David Irving, Bill Clinton, the Austrian Staatsvertrag and defending free speech sensibly

As I mentioned in a post at The Blue Voice on Holocaust denier David Irving, I lean heavily toward the Jeffersonian ideal of not having government ban the expression of opinions, no matter how obnoxious or ill-informed.

I've also expressed the notion that Muslim fundamentalists rioting and hurting people over cartoons seems ridiculous to me.  It's important for us to understand why the cartoons are such an offensive thing.  And also the ways in which Danish rightwingers and Muslim-fudamentalist agitiators exploited the sentiment.  Understanding is not the same as sympathizing.  And it is important to understand how these things happen.

Supporters of democracy of any religion should also not have a problem declaring our support for the basic ideas of freedom of expression.  Not only are such rights anchored in the American Constitution and in the constitutions, laws and traditions of other democratic nations.  They are also explicitly recognized in the Universal Declaration of Human Rights, adopted by the United Nations 12/10/48:

Article 18.
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.
(1) Everyone has the right to freedom of peaceful assembly and association.

(2) No one may be compelled to belong to an association.

But, in practice, there are real difficulties in deciding how to apply these rights.  We've all heard the catchy formulas.  My right to swing my arm ends where another person's nose begins.  No one has the right to shout fire in a crowded theater.  And so on.

As an example, Article 12 of the Universal Declaration says, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."  Which seems aimed at libel, which can be a vicious weapon.

This is one area of American law where current Supreme Court rulings leave perhaps too much latitude for false accusations.  Under the current standard, for anyone who can be considered a public figure (not restricted to elected officials) , establishing libel involves not just proving that the libelous claim was false or made carelessly, but also showing that the libeler had malicious intent.  Which works out in practice to mean that a public official has effectively no legal defense against libel.

The Clinton scandals are a textbook example of the problems that can cause.  Because money and - to use that forbidden word again - class also enter into it.  Another one of those common formulas says that a rich person and a poor one are equally free to buy their own newspaper.  (Or is it to sleep under a bridge?  Anyway...)  In the case of the Clinton scandals, as brilliantly documented in the film The Hunting of the President (2004), a well-financed network of hardline conservatives ginned up fake charges against Bill and Hillary Clinton that forced them to spend millions of dollars which they had to raise themselves in legal defense.  When he finally got caught in a purjury trap (although it was never clear to me that he technically committed perjury), it led to the impeachment fiasco.

If public figures could have recourse to libel laws on a more resonable basis than today, it would be a good way to put limits on some of the nastier dirt-slinging that the Rove-ified Republican Party have made part of their standard modus operandi now.  John Dean has argued that, even under the existing malicious intent standard, that John Kerry had good grounds to seek a libel judgment against the Swift Boat Liars for Bush group and specifically those responsible for the book Unfit for Command that was part of their smear campaign against him in 2004.  (See The New Book Attacking Kerry's War Record: How It Defames the Candidate, and Why He Should Sue by John Dean, Findlaw.com 08/31/04).  I would still like to see Kerry do that.  Even if he lost the case, it would be great publicity for just how sleazy today's authoritarian Republican Party has become in their sliming of political opponents.

Just as much of the commentary on the Muhammad cartoons issue treated the free-press component of it too superficially, even some of the more thoughtful commentary on the David Irving case has given inadequate attention to the context.

Here is what the State Treaty (Staatsvertrag) of 1955 obligates Austria to do.  Austria still recognizes this treaty as binding with the US, Britain and France although they do not recognize Russia as the legal successor to the Soviet Union for purposes of the Staatsvertrag.

This is the relevant German text:

Artikel 9. Auflösung nazistischer Organisationen

1. Österreich wird die bereits durch die Erlassung entsprechender und von der Alliierten Kommission für Österreich genehmigter Gesetze begonnenen Maßnahmen zur Auflösung der nationalsozialistischen Partei und der ihr angegliederten und von ihr kontrollierten Organisationen einschließlich der politischen, militärischen und paramilitärischen auf österreichischem Gebiet vollenden. Österreich wird auch die Bemühungen fortsetzen, aus dem österreichischen politischen, wirtschaftlichen und kulturellen Leben alle Spuren des Nazismus zu entfernen, um zu gewährleisten, daß die obgenannten Organisationen nicht in irgendeiner Form wieder ins Leben gerufen werden, und um alle nazistische oder militaristische Tätigkeit und Propaganda in Österreich zu verhindern.

2. Österreich verpflichtet sich, alle Organisationen faschistischen Charakters aufzulösen, die auf seinem Gebiete bestehen, und zwar sowohl politische, militärische und paramilitärische, als auch alle anderen Organisationen, welche eine irgendeiner der Vereinten Nationen feindliche Tätigkeit entfalten oder welche die Bevölkerung ihrer demokratischen Rechte zu berauben bestrebt sind.

3. Österreich verpflichtet sich, unter der Androhung von Strafsanktionen, die umgehend in Übereinstimmung mit den österreichischen Rechtsvorschriften festzulegen sind, das Bestehen und die Tätigkeit der obgenannten Organisationen auf österreichischem Gebiete zu untersagen.

Article 9.1 requires the Austrian government to carry out the measures enacted under the occupation that aimed at the dissolution of the National Socialist (Nazi) Party and all its associated organizations.  Austria is also obligated to endeavor to remove and guard against "all traces of Nazism" in the "politcal, economic and cultural life" of the country.  It specifically commits Austria to prevent the restoration to life of any of the Nazi organizations and specifically to prevent "all Nazistic or militaristic actions and propaganda in Austria." (my emphasis)

Article 9.2 requires the dissolution of all exiting fascist organization (fascist and Nazi are not precise equivalents; long story there) and any other organizations which "seek to rob the population of its democratic rights".  And 9.3 specifically obligates Austria to impose criminal sanctions (Strafsanktionen) on any such organizations (Nazi or fascist) that arise or become active in Austria.

Not to get all political-sciency here, but the US Constitution specifies itself and treaties of the US as being the law of the land in America.  These provisions obviously don't apply to the United States itself.  But if it appears that these provisions contradict the principles of the Constitution's First Amendment - which arguably they do - this treaty supercedes the First Amendment as American law.  At least as far as what the US along with Britain and France require by treaty of Austria, the Staatvertrag overrides any First Amendment requirements of the Constitution.

As a result of all this, I find it almost painful to see American and British writers giving civic-textbook lectures about not violating freedom of speech without even mentioning that Austria is required by treaty to do this.  They would be violating their treaty obligations to the US, Britain and France not to do this.  Is it too much to expect people to at least take note of this?

Kevin Drum comments on the case in this 02/22/06 post in what comes out soundingto me like a California-dippy take on this particular case, apparently completely innocent of any international-law considerations involved:

As usual with free speech issues, this isn't a question of whether Irving's speech is odious, it's a question of whether the state should be allowed to declare it illegal. This is a power that I'm very reluctant to concede to central governments, which is why I generally oppose hate speech laws and think that Tony Blair is insane for pushing legislation to ban the act of "glorifying terrorism" - whatever that is.

As [Michael] Shermer says, it's at least understandable that countries like Germany and Austria have laws that ban Holocaust denial. There's some history there. But at some point they have to decide if they've matured enough since World War II to trust their own citizens not to fall prey en masse to the ranting hatred of loons like David Irving. It's unfortunate that apparently they don't feel they have.

At least his comment isn't quite as witless as one I previously quoted from the Times of London:

Yet there remains the sense that the law is used to mask an inability among Austrians to come to terms with their history, and that the country has not experienced the same level of national soul-searching as Germany.

The Michael Shermer to whom Drum refers is the author of this op-ed to which he links: Free speech, even if it hurts: Protecting the rights of a Holocaust denier ultimately protects us all by Michael Shermer Los Angeles Times 02/22/06.

Shermer is one of my favorite columnists.  I subscribe to Scientific Americanand his one-page "Skeptic" column is the first one I read when the magazine arrives.  Shermer is also the editor of Skeptic magazine and the author of a book about Holocaust denial, which his magazine has held up as one of the most pernicious versions of pseudohistory.  He also argues: 

Freedom is a principle that must be applied indiscriminately. We have to defend Irving in order to defend ourselves. Once the laws are in place to jail dissidents of Holocaust history, what's to stop such laws from being applied to dissenters of religious or political histories, or to skepticism of any sort that deviates from the accepted canon?

But he at least puts it into a bit more historical context:

Today, you may be imprisoned or fined for dissenting from the accepted Holocaust history in the following countries: Australia, Austria, Belgium, Canada, Czech Republic, France, Germany, Israel, Lithuania, New Zealand, Poland, Romania, Slovakia and Switzerland.

Given their disastrous history of being too lenient with fringe political ideologues, it is perhaps understandable that countries such as Germany and Austria have sought to crack down on rabble-rousers whose "hate speech" can and has led to violence and pogroms. In some cases, the slippery slope has only a few paces between calling the Holocaust a "Zionist lie" and the neo-Nazi desecration of Jewish property.

And as we have witnessed repeatedly, Europeans have a different history and culture of free speech than we do in this country. In Germany, for example, the "Auschwitz lie" law makes it a crime to "defame the memory of the dead." In Britain, libel law requires the defendant to prove that he or she did not libel the plaintiff - unlike U.S. law, which puts the onus on the plaintiff - and the British recently debated the merits of banning religious hate speech. In France, it is illegal to challenge the existence of the "crimes against humanity" as they were defined by the military tribunal at Nuremberg; another law, on the books until just a few weeks ago, required that France's colonial history (which was not always "humane") had to be taught in a "positive" light.

But as much as I respect Shermer's work, his column also shows a bit of good old American finger-wagging at the Old World for not being as pristinely democratic as we are.  A quaint habit, with its own charm.  (Guantánamo isn't technically part of the United States, is it?)  But if we Americans are going to make fun of the insufficiently free Europeans on this issue, can't we at least acknowledge that Austria's anti-Nazi laws are part of their treaty obligations to the United States, Britain and France?

Actually, it's also misleading to say that anti-Holocaust-denial laws like those in Germany and Austria targets all those "dissenting from the accepted Holocaust history".  It's aimed at the kind of Holocaust denial that amounts to Nazi propaganda.  I don't recall ever hearing of anyone prosecuted there for participating in the intensive discussions over the "intentionalist" versus "structuralist" views of how the Holocaust developed.  And I couldn't say which one is "accepted Holocaust history". 

I don't think we have to defend democratic and human rights like freedom of speech only with goody-two-shoes platitutdes.  And I'm all for taking a stand on Jeffersonian principles of freedom of speech and religion.  But we don't have to pretend that they are some kind of Platonic "ideal forms" existing off in the ether somewhere, instead of being part of historical and social realities.

Submitted to Carnival of German-American Relations