I could go into a mini-rant about freedom of expression and other basic human rights. But this is GQ. So I will get straight to my question. As you will see, it is a strictly legal one.
While perusing the Wikipedia article on Holocaust Denial here, I came across the following statement:
(Emphasis mine.)
Here is the text of the Universal Declaration of Human Rights. As it says,
(Article 19)
Now is where we get to the meat of my argument. The Universal Declaration of Human Rights says:
(Article 29 Sec. 2)
So if basically only the rights of others (along with morality (i.e., obscenity, etc.), etc.) can limit these rights, how do they justify not protecting holocaust denial? In the United States, our courts also limit rights only by the rights of others and morality too, specifically obscenity for freedom of expression. But our courts have held this means you cannot otherwise regulate the content of free speech.
So why does the Universal Declaration differ from our rights in this way and what am I missing here?
Thank you in advance to all who reply
P.S. It should not be necessary to put this here. But I am strongly opposed to all forms of intolerance, esp. far-right wing ones .
Here is a lengthy article that explains the German position on hate speech in general and holocaust denial in particular. It doesn’t refer to the Universal Declaration of Human Rights explicitly but the reasoning would be about the same.
I’d like to give a summarized view of the German position on it.
The fundamental rights doctrine in German constitutional law draws a sharp distinction between two aspects:
Is a particular activity protected by a particular right in the first place?
If yes, can any restriction of this right be justified?
In the case of holocaust denial, the relevant provision of the 1949 Grundgesetz, the German constitution, is Article 5, which, in its un-official English translation, is worded as follows:
Denying the holocaust clearly is protected by Article 5 subsection 1, which grants freedom of speech. So we can answer the first question in the positive.
But maybe we can restrict this right. German constitutional doctrine demands that in any case, restrictions of fundamental rights require what Britons would call an Act of Parliament and Americans an Act of Congress - you need a clause in a law passed by the parliament itself. This clause exists, since the penal code provides for holocaust deniers to be punished.
For every fundamental right enshrined in the constitution, we need to ask if the constitution itself provides for a possibility to restrict it. This is covered by Article 5 subsection 2, more specifically the “general laws” clause. There is much debate among German lawyers what exactly a “general law” is, but the Federal Constitutional Court accepts that the holocaust denial clause in the penal code is one.
Last question: Every restriction of a fundamental right has to stand the “test of proportionality:” The restriction of a fundamental right has to capable of pursuing a legitimate objective, it has to be necessary in order to attain this (necessary meaning that there is no other, less strict, restriction which would attain the objective to the same extent), and it must be an adequate means of pursuing it, meaning that the importance of the objective and the extent of the restriction must not be out of proportion. In fact, Federal Constitutional Court decisions with regards to fundamental rights consist mostly of the test of proportionality.
Applying these principles to holocaust denial, some argue that the prohibition aims at protecting the dignity of the Jewish community, or the post-mortal dignity of the victims of the holocaust, or is aimed at preventing what German law calls Volksverhetzung (“incitement of the people”) and which consists of spreading hate among the population, increasing the risk of violence against foreigners or Jews. In more recent decisions, the Federal Constitutional Court held that propagating statements of fact which are proven to be untrue is not protected by freeedom of expression in the first place, so we don’t need to justify the restriction because we negate question 1.
Since you ask specifically about the Universal Declaration of Human Rights and the European Convention on Human Rights:
The former is not legally binding, which is why this issue is not debated among German lawyers; in any case, I don’t doubt that if pressed, German lawyers would invoke the “public order” clause to justify their point of view.
With regards to the ECHR, which is binding on Germany and with which the Federal Constitutional Court does collide at times (there were IIRC three decisions in the past few years where Germany was held to have violated human rights, but none referred to holocaust deniers): The fundamental rights doctrine of the European Court of Human Rights in Strasbourg (Which, incidentally, is not to be confused with the European Court of Justice in Luxemburg, which is an EU organ) is similar to the one employed by the German courts. See the relevant Convention provision:
