick of foreign policy that led to an exchange of ambassadors.

    The Russians booted the Tsar — was the ensuing Soviet regime ‘illegitimate’ or ‘legitimate’? ‘Historical origin’ provides no basis for making the determination. By the laws and customs of Tsarist Russia, it was illegitimate. But under Leninist political philosophy, it was legitimate. This view tells us essentially nothing; ‘legitimate’ has no meaning.

    ‘Legitimacy’ of government (in general) is usually tied to the general approval of the persons under the authority of the government. In the past that approval may have been granted simply because of a general belief in the divine right of kings, or some such nonsense. But if you think that approval of the monarch, and the bona fides of that monarch’s claim to the throne of the UK is the most important factor in securing the approval of the British populace for the current New Labour government, you’re, I think, deluded. It’s the perception that the Parliamentary elections were free and fair that legitimize the government.

    With respect to the laws themselves, there exist different concepts of legitimacy, and moral legitimacy is clearly the one Ed is referring to. Whether or not the law wound up on the books according to the established procedures of the state is irrelevant to moral legitimacy. Of course, if a statute somehow winds up on the books that didn’t receive, say, the correct minimum number of votes in a legislature (due to a clerical error), then that law is not legitimate. But that’s a different kind of legitimacy.