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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.

  • The wikipedia article you mention has Austrian anti-nazi laws back to 1947 – James K Apr 15 '18 at 12:29
  • @JamesK anti-Nazi laws yes, but anti-Holocaust-denial was a 1992 amendment. – Andrew Grimm Apr 15 '18 at 12:45
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    Note that Germany doesn't have an explicit law against Holocaust denial. At first, Holocaust denial was punishable as libel or denigration of the memory of the deceased. In the 60s and 80s, the law against incitement was reformed (and some courts decided that it included Holocaust denial). In '94 the law was once again reformed to specifically mention genocide. AFAIK, it was only then that Holocaust denial was uniformly declared illegal (because of a decision of the supreme court). It's difficult to find exact information, but this might also make a good question at history.SE. – tim Apr 15 '18 at 13:11
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    I think the most important rationale for Germany is that Germans hate neo nazis, especially neo nazis spreading lies. It's not about persuading them, it's about putting them into jail where they belong. – gnasher729 Apr 15 '18 at 13:36
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    @AndrewGrimm: I am not a legal scholar. But it seems to me that European laws are generally more restrictive of hate speeches than American laws. For example, there are stricter laws in most EU country also against libel, insults to royalty, racist speech and denial of genocides more generally. Part of the answer to your question would have to account for the stricter boundaries we place on speech more generally round these parts. – user189035 Apr 15 '18 at 17:44
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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.


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.

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  • Before you comment: Please keep in mind that Politics Stack Exchange is not a place for political discussion. Please only post comments which address the answer itself. Any comments about whether you agree or disagree with the ruling of the BVerfG will be deleted. – Philipp Apr 15 '18 at 17:31
  • How did the court rule about constitutionality before a law was passed? Does their equivalent of parliament allow courts to rule on proposed legislation? – Andrew Grimm Apr 16 '18 at 10:23
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    @AndrewGrimm The trigger of the court case was that the NPD (radical nationalist party) wanted to organize a public protest against Holocaust remembrance and that protest was prohibited by the city of Munich. The NPD then filed a complaint against the city of Munich at the constitutional court. The court then made the above ruling. A few months later, the parliament codified that decision into law. – Philipp Apr 16 '18 at 10:31
  • @AndrewGrimm germany constitutional court system works on a request basis. Party/Organization A/B/C requests aid, support or guidance in wether the affair X/Y/Z is constitutional or not. Usually (always i think), when a ruling is made, and it involves a new interpretation of law (like the one shown above), the parliament adds that new interpretation as part of the law. Imagine a constitution & law built in 1980's, before smartphones existed & Law says nothing about social media. Party A asks "is reading my employee whatsapp constitutional during work hours?". court says "No, because X". – CptEric Apr 17 '18 at 7:10
  • @AndrewGrimm part 2: the parliament then adds X as part of the legal system so it's not needed to be asked again in the future. In this concrete example: (invented) "General Law, section 8, part 12, privacy, subsection 2, 'privacy in the workspace', 'messaging services': it is illegal for a employer to use his power over an employee to examine his personal interactions trough messaging services." – CptEric Apr 17 '18 at 7:12
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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.

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    This is a very valuable answer as it details first point view experience. I would suggest enhancing the early paragraphs with some citations (I suspect all of this has well documented historiography, at least in German language?) – user4012 Apr 17 '18 at 18:32
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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.

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  • Even Germany, which I would expect to have unusually strict laws of this sort, limits itself to acts which are "capable of disturbing the public peace." I think they could make a colorable (but not very strong) argument that they are trying to prevent riots. Of course, if you really want to prevent riots, you outlaw rioting, but this is the sort of argument I imagine you might hear from Germans. – Kevin Apr 15 '18 at 14:58
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    Re "puritanical roots": The puritans never outlawed cannabis -- the first cannabis control laws are in 1906. The puritans liked spruce beer and hard cider throughout day. Start with 1826 Boston Congregationalists and Presbyterians... – agc Apr 15 '18 at 15:35
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    This answer, while not implausible, sounds speculative. – Andrew Grimm Apr 15 '18 at 20:54
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    I downvoted this answer because only the first and last paragraph actually address holocaust denial, and the first paragraph is simply wrong. When a law is proposed in a democratic parliament, it is always accompanied by a rationale. And you can look it up if you are willing to do some research. This especially applies to laws where people know they will cause a backlash from a vocal minority. – Philipp Apr 16 '18 at 8:01

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