Don’t say it ain’t so

The Irish Times today carries a report by Jamie Smyth that Germany has proposed an EU ban on denial and – perhaps – the dissemination of xenophobic statements that could incite violence or hatred. Germany, in common with several other EU states, including France, Belgium and Austria (as David Irving found out), has holocaust denial legislation on its statute books, and legislation against incitement to racial hatred is to be found in countries like Ireland and the UK.

We have been here before (Smyth says that an earlier attempt by Germany in 2004 to get this type of law passed by the Council of Ministers foundered), and this initiative may similarly come to naught. It should. First, although the Bundesverfassungsgericht (the German Federal Constitutional Court) has sustained the constitutionality of the German holocaust denial legislation (in BVerfGE 90, 241-255), in principle, the best answer to the speech we hate is not to restrict it but to answer it. In the particular context of holocaust denial, the best way to ensure that we never forget it is to talk about it, to meet the challenge of the deniers head on, to meet speech with more speech, as sites such as Nizkor do.

Second, even though many EU member states have this kind of legislation on their statute books, and even if the EU’s competence in matters of justice, freedom and security (which extends to combating racism, xenophobia and antisemitism) is a sufficient legal basis for this EU action, I wonder whether it would survive a challenge in the European Court of Justice (ECJ). Moreover, even if the ECJ were to come to the same conclusion as the German court, that wouldn’t make it right.

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