Hate Speech and Holocaust Denial: The Prohibition of False Historical Discourse in Modern Society

Abstract

The existence and magnitude of the largest genocide of the twentieth century, the Holocaust, are now being denied by individuals worldwide. This paper analyses the European legislation criminalising Holocaust denial from a freedom of expression perspective. The paper argues that Holocaust denial is inherently anti-Semitic, and is thus consistent with hate speech theory and the hate speech laws that have been enacted internationally in an attempt to remedy the harm hate speech can cause. The thesis of this paper is that the legislative restrictions on hate speech and Holocaust denial are justified from a free speech perspective on theoretical grounds. Such restrictions are a necessary prioritisation of human dignity and equality in the circumstances. Explicit Holocaust denial laws, while performing an essential symbolic function in European jurisdictions, are unnecessary in non-European states, as generic hate speech laws are sufficient to capture the harm caused by upper-level Holocaust denial.

Keywords: Holocaust Denial, Hate Speech, Freedom of Expression, R v Keegstra, Irving v Penguin Books Ltd and Lipstadt

JEL Classification: K10, K19