Don Guttenplan is a Jewish journalist who observed the 2000 trial of British historian David Irving against Deborah Lipstadt and wrote a book about it. In his article “How Many Jews Does It Take…?” published in the British magazine Index on Censorship no. 2, 2005, Guttenplan claims that “Holocaust denial is a form of racial abuse,” where “pseudo-scholarly decoration” is used to deny or declare as irrelevant “the pain felt by Holocaust survivors” and thereby to deny their humanity. He gives that as his first possible argument to outlaw Holocaust denial. Guttenplan’s second argument is that “free societies” have “an obligation to defend themselves” against “Nazi resurgence,” which is a potential threat in continental European countries. He therefore respects the fact that those countries outlaw Holocaust Denial.
Guttenplan’s arguments are extremely flawed. Restrictions to freedom of speech, as restrictions to all civil rights, must be general in nature, applicable in any common situation. Let us therefore first analyze what the basic activity of “Holocaust Denial” is. In essence, “Holocaust Denial” is the claim that a certain crime that caused human suffering and casualties did not occur at all or not to the extent as claimed by its victims. If such claims amount to denying the humanity of victims, survivors and their descendants, then that would be true for every statement minimizing or denying a crime. Applying legal standards to this would mean that we have to outlaw any statement that contradicts victims and survivors of any crime. In essence, this would render any defense impossible against any accusation made by a person claiming to have fallen victim to a crime, and it would also render impossible any critical investigation into “oral history” in general. That is in essence what Guttenplan suggests. The only justification he can give is that the Holocaust and its victims are unique and therefore deserve special treatment.
For the sake of this argument, let us agree that the Holocaust is unique in the history of mankind. It should be obvious that even a uniquely reprehensible crime must be open to a procedure that is standard for any other crime as well, namely that it must be open to thorough investigation. It can even be argued that anyone who postulates a crime to be unique must also accept a uniquely critical – contradictory – attitude by those who are expected to accept this uniqueness. Anyone who wants to prevent such critical scrutiny into unique claims commits himself an offence: He denies those who are opposed to the repercussions of such a verdict of uniqueness a potential defense against theses claims. And this not only concerns the alleged perpetrators of such claimed crimes and their descendants, who are facing a unique punishment, but basically all those who value proper due process or who are worried about any social and political impact such claims may have.
Although keeping even today’s Germans responsible for the Holocaust is still in vogue, what exactly is it that justifies the criminalization of a potential defensive position for Germans, and an unchecked potential accusatory position of their former victims? Is there a right to defense or is there not? If it exists in the court rooms, why should it not exist in the realm of historical writings, scholarly are not?
The fact is that it can never be a crime to contradict those claiming to be victims or survivors of a crime. To make such contradictory attitude morally offensive requires more: to falsely accuse a victim or survivor of wrongdoing (lying, blackmailing) or to even demand that the victims or survivors should be deprived of some or all of their civil rights as a punishment for their alleged acts of lying and blackmailing.
The restrictions of civil rights can be justified only if exercising these rights unduly restricts – or calls for the restriction of – the civil rights of others. Contradicting someone is no such intrusion into the civil rights of that someone. Calling someone a liar or blackmailer can very well be, but that would be a matter not to be settled by criminal law, but in civil courts (as David Irving unsuccessfully tried).
Guttenplan’s second argument is flawed, too. I agree with him that free societies have “an obligation to defend themselves,” but not merely against a “Nazi resurgence.” They have a duty to defend themselves against anyone who wants to unduly restrict civil rights. Putting scholars in jail without permitting them to defend themselves, as it is happening in Germany, Austria, Switzerland, and other European countries, is exactly such an unduly restriction of civil rights. Guttenplan justifies such acts by calling the works of Holocaust deniers “pseudo-scholarly” and by insinuating that they have sinister motives. In their sweeping generality, both claims are not true. But let us again assume they would be true, because that is also the way continental European courts argue.
Let us again generalize. The question is: how many writings in this world are considered non-scholarly or are claimed to be merely “pseudo-scholarly” by an opponent? Probably the vast majority, because most writings are fictional and causal. And how many writings in this world are made with many readers assuming that the author has some sinister motive toward someone or something? The reader’s guess is as good as mine. If we want to put all those in jail whose scholarship is being doubted and who are suspected of having sinister motives, how many writers in this world would still roam this planet as free men and women? Probably not a single one of them!
I may remind Don Guttenplan what the essence of a free society is: it is human dignity that deserves to be protected. The truly decisive feature that distinguishes us humans from animals is that we do not take for granted what our senses tell us. We have the strength to doubt our senses (skepticism) and the skills to research the truth (scholarship). Thus, the very base of human activity is doubt and any attempt to get rid of it. “De omnibus dubitandum est” (everything has to be doubted) is therefore not only the basis and starting point of all scholarship, but of all humanity. And the highest duty of a free society is to allow for doubts, as unreasonable as some of them might seem to most of us, and to allow the search for the truth. The basis of scholarship, the most noble activity of mankind, is therefore that every starting thesis is permissible and that research results can be determined only by scholarly findings, but never by authority.
Outlawing what Guttenplan calls “Holocaust Denial” is an attempt to prescribe by authority of penal law the result of any research into this topic. Since free scholarship is no longer possible under such laws, it makes all “legal” works suspect of being “pseudo-scholarly,” because their result was prescribed by criminal law from the start. By Guttenplan’s standards, here generalized, all Holocaust scholars would belong in jail, because all of their work could be called “pseudo-scholarly” and potentially written with a sinister motive (pleasing the authorities instead of searching the truth).
Hence, if we apply general logic to Guttenplan’s way of arguing, it backfires big time. Outlawing “Holocaust Denial,” if applied generally, would actually be the end of skepticism and scholarship. It would equal the outlawing of humanity as such. Outlawing “Holocaust Denial” is therefore the first step of an ultimate onslaught against a free society.
If Germany and other countries with similar laws want to prevent the persecution of minorities and the burning of books, then they have to stop persecuting minorities and burning books, even if it concerns “Holocaust Denial.” Just turning around and persecuting “the other ones” for a change isn’t doing any good.
This article was submitted to the British magazine Index on Censorship as a right of reply to Guttenplan’s paper. It was never printed. The current version has been revised slighly.