# Universal Declaration of Human Rights and Holocaust Denial.

**URL:** <https://boards.straightdope.com/t/universal-declaration-of-human-rights-and-holocaust-denial/443126>\
**Category:** Factual Questions\
**Created:** [March 29, 2008, 1:29am UTC](https://boards.straightdope.com/t/universal-declaration-of-human-rights-and-holocaust-denial/443126 "2008-03-29T01:29:23Z")\
**Posts on this page:** 3\
**Page:** 1

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**Author:** ![Jim\_B](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jim_b/32/4338_2.png) [@Jim\_B](https://boards.straightdope.com/u/Jim_B)\
**Post date:** [March 29, 2008, 1:29am UTC](https://boards.straightdope.com/t/universal-declaration-of-human-rights-and-holocaust-denial/443126/1 "2008-03-29T01:29:23Z")

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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](http://en.wikipedia.org/wiki/Holocaust_Denial), I came across the following statement:

> [@](#):
>
> Many Holocaust deniers claim their work should be protected by a universal right to free speech, and see these laws as a confirmation of their own beliefs, arguing that truth does not need to be legally enforced. However, the argument that laws punishing holocaust denial are incompatible with the European Convention on Human Rights and the **Universal Declaration of Human Rights** have been rejected by institutions of the Council of Europe (the European Commission of Human Rights,[78] the European Court of Human Rights[79]) and also by the United Nations Human Rights Committee.[80]

(Emphasis mine.)

[Here](http://www.un.org/Overview/rights.html) is the text of the Universal Declaration of Human Rights. As it says,

> [@](#):
>
> Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

(Article 19)

Now is where we get to the meat of my argument. The Universal Declaration of Human Rights says:

> [@](#):
>
> In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

(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 🙂 .

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**Author:** ![kellner](https://avatars.discourse-cdn.com/v4/letter/k/c2a13f/32.png) [@kellner](https://boards.straightdope.com/u/kellner)\
**Post date:** [March 29, 2008, 2:52am UTC](https://boards.straightdope.com/t/universal-declaration-of-human-rights-and-holocaust-denial/443126/2 "2008-03-29T02:52:08Z")

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Here is a lengthy [article](http://www.germanlawjournal.com/article.php?id=212) 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.

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**Author:** ![Schnitte](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/schnitte/32/9033_2.png) [@Schnitte](https://boards.straightdope.com/u/Schnitte)\
**Post date:** [March 29, 2008, 10:43am UTC](https://boards.straightdope.com/t/universal-declaration-of-human-rights-and-holocaust-denial/443126/3 "2008-03-29T10:43:22Z")

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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:

1. Is a particular activity protected by a particular right in the first place?
2. 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:

> [@](#):
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> Freedom of expression
> 
> 1. 
> - ( 1 ) Everyone has the right freely to express and to disseminate his opinion by speech, writing and pictures and freely to inform himself from generally accessible sources. Freedom of the press and freedom of reporting by radio and motion pictures are guaranteed. There shall be no censorship.
> 
> ( 2 ) These rights are limited by the provisions of the general laws, the provisions of law for the protection of youth and by the right to inviolability of personal honor.
> 
> ( 3 ) Art and science, research and teaching are free. Freedom of teaching does not absolve from loyalty to the constitution.

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:

> [@](#):
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> Article 10: Freedom of expression
> 
> (1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not  
> prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
> 
> (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the  
> prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality  
> of the judiciary.