What rationales were given for prohibiting Holocaust denial?

Question

For jurisdictions that have explicitly prohibited Holocaust denial, or denial of atrocities committed by Nazi Germany, or genocide in general, what rationale or rationales have been provided for it? (Holocaust denial is effectively illegal in Australia, due to broader laws against hate speech and racial vilification)

Peter Singer stated that such laws will not reduce the number of people who believe that the Holocaust didn't happen:

But how is the cause of truth served by prohibiting Holocaust denial? If there are still people crazy enough to deny that the Holocaust occurred, will they be persuaded by imprisoning people who express that view? On the contrary, they will be more likely to think that people are being imprisoned for expressing views cannot be refuted by evidence and argument alone.

However, I'm not sure that preventing people from thinking that the Holocaust didn't happen is the full rationale, or the only rationale, for this law.

The Wikipedia article Laws against Holocaust denial mentions arguments against criminalising Holocaust denial, but doesn't provide in-depth details about the rationale for criminalising it. The first two countries appear to be (West) Germany and Israel, two countries with strict anti-nazi laws, in 1985 and 1986. (I was surprised it was this late - I assumed anti-nazi laws were much older than that, and Holocaust denial has been going on for decades earlier than the 1980s)

Ideally, I'd like to see rationales given for the earliest instances of Holocaust denial laws, by those closely involved in it being prohibited.

Answer 1

This answer focuses on the rationales behind the Holocaust denial law in Germany (Section 130 (3) of the German criminal code). I assume that the reasoning in other jurisdictions was similar. But I would like to invite other users to post answers which focus on other countries.

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The German Holocaust denial law was made in 1994 after the Bundesverfasungsgericht (supreme constitutional court) ruled in BVerfGE 90, 241 (German source) that banning Holocaust denial is constitutional. The reasoning was that the fact that the Holocaust happened is an undeniable historical truth, and any attempt to claim the opposite can only serve the purpose to insult Holocaust victims and justify violence against those minorities who were the targets of the Holocaust. They judged that protecting the dignity and safety of these minorities is more important than protecting the speech of the Holocaust deniers.

The above-mentioned ruling also goes to great lengths to refute the "freedom of speech" counter-argument. The usual German translation of "freedom of speech" is "Meinungsfreiheit" which literally means "freedom of opinion". The constitutional court reasoned that whether or not the Holocaust happened is a fact and not an opinion. According to the constitutional court, the German definition of freedom of opinion only covers statements which cannot be proved or disproved. Therefore, denying the Holocaust is not speech which is protected by article 5 of the German basic law.

Answer 2

It is actually quite easy to explain why it happened so late and it was a curious instance of coincidence.

After the war many Nazis remained unscathed, the "denazification" program was effectively as successful as trying to drink out an ocean with a teaspoon. While only a minority of Germans were dedicated nazis, many of them had acquired power positions under Nazi Germany, lying is easy and suitable replacement was hard to get by (remember: many political opponents were killed, too). So many of them collaborated with the Western Allies, having a deep resentment against Russia and the former Germans were very silent about what has been done. East Germany was under Russian control and many socialist people who survived were emigrating to it, e.g. Bertholt Brecht.

It could have been going the normal way by forgetting, suppressing and denying or aggressively attacking, business as usual. In fact there were many instances when it was evident that the old system had still its followers. Citing from German wikipedia, in spring 1957 Ludwig Zind insulted a Jewish businessman and admitted to have killed hundreds of Jews, he was charged with insult and Verunglimpfung des Andenkens Verstorbener (denigration of the dead) and convicted for one year. He openly admitted being a Nazi and got approval from the spectators, but fled before incarceration.

In the same year Friedrich Nieland from Hamburg was disseminating nazi propaganda, but was not convicted before the Oberlandesgericht Hamburg. The former concentration camp doctor Hans Eisele also fled from Germany, another female doctor, Herta Oberheuser, was discharged from prison and could work again as doctor.

January 1959 the government tried to change the Volksverhetzung (incitement) paragraph, § 130 StGB after further justice scandals and arson attacks against synagogues. Those arson attacks reached a sad peak at the end of 1959, the most notable case the synagogue in Cologne.

But then the 1968s happened; the next generation was growing up and was very critical over the perceived values of the war generation, especially because they were thought responsible for the war. As German I know from own experience (I worked as alternative civilian service a short time) that many Germans living during the Nazi period were extremely silent about what they were doing during this time. I also know that many other people who were young in this period shared exactly the same sentiment: Something was very wrong and their parents was hiding something.

The people now were already critizing the Holocaust and in the 70s there was a strengthened activity of denial literature, but it was all overshadowed by the clash of left terrorism (RAF) and the government in the 70s. This era was ending at the end of 1977 when the core RAF died in the high security prison Stammheim.

What now happened was the sending of the TV series Holocaust - Die Geschichte der Familie Weiss during the year 1979. It was extremely popular in Germany and brought an overdue widespread discussion. It triggered a ferious propaganda counterattack of the German Nazis with denials and denunciations and at the first time they realized that their worldview was losing more and more to be an acceptable position.. This urged them to give their writings a "scientific" or "asking open question" touch.

Being flooded with propaganda, justice minister Hans A. Erhard tried to introduce 1985 the revision of the §130 which was delayed, but he was successful to introduce a passage for insult § 194.

§194 StGB Beleidigung (insult) was changed so that claiming publicly that a person who died as victim of a nazi crime was not killed was sufficient to bring it forward to a judge even if it was not reported, only the insulted person could stop the process. It was introduced in August 1st, 1985

§130 StGB Volksverhetzung (incitement) got a new passage (3) at December 1st, 1994

So essentially the real or perceived tenacity of the Holocaust deniers triggered the introduction of the law. It must be said that many people and jurists are also uncomfortable with this law because it gives judges too much leeway in the persecution of persons.

Answer 3

Ideally, I'd like to see rationales given for the earliest instances of Holocaust denial laws, by those closely involved in it being prohibited.

I doubt you're going to find this. I doubt these rationales exist.

These laws may be less about actually banning Holocaust denial and more about asserting a society's moral values.

After all, laws are a reflection of values, not just a method of social engineering.

Here are just two current prohibitions in the United States. These bans are ineffective but are not repealed because of the statements of morality they convey:

• Marijuana. It's banned by federal law. Yet it's everywhere. And I mean everywhere. From the smallest villages to the largest cities.

• Prostitution. It's banned by all states, except for a few counties in Nevada. Yet prostitution is happening everywhere across the country.

There is evidence to suggest that legalizing marijuana and prostitution would yield net benefits to society. That can be debated. However, one thing is for sure: it would move the U.S. further away from its puritanical roots. Many in this country aren't ready for that. Logic, reason and common sense be damned.

Holocaust denial laws are an artificial suppression of freedom of expression. This doesn't make the expressions go away. It's just society's way of saying that holocaust denial is morally reprehensible and worthy of punishment. No other rationale is necessary.