Stomping free speech flat in Austria

Austrian prosecutors think Irving's jail term is too short:

Austrian prosecutors have filed an appeal against the three-year prison sentence handed to the British historian David Irving, arguing that he escaped too lightly for the crime of Holocaust denial.

Irving was left stunned and open-mouthed when the sentence was handed down after a one-day trial in a Vienna court yesterday.

After entering a guilty plea and publicly accepting that he had made a mistake when denying existence of gas chambers at Auschwitz, Irving had clearly expected a more lenient punishment over two speeches made to Austrian neo-Nazis in 1989.

Irving's defence lawyer, Elmar Kresbach, has already appealed against the severity of the sentence. But Walter Geyer, spokesman for the public prosecutor's office in Vienna, said that prosecutors in the trial filed their own appeal today.

"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.

Herr Kresbach was not available for comment this afternoon, but has said that Irving was unlikely to serve the full three-year term because of various factors, including his age.

Holy crap. Enough's enough already. This is going beyond stifling free speech. This is stomping it flat. As despicable as Irving is and as big of a liar that he is, he shouldn't be in jail for denying the Holocaust in the first place.

Irving clearly miscalculated when he decided to be a weasel and disavow his previous Holocaust denial in the hope of leniency. His obviously insincere recantation of his previous statements denying the Holocaust clearly ticked off the court enough to produce a harsh three year sentence for Holocaust denial. Indeed, it has been suggested that the motivation for the harsh sentence was that the court and the prosecutor thought he had committed perjury with his false recantation. It's quite possible that he did, as his attempt to say that he had changed his mind about Auschwitz was ludicrously and obviously insincere. If Irving did, in fact, commit perjury, and the Austrian court was displeased at being lied to, then I say let Irving be tried for perjury, not punished through tacking more time onto an already excessive sentence. It is undoubtedly true that Irving isn't going to prison for seeking the "truth," but rather for writing Nazi apologia and distorting history. Even so, the answer to hateful speech is not jail.

Holocaust deniers and neo-Nazis have their biggest martyr, and he's about to become a bigger martyr still if the Austrian prosecutor gets his way. Jeff Goldstein envisions an even worse outcome:

What I fear--and why I support the free speech solution (in which people like Irving are publicly humiliated for their poor research, their wild conjecture, and their barely cohesive conspiracy theories)--is that by imprisoning Irving, the stage has been effectively set for the criminalization of other instances of "public hate speech," which, in an intellectual millieu of hard multiculturalism and the celebration of "diversity" through the kinds of identity politics that allow individual groups to construct and defend any perceived affronts to the group, is sure to end in the kind of absurd relativism that has been too long insinuating itself into western liberalism.


David Irving on trial for Holocaust denial
Shooting free speech in the foot: David Irving sentenced to three years in jail for denying the Holocaust
Irving's sentence: not just a question of free speech (Deborah Lipstadt)
Free speech, even if it hurts (Michael Shermer)
The test that David Irving set me: do I really believe in the power of truth?
More on the Irving Case
Free Irving
Prosecutors appeal to have Irving's jail term increased
Three years is not enough say Irving's accusers
Instapundit on the Irving case
In defense of free speech
Like shouting 'fire'?
Saying What He Doesn't Think
Denying the Denying of Denying
Imprisoning Holocaust Denialists (as much as Dean and I detest each other, he happens to be right on this particular issue.)
Irving sentence not long enough? (Fellow ScienceBlogger!)

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Well I still think his "recanting" lessons his martyrdom appeal to a certain degree. Neo-nazi's and the like prefer their martyrs resolute and pure (both racially and politically). Irving's sudden acceptance of the reality of the gas chmabers, though an obviously cynical attempt at leniency, is likely to lower his standing with that bunch. One thing that is undeniable, is the enormous publicity generated by this affair has given holocaust denial far more attention than if Irving had given his presentation without prosecution.

I'm pretty much in agreement with you here, and though I haven't read your other comments on the topic, that's not going to stop me from playing devil's advocate just a bit:

Everyone agrees that regulating free speech to a certain extent is reasonable -- slander's illegal, and there's the ever-popular "fire in a crowded theater" argument. So, what about holocaust deniers? Why does this particular form of lying merit more protection to the liars than someone who lies about, say, Demi Moore's sex life?

"Fire in a crowded theater" obviously can cause direct physical harm. Slander is directed toward an individual and causes harm to the person's reputation. I don't know that denying gas chambers in Auschwitz causes either of these types of harm.

Don't get me wrong, I think that these deniers are motivated by their anti-Semitism. But these denials aren't necessarily directed toward a specific person. Who should sue for slander and how are they going to prove that they were harmed by someone saying that gas chambers weren't used to kill Jews in Auschwitz?

Also, a lot of deniers aren't disputing the fact that Jews were collected into concentration camps and died in these camps. They are just trying to minimize the actual numbers killed and also the methods used. So do we prosecute people who deny or interpret differently well established facts? Do we get to prosecute creationists who deny evolution?

The best way to deal with these idiots is through education and laughter (directed at them). Forcibly supressing them only lends credibility to their outrageous claims by those who are foolish enough to listen to them in the first place.

Forcibly supressing them only lends credibility to their outrageous claims by those who are foolish enough to listen to them in the first place.

Can't make claims that your "truth" is being suppressed if it isn't being suppressed... Oh, wait. People already do that. Like that Trudeau guy with the best-selling book full of "suppressed" "cures."

I don't think there is any way to defend what Austria has done. "Fire in a crowded theater . . . " forget it. Free speech is free speech, end of story. I know that Austria was part of the Nazi empire, and thus Austrians have a special guilt when it comes to the Holocaust.

Still, you cannot prosecute someone for exercising their right to speak. The public is not stupid. They can tell the truth for themselves, and don't need a fool court to teach it to them.

Who should sue for slander and how are they going to prove that they were harmed by someone saying that gas chambers weren't used to kill Jews in Auschwitz?

I'm not saying Holocaust denial laws are already covered by slander laws, I'm saying that the same logic that can be used to defend slander laws can also be used to defend Holocaust denial laws. Slander laws are designed to protect people from others using lies to hurt them. Holocaust denial laws are designed to protect people from the possibility of repeating the past. If people don't believe the Holocaust occurred, they are more likely to be duped by another Hitler.

Still, you cannot prosecute someone for exercising their right to speak. The public is not stupid. They can tell the truth for themselves, and don't need a fool court to teach it to them.

So why have slander laws at all? Why not let the "public" decide whether someone has been wronged? I'm still not sure why Holocaust denial laws are any different from slander laws.

I'm still fairly sure that Austria's Holocaust denial laws are wrongheaded, but I don't think the reason is as simple as "free speech, end of story."

I haven't thought much about the subtilties yet, but I think the best way to deal with Holocaust denial is to present the evidence and keep up with whatever new canards the deniers come up with.

Idea that probably already exists: Something like's Index of Creationist Claims, except for Holocaust denial.