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Mon 20 Feb, 2006 03:19 pm
David Irving was given 3 years jail in Vienna today for statements he made in 1989 denying the Holocaust. If he had denied the war it wouldn't have been a crime. It appears Austria and Germany are the only two countries where saying the Holocaust didn't happen, or even was not as bad as it was, is a crime. What a bizarre law. Irving has retracted his denial in recent years and said he was wrong, and I think jailing him now merely makes him a marty for some sections of the extreme right. His sentence just gives him publicity and will increase his book sales.
What happened to free speech.
It's a crime in Canada as well. Has been for some time.
Taking into account the history, I still think this is basically stupid. I would prefer to have nutjobs up front and on the stage where their idiocies can be judged than locked away and hidden.
Re: 3 Years for denying Holocaust
phoney wrote:It appears Austria and Germany are the only two countries where saying the Holocaust didn't happen, or even was not as bad as it was, is a crime.
Nope. There are 9 European countries that have laws that make Holocaust
denial illegal. Disputing the Holocaust or the number of those that were murdered is, in itself, not a crime....
This makes the European assertion of their right to offend millions with religious cartoons seem awfully hypocritical...
Free speech is free speech.
Except that there is no such thing as a "European assertion of their right to offend millions". Many opinions are voiced, in favor and against the particular issue of the Mohammed caricatures, but there is certainly no consent that the publication of those was the right thing to do. It is, however, a tricky question.
Nevertheless, I agree with Deborah Lipstadt here who said
Quote:"Germany and Austria are not so far past the Third Reich. So I can understand that the swastika symbol, Mein Kampf, Holocaust denial, being a neo-Nazi and all the rest have a certain potency there that they would not have in the United States," she says.
"And Austria is a democracy. If the citizens of Austria were against these laws, they could change them. Austria and Germany are different, but I would not support those laws being instituted elsewhere."
I think that in the future those laws might be changed in favor of free speech. I mean: laws do get changed. Once the Holocaust becomes distant history rather than something people have lived through...
Does Europe have the equivalent of the ACLU in the states? Who fights for the civil rights of unpopular opinions in old Europe?
ebrown_p wrote:Does Europe have the equivalent of the ACLU in the states? Who fights for the civil rights of unpopular opinions in old Europe?
Often, (in Germany) issues are brought up by the opposition parties. A specific issue is then brought before the Federal Constitutional Court. However, anyone can address the Court. For example, last week the Court ruled against a law which would allow hijacked planes to be shot from the skies. It found that the law was an infringement on the right to life and the right to human dignity. The law was challenged by a group of former politicians and civil rights activists, with the support of the German pilots' union which said that it could lead to a tragic mistake.
I'm inclined to believe that there are essential differences between europe and the US of A concerning freedom of speech as well as (until the current administration) freedom of thought. I, personally, as well as generally, believe that freedom of expression, no matter how bizarre, is of utmost importance.
For everybody's convenience, I will re-post the German law (my translation) here:
§ 130
(3) Whoever denies or minimizes publically the importance of an act named under §6 art 1 of International Code of Penal Law [=genocide] committed under the rule of National Socialism, in a manner capable of disturbing the public peace, shall be punished with a prison sentence of up to five years, or with a fine.
As I said elsewhere, I think the operative term is the bit about "capable of disturbing the public peace". And, IMO, it's not too different from the limitation on free speech in the USA when it comes to shouting "Fire!" in a crowded theater...
yes, there is a significant difference between europe and the us. i am a bit torn on this. i, too, believe in freedom of speech, but frankly am not inclined to say it is more important than other rights. human rights often clash with each other. they are complementary, none of them has priority. when they do clash, as it is often the case of freedom of speech (v. right to be protected from libel, right to safe living environment, or protection from discrimination, etc.) or other rights - right to environment clashing with right to development, right to work clashing with right to healthy environment....and many more, well then circumstances, culture, traditional interpretations kick in... and that IS bound to be different in europe, especially with the tricky relationship with history that Austria is living. Austria is still stuck up in its past and is having the hardest time digging itself out. it may be a guilt factor, it may be the sensitivity of the topic for many still around that remember Holocaust from personal experiences, it may be the self-perceptions of Austrians and their assumptions about how they're viewed by others... but the verdict in this light, albeit too strict in my view, does make sense to me.
It is not the first controversial ruling of the sort. Austria got its' fingers slapped in the case Oberschlick vs. the state of Austria in 1991, when, as some may remember, journalist Oberschlick turned to the European Court for Human Rights in his case with the chronic neo-Nazi governer Heider.
To sum up the case, Oberschlick wrote an article, in his own magazine Forum, which headline (on front page) of read: "Trottl Stat Nazi" (Idiot instead of a Nazi). He then proceeded to explain, in the article inside the paper, that he was referring to Heider's speech, where he alleged that only Austrian soldiers that served in WWII had the right to enjoy the fruits of democracy and freedom in Austria, because they were the only once defending the country and fighting for its liberation. Oberschlick pointed to logical fallacy - that Oberschlick, who himself did not serve in the army, has excluded himself along with the vast majority of Austrians, from the right to enjoy freedom and democracy, and hence called him an idiot instead of a Nazi.
Heider sued and won in the district court. Oberschlick was to pay a fine, court expenses, magazine was to be confiscated... O. appealed to the appelate court, and he lost again, although the sentence was lighter. He appealed to the Highest Court and lost again. When he took the case to the European Court for Human Rights, however, the state of Austria (Heider) lost the case all the way. They had to pay not only for court expenses, but also for costs that confiscation of the magazine caused, as well as other losses Oberschlick suffered along the way due to the trial. So the European Court upheld the freedom of speech (I should add, however, that the reasoning of the judges included explanation that O. was in the right only because he explained his reasoning in detail and that Heider is a public personna and thus has to expect press picking up on his public speeches. Out of 9 judges, 7 were in favor for the ruling, with some written reservations, and 2 were against - going by memory here though...). Irving's case might be different though. Prohibition of propagation of nazism or communism is taken awfully seriously in central europe. i don't know the details though so i will refrain from formulating my opinion on this case as of yet... just wanted to chime in with the context that might make the decision itself a bit more understandable, or less outrageous. i can see myself leaning either way.... but i need to read details first....
Quote:
As I said elsewhere, I think the operative term is the bit about "capable of disturbing the public peace". And, IMO, it's not too different from the limitation on free speech in the USA when it comes to shouting "Fire!" in a crowded theater...
You couldn't be more wrong!
It is completely different from shouting "Fire!" in a crowded theater.
Banning the expression of a belief is very dangerous. It means that if I think what you believe is offensive, I can keep you from expressing it.
In the United States, anyone is free to express what they believe no matter how offensive. We allow Nazi's and Cannibals and even groups that advocate child obscenity.
The restrictions on free speech (i.e. shouting "fire") are very limited and courts decide in favor of freedom of expression unless there is a very compelling reason. Stopping an unpopular belive is not a compelling reason since protecting unpopular beliefs are the sole reason that we need freedom of expression.
Our belief in the sacredness of the freedom of expression is obviously very different from Europe. This man is Constitutionally protected from prosecution here.
I think that this is one of the best qualities of the United States-- something that we have done uniquely right.
This verdict would not have a chance of taking place in the United States since this law goes against the core of our Constitution and our national values.
ebrown, you may be right (except for the advocating child obsenity bit - i know people get sued here for just taking pictures of naked kids - and i don't mean obscene pictures taken by paedophiles or child pornography peddlers) about the sacredness of freedom of speech in this country, that however does not mean that it is better that way. this is not just a case of 'unpopular believe'. a right stops where it infringes on rights of others, and if holocaust survivors feel threatened again, hurt and offended, then perhaps it might be useful for the society as a whole to take a stance against that and assure them of their safety (sympolically might work better than a 3 year long sentence though). austria IS a very different society from american.
i also don't like the idea that nazis, racists, or propagators and instigators of violent and threatening ideas should enjoy absolute freedom of speech. perhaps i'm too european, but in my opinion, no right is absolute.
ebrown_p wrote:Quote:
As I said elsewhere, I think the operative term is the bit about "capable of disturbing the public peace". And, IMO, it's not too different from the limitation on free speech in the USA when it comes to shouting "Fire!" in a crowded theater...
You couldn't be more wrong!
It is completely different from shouting "Fire!" in a crowded theater.
Banning the expression of a belief is very dangerous. It means that if I think what you believe is offensive, I can keep you from expressing it.
In the United States, anyone is free to express what they believe no matter how offensive. We allow Nazi's and Cannibals and even groups that advocate child obscenity.
The restrictions on free speech (i.e. shouting "fire") are very limited and courts decide in favor of freedom of expression unless there is a very compelling reason. Stopping an unpopular belive is not a compelling reason since protecting unpopular beliefs are the sole reason that we need freedom of expression.
Our belief in the sacredness of the freedom of expression is obviously very different from Europe. This man is Constitutionally protected from prosecution here.
I think that this is one of the best qualities of the United States-- something that we have done uniquely right.
This verdict would not have a chance of taking place in the United States since this law goes against the core of our Constitution and our national values.
I disagree, ebrown.
As far as I know, the test your
expression of belief has to pass in the United States is whether or not a "clear and imminent danger" arises from your speech (shouting "Fire!" in a crowded theater).
If your
expression of belief is presenting a clear and imminent danger, you are not allowed to voice it, regardless of the belief you express. In that case, the need to preserve what might be called the "public peace" trumps the sacredness of the freedom of expression.
I agree that stopping an unpopular belief is not a compelling reason to deny somebody the right of free speech, but that is not what the law does. There is a difference between the United States and Europe, when it comes to denying your right of free speech, is rather one in degree (Europe - "disturbing the public peace" vs. USA - "clear and imminent danger") than in principle.
dagmaraka wrote:ebrown, you may be right (except for the advocating child obsenity bit - i know people get sued here for just taking pictures of naked kids - and i don't mean obscene pictures taken by paedophiles or child pornography peddlers) about the sacredness of freedom of speech in this country, that however does not mean that it is better that way. this is not just a case of 'unpopular believe'. a right stops where it infringes on rights of others, and if holocaust survivors feel threatened again, hurt and offended, then perhaps it might be useful for the society as a whole to take a stance against that and assure them of their safety (sympolically might work better than a 3 year long sentence though). austria IS a very different society from american.
i also don't like the idea that nazis, racists, or propagators and instigators of violent and threatening ideas should enjoy absolute freedom of speech. perhaps i'm too european, but in my opinion, no right is absolute.
Dag, I absolutely agree with you. Perhaps I'm too European, too. I think we have, in some cases, just a different approach towards certain issues. For example, Americans often find it offensive that in various European countries the consumption of drugs is actually legal, or that prostitution is a legal profession. On the other hand, Europeans find it offensive that, in the States, somebody can publically proclaim that all Jews should be killed.
<shrugs>
It's not so much a question of different values, it's rather a different approach towards these issues.
Quote:
There is a difference between the United States and Europe, when it comes to denying your right of free speech, is rather one in degree (Europe - "disturbing the public peace" vs. USA - "clear and imminent danger") than in principle.
I disagree, and as an American I find your line of argument quite troubling.
Prohibiting the expression of a belief is dangerous and wrong, period. I can't think of a single belief that I don't think should be legally expressed.
It is legal to express any belief in the United States.
It is true that not all
forms of expression are permissable. This is the difference, and it is clearly a difference of character, not of degree.
It is legal in the United States for me to say "all Xandrians are worthy of death". I may believe this (considering what the Xandrians did), and if I believe it I have a basic "inalienable" right to say it. In the United States I am legally protected (as I should be).
This is different than if I say "Let's Kill all the Xandrians". This is incitement and is prohibited (and justifiably so).
These two statements are completely different and legally it is set up so that I can express any belief (what should happen) without causing it to happen (since expression is protected not actions).
Preventing someone from denying the holocaust is prohibiting the expression of a belief. This man was not inciting anyone to do anything. He was expressing his belief and making a case for it.
A challenge for you Europe.... can you give me one belief that can not be expressed legally in the United States?
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