Should wrong opinions be banned?

Germany has made it a crime to deny the Holocaust. Freedom is the loser, argues Ronald Dworkin Denying the Holocaust is now a crime in Germany. Freedom is under threat, says Ronald Dworkin

OVER the past year an important free-speech drama has been unfolding in Germany. In 1991, Guenter Deckert, leader of the ultra right-wing National Democratic Party, organised a meeting at which Fred Leuchter (an "expert" who has designed gas chambers for US prisons) presented his "research", purporting to show that the Auschwitz gassing of Jews never took place. Though Leuchter's arguments were already well-publicised around the world, Deckert was prosecuted and convicted for arranging the lecture under a statute prohibiting incitement to racial hatred.

In March 1994 the Federal Court of Justice overturned the conviction on the ground that just denying the Holocaust does not automatically constitute incitement, and it ordered a new trial to determine whether the defendant "sympathised with Nazi beliefs" and was guilty of "insulting and denigrating the dead".

Deckert was tried and convicted again. Three trial court judges said he did sympathise with Nazi beliefs and did insult the dead. But they gave him only a suspended one-year jail sentence and a light fine, declaring that his only crime consisted in expressing an opinion, and adding, incredibly, that he was a good family man, that his opinions were from "the heart" and that he was only trying to strengthen German resistance to Jewish demands. Two of the judges were soon relieved of their duties for "long- term illness", the only available ground for that action, and though they have quietly returned to their court they continue to be criticised by other judges, some of whom refuse to sit with them. Last December, the Federal Court of Justice overturned Deckert's light sentence and ordered yet another trial.

The public was outraged by this series of events, and the law responded. In April 1994, the German constitutional court declared that denials of the Holocaust are not protected by free speech, and upheld an official ban on a right-wing conference where David Irving, the controversial British historian of the Holocaust, was to present his views. Early this year the German Parliament passed a new law declaring it a crime, punishable by five years in prison, to deny the Holocaust, whether or not the speaker believes the denial.

The new law has been vigorously enforced. In March, German police searched the headquarters of a far-right newspaper and seized copies of an issue reviewing a Danish book that denied the Holocaust. The law has also produced problems of interpretation. In February, a Hamburg court decided that someone who left a message on an institutional answering machine stating that Steven Spielberg's Schindler's List won an Academy Award because it perpetuated the "Auschwitz myth" was not guilty of the crime. That decision, which generated a new furore, is now on appeal, but if it is reversed neo-Nazis will undoubtedly test the law with a variety of other locutions until they find one that is sustained and can become a new code phrase. They are delighted with trials turning on speech because these provide brilliant forums for their views - the Munich trial of Ewald Althans, another Holocaust denier, featured hours of videos of Hitler's speeches and other neo-Nazi propaganda.

The German constitution guarantees freedom of speech. What justifies this exception? It is implausible that allowing fanatics to deny the Holocaust would substantially increase the risk of fascist violence in Germany. Savage anti-Semitic crimes are indeed committed there, along with equally savage crimes against immigrants, and right-wing groups are undoubtedly responsible for much of this. But these groups do not need to deny that Hitler slaughtered Jews in order to encourage Hitler worshippers to attack Jews themselves. Neo-Nazis have found hundreds of lies and distortions with which to inflame Germans who are angry, resentful and prejudiced. Why should this one be picked out for special censorship and punished so severely?

The real answer is clear enough: it was made explicit in the reactions of Jewish leaders to the legal events I have described, and in the constitutional court's opinion. Denying that the Holocaust ever existed is a monstrous insult to the memory of all the Jews and others who perished in it. That is plainly right; it would be ghastly not just for Jews but for Germany and humanity if the cynical "Auschwitz lie" were ever to gain credibility. It should be refuted publicly, thoroughly and contemptuously whenever it appears.

But censorship is different. We must not endorse the principle that opinion may be banned when those in power are persuaded that it is false and that some group would be deeply and understandably wounded by its publication. The Creationists who banned Darwin from the Tennessee public schools in the 1920s were just as convinced about biological history as we are about German history, and they, too, acted to protect people who felt humiliated at the centre of their being by the disgraceful new teaching.

The Muslim fundamentalists who banned Salman Rushdie were convinced that he was wrong, and they, too, acted to protect people who had suffered deeply from what they took to be outrageous insult. Every blasphemy law, every book-burning, every witch-hunt of the right or left, has been defended on the same ground: it protects fundamental values from desecration.

Beware principles you can trust only in the hands of people who think as you do. It is tempting to say that Germany's situation is special, that the Holocaust was off history's graph and calls for exceptions to everything, including freedom of speech. But many other groups believe their situation special too, and some have good reason. There is nothing like the Holocaust in US history, but slavery is bad enough.

Blacks find arguments like those of Herrnstein and Murray's book, The Bell Curve, which suggests that races differ genetically in intelligence, deeply offensive, and in some US universities professors who teach a view of history that minorities believe insulting are ostracised and disciplined. We would not want people in power who thought this biology or history plainly wrong to have the right to ban it. Censorship is often the child of grievance, and people who feel that history has been unjust to them are unlikely to accept that their position is not special too.

I know how strong the case for censorship seems in Germany now. Decent people are impatient with abstract principles when they see hoodlums with pseudo-swastikas pretending that the most monumental, cold-blooded genocide ever was the invention of its victims. The hoodlums remind us of what we often forget: the high, sometimes nearly unbearable, cost of freedom. But freedom is important enough even for sacrifices that really hurt. People who love it should give no hostage to its enemies, like Deckert and his odious colleagues, even in the face of the violent provocations they design to tempt us.

This article appears in "Index on Censorship", published on 31 May. Tel: 0171 278 2313.