Prison Sentence in Germany for Holocaust Denial?

I was following the news of the suspended, then reinstated, Bishop Richard Williamson.

Vatican rejects bishop's apology for 'harm and hurt' of Holocaust denial | World news | The Guardian

Further, it appears that holocaust denial is a crime, punishable by imprisonment, in Germany, as well as a few other countries.

Without entering into a debate about the Holocaust or if what Williamson said amount to a denail of the Holocaust, etc., I have a few factual questions:

  1. How can Germany or any other “free” country justify punishing someone for voicing (or publishing) an opinion? No matter how abhorent the opinion, it would seem that, unless he is inciting violence or releasing state secrets, he should have the right to say what he wants.

  2. Does Germany have a constitution that guarantees free speech? If so, how is the law prohibiting Holocaust denial Constitutional? Or is the Holocaust denial ban an ammendment to their constitution (if they have one)?

I believe that there is sufficient evidence to prove that Jews were systematically opressed and killed by the Nazi regime, and I would suspect that anyone who cares to do even the slightest bit of research would come to the same conclusion. So why is it illegal to deny the Holocaust existed? I know, there are cultural and sensitivity factors to take into account, but wouldn’t it be something like an American writing a letter to the editor saying “Slavery is a myth. It never happened.” Most people wouldn’t take him seriously, some people would be offended, but he would certainly have every right to say it. Or am I missing something?

There are exceptions to every rule, just like the oft cited fire in a crowded theater example

The difference between slavery and the Holocaust is mostly, to me, time and proximity. There are people still alive right now who were responsible for it, and there are people right now who had suffered its ills. The magnified horror of the Holocaust is so real and close to most Germans that they will not fathom anything like that ever being allowed to happen again. Honestly, I think its a good law for them. As time and proximity fades, they can revisit the issue and perhaps be less strict in its indictment, but the nature of the event and the complacency of the German people exacerbates its seriousness

And I dont think that its as clear cut for most people as you seem to think. Remember, these people arent doing academic research into the Holocaust, they’re looking for excuses to say it didnt happen or wasnt that bad. There are whole countries, or at least their governments (Iran), who have said that the Jews were making too big of a deal about it. Yes, in America you would be laughed at for denying slavery, but what if you were some guy living in Romania? How easy would US history be to you then?

I commend the Germans for being able to say that while they are a democratic and free nation by all accounts, there are things that they cannot abide by due to their history and that some things are just objectively wrong (and this coming from a moral relativist). I think its a good thing that Germany has taken the lead in this for something that came out of their backyard, and made it clear that there will be no tolerance of such monumental idiocy that may yet lead to another such catastrophe. When you realize that the German pope just accepted a Holocaust denying ass back into the Catholic Church, you can see how such a memory is one that no one, at least in Germany, should want to suppress or rewrite

Because there are more reasons than inciting violence or releasing state secrets that curtail free speech. (But “inciting to race hatred and disturbing the peace between nations” = Aufruf zum Rassenhass und Störung des Völkerfriedens are often used with neo-nazi propaganda, because these people usually don’t limit themselves to only denying the holocaust).
With regards to the Holocaust, it’s first slander of the dead, who can’t fight back; second, that we’ve seen how some populists talking propaganda can make other people go and kill victims, so incitment to race hatred is taken serious; and thirdly, we find that people don’t deny the Holocaust for being mistaken or dumb, they do so because they have an anti-semitic agenda, and we don’t want to that to grab hold and spread to the point of violence again.

Germany has a basic law=Grundgesetz, and yes, article 5* guarantees it. The law is constitutional as the law against slander and libel of living and dead people is, and as the law for incitment to murder or violence (Person A telling Person B or a crowd to murder all [insert hate group] is.

** This means, an official censorship before printing by the state. If a newspaper prints something which something else considers libel or slander, the newspaper can be taken to court, by the person or by the state, afterwards.

*** Protection of youth refers to pornography or violence in movies and thus justifies the age classification system. Personal honor refers to slander and libel.

Like I said above, people do so with an agenda. If an American wrote that Slavery is a myth, he surely would have an anti-black agenda of some sort. The Turkish Republic still denying that the Armenian Genocide happened at all is (one of several) stumbling blocks towards joining the EU.

You might also be interested in what Cecil says about Holocaust denial and the denial of the Armenian genocide.

The English wikipedia article gives a good overview of the wording of the laws. Since not only the German Constitutional Court, but also the Human Rights Court of the EU has decided on these laws being constitunal, on the basis that incitment to hatred can lead too easily to violence we’re better off without, this is a case of trading one right for another.

Note also that the laws in question refer to public denial. Nobody will arrest you if you sit at home denying the Holocaust.

This is what made this whole mess doubly worse - Ratze grew up in Germany and he of all recent popes should know what’s so terribly wrong about denying the Holocaust!

I understand that playing the *Horst Wessel Song *will also get you in a spot of trouble with the law.

Shame, really - without the words it’s really quite a nice tune.

I fear I don’t see any justification for the law denying the holocaust deniers.

Yes, there is the “yelling fire in a crowded theatre” argument. I buy that. You can’t say things that will reasonably lead to immediate and predictable harm to those around you. When your speech predictably leads to clear and present danger to those hearing your words, free speech is curtailed. As someone once said, “Your freedom to swing your fist stops at the end of my nose.” Why? Because at that point it becomes a clear and present danger to me.

But once you leave that warm and comfortable example, things start to get fuzzy right away. Let’s take the Danish cartoons as another example. They led to immediate, unreasonable, unpredictable harm, as lunatics and the mentally challenged started to riot. Should we constrain our freedom of speech to keep lunatics from rioting? Perhaps so, I don’t think so myself, but that’s a whole lot less clear than the “crowded theatre” argument.

The same is even more true about holocaust denial. While the Danish cartoons brought an immediate response in the form of worldwide riots, the response to me standing in a German street and saying “The moon landing was staged in a Hollywood set! The Mafia killed JFK! The holocaust is a lie!” would probably be … well … not much at all. I’ve been ignored saying much more provocative things. Where is the immediate and present danger to the people around me? The proper response is not arresting me. The proper response is to give me a soapbox to stand on and an out of the way corner where I can air my lunacy.

Me, I’ve always thought the Germans made the law so they wouldn’t have to deal with the issue as much. Any attention to the Holocaust is not a good thing for those whose nations were complicit, so anything that stops discussion of any aspect of the Holocaust is a good thing. In particular, the Germans have no interest in proving that the Holocaust was real, there’s no benefit to them at all in that exercise.

Plus as any parent knows, forbidding your kids from saying something invariably leads them to say it more, just when you’re not around. The odd, and perhaps intended, effect of the law is to increase the discussion of the “holocaust is a lie” meme, just not when the adults are around.

Here’s the weird part. If someone wanted to keep the “holocaust is a lie” meme alive and well, there is no better way to do it than to ban public discussion of the idea. Truly. It drives the idea underground, it fulfills the fantasy of the people saying it that they are being punished for speaking the truth, it feeds every conspiracy theorist’s wildest wet dream. I find it difficult to believe that the authors of such a law were not aware of this well-known oddity of human behavior, but I hear anything’s possible in the Eurozone …

Here’s an example. The US Government could ban the public discussion of any claim that Oswald was not solely responsible for JFK’s murder. Now, a question for the Teeming Masses: would this tend to a) decrease claims that there was a conspiracy to kill JFK, or would it b) be more likely to keep the conspiracy meme alive? I vote for choice b), keep the meme alive, with extra bonus survival points … it proves that the conspiracy reaches so high that the Government is willing to abrogate free speech in order to keep people from finding out the truth!

To me, the Holocaust Denier laws are among the stupidest, most counterproductive laws on the planet. All it means is that when someone publicly says “The holocaust is a lie”, instead of it being roundly ignored as it would be in a civilized society, suddenly it’s in the headlines … yeah, that’s the ticket, put it in the headlines instead of ignoring it, make martyrs out of the people saying it, give the proponents of the idea every possible publicity, reinforce their paranoid conspiracy theories, that’ll make the idea go away …

It’s like the UK stupidly banning Geert Wilders recently from entering the country. I’m sure Wilders was hoping against hope that they would do such a monumentally foolish thing, because even a bear of little brain knows that such idiocy would inevitably give him a glorious global soapbox for his message. Instead of showing his film to a few sleepy octogenarians in the House of Lords, he gets to make a worldwide case for it, with bonus points for them trying to suppress his message. Dudes, his message is that the Europeans are more than willing to trample on basic human rights to appease the Muslim fundamentalists. Whether he is right or wrong, the smart thing to do is not to stomp on his rights in response, it kinda proves his point, don’tcha know …

Overcaution on part of the TV execs also means that the Star Trek Original Series “Nazi” episode is never shown on normal TV run, because the execs are afraid that showing the Nazi symbols could be construed as approving Nazism (although the point of the episode is quite the opposite!)
(I once saw it late-night subtitled special on Austrian TV as part of an Art show)

What’s your agenda for those claims? People don’t simply say that the moon landing was staged, or that the Mafia killed JFK. They say “… and that’s why you should boycott all Italian grocers” or “and because our government lies to us, we should uprise”.

Quite wrong. We do a lot of holocaust research and expositions and shows. It’s to educate people that the holocaust happened, and how terrible it was and that it was wrong and should never happen again. The benefit is that we try to learn what the cause of it was, to prevent anything similar. And one cause was propaganda - repeating a lie 50 times, and people will believe there are WMDs and war is justified. We saw where propaganda and lies can lead to.

No, it means that any neonazi can be arrested and tried for this, to get him off the street.

You mean, like in the US, where Evolution is taught freely, yet more than half believe in creation? Yeah, open discussion of lies destroys them, but not in the real world.

Then you’d be mistaken. German officials have never flinched about admitting the atrocities. The law may seem anachronistic today, but it embodies the attitude as I’ve experienced it among Germans: “It is not happening here again, ever. We have seen what happens when you let the evil in you and among you get out of control.”

The smallest hamlet and the biggest cities have squares and memorials for the victims of National Socialism. Until reunification, there wasn’t even a National Day for Germany - but there was (and still is) a national day of remembrance for those killed by Nazism. The camps are not tucked away, they are clearly marked, maintained and kept open as museums. High-schoolers can’t opt out of learning about their country’s checkered past.

On the other hand, you you’ll have to look long and hard for soldiers’ graveyards, let alone any monuments.

The Germans are very well aware of the reality of the Holocaust and their countrymen’s complicity. Holocaust scholarship is thriving, if that’s the word. Books on Nazi crimes are published and debated.

As a country, they openly and officially confess.

Have you ever been to Germany?

A fascinating hypothesis, but I am not convinced, even by the additon of “Truly”. Could cite an example where this has been done with any success?

Because the counterexamples abound: JFK, the moon landing and, lately, the 9/11 “truth” organizations seem to have done very well, even when subjected to the light of open inquiry.

You may have noticed the 9/11 conspiracy theorists making a headline or two.

OK, boring back story: The Grundgesetz was penned in 1952 when the history was fresh in everybody’s remembrance. This was just a few years after the Morgenthau Plan to reduce post-war Germany to “a pastoral state” with no industrial capability was dropped. The seedling German Government were lucky to even have a nation, let alone a reasonably modern one, and they knew it. They were in no position to try any skullduggery.

What is more, the Grundgesetz was never intended to be the permanent German constitution - that would come upon reunification, when a proper one could be written. As we now know, reunification was delayed by roughly half a century, and at that time, nobody wanted to add the complications of a new constitution to an already confused situation.

If you think there’s any widespread German sentiment in favor of suppressing the truth about the Holocaust and other Nazi crimes, you are, quite frankly, wrong.

I’ve never been for any laws prohibiting Holocaust denial. Instilling shame, displaying abhorrence and encouraging social leperdom are far more apt penalties than anything the law dishes out, and don’t compromise free speech values.

No debate needed (this whole thread seems GD/IMHO oriented however). It did constitute Holocaust denial, and he remains a bigoted yahoo, “apology” not withstanding.

I don’t know about German laws, but from what I know, laws in Poland are quite similar in that regard. We have free speech guaranteed in Constitution. But we also have laws against denying Nazi (and communist) crimes.

Personally, I don’t see those laws as restricting freedom of speech. It might be hard to explain why, but I’ll try.

I think the crucial difference is perspective. There is no way to convey all accumulated experience of WWII. It can be explained by words, but it need to be experienced to be truly understood.

You see, for average American WWII is something they read about in history books. Maybe they had some grand-uncle that fought in Western Europe and told some stories. But general feeling is that it’s something far away, long time ago and rather hazy.

Not so in Poland. We have lost almost 1/5 of our citizens in WWII. That means that virtually every family has somebody why died then. I live in Warsaw. That city is literally built on ruins. Every heavy machinery operator in Warsaw have stories about how they had to stop construction because they found some bones or unexploded ordnance and had to wait for police/EOD to clean up the site. Heck, when I studied my department was in building that was former Gestapo HQ. When we went to shop to buy cheap booze we went by Umschlagplatz, and when we went to drink that booze by the river, we went by bullet-ridden fence, where in 1944 boys from Home Army captured one of German Panthers and even used it for several hours, until they ran out of ammo. WWII is like, everywhere. You can start up conversation with random old guy in city bus, and chances are he tell you story about how Germans rounded up random people and shot them in revenge for partisan attack. Sure, we have XXI century now and you live your daily life without thinking about history, but just living here you kinda soak it up by osmosis.

With such differences in experiences, it’s natural that American point of view is more detached, and maybe even somewhat philosophical. For Europeans - it’s personal.

So from that involved point of view, when somebody publicly begin denying Nazi crimes, it’s not because he express his/her right to free speech. It’s because he/she is obviously trolling. Inciting violent reactions with clear intention of offending many people. Glorifying Nazi. Personally, if I met such person, I would tell them to fuck off. Depending on response, maybe even go physical. But government can’t just tell off people, it needs laws. And so laws against denying Nazi crimes were instituted. From my perspective, they are perfectly reasonable.

Nazism spoiled almost everything it touched, didn’t it? Hell, I can’t even listen to Wagner without a little bit of a bad conscience nagging at me.

constanze, thank you for the reply. I fear you’re not responding to what I wrote. Perhaps my writing isn’t clear.

I said that a good way to keep a meme alive and well is to ban public discussion of it.

I did not say public discussion will lead to a true conclusion.

I did not say that the discussion of lies destroys them.

I said that if you want to keep an idea alive … ban it. Nothing is more delicious than the forbidden.

Yep! Several old buildings at New Mexico State University had swatiskas on them.
After WWII the practice was stopped. People didn’t associate the swatiskas as Native American good luck symbols.

Thanks to everyone for the very enlightening posts. Yogsosoth, I truly appreciate your reply, and you seem to be quite informed on the subject. I jsut don’t think the “fire in the theatre” analogy applies - doesn’t seem like the Bishop would incite a riot or mass panic or hysteria by denying the holocaust, and I’m not sure that is what he did, after reading his statement. He certainly downplayed it, no doubt. And Jackmanii, your post was not helpful at all - almost all of the answers have been factual, your comments seem to be argumentative and perhaps you are wishing the thread will be moved to GD, but I am interested in factual answers, and thanks to constanze and other swho addressed the constitutional issue factually. After reading all the replies, I am leaning heavily towards believing that the law doesn’t quite meet German constitutional or “basic law” muster, no threat of riot, panic, etc. I don’t think it is up to government to decide what the motive behind someone’s words are. But I am truly grateful to everyone for your insightful comments and education in German law. Puppygod, thanks for the insight into Poland as well, my family is of Polish descent, I plan to query my grandmother tomorrow to get her take on this as well.

I just wanted to say that this is one of the very best posts I have ever read on the SDMB. I really got a sense of the person and the place from reading it. It is amazing since the writer is clearly not a native English speaker (or writer).

I agree; why lend any shred of legitimacy to the cries of the lunatics by making their lunacy illegal? It just draws attention to those who should be ignored.

Aside from that, I also consider it an unreasonable transgression of the right to freedom of speech. If speech directly incites violence, then by all means, it should be punished. Otherwise, in my opinion, laws prohibiting the expression of certain ideas are absolutely unconscionable, no matter how stupid or ignorant those ideas may be.

I’ll freely admit that it’s none of my business as a non-German, though.

puppygod (great user name btw), thanks for telling us about Poland.

If I understand what you are saying, the problem there is people are doing something that offends people. Not only offends them, but offends them so much that they might go postal … right, international audience, I need to explain that.

To “go postal” in American slang refers to a series of unrelated incidents where employees of the US Postal Service got so offended by the things that were happening in the workplace that they brought weapons to the workplace and proceeded to shoot everybody at their branch of the Post Office that had ever pissed them off. A bunch of people died, a bunch wounded. Hence, to “go postal”, to react to real or perceived work-a-day slights and offenses with violence and killing.

To return to the topic, in your words what the Holocaust Deniers are doing is:

So if I could restate your position, you are saying that in Poland, to prevent people from going postal when some one says “AUSCHWITZ WAS ALL DONE BY PIXAR USING SPECIAL EFFECTS” in public, you make it illegal to say certain things that might make somebody go postal.

Funny … in the US, we just make it illegal to kill somebody based on what they say, and leave it at that.

Now, we do have laws against “incitement to riot”, as do most countries. So we can’t be talking about that, or you’d just use the Polish incitement to riot laws to take Hitler Junior out of circulation. We’re just talking about banning an idea so strong it might make someone go postal …

Call us stupid, but we just make it illegal to go postal.

Doesn’t matter what nasty things the guy said about yo’ momma, or about kraut/wop/honky/jew/nigger/spic/kike/beaner/whitebread, or about Auschwicz being nothing but smoke and mirrors. Sorry, he can say what he pleases, as long as he’s not trying to whip people up into a killing frenzy. It doesn’t give you the right to go postal on him. And it doesn’t give me the right to ban him just because you say "I don’t want him saying that, it makes me really really angry and I might hurt somebody.

Banning an idea sends a loud clear message out to the world that the idea is important. It says that the idea is important enough to be dangerous. Strong enough to make people go postal. Critical enough to abridge a centuries-long tradition of free speech over.

You sure that’s the message you want Poland to be sending about the idea “Auschwicz is a lie”?

You have to keep in mind that we don’t have “freedom of speech” as Americans understand it.
We have “freedom of opinion”. Our supreme court has made it very clear that holocaust denial is a statement of fact that is not protected on its own. Statements of fact can be protected as far as they are necessary to express an opinion but this does not cover intentional false statements.

There are also other things that Americans would consider “free speech” that aren’t protected by our more narrow right. One topical example is that insulting is a criminal offense. No matter whether I can call someone a cunt on this board, I certainly can’t in real life.

I hope this isn’t considered too much of a hijack, given that it still addresses prohibited speech. Kellner, can you help with this bit about “insulting” being an offense?

Suppose I am waiting in line at the airport. Someone cuts in front of me. I call him an asshole. My calling him a “bad word” is a criminal offense? Sure, it’s not polite, even given the line-jumper’s transgression.

What if I insult a person who has not done anything to offend me. Suppose I’m sitting on a train. I look across the aisle and see another passenger. I say, “You’re ugly.” No dirty words. That’s a criminal offense?

Now, being from Texas, I know “fighting words” and saying “you’re ugly” to someone could be fighting words. But criminalizing the utterance of a simple insult seems a bit extreme. I guess comedians whose shtick is insulting people don’t go over well there.