Denying the Holocaust is no picnic: In the face of overwhelming evidence from witnesses to its unspeakable monstrosities, only sheer delusion, rabid hostility to modern Judaism, or complete insensitivity could drive one to hold or publish such views. Any society with healthy values will self-regulate such 'excesses' of free speech by ostracizing, ridiculing, and shunning those who propagate them. This de facto social censorship can be troublesome sometimes, but it does okay at balancing freedom and civility.
Now the EU Justice Ministers have decided Europeans cannot be trusted with the particularly sensitive topic of the Holocaust: under their proposal, denying or trivializing this historical tragedy will become a punishable offense. Germany, currently holding the EU Presidency, already has such a law, but German Justice Minister Brigitte Zypries brightly declares that this legislation would force even her (already strict) country to "toughen [its] laws against hate-speech."
If this were just free speech (which embraces undesirable, even "hate" speech) vs. "Holocaust Denial," there might be little point lamenting this latest initiative from Brussels telling its citizens what they may and may not do. But any law that threatens core values of the body politic demands vigorous objection: even at the risk of seeming to defend the Deniers.
Fundamental to the argument is the fact that free speech itself is what enables free societies to self-regulate. Were trivializing the industrial-scale genocide of the Third Reich socially acceptable, society would have much greater problems than legislation could solve. Especially the Justice Ministers' proposal: so vague that it criminalizes a vast array of behaviors (making it a very blunt instrument of censorship) and yet so limited as to be meaningless. Was it proposed in lieu of a rational European policy towards Israel and the Middle East?
The law would criminalize "publicly condoning, denying, or grossly trivializing crimes of genocide, crimes against humanity and war crimes" when that is likely to incite violence or hatred against particular groups (but not against individuals). It is frightfully vague to draw the line between free speech and jail with a judge's interpretation of what is 'likely' to incite hatred. What is, or isn't "condoning" or "trivializing" crimes against humanity? Will psychologists judge what incites to hatred? Simply publishing the expense accounts of Brussels´ parliamentarians would probably incite hatred, if not violence, towards MEPs among good European folk.
At the same time, linking criminality to speech "likely to incite … hatred" means countries that already punish "hate speech" may ignore the law at will. Others may find new power to punish "deviant" accounts of history. The Holocaust is explicitly mentioned—as are genocides so labeled by current or past UN tribunals. Aside from the danger of delegating to UN tribunals power over ideas good, bad, and ugly, this clause conveniently sidesteps the allegation of genocide against Armenians… lest Turkey be upset. That is Realpolitik to be sure, but it points out the endless mischief this kind of law propagates (would denouncing the law itself be punishable?) for ethnic grievances to become disputes over the right to make historical claims of any kind, whatsoever.
Cynical Realpolitik also betrays racist aspects of this legislation: Western Europe, where Holocaust Denial already is stigmatized or outlawed, wants to ensure its new and "less-enlightened" Eastern cousins, not always in conformity with Western sensibilities and political correctness, won't embarrass the EU. The Holocaust as such may not be an issue, given its sweeping historical weight across Europe, but the law's implications go far beyond that. What Western experience, education, and gained knowledge have made unacceptable is being legislatively-prescribed to other peoples, rather than letting knowledge, discussion (yes: demagoguery, but also common sense and fact) settle through the marketplace of ideas what should be a non-issue to begin with.
The danger is that fringe radicals will style themselves "martyrs of freedom" claiming—not without success—that what they have to say is so 'dangerous' (i.e. true—what state has to outlaw a lie?) that it needed to be banned. Trivializing or denying the Holocaust is so pernicious, it does not deserve the honor of being outlawed. That will not serve the memory of its victims, living or dead.
Legislators must tread carefully when limiting free speech, the greater good being to let foul ideas be crushed by truth. Who can say how far away the EU is from making punishable by law Global Warming Denial/Trivialization, or incarcerating those who claim HIV and AIDS have no causal relationship?
Education, free and open dissemination of ideas, and minimal state interference with thought and speech are the mark of a society's march towards true liberalism, the maximum amount of freedom being tightly linked to the maturity of a nation. The Justice Ministers' law stands rather as an accusation against all members of society as incompetent to decide, act, or react as deemed proper by the state. It need not be said that the former option—true liberalism—is antithetical to totalitarianism, while the Ministers are drifting all too close to the mindset that made Europe´s trial with totalitarianism possible in the first place.
Jens F. Laurson is Editor-in-Chief of the International Affairs Forum. George A. Pieler is Senior Fellow with the Institute for Policy Innovation.