For seeing nature hath armed living creatures, some with teeth, some with horns, and some with hands, to grieve an enemy, it is but an abuse of speech, to grieve him with the tongue.
The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people.
John Stuart Mill
It is by the goodness of God that we have in our country three unspeakably precious things: freedom of speech, freedom of conscience, and the prudence never to practice either.
Liberty is not merely a privilege to be conferred; it is a habit to be acquired.
David Lloyd George
On February 20th, a Vienna jury sentenced the “historian” David Irving to three years’ imprisonment for denying Nazi crimes. The court’s decision prompted much negative commentary both within Austria and internationally.
Here I argue the case for the Austrian law forbidding Nazi activities and against those who take an absolutist approach to the right to freedom of expression.
The Economist is wrong
During his trial Irving was described by the Austrian public prosecutor as a “falsifier of history”, yet some in the British media persist in uncritically accepting Irving’s description of himself as a “historian”. Thus we have one of the most internationally respected current affairs journals in the English-speaking world arguing that “Historians who distort, inflate and invent find their credibility shredded by their peers, not the police.” (The Economist, Feb 23, 2006)
In England, where there is no law against the denial of Nazi crimes, Mr Justice Gray, the judge in the libel case Irving brought against the US academic Deborah Lipstadt and her publisher, Penguin Books, nevertheless delivered a damning verdict on Irving’s activities:
“In my view the defendants [Lipstadt and Penguin] have established that Irving has a political agenda. It is one which, it is legitimate to infer, disposes him, where he deems it necessary, to manipulate the historical record in order to make it conform with his political beliefs.” 
In Austria there can be no discussion in court about the reality of such facts as that there was both a First and a Second World War or that the Nazis committed mass murder. Thus the absurdity that the High Court in London had to invite a specialist on gas chambers could not happen in Austria. Instead the Vienna jury only had to decide whether or not Irving had in fact committed the offence of denying Nazi crimes.
Irving a martyr of free speech?
“Irving is clearly a disillusioned fool and a falsifier of history. But is he a criminal?[…] It is almost inevitable that he will now be turned into a martyr of free speech.” 
In fact, Irving’s behaviour in court i.e. pleading guilty, repenting and then asking the victims of the Nazis to excuse his declarations would seem to preclude any chance that the neo-nazis and their ilk would regard Irving as a true martyr to their cause. Certainly, if the Vienna court had allowed Irving to argue about gas chambers he would once again have made himself the darling of neo-nazi and “revisionists”. But by admitting his guilt – in a pathetic effort to get a lighter sentence – Irving dealt a heavy blow to the international crowd of professional Holocaust deniers. His lawyer, who argued that his client was just a lonely old lonely man, and that neo-nazi and right extremists had abused him, hardly did anything to endear Irving to the neo-nazi movement.
Quite simply Irving arrogantly thought he could deceive the court. Self assured and cocky as ever Irving entered the court brandishing a copy of his book on Hitler and then held it up for the TV cameras. Had he been successful, Irving would no doubt have been fêted as smart and crafty. Alas it soon became painfully obvious even to his most ardent admirers, that Irving was not so clever as he had led them to believe.
According to the Israeli historian and journalist Tom Segev, “Denying the Holocaust takes place mainly on the Internet and is typical, mostly, of hallucinatory fringe groups who do not pose any real danger”.
The truth however is that Irving’s revisionist activities are most certainly not confined to the Internet. Irving was invited by the extreme right wing fraternity Olympia, to make a speech on Adolf Eichmann. Olympia is an organisation which, thanks to its participation in terrorism, was dissolved from 1961 until 1973 and has been mentioned in several reports of the Austrian Interior Ministry since then. Olympia is certainly not a “hallucinatory fringe group”, with some of its members occupying high places in government.
Segev also jumps to the conclusion that:
“It is somewhat ironic that a court in Austria, of all places, imposed such a severe penalty on the Holocaust denier. After all, like Communist Germany the Austrians for years used to pretend they had no part in the Nazis’ crimes. It was all Germany’s fault. The verdict indicates the change that Austrian society has undergone in recent years. Irving could take advantage of his incarceration to try to build himself up as a hero of freedom of expression. Perhaps he’ll write a book in jail.” 
Here Segev simply misses the point that it was not Austrian society that charged Irving, but the public prosecutor, who is subordinate to the Justice Minister. One should not forget that since February 2000 Austria has had a government with the participation of a right-wing party in which the extreme right wing is strong. This led in the year 2000 to international isolation of the country. No wonder the current government is keen to present Austria as an anti-Nazi land. Irving is a foreigner and he is known all over the world. The arrest of such an easy target helps to improve the tarnished image of the Alpine republic. Of course it helps also those who fight neo-nazism.
Relativisation of nazi crimes by the Israeli journalist Gideon Levy:
“Words do not kill. So there is no statement for which it is permissible to send a person to prison. Freedom of speech is absolute, even when that which is spoken is as despicable and ridiculous as Holocaust denial. Those who start to doubt that principle will not know where to stop. Is denial of the Jewish Holocaust deserving of punishment while denial of the Armenian holocaust, perpetrated by the Turks, is not? And why not? Because ‘only’ a million and a half people were destroyed there?
And what about the world’s racist indifference to the destruction of a million Tutsi in Rwanda or the mass murder of four million people in the Congo? After all, the world ignores those holocausts even if it does not deny their existence explicitly, and nobody thinks about punishing someone for that outrageous apathy and indifference. The Danish cartoons, which also hurt millions of people, are not deserving of punishment and neither is the denial of the criminal activities of Israel in the territories, even if they are incomparable, of course, to any holocaust.” 
Levy here is dead wrong: words can lead to genocide. The Nazis did not start to rule with gas chambers. Rather, Hitler’s war against the Jewish people started with words:
“The mass murder of the Jews was the consummation of his fundamental beliefs and ideological conviction…. For Hitler’s ideas about the Jews were the starting place for the elaboration of a monstrous racial ideology that would justify mass murder whose like history had not seen before.
Only Hitler’s followers took his ideas about the Jews seriously. His opponents found them too preposterous for serious consideration, too irrational and lunatic to merit reasonable analysis and rebuttal.” 
We should not make the same mistake a second time.
Levy is a master of relativisation of the Holocaust, he rejects its historical uniqueness by raising the question of how many people were killed. But the Holocaust was the only time in recorded history that a state tried to destroy an entire people, regardless of an individual’s age, sex, location, profession, or belief. And it is the only instance in which the perpetrators conducted this genocide not only for material, territorial or political gain. Levy writes the word holocaust with a lowercase ‘h’, emphasizing that there was nothing unique about the genocide of the Jews, according to him it was only one among many holocausts, even if he adds a few words, contradicting his view about “those holocausts”.
And why does Levy mention the alleged “criminal activities of Israel in the territories” if they are incomparable? This is to let in by the back door the accusation, often heard in certain radical circles, that the Jews now do to the Palestinians what the Nazis did to the Jews.
Judge Charles Gray wrote in his April 2000 judgment that “The picture of Irving which emerges from the evidence of his extra-curricular activities reveals him to be a right-wing pro-Nazi polemicist”.
Irving is not the innocent crackpot, his lawyer and the fighters for absolute freedom for Holocaust deniers try to portray him as. In Austria he has in the past had close connections to convicted neo-nazis.
In Austria the law against the denial of nazi crimes is directed against the preachers of hatred. The intentional denial of crimes is not merely “an opinion” but is an incitement to further crimes. Holocaust deniers also declare that surviving Jews are deceiving the world, thus repeating the old lie about the Jewish world conspiracy. Irving calls Eli Wiesel an “ASSHOL”, saying that he is a member of the “Association of Spurious Survivors of the Holocaust and Other Liars.” Is that covered by free opinion?
The Austrian law forbidding nazi activities does not infringe freedom of expression. Rather, it is based on differentiating between opinions on one side and defamation and calls for violence on the other. In court Irving admitted, that since 1991 he knew about the mass murder of Jews and that gas chambers had been used by the Nazis to exterminate the Jews.
Another defender of Irving:
“It is best not to mince words. The imprisonment of David Irving by the Austrian authorities is a disgrace. It is a state punishment for a crime – that of expression and argument and publication – that is not a legal offence in Mr Irving’s country of birth and that could not be an offence under the First Amendment. It is to be hoped, by all those who value the right to dissent, that his appeal against both sentence and conviction will be successful.” – Christopher Hitchens, Wall Street Journal – February 23, 2006
Like Irving’s lawyer, Hitchens argues that the denial of Nazi crimes is not an offence in either the United States or the United Kingdom. However, in Austria it is, and laws must be respected. Hitchens and other ultraliberals never take the history of a country into consideration. Is the right of Mr Irving to incite hatred more important than the right of surviving Jews not to be offended? “When in doubt always confer rights upon the perpetrator” seems to be the creed of the ultraliberals.
The Allies liberated Austria in 1945, and in 1955 Austria signed the Austrian State Treaty, Article 9 of which contained an obligation to maintain the law  forbidding nazi activities. Do Levy and Hitchens favour the abolition of this law? If so, should the United Nations convention against all forms of racism also be abolished? Should Austria not respect the UN’s Resolution 2839 (XXVI) of December 18, 1971 in which all states were called upon to make laws, so that once and for all the resurrection of Nazism, racial intolerance and other ideologies based on terror would be banned? Was the UN General Secretary Kofi Anan wrong to condemn the Iranian president’s denial of the Holocaust and when he asked all states to fight the denial of Nazi crimes?
Article 9 of the Austrian State Treaty is part of Austrian constitution and can only be abolished if a majority of two thirds of the Austrian parliament votes for such a change.
Of course one can criticise laws and international obligations, one can question if the law forbidding nazi activities is reasonable. Perhaps it is the case that one does not need a law, to stop nazi activities? Should we then abolish the law against murder? It is clear to everyone that murder has been forbidden since more than two thousand years. Has it helped? People are still murdered. And from the point of view of prevention the punishment for murder is not very effective. And can we be sure that a murderer has mended his ways after being in prison?
Of course this sounds silly, but this is exactly what Levy and Hitchens offer us. The fact that Austria’s law against nazi activities does not prevent those activities is an argument for better law enforcement, not fewer laws. We do not know to what extent neo-nazi activity in Austria would increase if the law against it were to be abolished. Prosecutions are rare so it is almost impossible to say how effective the law is in preventing nazi activities. Certainly laws should be effective. But do we want to abolish laws forbidding theft simply because we know that so many shoplifters do not respect this law?
The only point of the would be abolitionists is the true statement that democracy can only function if even its enemies are protected. But it is curious that the abolitionists choose this particular law. Would they also abolish the laws forbidding defamation? Would they fight for the liberty to infringe privacy or to incite hatred against minorities? Should child pornography be free and the sexual harassment of women made legal?
True in some countries like England and France the banning of political parties is looked upon as an anomaly. But these countries have a longer tradition of political stability. We could not achieve in Austria such a political culture just by abolishing the law prohibiting nazi activities. Abolition would be a green light to neo-nazis not only in Austria but throughout the world.
Moreover, those who argue that all values are the same do not do a good service to democracy. True democracy must be based on mobilising public opinion against all those who try to curtail democracy and freedom. Austrian political culture would have been much better, had the monarchist civil servants been fired after the First World War. It would have been excellent, if during the time of the First Republic (1918-1938) Nazis had been excluded from state administration and other important institutions.
In France, the birth of democratic culture in France began with the guillotine, the radical Jacobins and the strength of the early labour movement. While at the beginning of English democracy was January 30, 1649, when Charles I was beheaded. I am not advocating violence. But let’s not forget the Nazi death camps in which millions of people died. Can we fight the rehabilitation of this system by postulating an absolute freedom of opinion? Liberty in Austria came not from academic or lawyerly debates about freedom of expression, but because the Allied armies won the war. We cannot allow ourselves the luxury of helping those, who want to abolish democracy.
In Germany, Heinrich Brüning, Chancellor from 1930 to 1932, was against banning the Nazi party, the NSDAP. In 1930 he said that the Reich should not use the same methods against the NSDAP it used against the Social Democrats before the First World War. Brüning’s “liberalism” was disastrous. The reluctance of the German government to use force against the NSDAP and SA was not a simple mistake, it was a sign of the complete absence of any political will to defend the Weimar republic, a bad example of missing resistance, which crippled the will to resist of the German people. 
Nobody believes that banning can in itself solve socio-economic problems that help to create the conditions for neo-nazism to flourish. But the law forbidding nazi activities is a sign that we are serious about defending our republic against nazi terror. Our constitution and laws serve as entrenched reminders of this intent. The right to freedom of expression as enshrined in Art.10 of the European Convention on Human Rights was never intended to be an absolute right. Indeed, as Pierre Henri-Teitgen, the Montpelier law professor and French Resistance hero who was one of the Convention’s chief architects commented that “Democracies do not become Nazi countries in one day. Evil progresses cunningly, with a minority operating, as it were, to remove the levers of control”.
Moreover the European Court of Human Rights has expressly upheld contracting States’ right to enact laws banning Holocaust denial and to outlaw historical revisionism. Thus in Lehideux and Isorni v France , the Strasbourg court ruled that an attempt by a former lackey of the Vichy regime to whitewash the name of Marshal Pétain by placing a paid advertisement in Le Monde portraying France’s wartime collaborationist leader in a positive light was not protected by the right to freedom of expression under Art.10. Indeed the court ruled that such mischievous attempts to re-write history are entirely outside the scope of Art.10 since, by operation of Art.17 of the Convention, they fall within the category of words and actions which have as their aim the:
“…right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein…” (Art.17, ECHR) 
Was the indifference of most Germans and Austrians to the plight of the Jews from 1933 to 1945 result of ignorance? Had that been the case the post-1945 revelations about the death camps would have caused a great shock. But this did not happen, at least not to the majority. Anti-Jewish incitement did not stop after most of the Jews in Europe had been exterminated.
Incitement went on against Ilya Ehrenburg and Henry Morgenthau, which are continued until this day by right-wing extremist groups like Olympia.
And a final word, to those levelers and relativists who make a false comparison between the Danish caricatures and Holocaust denial. People who do this are either ignorant or wicked. The
Holocaust did to the Jews what no Danish caricature can do to Muslims either in Europe or elsewhere. The murder of six million Jews will be the permanent memorial of German and Austrian National-Socialism. Hatred of Jews was the very essence of Nazi ideology and the mass murder of Jews the culmination of Nazi practice. Therefore, as all neo-nazis know, minimizing the Holocaust and normalizing the Nazi era is the essential pre-requisite they need in order to lay the groundwork for a new generation that would ignore the Holocaust and be more receptive to blatant expressions of racism and anti-Semitism.
Karl Pfeifer, member of the board of control of the Documentation Centre of Austrian Resistance (DÖW), Vienna correspondent of Budapest weekly Hetek and London monthly Searchlight.
(1) at para 13.162 of the judgment, QBD April 11, 2000
(2) Connolly, Kate, The Interesting Tale of David Irving, Daily Telegraph, February 21, 2006
(5) Lucy Dawidowicz, The War against the Jews 1933-45, Pelican Books 1977, page 27f
(6) Law Against Neo-Nazi Activity 1947 (the “Verbotsgesetz”)
(7) I owe a debt of gratitude to Alfred J. Noll, the valiant fighter against abolishment of the laws forbidding nazi activities. I have used his thoughts and arguments expressed by him in different articles published in Austria.
(8) (1988) 5 BHRC 540 also available online.
(9) Additional research by Andy Sinclair.