Scott Idleman
Mon, 08 Feb 2010 13:58:02 -0800
I can't recall if it was discussed on this list at the time, but last fall
German's Federal Court of Justice vacated a conviction for possessing
t-shirts using a the Hitler Youth motto because the motto was printed in
English ("Blood and Honor") and not in German ("Blut und Ehre"). Here's a
summary:
http://www.splcenter.org/get-informed/intelligence-report/browse-all-issues/
2009/winter/germany
There are obviously interesting free speech aspects to this, but what struck
me was a parallel to the endorsement inquiry under the Supreme Court's
Establishment Clause jurisprudence insofar as the particular language
(linguistic context?) in which the slogan is expressed fundamentally changes
its legal significance, even if the words can be literally understood and/or
re-translated by (equally offended) observers.
What I don't know is whether this ruling was premised on the particular
wording of the statute--perhaps the law itself indicated that the use of the
German language was essentially an element of the crime--or whether the
court recognized the language limitation on some basis external to the
statute.
Either way, it gets that court into the business of deciding when the
obvious is not so obvious (or at least not unlawful), which reminds me of
the American judicial effort to determine the circumstances under which a
Christmas tree is not a meaningful religious symbol or a phrase like "In God
We Trust" is not a meaningfully religious declaration (or at least not an
unconstitutional one).
I certainly appreciate the differences between these inquiries--I would hope
that virtually no one finds a Christmas tree as problematic as a Nazi
symbol--but fundamentally they both depend on judicial interpretations of
culture and the mechanisms and nuances of expression and meaning within each
culture. I certainly appreciate as well that much of constitutional law as
a whole can involve that kind of undertaking at some level. (The
originalist, for one, is simply an interpreter of cultural meaning at the
time of a provision's ratification.) But the undertaking is seldom as
visible as it is in cases such as this. It is like the sun's corona --
always there but only starkly apparent when there's a total eclipse.
Scott Idleman
Marquette University Law School
-----Original Message-----
From: Robert Sheridan [mailto:r...@robertsheridan.com]
Sent: Monday, February 08, 2010 15:00
To: Corcos, Christine
Cc: Scott Idleman; CONLAWPROFS professors
Subject: Re: Germans Prohibited From Thinking
"...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".
***
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.
> 10/09
>
> http://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 of
>>
> Mein
>
>> Kampf's availability in the United States when compared to Germany.
>>
> But
>
>> it's not clear to me that the regulation or toleration of expression
>>
> in
> the
>
>> United States is always, categorically, and clearly distinguishable
>>
> from
> the
>
>> German situation.
>>
>> Instead of banning the use of the swastika altogether, we tolerate the
>> banning of the confederate flag in certain contexts, e.g., on the
>>
> t-shirts
>
>> of public high school students, and instead of banning Mein Kampf, we
>> tolerate the removal from public schools (either class reading lists
>>
> or
> even
>
>> libraries) of older books that are seen from the vantage point of 2010
>>
> as
>
>> depicting African-Americans in mocking or degrading ways.
>>
>> Perhaps this homegrown intolerance arises from Americans' own fear or
>>
> guilt
>
>> regarding their country's particular history of slavery and racial
>> discrimination, though the range of potentially offensive
>>
> communications
>
>> today--what some might call the dominion of political
>>
> correctness--suggests
>
>> that there's more to it than just the nation's record of racial
>>
> injustice.
>
>> In short, I would hope that any effort to explain the suppression of
>>
> ideas
>
>> and expression in Germany, which I certainly consider a worthwhile
>>
> inquiry,
>
>> might also shed light on contemporary efforts to suppress certain
>>
> ideas or
>
>> symbols 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 Robert
>>
> Sheridan
>
>> Sent: 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 has
>>
> gone
>
>> the 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 of
>>
> fear.
>
>> 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't
>>
> to
>
>> excuse the gag order but to try to understand it.
>>
>> I wonder whether it would make any sense at all in Germany to throw
>>
> the
>
>> subject 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 regarded
>>
> as
>
>> one 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/i
>
>> ndex.html?inline=nyt-per>'s
>> copyright on "Mein Kampf," in the hands of the Bavarian government
>>
> since
>
>> the end of the Nazi regime, has long been used to keep his
>>
> inflammatory
>
>> manifesto 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 World
>>
> War
>
>> II.
>>
>> Experts at the respected Institute of Contemporary History
>> <http://www.ifz-muenchen.de/index.php?id=4&L=1> in Munich say they
>>
> want
>
>> to prepare a critical, annotated version of the book for release when
>> the copyright expires 70 years after Hitler's suicide in his Berlin
>>
> bunker.
>
>> "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 a
>>
> commented
>
>> edition at all in Germany."
>>
>> But the Bavarian government opposed the idea, citing respect for
>>
> victims
>
>> of the Holocaust. In a statement Thursday, the Bavarian Finance
>>
> Ministry
>
>> said 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 after
>>
> expiration
>
>> of 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 the
>>
> Internet
>
>> already, and the book is legally published abroad, including in the
>> United States.
>>
>> Hitler wrote the book, which detailed his hatred of Jews, his desire
>>
> for
>
>> revenge against the French and the need for more space or "Lebensraum"
>> in the east for Germans, while in Landsberg prison in Bavaria after
>>
> the
>
>> failed 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 by
>>
> 1945.
>
>> The cities of Munich and Nuremberg, among others, gave it away to
>>
> young
>
>> couples 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,
>>
> said
>
>> the publication of "Mein Kampf" continued to split the Jewish
>>
> community
>
>> in 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."
>>
>>
>> _______________________________________________
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> private.
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> _______________________________________________
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