David Irving

David Irving, holocaust denier and general idiot, gets three years in the slammer under Austria's holocaust denial law. While I find it hard to feel sympathy for a man who travelled to Austria knowing that he was a wanted criminal there, he doesn't deserve this.

This isn't a legal point. There is no doubt that he violated the Austrian law. And there is essentially no doubt that this Austrian law complies with article 10 of the European Convention of Human Rights governing freedom of speech - the European Court of Human Rights has consistently held that laws against holocaust denial fall within the permitted exceptions to free speech under article 10.2. Even in the U.S. a holocaust denial law would probably be constitutional - the first amendment does not protect false statements of fact made with "actual malice".

Even if human rights law allows laws against holocaust denial, they aren't necessarily a good idea. The purpose of the false statements of fact exemption isn't to allow the government censor to serve as a Platonic guardian of the truth: it's to punish things like libel, fraud, and perjury - falsehoods which cause identifiable damage to specific people.

Liberals then to believe in a maximalist conception of free speech. Deborah Lipstadt, the victorious defendant in the notorious Irving libel trial explains more eloquently that I could why this is.

Moreover, I don’t believe censorship is efficacious. It renders the censored item into forbidden fruit, making it more appealing, not less so.

Quite.

While it is legitimate to argue that there is a difference between cartoons and the murder of millions of people, it is hard to argue for laws against Holocaust denial but demand that the Danish cartoonists’ freedom of speech be protected. It suggests a double standard.

This is vitally important. Censorship envy is a legitimate grievance which we are handing Muslim troublemakers on a plate. All demands for censorship are reasonable to the people making them - the only answer that we can expect other people to accept is "Nothing we can do, it's a free country."

When David Irving forced me to go to court to defend my freedom of expression, my most important weapon was the historical truth. We have truth and history on our side.

Quite. The libel trial involved a team of expert historians showing David Irving's to be false with meticulously detailed evidence, all of which is now on the record. This criminal trial involves the Austrian State declaring them to be false as an act of raw power. Show, don't tell.

John Stuart Mill devotes the first half of On Liberty to analysing the case for free speech. He explicity points out that free speech should extend to false statements of fact. Firstly, this is because our understanding of truth gains depth through conflict with falsehood. If Irving had been silenced by force on "day 1" then the evidence that Lipstadt and her team of lawyers and historians produced would not have been produced. Secondly, there is always the outside chance that we might be wrong. At the time On Liberty was written, both Mill and his political opponents were as certain that God existed as we are that the holocaust happened. Mill argued that atheists should nevertheless not be punished for advocating false beliefs.

Mike S at Harry's place commented

The fact that the bastard has now been forced into making a mealy-mouthed recantation of many of his lies has made the whole affair a success in my opinion.

I imagine the Catholic authorities thought the same thing about the mealy-mouthed recantation of his "lies" that they extracted from Galileo.

Prosecuting Irving is not a victory against far-right holocaust deniers, who are a joke anyway. It is not a victory against Arab holocaust deniers, who operate from countries where the State actively promotes their sick lies and suppresses the truth. I don't know if Irving was set to give a major speech at Iranian president and dangerous lunatic Mahmoud Ahmadinejad's proposed holocaust denier's conference. I do know that the keynote speech will include something like this:

The Jewish-controlled government of Austria acknowledged that it was unable to refute David Irving's ideas when it chose to jail him rather than arguing with him

It is interesting to look at the US reaction. This excellent blog post suggests that for most Americans there is a visceral tendency to defend free speech, even for idiots. While we can wonder if this is universally true given that a majority of Americans support flag-burning laws, it is certainly true of the American political elite.

If this had happened in America, then the American Civil Liberties Union would have taken up Irving's case. Over here, the general reaction even among friends of free speech is "I know he shouldn't be in jail, but he is so odious that I won't spend my time or money trying to get him out." The ACLU are to be commended for this attitude.