Robert Sheridan
Mon, 08 Feb 2010 13:01:40 -0800
***It appears that the ECHR has labeled the Holocaust a clearly established historical fact.
That seems appropriate from where I sit.The concept of denying a clearly established historical fact, while a deplorable violation of the logic of reason, leaves me perplexed when it is characterized as an "abuse of right" subject to prior restraint and criminalization. I've never seen this 'abuse of right by denial of fact' concept before, that denial of a fact is an abuse of a right, perhaps because some of what we take to be fact may have a certain mutability. I suppose Ptolemy's explanation of a geocentric universe, Copernicus's refutation, with Galileo and others, Newton's Laws (see Einstein) and Darwin's Theory (see creationists) would be examples where accepted fact became subject to challenge, some right, some wrong.
Whose right is being abused? Surviving victims of the Holocaust who have personal experience of the fact? Their surviving or subsequent relatives and descendants? People who would not like to see such an episode repeated? Some other form of right? A political right? In the U.S. don't we usually think in terms of a right as being owned or possessed or acquired or residing in a person? Perhaps a group? Is there some other form of right at work here? A European Community notion that we need to understand?
The only way I can understand the denial of what I understand to be as much a fact as the war itself is to believe that a frightening number, or type, of people has some deep-seated need to deny the Holocaust for reasons that I can only imagine or guess at. This, I imagine, is a rabid form of anti-Semitism of the sort that Hitler and his ilk exemplified, more to be derided and ridiculed than met with reason, for reason is not always the most effective antidote to unreason or emotion, but that's a different problem.
The problem is whether foolish, even very dangerous, people may speak stinging lies and what result when they do.
rs Corcos, Christine wrote:
New working paper by Laurent Pech analyzing the treatment of Holocaust denial in various EU countries. Laurent Pech, "The Law of Holocaust Denial in Europe: Towards a (Qualified) EU-Wide Criminal Prohibition," Jean Monnet Working Paper No.10/09http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536078 Here is the abstract. A majority of EU countries have long considered that the right to freedom of expression precludes the criminalization of Holocaust denial per se. The full implementation of the 2008 EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (hereinafter: the EU FD on racism) will, however, considerably harmonizes the law of Holocaust denial in Europe. While several provisions of the EU FD on racism offer a series of legal options enabling any EU country to limit the scope of national provisions criminalizing "genocide denial," it remains that all EU Member States are now under the legal obligation to criminalize genocide denial when it is carried out either in a manner likely to incite to violence or hatred or in a manner likely to disturb public order or which is threatening, abusive or insulting. Before offering a critical review of the EU FD on racism and arguing that the political necessity of laws punishing genocide denial and the legal need for an EU-wide prohibition may be seriously questioned, this paper will contend that the legal reasoning developed by national courts in "militant democracies" is far from convincing and that the European Court of Human Rights should have refrained from labeling the Holocaust a clearly established historical fact whose denial constitutes ipso facto an "abuse of right". -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Scott Idleman Sent: Friday, February 05, 2010 11:15 PM To: 'CONLAWPROFS professors' Subject: RE: Germans Prohibited From Thinking I agree entirely that there are differences and that some of these differences, such as the legal mode or form of the government's censorship,can be considered significant.But Robert Sheridan's post asked "[w]hy . . . we in the U.S. allow pretty much unfettered expression on life and death subjects while Germany doesn't." I first questioned the extent to which we truly do allow "pretty much unfettered expression," citing examples of government censorship of certain symbols or literary works that have racial or racist components. I then suggested that the contours or limits of our doctrine of expression might, like Germany's in Professor Sheridan's theory, be shaped by forces such as fear. (I must confess to not knowing what Professor Sheridan means by "life and death subjects," and thus I don't know how that phrase's intended meaning might affect my assessment.) There is no doubt that the forms and degrees of government action in the German and U.S. examples are different when broadly viewed, which is why I did not suggest that they were the same or equivalent. Yet I thought it equally problematic to imply or believe that "the regulation or toleration of expression in the United States is always, categorically, and clearly distinguishable from the German situation." My focus, quite simply, was on the existence of and reasons for the government censorship in the first place, looking at both countries, not just Germany. Once that assessment has been made, in fact, I suspect that the reasons for the differences in mode and degree of legal sanction may also become clearer. Scott -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Friday, February 05, 2010 19:37 To: 'CONLAWPROFS professors' Subject: RE: Germans Prohibited From Thinking It seems to me that there's a very big difference between government decisions about what speech to exclude from government-run schools and government-run libraries and government decisions about what speech to criminalize. Eugene-----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof- boun...@lists.ucla.edu] On Behalf Of Scott Idleman Sent: Friday, February 05, 2010 2:45 PM To: 'Robert Sheridan'; 'CONLAWPROFS professors' Subject: RE: Germans Prohibited From Thinking Robert Sheridan's distinction could explain the particular question ofMeinKampf's availability in the United States when compared to Germany.Butit's not clear to me that the regulation or toleration of expressionin theUnited States is always, categorically, and clearly distinguishablefrom theGerman situation. Instead of banning the use of the swastika altogether, we tolerate the banning of the confederate flag in certain contexts, e.g., on thet-shirtsof public high school students, and instead of banning Mein Kampf, we tolerate the removal from public schools (either class reading listsor evenlibraries) of older books that are seen from the vantage point of 2010asdepicting African-Americans in mocking or degrading ways. Perhaps this homegrown intolerance arises from Americans' own fear orguiltregarding their country's particular history of slavery and racial discrimination, though the range of potentially offensivecommunicationstoday--what some might call the dominion of politicalcorrectness--suggeststhat there's more to it than just the nation's record of racialinjustice.In short, I would hope that any effort to explain the suppression ofideasand expression in Germany, which I certainly consider a worthwhileinquiry,might also shed light on contemporary efforts to suppress certainideas orsymbols in the United States. Scott Idleman Marquette University -----Original Message----- From: conlawprof-boun...@lists.ucla.edu [mailto:conlawprof-boun...@lists.ucla.edu] On Behalf Of RobertSheridanSent: Friday, February 05, 2010 11:45 To: CONLAWPROFS professors Subject: Germans Prohibited From Thinking http://tinyurl.com/yfkp363 Link above is to an article in NYT, today, text below the comment: If there's one place where thinking about Hitler might be encouraged, not stifled, it's Germany, not to mention the U.S. Yet Germany hasgonethe other way when it comes to expression on this subject. Why do we in the U.S. allow pretty much unfettered expression on life and death subjects while Germany doesn't? A theory: The willingness to tolerate expression is a function offear.Our history of fear of Hitler is different than Germany's, a country that he led to disgrace and destruction with Allied help. This isn'ttoexcuse the gag order but to try to understand it. I wonder whether it would make any sense at all in Germany to throwthesubject open to discussion. The fear must be that there would be more neo-Nazi reaction in favor than scholarly influence against. Very different from our FA doctrine. See the remarks of Mr. Kramer, below. rs MUNICH - In Germany, an author is granted an ironclad copyright for 70 years after his death, apparently even if he is subsequently regardedasone of the greatest mass murderers in history and a dark stain on the national character. Hitler<http://topics.nytimes.com/top/reference/timestopics/people/h/adolf_hitl er/index.html?inline=nyt-per>'s copyright on "Mein Kampf," in the hands of the Bavarian governmentsincethe end of the Nazi regime, has long been used to keep hisinflammatorymanifesto off the shelves in Germany <http://www.nytimes.com/info/germany?inline=nyt-geo>. But with the expiration date looming in 2015, there is a developing showdown here over the first German publication of the book since the end of WorldWarII. Experts at the respected Institute of Contemporary History <http://www.ifz-muenchen.de/index.php?id=4&L=1> in Munich say theywantto prepare a critical, annotated version of the book for release when the copyright expires 70 years after Hitler's suicide in his Berlinbunker."We hope to prevent neo-Nazi publications by putting out a commented, scholarly edition before that," said Edith Raim <http://www.ifz-muenchen.de/edith_raim.html>, a historian at the institute. "'Mein Kampf' is one of the central texts if you want to explain National Socialism, and it hasn't been available in acommentededition at all in Germany." But the Bavarian government opposed the idea, citing respect forvictimsof the Holocaust. In a statement Thursday, the Bavarian FinanceMinistrysaid that permits for reprints would not be issued, at home or abroad. "This also applies to a new annotated edition," said the statement, adding that the state would use "all means at its disposal to proceed against any violations." There was also disagreement as to whether the book might be banned as Nazi propaganda. The Bavarian government said that even afterexpirationof the copyright, "the dissemination of Nazi ideologies will remain prohibited in Germany and is punishable under the penal code." But Ms. Raim said that diaries by prominent Nazis like Joseph Goebbels and Heinrich Himmler were already available. Unofficial copies of "Mein Kampf" are easily accessible on theInternetalready, and the book is legally published abroad, including in the United States. Hitler wrote the book, which detailed his hatred of Jews, his desireforrevenge against the French and the need for more space or "Lebensraum" in the east for Germans, while in Landsberg prison in Bavaria afterthefailed Beer Hall Putsch in 1923. The first volume of the book was published in 1925 and the second the next year. More than 12 million copies of "Mein Kampf" were in circulation by1945.The cities of Munich and Nuremberg, among others, gave it away toyoungcouples as a wedding present, according to the Bavarian state library. Stephan J. Kramer, secretary general of the Central Council of Jews in Germany <http://www.zentralratdjuden.de/en/topic/2.html> in Berlin,saidthe publication of "Mein Kampf" continued to split the Jewishcommunityin Germany, with many Holocaust survivors opposing its publication. "I have the highest respect for this opinion, but on the other hand I'm saying very openly: The copyright is going to be waived anyway. It's a matter of time before the book is available in shops and libraries,"Mr.Kramer said. Mr. Kramer said that with the book available on the Internet, it was important to have the work put in context by a responsible group like the Institute of Contemporary History. "Those who are already on the wrong side already have the book and already read it from their own point of view," he said. "Let's get it out there, and let's get it out there with a commentary." _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can(rightly orwrongly) forward the messages to others. _______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed asprivate.Anyone can subscribe to the list and read messages that are posted;people canread the Web archives; and list members can (rightly or wrongly)forward themessages to others._______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. 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Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Conlawprof@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.