The article that I am reviewing takes the issue of freedom of speech found under the context of a 1985 Canadian court case of Holocaust Denier Ernst Zundel proposing his unorthodox view on history, and the reaction being censorship and punishment. This issue is of great importance, as this case represents the age-old battle between the principals of ‘freedom of speech’ and ‘the greater good’.
The text’s composer makes the argument that, the abovementioned court case does more than highlight the evolution of the law in regards to the historical nature of the Holocaust; it explores the notion of the law being adequate enough in securing the history of Nazi-genocide in responsible memory. Douglas makes the argument that such a responsibility is alien to the duties of the law and that we should be weary of policing interpretations of history.
It should be noted that I am in agreement with Douglas, as I feel that those who are for censorship unintentionally serve authoritarianism. Therefore, I will focus on the argument the author, who warns of the ‘slippery-slop’ of censorship along with idea of what exactly it means to live in an ‘free and open society’.
Before going further, it is important to clarify how a Holocaust Denier mind works, as it’s often questioned how exactly can one question the act of genocide, despite the monumental evidence at hand, which was perpetrated onto the Jewish people by the Nazi Regime. Douglas does a good job at explaining revisionist logic. For instance, any direct testimony contributed to the Nuremburg War Tribunal is considered to be a lie or a fantasy, any document that offers firsthand information concerning the methods of the Nazi is dismissed as forged. Confessions of war crimes cannot be trusted as it was a ‘Victors Trail’. The revisionist is less interested in processing the Nazi state innocent of systematic extermination than in tainting the accuser and in planting seeds of doubt about the Holocaust through a systematic campaign of radical scepticism. Now that the idea of the revisionism is explained, I believe that we can move away from the argument that whether the Holocaust occurred, as it would simply be a fruitless endeavour. It would be better realized that the issue of Holocaust Denial is an irrelevancy, as the same arguments concerning speech will still be fought no matter the topic may be.
The ‘Slippery Slope’ versus the ‘Greater Good’
What brought Zundel to the attention of authorities was a pamphlet that he published, which asserted the belief that the Holocaust was a Zionist Hoax, entitled ‘Did Six Million Really Die?’. The reaction of the general public was to charge him under the Canadian Criminal Code that prohibits the publication of false statements. According to those who support the idea of the punishment of those who advance the idea of Holocaust Denial, condemnation is needed in order to safeguard history from distortion. Furthermore, the consequences of even allowing the court case to even take place, forces the Crown to become obliged to prove the Holocaust actually occurred. Douglas counters these arguments by asking for the reason as to why the Holocaust is granted protection by the law, and not other historical events such as Napoleon’s Waterloo defeat. He suggests that it may be due to the fact that from the inception of the discovery of the Nazi War Crimes, doubt was feared due to the magnitude of the atrocities. Therefore laws were enacted as a countermeasure to those who would transform the genocide into a prima facie evidence of their impossibility. Those who seek the prosecution of Zundel’s ilk, claim that by allowing debate on the Holocaust, is to capitulate to the force of their logic and to the notion that such a topic was one that reasonable people can engage and disagree upon. They counter the notion that restrictions on free speech will result in actualizing an illiberal society by citing examples of in Europe. As seen in the Federal Republic of Germany, the government passed laws that were used to staunch the rise of neo-Nazism and disputations of death camps, known as the ‘Auschwitz-lie Law’. This law is based on avenging insult that carries a 1-year sentence. However, this mockery of free speech was not lost on the court, which identified the hypocrisy that the German law represents; by decrying as this law as Hitlerian, it could unofficially gain control over speech. I would add that it is a form of Orwellian Doublethink –that living in a free society it to be free to say whatever the state authorizes.
I must concede that I am sympathetic to Germany taking this course of action, due to its historical record and war guilt. But it does not change the fact that such a precedent which the state can control the historical narrative, and therefore reality, for the ‘greater good’. This possibility is discussed, as Douglas turns the debate towards the control of the education system.
The criminalization of Holocaust denial has allowed the State to use coercive power to preserve a singular historical truth. As Douglas explains, when the state attempted to silence Holocaust deniers, it pursued a path that obligates it to defend established norms that were placed upon it via the law, which are viewed as a superior claim of historical truth. He cites civil-rights defender Alan Dershowitz, who argued ‘any court, school board, any governmental agent taking the judicial notice about any historical notice about any historical event, even one that I know to the absolute core of my being occurred, like the holocaust’. Another scholar, Ernst Nolte goes further to state that although Nazi atrocities cannot be denied, by the decision to insulate this fact from debate commits the state to a particular reading of the event. Such a law might not only chill Holocaust deniers but also the work of ‘legitimate’ scholars who question the dogma of the Holocaust’s uniqueness. This is the beginning of the much-feared ‘slippery slop’ that I had warned about during my introduction.
This was not lost on Canadian Jury, as Douglas explains, as it came to the conclusion that any attempt to suppress a viewpoint via the lawful sanctions, even a publication as crude as Zundel’s, is destined to fail. It will fail, because the jury saw the law’s duty was to be solely concerned with maintaining its own complex normativity and discursive neutrality.
In conclusion, Douglas not only showed a structurally well-balanced article argument, he reasoned that no matter how tempting the urge may be to censor outrageous lies, it is important to beware of the tyranny of good intentions. Those of seek suppression in the name of the ‘greater good’ run the risk of attempting to controlling reality themselves.
Douglas, L 1998, ‘Policing the Past: Holocaust Denial and the Law’ in Censorship and Silencing: Practices of Cultural Regulation, Getty Research Institute, United States
, Lawrence Douglas, ‘Policing the Past: Holocaust Denial and the Law’ in Censorship and Silencing: Practices of Cultural Regulation ed. Robert C. Post (Los Angeles: Getty Research Institute, 1998), 68.
 Douglas, Policing the Past, 78.
 Douglas, Policing the Past, 71.
 Douglas, Policing the Past, 67.
 Douglas, Policing the Past, 70.
 Douglas, Policing the Past, 71.
 Ibid., 71.
 Douglas, Policing the Past, 82.
 Douglas, Policing the Past, 79.
 Douglas, Policing the Past , 69.
 Douglas, Policing the Past, 73.
 Douglas, Policing the Past , 83.