Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
With all the talk of free speech lately, a reposting of this link seems appropriate (and thanks to Sandefur for reminding me of it). It's a speech by Christopher Hitchens on the subject of free speech. Whatever you may think of Hitchens as a result of his support of the Iraq war, this is a great speech and I agree with it almost completely. I like the fact that he begins by mocking the infamous "shouting fire in a crowded theater" example used by the vastly overrated Oliver Wendell Holmes.
I also like the fact that he takes on perhaps the most difficult to defend instance of free speech, holocaust denial, and condemns the laws against it among our German and Austrian allies. He says:
The two great achievements of Austria are to convince the world that Hitler was German and Beethoven was Viennese. Now to this proud record they can add, they have the courage to finally face their past and lock up a British historian who has committed no crime except that of thought and writing. And that's a scandal. And I can't find a seconder usually when I propose this but I don't care. I don't need a seconder. My own opinion is enough for me, and I claim the right to have it defended against any consensus, any majority, anywhere, any place, any time, and anyone who disagrees with this can pick a number, get on line, and kiss my ass.
*raises his lighter in the air and cheers* Quite so. I will gladly second his motion. For defending the rights of David Irving, Hitchens was naturally accused of believing his holocaust denial; this is the classic, unthinking slur aimed at those who defend unpopular speech.
Comments
I think its at least debatable whether or not you could call Irving a 'historian' as opposed to a mere propogandist. But I do agree that this law is wrong and Irving should not be tossed in the pokie for his speech, regardless how dispicable its content.
Posted by: Dave S. | January 17, 2008 9:47 AM
I like the fact that he begins by mocking the infamous "shouting fire in a crowded theater" example used by the vastly overrated Oliver Wendell Holmes."
He mocks it, but doesn't really analyze its application to the issue of German free speech law, does he?
He also cites Holmes as an authority to buttress one of his points later on in his speech, so I suppose Holmes retains some "rating" after all?
And I must say that Hitchens' argument for the protection of Holocaust deniers and antisemitic rabble-rousers is quite weak. His argument is that a persons freedom to speech and the listeners right to hear must prevail in all cases, so that the listener may learn something new, be exposed to an enlightening viewpoint.
Now, I think it is just as reasonable as not to conclude by this point in time, that we are not, in fact, going to learn anything new or valuable from any Holocaust denier. And, I believe, to deny this is to deny reason itself.
And since, on the other hand, we do stand a good chance to be injured by such people, the decision by the German and Canadian governments to not protect certain speech makes perfect sense.
Posted by: Gingerbaker | January 17, 2008 11:00 AM
Gingerbaker:
That's dumb. Basically you are saying "Since I think the viewpoint of holocaust deniers isn't enlightened, it should be censored". Maybe it truly isn't enlightened, but the whole idea is that *it's not up to you to decide that*, and it's not up to you to keep ideas out of the marketplace of ideas, no matter how personally reprehensive you find them.
And Ed, Sticking actions in the middle of your blog surrounded by asterisks is tacky and wrecks the flow of your article.
Posted by: Russell Miller | January 17, 2008 11:05 AM
Don't worry Russ, I'm sure Ed will correct that oversight before the hardcover edition of the blog is released. ::rolleyes:: :)
Posted by: Bad | January 17, 2008 11:11 AM
Amlost every kind of speech is limited is some way, depending on the forum. It's not ok to yell 'fire' at the top of your lungs ina crowded theater, but you can in the privacy of your own home and in any number of other places.
Holocaust denial is stupid, no doubt. It should be protected as free speech in general, but that doesn't allow it to be spread in any forum the speaker desires (say, for instance, a public school history class).
The thing everyone has to understand, and Ed usually does a good job with this, is that it isn't a black and white issue, there is a large, blurry gray area in just about any free speech situation. Think of the IDiots who like to claim they are being unfairly suppressed because they are not allowed to preach their crap in public school classrooms.
Cheers.
Posted by: Fastlane | January 17, 2008 11:19 AM
The best method to battle unpopular speech is to utterly destroy its message through reason. I can't remember the quip that captures the message poeticly, though.
Posted by: Shawn Wilkinson | January 17, 2008 11:38 AM
A far better critique of the 'shouting fire' analogy was done by Alan Dershowitz, 1989, SHOUTING 'FIRE!'
The Atlantic, 263(1), 72-74.
Posted by: Winnebago | January 17, 2008 12:09 PM
On Holocaust denial I am torn. I am with Fastlane in this debate, it is not cut and dried - black and white issue. IMO, this is a position where the intelligent should agree to disagree.
Understand, the purpose of these laws in Germany and Austria is not so much to prevent free speech by citizens as it is to prevent future governments from denying the past or rewriting history. It would be frighteningly easy for political parties to rise again, stoking flames of xenophobia and nationalism, using holocaust denial as a spark. These laws deny them the tinder that could easily be reignited.
I look at it this way, the sole purpose of holocaust denial is not scholarly examination of the evidence, it is deliberate and purposeful fraud. Just as we regulate commercial speech to prevent corporations/people from making claims that a patently untrue, so should we approach this revisionist tack of history. It is one thing to re-examine facts with the intent of shedding new light or perspective, it is quite another to attempt to throw a blanket over the same facts and claim that they do not exist.
Agreed, that arguments are better exposed for the frauds they are rather than suppressing them. However, this relies on an educated populace that is free of bias or prejudice. Wander over to Tim Lambert's Deltoid blog, read the dust being thrown up by one DK regarding the Iraq casualty counts and you will understand why Adenauer et al believed such laws were necessary in the fledging Federal Republic of Germany.
Posted by: boba | January 17, 2008 12:54 PM
"Gingerbaker:
That's dumb.
That's not a very enlightened thing to say. You should not be allowed to say it. ;)
Basically you are saying "Since I think the viewpoint of holocaust deniers isn't enlightened, it should be censored".
That's not at all what I am saying. But I think that is close to what Hitchens was saying either.
Maybe it truly isn't enlightened, but the whole idea is that *it's not up to you to decide that*, and it's not up to you to keep ideas out of the marketplace of ideas, no matter how personally reprehensive you find them."
Well, it is not up to me in any case, as I live in the U.S. not Canada or Germany.
I am saying that Hitchens' argument was unconvincing to me. After sixty years worth of Holocaust denial, there is nothing, I propose, that a Holocaust denier can bring to the vaunted "marketplace of ideas" that would give additional benefit over what has already been said.
And I believe that my above statement is as reasonable as someone who proposes the opposite.
What I think we all can agree on is that there are a lot of instances where Holocaust deniers rouse dangerous crowds, and that their ideas have deadly consequences.
My contention is that if one accepts these two ideas - that Holocaust deniers provide nothing to society but violence and death, that Canada and Germany have every reasonable right to restrict such speech under certain circumstances if they feel it is justified.
You know, protected "speech" has come to mean more than public words - it now includes actions such as distributing campaign donations.
Our "Supreme" court has ruled that it is an unconstitutional restriction of free speech to limit corporate campaign spending!
So, I think, sometimes "free speech" can be a perversion of what America is supposed to be all about.
Evidently, the Canadians and the Germans have some ideas on what crossing the line into perversion means to them as well.
Posted by: Gingerbaker | January 17, 2008 1:01 PM
*types on his keyboard*
I sympathize with your points, but:
Being "different" is not reason enough to make speech illegal.
You know what requires a MUCH more educated populace, free of bias? Expecting it to apply different levels of suppression based on the content -- not the popularity -- of speech.
I can never read a statement like this without immediately substituting the ideas I hold most dear for the ones to which it refers. Twenty years from now ...
"It would be frighteningly easy for political parties to rise again, stoking flames of civil liberties and religious freedom, using opposition to the recently enacted constitutional amendment that imposes Christianity as our nation's religion, as a spark. These laws deny them the tinder that could easily be reignited."
Gun nuts want their guns. I want my speech.
Posted by: itchy | January 17, 2008 1:15 PM
Gingerbaker said:
Maybe not to those who first heard it sixty years ago. But I think the very continued existence of people who want to deny the Holocaust is instructive. I think they serve as continuing object lessons for each generation-- "Look at these people. See how human bias can cause people to overlook the most overwhelming evidence in order to hold onto their prejudices. How does that happen to them? How can you avoid it happening to you? Well, you can think critically. You can learn to examine the evidence and strive toward objectivity, even if it leads to conclusions you'd rather not face. You can have compassion for these people, who never acquired such skills. Perhaps they still can, perhaps not. But if they can't, at least you can still learn from them-- about how not to think."
Posted by: Gretchen | January 17, 2008 1:17 PM
Holocaust deniers do provide a value to society. Namely, a reminder of just how awful the Holocaust was.
What we should fear more than racist crackpots is a population ignorant of the history of racist crackpotism.
Posted by: Kevin Klein | January 17, 2008 1:22 PM
Gingerbaker wrote:
I certainly don't think we're going to learn anything of value from a Holocaust denier (except perhaps about the psychological conditions that create one). But the point is that this is not a decision for the government to make. Give them that power and they might just as easily decide that we are not going to learn anything new from a creationist as well and shut down all advocacy of creationism. As much as I oppose creationism, that would be as wrong as wrong can possibly be.
You do? Has David Irving ever hurt you? Or anyone else? The advocacy of an idea does not hurt anyone; actions alone cause harm.
Posted by: Ed Brayton | January 17, 2008 1:36 PM
"Benefit to the marketplace of ideas" is not a requirement for speech to be legal, nor should it be.
I can (and should be able to) mutter or write all sorts of useless stuff like "mumpher frel boregands" or lyrics to Celine Dion songs without getting tossed into jail.
It's not as clear cut to me. Crowds that become dangerous or deadly as a result of an anti-Holocaust speech are made of individuals who already were dangerous. At most, the danger is in the accumulation of all the like-minded speech and innuendo they've heard and read. You'd need a very blunt approach to suppress that.
And the freedom we'd relinquish would far outweigh the benefits. If we make it illegal to argue against what is considered an historical fact, those in power will write history as they wish and toss us in jail for protesting. Perhaps they might say our speech would rouse dangerous crowds and could even have deadly consequences.
Posted by: itchy | January 17, 2008 1:45 PM
Itchy said:
""Benefit to the marketplace of ideas" is not a requirement for speech to be legal, nor should it be."
No, but the phrase is invoked referentially in order to defend the contribution of any speech at all. This was essentially ( the first part of) what Hitchens was arguing - that ANY speech benefits this community chest, and therefore must be protected.
My response was to suggest that the 5, 235th time we hear that "No Jews died in the Holocaust" benefits the public discussion nothing, but that if the speaker incites a single skinhead to harm someone, then the public good has been harmed.
"I can (and should be able to) mutter or write all sorts of useless stuff like "mumpher frel boregands" or lyrics to Celine Dion songs without getting tossed into jail."
I don't know what "mumpher frel boregands" means, but it sounds interesting. :) If you are reciting Celine Dion lyrics in public, jail is too good for you. ;D
Posted by: Gingerbaker | January 17, 2008 2:08 PM
Ed said:
"I certainly don't think we're going to learn anything of value from a Holocaust denier (except perhaps about the psychological conditions that create one). But the point is that this is not a decision for the government to make."
Well, that really was the second point that Hitchens was making, and it is a better point, I think, than his first.
I wish I knew more about the Constitutions of Canada and Germany, as they compare to ours here in the U.S., with regard to individual liberties. I'm afraid I know nothing about this.
But they seem to trust their governments here more than some of us do.
"Has David Irving ever hurt you? Or anyone else? The advocacy of an idea does not hurt anyone; actions alone cause harm."
I don't think even you believe this, Ed. There is a difference between advocacy of an idea and incitement of a crowd.
If a neo-Nazi skinhead orator says "There are Jews in the park, and who here has any guts?" and there ensues a bloodbath, do you think the orator would/should not be prosecuted?
If there weren't violent skinheads, then all speech would be innocent, but such is not the case.
When David Irving provides intellectual sustenance to, and keeps public acquaintance with neo-Nazis he is, I feel, responsible in some way for the criminal actions of the neo-Nazi mob. In much the same way an adult would be responsible for giving a pistol and ammo to children.
Posted by: Gingerbaker | January 17, 2008 2:29 PM
Hitchens has flirted with Holocaust Denialism, on David Irving "David Irving is not just a Fascist historian. He is also a great historian of Fascism." amongst many other strange things.
His old freind swore that he was eating dinner with Hitchens while he was drunk and hitchens denied there were gas chambers. This guy is very smart but his views are all over the place.
Posted by: Fell | January 17, 2008 3:00 PM
Gingerbaker wrote:
And Irving is guilty only of the first, not the second. No one has ever even accused him of inciting a crowd to hurt anyone. He is accused only of advocating ideas, which you just admitted is different than incitement. So what follows is simply irrelevant.
I think those who actually hurt someone should be prosecuted. But remember, this case has nothing to do with Irving, who has never done anything even remotely like this. You have to go several more steps away to get to Irving, as you did here:
Okay, now imagine just how broadly this legal theory would apply. An anti-abortion speaker who says that abortion is murder "provides intellectual sustenance" to those who murder abortion doctors, like Paul Hill and Eric Robert Rudolph; by your theory, we must now squash all advocacy against abortion. Don't find that one compelling? Try this one...
When Eric Harris was shooting up Columbine high school, he was wearing a shirt that said "Natural Selection." In his diary, he wrote of his desire to rid society of the unfit. Many people, including the father of one of the kids he murdered, now argue that teaching evolution "provides intellectual sustenance" for whackos like Harris and Klebold and it therefore must be banned. Sure, there are good arguments against that; in fact, the idea is quite idiotic. But give government the power to enforce your legal theory, and you don't think George W. Bush or Mike Huckabee would just love to use that pretense to get rid of evolution?
One could go on and on with examples all day long. Your legal theory here would justify censoring those who speak out against illegal immigration on the pretense that it provides intellectual sustenance to anti-immigrant violence (or conversely, could justify censoring those who speak out FOR illegal immigration for providing intellectual sustenance for illegal immigrants who commit crimes).
I'm not arguing for a slippery slope here, as none is needed. The moment you begin to prosecute one person's advocacy of an idea, especially an idea that is not itself a violent one (and thus the difference between saying "I don't think the holocaust happened" and "go kill Jewish people in the park"), you have stepped over a very important boundary. Such a rationale cannot be applied consistently without turning us into a police state, so it will always be applied selectively, only to those ideas that are the most unpopular. And that is precisely where defense of freedom of speech is needed the most. We don't need freedom of speech to protect popular speech; it needs no protection. If freedom of speech does not protect unpopular speech, it protects nothing at all.
Posted by: Ed Brayton | January 17, 2008 3:01 PM
Love Hitch. Hate some of his views. Not this one, though. However, I am gratified to see his choice for presidential candidate (Mr. 9/11) going down in flames.
Posted by: Strider | January 17, 2008 3:29 PM
Ed, I am not trying to make the point that anyone who happens to espouse a viewpoint which could support a deranged individual or group bears responsibility for that groups actions.
Darwin is not responsible for the actions of some messed-up kid who wears his likeness on a t-shirt.
Irving, for example, can publish and say any preposterous ugly thing he wants to, and if that is all he does, that's fine. ( Except in Canada, Germany, and, I think, Italy and Poland, where just spouting bull about the Holocaust is a crime).
But when he starts associating with neo-nazi organizations, starts giving speeches to members he knows are extremist and if he presents material that he KNOWS other historians have criticized as false and prejudicial then, in my mind he has crossed the line. If - a big if - a member of his speaking audience goes out and assaults someone, yeah, I hope he bears criminal responsibility for that. And I think he bears moral responsibility for a heck of a lot more than that.
And Irving has done this. Repeatedly. Here is a chilling account of one of his speeches http://www.aijac.org.au/review/1996/2116/irving.html
None of this would matter if there were no violent skinheads. Or a man like Irving who seems to be incapable of not telling proven falsehoods to anyone who will listen.
Posted by: Gingerbaker | January 17, 2008 4:19 PM
Re Fell
I had submitted a comment about this earlier which was either rejected by Mr. Brayton or got lost while awaiting approval by him. The comment about Hitchens relative to Holocaust denial is more or less true. In addition, Mr. Hitchens was also a two fisted Israel basher and possibly a borderline antisemite. However, subsequently, he apparently discovered that he had Jewish ancestry, which discovery resulted in him doing a 180 on these opinions. I would describe his current positions as very much sympathetic both to the State of Israel, albeit a serious critic of the settler movement therein, and also toward the Jewish people. This reversal was probably also helped along by his antipathy toward Islam as a result of the 9/11 attacks.
Posted by: SLC | January 17, 2008 4:32 PM
Even shouting "Fire" in a crowded theatre is perfectly legitimate, in the right circumstances. Last time I heard someone do that, it caused laughter, a bit of self-reflection, and nothing else. Even though it was said very excitedly, by a very large and loud man, and there was indeed fire.
As it turns out, it was a callback to a fairly long and entertaining discourse on freedom of speech and disappearing constitutional rights (and constitutions) by a certain Mr. Jillette.
Posted by: Johnny Vector | January 17, 2008 5:18 PM
Gingerbaker wrote:
Your second paragraph clearly contradicts the first. All you really said is "of course he can say whatever he wants, unless he says it to other people who agree with him and what he says is viewed as absurd by other people."
Then you are basing the legality of what he says solely on the actions of a single person in an audience of thousands. And remember, we're not talking about inciting a riot. We're not talking him whipping a crowd into a frenzy and telling them to storm out of the building and start killing Jews. We're just talking about him defending his beliefs about whether a particular historical event took place or not. This is not an incitement by any reasonable definition; at worst, it can only be said to provide some background support to someone who might incite to riot. So if he says that to an audience of 1000 people and one of them is crazy enough to leave the building and commit a crime, he suddenly becomes responsible for that person's actions.
But again, think of just how far reaching that legal theory could be. In the US, the incitement to riot exception is drawn very, very narrowly precisely to avoid applying it in so broadly a manner as you have, and that is a very good thing. If we applied that exception in the manner you suggest, there is no limit to the kinds of speech that could be squashed. A minister speaking on the evils of homosexuality could be convicted if a single person in his church, someone really mentally disturbed, later assaults a gay person. A pro-marijuana legalization group could be held responsible and their free speech destroyed if anyone in their membership is arrested for marijuana possession. If it turned out that Eric Harris had gone to hear a lecture about natural selection by Richard Dawkins before putting on a natural selection t-shirt and shooting up his school, Dawkins could be held responsible for his actions (absurdly, of course, but quite plausibly under the legal argument you're advancing). A pro-life group that sends out literature condemning abortion as murder could be censored and punished if one single person on their mailing list of 50,000 people goes out and kills an abortion doctor. There is virtually no limit to the ways such a legal doctrine could be used to crush free speech - especially speech that the government doesn't like. We have far more to fear from such laws than we do from David Irving.
Posted by: Ed Brayton | January 17, 2008 6:05 PM
From gingerbaker:
Then they're idiots. If anyone has a reason never to trust government it's the Germans--look where successive governments, the Tsar, the Weimar Republic, and the Nazis, got them.How wise is it, especially, to trust government with the authority to control what we can say? If you really think there's a bright line that government would never go beyond, you need to look at any number of free speech cases, whether in the U.S. or elsewhere.
Posted by: James Hanley | January 17, 2008 6:11 PM
The deniers are using the fact that these laws exist as a point proving that they (the deniers) are telling the truth since these laws would not be needed if all the holocaust happened. Essentially they are doing the unjustly persecuted minority trick and they just got their martyrs for the cause (Zundel and Irving).
Another reason to get rid of these laws is that you cannot stop people from denying the holocaust by law especially in a world as connected as West-Europe is. Removing these laws allows you to see who thinks the holocaust never happened and why. This would allow a better targeted education (even though the persistence of creationism indicates you will always keep people who will keep denying whatever the evidence provided) about this touchy subject.
Posted by: Who Cares | January 17, 2008 6:56 PM
A good reason to oppose such laws that is independent of the social utility of the speech is that censorship tends to lend credibility to the censored, whether they deserve it or not. People are likely to reason that censorship is only applied because opponents of the views expressed are incapable of opposing them on rational grounds.
Posted by: Bill Poser | January 17, 2008 10:38 PM
James Hanley,
Not necessarily disagreeing with your comment but I think you meant to write 'Kaiser' not 'Tsar'.
Posted by: Ross | January 18, 2008 4:04 AM
The person sued by Irving, Deborah Lipstadt, has also criticized the Austrian law. "I am uncomfortable with imprisoning people for speech. Let him go and let him fade from everyone's radar screens."
However this same Lipstadt invented the term "soft-core denial". She even accused President Carter of such denial because of his book on Palestine.
"In the first week of February 2007, Lipstadt used a neologism "soft-core denial" at the Zionist Federation's annual fundraising dinner in London. Referring to such groups as the Muslim Council of Britain, reportedly she stated: "'When groups of people refuse to commemorate Holocaust Memorial Day unless equal time is given to anti-Muslim prejudice, this is soft-core denial.'"[3] According to Paul, "She received huge applause when she asked how former US President Jimmy Carter could omit the years 1939-1947 from a chronology in his book"; referring to his recently-published and controversial book Palestine Peace Not Apartheid, she said: "'When a former president of the United States writes a book on the Israeli-Palestinian crisis and writes a chronology at the beginning of the book in order to help them understand the emergence of the situation and in that chronology lists nothing of importance between 1939 and 1947, that is soft-core denial.'"
By associating criticism of Israel and zionism to holocaust denial, Lipstadt is making denial more credible.
http://www.answers.com/main/ntquery?s=deborah+lipstadt&gwp=13
Posted by: bernarda | January 19, 2008 7:05 AM