An unexpected analogy

While I am on vacation, I'm reprinting a number of "Classic Insolence" posts to keep the blog active while I'm gone. (It also has the salutory effect of allowing me to move some of my favorite posts from the old blog over to the new blog, and I'm guessing that quite a few of my readers have probably never seen many of these old posts, most of which are more than a year old.) These posts will be interspersed with occasional fresh material. This post originally appeared on January 5, 2006.

Remember how I said yesterday that I was going to post something today that I had been planning since before Christmas, you know, get back to normal after all the disruption of the last couple of weeks?

Scratch that for the moment.

I came across something that caught my attention and made me change my mind. Fear not, however. One good thing about blogging is that I can always revisit them tomorrow or next week. And, truth be told, what caught my attention earlier today is an article that combines two of the major themes of this blog in a way I hadn't thought about before:

So far, I'm in agreement. As I've written before, as odious as I consider Holocaust deniers and their message, I consider laws that criminalize Holocaust denial (or other forms of "hate speech," for that matter) to be serious infringements upon free speech and do not want to see David Irving, as detestable as he is, in jail for his Holocaust denial. (Of course, his failure to pay the court costs of his failed libel suit against Professor Lipstadt is another matter.) Although I understand that, as some have argued (including Professor Lipstadt, by the way), the history of Austria and Germany made such laws advisable in the early postwar period, I believe that now, over two generations after the end of World War II, these laws no longer serve any useful purpose. Indeed, I consider them more detrimental through their effects on free speech than beneficial in preventing the rise of fascism. All such laws do is to allow Holocaust deniers prosecuted under them to claim the mantle of free speech martyrs. Professor Lipstadt agrees:

Now here's where Professor Lipstadt made an unexpected analogy:

An analogy between laws against Holocaust denial and quackery! See why I couldn't resist commenting about this?

My first reaction was that I didn't buy the analogy. It struck me as somehow invalid. The reason was that, depending upon the situation, preaching that you have an elixir that cures cancer you can potentially get in trouble with the law, depending upon the situation. Then I thought about it a bit, and, on second thought, Professor Lipstadt's analogy isn't as bad as I first thought. In fact, it's pretty good. Before I begin, though, I feel the need for a preemptive disclaimer, lest you think that Orac has fallen victim to a certain undead dictator with a hankering for brains (unlikely, anyway, since I doubt even the undead Führer likes Plexiglass and circuit boards): I am not saying, implying, or otherwise insinuating that quacks, alties, or alternative medicine practitioners are Holocaust deniers, anti-Semites, or Nazis. Professor Lipstadt's analogy works because advocating quackery is an example of free speech that is not criminalized even though it is potentially quite harmful.

Got that straight? Good. Let's begin.

What needs to be considered in this analogy is the difference between speech and action, as well as the consideration of the likely outcome of that speech. Let's consider the example of Holocaust denial first. One of the arguments for outlawing it, for lumping it in with "hate speech" is it is by its very nature anti-Semitic hate speech, and that it is offensive to the dead and to survivors. Further arguments in support of such laws is that their effect is to demonize a religious/racial group (the Jews) and to promote the rehabilitation of Nazi-ism. What is the likely outcome of such speech? It may offend survivors, and it may contribute to anti-Semitism. Yet these effects are simply emotional (offending survivors) or so nebulous (contributing to anti-Semitism or the rehabilitation of Nazi-ism) that preventing these effects is not not worth the serious infringement of free speech that laws against Holocaust denial produce. Freedom of speech means nothing if offensive speech is not protected. Besides, if the anti-Semitism in Holocaust denial is acted upon (vandalism, assaults, etc.) there are already laws against such crimes. It is not necessary to criminalize the speech, except under very narrow circumstances.

In fact, it could be argued that, if a government were to restrict potentially harmful speech, a much better case can be made for restricting the speech of quacks pushing bogus "cures" than for restricting speech expressing Holocaust denial. As an example, let's look at Professor Lipstadt's example of advocating quackery. In my discussion, I don't mean advocating "alternative" therapies that might have efficacy, but rather advocating clear-cut, down-and-out, undeniable quackery, such as claims to be able to cure all cancers (or AIDS) by killing an intestinal fluke. Again, considering speech versus acting upon the speech to cause harm, there are laws under which quacks can be prosecuted if they actually use unproven or ineffective treatments on patients, particularly if they made exaggerated or impossible promises about them beforehand. But what about if they just advocate quackery? Well, as Professor Lipstadt says, people don't get thrown into jail just for advocating quackery. Indeed, we have the example of Kevin Trudeau, don't we? He's the author of a best-selling book called Natural Cures "They" Don't Want You To Know About, which advocates the worst forms of quackery. This is a book that has also sold over a million copies. Trudeau's book claims that there are cures for cancer and a variety of other serious diseases out there that "they" (meaning the government, the pharmaceutical companies, "conventional" medicine) don't want you to know about, presumably so they can keep getting your money. (Note the similarity between the conspiracy mongering of alties like Trudeau and of Holocaust denials. In the case of Holocaust deniers, it is "the Jews" who "don't want you to know" the "truth" about the Holocaust; in the case of Trudeau, it is the government, big pharma, and conventional medicine that "don't want you to know" the "truth" about all these "cures.") Although Kevin Trudeau has been in a lot of legal trouble before for credit card fraud and for making false claims about a product he was selling, he has managed to sell this book and use his infomercials to advertise his book and website without running afoul of the law. In fact, he has managed to do this, even though he had been forced to sign an agreement with the FTC that

Clearly, what got Trudeau into trouble before was selling a product and making claims about it. So he got around that by simply making claims in a book rather than advertisements. Even then, he couldn't help but use the book to advertise his coral calcium about which he had made claims before that got him into trouble.

What is the effect of such speech about quackery? It's really impossible to quantify it precisely, but, with over a million books in circulation, it's highly likely that many people have eschewed proven therapies in favor of Trudeau's brand of quackery. And, if it isn't Trudeau persuading people to choose useless therapies, there are thousands of others out there pushing similar sorts of medical misinformation and untold numbers of patients who, sadly, fall for it. Indeed, I've written about such patients before, patients such as the Orange Man, who eschewed conventional medicine in favor of coffee enemas and megadoses of carrot juice and paid a heavy price, or women who choose "alternative" medicine over conventional adjuvant therapy for their breast cancer. Where do you think they found out about these dubious therapies? Either from quacks who sell books or run websites promoting their quackery or from their legions of apologists touting either by word-of-mouth, public talks, or Internet postings their ability, for example, to "cure all cancers" or cure AIDS (Hulda Clark) or their recommendations that are claimed to "cure" many diseases (Kevin Trudeau), that's where!

In my book, it can certainly be argued that people claiming to have a cure for all diseases, even if they do not actually treat patients, likely do more direct harm than Holocaust deniers. Holocaust deniers represent a small fringe that few people pay much attention to, whereas "practitioners" pushing dubious "cures" are common, as are their apologists. The potential effects of Holocaust denial (offense to the survivors, promotion of anti-Semitism, rehabilitation of Nazi-ism), though potentially pernicious, are far less concrete than the potential effects of speech that steers patients to ineffective "cures" for serious diseases. Even so, unless they sell products through making false claims for them or directly treat patients, quacks can largely say or publish whatever they want about bogus therapies and make whatever claims they wish about them without fear of the law. Indeed, in Germany, for example, you can buy Kevin Trudeau's book quite freely on Amazon.de and elsewhere, and, as far as I know, Kevin Trudeau doesn't face arrest if he travels to Germany and Austria for his writings and talks.

Professor Lipstadt is correct. There is all manner of speech that is just as dangerous, or arguably more so, than Holocaust denial (albeit in different ways) but is nonetheless not criminalized. Putting up with such speech is part of the price of freedom. As despicable as he is, David Irving has said nothing that warrants prison and particularly not prison for decades, the maximum penalty. Even though he was clearly thumbing his nose at Austrian authorities by going there even though he knew there was a warrant for his arrest, prosecuting Irving for his Holocaust denial was a big mistake. Before his arrest, Irving was justly sinking into well-deserved obscurity, "talking to six people in a basement," as Professor Lipstadt put it. Now he has become a cause célèbre of the far right and finds himself in the news far more than he has been since his failed libel suit agains Professor Lipstadt in 2000. And if you think he's getting a lot of press now (at least in Europe), wait until his trial in February--all thanks to a harmful and misguided law that is almost certainly no longer necessary in a healthy democracy like Austria, its Nazi past notwithstanding.

More reading:

1. Irving? Let the guy go home'
2. Free speech in Europe: it's all or nothing
3. Free Speech and Laws vs. Holocaust Denial
4. Stupidity, Thy Name Is Irving