Defending Truth: Holocaust Denial in the Twenty-First Century (2024)

Kenneth Lasson

From the still-burning embers of the Holocaust, we have come once again to learn the terrible truth—that the power of evil still lurks among the nations of the world and cannot be underestimated. Nor can the effect of the spoken and written word, which in modern times must be taken in tandem with the violence of terrorism.

It has been but a half-century since the liberation of Nazi death camps, a little more than two decades since the First International Conference on the Holocaust and Human Rights,3 and a few short years since the United States Holocaust Memorial Museum first put on display its documentation of horror.4 Yet today, that form of historical revisionism popularly called “Holocaust denial” abounds worldwide in all its full-foul flourish—disseminated not only on Arab streets but in American university newspapers; not only in books, articles, and speeches but in mosques and over the Internet; and by heads of state.

“Israel must be wiped off the face of the map,” declared Mahmoud Ahmadinejad, the elected president of Iran, in December of 2006. His primary justification—that the Jewish State’s existence is predicated upon events that never happened—is echoed throughout the Muslim world. Ahmadinejad’s true colors came through in a much ballyhooed international conference in Tehran, officially sponsored by the Iranian Foreign Ministry and billed as a “Review of the Holocaust: Global Vision.”5

In a global environment increasingly dominated by mass media of manifold form and format, we have also begun to understand that what is printed on paper or broadcast on television or bytten into cyberspace affects everyone, actually or subliminally. Conversely, what is rejected or otherwise left out is doomed to a world of communication failure, ignorance, and misunderstanding.

Although Holocaust denial—one of the twenty-first century’s fastest-growing forms of counterknowledge—is flourishing in the Arab world, many Western nations are wary of drawing attention to it for fear of upsetting Muslims.6

As the generation of survivors dwindles, whose words will win? Who decides what is to appear in the vast and burgeoning marketplace of ideas?

Many of these important choices are vested in editors and publishers, upon whom the United States Constitution confers almost unfettered discretionary authority. (Lesser but similar discretion is allowed in other Western democracies.) For the most part, journalists can write, say, depict, or ignore anything they want. Freedom of thought and expression is quintessentially American: one of our most hallowed liberties, limited only by circ*mstances where actual harm has been caused or is reasonably perceived as imminent. If a line can be drawn at all—between unfair suppression of thought on the one hand and good editorial judgment on the other—it is sometimes exceedingly faint, often entirely arbitrary, and always fundamentally subjective. The greater the opportunity for excess in the exercise of the power of the press is, the more profoundly difficult are the consequences in the protection of civil liberties for individuals.

That axiom has been brought into sharp focus by Holocaust deniers, whose goal is both facilitated and confused by the aura of “political correctness,” which nowadays surrounds a great deal of editorial decision making. Nowhere is this more pervasive than in academia. What should be the most receptive place for honest intellectual inquiry and discourse has instead become one where all assumptions are open to debate—even documented historical facts. This has had an unsettling effect on students (especially those editing university newspapers) who have long been subjected to the pressures of political correctness. When they become entangled in the black and nefarious thickets of Holocaust denial, their exercise of editorial discretion can be acutely conflicting psychologically and confounding intellectually.

So can the emotional pain suffered by victims of group libel. Remedies for that malady have not been clearly established in American law. Explored least of all is the effect upon a free society when the dissemination of demonstrably false ideas is constitutionally protected. Must writers and speakers who deny the Holocaust be guaranteed equal access to curricula and classrooms? Should the misrepresentation of historical fact be suppressed when it is motivated by nothing more than racial or ethnic animus? Should responsible libraries collect and classify work borne of blatant bigotry? Have survivors been injured when their victimization has been repudiated?

More profoundly, can we reject spurious revisionism or punish purposeful expressions of hatred and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth?

This chapter attempts to answer these questions. Part I describes the background and nature of Holocaust denial, tracing the Nazis’ adoption of a plan for the “Final Solution of the Jewish Problem” through the postwar Nuremberg Trials to the present day. Part II examines the tension between free speech and historical revisionism, presenting various arguments in deference to principles of liberty and opposed to group defamation. Part III addresses the quest for truth in a free society.

1. Holocaust Denial

Both Eisenhower8 and Dodd seriously understated the possibilities. In recent years, the contention that there was no mass extermination of Jews and no deaths in gas chambers at the hands of the Nazis has given rise to a pervasive (if predictable) revisionist industry. Holocaust denial books have made their way into academic and public libraries across the country and around the world, not to mention widespread dissemination over the Internet.

The Nazis themselves recognized that the sheer incredibility of what they had done would cast shadows of doubt upon any shocking eyewitness reports. Inmates at concentration camps testified that they were frequently taunted by their captors: “Even if some proof should remain and some of you survive, people will say that the events you describe are too monstrous to be believed; they will say that they are the exaggerations of Allied propaganda and will believe us, who will deny everything, and not you.”9

Indeed, early newspaper accounts of the death camps were obscured by dispatches about the war’s progress, if not questioned for their veracity.10 That is why Eisenhower, after the Nazis were conquered, ordered every American soldier not committed to the front lines to bear witness to places like Auschwitz, Belsen, and Buchenwald.11 “We are told that the American soldier does not know what he is fighting for,” he said. “Now, at least, he will know what he is fighting against.”12 This likewise explains why the International Military Tribunal at Nuremberg was so intent on documenting all of the atrocities found by the Allied liberators.

Without the past, without memory, without history, we are nothing—adrift. We place our destiny and dignity in the hands of the misfits and their projected psychoses. This movement is not an attack on the Holocaust but on the very notion of historical meaning. It is a revolt against reality, a threat not only to the past but to the future.13

1.1 The Nature of Denial

Holocaust deniers argue that the genocide of Jews and other minority groups during World War II either did not occur—that it was a deliberate Jewish hoax—or that it was a conspiracy to advance the interests of Zionism, or that it was greatly exaggerated. They maintain that the Nazi government never had a policy of deliberately targeting Jews, that many fewer than 6 million Jews lost their lives, and that there were no tools of mass extermination such as gas chambers or incinerators in the concentration camps.

Although such denial has been going on ever since the Holocaust occurred, as the years pass and the number of survivors diminishes, it has become more virulent. Many Holocaust deniers reject the term, describing themselves instead as “revisionists.” But deniers can be differentiated from revisionists, who consider their goal to be historical inquiry using evidence and established methodology.14

1.2 Denial in the Twenty-First Century

There is abundant evidence that Holocaust denial is a global and growing phenomenon.

According to the Wyman Institute for Holocaust Studies, denial activity has substantially increased worldwide, following a temporary lull in 2006, possibly caused by the imprisonment in Austria of the revisionists’ best-known figure, the British historian David Irving and the prosecution of the prominent activists Ernst Zundel and Gemar Rudolf in Germany.

Irving had been arrested while visiting Austria in November 2005 and prosecuted for speeches he had delivered in Austria in 1989. The appeals judge, Ernest Maurer, said the sentence should be reduced because the offending statements were made “a long time ago, 17 years,” and because the judge did not expect Irving would repeat the crime.15 But in January of 2007, Irving returned to the lecture circuit. He said in an interview on Italian television that Auschwitz “was a tourist attraction [which] did not have gas chambers.” Two months later, in Budapest, he was promoting the Hungarian-language edition of his new book, which alleges that the defendants at the Nuremberg Trials did not receive fair ones.16 In November, Irving spoke at the Oxford University Union debating society’s Free Speech Forum.17

Zundel was born in Germany and lived in Canada from 1958 until 2005, when he was deported because of his Holocaust denial activity. That activity included hosting radio and television shows, publishing books and pamphlets, and managing a Web site.18 In February of 2007, a German court sentenced Zundel to five years in jail; the country’s highest appeals court upheld the conviction.19

Rudolf went on trial in a Mannheim court for denying the Holocaust. Rudolf had written an article in 1991 claiming the Nazis did not gas Jews in Auschwitz and was sentenced to fourteen months in prison in 1995. He fled Germany to avoid jail and sought political asylum in the United States. That request was rejected, and Rudolf was sent back to Germany in November 2005 to serve his original sentence. During the trial’s opening session, Rudolf declared that the Holocaust was “a gigantic fraud.”20

Revisionists have also taken to late-night public-access television to assert that claims of Nazi genocide against the Jews during World War II are part of an elaborate hoax. Slickly produced videos purport to show that concentration camps like Auschwitz and Birkenau were recreational facilities, not death camps.21 Holocaust deniers claim that archival materials concerning Nazi atrocities—voluminously detailed lists of victims, miles of gruesome film footage, and vividly remembered accounts of eyewitnesses—have all been forged.22

Meanwhile, as use of the Internet has burgeoned, its millions of subscribers provide a vast new target audience for the efforts of numerous hate groups. Catering to white supremacists, antigovernment survivalists, militiamen, and would-be terrorists, Holocaust deniers have set up enough new sites on the World Wide Web to reach a larger potential constituency than any revolutionaries in history.23

In recent years, incidents of Holocaust denial have proliferated around the world. In Australia, an Islamic cleric named Sheik Taj Din al-Hilali called the Holocaust “a Zionist lie.” Mel Gibson and his father both support the Australian League of Rights, a group that denies the Holocaust. In Denmark, Al-Jazeera Television broadcast a meeting between Arab and Danish student groups, following the controversy over cartoons about Muhammad. During the meeting, Arab Students Union Chairman Ahmad Al-Shater referred to the Holocaust as “the imaginary Holocaust.” In France, George Theil, a 65-year-old former adviser to the extremist National Front Party, was convicted of denying the Holocaust for having said on French Television that the Nazi gas chambers were “a fantasy.” Robert Faurisson was convicted by a Paris court in October 2006 of Holocaust denial, after he said on Iranian Television that no gas chambers were used by the Germans to kill Jews.24

Holocaust denial in the United States is not a popular phenomenon, even though America remains the lone Western democracy to protect it as free speech. But it does occur. In January of 2006, Sheik Fadhel as Sahlani, the leader of a prominent mosque in Brooklyn, asserted that the Holocaust “has been exaggerated.” In April, Holocaust denier Larry Darby, a candidate for the Democratic nomination for attorney general of Alabama, was a featured speaker at a conference organized by the neo-Nazi National Vanguard in Elmwood Park, New Jersey. (The event included a performance by the neo-Nazi Holocaust-denying teenage singing duo “Prussian Blue.”) In June, Darby won 44 percent of the vote in the Alabama race. Darby claims the figure of 6 million Jews murdered by the Nazis was concocted by “the Holocaust industry,” insisting that no more than 140,000 Jews were killed and most of those by Typhus.25

The Institute for Historical Review (IHR) held its major event of the year at an unnamed restaurant meeting room in Arlington, Virginia, in July of 2006. IHR Director Mark Weber spoke about “the Jewish Zionist role in determining American foreign policy” and praised the recent study about the “Israel Lobby” by Stephen Walt and John Mearsheimer. Paul Fromm, director of the extremist Canadian Association for Free Expression, focused on the imprisonment of David Irving in Austria and Zundel in Germany.26

The summer 2007 issue of IHR Update, published by the Institute for Historical Review, included an article by Daniel McGowan, which came to the defense of Zundel, Rudolf, and Faurisson and also claimed that “[t]he Holocaust narrative… has been an important tool to drive the United States into Iraq and now into Iran.”27

1.3 Denial in the Middle East

But all of these were relatively isolated incidents compared to what is happening in the Middle East. Holocaust denial has grown rapidly in Muslim countries, including American allies Egypt, Qatar, and Saudi Arabia—all of which receive significant U.S. economic and military aid. Members of the Syrian and Iranian governments, as well as Hizbollah and the Palestinian political group, Hamas, openly publish and promote such claims.28

In his 1982 doctoral dissertation, Mahmoud Abbas, a cofounder of Fatah and the current president of the Palestinian Authority, wrote: “It seems that the interest of the Zionist movement… is to inflate this figure [six million deaths] in order to gain the solidarity of international public opinion .… Many scholars have [determined] the number of Jewish victims at only a few hundred thousand.” That claim was repeated in Abbas’s 1983 book, The Secret Connection Between the Nazis and the Leaders of the Zionist Movement.29

As Israeli Cabinet Minister Isaac Herzog noted, Abbas’s view “is not a matter that can be brushed under the carpet, because at issue is a moral question whose importance cannot be overstated.”30

Islamic deniers appear to be inflamed by the attention given to Jewish victimization, which in their view has caused them to pay the price for Europe’s treatment of the Jews. They thus seek to delegitimize both Europe (pluralistic and tolerant, committed to human rights and human dignity) and Israel (which sees itself as the legacy of the Nazis’ victims and the antidote to another Holocaust). They also denigrate any country (especially the United States) where the Holocaust has come to occupy a prominent place in the moral discourse of the people.31 Abbas is well known for waffling in consideration of the current political situation; in a March 2006 interview with Ha’aretz, Abbas stated: “I have no desire to argue with the figures. The Holocaust was a terrible, unforgivable crime against the Jewish nation, a crime against humanity that cannot be accepted by humankind. The Holocaust was a terrible thing and nobody can claim I denied it.”32 But at a rally in Ramallah in early January of 2007, Abbas said: “The sons of Israel are mentioned [in the Quran] as those who are corrupting humanity on earth.”33

No such waffling from Ahmadinejad, who has become the world’s most visible denier. “As to the Holocaust,” he said in a Time Magazine interview, “I just raised a few questions. And I didn’t receive any answers to my questions. I said that during World War II around 60 million were killed. All were human beings and had their own dignities. Why only six million?” A fair question, perhaps, when taken out of the context in which it was uttered—that Israel is the cause of the world’s problems. Here are the official translations of some of Ahmadinejad’s other statements:

Ahmadinejad’s rhetoric was given its first showpiece at his Holocaust denial conference in Tehran in December of 2006. Officially sponsored by the Iranian Foreign Ministry and billed as a “Review of the Holocaust: Global Vision,” it was a well-orchestrated group polemic attended by delegates from thirty countries, including former Ku Klux Klan leader David Duke, French revisionists Robert Faurisson and Georges Thiel, and Australian denier Frederick Toben.35 In addition, several members of the extremist anti-Zionist Jewish sect Neturei Karta were prominently featured participants.36

All of the representatives were said simply to be “exercising their rights of free speech” in questioning the facts of World War II. In so doing, they were treated to an exhibit of photographs of dead Jews labeled “Myth” and “Typhus Victims” and of smiling Holocaust survivors under the heading of “Truth.”37 In addition, the conference enabled the Iranians to score propaganda points about Western hypocrisy—preaching free speech but disallowing “dangerous” views.38

In fact, many Holocaust revisionists claim their work falls under a “universal right to free speech” and seek to rely on Article 10 of the European Convention on Human Rights, which guarantees freedom of expression when faced with criminal sanctions against their statements or publications.39 But the European Court of Human Rights, for one, has consistently declared that such arguments are without merit. According to Article 17, nothing in the convention may be construed so as to justify acts that are aimed at destroying any of the very rights and freedoms contained therein. Invoking free speech to propagate denial of crimes against humanity is, according to the court, contrary to the spirit in which the convention was adopted. Reliance on free speech in such cases would thus constitute an abuse of a fundamental right.40

Iran also announced plans to establish an institution to conduct ongoing “research” concerning the Holocaust. Additional support is likely by virtue of the creation of the new English-language division of the Qatari government-funded Al Jazeera television network, which broadcasts remarks by Holocaust deniers.41

In an address at Columbia University in September of 2007, Ahmadinejad asked:

In October of 2007, Ahmadinejad made the following assertions on Iranian television:

In September of 2009, prior to his appearance at the opening of the 64th General Assembly of the United Nations, Ahmadinejad once again stoked the fires by repeating his belief that the Holocaust was a myth. He questioned whether the Holocaust was “a real event,” calling it instead a pretext used by Jews to trick the West into backing the creation of Israel. The Jewish state, he said, was created out of “a lie and a mythical claim.”44 He appeared to relish the controversy. Asked about widespread condemnation of such remarks, he replied, “The anger of the world’s professional killers is (a source of) pride for us.”45

Shortly thereafter, Israel’s Prime Minister, Binyamin Netanyahu, responded with his own speech before the UN Holding aloft a copy of Hitler’s plan for a “Final Solution” to the Jewish problem—the detailed minutes of the infamous Wannsee Conference on January 20, 1942, in which the Nazis issued precise instructions on how to carry out the extermination of the Jews—he asked, “Is this a lie?” With the original construction blueprints for the Auschwitz-Birkenau concentration camp in his hand, he asked, “Is this too a lie?” Netanyahu recalled the agreement within the UN to create the Jewish state and expressed astonishment at what he had witnessed a day earlier in that organization’s great hall. He commended those who boycotted Ahmadinejad’s speech but condemned those who allowed it, scolding the UN for giving the Iranian president “legitimacy” just six decades after the Nazi scourge. “To those who gave this Holocaust denier a hearing, I say on behalf of my people: Have you no shame? Have you no decency? What a disgrace,” Netanyahu said. “What a mockery of the charter of the United Nations.”46

Meanwhile, back in Israel, denial has become part of the Palestinian landscape. A public opinion poll conducted by Haifa University in March of 2007 found that 28 percent of Israeli Arab citizens “say they do not believe the Nazi genocide took place.” Among younger Israeli Arabs, the percentage was higher: 33 percent of Israeli Arabs of school age deny the Holocaust.47

Later that year, the Arab Institute for Holocaust Research and Education, a museum in Nazareth that teaches Israeli Arabs about the Holocaust, compared Israel’s policies to those of the Nazis. According to the Jewish Telegraphic Agency (JTA), the museum “juxtaposes the Holocaust with the Israeli-Palestinian conflict by placing pictures of Nazis threatening or killing Jews next to pictures of Palestinian refugees, Palestinian victims of violence and the Palestinian flag.” The JTA quoted several teenage Israeli-Arab visitors to the museum as saying, “[t]he Jews are doing the same that was done to them.”48

Such perceptions, as one might suspect, are nurtured by Palestinian leadership. A new series of Palestinian Authority schoolbooks describe a World War II without the Holocaust. Instead, they teach about the “race theory” of the Nazi movement and even mention the trials of Nazi war criminals at the end of the war, but they don’t teach why they were on trial. The Palestinian Authority’s official radio station, Voice of Palestine, aired a quiz that depicted the life of Adolf Hitler in a favorable light and omitted any mention of the Holocaust.49

In the countries bordering Israel, denial is no less visible. For instance, in October of 2007, Lebanese television aired a program on drug abuse that included this statement:

1.4 Confronting Denial

In January of 2007, the United Nations General Assembly passed a resolution (to coincide with International Holocaust Commemoration Day) condemning Holocaust denial. The resolution—passed by general consensus, with only Iran explicitly dissenting—called on all 192 UN member states to “unreservedly reject any denial of the Holocaust as a historical event, either in full or in part, or any activities to this end.”51 UN Secretary-General Ban Ki-moon expressed “his strong desire to see this fundamental principle respected both in rhetoric and in practice.”52 In October, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) passed a resolution urging efforts to promote Holocaust education and combat Holocaust denial. Seventy-two UNESCO member states cosponsored the resolution. Egypt and other Arab states, and also Iran, attempted to change the wording of the resolution but were unsuccessful.53

There were also several hopeful developments: two prominent Muslims, the former prime minister of Indonesia and the president of the Islamic Society of North America, both condemned Holocaust denial; the United Nations General Assembly and UNESCO both passed resolutions opposing Holocaust denial; and the European Union urged all its member states to adopt legislation prohibiting Holocaust denial.

1.5 The Academic Voice

The gradual ascension of Holocaust revisionism into academic respectability is perhaps shocking only to those unfamiliar with the excesses of modern scholarship.54 Group defamation in the academic voice persists to this day, most notoriously in the form of the infamous “blood libels,” which claim that Jews kill Christian children for ritual purposes. Such myths are occasionally aided and abetted by “historical” accounts (not one of which has ever been buttressed by facts).55

Over time, in high schools and colleges across the United States, a number of teachers have come to tell their students that the Holocaust was a myth, while professors write “scholarly” articles, and school newspapers print denial advertisem*nt/essays saying the same thing.56 By 1995, the Anti-Defamation League had reported numerous incidents on American campuses concerning Holocaust denial.57

In recent years, one of the difficult decisions facing college or university newspapers has involved the controversial question of whether to publish a paid advertisem*nt denying the existence of the Holocaust.58 Most of these advertisem*nts are promulgated and paid for by the Committee for Open Debate on the Holocaust, which claims to “encourage scholarly discussion about the Holocaust.”59 In the 1980s, this committee began to place small notices in college newspapers with its address and telephone number. By the 1990s, these paid advertisem*nts had become long essays, written in the academic voice, arguing that Holocaust statistics were vastly overstated and that allegations of Nazi gas chambers were frauds aided by doctored photographs.60

A private college or university newspaper is not a state actor (and therefore not protected by First Amendment guarantees), but is subject to the scrutiny of school administrators and bound by school policies. Although most colleges and universities adopt policies that are compatible with expressing and testing new ideas, they retain the power to impose prior restraints that could prohibit publication of certain material based on its content.

The primary issue to be determined in cases involving a state-supported college or university newspaper is whether school administrators are involved in the editorial decisions of the student paper. Where the newspaper is free from the control of the administration, its actions are viewed as being independent of the state and not subject to constitutional scrutiny. It follows in such cases that there has been no state action where an author of proffered material is denied access to the paper based on the material’s content.

In short, the campus newspaper of a state-supported university is entitled to the First Amendment’s freedom of the press protection—including the freedom to exercise subjective editorial discretion by rejecting a proffered article, editorial, or advertisem*nt.61 Thus, editors of a state college or university newspaper have a right to editorial discretion, and school administrators do not.

1.6 Books

Many of the Holocaust denial books are published by the so-called Institute for Historical Review, a once-obscure revisionist think tank which also produces a glossy periodical called the Journal of Historical Review.62 The institute was founded by a notorious anti-Semite, Willis Carto,63 and for years operated out of Newport Beach, California, and was headed by a nonacademic named Bradley Smith.64 Among its most popular tracts are The Hoax of the Twentieth Century 65 by Northwestern University Professor Arthur Butz and Debunking the Genocide Myth 66 by Paul Rassinier. Both present the now-familiar argument that reports of the systematic killing of Jews in Nazi concentration camps were myths propagated by Zionists in an effort to create support for a Jewish State in Palestine.67

1.7 Holocaust Denial and Political Correctness

Political correctness may be on the run in the pop culture of talk radio, but it is no laughing matter in the Ivory Tower. Though scarcely reported by the media, hundreds of American colleges and universities—from the backwoods of Appalachia to the august quadrangles of Ivy League law schools—are currently engaged in an entrenched battle over both the nature of the standard curriculum and the freedom of speech on campus.68

Fifty years ago, when the Holocaust was still a new and searing cataclysmic event, the bramble bush of political correctness was mere stubble in the wasteland of academic politics. Now, universities are pushing various political correctness agendas by way of curricular reform and the promulgation of speech and conduct codes. Orthodoxies of all kinds are being challenged. Eurocentric doctrine (including that of modern Jewish history) is subjected to “deconstruction,” with the underlying theory that all opinions are valid. Facts are said to be nothing more than received opinions. This phenomenon has enabled Holocaust deniers to elevate their cause into the realm of academic debate.

Thus, when American adults were asked in 1993 if they thought it possible that the Holocaust never really ever happened, 20 percent of them answered in the affirmative.69 Almost fifteen years later, a Haifa University survey found that more than a quarter of Israel’s Arab citizens believed the Holocaust never happened; the percentage rose to a third for college and high school graduates.70

Such a response is not the concern of constitutional scholars, whose abiding interest in political correctness has always been the stifling effect on civil liberties and academic freedom of the restrictive speech and conduct codes that have become commonplace in the Ivory Tower.71 Even though not one such code has been able to withstand constitutional scrutiny, both students and professors (as well as administrators) look and listen nervously over their shoulders for fear of offending mushrooming numbers of special interest groups.72

What the Founding Fathers envisioned as vigorous disagreement in a free and open marketplace of ideas—even if some of those thoughts are abhorrent to the civil temperament—has been quashed at the very places that such debates are supposed to occur most freely.73 What should be one of the richest and most receptive places of honest intellectual inquiry and discourse has instead become one of the most intolerant. The university has become a decidedly unwelcome nesting place for people with traditional points of view or ways of presenting them. What were once noble and defensible goals—intellectual curiosity and sensitivity toward others—have been forged into bludgeons of moral imperatives.74

In an academic environment charged with political correctness, the choice of campus speakers appears to be highly subjective. In the 1990s, noted figures who have uttered anti-Semitic words—Louis Farrakhan,75 Tony Martin,76 Khalid Abdul Muhammad,77 and Leonard Jeffries78—were regularly invited by student groups to appear on protected campus venues. When challenged, the sponsors often claim that they and their guests are exercising their First Amendment rights, the same argument that was used to justify the Holocaust denial conference in Iran in 2006.79

The pervasive atmosphere of the political correctness current in the university today complicates the question of Holocaust revisionism. In seeking to challenge traditional culture, the guardians of political correctness have been tellingly inconsistent. While they would be quick to condemn a historian who denied the evils of slavery, they have been reluctant to spurn Holocaust denial. Perhaps this is because their agenda is essentially anti-Western, anti-white, and anti-imperialist; Jews are not viewed as an endangered minority; Zionism is seen not as a liberation movement but as racism.80

Pressure to be politically correct has generated a backlash against political correctness as well. The combination of the two has had an unsettling effect on student editors. Can those who would voice alarm at the modern political correctness movement’s exclusion of Eurocentric culture at the same time call for exclusion of revisionists and deniers? Students might find it difficult to condemn both the excesses of political correctness and the promulgation of Holocaust denial literature. Here, after all, is where two principles—the freedom of speech in the quest for truth and the suppression of racism in the quest for equality—are sometimes in conflict.

2. Historical Aspects of Free Expression: Framers and Revisionists

If by the liberty of the press, we understand merely the liberty of discussing the propriety of public measures and political opinions, let us have as much of it as you please; but, if it means the liberty of affronting, calumniating, and defaming one another, I own myself willing to part with my share of it whenever our legislators shall please to alter the law; and shall cheerfully consent to exchange my liberty of abusing others for the privilege of not being abused myself.

Benjamin Franklin81

2.1 Principles of Liberty

Franklin’s view may have been civil and proper, but the Founding Fathers were motivated by a much more libertarian philosophy when they drafted the Bill of Rights.82 The First Amendment not only protects the media from government interference but grants the press almost absolute power to print whatever it wishes.83 Freedom of the press, often characterized as “the mother of all our liberties,”84 had “little or nothing to do with truth-telling… Most of the early newspapers were partisan sheets devoted to attacks on political opponents.…” Back then, freedom of the press meant “the right to be just or unjust, partisan or non-partisan, true or false, in news column or editorial column.”85 That same freedom also allows newspapers to reject any matter, editorial or advertising.

Constitutional interpretation often begins with speculation about the intent of the Founding Fathers.86 As to the First Amendment, much has been made of Thomas Jefferson’s libertarian perspective on free speech: the best way to deal with error is to permit its correction by truth.87 “The bar of public reason,”88 said Jefferson, “will generally provide the remedy for abuses occasioned by the unfettered dissemination of information. Only when security and peace are threatened should the discussion of political, economic, and social affairs be restrained.”89 James Madison, often called the architect of the Bill of Rights, thought likewise: freedom of speech and press, he wrote in The Federalist, would engender a reasoned citizenry that would, in turn, keep the government in check.90

It can also be argued that the Framers would not have wanted to protect racial defamation, which deliberately exacerbates group tensions and plays negatively upon the heterogeneous, pluralistic character of American society.91 The goal of casting contempt on an ethnic group is not to participate in political debate founded on the principle of pluralism but to destroy it. In this sense, racial defamation is subversive speech. Unlike political extremism in which (however distorted its form) the Framers’ principle of self-government is evident, the principle underlying racial defamation is pure-form discrimination.92

Other historians, however, conclude that there was no clear “intent” underlying the First Amendment.93 Rather, the Framers perceived issues of individual rights as concerns to be addressed not by the newly established general government but by the respective states. In fact, not all freedoms were easily recognized by the drafters of the Constitution. On the final day of the Constitutional Convention, for example, a provision that “the liberty of the Press should inviolably be observed” was proposed but was promptly voted down because (said the delegates), “it is unnecessary—the power of Congress does not extend to the Press.”94 Eventually, say some historians, the Bill of Rights was adopted less as an additional guarantor of liberty95 than as a bargaining chip to procure state ratification.96

Thus, one should not expect that understanding the intent of the Framers will resolve the question of precisely what they sought to protect by the First Amendment. There appears to have been no extensive carefully considered debate on the subject of individual freedom.

For some constitutional scholars, the principle of self-government sufficiently identifies the parameters of the First Amendment: Congress is forbidden from abridging the freedom of a citizen’s speech whenever it has anything to do with political, economic, and social issues.97 Put more succinctly, the Founding Fathers envisioned “the free and robust exchange of ideas and political debate.”98 The federal-state system of checks and balances was devised to prevent government tyranny.99 Similarly, the various guarantees of the Bill of Rights effectively prevent a “tyranny of opinion” from being concentrated in any one institution or person and serve to ensure social, political, and religious pluralism; it should be virtually impossible for popular self-government to be defeated by consolidation of control.100 The Framers may have perceived government to be a necessary evil,101 but it is probably more accurate to suggest that they drafted the Constitution to make the cooperation of competing interests the price for protecting the liberty of each. The guarantee of free speech enabled the citizens to express their will to a representative government.102 Thus, the narrowest historical interpretation of the free speech clause would limit its protection to the expression of purely political ideas.103 The broadest interpretation would allow for an absolutist intent on the part of the Framers. The Supreme Court, however, has adopted neither extreme. Instead, it has identified political speech as merely the central value to be protected. Such an evaluation logically requires a consideration of content: that is, what the speaker wants to say.104

The Founding Fathers’ debate on the First Amendment was brief, for they recognized that the rights of free expression were inherent and belonged to the people.105 “There are rights,” wrote Thomas Jefferson in March of 1789, “which it is useless to surrender to the government, and which yet, governments have always been fond to invade. These are the rights of thinking and publishing our thoughts by speaking or writing; the right of free commerce; the right of personal freedom.”106

Nevertheless, Jefferson’s conception of the inalienable rights of speech and press was not absolute. In his draft constitution for Virginia, he had proposed freedom of the press “except so far as by commission of private injury cause may be given of private action.”107 In a letter to James Madison in August of 1789, Jefferson proposed to qualify what would become the First Amendment as follows: “The people shall not be deprived or abridged of their right to speak or to write or otherwise to publish any thing but false facts affecting injuriously the life, liberty, property, or reputation of others.…”108 In short, interpreting the First Amendment to mean that suppression of ideas is not a legitimate governmental purpose is but one of several readings equally well rooted in language and history.109

2.2 The Right of Access

Regardless (or because) of interpretations of the Framers’ intent, clear law has evolved around the right of access to newspapers, limitations on government interference with them, and the characterization of public forums. While for the most part individuals may be guaranteed freedom from government regulation of their privately owned presses, citizens have never had the right of access to someone else’s printed pages. The Constitution does not grant a print forum to those without the wherewithal to start up their own newspapers, nor has Congress.110

Is there any difference between the First Amendment rights afforded a privately owned commercial newspaper and one sponsored by a private college or university? Is a public college or university newspaper any less protected by the Constitution?

Since newspapers have limited publishing space (and funds), editors must use their subjective judgment on a regular basis to determine exactly what will be published and what will not. A paper may refuse to print certain editorial material because of its content or due to lack of space or—in the case of advertising—out of financial considerations. While rejection based on space or financial considerations does not constitute an infringement on free speech, a content-based rejection may. The constitutionality of editorial discretion depends on the status of the publication—that is, whether it is an instrumentality of the state (in the language of the law, a “state actor”) or is privately owned, funded, and operated.111

Editors always make choices about what to publish, nurturing a bond of trust between them and their readers. That trust is violated if they knowingly disseminate historical lies like Holocaust denial advertisem*nts. With the power to publish comes the responsibility to seek truth, as well as to avoid defamatory propaganda.112

The Supreme Court has held that a private newspaper had a constitutional right to determine whether or not to publish a specific article, editorial, or advertisem*nt. In Miami Herald Publ’g Co. v. Tornillo, the Court rejected a Florida statute requiring newspapers to publish replies to political editorials. Its decision was based upon the First Amendment’s guarantee of freedom of the press and freedom of speech; “the clear implication [of precedent] has been that any… compulsion to publish that which ‘reason’ tells editors should not be published is unconstitutional.”113

In essence, the Court held that editorial discretion under the First Amendment is almost absolute. Newspapers have a right to publish or refuse to publish whatever they choose: articles, editorials, or advertisem*nts. Even if the newspaper is the only one in town, or the biggest, or the most widely read, it can still print or reject practically anything. That an individual or group has the wherewithal to pay for an advertisem*nt does not guarantee access to a newspaper owned or operated by others. It can even discriminate against a particular advertiser if it so desires. In the absence of fraud or monopoly,114 “it is immaterial whether such [discrimination] is based upon reason or is the result of mere caprice, prejudice or malice. It is a part of the liberty of action which the Constitutions, State and Federal, guarantee to the citizen.”115

Prior restraints are seldom countenanced under the Constitution116—the rare exceptions relate to the publication of editorial matter advocating acts likely to incite imminent lawless action117 or disclosing state secrets118—but newspapers may be punished after the fact for publishing libelous119 or obscene120 material. Thus, private commercial newspapers may be prohibited from publishing information deemed damaging to national security121 and exhortations to violence or civil disobedience122 and punished for publishing defamatory stories123 and material considered obscene.124

While some limitations are imposed on publications, generally privately owned and operated newspapers have virtually unfettered discretion about what to publish and what not to publish. Just as editors are free to print almost anything, so can they decide what to reject. While the public might have a moral claim to have opinions expressed on editorial pages, it has no constitutional right of access to them.

2.3 Arguments in Deference to Freedom of Expression

The traditional justification for viewing the First Amendment’s guarantee of free expression as virtually absolute—the exceptions are few and narrow in scope—is to encourage an open and unfettered exchange of ideas.125 Thoughts that are abhorrent to a free society, the argument goes, will wither when aired but fester if suppressed.126 Moreover, who is to decide which ideas are abhorrent? Certainly not the government, reasoned the Constitution’s Framers. Free speech is so precious and delicate a liberty, it must be preserved at great cost.127 Thus, the depth of conviction in Voltaire’s oft-quoted declaration: “I disapprove of what you say but I will defend to the death your right to say it.”128

The interest that the First Amendment guards and gives it its importance, said Judge Learned Hand, presupposes that there are no orthodoxies—religious, political, economic, or scientific—that are immune from debate.129 Others have pointed to the First Amendment’s goal of ascertaining the truth—“[t]hrough the acquisition of new knowledge, the toleration of new ideas, the testing of opinion in open competition, the discipline of rethinking its assumptions, a society will be better able to reach common decisions that will meet the needs and aspirations of its members.”130

A more current statement of jurisprudential philosophy justifying traditional First Amendment principle, particularly the notion that American concepts of tolerance are noble and defensible, was voiced by Lee Bollinger in his oft-cited 1986 book entitled The Tolerant Society.131 Extolling the virtue of magnanimity and the First Amendment’s function in developing a capacity for tolerance, Bollinger claims that the toleration of verbal acts inculcates a “tolerance ethic,” which he describes as “a general disposition of being able to put aside our beliefs, of overcoming the instinct to have things our own way, to control, to dominate. It is to live in a world of difference, and to do so comfortably.” In essence, he says, “tolerance is to democracy what courage is to war.”132

Among the most frequently cited arguments in favor of protecting offensive expression are to preserve legitimate scientific and scholarly inquiry, to document bigotry in all its forms, and to avoid the dangers of line drawing that censorship and criminalization often encumber. Both legitimate scientific method and traditional scholarly inquiry demand that all evidence be recognized, investigated, and analyzed before conclusions can be drawn. This standard applies not only to orthodox views but to unpopular (even offensive) ones as well.133

In a true democracy, the government may not dictate what is right or wrong, true or false. No matter how obvious the distinctions may appear to be between historical fact and racist theory—a differentiation perhaps best illustrated by Holocaust denial—only the people can reject the expression of any thought, whether spoken or written; and even then, only as a matter of individual choice.134

It follows that we should educate our children to tolerate the diverse views of a pluralistic society. Just as we countenance others who advocate different ways of looking at the world, even as we may disagree with them, our textbooks should reflect the existence (if not the soundness) of denial theories. Thus, if public schools teach the Holocaust as a historical event, they must also teach that it may not have happened; if parents object to what they consider a historical fabrication, their children should be excused from class; if a state university funds speakers, it must tolerate deniers. Just as Holocaust denial may be seen as a threat to the ultimate power of reason, belief in the ultimate power of reason requires recognition of denial theories.135

If reason is to prevail, the existence of racism in all its manifestations must be documented. This is true of both fact and fiction. If we are to learn from history, what is the difference between the Nazis’ foul deeds and their descendants’ denial of them? It is as important for later generations to witness the propaganda of genocide as to see its effects, to hear the statements of racism as well as to countenance its results. Why should we even seek to suppress Holocaust denial when we have the benefit of the Nazis’ own diabolically meticulous record keeping as hard-core evidence of evil: the millions of personal effects they confiscated and itemized; the identification numbers branded into their victims’ arms as if they were animals; the logs of scientific experiments in torture; and ultimately, the precise tallies of lives snuffed out? Both the propaganda and the facts reflect the personification of brutality. To expurgate either would blur the facts of history and blot out the memory of all those martyred because of their ethnicity and murdered because of their race.

Few Americans want the government to decide for them what they can hear on the street corner, read in the library, or see in the cinema. It is not difficult to find abuses in the name of fair play, especially in countries that (unlike the United States) permit censorship and criminalization of that which the government finds to be hate speech.136

Criminalization illustrates the difficulties of line drawing. For example, in 1995, the distinguished historian Bernard Lewis was found guilty by a French court for expressing doubts that the massacre of 1.5 million Armenians early in this century by the Ottoman Empire could be correctly termed “genocide.”137 In Germany, a 1985 law facilitated the legal proceedings against those who deny the Holocaust “or another violent and arbitrary dominance.”138 This clause became quite contentious, the resulting controversy centering around the issues of restricting historical facts, promoting national consciousness, attributing collective guilt, and identifying the role of courts in punishing lies. Should denial of other known events, for example, the violent expulsion of Germans from Soviet-occupied East Germany, or the annihilation of millions of Cambodians by Pol Pot, or the ethnic cleansing in Bosnia, be equally punishable? In other words, was the Holocaust a unique phenomenon?139

If Auschwitz is unique, the argument goes, then the phrase in the German statute, “or another violent and arbitrary dominance,” should have been eliminated; this addition renders the Holocaust unjustifiably relative and offends both the memory of those murdered and the sensibilities of survivors.140

In addition, experience with earlier legislation shows that hate-speech defendants, almost without exception, remain convinced, if not strengthened, in the truth of their contentions. Not only is deterrence unlikely, there is a real danger of backlash. The lie may be forbidden, but the liars remain. The judicial process cannot carry the burden of education that should fall to family, school, and political discourse. To the contrary, the German courts have become forums for neo-Nazi propaganda.141

Moreover, the task of drawing a line between “good” and “bad” is exceedingly difficult. Every year in the United States, all kinds of books are banned by public libraries—from Thomas Paine’s The Age of Reason and John Steinbeck’s The Grapes of Wrath to Charles Darwin’s On the Origin of the Species and Hergé’s Tintin in the Congo.142 In recent years, the growing influence of the religious Right has been reflected in challenges to books about the occult, hom*osexuals, and racial minorities.143

In Canada, customs officials issue a list of imported materials that are reviewed for their potential to stir up racial hatred. Of the ninety titles on a recent list, only four were banned, including the standard anti-Semitic text, The Protocols of the Elders of Zion; Henry Ford’s The International Jew: The World’s Foremost Problem; and Arthur Butz’s The Hoax of the Twentieth Century. Those that were not banned included Neal Gabler’s An Empire of Their Own: How Jews Invented Hollywood and a compact disk entitled Aryan Outlaws in a Zionist Police State.144 There is little evidence that banning hate speech and literature serves to inhibit it. On the other hand, line drawing has proven virtually impossible.145

2.4 Arguments in Favor of Regulating Hate Speech

A persistent American shibboleth is that the First Amendment is virtually absolute: the Constitution guarantees everyone the freedom of self-expression, and anything that restricts this right is a step on the road toward tyranny. In the vernacular, “It’s a free country and I can say whatever I want.”146

That it is difficult to draw a line between acceptable and nonacceptable expression and hard to allocate responsibility for deciding what speech should be restricted, is too facile a rationale to justify a rule of absolute construction. The carefully drawn exceptions to the rule of free speech are based on logical demonstrations that there are certain utterances that must be limited even (if not especially) in a democratic society.147

The very existence of the doctrines in exception—“fighting words,” “clear and present danger,” “captive audience,” “legitimate time, place, and manner restrictions”148—belies the simplistic popular understanding of free speech.149 Such contextual limitations are joined by those which regulate content like obscenity and p*rnography,150 matters of national security,151 and threats against the president.152 It is unarguable that there should be absolute freedom to think what one wants; it does not follow—either legally, logically, or philosophically—that one may openly express whatever one thinks, whenever and wherever one desires.153 A majority of civil libertarians continue to advocate the First Amendment ideology that no orthodoxies should be immune from debate and dispute, but a growing number of constitutional scholars have begun to argue that that view should be “bemoaned and resisted rather than accepted or celebrated.”154

Those in favor of regulating hate speech are often held to a higher standard (if not regarded in lower esteem) by First Amendment purists. For example, historian Leonard Levy’s sponsors refused to publish his conclusion that (contrary to his earlier beliefs), the Framers of the Constitution had a far narrower conception of free speech and press.155 Other arguments in support of regulating hate speech are often stigmatized by the widely accepted ideology that urges courts to offer even greater protections of free speech.156

Even Professor Bollinger concedes that “tolerance has its limits” and that different societies must of necessity treat hate speech differently.157 The slippery slope theory, so often invoked by civil libertarians—dubbed by one doubter as “trickle-down chilling”—has not materialized in any other Western democracy. Yet all Western democracies but the United States have laws prohibiting the dissemination of hate speech.158

Traditional libertarians also argue that if one government can officially stipulate that the Holocaust occurred, then another government somewhere, sometime, can declare that it did not occur. Others say, “the grander the truth, the bigger the lie.”159 But such arguments are rendered speculative and facile, and ultimately meritless, when placed in the real-life context of what happens elsewhere.

A number of legal scholars have asserted that the harm of hate speech matters. Whatever form such speech takes, its purpose and effect are to deny the humanity of a group of people, making them objects of ridicule and humiliation so that acts of aggression against them, no matter how violent, are taken less seriously.160 Meanwhile, the targets of such behavior often respond to it with fear and withdrawal; the more they are silenced, the deeper their inequality becomes; many suffer post-traumatic stress disorders of varying degrees.161

Hate speech may be analyzed as the first stage in a continuum of increasing violence and intimidation, followed by avoidance, discrimination, attack, and extermination. As illustrated by the history of the Third Reich, each stage is dependent upon the preceding one: it was Hitler’s vocal anti-Semitism that led Germans to avoid their Jewish neighbors and friends; which, in turn, enabled easier enactment of the blatantly discriminatory Nuremberg laws; which, in turn, made synagogue desecration and street mugging more acceptable; which, in turn, allowed for creation of the killing fields in the death camps.162

The capacity of speech to cause injury in diverse ways is often viewed as a price that must be paid to ensure a truly free and democratic society. But even free societies must allocate the cost of injuries. If we permit individuals to recover damages for defamation, why not permit groups to prove that they (i.e., their members) have suffered injury from hate speech?163

The argument that it is too difficult to draw the line between what is acceptable speech and what is not often fails to countenance the idea that the entire history of law could be described in terms of reasonable line drawing. This has also been true in First Amendment cases, such as those involving false advertising,164 offensive p*rnography,165 state secrets,166 and defamation.167 People who feel they have been grievously hurt by someone else’s words—such as Holocaust survivors whose suffering has been denied168—ought to have a civil remedy. Free speech should not mean speech without cost.169

A tort action for intentional infliction of emotional distress would seem to be an appropriate remedy for racial insults, but courts have generally limited recovery to plaintiffs who suffered some physical injury caused by “extreme and outrageous conduct.”170 In many instances, racial insults would fall short of that standard, particularly if they were simply statements of opinion. Calls to establish another tort—one specifically aimed at combating racial insults—have thus far fallen on deaf ears.171

The few plaintiffs who have been awarded damages for emotional distress caused by hate speech have not been challenged on First Amendment grounds.172 If they had been, however, good counterarguments could be made that such speech does not fall within any of the classic categories of values said to be protected by the Constitution: individual self-fulfillment, truth seeking, securing participation by members of society in social and political decision making, and maintaining a balance between stability and change. Bigotry stifles, rather than enhances, moral and social growth. If truth seeking is to achieve the best decisions on matters of interest to all, most racial insults can be distinguished: a call for genocide can hardly be characterized as the best decision for all. Rather than to allow all members of society to voice their opinions, racial insults contribute to a stratified society. Finally, rather than contribute to a balance between stability and change, racial insults foment discord and violence.173

2.5 The Experience Elsewhere

The Convention on the Elimination of All Forms of Racial Discrimination requires the condemnation and criminalization of “all propaganda… based on ideas or theories of superiority… or which attempt to justify or promote racial hatred and discrimination in any form.”174 The European Commission on Human Rights has found such laws to be justifiable limits on the freedom of expression.175

In fact, every Western democracy with the exception of the United States has laws that punish various forms of hate speech, and a number of them specifically prohibit Holocaust denial; the debate elsewhere is not whether to control hate speech but how.

1. Canada

Canada, England, France, and Sweden are most notable among the countries whose values of social liberty are similar to those in the United States. While Canada’s Charter of Rights and Freedoms176 provides a comprehensive guarantee for free speech with language even broader than that of the First Amendment, the country also has a number of other laws that effectively seek to regulate hate speech. A criminal statute prohibits three types of hate propaganda: (a) advocacy of genocide, (b) communications inciting hatred against an identifiable group where a breach of the peace is likely to follow, and (c) public and willful expression of ideas intended to promote hatred against an identifiable group.177

In addition, Canada’s Human Rights Act prohibits use of the telephone to record hate messages.178 The Broadcasting Act authorizes standards for radio and television and prohibits abusive comments likely to expose individuals or groups to contempt on the basis of their race, ethnicity, religion, sex, color, age, or mental or physical disability.179 The Customs Act prohibits importation of hate propaganda.180 Using these laws, Canadian courts have held that hate speech does not belong in any category of expression that deserves constitutional protection. Interestingly, one Canadian court expressly supported that principle by extensive references to American cases, especially Beauharnais v. Illinois.181

Although the most famous test case in Canada was that of Zundel (noted earlier),182 which claimed that the Holocaust was in fact a Zionist swindle, equally pertinent was another challenge to the statute prohibiting Holocaust denial. There, a Canadian high school teacher was charged with violating the Criminal Code for teaching his students that the Holocaust was a hoax, and that Jews were responsible for all the world’s problems; if the students’ exams reflected his view, they received good grades; if not, poor ones. He argued that the law infringed upon his guaranteed right to free expression.183

In upholding the legislation, the Supreme Court of Canada linked the psychological and emotional harm caused by hate propaganda to the target group’s constitutional right of equality. The court found that hate propaganda against particular groups must be prevented if multiculturalism is to be preserved and enhanced; that its “truth value” is marginal; that it denies citizens meaningful participation in the democratic process; and that its contribution to self-fulfillment and human flourishing is negligible.184

2. England

England has sought by statute to restrict racist expression since 1936, when the Public Order Act was passed to combat anti-Semitic fascist demonstrations.185 The act banned the wearing of uniforms during public demonstrations and broadened the state’s power to prohibit a march or demonstration deemed likely to lead to a breach of the peace. The law was periodically strengthened, so that by 1963, the burden was placed on the speaker to prove that his words were not likely to provoke a breach of the peace.186 Subsequent acts prohibited the display of any threatening signs and racial incitement by spoken or written words.187

3. France

In France, more than one famous figure has faced charges for negating crimes against humanity, which there, is deemed a criminal offense. Most recently, the French author Roger Garaudy was cited for denouncing what he called Jewish “Shoah business” and claiming that Israel has exploited the Holocaust to put itself “above all international law.”188

In 1990, Jean-Marie Le Pen, leader of France’s right-wing National Front Party, referred to the Nazi gas chambers as “a detail of history.” Outraged survivors joined in a lawsuit against him, and a local court found Le Pen guilty of trivializing the Holocaust and fined him a symbolic one franc. But Le Pen appealed the ruling, claiming his freedom of expression was being denied. A court of appeals not only upheld the decision but increased the fine to 900,000 francs (about $180,000).189

4. Sweden

While Sweden specifically guarantees its citizens a number of liberties (including the freedoms of expression, press, and assembly), its Instrument of Government also sets explicit limits. For example, the Riksdag (Sweden’s governing body) may restrict various freedoms of expression in order to achieve “a purpose which is acceptable in a democratic society.”190 With the same purpose, the Swedish Penal Code prohibits racial defamation.191

5. United States

In the United States—by way of stark contrast from certain European countries—the only jurisprudential remedy against Holocaust denial has been via contract law. In 1980, the aforementioned Institute for Historical Review offered a $50,000 reward for proof that Jews were gassed at Auschwitz. A Holocaust survivor named Mel Mermelstein claimed the reward, submitting as proof declarations by other survivors who witnessed friends and relatives being taken away to their deaths by the Nazis. His own testimony described how he watched his mother and sister led to gas chambers. When the institute told him the offer had been withdrawn because there had been no takers, he sued. The court, finding “the fact that Jews were gassed at Auschwitz is indisputable,” ordered the reward paid.192

3. The Quest for Truth in a Free Society

The devastating truth about the Holocaust is that it was a fact, not a dream. And the devastating truth about the Holocaust deniers is that they will go on using whatever falsehoods they can muster, and taking advantage of whatever vulnerabilities in an audience they can find, to argue, with skill and evil intent, that the Holocaust never happened. By being vigilant to these arguments we can all fight this second murder of the Jews–fight it, and weep not only for the victims’ mortality but also for the fragility, and mortality, of memory.

Sen. Orrin Hatch (1995)193

Without the past, without memory, without history, we are nothing, adrift. We place our destiny and dignity in the hands of the misfits and their projected psychoses. This movement is not an attack on the Holocaust, but on the very notion of historical meaning. It is a revolt against reality, a threat not only to the past but to the future.

James S. Robbins194

Veritas vos liberabit.

(The truth shall make you free.)

3.1 Ignorance and Education

In a free society, it is up to the people to determine the facts of history. Courts and governments should not be arbiters of the truth, even of whether or not a monumental event indeed occurred.195 But trying to prove a crime as monstrous as genocide serves to expose the law’s limits. The capacity of the Nuremberg Tribunal to comprehend Nazi atrocities in conventional terms of criminality was an overwhelming challenge, which may have contributed to an inability to grasp fully the nature and meaning of the Nazis’ effort to exterminate the Jewish population of Europe.196

The argument that the Holocaust is a unique crime whose enormity puts it beyond traditional norms of trial and punishment cannot be easily dismissed. The world of Auschwitz has often been said to lie outside both speech and reason.197 Can that rationale, however, explain why ignorance about the Holocaust is so widespread? A 1992 survey found that 38 percent of American high school students and 28 percent of American adults did not know what the Holocaust was.198 A 2005 poll by the British Broadcasting Corporation found that 60 percent of women and people under 35 years of age had never heard of Auschwitz, the most notorious of all Nazi death camps.199 Even supposedly well-educated people have difficulty identifying historical events related to the Holocaust. Many law students, for example, have never heard of Kristallnacht.200 Law professors, on the other hand, have a special responsibility to educate law students about those who would polarize by preaching doctrines of hatred, which logically and inevitably lead to acts of persecution.201

The environment that enabled the Holocaust to happen has been described as the time “where technology was married to evil.”202 The Internet provides electronic forums called newsgroups—one of which is devoted to revisionist history, which due to its enormous size, is virtually impossible to monitor for hate speech.203

The need to remember the Holocaust is made all the more critical by the existence of well-known political figures who at various times express sympathy for accused Nazi war criminals or doubt the extent of the Holocaust. The most notable current examples in the United States are recent presidential candidate Patrick Buchanan204 and Nation of Islam leader Louis Farrakhan.205

There can be little doubt that Holocaust denial will gain strength once there are no more victims alive to supply eyewitness testimony about Nazi atrocities.206 Meanwhile, though, it has become less and less difficult for Holocaust deniers to find gullible converts among the growing numbers of young people with but a tenuous grasp of basic history. Much can be learned by way of a well-produced video or film, documenting in irrefutable detail the historical record of the Holocaust. Archival footage of the death camps themselves can be juxtaposed with statements by historians, victims, perpetrators, and liberators. Nazi records, Hitler’s recorded speeches, and transcripts from the Wannsee Conference (at which the genocide was carefully planned) should also be made available. This kind of presentation should be unimpeachable and widely distributed, especially to college campuses.207

3.2 Liberty and Responsibility

At the very least, if Holocaust denial is allowed to avoid the limitations we have come to put on obscenity, defamation, state secrets, and other forms of expression not accorded First Amendment protection, certain fundamental principles should be clearly recognized.

Holocaust deniers may self-publish their theories, but they are entitled to no greater access to the general press than anyone else. Their editorial and advertising matter can be constitutionally treated like that of defamers and p*rnographers. Moreover, it can be rejected at will by publishers who choose to do so for arbitrary reasons of ideology, space, financial considerations, or even caprice.

Additionally, there is no need that public libraries carry all books and journals that are available. Indeed, they cannot. Even university research libraries must choose from among the vast amounts of resources procurable. Thus, while accepting material that is patently racist may be important in order to demonstrate that it exists, few serious libraries would similarly carry a complete collection of p*rnography simply to satisfy a scholar’s desire to analyze the difference between p*rnography and erotica. This same rationale should apply when assessing whether libraries should carry racist materials.

In its most-perfect form, speech is exercised freely in an open marketplace of ideas and serves to promote the quest for truth. In its least-perfect form, it suppresses ideas, stifles social discourse, and provokes violence. Thus there is an interdependence between the right to speak and the responsibility to speak honestly. In so doing, the dignity of the target of the speech must be preserved. If the relationship between the right of free speech and the responsibility for free speech is ignored, the traditional justification for protecting it—that it promotes the quest for truth—is denied.208

Holocaust denial is not an attempt at free inquiry but at distortion. Universities are places where students are supposed to think critically; they have no moral responsibility to provide a platform for bigots whose sole purpose is to stir up hatred.209 It is arguable that in the long run, being offended by insensitive language or even outright bigotry might be a small price to pay for the freedom of thought and expression. And there is nothing wrong with reevaluating history; offering new interpretations of old events—in fact, challenging entrenched dogma of all kinds—is central to the academic enterprise. Historians should be allowed to investigate any aspect of the events that have come collectively to be called the Holocaust with the same rigorous and impartial methods they would apply to any other historical event and publish freely the results of their research. “To forbid this is itself a form of denial.”210 But discarding past culture because it is deemed “white” or “patriarchal” or “Eurocentric” can hardly be understood as the honest scholar’s quest for truth. Nor can denying the documented facts of history.

3.3 Toward a More Responsible Press

Various writers, commissions, and task forces have suggested new standards by which the press should be held more accountable. One of the most notable was the Hutchins Commission, which in 1947 published a report entitled A Free and Responsible Press.211 Uncomfortable with the characterization of a free press offered by Charles Beard,212 the commission recommended a number of initiatives, including a truthful comprehensive account of events in a meaningful context, a forum for the exchange of differing opinions, a means of presenting social values, and a way to reach “every member of the society by the currents of information… which the press supplies.” The report warned that the press must become more responsible or face government regulation: “The legal right will stand if the moral right is realized or tolerably approximated.”213

Others have urged adoption of legally enforceable codes of journalistic ethics, greater access to the press by those without realistic expectations of disseminating their views, stronger laws to protect privacy and reputation, and more meaningful restrictions on hate speech and p*rnography. The ultimate goal of a free press should be the presentation and clarification of the goals and values of society.214

A majority of colleges and universities seek to guarantee their student newspapers the same freedom of the press that the Constitution confers upon the private commercial media. Problems arise when student editors and school administrators interpret the First Amendment too broadly, as part of an implicit obligation to foster an open and vigorous marketplace of ideas, which, in turn, should guarantee access by anyone (students or the general public) to editorial and advertising pages.

Such a constitutional perspective is both mistaken and misplaced. Too often overlooked is the simple logic of a free press: while a newspaper has a First Amendment right to publish what it pleases, it also has a First Amendment right to reject what it deems gratuitous or offensive. Such a rejection can be based on content, limited space, or financial considerations.

While philosophers may argue that there are no demonstrably false ideas, and while scientific propositions can never be proven absolutely true, a theory whose predictions fail the test of experimentation can and should be rejected—particularly if its acceptance and application would clearly cause injury.

Unless we are willing to brand nonsense as just that, the notion of truth itself becomes blurred. Both sides of an issue need to be presented only when there are two sides. When verifiable falsehoods become subjects for debate, then nonsense such as Holocaust denial cannot be effectively dismissed, and democratic society is imperiled as much by this as any other single threat, regardless of whether the origins of the nonsense are religious fanaticism, simple ignorance, or personal gain.215

4. Summary and Conclusion

The Holocaust falls into that unique category of criminal malevolence whose enormity puts it beyond the purview of traditional standards of law and reason. Yet, ignorance of its ever having happened is widespread: the tortured cries from the graves of the millions murdered out of madness, unheard. Indeed, as eyewitnesses to survivors of Nazi atrocities themselves pass away, Holocaust denial has gained growing acceptance.

Thus, it is increasingly important that the expression of such thought need not be condoned in a free society. Group libel laws are viable even as civil liberties are fully protected. Tort actions can be pursued for intentional infliction of emotional distress; to that end, American courts should adopt the Canadian view, linking the psychological and emotional harm caused by hate propaganda to the target group’s constitutional right of equality.

Racial hatred may be an inevitable facet of the human condition, but even under the First Amendment, demonstrably false ideas can be prohibited and punished. At the very least, if Holocaust denial is allowed to avoid the limitations we have come to put on obscenity, defamation, disclosure of state secrets, and other forms of expression excluded from First Amendment protection, certain fundamental principles should be clearly recognized. Holocaust deniers are not constitutionally entitled to access someone else’s press. Nor do public libraries need to carry their books and journals.

Holocaust denial should be recognized not as an attempt at free inquiry but as an exercise in distortion. Universities should be regarded as places with the moral responsibility of training students to think critically, not of providing platforms for bigots whose sole purpose is to stir up hatred. Allowing them to discard the documented facts of history can hardly be understood as the honest scholar’s quest for truth.

When perpetrated in an academic environment, Holocaust denial is a particularly pernicious form of hate speech. On American campuses, regardless of whether a student organization is privately or publicly funded, rejection of its right to sponsor a Holocaust denial speaker need not be viewed as suppression of free speech. Nor has freedom of the press been infringed when an advertisem*nt denying the Holocaust is spurned by a student newspaper. Editorial discretion in a free society allows for—indeed, requires—the ability to reject as well as to accept material submitted by outside sources.

Holocaust deniers, often motivated by base anti-Semitic impulses, will always find ways to disseminate their views. Honest scholars have an obligation to confront, challenge, and when necessary, condemn them.

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