Holocaust Denial and the First Amendment: The Quest for Truth in a Free Society

Abstract

From the ashes of the Holocaust we have come once again to learn the terrible truth, that the power of Evil cannot be underestimated. Nor can the effect of the spoken and written word. It has been but a halfcentury since the liberation of Nazi death camps, a little more than a decade since the First International Conference on the Holocaust and Human Rights, and a few short years since the United States Holocaust Memorial Museum first put on display its documentation of horror. Yet today that form of historical revisionism popularly called "Holocaust denial" abounds worldwide in all its full foul flourish. As the generation of survivors dwindles, whose words will win?

In a global environment increasingly dominated by mass media of manifold form and format, we have also begun to understand that what is printed on paper or broadcast on television or bytten into cyberspace affects everyone, actually or subliminally. Conversely, what is rejected or otherwise left out is doomed to the World of Communication Failure or, worse, of Ignorance and Misunderstanding. Who decides what is to appear in the vast and burgeoning marketplace of ideas? Many of those important choices are vested in editors and publishers, upon whom the Constitution confers almost unfettered discretion. Restrictions are few and seldom imposed; for the most part journalists can write, say, depict - or ignore - just about anything they want. And that's the way we like it. That's the American way. Freedom of thought and expression, after all, is one of our most hallowed liberties - limited only by circumstances where actual harm has been caused or is reasonably perceived as imminent. If a line can be drawn at all between unfair suppression of thought on the one hand and good editorial judgment on the other, it is sometimes exceedingly faint, often entirely arbitrary, and always fundamentally subjective. The greater the opportunity for excess in the exercise of the power of the press, the more profoundly difficult the consequences in the protection of civil liberties for individuals.

That axiom has been brought into sharp focus by Holocaust deniers, whose goal is both enhanced and complicated by the aura of "political correctness" which nowadays surrounds a great deal of editorial decision-making. Nowhere is this more pervasive than in Academia. What should be the most receptive place for honest intellectual inquiry and discourse has instead become one where all assumptions are open to debate - even documented historical facts. This has had an unsettling effect on student editors, who have long been responsive to the pressures of political correctness. When they become entangled in the black and nefarious thickets of Holocaust denial, their exercise of editorial discretion can be intellectually excruciating. So can the emotional pain suffered by victims of group libel. Remedies for that malady have not been clearly established in American law. Nor has the tort of intentional infliction of emotional distress been adequately tested against traditional free-speech guarantees. Explored least of all is the effect upon a free society when the dissemination of demonstrably false ideas is Constitutionally protected. Must writers and speakers who deny the Holocaust be guaranteed equal access to curricula and classrooms? Should responsible libraries collect and classify work born of blatant bigotry? Have survivors been injured when their victimization has been repudiated? More profoundly, can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Should the People have the power to suppress the misrepresentation of historical fact when it is motivated by nothing more than racial animus? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth?

This Article attempts to answer those questions.

Keywords: Holocaust, denial, First Amendment, freedom of speech, academic freedom

JEL Classification: K00