The danger of banning Holocaust denial

The best way to combat odious ideas? Refute them in public.

Andrew Macdonald Powney


A European Court of Human Rights ruling has exposed the fact that, in its judgement, not all freedom of speech is equal. It ruled that Holocaust denial is not protected under Article 10 of the European Convention on Human Rights, which guarantees the right to freedom of expression.

Udo Pastörs was the leader of the neo-Nazi National Democratic Party (NPD). On Holocaust Remembrance Day in 2010, he made a speech about ‘the so-called Holocaust… being used for political and commercial purposes’. A district court convicted him under Germany’s anti-Holocaust-denial laws. He appealed his conviction at a regional court in 2013, but it upheld the district court’s verdict on the grounds that his free speech did not trump the anti-Holocaust-denial laws. After his failure in Germany’s domestic courts, Pastörs took his case to the ECHR.

The ECHR’s reasoning is that Pastörs’ freedom to express Holocaust denial cannot be prioritised over the basic values of the convention. In the very same words it used to uphold injunctions against German anti-abortionist Klaus Günter Annen in September 2018, the ECHR stated that its ruling against Pastörs was ‘necessary in a democratic society’.

Annen was not a neo-Nazi, but, like Pastörs, he appealed his injunctions on the grounds of Article 10 and the right to freedom of expression. Annen had compared abortions to the Holocaust and ‘aggravated murders’, and had named specific doctors. The ECHR acknowledged the injunctions did limit his freedom of expression, but ruled they were ‘necessary in a democratic society’.

It was determined that Annen could have made his case against abortion in other ways, and that four court injunctions against him had not trampled on his freedom to express himself.

But is it really so simple? Banning people’s words is a hair’s breadth away from banning the arguments they choose to put in those words. The same thinking informs attempts to censor politicians for using terms like ‘surrender’ for an act of parliament that actually does surrender powers to a foreign authority.

A truly democratic society rests on people having the right freely to express themselves. These recent developments in the ECHR (not to mention Westminster) show we are some way from realising this democratic ideal.

Of course, the erroneous, cartoonish histories and ugly views of far-right types like Pastörs need refuting. Indeed, they need critical, rational interrogation.

This is precisely what happened in the case of historian David Irving, who, in 2000, mounted an unsuccessful attempt to sue American historian Deborah Lipstadt, after she had accused Irving of denying the scale of the Holocaust. As Richard J Evans shows in his 2002 book Telling Lies About Hitler, Lipstadt successfully used her reason to prove, rather than the law simply to assert, that Irving was wrong.

By outlawing Holocaust denial, we remove the means by which the odious ideas of the likes of Irving and Pastörs can be brought out into the open, challenged and revealed to be the nonsense that they are. Rulings such as that of the ECHR against Pastörs will only drive such ideas into the dark echo chambers of the internet, where people who want to believe that kind of stuff can find it, unrefuted and unrebutted. Hate-speech and anti-Holocaust-denial laws in Germany have not halted the rise of anti-Semitic incidents in the country, which rose by 60 per cent in 2018.

If we want to challenge bigotry, censoring bigots is the last thing we should be doing.

Andrew Macdonald Powney is a writer.

Picture by: Getty Images.

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Ven Oods

16th November 2019 at 8:58 am

The ECHR pronouncements that expressing certain opinions must be suppressed as ‘necessary in a democratic society’ makes me wonder how those august judges define ‘free speech’ and, come to that ‘democracy’.
Let’s hope we’ll soon be rid of them. We have enough weirdo judges of our own.

Skeptic 1972

12th November 2019 at 5:16 pm

I am Jewish. I am the grandson of holoaust survivors. And still, I do not think we should ban holoaust denial. Giving the government the right to ban odious ideas inevitably devolves to the government banning anything it dislikes.

Nonjob 1

11th November 2019 at 3:06 am

Who controls the past, controls the future.

When history comes to you enforced by law, one thing is certain: IT IS A LIE.

Jett Rucker

9th November 2019 at 6:26 pm

The author’s rendition of Deborah Lipstadt’s courtroom “defeat” of David Irving is certainly a poor example of refutation. The team that defended Lipstadt and her publisher (Penguin Books) spent $13 million on experts such as Richard Evans, who continues to collect royalties from his mentioned book. Irving, by contrast, represented himself, and ably enough to make the judge look decidedly like the kangaroo he is to anyone who reads the record.
Speaking of refutation, Lipstadt herself publicly refuses ever to debate any of her “historical” assertions with anyone who might wish to examine them or their bases. She never took the witness stand during the famed “trial.”

Ven Oods

16th November 2019 at 8:34 am

Interesting post, Jett.
You’ve made me want to read up on that trial.

Gerard Barry

8th November 2019 at 5:48 pm

I live in Germany and for a supposed “democracy”, the people and government here do not value freedom of speech at all. Klaus Günter Annen, I happen to be anti-abortion, too. I also think his comparing abortion with the Holocaust is valid and absolutely should be covered by the principle of freedom of speech. Looks like I better be careful what I say in this country in future!

Jett Rucker

9th November 2019 at 6:37 pm

Yes, you’d better, or you could end up like Ursula Haverbeck, Karl Münter, Sylvia Stolz, Monika Schaefer, and many, many others in jail for expressing illegal historical opinions.

Gerard Barry

10th November 2019 at 2:27 pm

The longer I live in Germany, the more I realise that it isn’t a proper democracy. An opinion should never be illegal.

cliff resnick

8th November 2019 at 3:33 pm

“Truth will out!” has a certain simple moral justification, I say keep it simple about holocaust denial and let the truth speak. There are laws on hate speech and incitement, these are enacted when necessary. As to the symmetry of the re-emergence in Europe of anti semitism and Muslim immigration well that’s a “slam dunk” and Islamic Jew hatred should be challenged like every other racial prejudice when ever possible.

Lord Anubis

8th November 2019 at 1:09 pm

The idea that one should face legal action for contradicting the official state sanctioned version of history is 100% bad, 100% of the time. (See also, Official state sectioned versions of Scientific theory. There really are people out there who want to make Anthropogenic climate change denial an offense too!)

eli Bastenbury

8th November 2019 at 1:41 pm

Well said.

Lord Anubis

9th November 2019 at 9:38 am

In all seriousness, The fact that our European neighbours actually have such laws was a significant factor in my choice to vote leave in 2016. The UK is getting bad enough as it is. The EU however is way too Orwellian for my tastes and I want as little to do with it as possible.

A Marshal

8th November 2019 at 12:46 pm

The Free Speech argument made in this article is good. But some account must be taken of the fact that we are talking about Germans here. It’s obviously difficult in the extreme for German society to accept any abuse of the holocaust narrative. Irving caused himself a major problem by taking his opinions TO Germany. The EHCR would have done themselves a huge favour by making these cases a SPECIAL case, on the basis that German laws deal with the unique problem of German historical facts, thereby avoiding their judgements being ‘case law’ for everyone else. It’s simply not appropriate for the UK – again. The UK is a member of the EHCR ‘pour encourager les autres’; I don’t want to have to leave it, but if we start to lose our freedoms, culture and identity by membership then we’ll have to.

Ven Oods

16th November 2019 at 8:44 am

Your argument seems to be that free speech should vary according to which is your country of residence.
So long as it does not incite hatred or violence, why should free speech in Germany differ from that in Britain?

jessica christon

8th November 2019 at 12:21 pm

Free speech or not we already know what the holocaust deniers usual arguments are, and I think they gain traction in some quarters (although I think it still is really a very fringe movement) is because they’re rarely – if ever – refuted from a factual standpoint. Instead we’re told how “odious” these ideas are (as you’ve done) and there’s a lot of moral positioning.
Added to that, in an age where particular types of victimhood of are routinely exploited for social and political clout, the basis of that victim status must always be open to challenge. Even if an individual challenge is “nonsense” as you put it, that doesn’t matter, what matters is that freedom of thought and speech is the only defence we have against the ruling victimocracy.

Jerry Owen

8th November 2019 at 2:28 pm

Jessica Christon
I responded to your post on Africa at some length on the BON XR thread it went to mod and has disappeared it may or may not come back !

Jerry Owen

8th November 2019 at 11:32 am

The author misses an elephant in the room.
Who else denies the holocaust.. a group not mentioned here? Many muslims that’s who, is it not interesting that since Merkel’s ushering in of millions of mainly Muslim young men in to Germany that anti Semitic attacks have risen.. ditto France .. ditto London ?
I think the main reason for outlawing holocaust denial is about denying debate over that awful period of German Nazism. The more I look at it and the more i look at Hitler it becomes apparent that indeed the whole period was indeed socialist. Many of Hitlers quotes could be read out at a labour conference and be cheered if they weren’t told who the author was. His views on capitalism and banking are today’s equivalent of socialist thinking.
Mention Hitler and we automatically think of six million Jews yet we have hatred of Jews in a modern socialist party.. the labour party. We have Muslims that don’t like Jews, in fact a lot of people seem to despise them, which is of course wrong in my opinion.
That whole dreadful period needs to be opened up and discussed freely, but of course it would mean re writing history truthfully ( the victors of war write the history) what that era was really about.
Lastly, yes the skinhead in the photo with a swastika is apt but so to would be a ‘radical Islamist’.

Jonnie Henly

8th November 2019 at 12:07 pm

You have evidence on that “many Muslims” quote Jerry?

Also which of Hitler’s speeches could be read out at a Labour conference? Do tell.

A Marshal

8th November 2019 at 12:48 pm

In my experience, Muslims are opposed to the legitimacy of the State of Israel being bolstered by the holocaust narrative, rather than a fact based opposition.

Jerry Owen

8th November 2019 at 2:24 pm

Little Jonnie
When you have the courage to answer my last two questions to you which simply are unable to despite my asking you numerous times, I will answer yours , debate it’s a two way thing .. Got it ?

Gerard Barry

9th November 2019 at 11:47 am

I’m not sure if many Muslims deny the Holocaust but it’s well known that they are overrepresented among attacks on Jews in many countries. Here in Germany, for example, they make up around 40% of the perpetrators of such attacks, despite constituting only around 4% of the general population. Which is interesting to say the least!

Jim Lawrie

8th November 2019 at 1:02 pm

Rulings such as this, that make it taboo to question The Holocaust in Europe, increase suspicion in the Muslim world that it is exaggerated so as to legitimise its role as one of the cornerstones of the foundation of The State of Israel.
Mahmoud Ahmadinejad, as President of Iran, hammered the line repeatedly, that “Free” Europe, which had long lamented the closed treasures of German and Soviet Archives in Moscow, now, in a volte face, decries and dismisses the possibilities for research presented by the opening up of these archives, and makes it a crime to want to do so. It is rank hypocrisy, and the stench of suspicion can only be dispelled by airing the arguments and pursuing the facts, not by sealing people’s lips. He instilled that belief in the Muslim world. Unchallenged, because no-one could do so.

Jim Lawrie

8th November 2019 at 7:15 pm

When Western UN suits walked out en masse as Ahmadinejad pursued his line, they did so, not because it was, as they would have us believe, beneath their dignity. It was because not one of them could take him on. The result of such arguments being suppressed in Europe. This shows why free speech matters. Without it we cannot counter that with which we disagree. The ban on Free Speech here affects people everywhere, and has allowed these arguments of his to be accepted, unchallenged, in the Muslim world.

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