+(,121/,1(
Citation: 47 U. Louisville L. Rev. 721 2008-2009
Provided by:
Texas Tech University Law School Library
Content downloaded/printed from
HeinOnline (http://heinonline.org)
Mon Feb 29 10:21:20 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.
-- To obtain permission to use this article beyond the scope
of your HeinOnline license, please use:
https://www.copyright.com/ccc/basicSearch.do?
&operation=go&searchType=0
&lastSearch=simple&all=on&titleOrStdNo=1531-0183
FREE SPEECH FOR HOLOCAUST DENIERS-IT IS
THE AMERICAN WAY
Arnold H. Loewy*
"I'm proud to be an American where at least I know I'm free."' These
stirring words from country/pop musician Lee Greenwood explain why I favor
free speech for Holocaust deniers and propagators of other hate speech. The
listener can rest assured that Nazi sympathizers are at the very top of my
personal hate list. Loewy is a German/Jewish name. Fortunately, my
grandparents emigrated in 1883, well before Hitler.
However, my
grandmother's maiden name was Frank. She was probably not related to Anne,
but it is close enough to make my opinion of Nazis roughly equal to Justice
Thomas's opinion of the Ku Klux Klan. 2
So, given the obvious falsity of Holocaust denial, coupled with the pain that
it can cause, what is wrong with the French view as explained by Professor3
Russell Weaver, or the German view as explained and defended by others?
The short answer is everything.
I like to begin my First Amendment class by hypothesizing a Fourth of July
speaker who makes the following oration: "I am proud to be an American
citizen where we have freedom of speech. Because of this freedom, I am free
to tell you how much I love this country, its flag, its government, and our
lifestyle. I would never trade this freedom for the dictatorship of another land."
I then ask the students: "Has the hypothetical Fourth of July speaker captured
the essence of the First Amendment? Why? Why not? ' 4
George R. Killam, Jr. Professor of Criminal Law, Texas Tech School of Law.
'LEE GREENWOOD, God Bless the USA, on YOU'VE GOT A GOOD LOVE COMIN' (MCA
Records 1984).
2 See Virginia v. Black, 538 U.S. 343,389 (2003) (Thomas, J., dissenting) (describing the
Ku Klux Klan as a "terrorist organization, which, in its endeavor to intimidate, or even eliminate
those it dislikes, uses the most brutal of methods").
3 See Alexander Tsesis, Dignity andSpeech: The RegulationofHate Speech in Democracy,
44 WAKE FOREST L. REV. 497, 526-27 (2009) (providing an overview of Germany's law against
Holocaust denial); Russell L. Weaver, Nicholas Delpierre & Laurence Boissier, Holocaust
Denialand Governmentally Declared "Truth ": French and American Perspectives, 41 TEX.
TECH L. REv. 495 (2009) (providing an overview of France's law against Holocaust denial).
4 See ARNOLD H. LOEWY, THE FIRST AMENDMENT: CASES AND MATERIALS (West 1999).
722
UNIVERSITY OFLOUISVILLE LA W REVIEW
[Vol.47
It usually does not take long for someone to raise his or her hand and give
the obvious answer-that the speaker has not captured the essence of the First
Amendment. The reason he has not is that even in the most dictatorial society
you could imagine (take your pick: Hitler's Germany, Stalin's Soviet Union,
Saddam's Iraq), a speaker would not be precluded from saying wonderful
things about his country.
Indeed, very few countries would punish neutral speech such as "blue is
prettier than red.",5 Furthermore, any country that calls itself a democracy
would not punish what it considers ordinarily bad speech such as "the Mayor's
school assignment po'licies are terrible."
It is only when we get into very bad speech (e.g., "Hitler should have killed
more Jews," or "the Holocaust never happened") that we even need the First
Amendment. Yet there, in the hour of the greatest need for free speech,
Europeans, and for that matter some Americans, 6 would say it does not apply to
these statements. Essentially, they would draw a line between bad speech
(protected) and very bad speech (not protected).
The reason we cannot draw such a distinction is because, as Justice Powell
so succinctly put it, "[T]here is no such thing as a false idea.",7 One might
respond that Justice Powell was not referring to ideas declaring that Hitler
should have killed more Jews or ideas denying the Holocaust. If he was talking
about those things, the response could continue, then he was wrong.
I contend that Justice Powell was correct that there should be no such thing
as a false idea. If there could be such a thing, some governmental entity (judge,
legislator, or executive) would have to decide what it is.
One might argue that judges make decisions like this all the time. My
response to that would be no, they do not. Judges decide things that need
deciding, but the truth of any given idea is not one of them. As Justice Jackson
once put it: "If there is any fixed star in our constitutional constellation, it is
that no official, high or petty, can prescribe what shall be orthodox in politics,
nationalism, religion, or other matters of opinion ..' ,8
5See Arnold H. Loewy, Free Trade in Ideas Is (Ought to Be) Absolute for Adults, 2007
BYUL. REv. 1585, 1585 (2007).
6E.g., Charles R. Lawrence, III, If He HollersLet Him Go: RegulatingRacist Speech on
Campus, 1990 DuKE L.J. 431 (1990).
7Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
8W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).
2008-2009] FREE SPEECHFOR HOLOCAUST DENIERS
723
If one were to ask a judge to decide the one true religion, we would be
appalled if the judge gave an answer. 9 Indeed, most people would agree that
judges cannot decide orthodoxy in religion or politics, but some might be
willing to make an exception where dignitary interests are involved. Thus,
these people argue that while a court may not be able to decide the truth of a
political belief or religious assertion, an exception should be made for
statements that harm the dignitary interests of a portion of the populace, like
those denying the Holocaust.
Unfortunately, this is not a new idea. We experimented with such a plan in
0 when the U.S. Supreme Court upheld a group libel
Beauharnaisv. Illinois,1
law allowing one to be prosecuted for group libel when demeaning another's
race or religion. Beauharnaisinvolved the prosecution of a white racist for
distributing literature demeaning to blacks as part of an effort to recruit
members to the White Circle League of America."
By upholding Beauharnais's conviction, the Court thought that it was
striking a blow for racial dignity in 1950s America. Justice Black's dissenting
opinion, however, contained an ominous warning: "If there be minority groups
who hail this holding as their victory, they might consider the possible2
relevancy of this ancient remark: 'Another such victory and I am undone."",1
The prescience of Justice Black's dissent became apparent during the civil
rights demonstrations a decade or so later, when courts upheld the right of the
demonstrators to challenge norms and demean white supremacy. Fortunately,
the United States no longer took Beauharnaisseriously (although it has never
been formally overruled). Consequently, most of 3the convictions obtained
against civil rights demonstrators were overturned.'
Let us imagine, however, what might have happened if Beauharnaishad
been good law during the civil rights demonstrations. Southern white
prosecutors might have claimed that the concept of integration was demeaning
to the white race, and southern white judges might well have accepted their
argument. 14 Thus, Justice Black's warning in Beauharnais might be our
9 Courts are not even permitted to resolve ownership of church property when the issue
depends on "departure from doctrine." See Jones v. Wolft 443 U.S. 595,602-05 (1979); Serbian
E. Orthodox Diocese for the U.S. and Can. v. Milivojevich, 426 U.S. 696 (1976).
0343 U.S. 250 (1952).
"Id. at 252-53.
12 Id.at 275.
13See, e.g., Edwards v. South Carolina, 372 U.S. 229 (1963).
14 See Richard N. Winfield, The Wasting Disease and a Cure: Freedom of the Press in
724
UNIVERSITY OFLOUISVILLE LA WREVIEW
[Vol.47
present reality. In order to avoid allowing ideas such as civil rights to be
squelched, we have to deny government officials, including judges, the power
to separate tolerable from intolerable ideas. If we do that, Holocaust deniers
cannot be punished.
One could argue that Holocaust denial is not a false idea, but rather a false
fact. Indeed, when Justice Powell famously said that "there is no such thing as
a false idea,"' 15 he was specifically distinguishing a false idea, which is not
subject to compensation in a defamation action, from a false fact, which, at
least sometimes, is.
There are several problems with transposing the false idea/false fact
dichotomy from individual libel cases to Holocaust denial cases. First, those
who would punish false facts (e.g., Holocaust denials) would also punish false
opinions (e.g., "Hitler should have killed more Jews"). 16 Second, and perhaps
more importantly, in the realm of false historical facts which may indeed have
no value, laws against them create the problem of the government declaring
truth. That is, to punish Holocaust deniers, the Government has to declare a
historical truth. Although that might not seem like much of a problem in the
case of Holocaust deniers, let us test what might happen in other cases if we
allow the government to separate true and false historic facts.
Suppose a state or a city in the United States were to prohibit the denial of
Jesus Christ, thereby making it unlawful to suggest ideas such as "Jesus was not
born in a manger," "He did not cleanse lepers," "He did not die on the cross,"
or worst of all, "He was not the Messiah." Surely there are government
officials and citizens who believe the truth of these ideas as firmly as they do
the truth of the Holocaust.
How, if at all, could we distinguish Christ denial from Holocaust denial? I
suppose one can argue the Holocaust is more recent and, therefore, as a
government, we can be more sure of its truth. However, this would mean that
Emerging Democracies, 20 COMM. LAW. 22,24 (2002) ("During the Civil Rights Movement, the
national press... covered the upheaval in the American South in a way that was powerful and
sympathetic to the demonstrators. Throughout the South, white politicians.., filed countless
libel suits against the national press ...[][and] easily convinced white judges and all-white
juries to impose heavy damages."); see also Arnold H. Loewy, A Dialogue on Hate Speech, 36
FLA. ST. U. L. REV. 67, 73 (2008).
15Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974).
16See Law No. 90-615 of July 13, 1990, Journal Officiel de ia Rdpublique Franaise [J.O.]
[Official Gazette of France], July 14, 1990, p. 8333; see also Peter G. Danchin, OfProphetsand
Proselytes: Freedom of Religion and the Conflict of Rights in International Law, 49 HARv.
INT'L L.J. 249, 291 (2008) ("The Gayssot Act made it a criminal offense to contest the existence
of crimes against humanity as found by the Nuremburg Tribunal.").
2008-2009] FREE SPEECHFOR HOLOCAUST DENIERS
725
perhaps in 2050, or for sure in 2150, Holocaust denial could no longer be
punishable. Yet, a moment's reflection suggests something wrong with a
theory that allows the government to declare false facts if the declaration is
subject to a "sunset clause."
Plausibly, defenders of punishing Holocaust denial could characterize my
Christ-denier argument as reductio ad absurdum, contending that the real
difference is protecting people from offense. My answer is twofold. First,
given the demographics of the United States and Europe, I suspect that at least
as many people would be offended by Christ denial as by Holocaust denial.
Second, and more importantly, being offended is a price that we typically and
willingly pay for the privilege of living in a society that protects free speech.
Thus, in Terminiello v. City of Chicago, 7 the Supreme Court issued an
enduring opinion which emphasized that one of the "high purposes" of the First
dissatisfaction with
Amendment is to "induce[] a condition of unrest, create[]
18
anger.'
to
people
stir[]
even
or
are,
they
as
conditions
Some may contend that denying Christ is also different because it involves
constitutional clauses pertaining to religion, which are specially protected. My
response is that the only difference between religion and other speech is that in
religion the government cannot take a position. That is, the government cannot
weigh in on the question of whether Jesus was the Messiah or cleansed lepers.
The government certainly can, and should, take a position on the truth of the
Holocaust. What it cannot do is silence its critics.
We do not, however, have to rely entirely on hypotheticals to understand
the evil of punishing the assertion of false facts. Galileo was imprisoned for
proclaiming the "false fact" that the earth revolves around the sun. 19 And, of
course, in our own country, John Scopes was tried and, at least at the trial level,
convicted of teaching the "false fact" of evolution.20 Of course, in those cases
the government (prosecutors and judges) knew that the "truth" was that the sun
revolves around the earth (in Galileo's case) and that the earth was created in
six days (in Scopes's case).
Finally, we have our own Holocaust-denier equivalents in the United
States: al Qaeda-deniers, that is, those who do not believe that al Qaeda was
17337 U.S.
1 (1949).
1d. at4.
'9In1633, the Roman Inquisition sentenced Galileo for heresy and later confined him to
house arrest. See MAURICE A. FiNOCCHIARO, THE GALILEO AFFAIR: A DOCUMENTARY HISTORY
297-306
20 (1989).
See Scopes v. State, 289 S.W. 363 (Tenn. 1927).
726
UNIVERSITY OFLOUISVILLE LA WREVIEW
[Vol.47
responsible for the attacks on 9/11. Undoubtedly, their denials cause the same
type of pain to families of the 9/11 victims, but are we going to silence them
because we do not like their spreading of false facts? I suppose if we want to
return to the Scopes mentality we could, but it will be a sad day for America if
we do.