Thursday, February 23, 2006

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.


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.



  • At 11:51 pm , Blogger Iain said...

    Presumably then you would also campaign to have Britain's existing laws against inciting racial hatred repealed.

    The only reason why anyone would promote the lie that the holocaust didn't happen is to encourage hatred of the Jews.

    Whether it is the Iranian president calling for Israel to be wiped off the face of the earth or descration of synagogues in Britain, hatred of and violence towards Jews is a contemporary problem.

    Unless people who oppose Irving's conviction and sentence are prepared to argue that incitement to racial hatred should not be a crime, then morally they are highly vulnerable to the charge of a selectivity about who is protected from hate speech.

  • At 2:04 am , Anonymous Anonymous said...

    Pff. Vacuous nonsense. The reason why we have laws against incitment to racial hatred is so we have justification to prosecute what are seen to be 'ring leaders' in the event of any outbreak of racially motivated violent crime - the distinction should be clear in peoples heads given it came up recently in the form of the religious hatred bill. It goes a little something like this;

    If you commit an act of violence you have committed a crime, under standard criminal law.

    If you tell someone to commit an act of violence you have committed a crime under law governing incitment to violence.

    If you do not explicity tell someone to commit an act of violence against someone on account of their race but they nevertheless interpret your words (with reasonableness of the interpretation subject to consideration in a court of law) as an encouragement to commit an act of violence against someone on account of their race which they then do then you have commited a crime under the racial hatred laws.

    The religious hatred bill would have extended the last category to include religion as a motivation with wonderfully vague and cloudy definitions as to what constituted religious hatred and how incitment was to be determined.

    David Irving would not be guilty even under our racial hatred laws. At best he could be found in contempt of court for being a truly rubbish historian.

    As a matter of fact I do worry about the vagueries of the legislation against 'racial hatred' but it most certainly has nothing to do with a debate over free speech because the whole justification for the racial hatred laws is not that it is racial hatred, it is the subsequent acts of violence which racial hatred leads to.

    ** In actual fact, as I understand it the main reason that David Irving promotes the lie that the holocaust didn't happen is not to encourage racial hatred of jews, though to my knowledge he does believe in the existence of a global jewish conspiracy (whatever that is even supposed to mean - conspiracy to what?) his main motivation is to exonnerate or at least muddy the connection of one of the most horrific criminal acts of the past thousand years to Nazi Germany because he's a crazy antisemitic neo-fascist in love with the third reich.

  • At 9:38 am , Blogger Iain said...

    Dear Anonymous

    You comment 'the main reason that David Irving promotes the lie that the holocaust didn't happen is not to encourage racial hatred of jews' but instead because 'because he's a crazy antisemitic neo-fascist'.

    And you accuse me of vacuous nonsense!

    The fatuous description of Irving as 'a truly rubbish historian' reveals a lack of understanding of his work or methods.

    Try reading Telling lies about Hitler by Richard J Evans or visit

    My point is that morally, and in the specific Austrian context, prosecuting people for holocaust denial is no more a restriction on free speech than our own incitement to hatred laws.

  • At 11:18 am , Anonymous Anonymous said...

    And my point was that this was incorrect because in fact our own racial hatred laws are tied specifically to subsequent acts of violence committed by those influenced by the comments, whereas the Austrian legislation specifically takes from you the right to express (or hold) a particular opinion regardless of the consequences. The two are not equivalent and it is not inconsistent to defend one but criticise the other.

    As far as I recall didn't the Lipstadt trial pretty much return a verdict of 'pretty rubbish historian' against Irving?

    Just because he himself is anti-semitic doesn't mean that his work is motivated by his anti-semitism. Rather, his work is motivated by a desire to clear Nazi Germany (or at the very least, Hitler) of culpability for the crime of murdering between five and seven million jews.

  • At 12:50 pm , Blogger Iain said...

    No, the Lipstadt trial precisely did not say that Irving was a 'pretty rubbish historian'. Such a description implies someone who is merely sloppy in their research on slovenly in their prose style.

    What the Lipstadt trial established was that Irving was a deliberate liar and falsifier who systematically manipulated evidence in the service of his anti-semitic ideology.

    It proved that he is not really entitled to the description 'historian' at all, since that implies a degree of scholarly integrity that Irving does not have.

    Again you are wrong about Irving's view of the Holocaust as his work over the past decade or so has been aimed at denying that the holocaust happened, not who was responsible for it.

    That's why Lipstadt wrote what she did about Irving (and was vindicated by the courts).

    Holocaust denial, whether or not it should be illegal, is a serious matter and the use of an essentially frivolous term such as 'pretty rubbish historian' to describe him trivialises the deep offensiveness of what he does!

  • At 7:09 pm , Blogger LibertyCat said...

    David Irving isn't a rubbish historian - the reason why he is the holocaust denier who gets all the attention is because he was a reasonably serious military historian before he took up holocaust denial.

  • At 7:14 pm , Blogger LibertyCat said...

    Iain, I think there is a difference between holocaust denial laws and incitement to racial hatred laws (although actually I agree with you that the incitement to racial hatred laws don't work and should be repealed).

    Holocaust denial laws prohibit expression of an opinion. If you think the holocaust did not happen, then there is no legal way you can say that in Austria - even in an academic journal article which uses sufficiently long words that the kind of neo-Nazi thug who commits acts of violence against Jews couldn't read it.

    Incitement to hatred laws deal with the manner of expression. It the opinions expressed in The Bell Curve were spoken from the platform at a far-right rally, they might well be criminal. In a nominally academic book, where the risk of actually inciting hatred is lower, they aren't.


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