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The following article was prepared by Rabbi Abraham Cooper and Dr. Harold Brackman at the request of the European Monitoring Centre on Racism and Xenophobia and appeared in June 2006 - Issue 18
Punishing Religious Defamation and Holocaust Denial:
Is There a Double Standard?
By Abraham Cooper and Harold Brackman
The views expressed in this article are those of the author and do not necessarily reflect the opinion of the EUMC.
"We who live beneath a sky still streaked with the smoke of crematoriums have paid a high price to find out that evil is really evil."
The raging global controversy over the Danish cartoons caricaturing the Prophet Mohammed has caused Europeans to consider as a way to defuse future tensions the appropriateness of restrictions on free expression, designed to protect religions from insult and injury. There is a related debate about whether a "double standard" exists where ‘Holocaust Denial’ is punished but words or images offensive to religious communities are not. The Simon Wiesenthal Center is a global human rights NGO, dedicated to the legacy of the Nazi Holocaust and to promoting individual freedom and minority rights, that has had to grapple with issues of this kind since its inception in 1977. Based on our experience, we will offer a perspective on the value and limits of "hate speech" laws in the age of the Internet as well as the rationale for preserving existing legislation punishing Holocaust Denial.
Punishing "Religious Defamation"
Can an open democratic society ever rightly punish religious defamation? We believe that rights and responsibilities must be balanced in a democratic polity. International and European human rights laws recognize governments should strike a balance between guaranteeing free expression and protecting minorities against harmful treatment. For example, Article 26 of the UN’s International Convention on Civil and Political Rights (1966) declares that "the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Rights and responsibilities must be balanced in a democratic polity.
In the United States, the First Amendment of the Bill of Rights enshrines the right to free speech, yet civil rights laws punish prejudicial verbal or written expression in the context of protecting minority rights to housing and employment opportunities. The U.S. Supreme Court has also articulated the "fighting words" doctrine allowing punishment for words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace." In addition to lewd, obscene, and libelous speech, "fighting words" include utterances that threaten harm against or instill fear in racial and religious minorities. Spray-painting epithets desecrating mosques, churches, or synagogues are punishable in many jurisdictions, not only as acts of vandalism, but as "hate crimes" with enhanced penalties because of bias motivation.
Laws punishing religious defamation are justifiable, but must be carefully drawn and circumspectly enforced. The UK’s new Racial and Religious Hatred Bill is designed appropriately to protect religious practice against intimidation, threats, and menacing words but not merely against abusive and insulting language. The law should be enforced in a way respectful of common law protections of free speech. For example, it is one thing for a bigot to spout derision of Islam or Christianity from a street corner. He ought to be allowed to speak his piece unless he disrupts traffic and becomes a public nuisance. It is another thing for him to aggressively harangue citizens enroute to prayer. Under those circumstances, prosecution under an "incitement of religious hatred" statute may be very much in order. Such laws should also be enforced to protect the rights of easily identifiable believers whether Orthodox Muslims, Jews, Sikhs, or Hindus to walk freely down the streets, and be part of public life, without being verbally assaulted by bigots. But beware: strongly worded legislation does not automatically provide enhanced protection of individual rights or communities. Witness Article 282 of the Russian Federation’s criminal code. While it provides punishment for inciting ethnic and religious hatred, there are critics who charge that the Putin government is administering it in a politically biased and capricious way.
The Limits of Legislation
Further, advocates of laws punishing "religious defamation" must understand that the legitimate scope of such legislation is limited. Western democracies even those that nominally retain established churches (such as the Anglican Church)essentially reject a theocratic union of religion and state. Muslims or other religious believers who want to punish insults to their religious symbols will be disappointed by secular laws that are designed to protect free religious practice not punish blasphemy. The Law cannot privilege the symbols of one religion over another, and it must protect freedom not only of believers but also of atheists who do not believe. The freedom to dissent trumps the dictates of religious orthodoxy. Muslim communities in Europe cannot expect democratic governments to punish Muslim dissenters for heresy or apostasy. As U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., put it, there can be no real freedom unless we grant "freedom for the thought that we hate." European intellectuals since Voltaire have raised the battle cry of "Écrasez l’infâme!" against organized religion. We may disagree, yet we must to continue to defend their right to be wrong.
What about the offensive Danish cartoons? Satirizing religion whether Christianity, Judaism, or Islam is not a "crime" justifying infringement on freedom of the press and freedom to dissent even when that freedom is being abused. The proper remedy is for indignant citizens to avail themselves of all legal means to express their anger including public protest and economic leverage.
Punishing Holocaust Denial
In addition to Israel, eleven European countries Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania, Slovakia, Spain and Switzerland punish Holocaust Denial. Except for Spain, with its fascist legacy, and Switzerland, with its own-checkered history as a World War II neutral, all the countries on the list were absorbed by, occupied by, or allied with Nazi Germany. They also all saw their Jewish minorities devastated or annihilated during the Holocaust.
If one agrees with those in the United States who are called "First Amendment absolutists" who insist restrictions on free expression are never justified, then Holocaust Denial laws are anathema everywhere. However, a different conclusion follows if one believes that within the broad parameters of universal human rights protections countries have the right to make laws regulating speech that reflect their own distinctive traditions and historic obligations.
Holocaust Denial laws are on the books in countries where Nazi, Nazi puppet governments, and allied fascist states, practiced genocide and crimes against humanity against Jews, gypsies, and other minorities as statecraft, often with enthusiastic popular backing. It was understood that post-WWII nations emerging from the grip of Nazi Germany had to demonstrate to their victimized neighbors that they were new democratic societies committed to renouncing the Nazi past. In Germany, this included the prosecution of war criminals, an anti-totalitarian reeducation of the population, and punishment of any renewed public embrace of Nazism. Anti-Nazi statutes punishing Holocaust Denial were part of the price such societies paid to be accepted back into the family of civilized nations. In countries where potent neo-Nazi movements continue to use Holocaust Denial as a code word for justifying new genocides, European governments balk at treating as ‘protected speech’ the toxic libel that the Nazi "Final Solution" was a "myth."
This does not mean that laws punishing Holocaust Denial are justified, everywhere and for all time. Professor Deborah Lipstadt, who convinced a UK court that it was accurate for her to denounce David Irving as a Holocaust Denier, is skeptical about the value of the Austrian law that jailed Irving for denying the Holocaust in a speech he delivered in Vienna. She is right that such laws do not automatically stop Holocaust Denial. The proliferation of Holocaust Denial websites dramatically underscores the limitations of any national laws, or even international conventions, to eliminate or punish any form of hate speech.
Yet the democratically elected governments of Austria and Germany still see the criminalizing of the denial of the Nazi genocide as an appropriate gesture to the millions of innocents mass murdered by the Third Reich and a needed strategy to forestall resurgence of Neo-Nazi movements within their borders. Apparently, they and other Europeans agree with Dr. Judea Pearl, father of slain journalist Daniel Pearl, who said he believes religious and national symbols are best protected by "rules of civility, not law, with the exception of Holocaust-related symbols, whose abuse implies license to repeat, namely incitement to genocide." There may yet come a time when civil liberties and respect for minority rights are so deeply rooted in the lands where genocidal fascism once ruled that Holocaust Denial laws will no longer be required for democracies to defend themselves against those whose goal is completing Hitler’s demonic mission. On that day instead of punishing Holocaust Denial it will be sufficient for all to embrace the 1998 Declaration of the Stockholm International Forum on the Holocaust and join with the 20 nations that currently belong to the Task Force for International Cooperation on Holocaust Education, Remembrance, and Research (ITF). What a tragedy that, to date, not a single Arab or Muslim state has joined the ITF!
So, Is There "A Double Standard"?
As recent headlines attest, the Muslim Cartoon Jihad complete with torched diplomatic compounds and Christian churches, beheading of western "infidels," and jailing of Muslim independent journalists also involves Tehran’s leveraging of Holocaust Denial and Jew-hatred to assert a claim to leadership of the 1.2 billion strong Arab and Muslim world. Tehran is sponsoring a Cartoon Exposition of its own picturing satanic Danish "Zionist agents" with Stars of David on their sleeves as those responsible for mocking the Prophet. It’s inviting a rogue’s gallery of Holocaust Deniers from around the world for an upcoming ‘scientific’ conference on the Holocaust. It wants to send a "Historical Truth Squad" to Auschwitz to prove that the Holocaust never happened.
Why the fixation on Holocaust Denial? Because deconstructing collective memory of the Shoah is the first building block for a new genocide against Israel and the Jews. Furthermore, in antisemitism extremists know they tap the wellsprings of the world’s most potent and durable ideology of hate. No other noxious ideology has the protean quality that has made Jews, since their emancipation from medieval ghettoes, the all-purpose scapegoat for the world’s discontents against capitalism, socialism, democracy, liberalism, secularism, globalization, and every other trend associated with Modernity.
So when demonstrators scream against Western double standards for punishing Holocaust Deniers like David Irving while not penalizing Danish cartoonists, they are not defending free speech or religious equality both of which are denied to Christians and Jews almost everywhere in the Arab and Muslim world. Instead, they are demanding that the world accept that they have sole claim to global "victim status," and that the Jews together with Europeans and Americans are the villains responsible for Modernity’s sins against them. Just as the appeal of Hitler’s antisemitism extended beyond the German heartland to the dislocated, disaffected European masses of an earlier age, Iranian President Ahmadinejad’s Holocaust Denial attempts to rally Muslims from London and Paris to Malaysia and Indonesia. Imported from Europe and America, it is re-exported in the form of statecraft, websites, and as ideological "blowback" meant to destabilize the Western world.
The charge emanating of a western "double standard" that punishes Holocaust Denial but not religious defamation needs to be answered explicitly.
Still, the charge emanating from Iran and elsewhere of a western "double standard" that punishes Holocaust Denial but not religious defamation needs to be answered explicitly. First, let it be admitted that there is much in the history of the Western world for which apologies are in order. Germany has made restitution to Holocaust Survivors, and has apologized to French and Poles for World War II atrocities. The Vatican has apologized for the deicide accusation against Jews as well as for sanctioning the Atlantic slave trade. President Bill Clinton expressed "regret and contrition" for American slavery, while the U.S. has made restitution payments to indigenous peoples as well as to the victims of Japanese-American Internment. The government of the UK has apologized to Sikhs and Maoris, though not yet to the Irish. And the list goes on.
But there is no "double standard" regarding the punishment of Holocaust Denial for which apology is needed. Firstly, the charge of inconsistency misstates the legal situation in much of Europe. Denmark, where the cartoons caricaturing the Prophet originally appeared, has no laws against either Holocaust Denial or religious defamation. Great Britain, on the other hand, has recently approved legislation punishing "incitement to religious hatred" which is being enforced against those who use "threatening words" against Muslims or Islam; but it rejected some time ago legislation punishing Holocaust Denial, choosing instead educational approaches including the commemoration of an official Holocaust Remembrance Day.
Second, laws criminalizing Holocaust Denial are an attempt to protect both Jewish minorities and the wider democratic order from the threat of resurgent movements with a history of practicing genocide. They do not protect Jews or Judaism or Israel against criticism, satire, ridicule, or even defamation. To confirm this, all one needs to do is to look at recent cartoons, from one end of Europe to the other, depicting Ariel Sharon as a monster devouring Palestinian children or inscribing a swastika within the Star of David to criticize Israel. The Jewish community has quite rightly protested against such cartoons as a violation of decency and civility, but it has not called for criminally prosecuting the cartoonists.
The road to Tolerance is a two way street.
By the same token, Muslims in Europe, the U.S., and the Middle East have every right to exercise their rights to protest the Danish cartoons and to peacefully pressure for redress. But their neighbors have the right to challenge them to live up to standards of moral consistency and universal human rights. The Afghan Court that threatened a Muslim with death for converting to Christianity violated these standards. So did the Muslim newspaper in Belgium that responded to the Danish cartoons with its own cartoon showing Anne Frank in bed with Adolph Hitler. The road to Tolerance is a two way street.
Rabbi Abraham Cooper is associate dean of the Simon Wiesenthal Center
Dr. Harold Brackman, historian, is a consultant to the Wiesenthal Center