Steven Jamar
Mon, 08 Feb 2010 14:06:20 -0800
bounced for length. this one cuts the quoted portions On Mon, Feb 8, 2010 at 5:01 PM, Steven Jamar <stevenja...@gmail.com> wrote:
> Maybe the difficulty stems from the foreignness of losing your rights by > abusing them. This can happen in this country equity and in IP, but not in > what we regard in general as human rights such as speech and religion. But > the concept is the same. > > You have a right to speak, but that right can be lost with respect to a > particular bit of speech when you abuse it. You must exercise the right > responsibly as a member of society. > > Of course this doctrine itself can be subject to a great deal of mischief > -- abuse could be turned in the wrong hands from a liberal, pro-speech > interpretation to an interpretation that treats anything the government > disagrees with as an abuse. <insert standard anti-Cheney rant as an > example, if he'd had the power to enforce his words> > > So, denying an established, unrefutable, unarguable historical fact of such > momentous significance for much of the world as the Holocaust, which can > inherently cause a disruption of society, given a particular society's > history, can be considered an abuse of the right and thus excluded from > protection under the right. > > As an abstract proposition, this seems unobjectionable, laudable even, if > one could rely upon the sensible good will and disinterested and > liberal-informed application of it. But, as history has also show, such > reliance is itself more than a bit problematic. > > Steve > > > On Mon, Feb 8, 2010 at 4:00 PM, Robert Sheridan > <r...@robertsheridan.com>wrote: > >> "...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 >> >> >> >> >> -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ) Inc.
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