Free Speech: Freedom For The Thought We Hate

April 2006

Funny people, the Austrians. If you're Kurt Waldheim – a former Nazi military officer linked to a genocidal massacre during World War II – they elect you president. But if you're David Irving – a British author who claimed that there never was a Nazi genocide during World War II – they throw you in the slammer.

On second thought, not funny at all. Austria disgraced itself when it elected Waldheim president in 1986, apparently unconcerned by the revelation that he had served in a German military unit responsible for mass murder in the Balkans and been listed after the war as a wanted criminal by the UN War Crimes Commission. In a very different way it disgraced itself again last week, when a Vienna court sentenced Irving, a racist and an anti-Semite, to three years in prison for denying that the Nazis annihilated 6 million European Jews.

Irving is a man of great intellectual gifts who devoted his life to a grotesque and evil project: rehabilitating the reputation of Hitler and the Third Reich.

Necessarily, that meant denying the Holocaust and ridiculing those who suffered in it, and Irving has long done so with relish. ''I don't see any reason to be tasteful about Auschwitz. It's baloney, it's a legend," he told a Canadian audience in 1991. ''There are so many Auschwitz survivors going around – in fact the number increases as the years go past, which is biologically very odd to say the least – I'm going to form an association of Auschwitz Survivors, Survivors of the Holocaust, and Other Liars, or A-S-S-H-O-L-S."

Presumably Irving had in mind people like my father, whose arm bears to this day the number A-10502, tattooed there in blue ink on May 28, 1944, the day he and his family were transported to Auschwitz. My father's parents, David and Leah Jakubovic, and his youngest brother and sister, Alice, 8, and Yrvin, 10, were not tattooed; Jews deemed too old or too young to work were sent immediately to the gas chambers. His teenage siblings, Zoltan and Franceska, were tattooed and, like him, put to work as slave laborers. Zoltan was killed within days; Franceska lasted a few months. Of the seven members of the Jakubovic family sent to Auschwitz in the spring of 1944, only my father was alive in the spring of 1945.

So on a personal level, the prospect of David Irving spending his next three years in a prison cell is something over which I will lose no sleep. He is a repugnant, hate-filled liar, who even as a child (so his twin brother told the Telegraph, a British daily) was enamored of the Nazis and had a pronounced cruel streak.

But as a matter of law and public policy, Irving's sentence is deplorable. The opinions he expressed are vile, and his arguments about the Holocaust – perhaps the most comprehensively researched and documented crime in history – are ludicrous. But governments have no business criminalizing opinions and arguments, not even those that are vile or ludicrous. To be sure, freedom of speech is not absolute; laws against libel, death threats, and falsely shouting fire in a crowded theater are both reasonable and necessary. But free societies do not throw people in prison for giving offensive speeches or spouting historical lies.

Austria, the nation that produced Hitler and cheered the Anschluss, may well believe that its poisoned history requires a strong antidote. Punishing anyone who ''denies, grossly trivializes, approves, or seeks to justify" the Holocaust or other Nazi crimes may seem a small price to pay to keep would-be totalitarians and hatemongers at bay. But a government that can make the expression of Holocaust denial a crime today can make the expression of other offensive opinions a crime tomorrow.

Americans, for whom the First Amendment is a birthright, should understand this instinctively. ''If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought," wrote Supreme Court Justice Oliver Wendell Holmes Jr. in 1929. ''Not free thought for those who agree with us, but freedom for the thought that we hate."

It is popular in some circles to argue that the United States should do certain things -- adopt single-payer health insurance, abolish capital punishment, etc. – to conform to the practice in other democracies. Those who find that a persuasive argument might consider that Irving is behind bars today because Austria doesn't have a First Amendment. Neither do Belgium, the Czech Republic, France, Germany, Israel, Lithuania, Poland, Romania, Slovakia, or Switzerland – all of which have made Holocaust denial a crime.

"Freedom for the thought we hate" is never an easy sell, but without it there can be no true liberty. David Irving is a scurrilous creep, but he doesn't belong in prison. Austria should find a way to set him free – not for his sake, but for Austria's.