While I’ve argued in this column that free speech in the world is trending toward expansion, a position I still maintain, governments nonetheless display a mushrooming fondness for thought control when it comes to the darker side of human nature.
In a March 9 op-ed in the Los Angeles Times, George Washington University law professor Jonathan Turley wrote that “Western nations appear to have fallen out of love with free speech and are criminalizing more and more kinds of speech through the passage of laws banning hate speech, blasphemy, and discriminatory language.” Turley’s point was underlined this month, when, following the murder of three Jewish children and a rabbi in southwestern France, French president Nicolas Sarkozy proposed a law that would make it a crime to frequent websites affiliated with some hate groups.
Sarkozy’s proposed law is the latest in a string of edicts that limit free speech in the name of historical memory. Denying or downplaying the Holocaust is banned in France, Israel, Canada, Hungary, Germany, and Austria, among other countries. A 2008 Framework Decision passed by the European Union says that all EU states should criminally punish the act of “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes,” with sentences as severe as one to three years in prison (although not all member states have followed the censorial order).
Speech codes demanding specific positions on historical events aren’t limited to Nazism, of course. Acknowledging that Turkish forces slaughtered over 1.5 million Armenians in the early twentieth century is a crime in Turkey, and France passed a recent law criminalizing the denial of this same massacre (although legal action has blocked its enforcement). Publicly denying the 1990s Rwandan genocide merits a prison term in that country. In February, the Chinese city of Nanjing cut ties with its sister city of Nagoya, Japan, because the mayor there openly doubted that Japanese soldiers massacred Nanjing civilians 75 years ago.
The general idea behind these measures is to ensure that current and future generations do not forget the crimes their ancestors endured. Yet the sky doesn’t cave at the denial of genocide. Human beings are actually quite good at remembering mass murder. Indeed, as history progresses, we often become more likely to label genocide accordingly, despite attempts to call it otherwise. Americans or Europeans who cannot locate their capital on a map still know what the Nazi Holocaust was, who perpetrated it, and which minority group suffered most. The early twentieth century Armenian pogrom is widely acknowledged today, despite Turkey’s efforts to eliminate it from the historical record. Even on a much smaller scale, in France, it is unlikely history will forget the four Jews murdered in Toulouse earlier this month.
“For historians, denial of genocide
does not raise any serious issue. Indeed, they can demonstrate easily the absurdity of the denier’s arguments,” Ludovic Hennebel and Thomas Hochmann wrote in the 2011 book Genocide Denials and the Law. “[B]ecause the deniers’ contributions are void to the historical inquiry, most historians have concluded that although demonstrating the deniers falsehood is a task worth undertaking, it is preferable not to honor the deniers with a debate.”
That an EU-aspirant nation like Turkey and supposed democracies such as EU member states ban speech acknowledging or disputing historical genocide gives developing countries license to do the same. “Rwanda insists its law [banning denial of 1994 genocide in that country] is no different to those in Europe outlawing denial of the Holocaust,” The Guardian reported in January, as two Rwandan journalists who questioned events in the early 1990s appealed their respective prison sentences of seven and 17 years (they were also jailed for criticizing Rwandan president Paul Kagame).
Banning one form of speech for ostensibly noble reasons makes it easier to subsequently ban other forms of speech, evidenced by the fact that countries that banned Holocaust denial in time moved to ban broader denial of “crimes against humanity.” Laws dictating what mustn’t be uttered are among the measures most antithetical to democracy. Efforts to mandate the memory of a country’s past can end up imperiling its future.
There is nothing democratically brave about protecting pleasant speech or banning unpopular speech; such actions flow naturally from a policy standpoint. Rather, “[i]t is unpopular speech, distasteful speech, that most requires protection,” renowned First Amendment attorney Floyd Abrams has said. We draw far and wide the borders of permissible speech, and in the process we have to put up with a few crackpots. But we need not waste time criminalizing crackpot ideas. As John Milton once asked: “Let [truth] and falsehood grapple; who ever knew truth put to the worse in a free and open encounter?”