Regarding free speech, my previous post on Honest Cash was about freedom of expression and censorship focusing on J.S. Mill's arguments. In that post, I had mentioned Mill's Harm Principle and how a hate speech could be argued around the principle. In this post, I would like to make reference to Holocaust denial in the context of freedom of expression. The reason why I wanted to write about is a news that I saw last week, which was about a former bishop losing a case against German conviction under Holocaust denial legislation.
Free speech: an absolute right or not?
“If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
What we understand from J.S. Mill's statement is that it is essential to have an environment where the opinions are exchanged freely without silencing anyone. It is essential for the function of democracy and human rights.
But what happens when one's right to free speech silences the other?
In the context of hate speech, we can always argue that a discriminatory opinion, which always offends or one part, in most cases prevents the offended side to have the same right - right to free speech - with the propagator due to the fear of the consequences she would face. So, even though the offender has the right to free speech, in most cases she cannot speak up and stays involuntarily silent which hinders the exchange of opinions freely. We see it mostly in the hate speech cases.
As a result, we can argue that freedom of expression is not an absolute - but fundamental - right and those restrictions on free speech based on certain justified reasons are a necessary condition to ensure the fundamental human rights while maintaining the democracy as well.
Free speech and Holocaust denial
Many countries including Germany have laws that criminalize genocide denial and/or Holocaust denial under hate speech or political extremism. While there are critiques against the law since it restricts the free speech, there are also arguments that justify the restriction. The political situation in Germany is a good one to mention.
According to the Federal Republic of Germany, the freedom including freedom of expression can be abused in order to destabilize the democratic order. The opinion was a result of the non-criminalized hate speech which led to political extremism and the rise of the Nazi Party during the Weimar Republic. Therefore, Basic Law of the Federal Republic of Germany transferred the certain rights to protect the democratic order whenever there is a threat to democracy. Since Germany sees the Holocaust denial as a treat to public order and to the democracy, it is quite understandable its justification on the restriction of free speech in certain circumstances.
Surely, there are some counter arguments claiming that such restriction puts the state above the individual in its own interest. I will not argue those as I believe that freedom of expression is a topic whose boundaries are vague and that we cannot talk about a universal scope since there are different circumstances to be taken into account. Nevertheless, while I believe free speech is necessary for democracy and human rights, it can also harm both in certain circumstances. In the latter cases, if the state decides to restrict the right to speech, it is more important in what form to do that without getting a benefit of the situation against its citizens. I am not quite sure if there is such a state though.
Let me know in the comments what you think about the Genocide /Holocaust Denial law. Do you agree with German law in this specific example of the bishop?