Such a step is understandable. Current legislation outlawing incitement of hatred of Jews fails to deal with Holocaust denial. It is offensive to Jews and non-Jews alike, but especially so to Holocaust survivors and their families, who are deeply hurt when their experiences and suffering are subjected to lies and distortions. But criminalising Holocaust denial would be a mistake and almost certainly counter-productive.
One of the main arguments for legislation is the fear that Holocaust denial will influence the mainstream; that those who are unaware of the facts might be swayed by the pseudo-academic manner in which the deniers advance their views. The use of the Internet to spread Holocaust denial has intensified this concern. The unwary are seen as less likely to realise that Holocaust denial on the Internet is propagated by racists and anti- Semites because the medium sanitises the material.
In fact, the data from polls sponsored by the American Jewish Committee in various countries makes it clear that Holocaust denial is barely given serious credence outside those who would anyway be regarded as strongly anti-Semitic. In the UK poll (conducted by Gallup in 1994), 84 per cent thought it impossible that "the Nazi extermination of the Jews never happened".
What happens on the Internet is harder to monitor. But on the World Wide Web alone there are some 30 billion words in circulation at any one time - only a tiny fraction must be related to Holocaust denial. To encounter Holocaust-denial material you invariably have to look for it. And denial on the Internet does not have cyberspace to itself. Much information about the Holocaust is made available, both by groups dedicated to combating Holocaust denial and individuals who will supply material through more informal networks.
Despite the highly marginal impact of Holocaust denial beyond groups espousing anti-Semitism, which is confirmed in the 1996 "Antisemitism World Report", many would argue that, since it harms the dignity of those accused of fabricating the Holocaust, it should still be banned. Even before a law reached the statute books, however, three issues would loom very large.
First, how would denial of the Holocaust be defined? Outright statements that the Holocaust never happened present no problem, but this is only one form of denial. What about the claim that the figure of six million Jews murdered is an exaggeration, that only a few hundred-thousand died, mostly through typhoid or other diseases? Or the statement by the French Front National leader Jean Marie Le Pen that "Auschwitz is a mere detail in the history of the Second World War"?
Holocaust denial is a continuum. The most dangerous views are the more subtly expressed, because people like Le Pen believe that they can get away with it. Only the most draconian legislation, which would encroach unacceptably on freedom of speech, would cover all the ways of denying the Holocaust. Such a law would also go beyond acceptable curbs on free speech by, in effect, legislating about historical truth. Such legislation would be tantamount to admitting that in a free society the discipline of history cannot look after itself; that the immense body of historical scholarship on the Holocaust does not constitute, by its very existence, the answer to the Holocaust deniers - which it most surely does.
Third, if the denial of a key historical tragedy of one group is outlawed, why not that of others? There are those who say that the harmful effects of black slavery are exaggerated, that the Armenians were not subjected to genocide - why not similar legislation for these distortions? To refuse it would be to suggest that there is a hierarchy of tragedy and that would be morally unjustifiable. Merely opening up such a possibility suggests that the law would create more problems than it solved.
Even if these issues were set aside and legislation reached the statute books, serious problems remain. Anyone prosecuted and brought to trial could well use the court as a platform for spreading their views to a much wider audience than they would ever have reached through small circulation leaflets, letters or publications. This is what happened in Canada, where deniers were prosecuted under a law prohibiting the spreading of "false news". The media gave prominence to the trials, and deniers' views were given as much space as the facts presented by bona fide historians.
Perhaps the weakest argument is that the trials will teach people about the Holocaust. The proper way to do that is through the education system (and teaching the Holocaust is now part of the National Curriculum), museums, popular culture, documentaries, survivor accounts, novels, accessible historical works. To use a court for such a purpose smacks of show trials, however worthy the aim. And show trials defeat justice; they do not promote it.
The misguided demand for Holocaust denial legislation pinpoints a weakness in the existing law against racial incitement. If this law were effective and properly framed, Holocaust denial would be covered, since it is plainly and simply a form of anti-Semitism. Legislators should look to Britain's anti-racist legislation to see if the definition of what kind of speech or writing constitutes racism or anti-Semitism can be changed to encompass Holocaust denial - and then make it easier to brings prosecutions for racist incitement - if they seriously want to bring Holocaust denial into the legislative net.
The writer is the Executive Director of the Institute for Jewish Policy Research.Reuse content