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Don’t Try to Legislate Against Holocaust Denial, Lawyers Say

June 23, 2000
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Passing a new law outlawing Holocaust denial is not the best way to combat the problem, says a panel of British lawyers.

The recommendation came about two months after British Holocaust denier David Irving lost a multimillion-dollar libel case against American historian Deborah Lipstadt in London.

Holocaust denial is “fanciful, inconsequential stuff,” said Anthony Julius, who chaired the panel of experts and led Lipstadt’s legal defense.

“The present risk that Holocaust deniers pose can best be dealt with by education,” he added.

The Institute for Jewish Policy Research delivered the report to British Home Secretary Jack Straw earlier this month — on the same day London’s Imperial War Museum opened a new permanent exhibition on the Holocaust.

Straw welcomed the report, calling it “very helpful” and promised to look carefully at its recommendations, which include a call for a “drive to raise public awareness of the Holocaust.”

The report, the result of 18 months of work, argues that outlawing Holocaust denial “could be seen as an illegitimate infringement on the right to freedom of expression.”

It also points to the problem of adequately defining Holocaust denial and observes that there is no evidence that legal prohibitions in countries that outlaw denial have had an impact on the problem.

“Notwithstanding the harms inflicted by hate speech, freedom of expression is a primary right in a democratic society and applies especially to speech that is offensive, disturbing or shocking,” the report says.

The report recognizes that Holocaust denial is “not offensive solely to Jews,” but “to all who are informed about the facts of the Holocaust,” and that “Holocaust denial has an implicit intent to engender hatred.”

At the same time, the authors of the report say Holocaust denial is not a significant problem in Britain, despite the publicity surrounding the Irving trial.

On the contrary, “there may have been a slight decrease in the distribution of Holocaust-denial material in the United Kingdom in the 1990s,” according to the report.

British law prohibits inciting racial hatred, but “no one has been prosecuted specifically for producing or disseminating Holocaust-denial literature,” according to the report.

The report argues that “current legislation is inadequate for countering the harms caused by those who deny the Holocaust.”

But, the report continues, “The prosecution of cases under Holocaust-denial legislation would bring its own risks. The most obvious of these is probably the danger that cases would provide valuable publicity for the Holocaust deniers.”

The six lawyers who wrote the report solicited testimony from experts on Holocaust denial, freedom of speech and Jewish law, as well as from Holocaust survivors.

Holocaust denial is a crime in Austria, Belgium, France, Germany, Spain and Switzerland, as well as in Israel.

(The report, Combating Holocaust Denial through Law in the United Kingdom, is available at No_3_2000/index.htm)

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