Anti-Holocaust Denial Legislation in Europe

CEU eTD Collection Hungary 1051 Budapest,Nadorutca9. Central EuropeanUniversity Sajó, Dr. PROFESSOR: András FreedomofSpeech COURSE: Comparative LL.M. SHORTTHESIS Anti-Holocaust DenialLegislation inEurope © Central European University, March31,2008 © CentralEuropeanUniversity,

Law againstNegation: by Silvia Şuteu CEU eTD Collection such asinternationalreputationandmembershipconditionality. factors, external to and large, at society and speech hate of victims the toward stance official certain a factors, signaling to internal a reaction Itis both multi-fold. laws is Holocaust denial anti- behind impetus the that concludes examination this evidence, reviewed the all on Based common identify to able trends acrossthesecasesandevenmutualreinforcementbetweendifferentjudicialbodies. be ultimately will reader The Switzerland). and Spain of together grouping the explains (which texts legal the of specifics Europe—Romania to according also but Eastern Hungary), and surrounding Belgium; France, Austria, by divided jurisprudence Europe—Germany, are (Western and emerging varied, region are covered discusses cases The criminalization. its and Three denial Holocaust Chapter legislation. anti-denial of texts comparisonofthe a detailedcross-national Chapter Two,to moves, in The analysisthen and implementation, of record their weigh theirultimatesocietalimpact. explain fully laws, we these can the adopting goes, message in argument particular choice the account the doing, the understand so at into in Only look laws. to takes denial anti-Holocaust proposes by also study carried the It Furthermore, speech. democracy. of hate standard banning international and an called increasingly is dignity, what for accounting human aspect, international equality, speech, of freedom on based considerations normative the details thus It speech. harmful of regulation underlying the justifications the theoretical analyzing Chapter One,by in The study proceeds, laws such why are adoptedandhowthey functioninpractice. of regulate understanding reader’s to the chosen furthering has at aims each analysis which present in the denial, manner the and systems legal different of number a lookingat By in theEuropeancontext. deniallegislation with anti-Holocaust This study deals ABSTRACT 1 CEU eTD Collection BIBLIOGRAPHY CONCLUSION CHAPTER III CHAPTER II CHAPTER I INTRODUCTION .A 3. A 2. M 3. L 2. D 1. .A 2. A 1. A 1. S 3. I 2. 1. N 2.2 Hungary...... 82 ...... 78 2.1 Romania 1.4 Belgium...... 74 1.3 France...... 69 1.2 Austria...... 67 1.1 Germany...... 60 . pi ...... 114 2.5 Spain 2.4 Hungary...... 111 2.3 Belgium...... 107 2.2 France...... 102 2.1 Germany...... 99 ...... 96 1.2 TheLawinNumbers ...... 94 1.1 TheLawandStanding ...... 90 3.2 Switzerland ...... 86 3.1 Spain ...... 42 1.4 Democracy ...... 38 1.3 Dignity 1.2 Equality...... 33 ...... 25 1.1 FreedomofSpeech NTERNATIONAL NTERNATIONAL YMBOLIC ITERATURE NTI NTI NTI NTI NTI EFINITIONS ORMATIVE ETHODOLOGY -H -H -G -H -H ...... 24 OLOCAUST OLOCAUST ENOCIDE OLOCAUST OLOCAUST ...... 59 ...... 94 ...... 119 R ...... 125 OLE OF J R ...... 6 ...... 3 USTIFICATIONS EVIEW ...... 20 S D TANDARDS ENIAL ENIAL D D D D L ENIAL ENIAL ENIAL ENIAL ENIAL ...... 11 AW ...... 52 L AWS L L L L EGISLATION EGISLATION IN AWS IN AWS ...... 49 ...... 25 ...... 85 C W ENTRAL AND ENTRAL ESTERN C E NFORCEMENT ASE E L UROPE AW E ...... 99 ASTERN ...... 60 ...... 94 E UROPE ...... 76 2 CEU eTD Collection 5 4 3 2 1 of favor in Those elements. peripheral politically of utterances the than seriously more any denial taking at attempts any rejecting protection speech robust favoring those with divided, starkly is denial with deal best to how to as opinions of spectrum The debates. popular and Holocaust deniersweretreatedaseminentscholars. Holocaust,” the of Vision Global the Review to Conference “International prophets." the and religions God, above this place and massacred were Jews that myth a invented have West] the [in “they declared: boldly he that 2005 as recently as was it all, After Holocaust. the questioning statements and Israel against aggressions verbal frequent Ahmadinejad’s Mahmoud President Iranian were (EU). Union European the in denial Holocaust against standard legal common a have to proposal German the concerning Europe in on raging was debate “bigots.” them calling deniers Holocaust against spoke denial, Holocaust condemning GA/10569 nihr o rv nr o ipoe h Holocaust.” the disprove to nor prove http://www.ipis.ir/English/meetings_roundtables_conferences.htm to “neither http://www.cnn.com/2005/WORLD/meast/12/14/iran.israel/ http://www.un.org/apps/news/story.asp?NewsID=21355&Cr=holocaust&Cr1 E aot maue ulwn Hlcs denial,” Holocust outlawing measure adopts “EU year compromise. down same watered a the as saw later many what reached represented precedence) outcome take to The legislation national denial. (allowing to responses juridical European the harmonize to proposed http://iht.com/articles/2007/04/19/news/eu.php http://news.bbc.co.uk/1/hi/world/europe/4653666.stm Centre http://www.iht.com/articles/2007/01/12/news/germany.php “Berlin seeks to bar Holocaust denial in EU,” in denial Holocaust bar to seeks “Berlin itself,” disassociates Iran consensus; by denial Holocaust condemns Assembly “UN in Quoted The Conference, in the words of Iranian Prime-Minister Manouchehr Mottaki during opening remarks, sought sought remarks, opening during Mottaki Manouchehr Prime-Minister Iranian of words the in Conference, The oi na, utd n Ann odms ooas denial,” Holocaust condemns “Annan in quoted Annan, Kofi utd n Iain edr Hlcut 'myth',” a Holocaust leader: “Iranian in Quoted , January 26, 2007, availableat 26,2007, , January n aur 20, h Uie Ntos eea Asml aotd Resolution adopted Assembly General Nations United the 2007, January In The phenomenon of Holocaust denial has retained its prominence in media, academic, prominence inmedia,academic, its denialhasretained The phenomenonofHolocaust INTRODUCTION (last accessed March 31, 2008). 31, March (lastaccessed 4 nentoa Hrl Tribune Herald International A year later he would also organize the so-called the organize also would he later year A 1 nentoa Hrl Tribune Herald International hl oton Sceay eea Kf Annan Kofi General Secretary outgoing while (last accessed March 31, 2008). March31, (last accessed ls acse Mrh 1 20) Te legislation The 2008). 31, March accessed (last (last accessed March 31,2008). (lastaccessedMarch CNN (last accessed March 16, 2007). March16, (lastaccessed B News BBC h sec cn e cesd here: accessed be can speech The , 2 rud h sm tm, heated a time, same the Around eebr 1, 05 aalbe at available 2005, 14, December, 3 (last accessed March 31, 2008). March31, (lastaccessed Present in everyone’s minds everyone’s in Present Jnay 7 20, vial at available 2007, 27, January , , January 12, 2007, available at available 2007, 12, January , Arl 9 20, vial at available 2007, 19, April , 5 hr known where N News UN 3 CEU eTD Collection of historicalinquiry). mode legitimate otherwise an of hijacking deniers’ Holocaust denote commas to in inverted (used “revisionism” http://www.assemblee-nationale.fr/12/dossiers/reconnaissance_genocide_armenien_1915_loi_2001.asp 7 6 some what of chastising consequent and criminalizing, out, singling the trigger that factors the are What all? at denial Holocaust regulate to choose countries some do Why omitted: study present the questions addresses. the are These denial? Holocaust to response its examining when faces society a choice the specific influence these in do How grounded settings. doctrinal surely and are historical considerations societal these and all policy, Finally, legal, both? the of are implications What instead? found be solution law civil a should or “revisionism,” reach to of allowed alsobe law is criminal of denial hand harsh Holocaust the should against importance: used potentially regulation of type the Moreover, being curtailed? whose are and being protected interests are choice, whose While makingthis aside? set be others should grounds what on and precedence given be should ones which rights, competing these balance to attempts In other. the on democracy and dignity, equality, to and the onehand, on to freespeech commitments: competing constitutional nexus between the at operates regulation Its difficulties. constitutional crucial presents also policy-makers, impose penaltiesandjailtimefortheoffenseofdenyingArmenianmassacre. and law criminal via this address to proposed even has France denial, Holocaust of case the in As genocide. Armenian the of expressing denial continuous government’s are Turkish the example, over concern for countries, more and More genocides. other of negation the over Holocaust concerns include to expanded has debate remove Furthermore, the discourse. public from denial to options legal of array wide a propose to failed not have regulation accessed March 31, 2008). accessed March31, Hlcut eil i ue itrhneby ih h Fec-nprd em ngtoim” s el s with as well as “negationism,” term French-inspired the with interchangeably used is denial” “Holocaust at: billisavailable Thefulltextofthe ooas denial, Holocaust e a ot motn qeto rgrigHlcut eil eilto i qie often quite is legislation denial Holocaust regarding question important most a Yet 7 eie faig h iaiain f h pbi, cdmc, and academics, public, the of imagination the flaring besides 6

(last 4 CEU eTD Collection s eetd n ht pcfc onr. hs niae t te nentoa cmuiy a community international the to indicates values of as to population, aswell the Jewish of the interests protection of This to the commitment country. specific that in rejected is Holocaust of that “revisionism” rebuff a message laws send externally, anti-negationist hand, the other denial. On clear a impose minority the for respect and inclusiveness the of that itself values majority the to signal to seen be also may laws these front, internal the on Still society. by and government the by rejected is denial Holocaust by presented attack the that community Jewish) case, this (in minority the to signal they internally, hand, one the On role. signaling dual serve a laws anti-negationist that is claim My ultimate role. instrumental) to opposed (as symbolic its and society, on impact its of law, of role the socio-legal of understandings on substantially draws therefore approach My them. reject others while laws anti-denial have countries some end, the in why, grasp accurately we can conundrum speech hate the of understandings international emergent with engagement and values, democratic to each commitment for rights, competing accounting of prioritization by self-understanding, Only historical country’s contexts. specific in regulation such the of on and appropriateness debate this in involved values constitutional multiple the on reflect to reader invite the is to primarygoal goals.My two main I pursue doing so, criticisms. In against their to attempt an in revealing more understand theinteractionofHolocaustdenialandlaw. prove will believe I jurisprudence, informative and arguments legal the analyzing subsequently research only and choice, the regulatory of Framing one as denial. question Holocaust of studies of (as tradition descriptive explanatory) linear, to largely opposed a beyond go to is intention my puzzle, choice regulatory choose former, the as situated similarly very some countries, other do why critically, Equally expression? innocent consequentially is argue I begin this endeavor by evaluating the arguments for regulation and weighing them weighing and regulation for arguments the evaluating by endeavor this begin I not to regulate denial? In presenting this presenting In denial? regulate to 5 CEU eTD Collection of the Holocaust, commonly motivated by anti-Semitic ideology. Whether written or spoken, or written ideology. Whether anti-Semitic by motivated commonly Holocaust, the of our discussion,whatisitsrelationshiptoHolocaust denial? What speech? hate by to relevant and, particularly speech mean unpleasant potentially of types from other differentiates it we do What ask: to need We broadly. more negationist phenomenon the surrounding confusion omnipresent an circumvent as well denial as Holocaust legislation, regarding clarity of lack the avoid to able be it will study the of object byfirstoutliningthecontoursof “revisionism” fromabasic,conceptualperspective.Only Holocaust tackling of difficulty the is reveal will preliminaries definitional following the D 1. field, andasketchofmymethodologicalconcernsindesigningthepresentstudy. the in literature scholarly relevant of overview an debate, this in terms key the defining with these across proceed I however, similarities analysis, jurisprudential substantive the illuminate in engaging Before approaches. to undertaking, comparative my through also, but approach, andnormativespecificitiesofeachsystem’s hope toshedmorelightonthecultural I Europe. in countries particular by evidenced as denial, Holocaust against fight legal the at look second a encourage to also is therefore, aim, My position. American the of accounts lauding, often and substantial, include to skewed is field the in literature the Nonetheless, law. case and legislation European with deals primarily thesis my since overt, less be will goal latter This perspective. American the by influenced heavily absolutism, speech free by the recognitionofguiltforhistoricalpersecutionthissameminority. to point also may it extent, lesser or greater a To all. for dignity equal and democracy strong EFINITIONS Holocaust denial refers to outright refutation, minimization, ortrivializationofaspects Holocaust denialrefersto outrightrefutation,minimization, What cannot beoverstated. such ananalysis step in the definitional The importanceof a coursedominated extricate thediscussionfrom this studyisto My secondarygoalin 6 CEU eTD Collection 13 12 11 10 9 8 or feature particular a by distinguished individuals of group a of hatred incites or promotes encourages, advocates, “expresses, which that as speech hate defines He further. categories the ruinsofconcentrationcamps),entireedificeHolocausthistoryisdemolished. in Zyklon-B for ports induction the of finding the as (such event one of evidence conclusive no is there if that, assert thus They historiography. normative disparage that to use world revisionists the of view black-or-white a to refers which orientation,” “two-valued called relocation. instead but killings, include to meant never was solution” “final the that claim deniers whereby time,” over definition fat). body human of out soap Nazi-made of myth the or died Jews million six the how as (such event the of details to regard with public broad the ignorance of the abuses which Holocaust, the of defining” under- and “over- called Mathis. be to and, theory conspiracy generous, perhapspartmisinformation.” part hatred, part is “[i]t observer, another of words the In of facts,andanti-Semitism.AmericanhistorianDeborahLipstadtexplainsitintheseterms: manipulation deceit, implies denial Holocaust or pseudo-academics, neo-Nazis enunciated by Freedom of Expression Norms,” Norms,” Freedom ofExpression Deborah Lipstadt, Deborah Andrew E. Mathis, “General Semantics and Holocaust Denial,” and HolocaustDenial,” “GeneralSemantics Andrew E.Mathis, Credence Fogo-Schensul, “More Than a River in Egypt: Holocaust Denial, the Internet, and International International and Internet, the Denial, Holocaust Egypt: in River a Than “More Fogo-Schensul, Credence Ibid. Ibid. Ibid. , pp.57-59. , pp.53-57. , pp.51-53. oiia ters Bih Prk hls ud or ietnlmn o tee difficult these of disentanglement our guide helps Parekh Bhikhu theorist Political Andrew writer by offered analysis semantic concise the is assistance further Of and that forgeries falsehoods. or testimonies coerced, contrived, and as dismissed documents are Holocaust of the confirm abundance The of happened. impression distorted really a what with conveniently listener the which leave segments, information, story critical and avoid Half-truths the deniers. with the unfamiliar are of who tactics readers confusing lies, absolute with mixed is Truth distortion. of strategy basic a enlists Holocaust the deny to attempt The 10 He identifies three typologies of Holocaust revisionist claims. The first is the so- the is first The claims. revisionist Holocaust of typologies three identifies He Denying the Holocaust: The Growing Assault on Truth andMemory AssaultonTruth TheGrowing the Holocaust: Denying 8 Gonzaga LawReview Gonzaga 12 9 Finally, Mathis’s third typology is that of the so- the of that is typology third Mathis’s Finally, 11 , Vol. 33, No. 1 (1997), pp.242. No.1 (1997), , Vol.33, The second is the so-called “exten[sion of] the of] “exten[sion so-called the is second The ETC (Jan., 2006), pp. 50-59. pp. (Jan.,2006), (Plume, 1993), p.2. (Plume,1993), 13 7 CEU eTD Collection te ae f oml oil relationships.” social normal of pale “the outside them places it and undesirable;” highly as viewed “widely qualities them ascribing by targets said stigmatizes it features; certain on based group or individual an out singles 18 17 16 15 14 an individualorgroupwhichantagonizeandsilencethetargetedaudience. against made remarks discriminatory expression: hate of characteristics main the accentuate group of kind a is libel.” (3) or environment, intimidating or face-to-face hostile a constitutes creates (1) (2) vilification, which orientation, sexual and religion, ethnicity, sex, race, as characteristics such of basis the on groups or individuals vilifies that “[s]peech as speech hate characterizes She consequences. negative its to point also but nature, discriminatory its types ofhatespeechareequallyopentoregulation. sub- these all that mean automatically not does however, definition, this Accepting speech. hate as to referred commonly expressions of array wide the subsumes it believe I inclusive, others.” of view a demeaning disapproval, or dislike, from “disrespect, it features,” whiledifferentiating set of should not be assumed in the very definition of hate speech (such as Brison’s insistence on the intimidating intimidating the on insistence Brison’s as (such speech hate created). social environment of definition very the in assumed be not should Hate Speech,” Hate hre R Lwec, I, I H Hles e Hm o Rgltn Rcs Sec o Campus,” on Speech Racist Regulating Go: Him Let Hollers He “If III, Lawrence, R. Charles mix of free-speech values, on the one hand, and dignity/personal-security concerns on the other.” onthe other.” concerns anddignity/personal-security values,ontheone hand, mix offree-speech unique a implicating each guises, many in speech…comes “[h]ate that out points accurately Delgado 778-802. 214. Legal scholar Charles Lawrence also draws a distinction between offensive speech and hate speech. He speech. hate and speech offensive fact, taste,”when,in ofadifferencein wewerespeaking isusedasif wordoffensive between writes that“[t]he distinction a draws also Lawrence Charles scholar Legal 214. “Toward a Legal Realist View of the First Amendment,” First ofthe View Legal Realist “Toward a Journal See, for example, the discussion in J. Angelo Corlett and Robert Francescotti, “Foundations of a Theory of Theory a of “Foundations Francescotti, Robert and Corlett Angelo J. in discussion the example, for See, FreeSpeech,” Defense of “TheAutonomy SusanJ.Brison, see, take, may speech hate forms of multitude the on stance similar a For Parekh (2006), p.214. Parekh (2006), for banning?” a case Isthere “Hate Speech: Bhikhu Parekh, 17 , Vol. 1990, No. 3 (Jun., 1990), p. 461 (emphasis in the original). p.461(emphasisin No. 3(Jun.,1990), , Vol.1990, Philosophy scholars such as Susan Brison define hate speech analogously, underlining hatespeechanalogously, Philosophy scholarssuchasSusanBrisondefine o hv s pisaigy erse, n ipit pn o a ag o sriue and servitude of badge a you upon imprint and repressed, see. all theworldto subservience for painstakingly so have you that your inferiority regarding lessons cultural millions of the you all in evoke physical attack, thr i a ra dfeec bten h ofniees f od ta yu ol rte not rather would you that words the of hear…and offensiveness the between difference great a is [t]here huh uh eiiin o ht sec ae o uncontested, not are speech hate of definitions such Though Wayne Law Review Law Wayne 14 e xrcts he dsicie etrs f ae peh nml ta it that namely speech, hate of features distinctive three extricates He injury nlce b wrs ht eid h wrd ht o ae ar ae for game fair are you that world the remind that words by inflicted , Vol. 48 (Fall 2002), pp. 1080-1088, arguing that a pro-regulation element pro-regulation a that arguing 1080-1088, pp. 2002), (Fall 48 Vol. , 15 hl Prk’ dfnto mgt em over- seem might definition Parekh’s While Harvard LawReview Harvard 16 Ethics Public Policy Research Public Policy , Vol. 108, No. 2 (January, 1998), p. 313. p. 1998), No. 2(January, , Vol.108, , Vol. 113, No. 3 (Jan., 2000), pp. pp. (Jan.,2000), No.3 113, , Vol. ne alia inter (Dec. 2005-Feb. 2006), p. 2006), 2005-Feb. (Dec. 18 hy nonetheless they Rcad Delgado, Richard , Ibid. ue Law Duke , p.786. 8 CEU eTD Collection 22 21 20 empirical “The Tsesis, Alexander see arguments, author’s the of version earlier Speech,” of Hate the Power on Perspective A Historical Jurisprudence: Amendment an First of shortcomings For 211. p. (2002), 19 for reasons our and consequences, immediate likely its not group, a or individual an about mattersis likelytodoso.What whenitis proscribe itbecauseoronly toleadpublicdisorder,and definehatespeechasonelikely writes: “[i]tisamistake…to in harmfulaction. itspotentialresult necessarily it dangerous,andnot speech thatmakes direct verbalattacksandepithets. of than rather ideologies racist of suppression the at aimed more seem and overbroad being argued, been has it As expression. hate discussing when mean primarily scholars numerous what outgroup.” an of members be to happen incidentally harm.” such causing of likelihood substantial a has and nationality, or group, ethnic religion, color, as speech race, their of hate because people against persecution incite to intended defines is that oratory “antisocial Tsesis Alexander Lawyer misguided. somewhat or ambiguous ec, hl ifre b te xeine f h Radn eoie ti udrtnig f ae speech hate of understanding this genocide, Rwandan the of experience 2. inChapter Seefurther discussion the ofthegroup. and dignityoftheindividual upon the emphasizes itsimpact by informed while Hence, Criminal Statute Suppressing It?,” It?,” Criminal StatuteSuppressing oe fo itrainl ua rgt tiua jrsrdne Se h Itrainl rmnl rbnl for Tribunal Criminal International the See jurisprudence. in decision tribunal Rwanda’s rights human international from comes itrcl vns uh s h Hlcut saey n te xuso o Ntv Aeias rm hi lands, their from Americans Native of expulsion the and slavery statutetoachievethis. amodel criminal heputsforth Holocaust, Inhisbook, hate shouldbebanned. expressions of the as such events historical 2008). The Courtin 2008). The no ICTR-99-52-T (also dubbed “The Media Trial”), available through available Trial”), Media “The dubbed (also ICTR-99-52-T no Clara Law Review Clara Law Asrn mhss npeieyte eaie osqecso rmtcsaeo urgltd ae speech hate unregulated of scale dramatic a on consequences negative the precisely on emphasis strong A “Attacking Desai, C. Anuj p.211. Tsesis(2002), Tsesis, Alexander 19 21 of itself, as well as in its other consequences, can be an irreversible harm. harm. anirreversible consequences, canbe initsother of itself,aswell members and in group membership group other the or identity ethnic of their of basis the eyes on persons of the denigration in only not The human. status less than them as treat and who perceive others of lesser eyes the in also themselves but a creates It the in attack. those of under dignity the group destroys that aggression of form discriminatory a is speech Hate Other writers on the topic however, put forth definitions of hate speech that are either are that speech hate of definitions forth put however, topic the on writers Other To go back to Parekh, he interestingly emphasizes that it is the very content of hate of content very the is it that emphasizes interestingly he Parekh, to back go To sss lo xlds rm i dfnto “ebl tak aant niiul who individuals against attacks “verbal definition his from excludes also Tsesis such definitions (particularly when used in a legal sense, as Tsesis seems to do) risk todo) Tsesis seems as legal sense, a whenusedin (particularly suchdefinitions , Vol. 40 (2000), pp. 729-786. Tsesis’s main claim is that because of their direct causal linkto direct of their that because claim is main Tsesis’s pp.729-786. (2000), 40 , Vol. Nahimana Destructive Messages: How Hate Speech Paves the Way for Harmful Social Movements Social Harmful for Way the Paves Speech Hate How Messages: Destructive rsctrv enBsoBrygia asnNeeadFriadNahimana Ferdinand and Ngeze Hassan Barayagwiza, Jean-Bosco v. Prosecutor Brandenburg Brandenburg defined hate speech thus: definedhatespeech Federal Communications LawJournal Federal Communications with History: Does the Long-Term Harm of Biased Speech Justify a Justify Speech Biased of Harm Long-Term the Does History: with 20 In other words, he excludes much of much excludes he words, other In www.ictr.org , Vol. 55, No. 2 (2003), pp.353-394. No. 2(2003), , Vol.55, its content (last accessed March 31, March accessed (last , what it says , whatit , Case , 22 Santa Santa He 9 CEU eTD Collection in witchcraft and a flat earth.” flat a and witchcraft in believers with up put we that way same the in society free a in tolerated be should and other, any like opinion an is it untrue, “[a]lthough writes: He speech. hate of form a automatically wider the on impact divisive a community. ThispointisfurtherelaborateduponinmydiscussionChapterOne. as well as audience, target the and silencing on its effects incorporates exclusionary and still, further goes speech hate in danger potential the 27 26 25 24 23 such for liability underlying the and accused the of statements the of veracity the denial, law. the and truth, language, of topic the on written been has of products innocent the hardly are law the misinformation. by of type covered the are revisionism, that Holocaust claims of root negationist the at be can ignorance that true is certainly it While Holocaust. the denying at attempts in implicit anti-Semitism of form some of anti-Semitism. and revisionists between Holocaust aggressive stanceandhave,fromthebeginning,indicatedclearunison speech.” hate of features three the all has then It on. so and them, with possible is life shared no that presence, hostile a represent way, their get to means any to resort will trusted, be cannot Jews the that saying of way coded a be also could “it writes: and minorities on attack veiled a be might denial that admits himself Parekh contested. hotly is misguided merely and harmless as revisionism latter.” the to tied be not need it banning 1995). 71, p. 179, p. 293, and p. 384 and Brian Brix, andBrianBrix, andp.384 179,p.293, 71, p. See, for instance Glanville L. Williams, “Language and the Law,” the and “Language Williams, L. Glanville instance for See, Holocaustdenial. bylawof theregulation against Lipstadt is,however, Lipstadt(1993). p.215. Parekh(2006), Ibid. Ibid. (emphasis added). (emphasis added). prtn bsd n hs eiiin Prk los t ooas dna a not as denial Holocaust at looks Parekh definition, this on based Operating One final remark on the importance of language for the purposes of this thesis: Much thesis: this of purposes the for language of importance the on remark final One 25 Shlr uh s itra eoa Lptd ae ae a more a taken have Lipstadt Deborah historian as such Scholars 24 26 As will be detailed below, this understanding of Holocaust of understanding this below, detailed be will As Throughout my thesis, I too will operate on the assumption the on operate will too I thesis, my Throughout Law, Language, and Legal Determinacy Legal and Law, Language, 23 While I agree with Parekh on this point, I believe I point, this on Parekh with agree I While Law Quarterly Review Quarterly Law 27 n h cs o Holocaust of case the In (Oxford University Press, (OxfordUniversity , Vol. 61 (1945), p. (1945), 61 Vol. , 10 CEU eTD Collection ors a ad hud ly h rl o abtr o te rt i te ae f Holocaust query ofthepresentthesis. of case the in truth underlying an the constitutes others, among That, of straightforward. as longer no arbiters is “revisionism” of role the play should and can courts 29 28 thereforebelimitingandunrealistic,given speech. Examiningdeniallawsinavacuumwould read ascomplementary. be to are and another one as of off build literature and interact they of Rather, another. one strands from divorced two these perceive not should reader the Nevertheless, chapter. next the in theoretical discussion the in evident more become even speech will hate on works of of gamut richness comparative The scarcity. relative the its indicating while literature, denial Holocaust with reader the familiarize to order in so do I speech. hate and denial with interaction scholarly of lines main the sketch I follows, what In abundant. is regulation its in law the played by role and the addressing it, means of and practical appropriate philosophical L 2. complex. exceedingly history human in event gruesome this and law between being its of inability interaction make the language inherent their technical and by legalproceedings appropriately captured of sort a and Holocaust the of nature very the Moreover, liability.” substantive to rise gives words spoken or written of falsity factual the which in Schauer, Frederick areas scholar with dealing when statements of truth factual legal the determine must necessity of “[c]ourts of words the In importance. utmost of are statements Holocaust examples.” Frederick F. Schauer, “Language, Truth, and the First Amendment: An Essay in Memory of Harry Harry Canter,” of Memory in Essay An Amendment: First the and Truth, “Language, Schauer, F. Frederick examples.” Judgment and the Holocaust,” Judgment and e otne: Fad dci, irpeetto, n otiig oe b fle rtne ae obvious are Douglas, Lawrence in discussion pretenses See false by money obtaining and misrepresentation, deceit, “Fraud, continues: He ITERATURE Virginia Law Review Virginia Law regulate hate used to laws category of broader a part of is legislation Holocaust denial the instantiations), its of one as denial Holocaust (and speech hate on literature The (Yale University Press, 2001). For a shorter account by the same author, see Douglas, “Language, Douglas, see author, same the by account shorter a For 2001). Press, University (Yale R EVIEW , Vol. 64, No. 2 (Mar., 1978),p.276. No.2 (Mar., , Vol.64, Law and History Review Law and The Memory of Judgment: Making Law and History in the Trials of the of Trials the in History and Law Making Judgment: of Memory The , Vol. 19, No. 1 (Spring, 2001), pp.177-182. 2001), No.1 (Spring, , Vol.19, 29 Whether the Whether 11 28 CEU eTD Collection 33 32 31 30 of speech regulation of the desirability on written have traditions and European the American equality.” and commitments—liberty transcendent between choose to system legal the “forces speech hate of regulation that writes, Fiss Owen scholar legal as or, values, competing between balance fine a for be should quest the that agreed generally legislation, andpoliticalprocessessocietalpressures. balance” a “striking involve unavoidably study this in countries the in work at processes The important. is context legal and socio-political broader much a with interaction its and regulation speech of complexity the reminder of This and party political the of private property,andmassmedia. electoral systems,thepowerofcourts,rulesregarding nature the encompass to extends argues, he framework, The onspeech. or anti-Semiticspeechandabstractdoctrinalofgovernment-imposedlimits racist concerning law the pornography, libel, of law the include merely not does framework speech free the writes, he Thus, society. liberal a of in have norms speech level free that complexity the describes Altman Andrew of professor freedom philosophy on generally, Writing more this. expression note to failed not have Scholars denial. Holocaust important.” against are laws complex rather the of the fight employed in all been and have laws can and defamation hate speech, discrimination, terms precise the so and se per events Holocaust the than widely more range sometimes fact in laws denial” “Holocaust as to generically referred are “What implementation: of record and formulation tremendously in alsovary oflegislation.They other types of various and buildoff practice theyinteract that in of “a conflict “a of Sandra Coliver ed., Coliver Sandra human rightslaw,” State Power Paul 19, 1992). Owen M. Fiss, M. Owen regulation, speech hate cross-country on works comparative useful most the of one from taken is phrase The in Paradox,” Radical The Expression: and “Equality Altman, Andrew international and national with consistency laws: speech “Hate O’Donnell, Therese and McGoldrick Dominic et al. h qeto aie a t wy ae peh s o e euae t bgn ih I is It with. begin to regulated be to is speech hate why to as arises question The (Cambridge University Press, 2004), pp. 3-4. pp. Press, 2004), (CambridgeUniversity (Westview Press, 1996), p. 120 (emphasisadded). p.120 1996), (WestviewPress, within The Irony of Free Speech of Free Irony The Legal Studies Striking a Balance: Hate Speech, Freedom of Expression and Non-discrimination and Expression of Freedom Speech, Hate Balance: a Striking liberty.” Owen M. Fiss, M. Owen liberty.” , Vol. 18 (1998), p. 457. (1998), , Vol.18 (Harvard University Press, 1998), p. 13. Elsewhere, Fiss writes also writes Fiss Elsewhere, 13. p. 1998), Press, University (Harvard Liberalism Divided: Freedom of Speech and the Many Uses of Uses Many the and Speech of Freedom Divided: Liberalism 32 amidst competing values, different types of types different values, competing amidst Freedom of Speech of Freedom 33 Various authors in both in authors Various , ed. Ellen Frankel Ellen ed. , 30 (Article Anti- 12 31 CEU eTD Collection 38 37 36 Press,2001). (New YorkUniversity Stefanic, Jean and Delgado Richard also See 1993). Press, (Westview 35 34 quite make will especially One Chapter as critics, its without not is approach The claims. negationist by attach under community Jewish the for security of sense and integration equal for conditions and the well-being concern for into this translates denial, of Holocaust the case it.” afford to able least those on imposed tax psychic a is it Rather the large. at by community borne not is speech hate of “[t]olerance argues, Matsuda as for, crucial, is speech prohibited.” be to able be should abuse and vilification epithets, sexual and racial mandated, is equality “[w]herever words, In MacKinnon’s society. in groups advantaged least the protect to order in particularly dignity, equal and equality of considerations against norm this weigh should we assert, they society, in speech free of value onthe solely of focusing Instead our interpretivelens. shift to need on the have insisted Delgado Richard and Matsuda J. Mari as such theorists race critical Notably, speech. hate of regulation the for advocating constitutional competing these of study present considerations. the for implications the with detail greater dealsin thatChapterOnebelow while remindingthereader literature inwhatfollows, hatred. racial or ethnic to incites it when h asne f ufcet osdrtos f qaiy n sy “h Frt mnmn hs rw a i a if as grown has Amendment no had equality First to commitment “the a if as says and equality for thelawofspeech.” implications to and commitment a equality of part no of were speech to considerations commitment sufficient of absence the Sheobserves generally. more speech doctrine freedom of American the discusses MacKinnonalso pornography, Matsuda MacKinnon, A. Catharine (1992). seeColiver Foracompilation, Ibid Matsuda Mari J. ., p.108. ifrn srns f ieaue rn frh ruet roe i eult when equality in rooted arguments forth bring literature of strands Different et al. (1993), p.18. (1993), et al. , Words That Wound: Critical Race Theory, Assaultive Speech and the First Amendment the FirstAmendment and Speech Assaultive Theory, Wound: CriticalRace Words That ny Words Only Ibid. 35 and feminist legal scholars such as Catharine MacKinnon Catharine as such scholars legal feminist and , p.71. Hrad nvriy rs, 93. huh rtn piaiy on primarily writing Though 1993). Press, University (Harvard 34 otie h mi epnns f hs tig of string this of exponents main the outline I 37 This focus on the victim of hateful of victim the on focus This Critical Race Theory: An Introduction An Theory: Race Critical 38 In 13 36 CEU eTD Collection of Speech and Equality?,” and Speech of Randolph L. Braham ed., Braham L. Randolph ecie a cavnsi epeso, fe te rnlto o a “niSmts without “anti-Semitism Jews” an of translation the often expression, chauvinistic as perceived also is It non-discrimination. and tolerance of values the challenging democracy, to affront 44 43 42 41 Press,1999). University (Pennsylvania State 40 39 attributedtothese harms.” perceived harmsinvolved,andontheimportance the on promoted, be to sought values the “on Rosenfeld, Michel scholar legal of words the in depend, will outcome policy the otherwise, or democracy dignity, equality, it be precedence, omnipresent. seems speech hate of types different its and anti-Semitism of form new a sphere. political the into ramifications of rise the multiple over with concern unnoticed, expressing gone observers not have extremism political and neo-Nazism between Europe. years,particularly in recent in xenophobic activity surge in of the context the censorship, muzzling oftheveryvoicestheyseektoprotect,anddisputetheirempiricalsuccess. bring will hate against laws that fear expressed have Commenters clear. Martin L. Davies and Claus-Christian W. Szejnmann eds., eds., Szejnmann W. Claus-Christian and Davies L. Martin “The Phenomenology of Speech and Harm,” andHarm,” Speech of “The Phenomenology n Esen uoe se arn P Ramet, P. Sabrina see Europe, Eastern and rnrih Deutschland Frankreich, Chapter 1.2. below. Chapter 1.2. Anti-Semitism Right Activists in Europe: Through the Magnifying Glass theMagnifying Through inEurope: Right Activists Sec, eaiu ad h Itreedne f at n Vle” n d. ai Keze ad Francine and Kretzmer David eds. in Value,” and Fact of Interdependence Kershman Hazan, the and Behaviour “Speech, 43-61. Perspectives 1971). Review (Columbia University Press,1994). (Columbia University ihl oefl, Ht Sec i Cntttoa Jrsrdne A oprtv Analysis,” Comparative A Jurisprudence: Constitutional in Speech “Hate Rosenfeld, Michel Schauer, Frederick see speech, hate from result may that harm of nature the of analysis philosophical a For Lendvai, Paul from term this borrow I See, see, works, general For See, 42 , Vol. 24, No. 4(2003), p. 1528. No. , Vol.24, inter alia inter ne alia inter oil cec suis ae lo icse ht sec ad ooas dna i the in denial Holocaust and speech hate discussed also have studies science Social To go back to the more normative literature, a focus on the actual harm produced by produced harm actual the on focus a literature, normative more the to back go To intopoliticalgain. Plrv Mciln 20) p. 6-7. gi, o prpcie o Esen uoe see Europe, Eastern on perspectives for Again, 261-271. pp. 2007), Macmillan, (Palgrave Jrslm etr o Pbi Afis 20) n Wlgn Bn, At-eiim oa, in Today,” “Anti-Semitism Benz, Wolfgang and 2003) Affairs, Public for Center (Jerusalem , Nadine Strossen, “Hate Speech and Pornography: Do We Have to Choose Between Freedom Freedom Between Choose to Have We Do Pornography: and Speech “Hate Strossen, Nadine , Mnrd Gerstenfeld, Manfred , Freedom of Speech and Incitement Against Democracy IncitementAgainst and Speech Freedom of Wsdushr elg 19) n Br Kadras n Nna Mayer, Nonna and Klandermans Bert and 1998) Verlag, (Westdeutscher Anti-Semitism and the Treatment of the Holocaust in Postcommunist Eastern Europe Eastern Postcommunist in Holocaust the of Treatment the and Anti-Semitism Case Western Reserve Law Review Law Reserve Western Case ne alia inter Mcal Minkenberg, Michael , Europe’s Crumbling Myths: The Post-Holocaust Origins of Today’s Today’s of Origins Post-Holocaust The Myths: Crumbling Europe’s Anti-Semitism without Jews: Communist Eastern Europe Eastern Communist Jews: without Anti-Semitism Ethics 41 h Rdcl ih i Cnrl n Esen uoe ic 1989 since Europe Eastern and Central in Right Radical The In this context, then, Holocaust denial is seen as an as seen is denial Holocaust then, context, this In , Vol. 103, No. 4 (Jul., 1993), pp. 635-653. See also Schauer, Seealso pp.635-653. 1993), 4(Jul., No. , Vol.103, (Routledge, 2006). For an analysis focusing on Central an analysisfocusingonCentral For 2006). (Routledge, 43 Whichever constitutional norm is given is norm constitutional Whichever , Vol. 46 (1996), pp. 449-478 and discussion in discussion and 449-478 pp. (1996), 46 Vol. , How the Holocaust Looks Now: International International Now: Looks Holocaust the How i nu rdkl Rct i Vrlih USA, Vergleich: im Rechte radikale neue Die (Kluwer Law International, 2000), pp. 2000), LawInternational, (Kluwer 44 Naturally,each 40 adz Law Cardozo (Doubleday, The links The 39 Extreme 14 , CEU eTD Collection approach to combating Holocaust denial arguments, denialarguments, tocombating Holocaust approach 48 47 46 45 generally involved, of evidentiary task parties difficult the Irving, and David tactics of the itself, the trial focused around very the by produced often works, These Kingdom. United the in trial Irving the after occurred matter the in interest in resurgence recent more A them. dismiss to arguments of range watertight a reader the giving by conclude voices, fringe as them dismissing outright not when and, influence, their assess deniers, the identify first they Thus, manner. linear a term would I what in proceed denial Holocaust tackling at attempts steps. of sequence this with line in extent large a to analysis her in proceeded has Lipstadt, Deborah historian inquiry, academic of topic a as map” the on denial Holocaust claims. deniers’ of refutations point-by-point providing on phenomenon, negationist the of history and origins the describing on focuses often It descriptive. be to tends itself denial indicative societieshavechosentofillthatspaceisultimately theobjectofthisstudy. several How up.” opens regulation society— for democratic space equality—doctrinal and of free right a the particularly, in cherished deeply values other of heart the at “speech” strike of forms these when speaking, “[c]onstitutionally asserted, professor law Mahoney as Kathleen that, is certain is what Yet individual. is respect this in choice nation’s their favor by providing them with publicity and the semblance of legitimacy. oflegitimacy. andthesemblance providingthemwithpublicity their favorby Deleersnijder, Henri and 2000) Press, California of (University It? Say They Do Ideologies Hlcut eil n te is Aedet Te us fr rt i a re Society,” Free a in Truth for Quest The Amendment: First the and Denial “Holocaust Review 1986); Pierre Vidal-Naquet, Pierre 1986); Denial from WesttoEast,” Denial from lrfl Fudto, 90; on . Zimmerman, C. John 1990); Foundation, Klarsfeld rs, 92;Kneh . Stern, S. Kenneth 1992); Press, mémoire: la Shoah aupérildesnégationnistes laShoah mémoire: Lipstadt (1993). Lipstadt, however, strongly opposes debating with the deniers, arguing that it only works in works only it that arguing deniers, the with debating opposes strongly however, Lipstadt, (1993). Lipstadt ed., Shapiro Shelly Why and Happened Never Holocaust the Says Who History: Denying Grobman. Alex and Shermer Michael Gill Seidel, Gill , Vol. 6, No. 1 (1997), pp. 35-86; Michael Shafir, “ Michael Shafir, 35-86; pp. (1997), 1 No. 6, , Vol. n otat o h bodr ae peh ieaue mc o te rtn o Holocaust on writing the of much literature, speech hate broader the to contrast In (University Press of America, 2000). See also the documentary-style film, presenting a pedagogical pedagogical a presenting film, documentary-style the also See 2000). America, of Press (University The Holocaust Denial: Antisemitism, Racism, and the New Right New the and Racism, Antisemitism, Denial: Holocaust The Truth Prevails: Demolishing Holocaust Denial: The End of the Leuchter Report Leuchter the of End The Denial: Holocaust Demolishing Prevails: Truth Studia Hebraica Studia Assassins of Memory, Essays on the Denial of the Holocaust the of Denial the on Essays Memory, of Assassins 45 ooas Denial Holocaust on the personalities and personal histories of the deniers, the of histories personal and personalities the on , Vol. 3 (2003), pp.23-82. , Vol.3(2003), Eiin ao:Eiin saed iets 2001). Libertés, EditionsEspacede (Editions Labor: Autopsie d’un mensonge Autopsie d’un Aeia Jws Cmite 19) Kneh Lasson, Kenneth 1993); Committee, Jewish (American ooas Dna: eorpis Tsiois and Testimonies Demographics, Denial: Holocaust Ex Occidente Obscuritas Occidente Ex 47 ned te uhr h “put who author the Indeed, (Lili Productions, 2000). (LiliProductions,2000). Byn h ae Collective, Pale the (Beyond : The Diffusion of Holocaust of Diffusion The : e péaer d la de prédateurs Les (Columbia University University (Columbia ere ao Law Mason George 48 These early These (Beate 46 15 or CEU eTD Collection http://www.jpr.co.uk/Reports/CS_Reports/no_3_2000/index.htm n dgiy fr ntne te d s i aayig mret uipuec ad o i the in not and jurisprudence emergent analyzing in so do they instance, for dignity, and equality versus speech of concerns address do they that extent the To (Shafir). motivations their and actors political the and (Kahn) discussion law criminal the with concerned more are they Instead, implicated. values constitutional the of delimitation clear a on grounded not is approach their all, of First above. remarks introductory the in outlined concerns key the of some address to fail they Nevertheless, praiseworthy. are regulation anti-negationist of specific of enforcement the impact and bases legal the both studying and to commitments parallel Their legislation. application, text, the of analyses academic of examples worthy Shafir Michael scientist political and Europe otCmuit atr Erp, i d a Stone, Dan ed. in Europe,” Eastern Post-Communist 52 51 50 Press,2002). (Indiana University 49 denial. Holocaust against fight the in legislation will they reason, inform myanalysistoonlyalimitedextent. that For occurrence. its most thwarting of and, means denial legal the Holocaust of of here, operationcrucially subtle more the of knowledge our expand to setting. courtroom the in Holocaust the proving Law “The Legal Fight Against Anti-Semitism: Survey of Developments in 1993,” 1993,” in Developments of Survey Anti-Semitism: Against Fight Legal “The on a similar topic but drawing substantially on Shafir is Florin is Shafir on substantially drawing but topic similar a on and the David Irving Trial Irving David the and Holocaust Denial, and the Development of Hate Speech Law in the United States and Germany,” Germany,” and States United the in Law Speech Hate of Development the and Denial, Holocaust ucwt drn te ra, n oet a vn Pelt, van Jan Robert in trial, the during Auschwitz discussing the German, Canadian and French approaches. For an earlier version of his arguments, see Kahn, see Germany,” arguments, and States United his the in of Revisionism Holocaust version of Censorship earlier “Informal an For approaches. French and Canadian German, the discussing Civil Rights LawJournal Civil Rights Post-Communist East Central Europe Central East Post-Communist aye, Hlcut eil as n Ohr eilto Ciiaiig rmto o Nzs, Yd Vashem Yad Nazism,” of Promotion Criminalizing Studies(2006). forHolocaust International Institute Legislation Other and Laws Denial “Holocaust Bazyler, account from the defense’s leading expert witness, Richard J. Evans, J. Richard witness, expert leading defense’s the from account ua Rights Human Detroit Mercy Law Review Detroit MercyLaw din Europa Centrala Europa din 2006), pp. 440-468. 2006), Michael Shafir, Michael Roth, J. seeStephen Holocaustdenial, jurisprudenceon andsome oflegislation mostly descriptivelistings For Lipstadt, Deborah oet . Kahn, A. Robert oe sfl r rltvl rcn atmt a cmaaiey sesn te s of use the assessing comparatively at attempts recent relatively are useful More in , Vol. 25 (1995); Institute for Jewish Policy Research, “Combating Holocaust Denial Through Through Denial Holocaust “Combating Research, Policy Jewish for Institute (1995); 25 Vol. , the Între negare si trivializare prin compara prin trivializare si negare Între History on Trial: My Day in Court with David Irving David with Court in Day My Trial: on History ş ooas Dna ad h Lw A oprtv Study Comparative A Law: the and Denial Holocaust e Est de i United , Vol. 9, No. 1 (1998), pp. 125-149. For an updated version, see Kahn, “Cross-Burning, “Cross-Burning, seeKahn, version, an updated 125-149. For pp. (1998), No.1 , Vol.9, , Vol. 83 (Spring, 2006), pp. 163-194. pp. 83(Spring,2006), , Vol. (Basic Books, 2002) and that of Robert Jan van Pelt, author of an expert report on report expert an of author Pelt, van Jan Robert of that and 2002) Books, (Basic ( ewe Dna ad CmaaieTiilzto: HlcutNgtoim in Negationism Holocaust Trivialization:’ ‘Comparative and Denial Between Kingdom,” Kingdom,” ) (Polirom, 2002), discussing Romania, Slovakia, and Hungary. A work A Hungary. and Slovakia, Romania, discussing 2002), (Polirom, ) JPR h Cs fr ucwt: vdne rm h Ivn Trial Irving the from Evidence Auschwitz: for Case The itrorpy f h Holocaust the of Historiography 52 49 50 n eta ad atr Erp ae both are Europe Eastern and Central on Report Valuable as these works are, they do little do they are, works these as Valuable ţ Legal scholar Robert Kahn Robert scholar Legal ie. Negarea Holocaustului în Holocaustului Negarea ie. Lobonţ, “Antisemitism and Holocaust Denial in Denial Holocaust and “Antisemitism Lobonţ, (last accessed March 31, 2008); and Michael J. J. and Michael 2008); 31, March accessed (last No. Lying About Hitler: History, Holocaust, Holocaust, History, Hitler: About Lying (Harper Collins, 2005). See also the also See 2005). Collins, (Harper Supplement to Israel Yearbook on Yearbook Israel to Supplement 3 (Palgrave-Macmillan, 2004), 2004), (Palgrave-Macmillan, (2000), (2000), George Mason University University Mason George Plrv Macmillan, (Palgrave ţă rile postcomuniste postcomuniste rile 51 available on Western on University of University 16 at CEU eTD Collection 55 Vermont LawReview 54 53 Internet as (such scholarship legal of strands time, same politics, the At detail. much memory in covered be as subjects such to study present the these, of object the from removed far Of too are psychology and postmodernism, disciplines. of myriad a from interest spurred have to enough challenging and multi-faceted is itself topic the As above, mentioned thesis. present the in focus main my constitute not will which denial, Holocaust with dealing also literature, the regards It order. in is caution of note a denial, Holocaust on works especially sensitivelawoncontroversialissues,playsinsociety. history, official for acceptance forced creating at attempt an as laws same the to pointed have Others laws. such for justifications doctrinal subtle sanctions,”more the into criminal look to of attempting even imposition without through censorship state of step “radical a as laws anti-negationist brand to themselves limited thus have the observers Some of involved. many nuances miss to seems perspective, American-inspired obviously an from topic the embark ontheregulatoryroutewhileothershavenot. to chosen have countries some why to as explanation informed an of sense the in little offer works these least, Not generalized. be may conclusions their which to degree to the constrain bound are legislation denial Holocaust with experiences other all, at if limitedly, only addressing while Europe, Western or Eastern of countries some on focus only that analyses themselves, of and in instructive While studies. case of choice restricted the to due limited inherently are studies their Furthermore, discussion. theoretical explicatory an of context from the Perspective of U.S. Constitutional Experience,” Experience,” Constitutional U.S. of Perspective from the 692. I address precisely this issue in Chapter 1.6. below. Chapter1.6. precisely thisissuein Iaddress Memory,” and Law Between Dialogue Difficult The Negationism: of Punishment “The Fronza, Emanuela Laws Anti-Negationist European on Reflections Crime: a Denial” “Holocaust “Making Teachout, R. Peter Having briefly illustrated some of the common themes and approaches in the main the in approaches and themes common the of some illustrated briefly Having addressing when particularly denial, Holocaust with dealing scholarship legal Some 54 hl fiig o ae no con te ul aedsoe f oe ta te law, the that roles of kaleidoscope full the account into take to failing while , Vol. 30 (Spring, 2006), pp.609-626. 2006), (Spring, , Vol.30 Vermont Law Review Vermont 55 , Vol. 30 (Spring, 2006), pp. 655- (Spring, 2006), 30 , Vol. 17 53 CEU eTD Collection a nation’s collective memory of state-sponsored atrocities). state-sponsored memoryof a nation’scollective 59 58 Journal Law Indiana 57 56 Holocaust legitimizing intrinsically as history, of reading subjective the for call a and deconstruction on emphasis its with scholarship, of strand this understanding against argued discourse. legal of nature essentializing the as well as projections, historical our of bias the out point to served often has It Holocaust. the with engagement our concerning myths past debunking in used been memory.” of “abusers as seen are defendants the and itself of trials writer, another and of Holocaust” the rather than Holocaust, of the reflection law, the “about are more words Holocaust deniers the the In memory,” massacre.” “public administrative of of intersection “remembrance the at denial Holocaust understand Osiel Mark scholars’ legal of those as such Works past. its with terms to come to atrocity from recovering community a by taken steps of number a in one as appear may legislation anti-denial angle, this from Viewed denial. Holocaust of question them whererelevant. to back refer only of will and here focus fields these narrower in works main a the of for some to need point I analysis. the to due and space great adequate in of into lack for delved both be minutiae, not likewise will freedom) academic or regulation speech hate relationship with official memory ofNaziaggression). with officialmemory relationship and Law’s Problems with the Past,” withthe and Law’sProblems version, see Osiel, “Ever Again: Legal Remembrance of Administrative Massacre,” Massacre,” Administrative of Remembrance Legal Again: “Ever Osiel, see version, Law Review Law and Literature See, Theories,” Emerging Trials Recent Law: The and History “Holocaust Ranki, Vera Proust,” Marcel and Individual, The State, The Memory: Public of Theory a of Search “In Havel, F. Brian Mark J. Osiel, J. Mark inter alia tde i hw oite fr cletv rmmrne r itiscly id o the to tied intrinsically are remembrance collective form societies how in Studies , Vol. 144 (1996), pp. 463-707 (criticizing the use of criminal prosecutions in an effort to influence to effort an in prosecutions criminal of use the (criticizing 463-707 pp. (1996), 144 Vol. , , Vol. 9 (1997), pp. 26-27. (1997), pp. , Vol.9 , Lawrence McNamara, “History, Memory, and Judgment: Holocaust Denial, The History Wars, TheHistory Denial, Holocaust andJudgment: “History, Memory, , LawrenceMcNamara, Mass Atrocity, Collective Memory, and the Law the and Memory, Collective Atrocity, Mass , Vol. 80 (2005), pp. 605-726 (with an interesting discussion of Austria’s complicated complicated Austria’s of discussion interesting an (with 605-726 pp. (2005), 80 Vol. , 59 oe uhr wiig n h psmdrit rdto hv also have tradition postmodernist the in writing authors Some Sydney LawReview Sydney , Vol. 26 (2004), pp. 353-394. (2004), , Vol.26 (Transaction Publishers, 1997). For an earlier an For 1997). Publishers, (Transaction 58 Postmodernist theory has also has theory Postmodernist 56 and Brian Havel Brian and University of Pennsylvania Pennsylvania of University Cardozo Studies in Law in Studies Cardozo 57 help us help 18 CEU eTD Collection 65 64 Policy and Law Transnational of Journal Review Law Technology and Telecommunications Michigan 63 62 61 60 regulating of choice controversial Holocaust denial. the surrounding arguments and in interest of wealth generally. more universities in regulation the and “revisionism” Holocaust of studies academia. of field the been countries. has between growing standard speech Similarly anti-hate international an on consensus of lack the acknowledging while world, virtual the as elusive and unpredictable as medium a regulate to years. recent to revealthemotivationsofdeniers denial. egr Lecture, Seegers euain f isMtvtd peh n Smoi Epeso o te Internet,” American the & on French Expression of Symbolic Foundations and Ideological Speech and Bias-Motivated Historical of The Regimes: Regulation Speech Free Old Medium, Speech” and the Concept of Academic Intellectual Freedom,” Intellectual Academic of Concept the and Speech” Propaganda Legislation,” Propaganda Legislation,” Scholars,” andEvenbyKnown orBigots, Non-Extremists Genocides by Implications of Protecting Internet Hate Speech under the First Amendment,” First the under Speech Hate Internet Protecting of Implications Policy “Hate Speech Online: Restricted or Protected? Comparison of Regulations in the United States and Germany,” and States United the in Regulations of Comparison Protected? or Restricted Online: Speech “Hate Fish’s arguments, see Richard H. Weisberg, “Fish Takes the Bait: Holocaust Denial and Post-Modernist Post-Modernist and Denial Holocaust Bait: the Takes “Fish Weisberg, Theory,” H. Richard see arguments, Fish’s Review Journal International and Comparative LawReview andComparative International Problems Vol. 75 (2002), pp. 1493-1528; Matthew Fagin, “Regulating Speech Across Borders: Technology vs. Values,” vs. Technology Borders: Across Speech “Regulating Fagin, Matthew 1493-1528; pp. (2002), 75 Vol. Rodney A. Smolla, “Academic Freedom, Hate Speech, and the Idea of a University,” a of Idea the and Speech, Hate Freedom, “Academic A. Smolla, Rodney Context,” of Question A Internet: the on Speech “Hate Gosnell, Chris (1997); Fogo-Schensul Anti-Hate DebateConcerning Responsestothe TargetGroup “NeverAgain: Evelyn Kallen, See,forexample, Other or Holocaust the of Denials of Satisfaction Psychological “The Charny, W. Israel instance, for See, RobertEaglestone, Geri J. Yonover, “Anti-Semitism and Holocaust Denial in the Academy: A Tort Remedy,” Tort A Academy: the in Denial Holocaust and “Anti-Semitism Yonover, J. Geri , Vol. 7 (1995), pp.41-93. , Vol.7 , Vol. 101, No. 1 (1996), pp. 71-94 and Stanley Fish, “Holocaust Denial and Academic Freedom,” Freedom,” Academic and Denial “Holocaust Fish, Stanley and 71-94 pp. (1996), 1 No. 101, Vol. , , Vol. 23 (1998), pp. 371-438; Peter J. Breckheimer II, “A Haven for Hate: The Foreign and Domestic and Foreign The Hate: for Haven “A II, Breckheimer J. Peter 371-438; pp. (1998), 23 Vol. , 60 h ltrtr o Hlcut eil n te nent a be iceil poii in prolific incredibly been has Internet the and denial Holocaust on literature The , Vol. 53, No. 3 (Summer, 1990), pp. 195-225 and Fletcher N. Baldwin, Jr., “The Academies, “Hate Academies, “The Jr., Baldwin, N. Fletcher and 195-225 pp. 1990), (Summer, 3 No. 53, Vol. , Literature Law and Psychology, too, has been used in the study of the negationist phenomenon, whether phenomenon, negationist of the the study in used has been too, Psychology, 64 hs irr ad nescs ih h rc ltrtr itrse i ht speech hate in interested literature rich the with intersects and mirrors This 63 It generally emphasizes the difficult challenges faced by the law in attempting in law the by faced challenges difficult the emphasizes generally It aprio nvriy a Review Law University Valparaiso Postmodernism and Holocaust denial andHolocaust Postmodernism Windsor Yearbook of Access toJustice of Access Windsor Yearbook , Vol. 14, No. 1 (Spring, 2002), pp.131-141. 2002), No.1 (Spring, , Vol.14, 61 Vl 1, o 2 Srn, 03, p 2325 Lob Eo “New Eko, Lyombe 253-285; pp. 2003), (Spring, 2 No. 12, Vol. , , Vol. 28 (Winter, 2006), pp.69-127. 2006), (Winter, , Vol.28 ortheresponsesintheirtargets. 65 hs ad te wrs ev t ilsrt the illustrate to serve works other and These Vl 3 (01, p 4954 Fr ciia raig of reading critical a For 499-524. pp. (2001), 35 Vol. , (Totem Books, 2001). (TotemBooks, , Vol. 9 (2003), pp. 395-455; Yulia A. Timofeeva, Timofeeva, A. Yulia 395-455; pp. (2003), 9 Vol. , University of Florida Journal of Law and Public and Law of Journal Florida of University , Vol. 11 (1991), pp. 46-73. (1991), , Vol.11 IDEA , Vol. 6, No. 1 (Jul., 2001). No.1(Jul.,2001). , Vol.6, Southern California Law Review Law California Southern 62 ooa f o Angeles Los of Loyola Law and Contemporary Contemporary and Law Dickinson Law Law Dickinson Queen’s Law Law Queen’s 19 , CEU eTD Collection Crel nvriy rs, 97, . 4 n, eeal o te s o cs suis n oil cec research science social in studies case of 67 use the on generally 2,pp.49-88. design, Chapter and, 84 p. 1997), Press, University (Cornell 66 other in problematic in been have relevant may become which aspects will doctrinal This certain how (EU). understanding Union European the of part being (Switzerland) one except all and Europe of Council the in membership enjoying all with European identity, their is element unifying first The study. cross-cultural cross-continental, a to relevant them making characteristics exhibit They randomly. chosen been not have countries The Hungary. and Slovakia, Romania, to Switzerland, and Austria, Germany, to Luxembourg, and Spain, Belgium, France, from ranging countries from observations on rely I endeavor, this In cases. regulation morebroadly. negationist understanding toward model German the on reliance our question us have should That countries. other from apart it set that doctrine legal endogenous and history national of elements unique combines legislation of type this with experience Germany’s seen, be will possible,” As assumption. false as a is It reliable. cases but feasible, only many not seem generalizations making as in found those to akin are that possible as characteristics study. case “prototypical” the will helpguidethereader. relevance expected their and studies case of choice the for explanation brief a and approach research my of Clarification order. in is note methodological a legislation, denial Holocaust M 3. law, see Ran Hirschl, “On the blurred methodological matrix of constitutional law,” in Sujit Choudry ed., Choudry Sujit in law,” constitutional of matrix methodological blurred the “On Hirschl, Ran see law, oil cec mr gnrly se tpe Vn Evera, Van Stephen see generally, more science social Migration of Constitutional Ideas Constitutional of Migration Hirschl (2006), p.53. Hirschl(2006), constitutional comparative in principle study” case “prototypical the using of discussion detailed more a For ETHODOLOGY fe stig h shlry cnr ad eoe makn o te cul nlss of analysis actual the on embarking before and scenery scholarly the setting After My analysis ambitions to extend beyond inferences based on a restricted number of number restricted a on based inferences beyond extend to ambitions analysis My be to assumed is Germany regulation, denial Holocaust of speaking when often Too (Cambridge University Press, 2006), pp. 53-55. For the use of this method in method this of use the For 53-55. pp. 2006), Press, University (Cambridge 66 The ensuing logic holds that Germany features “as many key many “as features Germany that holds logic ensuing The ud t Mtos o Suet o Pltcl Science Political of Students for Methods to Guide The 20 67 CEU eTD Collection pepinac_12/Tes 71 70 69 68 denial. Holocaust with engagement legal of fluidity indeed, and, complexity the shows negationism denial. against measures legal for disapproval its indicated recently Court Constitutional the shift: interesting an presents ways.” certain in behaving not for power-holders political of did that events account into take “to important more sometimes and equally is it legislate, to choose countries why understand to important is it as time same the At sense. distinct a in informative be will law, anti-negationist an of rejection repeated its with Hungary, of case The choice. my justifies also countries these between Difference country analysisadistinctivetone. cross- this gives it during actions for guilt of form some share all) (arguably, most that and war, wayoranotherinthe factthatallofthemwereinvolvedinone collective guilt.Thevery and minorities, their Jewish the Holocaust, respect to with these countries’self-understanding of nature the is criteria selection the in influence of element third A phenomenon. this of manifestations tackle to used practice, in been, have which or denial address explicitly either which laws have Hungary for except countries these All so. do to how and denial Holocaust on legislate to under whether debated legislation heatedly all of have they type discussed, be the will As with examination. engagement legal their is countries these choosing here. threats dividing significantly pose not do contexts light of its solid argumentative value. light ofitssolidargumentative in primarily thesis, this in jurisprudence Canadian of use make do I however, seen, be will As nature. different Rights Human for Convention European example. context,for the American intheabsolutist distinctsetofproblems whereas theyposea (ECHR), of 10(2) article under including themselves, texts constitutional http://www.elpais.com/articulo/espana/Constitucional/mantiene/pena/justificar/genocidio/elpepuesp/20071109el available at 2007, For a brief report, see “El Constitucional mantiene la pena por justificar el genocidio,” el justificar por pena la mantiene Constitucional “El see report, brief a For original). 62-63 (emphasisinthe pp. Hirschl(2006), inherently an of is denial Holocaust with experience Canadian the logic, this following that, argue could One the in included generally and allowed are which limitations, speech to approach very the here mind in have I It is not just similarity that justifies the selection of the above-mentioned case studies. case studies. above-mentioned the selection of the justifies that similarity just not It is (last accessed March 31, 2008). 31,2008). (lastaccessedMarch 71 hs se bc” n lw rvosy nocd against enforced previously law a on back” “step This 69 68 A second, more crucial, reason for reason crucial, more second, A not 70 h cs o San too, Spain, of case The occur and the motivation the and occur El País El , November 9, November , 21 CEU eTD Collection a reinforcement of my core argument: that anti-Holocaust denial legislation, while drawing while legislation, denial anti-Holocaust that argument: core my of reinforcement a and observations of summary a with study my conclude I law. of court a in work laws denial anti- which in manner the regarding informative nevertheless is discussion the enforcement, juridical significant enjoyed yet, of as not, have Two Chapter in analyzed texts the of some While countries. of set this from emerging pertinent denial Holocaust most of issue the the on considers jurisprudence and further analysis comparative the takes Three Chapter country. each of framework speech-regulatory broader the in place their to reference with laws, of anti-negationist the texts analysis of a comparative Twois denial legislation.Chapter Holocaust of role true the appreciating toward way only the is issue this of understanding complex a that argues and society in serve may law functions an different the with of examination ends chapter first The emerging. standard international an is there whether asks and discussion speech hate on the of “globalization” restrictions the considers further acceptable One Chapter speech. as dignity and democracy, equality, for arguments as well as speech, of protection robust a for arguments the namely debate, speech hate the constitutional in arguments the describes It analysis. this in considerations theoretical main One the Chapter details parts. main three in divided is discussion following The study. this in play at considerations methodological the indicated and literature, scholarly relevant the strokes, engagement inSlovakiaorRomaniaisitselftelling. similar of scarcity relative the with contrasted France and Germany in debate legal the of therichness madethat an argumentcanbe not least, Lastbut these contexts. material fromall in bring to made nonetheless is effort An restricted. more be will analysis jurisprudential the relevance, and availability of reasons for countries, mentioned the of all cover will analysis ial, sol nt ta te td i bud o e naacd Wie h textual the While unbalanced. be to bound is study the that note should I Finally, I have thus far illuminated some of the key definitional elements, sketched, in broad in sketched, elements, definitional key the of some illuminated far thus have I 22 CEU eTD Collection n dfeet okal f osiuinl ihs sre a rmrl smoi fnto in function symbolic primarily specific culturalcontextswherethissymbolismislikelytomatter. a serves rights, constitutional of cocktail different a on 23 CEU eTD Collection process oftheiradoption. the in matters symbolic, or instrumental whether society, in perform to seen are laws denial Holocaust which function the words, other In values. said embody to law of types different choose countries different others, rejecting and values constitutional certain embracing by how, of evaluation an for stage the set to meant is This may serve. particular, in law criminal and law, purposes manifold the of discussion a offer I Finally, (ECtHR). Rights Human of Court European the of of approach unified the emergence as well as the standards, rights human delineating international presented, is arena international the at look brief a Third, democracy. and dignity, equality, including suggested, is regulation which of basis the on concerns constitutional main the of discussion a comes Second speech. of protection robust justifications and involved canthecontentiousnessofnegationismregulationbegraspedfully. rights the of view holistic a such through only that believe I concepts. parallel on reliance inevitable the as well as arguments, their continuing and scholars between a dialogue notice will reader the Indeed, categories. these of interdependence the obvious negate to intended not is division My standards. international and regional, national, between intersection the describes and concerns constitutional competing against speech of freedom balancing discusses It speech. hate of regulation over debates in forth brought This chapter outlines the main constitutional considerations and theoretical arguments theoretical considerations and main constitutional the chapter outlines This h floig u-etos rce b, is, ulnn te an utfcto fr a for justification main the outlining first, by, proceed sub-sections following The CHAPTER I 24 CEU eTD Collection 74 73 72 chances view ofthe pessimistic amore Holmesoffers speech protection, basis for truth asthe on rely theories both While critically. viewed be should however, Mill, on reliance Holmes’s his dissenting opinionin in wrote he As speech. of protection enhance to ideas” of “marketplace the of theory emphasis onsafeguardingtheverydeliberativevalueswhichhatespeechendangers. Mill’s Stuart John from stem origins Its truth. for quest our in role primordial its overview ofpro-regulationargumentstofollowinensuingsub-sectionsthischapter. vast. is protection its of favor FreedomofSpeech 1.1 1. N s oe ae argued, have some As clear. less is however, speech, hate of problem the to respond would Mill How right conclusion. the reach to us enable eventually and falsity eradicate help will speech unrestricted only then, terms, Mill’s In truth. for search our in speech free of role the upholds he where Press, 1982) or Kent Greenawalt, “Free Speech Justifications,” Justifications,” Speech “Free Greenawalt, Kent or 1982) Press, pp. 119-157. 155. David O. Brink, “Millian Principles, Freedom of Expression, and Hate Speech,” Hate and Expression, of Freedom Principles, “Millian Brink, O. David Schauer, Frederick see overview, critical a For Abrams v. United States Abrams v.United ORMATIVE ORMATIVE The literature on the freedom of speech and the philosophical arguments brought in brought arguments philosophical the and speech of freedom the on literature The da—ht h bs ts o tuh s h pwr f h togt o e itself get ground only to the is thought upon whichtheirwishessafelycanbecarriedout. truth the that and of in market, the power trade of competition the free the is in accepted by truth reached of better test best is the desired ideas—that good ultimate the that conduct may they foundations believe oftheirown thevery come tobelieveevenmorethanthey faiths, fighting many upset has time that realized have men When famous his elaborated Holmes W. Oliver Justice principles, Millian on Drawing on relies of speech robust protection a favor of arguments in oft-used most the One of J USTIFICATIONS Abrams v.UnitedStates , 250 U.S. 616 (1919) (J. Holmes, dissenting), para. 630. Holmes,dissenting),para. (1919)(J. , 250U.S.616 73 i rjcin f esrhp s o e ed n ojnto wt an with conjunction in read be to is censorship of rejection his 72 h mi jsiiain wl b dsusd ee wt an with here, discussed be will justifications main The Free Speech: A Philosophical Enquiry Philosophical A Speech: Free , Columbia Law Review Law Columbia 74 Legal Theory Legal , Vol. 80 (1989), pp. 119- pp. (1989), 80 Vol. , (Cambridge University University (Cambridge , Vol. 7 (2001), 7 Vol. , On Liberty On 25 , CEU eTD Collection 79 78 77 76 75 one whoserestrictionshouldonlybeallowed,therefore,inexceptionalcases.Hewrites: order, democratic the of value foundational a as speech free for case the arguing as oft-cited of case the in concurrence Brandeis’s D. Louis Justice democracy. conclusions, their of falsity accepted the negationist ideascannotbeprotectedsolelyrelyingonthetruth-seekingmarketplacemodel. and listeners of group a to harm producing of context the in Particularly truth. for search any to adds it value the see to difficult it finds one denial, Holocaust to speech of protection the for justifications truth-based the Applying discussion,” and thought of ideas group’ model ‘seminar “the akin to more envisioned something of Mill for misleading, model is marketplace the that out points instance, for Haworth, Alan scholar Philosophy partial. as exposed been has speech of theory Mill’s and metaphor marketplace marketplace. Holmes’s the in victorious emerge eventually to truth of the famous “clear and present danger test” in American free speech doctrine. American free danger test”in and present the famous“clear Kathleen E. Mahoney, “Hate Speech: Affirmation or Contradiction of Freedom of Expression,” Expression,” of Freedom of Contradiction or Affirmation Speech: “Hate Mahoney, E. Kathleen Illinois LawReview Ibid. In this vein, Kathleen Mahoney writes: Mahoney Inthisvein,Kathleen AlanHaworth, Hewrites: Ibid. Whitney v. California v. Whitney , p.68. icsin h fleod n flais t aet h ei b te rcse of processes the by evil education, theremedytobeappliedismorespeech,notenforcedsilence. the through avert expose to to fallacies, timeand falsehood be the there discussion If discussion. before full befall for may the it opportunity unless that is imminent there present so and is apprehended clear evil deemed the of be incidence can speech from flowing no danger government, popular and of free processes the of through power applied the reasoning fearless in confidence with men, self-reliant courageous, To for role its in rooted arguments from comes speech free of defense further A itras msut wtess fbiae vdne ad ie oeitn atoiis as authorities, nonexistent cite of ideas. and exchange free the evidence, through truth seeking of antithesis the is speech their of do, fabricate deniers Holocaust work the witnesses, misrepresent deliberately misquote speakers When historians, speech. such defend to which basis upon principled a hardly is hoax a is Holocaust the that true be could it that proposition The is check immediate an that law the of savethecountry. required to purposes pressing immediate and threaten lawful imminently the so with they unless interference death, with fraught be to believe and loathe we that opinions of expression the check to attempts against vigilant eternally be should We Free Speech , Vol. 1996, No. 3 (1996), p. 798. 3(1996), p. No. , Vol.1996, , 274 U.S. 357 (1927) (J. Brandeis, concurring), para. 377. This constitutes the basis of of basis the constitutes This 377. para. concurring), Brandeis, (J. (1927) 357 U.S. 274 , (Routledge, 1998), p.69. 1998), (Routledge, 76 ahr hn eig rt a “h otoe f negotiation.” of outcome “the as truth seeing than rather 75 h cneto between connection The Whitney v. California v. Whitney 79 University of University is 26 78 77 CEU eTD Collection 82 81 80 of testing and scrutiny with promote to interference democracy a illegitimate for good, an the or of conceptions paternalistic, competing not is “[i]t that concludes Sunstein discussion.” by “government of principle the to returning of favor argue in and democracy of view Madisonian a take Sunstein, Cass scholar legal presented by the formationofpoliticalopinions.Thatishardlyeverdifficulttodo. on impact paradigm, an have to proven be could it this protected when be speech would therefore, extremist In process. political deliberative this with connection a bears differently, that put speech or, speech, political favors clearly conception This consensus. informed to lead to as so uninhibited be to need would therefore, Speech, participants. equal full, be to are citizens which in one democracy, for paradigm hall” “town a on interpretation his based suffrage.” universal by self-government of necessities the from but Right,” “Natural some supposed from “derived, not speech freedom of of the a conception argued for the Meiklejohn and Alexander philosopher 1948, as early order, As development. his in speech democratic of function the within individual, the of conceptions particular favoring democracy inthischapterwillelaborateonpoint. on section the in The discussion not. protected or be will it likely harm, and its the poses threat it assesses one how on Depending category. murky a represents speech extremist then, society.” to harm relatively trivial a for averting the means as “inappropriate be otherwise would latter the for repression, with tackled be to are speech from threats serious only that explains additionally Brandeis speech.” “more with speech bad combat to namely speech, hate of regulation to alternative popular the of source the is This 1948), pp. 93-94. 1948), CassSunstein, Meiklejohn, Alexander Ibid. oe eet eseset o te eortc ainls o sec, uh s that as such speech, for rationales democratic the of reassessments recent More arguments are democracy of understandings certain based on theories Connected with Democracy and the Problem of Free Speech Problemof the Democracy and re peh n Is eain o Self-Government to Relation Its And Speech Free (The Free Press, 1993), p. 19. 1993),p. (TheFreePress, 80 Following this line of reasoning, line of this Following (Harper & Brothers Publishers, Publishers, Brothers & (Harper 82 In applying this theory, this applying In 81 Meiklejohn 27 CEU eTD Collection protection in itself and might very well be legally prohibited for entirely proper reasons.” for entirelyproper prohibited be legally of might verywell itself and protection in unworthy often is speech] [extremist about talking are we behavior speech the of part good “a harm: cause to likely is which and value any if little carries that speech of type a of protection account for to ofthepreviousmodels inability emphasized the Bollinger haveboth Ibid. 88 87 86 85 84 83 future victimsofintolerance).Hewritesthatitis themselves, becoming, potentially (from groups powerful less safeguard also and powerful) restraint, self- which, by fostering a value as of tolerance favor argues in American society.He view to a with mainly speech, free of justification the recalibrate to proposed has Bollinger vein, this pointedout. extremist speechhasbeenrepeatedly a maintain to government civilized society.” of responsibility the ignores and causes, speech hate abuses and harms the minimizes speech, of functions social the “conceals stated, have some nature, improve help deliberative democracy,notundermineit. groups excluded otherwise such of participation enhance which measures this from excluded being when arguingthat OwenFiss made by is also This point other’sspeech. process (silenced)by groups some of dangers the of aware be should we however, processes.” deliberative through beliefs and preferences Bollinger writes: Bollinger 9. p. Bollinger(1986), LeeC.Bollinger, Schauer(1982), 796. p. Mahoney(1996), Fiss(1996). Ibid. , p.10. , p.20. h pltcly ek T sc gop, hc pses ny fato o the of fraction a only possess which groups, such To weak. politically the against powerful politically the by prejudice and intolerance ever-threatening of reality perceived a to response strategy, political self-protective of matter a of category the to applied when particularly arguments, these of inadequacy The area of social interaction for extraordinary self-restraint, the purpose of which is to develop develop to by ahostofsocialencounters. evoked is tocontrol feelings asocialcapacity and demonstrate which of purpose the self-restraint, extraordinary for interaction social of area one out carving of act special a involves speech free then, history, social our in stage this At 88 s h bs mas o ih itlrne priual pltcl noeac o the of intolerance political (particularly intolerance fight to means best the is 85 The Tolerant Society The Tolerant 84 Not to take into account hate speech’s threatening Nottotakeintoaccounthatespeech’sthreatening (Oxford University Press, 1986). Press,1986). (OxfordUniversity 86 LegalscholarsFrederickSchauerandLee 83 hl ebaig deliberation, embracing While 87 In 28 CEU eTD Collection of a sacrifice in personal autonomy than self-restraint by therelativelypowerless.” thanself-restraintby autonomy of asacrificeinpersonal 96 95 94 93 92 91 90 89 Thomas Philosopher either. observers Scanlon writes: other escaped not has acceptance of form some message. societal important an sees Bollinger proposes, he tolerance of concept the in implicit that, in. themselves find societies German and different American positions the acknowledges and response culturally-conditioned a as tolerance on he insists speech, anti-Semitic to respect with Moreover, tackles. he issues the of contestability and conformity toleration passive to lead might self-restraint of cultivation proposed his that out pointed protection. speech all free of of core the tolerance, at sit why should values, explain possible to failing for criticized rightly been has view Bollinger’s magnitude, or so pervasive, as to transform toleration into an act of implicit condonation.’ an actof tolerationinto totransform sopervasive,as magnitude, or rs, 03, . 9. cno teeoe eivs ht calnig h acpe rls f oeac i as an also debate. is stimulating totheforeand theirconcerns bybringing favor of minorities statutes worksin tolerance speech of anti-hate of proposals rules very the that accepted and groups” affected the the within support “challenging mobilizing of way that effective believes therefore Scanlon 199. p. 2003), Press, (1987), pp. 1457-1481 and David A. J. Richards, “Toleration and Free Speech,” Free and “Toleration Richards, J. A. David and 1457-1481 pp. (1987), Vol. 17, No. 4 (Autumn, 1988), pp. 323-336. pp. No.4(Autumn,1988), Vol. 17, hms . Scanlon, M. Thomas tolerance. ofpromoting functions educational he emphasizesthesymbolic and Indeed, such not of is society…it American in problem is a “While anti-Semitism He writes: 199. p. (1986), Bollinger p.1474. Rosenfeld(1987), Tolerance,” of Paradox the and Speech “Extremist Rosenfeld, Michel See Ibid. Ibid. Ibid. , p.1478. , p.99. , p. 1477. Rosenfeld poignantly notes: “Indeed, self-restraint by the dominant seems to require much less much require to seems dominant the by self-restraint “Indeed, notes: Rosenfeld poignantly 1477. p. , c o tlrne eoe a oc a abgos ybl f aey and safety of symbol ambiguous an once at becomes vulnerability. tolerance of act the such, As archenemy. the it into admitting by secured oddly one but refuge, a therefore, becomes, [tolerance] position, social their secure to needed power ilnns o a uh peha ims et o tersetta hy are they that respect a the take for due. test to litmus speech a hate as speech of such victims ban the to for willingness natural therefore is It state. the of message and thebeliefthatallowingittobeutteredisaformofpartisanshiponpart a to opposition between distinguish fails…to often one threatened, way no in is one which in cases, trivial more in Even opinion. public of court the in considered be to deserves that view” of point another “just expressing as these regard to expected be cannot attacks anti-Semitic or racist of Victims and complexity the exposing from away shy not does Bollinger though, credit, his To 95 h dfiut o dsnagig fiil oeac o rcs sec fo a least at from speech racist of tolerance official disentangling of difficulty The 96 92 andthatitfailstoaccountforaninherentlyunequalsociety. 89 h Dfiut o Tlrne Esy i Pltcl Philosophy Political in Essays Tolerance: of Difficulty The 94 t s oeoty therefore, noteworthy, is It 90 Harvard Law Review Law Harvard Furthermore, it has been has it Furthermore, Philosophy and Public Affairs Public and Philosophy (Cambridge University University (Cambridge Ibid. 93 , p.144. Ibid. Vl 100 Vol. , 29 91 , CEU eTD Collection eorc) jsiiain ae o atnm o te niiul rvd a “constitutive a provide speech.” free individual of justification the of functioning autonomy a on self-government, based truth, justification i.e., democracy), good, particular a achieving toward means a as speech (viewing instrumental were speech of protection the for justifications former the 102 101 Ibid. 100 99 98 97 of consequences harmful the considering only by that, out pointed adequately has Brison secured.” good the and served, justice known, be truth that desire compelling a of own opinions,butalso“toexpressthesetoothers,outofrespectandconcernthem, of form any rejecting by censorship. majoritarian or is government dignity individual retain to way only the and convictions” offensive or dangerous to them persuade might that opinions hear to trusted be cannot they that argues he Thus, speech. that decrees it when responsibility, afforded moral their denies and be citizens, its insults “[g]overnment to protection broad the justify to uses then as self-legislation. autonomy rational to autonomy moral to value) a or right a (as self-government from ranging term, the of meanings different with operate accounts different instead, unavailable; is here Dworkin. Ronald and Scanlon Thomas as such philosophers include view this of Exponents autonomy. individual of concept the in rooted such amessage,aswillbefurtherelaborateduponinSectionThreebelow. just carries denial Holocaust combat to meant one the as such legislation of symbolism The June 11,1992. For a discussion, see Brison (1998), p. 323and pp. 330-331. p. seeBrison(1998), Foradiscussion, Speech,” Free over Battlers Coming “The Dworkin, Ronald Dworkin, andRonald Scanlon(2003) Dworkin(1992). 353. Hewrites: p. Dworkin(1986), Ibid. epe ae h rgt o t sfe dsdatg i te iete pritd o hm y the by them wrong. or livesareignoble lead theirown way forthemto about theright to permitted liberties opinions their that think the fellow-citizens or officials in their that ground the on disadvantage just law, criminal suffer to not right the have People ial t b dsusd ee r agmns o te rtcin f peh hc are which speech of protection the for arguments are here discussed be to Finally 99 wri wie o a rgt o oa independence” moral to “right a of writes Dworkin 98 A clear, unitary definition of what is understood by autonomy by understood is what of definition unitary clear, A A MatterofPrinciple 101 Dworkin insists on a responsibility to form one’s form to responsibility a on insists Dworkin 97 To use Dworkin’s classification, whereas classification, Dworkin’s use To (Harvard University Press,1986). University (Harvard The New York Review of Books of Review York New The , Vol. 39, No. 11, No. 39, Vol. , 100 hc he which 102 Susan 30 CEU eTD Collection 105 104 103 what in placed be to are speech hate of of instead targets the deceit if on Furthermore, information. relies accurate nature, very its by denial, Holocaust level. unconscious the at operates often racism all, After importance. utmost of is this denial, Holocaust and speech rationally. speech all process not does and information misleading or false to exposed be may agent moral autonomous envisioned his that fact the for account not does Scanlon however, out, pointed been rightly has As restriction. its allow not will acts, harmful to even or beliefs, false to leads speech whether then, principle, this on Based bases thisonwhathecallsthe“Millianprinciple:” He restriction. its for justification a to lead not does this argues, he Nevertheless, speech. from result to harm serious for potential the acknowledges Scanlon Dworkin, Unlike points. someone’s engaginginhatespeech.” by undermined be may opportunity of equality to or speech free to rights their example for rights, “other’s that consider not does He limited. is account Dworkin’s against, protected be to right no have we which harm” “moral of form a as particular) in speech hate (and speech environment, there is no intermediate agent as envisaged by Scanlon and the harm is a direct consequence of of consequence direct a is harm the speech. and Scanlon by envisaged as agent intermediate no is there environment, ed. in Trumps,” as “Rights Dworkin, Jeremy Waldron, situations. extreme for except considerations policy against (“trumps”) (Winter, 1972), p.213. (Winter, 1972), See Brison (1998), p. 328. Furthermore, Brison argues, in cases of face-to-face vilification or of a hostile a of or vilification face-to-face of cases in argues, Brison Furthermore, 328. p. (1998), Brison See Expression,” of Freedom of Theory “A Scanlon, M. Thomas rights of balancing the to opposition Dworkin’s context, this in note, also should One 325. p. (1998), Brison Ibid. Scanlon, while also appealing to autonomy, departs from Dworkin in certain crucial certain in Dworkin from departs autonomy, to appealing also while Scanlon, c o epeso ld h aet t blee o icesd hi tnec to tendency their increased (or believe to believe) theseactstobeworthperforming. agents the led expression of act of the that the fact acts merely in acts consists subsequent harmful and the the expression between connection a the where as certain expression, performed of acts acts to those of of result consequences harms harmful (b) (a) expression; of are: of acts result a those as harms beliefs false have These to coming their acts. in consist which individuals these on for restrictions justification a legal of part as taken be cannot nonetheless expression, of acts certain for but occur not would they although which, harms certain are There Theories of Rights Theories of (Oxford University Press,1984). (OxfordUniversity 103 104 Philosophy and Public Affairs Public and Philosophy 105 n h cs o hate of case the In , Vol. 1, No. 2 No. 1, Vol. , 31 CEU eTD Collection 111 110 109 108 107 106 advocating scholars by rejected are speech regulation. Theirapproachisdiscussedinwhatfollows. hate by inflicted harm the the of dismissals of Such speech. seriousness hate of kind this of victims the of those outweigh to are interestsSemitic, itisstillunclearwhytheautonomy ofdeniersandtheirwillingaudience anti- being without Holocaust the deny may one that true is it While assumption. strong a least at universal, not if is, anti-Semitism and denial between link the however, Introduction, anti-Semitism.” and denial] [Holocaust between distinction the “dissolves opinion, her in defamation, group becomes and this beyond goes negationism self-directing.” be to “capacities listener’s the on impact its questioning by legal restriction its against argues still speech, offensive of form a as denial Holocaust seeing while McKinnon, Catriona view. Professor opposite the autonomy propose of the perspective from writing others autonomy, in justification its find cannot speech hate speech, protected be to is it that if conclusion her reaches Brison meticulously While off. worse us would leave already thus speech, on restrictions and impose agency of free not are sphere private the as well as model marketplace speech. on restrictions government-imposed of rejection outright the and autonomy individual of assertion the between link direct no is there that concludes hate speechonthosewhoformawilingaudienceandthemselves. of effects the escape can nor listeners willing neither are They speech. hate with faced when bystanders, of category the calls Scanlon pae’, h adec’, n te ytne’ (h lte big n neet n h efc o te audience, the on effect the in interest an being latter (the bystander’s inbehavior). leadingtochanges especially when the and audience’s, the speaker’s, Review Catriona McKinnon, “Should We Tolerate Holocaust Denial?,” HolocaustDenial?,” WeTolerate “Should CatrionaMcKinnon, p. 338. p.331, Brison(1998), p. 335. Brison(1998), Seediscussionin Expression,” of Categories and Expression of “Freedom Scanlon, M. Thomas Ibid. Ibid. Vl 4 (99, . 2. cno dsigihs ewe tre ye o fe sec itrss the interests: speech free of types three between distinguishes Scanlon 528. p. (1979), 40 Vol. , , p.334. After a careful examination of “the autonomy defense of free speech,” Susan Brison Susan speech,” free of defense autonomy “the of examination careful a After 109 it is not self-evident that allowing government intervention government allowing that self-evident not is it 106 then their own autonomy is severely impaired severely is autonomy own their then Res Publica 111 s hv age i the in argued have I As , Vol. 13 (2007), p. 18. , Vol.13(2007), 108 107 ic, n e ve, the view, her in Since, University of Pittsburg Law Pittsburg of University 110 To accept that accept To 32 CEU eTD Collection 115 114 113 LawReview Michigan 112 speech. racist by attack under interests those to attributed weight due and for accounted be must interests” “reputational that holding based discriminatorynature. a to relevant are harm of types more) their identity- residesin Theircommonality speech regulation. for hate need discussion ofthe (and these all exhaustive, not is list the While environment. educational to harm and ideas, of marketplace the to harm individuals, to groups, harm harm toidentifiable harm, hate speech:anintrinsic resultant from types ofharm different five between distinguishes He Post. Robert professor law of that as such works, other present in is produce speech may the harm emphasis on Her of hate. expression the free by caused silencing and defamation, harm, psychological from victims protect to action legal for theneedtotake victims atitscenter.Sheargues order toplacetheactualharmsufferedby word,” the of violence story” victim’s a necessarycompromiseoffreespeechvalues. as speech laws anti-hate view they discussion; and public participate in ability to victims’ the on crippling effects its emphasize they speech seriously; hate by produced the harm they take 1.2 Equality the First Amendment,” the First Post, Matsuda and Democracy, Speech, Racist Harassment: Sexual and Racial, Religious, and Speech “Free Post, C. Robert Story,” Victim’s the Considering Speech: Racist to Response Public Storytelling: “Legal Matsuda, J. Mari Ibid. Constitutional Domains: Democracy, Community, Management Community, Domains: Democracy, Constitutional , p.2332. Proponents of regulation on equality considerations have several points in common: in points several have considerations equality on regulation of Proponents asd wie fo te esetv o blnig re peh gis equality, against speech free balancing of perspective the from writes Matsuda the “consider to need the emphasize Matsuda Mari as such theorists race Critical et al. (1993), p.47. (1993), 112 hn icsig euain gis ht sec. rtn aot “the about Writing speech. hate against regulation discussing when , Vol. 87 (Aug. 1989), pp.2320-2381. 1989), , Vol.87(Aug. William and Mary Law Review Mary Law William and 113 Matsuda unequivocally campaigns for a reshuffling of the value- the of reshuffling a for campaigns unequivocally Matsuda 115 Hr ruet osss fsvrl itnt claims. distinct several of consists argument Her , Vol. 32 (Winter, 1991), pp. 272-277. Also see Robert C. Also seeRobert pp. 272-277. 1991), 32(Winter, , Vol. (Harvard University Press, 1995), p.293. Press,1995), (HarvardUniversity 114 33 CEU eTD Collection 121 120 119 118 117 116 that wheneverwedeclinetobanhatespeechfor freedom ofspeechconsiderations, racism. irrational) (often by caused market” the of disable[d]…operation and skew[ed], “flaw[ed], the to due faulty as metaphor ideas free for precondition speech.” a as equality see people] [black “we involved, injury real the very of the nature of because that claims powerfully He speech. hate of existence unchecked and scarring” emotional “reputational injury,” “deep of concerns to points the He of involved. balancing values honest more constitutional a for advocates and speech of type this in involved harm actual the emphasizes too, Lawrence, regulation. speech hate of favor in arguments forth put wrong.” is it because but exception, neutral hoped-for a within falls it because not speech, really isn’t it because “not speech, hate to response legal a for arguing when undaunted is She efficacy. legitimacy” conveys display (“[o]pen mongers hate for legitimation of form a represents it claims actually She itself. society to and speech inaction hate of victims the signifies to state what reveals she least, not but Last groups. against discriminated previously on places speech free of defense absolutist an which burden undue the shows also She curtailed. already is speech where instances as issues, privacy certain and defamation pornography, child as such prohibited, are that speech of categories other to points she First, Lawrence (1990), p. 462. p. Lawrence(1990), Ibid. Ibid. Ibid. Ibid. p.2378. Matsuda (1989), , pp.467-468. groups. discriminatedagainst otherhistorically extendedtoinclude , p.467.Hisclaimcanbe , p.463. , p.2380. oit—opy h pie o te oitl eei o cetn mr ro for room more creating of benefit societal the for price the pay society—to of good the for burden a bear to groups subordinated other and blacks ask we also Lawrence Charles and Delgado Richard professors law as such scholars Other 117 120 He thus rejects the unequivocal protection of speech based on the marketplace of marketplace the on based speech of protection unequivocal the rejects thus He 118 stigmatization 119 and a denial of equal opportunity that arise fromtheequal opportunity that denial of anda 121 Thus, Lawrence reminds us to never forget never to us reminds Lawrence Thus, 116 ) and helps boost their boost helps and ) 34 CEU eTD Collection University of Illinois LawReview University ofIllinois 126 LawReview Liberties Harvard Civil-Rights-Civil Review Law Liberties Rights-Civil Civil Harvard 125 124 123 122 groups. vulnerable most its of plight the account into takes fairly more that paradigm constitutional a endeavor andthereforeadvocatesfor inthis ultimateobjectivity of thejudge’s He isskeptical reveals avitalaspectoftherolelegalapparatusinthisbalancingact: Stefanic, Jean with writing Delgado, regulation, speech hate over debate the in play at values of it. infliction suppress intentional to the distress) and emotional defamation of case the in (as action tort-like of use the Lawrence’s view,leadtomorespeech,ratherthanless. debate.” political and intellectual on ideas. incursions of not are forums designated certain exchange in discourse of civility fullest require that Regulations the discourage than rather encourage discourse academic in respect and civility requiring “rules that believes He relevant. is matter the on conclusion his fora, the academic in denial ofHolocaust propensity Considering the campuses. on American hate of expressions of regulation the over debate heated a of context the in writes Lawrence aac” hne S Slowly,” So Changes Balance” criticism of Delgado’s argument, see Marjorie Heins, “Banning Words: A Comment on “Words That Wound,” That “Words on Comment A Words: “Banning Heins, Marjorie see argument, Delgado’s of criticism Kenneth L. Karst, “Boundaries and Reasons: Freedom of Expression and the Subordination of Groups,” Groups,” of Subordination the and Expression of Freedom Reasons: and “Boundaries Karst, L. Kenneth whowrites: in KennethKarst’saccount, mirrored ihr Dlao n Ja Seai, Htfl peh Lvn Cmuiis Wy u Nto o “ Just “A of Notion Our Why Communities: Loving Speech, “Hateful Stefanic, Jean and Delgado Richard Name-Calling,” and Epithets, Insults, Racial for Action Tort A Wound: That “Words Delgado, Richard ofSusanneBaer. approach notablyinthe isdiscussedbelow, Asimilarview Ibid. Ibid. , p.438. , p.472. peh n easg ti bre o hmwtotseigteravc, or advice, their consent. seeking without them to burden this assign we And speech. humanity affordedfullrespect. They community. interpretive seriously, whose taken new be to speech is whose count, a views decide whose must of contours the deciding effect in are protection minority and speech free between balance a strike to asked Judges for advocates and speech hate by inflicted harm the with concerned is too, Delgado, who live inside the boundaries of the dominant culture. of thedominant the boundaries who liveinside people the of identities individual the threaten they for emotions, strong arouse to bound are expressions those meaning, of community dominant a challenges group subordinated a When 122 (1990), p.96. (1990), aiona a Review Law California 125 hl as pitn ot h cmeig constitutional competing the out pointing also While 126 123 , Vol. 18, No. 2 (Summer, 1983), pp.585-592. (Summer, 1983), No.2 , Vol.18, Vl 1, o 1 Srn, 92, p 1311 Fr direct a For 133-181. pp. 1982), (Spring, 1 No. 17, Vol. , crfly osre rglto wl tu, in thus, will regulation construed carefully A Vl 8, o 4 Jl, 94, . 6. hs iw is view This 869. p. 1994), (Jul., 4 No. 82, Vol. , 124 35 CEU eTD Collection 133 132 131 130 129 128 127 latter the that arguing expression, of freedom to minorities of relationship complex the illustrates aptly instance, for Karst, Kenneth professor Law equality. and speech free between juncture appropriate response. and available an always is speech” “more insist that and protected are minorities when better know to claim that arguments of paternalism underlying the to pointed has others among Delgado response, In hate. against well-suited is ideas of marketplace free the in repudiation intolerance; against fight the in effective proven been not publicity; more racists give likely more will them banning at attempts such that speech. racist of forms all cover not will it drafted, narrowly statute, the of scope initial the beyond groups. minority of members against enforcement,” discriminatory or arbitrary of danger inevitable “an is there statutes, speech hate of enforceability in the discretion of because that, argues She regulation. speech hate of idea the of opponent staunch a been has others, numerous among Strossen, Nadine president (ACLU) Union Liberties Civil illustrate the misapplication of anti-hatespeech codes). of illustrate themisapplication Speech Regulation,” No. 3 (Jun., 1990),p.521. No. 3 Richard Delgado, “Pressure Valves and Bloodied Chickens: An Analysis of Paternalistic Objections to Hate to Objections Paternalistic of Analysis An Chickens: Bloodied and Valves “Pressure Delgado, Richard Proposal?,” A Modest Campus: on Hate Speech “Regulating Strossen, Nadine Ibid. Ibid. Ibid. Ibid. Ibid. , p.559. , p.560. , p.521. , p.556. p. 5-5. e as Srse (96, p 4648 gvn eape o frin uipuec to jurisprudence foreign of examples (giving 466-468 pp. (1996), Strossen also See 554-555. pp. , The views of critical race theorists have hardly gone unchallenged. Former American Former unchallenged. gone hardly have theorists race critical of views The rcsl bcue n motn pr o a ru’ sbriain osss in consists subordination group’s a of part important an because hand, other precisely the On it. justify to purport and subordination group’s a express of both that messages speech of stream a on carried the is domination of one by system any others; accomplished the been On has group. subordination subordinated their a of much of hand, members the for blessing mixed a is the on writing scholars other of works the throughout echo arguments Strossen’s California LawReview California 133 127 fe rslig n h saue big nocd precisely enforced being statutes the in resulting often , Vol. 82, No. 4 (Jul., 1994), pp.871-892. 1994), No.4 (Jul., , Vol.82, 128 Furthermore, she says, there will be a chilling effect chilling a be will there says, she Furthermore, 129 hl laig pn h psiiiy ht because that, possibility the open leaving while 130 132 She also makes the argument the makes also She n ol oe dbt and debate open only and Duke Law Journal Duke 131 , Vol. 1990, , Vol. they have they 36 CEU eTD Collection 137 136 135 134 these, of Two dignity anddemocracy,arediscussedinwhatfollows. legislation. of favor in invoked values constitutional other for account to that have also view will however, regulation, for footing the sufficient offer not do considerations of equality Rejections problem. this address to tool appropriate the is law ask whether and quandary policy a mirror literature the in disagreements The recourse. of means have should victims its and harmful, be can indeed, speech, that fact the on voices scholarly to persuasion,notharmperse.” responses “cognitive as harms these conceptualize would courts two, the between link direct dissent.” squelch to power political of application free the for apologia an than more little to amounts “ultimately it that claiming censorship, of theory postmodern a than more nothing as sees he what criticized severely has instance, for Gey, Steven professor Law sharper. even been have efficacy. its of because speech banning of inadequacy the to pointing by speech hate prohibiting of favor in argument” “silencing the terms he what attacked has Sadurski Wojciech scholar Legal Suppression of Hate Speech and Pornography,” Pornography,” and Speech Hate of Suppression (Mar., 1998), pp.865-879. (Mar., toward other people in the community is not a good equality-based reason to prohibit the speech.” One should A. MacKinnon’s toCatharine response writesindirect One note thatSadurski speech.” the prohibit to reason equality-based good a not is community the in people other toward attitudes wrongful adopt to hearers the persuades speech that fact “the writes: Sadruski 723, p. At 713-723. pp. 2004), p.1413, also citing Sunstein (1993), p.191. citing Sunstein(1993), p.1413, also 2004), Vol. 145, No. 2 (Dec., 1996), pp. 193-297. For a response to Gey, see Richard Delgado, “Are Hate-Speech Hate-Speech “Are Delgado, Richard see Gey, to response a Gey,” Steven to A Reply For Heresy? Constitutional Rules 193-297. pp. 1996), (Dec., 2 No. 145, Vol. W. Bradley Wendel, “The Banality of Evil and the First Amendment,” Amendment,” the First Eviland “The Banalityof Wendel, W.Bradley Theory,” Censorship Postmodern Case against “The Gey, G. Steven for Arguments Egalitarian of Critique Lens’: Equality an Through Speech ‘Seeing “On Sadurski, Wojciech p.109. Karst(1990), iecn, hi eacpto rqie a eeosy eie fedm of of model freedom the of defined capacity civic deliberation. shallow the generously overflows that a freedom a requires expression, emancipation their silencing, o m upss i i itrsig o oe h na-oa areet ewe various between agreement near-total the note to interesting is it purposes, my For 136 tes ae hlegd h sec-am orlto, run ta ised f a of instead that arguing correlation, speech-harm the challenged have Others 135 Other attacks on calls for equality-based reassessments of free speech doctrine free reassessments of equality-based for calls on attacks Other 134 137 Oxford Journal of Legal Studies Legal of Journal Oxford University of Pennsylvania Law Review Law of Pennsylvania University University of Pennsylvania Law Review of Pennsylvania University Only Words Only Michigan LawReview Michigan , Vol. 16, No. 4 (Winter 1996), (Winter 4 No. 16, Vol. , (1993). , Vol. 146, No. 3 No. 146, , Vol. , Vol. 102 (May (May , Vol.102 37 , CEU eTD Collection European and US Constitutionalism US and European 142 141 140 Verlag,2006). (Mohr Siebeck Perspektiven theologische und Rechtswissenschaftliche Verfassungsordnung. säkularen der in Menschenwürde 139 Discourse Rights Human in Dignity Human of Concept The 138 autonomy US the in obligations, moral of recognition a with line in unfolded individual the of autonomy of view Kantian the Germany, in while, that suggested have Some scholarship. Europe.” in role larger significantly the Rights, Human of Court European the the “although project. constitutional American the understand to which through lenses pivotal the as liberty, and equality alongside dignity, suggests constitution” American the of reading “moral Dworkin’s true. entirely not is This Americans. than seriously more values, or rights constitutional of context the in dignity, take Europeans that belief widespread a be to seems there Moreover, that. back than go farther dignity concept ofhuman of the religious roots philosophical and the II, War World and Socialism National to reaction a as particularly and discourse, rights manageable easily enforceable, discretely rights. of enumerations of proponents away scared have open-ended character diffused, its of Fears evaluate. to difficult more is which to commitment the 1.3 Dignity lo icsin n on . ncte “hn o euae ae Speech,” Hate Regulate to “When Knechtle, C. John in discussion also in constitutions and international human rights instruments. humanrights international in constitutionsand figure do life right to the as such rights to define difficult vague, other that however, out, aptly points Chaskalon Press, 1996). (Winter, 2006), pp. 559-569. pp. (Winter, 2006), 18) p. 0-6. upy eivs ht te udmna vle n h Aeia plt hs eoe the become has polity navigation.” mayuseintheir star” thatjudges does marka“fixed American the in value magic, it legal work no value can this fundamental of primacy of the recognition While judicial being. human “the each dignity of that believes Murphy 703-760. pp. (1980), Georg Nolte, “European and US constitutionalism: comparing essential elements,” in ed. Georg Nolte, Nolte, Georg ed. in elements,” essential comparing constitutionalism: US and “European Nolte, Georg Values,” Constitutional of Ordering “An Murphy, F. Walter See Dworkin, Ronald eds., Heinig M. Hans and Bahr Petra and (2002) eds. Klein and Kretzmer in. discussion instance, for See, Klein, Eckart and Kretzmer David eds. in Value,” Constitutional a as Dignity “Human Chaskalon, Arthur Human dignity, unlike speech or equality, is a right that is both harder to define and define to harder both is that right a is equality, or speech unlike dignity, Human 140 i ve i nt singular. not is view His term reo’ Lw Te oa Raig f h Aeia Constitution American the of Reading Moral The Law: Freedom’s ‘human dignity’ is used restrictively by both the US Supreme Court and Court Supreme US the both by restrictively used is dignity’ ‘human 138 Though seen as a relatively recent legal instrument in the human the in instrument legal recent relatively a as seen Though (Cambridge University Press, 2005), p. 13 (emphasis in the original). See original). the in (emphasis 13 p. 2005), Press, University (Cambridge 141 142 eetees i de apa t b te ae that, case the be to appear does it Nevertheless, h ti i s hs en h ojc o further of object the been has so is this Why concept Kue Lw nentoa, 02, . 135. p. 2002), International, Law (Kluwer Ibid. f ua dgiy em t pa a play to seems dignity human of Southern California Law Review Law California Southern , p.708. en tt Lw Review Law State Penn (Oxford University University (Oxford Vl 110 Vol. , , Vol. 53 Vol. , 139 38 CEU eTD Collection Europe and the United States: The Social Foundation,” in ed. Nolte (2005), pp.108-124. Nolte(2005), Foundation,” ined. The Social the UnitedStates: Europe and 147 146 145 144 143 as such rights, other with interacts it how of explanation my in argument dignity the of use a rights.” fundamental as these other interpretation of for the guiding principle functions consequently dignity dignity, of expression or are concretization rights a civil as other viewed the all “when that, believes He Law. Basic the in expressed rights allother ortheobjectivebasisof consider dignityacivilright German debateoverwhetherto the in sees Grimm Dieter Professor what with resonate to seems view This undeniable. is discourse constitutional contemporary increasing prominencein its reality of codification, the and implementation of history own its with concept legal a as it sees that one contrary, the and human rights.” freedom on based order legal any in “inherent be to dignity holds which view the to ascribe to inclined more however, am, I novel. seem War World Second the of aftermath the in dignity human to right of the constitutionalization and concern with the then, sense, In this Scholar EyalBenevistiseesamarkeddifferencebetweendignityand US). the in absent (comparatively Europe in tradition aristocratic the in roots its find to dignity initself. remained avalue Grimm,” Themen einer deutsch-amerikanischen Konferenz deutsch-amerikanischen Themen einer 6 (Apr., 2000), pp. 1279-1398; Whitman, “The Two Western Cultures of Privacy: Dignity versus Liberty,” versus Dignity Privacy: of Cultures Western Two “The Whitman, 1279-1398; pp. 2000), (Apr., 6 97, . 9. o a oeht iia ve, e W Cl Dra, En Gudäzih Bwrug Aus Bewertung Grundsätzliche “Eine Kommers, P. Durham, Donald Cole and W. Kirchhof Paul see eds. view, in similar Sicht,” Amerikanischer somewhat a For 898. p. 1997), ae a Journal Law Yale eak md b Dee Gim n A Itriw ih utc Fak aouc ad rfso Dieter Professor and Iacobucci Frank Justice with Interview “An in Grimm Dieter by made Remarks p.134. Chaskalon(2002), p.126. Nolte(2005), “Comment,” ined. EyalBenevisti, Societies,” Three Respect: and Civility “Enforcing Whitman, Q. James Germany,” Contemporary in Discourse “Public Eberle, J. Edward 144 Others still reject the conflation of concerns over human dignity with laws of honor. of laws with dignity human over concerns of conflation the reject still Others ae ai rgt ad reos eades f ae gne, ainlt, etc., nationality, gender, but, notnecessarily,andcertainlyonly,therighttoprotectionofhonor. race, the of to regardless freedoms subject and is rights being basic same human each that positing universalistic, is message epc a sc. t mle rset o ah individual each to respect implies It such. as respect even not honor, or reputation of protection imply necessarily not does dignity human of concept The meaning. different remarkably carry terms two These Journal of Law & ofLaw Equality Journal 146 Vl 13 N. (p. 20) p. 1112; e as, hta, ‘ua Dgiy in Dignity’ “‘Human Whitman, also, see 1151-1221; pp. 2004), (Apr., 6 No. 113, Vol. , In other words, whether we take a more universalistic view of dignity or, on Inotherwords,whetherwetakeamoreuniversalisticviewofdignity 143 Others have proposed to look at the history of the law protecting law history ofthe at the look proposedto Othershave , Vol. 2, No. 2 (Fall, 2003), p.199. 2(Fall,2003), , Vol.2,No. (Nomos, 1992), p. 63. p. (Nomos,1992), Case Western Reserve Western Case The Yale Law Journal Law Yale The Deutschland und sein Grundgesetz: Grundgesetz: sein und Deutschland qua human niiul Its individual. 147 dignity: I therefore make therefore I , Vol. 47 (Spring, 47 Vol. , , Vol. 109, No. 109, Vol. , 145 The 39 CEU eTD Collection 150 149 148 to reference by issues hard many “resolving Thus, inescapable. is values two the of ranking for need occasional the protection, speech of source a as at looked primarily is autonomy, personal of instantiation an as dignity, that assuming even But background. the to values and rights other relegating status, constitutional privileged given be should speech free that obvious all at not is it out, point equality emphasizing advocates As avertable. longer no is inevitably beusedtorestricttheother. will one unsurprisingly, and, conflict constitutional in other each find often will dignity and speech of freedom other, each undermine as well as reinforce they because words, other In deprived.” is others dignity of the which of through use instrument the often also speech is speaker, the of dignity the of manifestation a sometimes is speaking although for mistaken, is proposition, general a as speech, and dignity of conflation “the argues, Schauer Frederick As attack. its for vehicle the be speech can too, so worth, personal of affirmation for tool a be may speech as just For dignity. and speech of values constitutional the between conflict it.” consider and hear to fit not are we that ground the on us from opinion an withhold to right the majority—has no and official one—no no that insisting by only individuals, as dignity, our retain “we approach: in rooted foundation, the this to as speak words Dworkin’s protection. broad dignity a speech according of autonomy, individual to point Some disputed. impact their yet clear, is not “is dignity entrenched asadiscreterightinallhumanrightsinstruments.” human personality,” of rights the in “implicit while that, fact the despite and systems, different by taken approaches different the despite so do I equality. and speech Rights: Human Dignity and American Values Dignityand Rights: Human Frederick Schauer, “Speaking of Dignity,” in eds. Michel J. Myer and William A. Parent, A. andWilliam J. Myer Michel ineds. of Dignity,” “Speaking Schauer, Frederick RonaldDworkin, 134. p. Chaskalon (2002), When we bring human dignity considerations into the speech context, their relevance their context, speech the into considerations dignity human bring we When Where that leaves us is in a situation where the hierarchization of constitutional norms asituationwherethehierarchization of constitutional Where thatleavesusisin Taking Rights Seriously Taking Rights 149 e oe ol b hr-rse t inr te oeta for potential the ignore to hard-pressed be would one Yet (Harvard University Press, 1977), p. 200. University Press,1977), (Harvard (Cornell University Press, 1992), p. 179. p. Press,1992), (CornellUniversity 148 The Constitution of The Constitution 150 40 CEU eTD Collection one early commentary on the German Basic Law put it, there is a risk of it becoming “ becoming it of risk a is there it, put Law Basic German the on commentary early one also carriesdangers;as constitutionalism play inGerman isto far-reaching rolewhichdignity 155 Ibid. 154 153 152 151 unique. rather dignity is personality of human development free to between right German distinctive link the and considerations the moreover, law, case German with dealing when upon dignity.” human of borderlines the and content historical the define “the it, put to Court help society a of conceptions value principal Constitutional the and diversity, cultural the developments, Federal German the of president one As former transnationally. value such any at looking when true be should same the Indeed, value. constitutional a as dignity of understanding German the referencing when employed Münze it.” realize to and protect to state the obligating order, constitutional whole German the the throughout dignity infuses constitution, of the value central the in As individuality. focus on role central Dignity’s well. a isnotmerely writing: “Dignity one observer as to, with beenpointed constitutional system has contexts national other be could in what for achieved model a as taken is balancing dignity versus speech free to approach directly whichofthevaluesfreespeechanddignityismoreimportant.” consider to times at necessary be may it consequently and question-begging, be will dignity Law),” this development, writing: this development, ulses 02,p.41-42. pp. Publishers, 2002), For cases where this happened, see Ernst Benda, “The Protection of Human Dignity (Article 1 of the Basic the of 1 (Article Dignity Human of Protection “The Benda, Ernst see happened, this where cases For Eberle, J. Edward Ibid. Dürig Maunz andGünter Theodor Ibid. Southern Methodist University Law Review Law University Methodist Southern ” fe, ua dgiy ruet ae sd s mnr, n te pcfc German specific the and mantra, a as used are arguments dignity human Often, oeie i a oeo ls rdclu cnet i getr hn h dne ta ay serious any that danger the than greater orwithoutsanction. undetected, passes is violation oftheprinciple context, ridiculous less or more a in sometimes change,” “small deterioratesinto dignity human protecting of principle high the that risk The 153 sal hne f ruh it tiil cases. trivial into brought if change) (small Dignity and Liberty: Constitutional Visions in Germany and the United States United the and Germany in Visions Constitutional Liberty: and Dignity GudeezKommentar Grundgesetz , Vol. 53 (Spring, 2000), pp. 448. Benda also warns against warns also Benda 448. pp. 2000), (Spring, 53 Vol. , , Band I, Art 1 Abs. 1 (C.H. Beck Verlag, 1959). BeckVerlag, Art1Abs.(C.H. , BandI, 154 155 eetees cuin s o be to is caution Nevertheless, s il e ute elaborated further be will As 151 152 This seemingly This (Praeger (Praeger kleine 41 CEU eTD Collection 157 156 its of because democracy endangers it posits, he Thus, itself. democracy to affront direct a is speech hate that argue Wolfson like authors impact, societal negative its of claim the majority. the of interests liberty other and associational curtails which members,” non-target-group on effect “[t]he disregard not view, her in should, We large. words.” and thoughts similar to onlookers weak-minded incite and discourse, civil down break made, is speech the which in Nicholas community the of weave the “tear to Professor posited is speech hate that admit as Wolfson, such regulation, of opponents Even speech. such allowing when communitypays price thebroader askwhat is similarly importantto it caused byhatespeech, 1.4 Democracy a strong dignity-basedargumentforitsregulationcanbeandhasbeenmade. society, within sub-group distinctive a of self-identification very the a on to attack amounts harmful often so negationism that Given likely. strikingly is this denial, Holocaust of case the In speech. on restrictions involve may protection whose right full-standing a as that, believe treated be to not could dignity it, for reason provisions makes constitution country’s a when no especially is there instance, for equality, of concerns than norm diffuse more a perhaps Though mold. only the be not need it speech, of freedom upon restriction legitimate a be can dignity how to as instructive is Republic Federal the in place in system the while that, simply mean I final. not but informative, highly is model German the then, Matsuda (1989), p. 2338. p. Matsuda(1989), NicholasWolfson, In terms of a wider discussion evaluating dignity as a possible restriction on speech, on restriction possible a as dignity evaluating discussion wider a of terms In Having discussed arguments rooted in equality and attention to the individual harm individual the to attention and equality in rooted arguments discussed Having Hate Speech, Sex Speech,FreeSpeech Sex Hate Speech, 156 Matsuda also argues that hate speech bans serve to protect society at society protect to serve bans speech hate that argues also Matsuda (Praeger Publishers, 1997), p.47. 1997), (PraegerPublishers, 157 In correlation with correlation In 42 CEU eTD Collection 161 160 159 158 forces those against itself defend to democracy for need the to pointed Loewenstein Karl 1937, as early As concern. recent a hardly is means undemocratic by destruction its attempt therefore buildoffoftheequalityanddignityconcernsillustratedabove. will discussion the of part This it? about done be should what and unregulated goes speech hate when attack under come they do How citizens? its for envisioned are obligations and rights What envisage? we do setup democratic of kind what asks: approach latter this words, other In democracy. confronting speech hate of problem the to response rights-based a into dignity and equality of considerations incorporates approach second The itself. democracy defending toward act an as justified is life public from exclusion and restriction their such, As order. democratic the destroy to seek that state the within instability of agents of hands namely prevention.” democracy, and militant “protection of term technical the in intertwined goals” “twin of set a is activities.” their and parties, especially Demokratie ( democracy” “militant of concept the in based is One here. presented social and thought, servingthecauseofinequality.” political influencing free from to voices minority right suppress their to defending seek “they by expression, apparatus democratic the of use make propagandists hate while that writes regulation, of proponent strong a Tsesis, Alexander produces. it harm minimal”) is utterance the of content ideational (“the value of lack intrinsic Hazan (2000), pp.236. Hazan (2000), and Kretzmer eds. in Record,” Overall and History Provisions: Constitutional Through Speech of Freedom and Dieter Oberndörfer, “Germany’s ‘Militant Democracy’: An Attempt to Fight Incitement Against Democracy Democracy Against Incitement Fight to Attempt An Democracy’: ‘Militant “Germany’s Oberndörfer, Dieter ed., AndrásSajó p.6. Tsesis(2002), 47. p. Wolfson(1997), w apoce t te neato bten ae peh n dmcay il be will democracy and speech hate between interaction the to approaches Two h dlma ae b dmcay vr o t poet tef rm os hn they when foes from itself protect to how over democracy by faced dilemma The n emn, nesod body a “h fgt gis rdcl movements, radical against fight “the as broadly, understood, German), in Militant Democracy 161 hs prah ok a ht sec a poaad i the in propaganda as speech hate at looks approach This (Eleven International Publishers, 2004), p.210. 2004), Publishers, (ElevenInternational 160 159 As has been observed in the German context, there context, German the in observed been has As streitbare 158 and the social the and or wehrhafte 43 CEU eTD Collection Kommunistische Partei Deutschlands Partei Kommunistische 167 166 165 164 163 162 parties period interwar the from varying contexts to applied generally is what Convention, assumed undertheguiseofmilitantdemocracyisallowed: 17. the under article that, ECHR’s clear it the makes 17 in article of as interpretation well as states, European of a of number practice the in echoed is It insightful. remarkably seem well may it hindsight, With rules” its of existence very the deny that parties game the from “exclude to call his time, the at nations European other and Reich Third the in fascism of against force.” asserts itself thespirit falsehood, that stronger than is truth run long the in that ideology democratic of confidence tolerant the “exploit which h rlvne f ril 1 ad h itrrtto gvn o t y h Cut il e ute dsusd (with discussed further be will Court the by it to given interpretation the Chapter3. denial)in Holocaust reference tocasesinvolving and 17 article of relevance The para. 98. For an analysis of the view on militant democracy taken by the ECtHR in ECtHR the by taken democracy militant on view the of analysis an For 98. para. uh s h atmtd ota bn n h Cmuit at f utai. See, Australia. of Party Communist the on ban postwar attempted the as such nvriy rs, 05. o a erir eso, e Cpci, Dfnig eorc: ecin t political to reactions democracy: “Defending Capoccia, Europe,” see interwar in version, extremism earlier an For 2005). Press, University Macklem, “Militant democracy, legal pluralism, and the paradox of self-determination,” self-determination,” of paradox the and pluralism, legal democracy, “Militant Macklem, “Constituting the Enemy: A Response to Carl Schmitt,” in ed. Sajó (2004), pp.19-34. Sajó(2004), ined. A ResponsetoCarlSchmitt,” Enemy: “Constituting the 460. of Constitutional Law of Constitutional Vol. 31, No. 3 (Jun., 1937), p.424. No.3(Jun.,1937), Vol. 31, uh s h bn i Gray o the of Germany, in ban, the as Such Capoccia, Giovanni I,” Rights Fundamental and Democracy “Militant Loewenstein, Karl Article 17 of the ECHR reads: Article 17oftheECHR Ibid. Refah Partisi (The Welfare Party) and Others v. Turkey v. Others and Welfare Party) (The Refah Partisi 167 and freedoms set forth herein or at their limitation to a greater extent than is provided for in for provided the Convention. is than extent greater a to limitation their at or herein forth set freedoms and rights the of any of destruction the at aimed act any perform or activity in any engage to right any person or group State, any for implying as interpreted be my Convention this in Nothing Militant democracy as the concept of fighting democracy’s inner antagonists has been has antagonists inner fighting democracy’s concept of democracy asthe Militant a in recognized freedoms imposed onthosegrounds. and penalties against rightsprotection Convention’s the of to the claim destruction lay cannot of democracy the flouting at aimed the is and which democracy pr democracy respect policy a to forward fails put or which violence to incite leaders whose party political [A] n te oe eet ie n xrm-ih mvmns n uoe n te United the and Europe in movements extreme-right in rise recent more the and , Vol. 4, No. 3 (Jul., 2006), pp.488-516. No.3(Jul.,2006), , Vol.4, eedn Dmcay Ratos o xrms i Itra Europe Interwar in Extremism to Reactions Democracy: Defending European Journal of Political Research Political of Journal European (KPD), 5 BVerfGE 85 (1956). Similar cases existed in other contexts too, contexts in other existed cases Similar (1956). 85 BVerfGE 5 (KPD), 165 Sozialistische Reichpartei Reichpartei Sozialistische , Judgment of the Grand Chamber, 13 February 2003, 13 February Chamber, Grand of the , Judgment 166 to the early postwar bans on fascist on bans postwar early the to SP, BefE (92 ad f the of and (1952) 1 BVerfGE 2 (SRP), The American Political Science Review Science Political The American , Vol. 39, No. 4 (Jun., 2001), pp. 431- pp. 2001), (Jun., 4 No. 39, Vol. , 163 162 was far-reaching indeed. far-reaching was In the context of the rise ofthe context Inthe ne alia inter Refah Partisi Refah 164 International Journal International , David Dyzenhaus, Dyzenhaus, David , h ECtHR’s The Jhs Hopkins (Johns , see Patrick see , 44 , CEU eTD Collection productive.” “counter- thus are and radicalization sometimes and reorganization their to lead often too measures militant movements, and associations, parties, extremist debilitating of instead that 172 171 170 169 in Europe,” Western in experiences from lessons the state: with constitutional right the extreme of the instruments “Combating Husbands, Christopher 119-144; pp. 2000), Press, University (Oxford 168 driven be invariably would deniers with expressed been has monitor), Holocaust to difficult more become consequently (and that underground fear, this similar emboldening, A their goes. cause may argument repression then, extremists, weakening of Instead positions.” radical-right of hardening the and networks clandestine of creation the to lead can which ghetto-formation, towards tendency a victims its in stimulating of effect the have “can it saying repression, of dangers potential the to points Minkenberg Michael scientist Political deniers. Holocaust and speech hate of regulation the against arguments to similar unproven effectiveness. duetotheir militant democracy tools of reliance onthe Germany. to respect with particularly extremism, reducing in effective as methods legal repressive praise who those are There divided. are etc.) opinion and speech, assembly, to right the of restrictions bans, States. Disengagement from RacistGroups,” Disengagement Deutschland Deutschland opportunities for repression against the extreme right in Germany,” in Christian Davenport Davenport Christian in Germany,” in right extreme the against repression for opportunities tetae Dmkai i enm nentoae Vergleich internationalen einem in Demokratie streitbaren enm, Lgl ersin f xrm rgt ate ad ail iciiain“ n d. ud opas and Koopmans Ruud eds. in Statham, discrimination,“ Paul racial and parties right extreme of repression “Legal Fennema, Humbolt, 1978); Gregor P. Boventer, P. Gregor 1978); Humbolt, Verlag, 1995) and Michael Minkenberg, “Repression and reaction: militant democracy and the radical right in France,” right Germany and radical the and democracy militant reaction: and “Repression Minkenberg, Michael and 1995) Verlag, und Gewaltforschung and Mobilization cuz e Dmkai i Dushad n Fakec. i Vrlih e Ugns i politischem mit Umgangs des Vergleich Integration Ein europäischen der Frankreich. Hintergrund und dem Deutschland vor in Extremismus Demokratie der Schutz Minkenberg (2006), p. 43, also citing Tore Bjørgo, “Exit Neo-Nazism: Reducing Recruitment and Promoting and Promoting Recruitment Reducing “Exit Neo-Nazism: Bjørgo, citing Tore also p. 43, (2006), Minkenberg Minkenberg(2006). Jesse, Eckhard Lameyer, Jürgen Claus Leggewie and Horst Meier, Horst and Leggewie Claus 168 One of the criticisms levied against using militant democracy to counter extremism is extremism counter to democracy militant using against levied criticisms the of One Opinions over the impact of anti-democratic means (such as party and association and party as (such means anti-democratic of impact the over Opinions Cloum elg 18) n Ru Komn, Rpeso ad h pbi shr: discursive sphere: public the and “Repression Koopmans, Ruud and 1980) Verlag, (Colloquim 171 hlegn Imgain n Ehi Rltos oiis Cmaaie uoen Perspectives European Comparative Politics: Relations Ethnic and Immigration Challenging (University of Minnesota Press, 2005), pp.159-188. 2005), (UniversityofMinnesotaPress, Streitbare Demokratie, Theorie, Praxis und Herausforderungen in der Bundesrepublik Bundesrepublik der in Herausforderungen und Praxis Theorie, Demokratie, Streitbare , Vol. 1 (2002), pp.52-73. , Vol.1(2002), Patterns ofPrejudice Patterns tetae eorte En vrasnsemnuice Untersuchung verfassungshermeneutische Eine Demokratie. Streitbare 169 hr ae lo hs wo icesnl vcfrul, criticize vociferously, increasingly who, those also are There NUPI Republikschutz: Masstäbe für die Verteidigung der Demokratie der Verteidigung die für Masstäbe Republikschutz: Grenzen politischer Freiheit im demokratischen Staat. Das Konzept der Konzept Das Staat. demokratischen im Freiheit politischer Grenzen paper, no. 627 (Norwegian Institute of International Affairs,2002). ofInternational Institute no.627(Norwegian paper, , Vol. 40, No. 1 (2006), pp. 25-44. No. 1 (2006), , Vol.40, Dnkr Hmot 18) Iael Canu, Isabelle 1985); Humbolt, & (Duncker Lse n Bdih 19) Meindert 1997); Budrich, und (Leske Journal für Konflikt- für Journal et al. et 170 Dnkr & (Duncker Theyargue , Repression (Rowohlt Der 172 45 CEU eTD Collection 178 177 176 175 174 173 inaction state writes, Matsuda Mari case, this In remains. deniers the of legitimation of danger a law), (via action state to speech. hate such stem to employed be especially, should education alternatives, law, non-criminal of the arm the harsh instead of of ‘martyrs as parties political democracy.’” extremist cloaking avoids that approach an processes, political orderly the by Obendörfer, but democracy, militant by Dieter not contained was extremism scientist “[p]olitical political writes Thus, polls. the at came nonetheless defeat Deutschlands party radical-right the ban to attempting when experience society.” civil within “alternatives with democracy militant to recourse replace to advocated have scholars effectiveness, dubious its of Because discussion. consequences ofabanoutweighitsgains. law. the of reach the escaping of incapable be also would they underground, fully never because hence, and on” so and literature, their distribute people, recruit networks, up build to need organizations respectability.” public of aura the and [extremists] publicity them of denies oxygen “it Parekh, Bhikhu of words the In thing. bad a be always may not this that retorted have regulation advocates of Yet activities. their banning respect to http://www.quardian.co.uk/world/2003/mar/19/thefarright.germany See, p. 44. Minkenberg(2006), (2006), p.221. Parekh Obendörfer (2000), p. 240. See also Minkenberg (2006), p.29. 240. SeealsoMinkenberg(2006), p. Obendörfer (2000), Ibid. “German court rejects attempt to ban neo-Nazi party,” party,” neo-Nazi ban to attempt rejects court “German inter alia frhr iapoig iw f iiat eorc i o vle n h present the in value of is democracy militant of view disapproving further A 177 (NPD) as instructive. The attempt to outlaw the party in 2002 failed, 2002 in party the outlaw to attempt The instructive. as (NPD) , Strossen(1996). n nlgu agmn i pt ot i te ih aant eains: that negationism: against fight the in forth put is argument analogous An 174 u dfeety i i nt s tagtowr ta te oeta negative potential the that straightforward as not is it differently, Put is perceived as action: “State silence…is public action where action public silence…is “State action: as perceived 178 Yet it is equally true that, by renouncing the recourse the renouncing by that, true equally is it Yet h Guardian The (last accessed March 31, 2008). March31, (lastaccessed 173 e lo mhszs ht “such that emphasizes also He ainleortsh Partei Nationaldemokratische 175 Mrh 9 20, vial at available 2003, 19, March , They point to the German the to point They 176 yet its yet 46 CEU eTD Collection 183 182 jurisprudence. drawsheavilyonGerman and Press,1991) (Harvard University 181 180 179 may approach this dominant, culturally the of speech the on emphasis its of because model,” a despite that, be often quite can it Therefore, exclusion. and inequality to leading thereby targets), its silencing speech hate as (such another silence indeed may speech some that reality the of account full takes approach This access tospeechwhenit right a as speech violent speech.” free to against right the to analogous employed be can hierarchy against equality to right “[t]he that argues which one law,” speech to approach “equality an for advocates instance, for Baer, Susanne professor Law order. democratic the to threat potential a as speech hate at looking take in can we that approach a distinct there is protect, to are trying democracy we actors. anti-democratic against used be may repression where societies in democracy of fundamentals very the over consensus the of Critics argumentation. of line democracy-based second the toward discussion the shifting for otherwisesociallyunacceptableemotionsofhate,fear,andaggression.” justification and offering legitimation their from derives groups racist new the of strength the e Fak ihla, Cnetos f eorc i Aeia Cntttoa Agmn: h Cs of Case The Argument: Constitutional American in Democracy of Regulation,” Pornography “Conceptions Michelman, Frank See in as such MacKinnon, Catharine of that by influenced is approach For an analysis of MacKinnon on silencing, see Rae Langton, “Speech Acts and Unspeakable Acts,” Unspeakable Acts and “Speech Rae Langton, see on silencing, MacKinnon an analysis of For and Public Affairs and Public 1991). The silencing effect of certain categories of speech has been often pointed out in the context of pornography. pornography. of context in the out pointed often has been speech of categories certain of silencing effect The Her p.64. (2000), andHazan eds. Kretzmer Law,” in and ofDemocracy “Violence: Dilemmas SusanneBaer, Jaschke, Gerd Hans 2378. p. Matsuda(1989), Baer (2000), p.77. Baer (2000), Streitbaredemokratie dfeet ye f ruet gis mltn dmcay il om h bss of basis the form will democracy militant against argument of type different A ces o peh I dsrbts h rgt o pa truh oa frs and forms, fora, through speak of to equality means ofspeechandthusactivelyintervenesinthediscourse. right on the focuses distributes It law speech. the to case, access avoid this to In order equality. in speech speech, of other violations supporting actively by speech some limits , Vol. 22 (1993), pp. 293-330. See also Brison (1998), pp.335-336. Brison(1998), 293-330.Seealso (1993), pp. , Vol.22 Streitbare Demokratie und innere Sicherheit, Grundlagen, Praxis und Kritik und Praxis Grundlagen, Sicherheit, innere und Demokratie Streitbare Tennessee Law Review Law Tennessee ae one t te ncetbe ak f ulc icus and discourse public of lack unacceptable the to pointed have 180 181 mhszn ti cnen vr h ntr o the of nature the over concern this Emphasizing The law becomes a useful instrument in equalizing in instrument useful a becomes law The , Vol. 56, No. 2 (1989), pp. 291-319 and MacKinnon (1993). (1993). MacKinnon and 291-319 pp. (1989), 2 No. 56, Vol. , de jure de commitment to the “civic deliberation “civic the to commitment oad a eiit hoyo te State the of Theory Feminist a Towards 182 179 Philosophy Philosophy (Opladen, (Opladen, 183 47 CEU eTD Collection 190 189 188 187 186 185 184 that arguing up end can one mean, we equality of type the is equality political If regulation. political it” makes who person the of independent is argument an of force the that idea the “institutionaliz[ing] equality.” political to commitment the to reference by defined even and on “premised is democracy deliberative that explains He democracy. deliberative whose perspectiveisnotheardinsocialconflict” those of “will the when increased participation and inhibited, not enhanced, be will speech be to has inequality.” law social of context speech the to sensitive extremely equality, words, of her right In democratic fundamentally changes. the perspective to the “[a]ccording rights, foundational these of each to devoted of equally members is which order, democratic all meaningful a of of lens the through viewed dignity When society). equal and (equality another and (speech) right one between choice a as it of conceive to have longer no We problem. the of premises the reformulates speech, hate by produced harm the of understanding an in rooted approach, Her democracy. of consideration cohesive a within jointly them of conceive but equality to that from speech have therighttodoso,whatevereffect.” would speaks whoever regulation: of form a be itself “would believes, Baer circumstances, silencing.” facto de against outsiders shield to “nothing do otherwise silenced by hate speech and pornography will reinforce public debate and enhance freedom. andenhance publicdebate willreinforce andpornography by hatespeech otherwise silenced Sunstein (1993), p. 20. p. Sunstein(1993), p.93. Baer (2000), are who those include to discussion” public of terms “the expanding that arguing similarly (1998), Fiss See (2000), p.91. Baer p.114. Karst(1990), Ibid. Ibid. , p.96. uan Be, s tes eoe her, before others as Baer, Susanne as usen ece a iia cnlso cmn fo te esetv o the of perspective the from coming conclusion similar a reaches Sunstein Cass rte ta a rae cneto o) qaiy a la t a agmn barring argument an to lead may equality of) conception broader a than (rather 190 can the constitutional commitment to equality be concretized. Yet emphasizing Yet concretized. be equality to commitment constitutional the can 185 186 ss ht e o ogr ioc te ih to right the divorce longer no we that asks 188 isdrivingthelaw. 187 Within such a context, therefore, context, a such Within 184 189 Not to intervene under these under intervene to Not Thus, he contends, only by only contends, he Thus, 48 CEU eTD Collection 192 191 a on nature structured increasingly its is One years. recent in phenomenon speech hate the of characteristics three to pointing by trend this justifies He worldwide. laws speech anti-racist in interest growing identified the Kübler has Friedrich Law professor gone unnoticed. has not received throughouttheworld(withnotableexceptionofUnitedStates). have measures, denial anti-Holocaust including laws, speech anti-hate favor growing the noted already have authors of number a fact, In legislation. denial Holocaust and speech hate at looking for lens new a offer can optic international the laws, speech hate with experiences national specific by influenced heavily perspective. are accounts discussed previously the international of many While the toward focus shift to analysis our benefit would it speech, I 2. the constitutionalcommitmenttoboth. fulfill constitutional to effort an in other each comparable against assessed and balanced be on can they where and footing are speech and equality where contexts in possible is this inherent Of course, it. equalizing measures of the proposes concrete that arena,and access to inequality of over, glossing of instead acknowledges, that approach an for advocates she of “equality of Instead, equality. to commitment the concept fulfilling as arena) public the to access the (of opportunity” on rely to refuses It equality. of understanding meaningful elections.” as well as policies influence to chance a have despicable, or eccentric how matter no everyone, that demands “equality (1998); Knechtle (2006), pp. 539-542; and Rosenfeld(2003). pp.539-542; Knechtle (2006), (1998); Speech,” 1993. See, Pornography,” and “Women Dworkin, Ronald NTERNATIONAL ne alia inter The emergence of a more or less unified system of international hate speech norms speech hate international of system unified less or more a of emergence The hate of regulation the against and for arguments normative the assessed Having tnod ora o Itrainl Law International of Journal Stanford Eiaeh . ees “reo o Sec ad nentoa Nrs A epne o Hate to Response A Norms: International and Speech of “Freedom Defeis, F. Elizabeth , S TANDARDS The New York Review of Books of Review York New The Vl 2 (92, p 5-3; codik n O’Donnell and McGoldrick 57-130; pp. (1992), 29 Vol. , 191 ars iw hwvr sek o a more a of speaks however, view, Baer’s , Vol. 40, No. 17, October 21, October 17, No. 40, Vol. , 192 49 CEU eTD Collection qaiy n non-discrimination.” and equality to right the to effect give to obligation state’s a fulfill to failure a [constitutes] speech hate restrict to “failure that writes and theorists) race critical (echoing equality of concerns with law international of concern increased new this of links focus Farrior Stephanie the Jurist constitute attention. international hate of expressions that clear is it not, or speech hate detailed intheensuingdiscussionofsymbolicrolelawfightingthem. be will and groups hate by power of accumulation the and speech hate between relationship 196 195 194 193 the to it linking by norms speech anti-hate wide-encompassing for need the justify to as actors.” private against protect to obligation government a as well as speech, hateful from free be to right “a terms she what right, positive a to akin something country.” one of territory the to confined be rarely will conflicts ethnic and obsessions racial of consequences the that Kübler “is factor identifies second A standards. common necessary of emergence the to lead thus has prosecutions criminal in cooperation transnational for need the with coupled Internet) the of distributed and produced materials.” commercially by and/or propaganda organized by generated mostly are incidents specific triggering prejudices and bias “the words, other in scale, global Concerning Hate Speech,” Speech,” Hate Concerning Rights,” expanded upon in Chapter Three below. Chapter Three expanded uponin links arguments from international law theory to those of critical race theorists by pointing to their joint joint their to pointing latter’s the by on speech, hate theorists by caused ofcases. race analyses forhighlycontextual injury ontheneed silencing effect,and the of critical seriousness the of on speech, those hate of to targets the on theory emphasis law international from arguments links tpai Frir “odn te arx Te itrcl n Tertcl onain f nentoa Law International of Foundations Theoretical and Historical The Matrix: the “Molding Farrior, Stephanie Human of Conflict a of Aspects Transnational Speech? Racist for Freedom Much “How Kübler, Friedrich Ibid. Ibid. , p.359. Farrior’s account is strongly premised on observations from European jurisprudence and will be further will be and jurisprudence European from observations on premised strongly is account Farrior’s Hofstra LawReview Whether one agrees with the existence of a unified global body of norms surrounding norms of body global unified a of existence the with agrees one Whether 193 The widespread availability of this type of material (especially since the advent since the (especially material of type this availability of widespread The Berkeley Journal of International Law International of Journal Berkeley , Vol. 27 (Winter 1998), p. 358. 1998), 27(Winter , Vol. 195 h ge frhr n asrs ht hr hs emerged has there that asserts and farther goes She 194 ülrs hr pit a t d wt the with do to has point third Kübler’s , Vol. 14, No. 1 (1996), p. 97. Farrior further Farrior 97. p. (1996), 1 No. 14, Vol. , Ibid. 196 Others have gone so far so gone have Others 50 CEU eTD Collection article 10 case law. case 10 article statutes canbefoundintheECtHR’s example oftransnationalrecognitionanti-hatespeech 201 200 199 198 197 say to it suffice now, For jurisprudence. denial Holocaust of analyses national to supplement French the analyzing when detail in discussed be will case The account. into take to ought (CERD) Discrimination Racial of Forms All of Elimination the on Convention International the of 4 article and (ICCPR) Rights Political and Civil on Covenant International the of 19 article as such tools legislative international in decision Council’s Rights France Human UN the is speech hate with collide hate outlawing standard international “emerging anspeech.” of speak to correct is it think do I reached thelevelofcustomaryinternationallaw. genocide. of occurrence American exceptionalism with regard to hate speech standards, see, standards, with regardtohatespeech American exceptionalism Law,” International A. William instance, for See, well. as campaigns Genocide,” to genocidal Road The recent Rwanda: in Speech more “Hate Schabas, in speech hate of function the out reads: 378. United States Versus the Rest of the World?,” oftheWorld?,” theRest United StatesVersus rsne a te ae nvriy etr o Itrainl n Ae Suis 19, vial at available 1998, Studies, Area and International for Center University Paper Genocide, of Yale Stages “Eight the the (and http://www.genocidewatch.org/8stages.htm Stanton, genocide H. of at Gregory occurrences see all in atrocities), presented step further final toward the step is denial first that inevitable argument the For (2004). Wendel and For a schematic account, see account, schematic a For pp.469-484. (1998), andO’Donnell seeMcGoldrick Forananalysis, on view a For standard. international emergent this outside remains U.S. Customary The in 2323. p. Speech (1989), Hate Matsuda of Notion Emerging the of Sign A Australia: v. “Hagan Mello, Mariana some havepointed the Holocaust, before hatepropaganda by to theroleplayed frequentallusions Beyondthe . information received in confidence, or for maintaining the authority and impartiality of the of impartiality and judiciary. authority of the disclosure maintaining the for preventing or for confidence, others, in of received information rights the or reputation the of protection the for morals, or health of the protection crime, for or ofdisorder the prevention for public safety, or integrity territorial security, national of interests the in society, democratic a and in necessary law are by prescribed are as penalties or restrictions conditions, formalities, such to subject public the by requiring enterprises. from orcinema television licensing ofbroadcasting, interference States prevent without not shall ideas article This and frontiers. of regardless information and authority impart and receive to and opinions While the latter claim may somewhat overstate the degree of international consensus, international of degree the overstate somewhat may claim latter the While 200 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be may responsibilities, and duties it with carries it since freedoms, these of exercise The 2. hold to freedom include shall right This expression. of freedom to right the has Everyone 1. 199 hs n ohr eiin st h tn o wa ntoa itrrttos of interpretations national what of tone the set decisions other and This n eape f uh nentoa itrrtto o fe sec nrs s they as norms speech free of interpretation international such of example One Loyola of Los Angeles International and ComparativeLawReview and International LosAngeles Loyola of 201 This, too, will be discussed in more detail in the third chapter, as a as chapter, third the in detail more in discussed be will too, This, 197 hr ae vn lis ht ae peh euain a al but all has regulation speech hate that claims even are There Ibid. , pp. 464-469. Article 10 of the European Convention of Human Rights Human of Convention European the of 10 Article 464-469. pp. , (last accessed March 31, 2008). 31, March (lastaccessed Maine LawReview loi Gayssot loi 198 McGill Law Journal Law McGill , Vol. 53 (2001), pp. 487-502. (2001), , Vol.53 inter alia in Chapter Three below. Another below. Three Chapter in , Kevin Boyle, “Hate Speech—The “HateSpeech—The , KevinBoyle, , Vol. 46 (2000), pp. 141-171 pp. (2000), 46 Vol. , , Vol. 28 (2006), pp.365- 28(2006), , Vol. arso v. Faurisson 51 CEU eTD Collection 203 202 hand, other the on could, Legislation enforcement. of record its by measured effectiveness symbolic. and instrumental their on has this impact effectiveness andsocialacceptance. the on and not, or intended so whether laws, denial Holocaust anti- by carried messages mixed often is complex, the analysis on reflect My reader relevance. the have utmost to intended of are society of and power of circles various within perception and reception, inception, law’s the of intricacies the specifically, negationism within anti- and to broadly, regulation speech hate of case the reacted in words, other In telling. also society is are laws the then, How, framework. constitutional broader the within function expected their illuminate they as inasmuch legislation anti-denial of passing the behind motivations to tracethe is Equally relevant such laws. and functioningof the adoption in role crucial a play purpose, what toward and embody, to meant is regulation such values What regulation. speech hate of account an of aspect important only the not is democracy, S 3. values.” societal laudable and rights human other over roughshod ride to allowed not is expression of and order, of freedom of public imperative ideological “the internationally, of words, other In others, itself). democracy of rights the of protection limits the certain with within primarily, level, (dealing, international the on proscription to open is speech hate that Review Symbolic Action, Mass Arousal and Quiescence and Arousal Mass Action, Symbolic of Illinois Press, 1976); Muray Edelman, Edelman, Muray 1976); Press, Illinois of Symbols of Government Symbols of Joseph R. Gusfield, R. Joseph Speech,” Hate of Tolerance from Equality (Racial) “Wrestling McGonagle, Tarlach YMBOLIC , Vol. 23 (2001), p. 24. (2001), , Vol.23 al wr o te oil ucinn o lw dniid w tps f legislation: of types two identified law of functioning social the on work Early of fabric very the or community, the individuals, to whether harm, on emphasis The 202 R OLE OF Symbolic Crusade: Status Politics and the American Temperance Movement Temperance American the and Politics Status Crusade: Symbolic (Yale University Press, 1938). 1938). (YaleUniversityPress, L AW 203 Instrumental law, in this paradigm, pursues concrete goals, its goals, concrete pursues paradigm, this in law, Instrumental h Smoi Ue o Politics of Uses Symbolic The (1971). For an even earlier work, see Thurman W. Arnold, W. Thurman see work, earlier even an For (1971). 16) ad Edelman, and (1964); Dublin University Law University Dublin (University oiis as Politics The 52 CEU eTD Collection 210 209 208 207 RegelMaat 206 205 204 can approach communicative the societies, specific within tool normative a as promoted and on the momentlawisconceived community hasinternalizedthenorms.Bysheddinglight community.” “interpretive the between and framework” legislators “communicative shared a within communicated are which norms norms.” morality.” a incorporates that community a forms laws symbolic of audience the that “is laws symbolic and instrumental meaning,” produces approach. “communicative” so-called the is here relevance of method such One legislation. of effectiveness social the of abattleoverthecharacterdominantcultureanditsvalues. drinking. of eradication the than rather others, over subculture societal one of primacy the of reaffirmation symbolic the goal a as had goes, argument the This, States. United the Movement Temperance the of that is legislation symbolic such of examples the of One ideals. and norms social enforce action state ritualistic or ceremonial as of thought be also and Communicative Functions of Law, Especially with Regard to Moral Issues,” Moral Expressive to “The Regard with Burg, Especially Law, der of van Functions Communicative Wibren and See dear.” hold we values which and is identity our what are, we who nineteenth. the of century/beginning twentieth the of end the at Under the Rule of Law Rule of Under the No. 3 (1986), pp.335-354. No. 3 uipueta, ntttoa n Scooia Perspectives Sociological and Institutional Jurisprudential, Witteveen and van Klink, “Why Is Soft Law Really Law? A Communicative Approach to Legislation,” Legislation,” to Approach Communicative A Law? Really Law Soft Is “Why Klink, van and Witteveen time of Iceland’s beer ban from 1915 until 1989, can be found in Helgi Gunnlaugsson and John F. Galliher, Politics,” F. Symbolic John of and Test International Gunnlaugsson An Helgi Iceland: in in found Beer be of “Prohibition can 1989, until 1915 from ban beer Iceland’s of time No. 1 (Jan., 2001), p.36. (Jan., 2001), No. 1 Sgiiat Smoi ad ypoi Lw, i e. ank vn Schooten, van Hanneke ed. in Laws,” Symphonic and Symbolic “Significant, They also emphasize the applicability of this approach to legislation on moral issues, which “can express express “can which issues, moral on legislation to approach this of applicability the emphasize also They p.27. Witteveen(1999), See, van Klink. and Bart Witteveen Willem J. are approach this of main proponents The German the Irishor newcomerssuchas to asopposed Protestants Anglo-Saxon olderestablished Namely,the Gusfield(1976). Ibid. Ibid. , p.36. , p.35. oe eety to shlr hv sgetd nltcl prahs o understanding to approaches analytical suggested have scholars too, recently, More 209 19) p. 2-4; n es Ncle Zeegers Nicolle eds. and 126-140; pp. (1999), The proponents of this approach understand law asembodyinga setofaspirational Theproponentsofthisapproachunderstandlaw (The Edwin Mellen Press, 2005). (TheEdwinMellenPress, 207 r rne f enns I ti cnet te ifrne between difference the context, this In meanings. of range a or 205 In other words, rather than an instrumental tool, it was the product the was it tool, instrumental an than rather words, In other 206 208 t mhszs o “h ceto o saue i a at which act an is statutes of creation “the how emphasizes It hs omnt te ves a a “xrsie f shared of “expressive as law views then community This 210 Dbrh hre ulctos 19) p. 27-70; pp. 1999), Publications, Charles (Deborah t al. et h lw teeoe wrs we the when works, therefore, law, The Ibid. , oil n Smoi Efcs f Legislation of Effects Symbolic and Social An interesting analogous examination, this examination, analogous interesting An 204 hs am s o xrs and express to is aim whose Law & Society Review Society & Law Law and Philosophy and Law eitc ad Legislation: and Semiotics inter alia , Witteven, , Witteven, , Vol. 20, Vol. , , Vol. 20, Vol. , 53 CEU eTD Collection “communicative legislation.” 212 211 vague in worded is law the when (especially assessed be will possibility the say, to is That withskepticism. anti-Holocaust deniallegislation suchas scrutinize symbolic legislation accordingly I inter-relationships. their and the not, declared or motivations, their involved, with actors concern its in science political by inspired approach an taking am I this then, In sense, important. more is moment legislative the with, begin to regulation triggers what myresearchis legislation inthecountriesIcover.However,sincedrivingquestionbehind less interaction—is relevant. and discussion at aim positive an with a values in communal sense—articulating symbolic enforced—and being without values certain sense—expressing negative a in legislation symbolic between differentiation key the therefore, to purposes, my For commitment of degree particular a constitutional values,and,ultimately,aslawthatmatters. signifies that meaning, carries that law as expressive sense, its in use it I will Instead, largely unimplemented). and ineffectual that is law as (understood law” “symbolic label the attributed connotations negative sometimes the from myself distance I study this throughout that note should I force. implementation much and legislation”), “expressive dignity, called have equality, some (what democracy speech, free as such values constitutional notably values, certain incorporate intended to is denote legislationthat to use it I will be employed. legislation” will the how of understanding competing valuesdiscussedinSectionTwoaboveactuallytranslateintolegislativeoutcome. systematic more a provide helps It study. current the inform “symbolic legislation,” particularly the view that when unenforced/unenforceable, itismeaningless. when unenforced/unenforceable, the viewthat particularly “symbolic legislation,” n rue bj e arbeid de bij vrouwen en Bart van Klink, Klink, van Bart accompany may that connotations negative the discard therefore, also, I 41-47. pp. (2001), Burg der Van hogot h cret nlss a ipiid nesadn o te em “symbolic term the of understanding simplified a analysis, current the Throughout 212 That is not to deny that this difference exists when it comes to anti-negationist to comes it when exists difference this that deny to not is That De wet als symbol. Over wettelijke communicatie en de Wet gelijke behandeling van mannen van behandeling Wet gelijke de en communicatie wettelijke Over symbol. als wet De WEJ Ten Wlik 19) Vn ln cls h scn o tee types these of second the calls Klink Van 1998). Willink, Tjeenk (W.E.J. 211 even when not armed with armed not when even 54 CEU eTD Collection 214 XIII) Rechtstheorie und Rechtsoziologie für (Jahrbuch Rechtspolitik und Gesetzgebungstheorie 213 the veryrealdangersofhatespeechinhandsactorsseekingpoliticalpower,for about writes he when this of convinced is Kübler Friedrich consequence. a as dwindle will acceptance public and blow serious a receives legitimacy political their goes, argument this them, to illegality of stigma the attaching By abusers. their on has minorities, abused of side the on involvement, state that delegitimization the to points explanation One interesting. is canbeachieved created byhatespeech,lawsagainstitmightatleastcauseadent.Howthis of as asignalingactiononthepartofstatethatitisnotneutralinmattersintolerance. hopes weak potentially with or measures later incisive more even toward step first a as seen legislation, be might It matters. enforcement, that belief the to lead may speech intolerance.” taken against been had action that constituencies campus assure “to racial is purpose Their to responses campus. on incidents symbolic as serve to is implemented are they reason one that argues instance, for Gould, Jon Professor campuses, college on codes speech on Writing been to. pointed often has play might regulation speech anti-hate and anti-negationist role symbolic as such goals, political overcoming politicalcrises,achievingcompromise,andelectoralsuccess. shrewd lurk often legislation of type this behind that language) Verlag, 1988), pp.222-245. Verlag, 1988), p. 5. aad idran “yblsh Gstgbn, i es Dee Gim n Wre Maihofer, Werner and Grimm Gould, B. Jon Dieter eds. in Gesetzgebung,” “Symbolische Kindermann, Harald What then, is the relevance of all this to a discussion of Holocaust denial laws? The laws? denial Holocaust of discussion a to this all of relevance the is then, What dignity of human beings can help to interfere with such a strategy; strategy; a they importance; such symbolic have with can action. speech interfere illegal racist permanent against to with laws reconciled Therefore, help be easily can less will beings respectability human of dignity from and domestically groups the individuals and whichdenies need thelanguage abroad. Rulesoutlawing of they support amount the certain gain a to order retaining in and respectability gaining in interested become they more the office, public to get they closer The influence. their stabilize and enhance to order in government of functions usurp and grasp factions rivaling the and blurred become action “state” and “private” between limits the game, this in intolerance of climate the completely eradicating not when even that, is view Another Speak No Evil: The Triumph of Hate Speech Regulation Speech Hate of Triumph The Evil: No Speak 214 This suggests that the perceived need for action in cases of hate cases of in action for perceived need the suggests that This (University of Chicago Press, 2005), 2005), Press, Chicago of (University 213 (Westdeutscher (Westdeutscher 55 CEU eTD Collection 217 216 215 message The whole. a as nations of society the and bodies international of up made is laws these of audience external The denial. Holocaust notof form the will in hate and of expression strong tolerate still is these) of combination a or participation, democratic dignity, equality, they (be values certain to commitment national the That receive? they message The entirety. inits also society but hate speech, of individualvictim bythe audience isconstituted internal a the clarified, of already have explanation I As dual externally. and my internally both offer directed Isymbolism Here to? speak to intended they are audience Which creation? their of moment the at laws these behind lie might what explicitly, More purpose? intended its is exactly, what, people, different to contexts different in matters symbolism aggressed andthecommunityatlarge. individually the protecting of means a both becomes speech hate against regulation Thus, grounds. similar on operated above democracy militant on centered discussion The large. at into inroad unfortunate the society and as minorities for armor protective necessarya becomes it liberty; instead, individual appears longer no regulation then, way, this in Viewed agenda. extremist an with actors political self-interested of hands the in tool a as regarded play. problem” may larger much a of subset regulable plausibly more and small “a least at legislating that role end. that toward tool valuable a is law via respectability” their of proponents its “depriving by legitimacy removing intolerance, of climate the eliminating completely not while that, observes thus He 817. Frederick Schauer, “The Sociology of the Hate Speech Debate,” Debate,” Speech Hate the of Sociology “The Schauer, Frederick p.368. Kübler(1998), 361-362. pp. Kübler(1998), il e teghnd f h lw s upre b itrainl agreements international by supported is law the mandating suchrules. if strengthened impact This be courts. by will enforced being without or before even effects show f e cet ht ningtoit eilto cris ybls, n ta this that and symbolism, carries legislation anti-negationist that accept we If 216 He is not alone in pointing out that we should not discard the symbolic the discard not should we that out pointing in alone not is He 217 Put differently, what these accounts suggest is that hate speech may be that hate suggestis whattheseaccounts Putdifferently, 215 Villanova Law Review Law Villanova , Vol. 37 (1992), p. (1992), 37 Vol. , 56 CEU eTD Collection 219 218 for actions tort as such remedies civil included have generally speech hate and denial both for suggestions Alternative denial. Holocaust punish to do” “will law criminal only excludes theresorttolaw.Thelatterisasole-standing paththatmaybepursuedornot. denial necessarily of fighting ofothermeans that theavailability not think Consequently, Ido plight. their for indifference its to speaks silence state’s a that action; indeed is action no that feel do, often and might, victims that inescapable is it tread, to try proponents such carefully a as same the not is speech harmful regulate the with proposed, often is reluctance to society’s view understand that to be made should victims that complementary remark this sure, be To etc.) in campaigns education awareness as schools, (such value negationists fighting its of means as other from such attention misdirect community and a of aspects organic affect commitments.” to targeted well not is it individuals, of concern a primarily is law criminal the “because that believe They allowed. be to still harmful—yet potentially offensive, speech—unpleasant, as view ultimately they what regulating in law criminal of medium harsh the of use the oppose Some instrument? legal strongest arguably the of choice the by affected message that of strength the is how message, a carry can itself law If denial. Holocaust addressing in legislation, of types other its protect citizens. and obligations, its fulfill to ready player, global respectable a is anti- it that its to claim reinforce commitment to works country’s only instruments The international speech internally. anti-hate expressed and discrimination one the to similar is sent Evan Simpson, “Responsibilities for Hateful Speech,” forHateful “Responsibilities EvanSimpson, pp.1421-1422. Wendel(2004), To go back to the question of why criminal law: it is not at all always the case that case the always all at not is it law: criminal why of question the to back go To to recourse the however, explain, fully not does this All 218 f hs ee h cs, nidna lw mgt vn e counter-productive be even might laws anti-denial case, the were this If Legal Theory laissez-faire , Vol. 12 (2006), p.176. , Vol.12 ad o deniers. for card criminal law, as opposed to opposed as law, 219 However 57 CEU eTD Collection Law and Philosophy Law and 221 220 jurisprudential the of means analysis ofleadingcasesofferedinChapterThree. by action” in laws the “see to able be then will reader The Two. Chapter in framework constitutional broader and process adoption their of descriptions brief with laws, these of texts the depth in more explore to chance a get therefore will reader The success. specific without not before and countries, of place number a take in implemented did were laws negationist trials follow, to discussion empirical the in seen be will as In fact, phenomenon. against this fight the in fortuitous or always necessary otherwise) are laws clear whether not is Moreover, it distress emotional of infliction intentional and defamation Diana Tietjens Meyers, “Rights in Collision: A Non-Punitive, Compensatory Remedy for Abusive Speech,” Speech,” Abusive for Remedy Compensatory Non-Punitive, A Collision: in “Rights Meyers, Tietjens Diana Yonover(1996). , Vol. 14, No. 2, Special Issue on Rights (May, 1995), pp.203-243. 1995), IssueonRights(May, 2,Special , Vol.14,No. specifically targeting negationism (whether criminal or (whether criminal negationism targeting 220 n nnpntv remedies. non-punitive and 221 58 CEU eTD Collection 223 Initiatives National and 2005). HumanRights, Institutions and Legislation, Democratic (OSCE Officefor Statistics, of Overview An Region: OSCE the in Crimes Hate Combating 222 Canada in Zündel Ernst as such “revisionists” notorious trial bring to to were used laws, particularly libel laws, Other legislation. anti-denial specific lack which countries in place took deniers Holocaust of trials famous themost Some of a choice. is also Holocaust, tothe sensitivity influenced bynational guilt and/orthedestructiveroleofanti-Semiticspeechinthesesocieties. of acknowledgment implicit an of viewpoint the from also but view, of point constitutional theoretical, purely a the from solely where not problematic studies is case law by on denial Holocaust focus of mostly regulation I account. into aspect this take I analysis, my In ofguilt. the Holocaustandrecognition publicmemoryof these societies,debatesinvolving in or debate larger collaborator a with perpetrator, congruent appears of thus laws anti-denial that of adoption it The bystander. be Holocaust, the during another or form one in and discrimination.TheemergingcaselawwillbedetailedinChapterThreetofollow. group defamation, incitement, as such phenomena, related addressing of means law) criminal (mostly other detail as well as framework, constitutional a within them Liechtenstein, place and laws these Germany, France, Republic, Czech Spain. Slovakia, and Luxembourg, Romania, the Belgium, Austria, including Approach to Freedom of Expression in Hate Propaganda and Pornography,” Pornography,” and Propaganda Hate in Expression of Freedom to Approach Vol. 55, No. 1 (Winter, 1992), pp. 77-105; Marouf A. Hasian Jr., “Canadian Civil Liberties, Holocaust Denial, Holocaust Liberties, Civil “Canadian Jr., Hasian A. Marouf 77-105; pp. 1992), (Winter, 1 No. 55, Vol. For more information on the Zündel case in Canada, see Kathleen Mahoney, “The Canadian Constitutional Constitutional Canadian “The Mahoney, Kathleen see Canada, in case Zündel the on information more For see countries, these in denial Holocaust banning articles specific of text the and information further For Legislation specifically targeting Holocaust denial can be found in several countries, several in found be can denial Holocaust targeting specifically Legislation One must not forget, however, that the regulation of Holocaust denial, much as it is it as much denial, Holocaust of regulation the that however, forget, not must One thatmostofthesecountrieswereengaged One glanceattheabovelistandonenotices 223 r ai Ivn i te UK. the in Irving David or CHAPTER II 222 In this chapter, I intend to look at the texts of texts at the look to I intend chapter, this In 224 nie h cutis ih laws with countries the Unlike Law and Contemporary Problems Contemporary and Law 59 , CEU eTD Collection 226 225 224 Trials,” Zündel the and the Often, purpose. moral charged highly a serves denial of criminalization Holocaust, the of perpetrator-country the as self-image German the of light in that understanding the been also onward) 1970s fromthe cases reachedthecourts war and (negationism appearedimmediatelyafterthe with engagement thephenomenon ofthecountry been Germany.Thishastodowiththeearly 1.1 Germany A 1. complement thediscussionofhatespeechandHolocaustdenialinparticular. which available, if provisions, penal the also and equality, and dignity, speech, to relating provisions constitutional the by followed law, anti-denial the discussing first of pattern the follow I rule, general a As relevant. where contexts national other in features comparable to scope ofmythesis,itisnonethelessusefultonotethatalternativepathshavebeentaken. cross-national analysis ofthe a Though passed. were negationism against provisions specific the before Germany) even study (France, this in the countries some of in existed deniers prosecutions of Furthermore, justice. or to deniers bring individuals to tools legal on available other employing rely associations countries these historiography, Holocaust addressing expressly og “ogtig h Fhe: h rcn hsoyo te ooas eil oeet n Germany,” in movement denial Holocaust the of history recent the Führer: the “Forgetting Long, “Lies,”” – Other and – “Auschwitz” the Law against New German The Speech: Free against “History particular pp.45-59 and 85-99. particular pp.45-59 Journal of Politics and History ofPoliticsand Journal Law Review For an account of the major Holocaust deniers in Germany and their transnational influence, see Anthony see influence, transnational their and Germany in deniers Holocaust major the of account an For Stein, Eric see phenomenon, negationist the tackle to attempts early courts’ German the of review a For See ft.49above. NTI As already stated, the paradigmatic case for studying Holocaust denial legislation has legislation denial Holocaust studying for case paradigmatic the stated, already As point but separately, countries the discuss will I coherence, and clarity of reasons For -H 225 , Vol. 85, No. 2 (Nov., 1986), pp. 277-324. 2(Nov.,1986), No. , Vol.85, OLOCAUST as well as with its numerous and vocal exponents. vocal and numerous its with as well as entire Communications and the Law the and Communications spectrum of means employed to regulate Holocaust denial is beyond the is beyond denial toregulateHolocaust employed ofmeans spectrum D ENIAL , Vol. 48, No. 1 (2002), pp.72-84. No.1 (2002), , Vol.48, L W IN AWS W ESTERN , Vol. 21 (Sept., 1999), pp. 43-56; and Kahn (2004), in (2004), Kahn and 43-56; pp. 1999), (Sept., 21 Vol. , E UROPE 226 A major consideration has consideration major A Australian Australian Michigan 60 CEU eTD Collection 229 228 sensitive 227 in solutions legal adopting of danger the to points also Osiel above. presented equation law” anti-denial = neo-Nazis + “history simple the to added be to considerations “collective that hand.” in saying blueprint legal with constructed, process, socially be can mnemonic memory the in law the using of possibility real very a ato Osiel points not—simultaneously. Mark quantifiable, other of purposes—some multitude serve to used be may which tool complex more a as issues, law moral particularly contested law, regulating the view who those with agree to tend I broadly. more laws denial present multiple-nationanalysisinaEuropean minimally believe, I which, actually work. denial laws Holocaust the way illuminates context, US the with comparisons in presented been often has moreover, case, German The effectiveness. actual its examine to social or broader law, the the of impact with engage to however, little, do They literature. the in frequent are causal explanationasvalidinallcontexts.Statementssuch this assumes (unwarrantedly) and extremism, fringe against fight the with coupled move, literature emphasizesnationalhistoryasthedrivingforcebehindGermananti-deniallegal United States and Germany,” Germany,” and States United European Approaches,” Ronald J. Krotoszynski, Jr., “A Comparative Perspective on the First Amendment: Free Speech, Militant Militant Speech, Free Amendment: First the Germany,” in on Value Constitutional Preferred a Perspective as Dignity of Primacy Comparative the and Democracy, “A Jr., Krotoszynski, J. Ronald 98, p 1319 DulsSot 19) Toa Lnmr, Fe Sec Mes re nepie n the in Enterprise Free Meets Speech “Free Lundmark, Germany,” and United States Thomas (1999); Douglas-Scott 113-169; pp. 1998), uipuec o Rc i Gray n te ntd States,” United the and Germany the in of Comparison Race A Law, of Becoms Jurisprudence Rhetoric When Forget:” Dream—Never a Have ““I Minsker, L. Natasha Do and Damned If You Don’t: Lessons Learned from Comparing the German and U.S. Approaches,” U.S. and German the Comparing from Learned Lessons Don’t: You If Damned and Do You If Damned – Speech Hate “Regulating Haupt, E. Claudia and 1549-1609; pp. 2004), (May, 5 No. 78, Vol. University International Law Journal Law University International Osiel (1996), p.661. Osiel(1996), the by Taken Approaches the of Comparison A Speech: “Hate Appleman, A. Bradley example, for See, inih oga-ct, Te aeuns o Poetd peh A oprsn f h Aeia and American the of Comparison A Speech: Protected of Hatefulness “The Douglas-Scott, Sionaidh oee, hs iw vripiis atr ad rpls u udrtnig f anti- of understanding our cripples and matters oversimplifies view this However, ai ciiis a ld o eiltv rfrs eind o teghn these strengthen to designed reforms legislative provisions stillfurther to led has neo- activities of Nazi resurgence cold-war post the although the legislation, for such reason of the existence course, of is, century this earlier history Nazi Germany’s William & Journal MaryBillofRights William Indiana International and Comparative Law Review Law and Comparative International Indiana icni Itrainl a Journal Law International Wisconsin 227 , Vol. 23 (Fall, 2005),pp.299-335. , Vol.23(Fall, milieu , Vol. 7 (Feb., 1999), p. 319. (Feb.,1999),p. , Vol.7 avr Baketr Journal BlackLetter Harvard . 228 Vl 1 (pig 19) p. 422-439; pp. 1996), (Spring, 14 Vol. , That is the motivation behind the behind the motivation is That 229 , Vol. 11 (2001), pp. 289-317; pp. 289-317; (2001), 11 , Vol. This is just one of the of one just is This Tulane Law Review Law Tulane Vl 1 (Spring, 14 Vol. , Boston 61 , CEU eTD Collection 231 230 disturbing of means as dignity human on attacks and hatred racial to incitement emphasizing ( people” the of “agitation with deals it since measures, anti-negationist the primary StGB is 130 apparatus. Section anti-denial legal form the which together the of intricacy the German anti-denialsystemoflawswillbecomeapparent. audience, target and means, purpose, legislative between interplay multi-level the mind in Keeping law. via negationism prohibiting of case exemplary the as intended audience. their also but complex, and multiple are that laws these of purposes the just not is it Thus, hate speechlawsfoundthat adopted haveall Western democraciesthat offive A study capital. chance ofgainingpolitical no to little have elements threatening potentially “undesirable,” that sure make to extremist and arena on attack broader political a the in discourse of regulate to operate part hence Laws parties. often especially and movements is legislation of type this that note They speech. hateful limit to aiming laws of effects practical more the to point also authors Some importance. utmost of is remark this study, this in countries the of many in responsibility its and law the discredit spokesmen.” to likely only professional are it scrutinize and excavate to efforts law’s the entrenched, comfortably become already has memory collective “[w]hen for situations, Klandermans and Mayer (2006), p.32. Mayer(2006), Klandermans and Ibid. ,p. 547. hr ae eea poiin i te emn ea Cd ( Code Penal German the in provisions several are There it present to reluctant am I why clearer seem now will it then, Germany, to return To and parties such upon restrictions put did organizations andmadethemmorecarefulintheirpublicstatements. extremism] wing [right RWE against used be could potentially that framework legal a of presence very the Belgium] and Italy, Netherlands, the France, [Germany, countries five all [i]n 230 ie te ih ere f otsain f Holocaust of contestation of degree high the Given Strafgesetzbuch Volksverhetzung 231 (StGB)) locus of of 62 ), CEU eTD Collection 235 234 233 otherwise or 232 cruel a in people against “violence glorifying materials of production and display,dissemination, the alongside racial hatred, to regulates incitement it as mentioned, be such commit to predisposition existing attach.” an in increase an “in resulting those as well as group, target the among threat” of sense a in result might which “attacks covers also section instead, this here; are pursued that of peace actual breaches just not is that it out have pointed ( dignity human of that is therefore publications. and writings to applies same The crimes: peace. public Coliver (1992), p.164. Coliver (1992), correspondingly. shallapply 86 subsection(3), Section (3), subsection of cases and in (4), with subsection conjunction also in (2), under subsection In cases (5) (3). insubsection with suchasisindicated (3)) content with punished be shall radio, by 1 http://bundesrecht.juris.de/stgb/index.html number in indicated content the of afine. threeyearsor for notmorethan imprisonment presentation a disseminates 2. by another;or in use them, such orfacilitate throughc a meaning ofnumbers export within the them from obtained or orcopies tousethem order import to undertakes commends, announces, offers, stocks, supplies, obtains, produces, (d) years;or undereighteen toaperson makesaccessible c) offers,givesor accessible; makesthem orotherwise posts,presents, b) publiclydisplays, or a) disseminatesthem; maligning maliciously insulting, by others of dignity group: indicated orapreviously of thepopulation defaming segments human the assault which or them, against measures arbitrary or violent for call which customs, folk its by characterized one or group, religious or racial national, a or population the of segments against hatred which incite (3)), subsection 11 writings (Section to the with respect 1. of segments defaming or maligning, (2) Whoever: maliciously insulting, by five years. from threemonthsto withimprisonment shallbepunished others population, of dignity human the assaults 2. against them;or measures arbitrary for violentor orcalls ofthepopulation againstsegments 1. inciteshatred anr omn, Ictmn t Ntoa ad ail ard Te ea Stain n emn, i ed. in Germany,” in Situation Legal The Hatred: Racial and National to “Incitement Hofmann, Rainer at subsection 11 (Section available writings to text apply also German shall (2) Subsection original (4) read: the 130 section on of 4-5 based Subsections are and author’s the are translations ensuing and This publicpeace: disturbingthe manner thatiscapableof Whoever,ina (1) subsections1-2read: Section130, This is not the entire spectrum of legal tools, however. Section 131 StGB should also should StGB 131 however.Section tools, legal of spectrum entire the not is This public a fine. or the years five than disturbing more not of for imprisonment capable with punished be manner shall peace a in (1), in subsection indicated type 220a the Section of Socialism National of rule the under committed act an harmless renders or denies of, approves meeting a in or publicly Whoever 235 233 232 Most importantly, section 130(3) StGB deals explicitly with denial of Nazi of denial with explicitly deals StGB 130(3) section importantly, Most (last accesed March 31, 2008). 31, (lastaccesedMarch Menschenwürde 234 ) (see discussion below). Commentators below). discussion (see ) h cr eeet f eto 10 StGB 130 section of element core The 63 CEU eTD Collection 239 238 237 236 as of or not—theGermandoctrine notice ofit take judicial established factand it treat to whether (namely, phenomenon historical as Holocaust the with deal to how instance, For courts. German in straightforward as appeared always not has laws of system 131. or 130 sections or 189 section with conjunction in in or alone or 185), (section insult alone (3) 185; or 131), 130 sections with (section conjunction hatred racial to incitement (2) 185); is (section petition lodged—insult private or—if 131) (section hatred racial to incitement with conjunction in or alone human dignity(section130), (1) attackson He classifiescasesasfollows: law isuseful. the to object toan may victim the instances this both in though dead, the with of memory the of disparagement connected of cases is insult the and population the true in is StGB). Thesame 194(1) necessary(section no longer is complaint persecution,” the of part a is group this decree, and force by rule another or Socialist National the under group a of member a as persecuted was party aggrieved upon “the prosecuted where be insult public of to case the is in However, complaint. insult individual rule, general a as that, states StGB 194 Section Holocaust denial. of incident an following complaint a file may conditions what under and who dead. the of memory the of disparagement the ( insult for fine a or years two to up of punishment a prescribes it since relevant, is too, StGB, 185 manner.”Section inhuman stems from the denial of the existence of gas chambers inAuschwitz. ofgaschambers oftheexistence stems fromthedenial fine.” twoyearsora for notmorethan imprisonment fine. a or years two than more not for imprisonment with violence, of means by committed is insult the if and, fine a eto 19 ed: Wovr iprgs h mmr o a eesd esn hl b pnse with It punished phenomenon. p.289. Stein(1986), negationist be the denote shall to Germany in person used is deceased lie,” “Auschwitz a as translatable of term, This memory the disparages “Whoever reads: 189 Section or year one than more not for imprisonment with punished be shall “Insult reads: entirety, its in 185, Section Auschwitz-lüge To put these provisions into perspective and understand how they have been applied been have they how understand and perspective into provisions these put To ex officio prosecution. , 238 legal scholar Eric Stein’s four-tiered categorization of relevant case relevant of categorization Stein’sfour-tiered Eric scholar legal Beleidigung 239 One should note that, while seemingly coherent, this coherent, seemingly while that, note should One ). 237 236 Last but not least, it is important to look at look to important is it least, not but Last Moreover, section 189 StGB criminalizes StGB 189 section Moreover, Offenkundigkeit 64 ) CEU eTD Collection offer some insight into legislative intent concerning intent legislative into insight some offer debates reform 1985 The passed. was it which in form the in legislation, of type this passing law clearer.behind of the Yetunderstand themotivations to is important it proceeding, before individual complaints. by therequirement,priorto1985StGB reform,thatprosecutionbeonlypossiblebasedon constituted was denial against fight German the of aspect point. Acumbersome similarlythis 243 242 241 240 negationism that case the always not was it StGB, 185 and 131, 130, sections on based out sphere. public the from eradication of need dire in such as and Germany post-war for embarrassment” “national a as denial seeing opinions scholarly society.”our of consensus “basic the which impair would peace,” public on attack an thus and regime Socialist a National as the it “whitewashing saw and denial Holocaust of impact societal the to appealed who those also were there Greens); (the denial fight to means inadequate an as law criminal saw who those and Socialists) (the genocides all of denials include to extension an wanted who those were there Thus, expressed. were today laws anti-negationism over debates in present still views the for allowed instead and petition private a of requirement previous the removed that bill legislative a concerned itself “obvious is ( Holocaust the that is interpretation current the Three, Chapter in discussion litigation. early in confusion much of source the was constitutional complaint by neo-Nazi leader Michael Kuhnen, dismissed by the Federal Constitutional Court. the Federal Constitutional dismissedby Michael Kuhnen, byneo-Nazileader constitutional complaint offenkundig See Kahn (2004), p. 15. p. SeeKahn(2004), p.309. Stein (1986), citedin the LegalCommittee, memberof SocialDemocratic pp.290-291. See alsoStein(1986), 16-22. pp. Kahn(2004), Seediscussionin ee uitce Wochenschrift Juristiche Neue The jurisprudence of the Federal Constitutional Court (FCC) will make the operation the make will (FCC) Court Constitutional Federal the of jurisprudence The ) knowledge,” ) ex officio ex 241 but, on several occasions, courts wavered in their approach to approach their in wavered courts occasions, several on but, 18) p 10, ie i Kh (04, . 9 Te ae ees o a to refers case The 19. p. (2004), Kahn in cited 1203, p. (1982), prosecutions. During the negotiations on the bill, many of many bill, the on negotiations the During prosecutions. 242 Auschwitz-lüge 240 This latter view is reminiscent of some of reminiscent is view latter This 243 As will be seen in the jurisprudential the in seen be will As Despite prosecutions being carried being prosecutions Despite prosecutions. The reform The prosecutions. 65 CEU eTD Collection 248 247 246 245 244 the of purposes the serve individuals on 18 and parties, which to according 21(2) onpolitical on associations, least, articles9(2) prohibited. Lastbutnot discrimination is criteria the lists 3(3) while law, the before equality establishes 3(1) the of state, duty (positive) the protection its making “inviolable,” be to it scientific declares former and the artistic to freedom the expression. declares 3 subsection while honor,” personal of inviolability to right the by and youth, of protection the for law of provisions the laws, general of provisions the “in found as expression of freedom the of limitation for conditions the indicates 5 article of 2 Subsection censorship. prohibits and oneself inform to right a and disseminateexpression a rightto ensuring both for speech, provisions makes broadprotective system. Thus,withregardtospeech,article5oftheBasicLaw( the that courtroom realityintoafirmlegalprovision. the punished. be could rtc hmn int, o mrl t rfan rm bsn i b is w atos” ai P Currie, P. David actions.” own its by it abusing from refrain to merely not dignity, human protect Kommers, P. Donald the from restricted, taken are GG the of citations English subsequent and This Constitution. from loyaltyto the notabsolve and teachingshall research (3) Artsandscience, of protection the for law of provisions the laws, honor. ofpersonal general therighttoinviolability youth, andby the of provisions the by limited are rights These (2) shallbenocensorship. There andfilmsareguaranteed. means ofbroadcasts ofreportingby press andfreedom the of Freedom sources. accessible generally from himself inform to freely and pictures and writing, speech, by ft.90. also Stein(1986), See 1961). April (21 57 49, BGHSt 16 and 1958) February (28 207 BGHSt 11 Bundesgerichtshof: the of cases Constitution of the Federal Republic of Germany Republic of theFederal Constitution of BVerfGE 173 (1971). BVerfGE 173 Jurisprudence of the Federal Republic ofGermany FederalRepublic ofthe Jurisprudence For a discussion, see Foradiscussion, not is expression uponthestateto affirmativeobligation expresslyimposesan 1(1) “[a]rticle scientific onecommentator, Inthewordsof and artistic that appear would it Law, Basic the of text the from Though, hisopinion anddisseminate toexpress freely havetheright shall (1)Everyone reads: article5 text of Thefull see 185, of section the purposes for defined group a sufficiently as against Jews of insult judgments early For Auschwitz-lüge 247 Before engaging with anti-negationist laws in other countries, one should not forget not should one countries, other in laws anti-negationist with engaging Before while the latter ensures “the right to the free development of personality.” of development free the to right “the ensures latter the while Auschwitz-lüge 246 Bundesverfasungsgericht Of note, too, are articles 1(1) GG and 2(1) GG, which both deal with dignity: with deal both which GG, 2(1) and GG 1(1) articles are too, note, Of 244 provision was included as subsection 3 of section 130, finally translating finally 130, section of 3 subsection as included was provision Ibid. It was thus only after the 1994 reform of the German Penal Code that Code Penal German the of reform 1994 the after only thus was It law in Germany functions in a very carefully regulated constitutional regulated carefully very a in functions Germany in law , pp.316-322. a md i cer al o ta ti i nt h case. the not is this that on early clear it made has (University of Chicago Press, 1994), p. 194-195. p. Press,1994), (UniversityofChicago (Duke University Press, 1997), 507-518. (DukeUniversityPress,1997), wehrhafte Demokratie wehrhafte Grundgesetz (GG)) and are meant are and Constitutional Constitutional Mephisto 245 248 initially Article 30 , The 66 CEU eTD Collection 250 willingly 249 was it though as seeing Germany, of guilt the in sharing as perceived is country the Nazigenocideorothercrimes. (“ justify” to attempts approves, or means,” “denies,grosslyminimizes, or byotherpublic broadcast, orothermedia print, “in whoever, for punishment same the prescribes 3h section Subsequently, provisions. Sinn nationalsozialistischen forconduct particularly dangerous) twenty if years (upto and ten one sentence ofbetween prison a establishes 3g discussion. our to relevant most the are 3h and 3g Sections ideology. Socialist National furthering behavior other or 3(b)), (section associations such in member a becoming 3(1)), (section ones similar grounding or associations NS resurrecting include These prohibited. become thereby which regime, Socialist National the to related activities attention, again,totheappropriatenessofanti-deniallawsinEurope. world draw to served sentence, prison year three a in resulting 2006, in prosecution Irving David the of case recent The ordinary. is deniers of prosecution the where one as to pointed Austria 1.2 for limitationofnegationistspeech. in basis the as honor” “personal instance, of use the as for well as denial, concerning jurisprudence dignity, German on emphasis subsequent the understand we can considerations these mind in keeping by Only order. democratic the undermine which activities prevent to text availableat http://www.news.bbc.co.uk/2/hi/europe/4733820.stm The following discussion and citations of the of citations and discussion following The “Holocaust h Asra cnet s seily estv i to ead. n h oe ad the hand, one the On regards. two in sensitive especially is context Austrian The ( Code Penal Austrian the of 3 Section often as almost is Austria of case the context, German-language the within Keeping http://www.dagegenhalten.at/Verbotgesetz.pdf denier ege, rbih ehrls, uhit dr u ehfrie sucht rechtfertigen zu oder gutheißt verharmlost, gröblich leugnet, Irving o a ainl oils ntr) f o cvrd y other by covered not if nature) Socialist National a (of is jailed,” jailed,” Verbotgesetz (last accessed March 31, 2008). March31, (lastaccessed BBC Verbotgesetz News are the author’s translation and are based on the on based are and translation author’s the are (last accessed March 31,2008). (lastaccessedMarch , February February ) 250 el wt a ie ag of range wide a with deals 249 20, 2006, 2006, available im 67 ”) at CEU eTD Collection http://www.servat.unibe.ch/law/icl/idenx.html of Haider refers to this right-wing extremist politician entering the power coalition after the 1999 elections. afterthe1999 power coalition enteringthe extremistpolitician tothisright-wing of Haiderrefers mention the secondly, deportations; camps for concentration units responsible Nazi army member of former as a victim in the aftermath of the war has been thoroughly documented. thoroughly been has war the of aftermath the in victim a as role) own its understand as well (as itself present to sought country the That that. than complicated more is War World Second the in partaking their to relationship their population. However, Jewish the toward responsibility of sense and guilt German the in too, share, 254 also texts constitutional from translations English other the noted, otherwise Unless 2008). 31, March accessed (last 253 252 251 as appear would it However, attack. severe under come to law Austrian denial Holocaust sex, language,orreligion. document complementsequalityprovisionsbyprohibitingdiscriminationonthebasisofrace, Austria. Democratic and Independent an of Re-establishment for human dignity. provision mirroring no is there law,” the before equal are nationals federal “[a]ll that established 7 article while Thus, rights. of system navigable easily equally an establish not political riseofthereactionary…JörgHaider.” the and Waldheim Kurt of presidency controversial the as such events contestative recent other of aftermath the in “even era Nazi the of remembrance state official of define responsibility denial repeated and victimhood of narrative a of combination the commentator, 1938 the Reich after the Third annexed to Article 6(2) reads: Article6(2) at found be to is Constitution Austrian the of version English The pp.620-630. Havel(2005), Seediscussionin Ibid. come , p. 630. Havel is referring, first, to the president of Austria between 1986-1992, who had been disclosed been disclosed who had between 1986-1992, Austria of president to the first, referring, Havel is 630. , p. h fnaetl reos icuig reo o epeso, f rs ad ulcto, of publication, and press of expression, meeting. opinion andofpublic of of political religious worship, freedom including freedoms, fundamental the of and rights human of enjoyment the religion, or language sex, race, to as distinction without jurisdiction, Austrian under persons all to secure to necessary measures all take shall Austria Given these mixed national feelings toward the WWII era, one would expect the anti- the expect would era, one WWII the toward national feelings mixed these Given does one, German the unlike context, constitutional Austrian the hand, other the On from 253 Freedom of speech is regulated under article 6(1) of the State Treaty for thethe StateTreaty for speech isregulatedunderarticle6(1)of Freedomof the International (last accessed March 31, 2008). 31, March (lastaccessed Constitutional Constitutional Anschluss 252 . It would therefore follow that Austrians that Austrians follow Itwould therefore . Law Project Project http://servat.unibe.ch/icl/au00000_.html 254 ril 62 o te same the of 6(2) Article website, 251 In the words of one of words the In available through 68 CEU eTD Collection 255 apparatus, repressive a of heart the at incrimination this placed but negationism incriminate the of Freedoms) of Protection and freedom oftheprintedwordwouldappearparadoxical. TheChiefofSectionA4(onthePress the about law a into speech of type certain a prohibiting regulation a of inclusion very The was includedasarticle24 the criminalized which text The Tribunal. Nuremberg by the bill), established as crimes, Socialist National of contestation the proposed who Parliament of Member communist the be to case, French The discussed below,istosomeextentadeparturefromtheseinitialconsiderations. negationism. from groups and individuals which protect provisions to penal juxtapose elaborate of parcel and part are themselves laws the opposition. Moreover, societal little present to seems denial Holocaust of criminalization the which 1.3 France accepted. expedientlyresolvedbylowercourts,ithasbecome though, withasteadyflowofcasesbeing http://legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateTexte=20080328 accessed March 31, 2008). accessed March31, hs rnlto i te uhrs n i bsd n h oiia Fec vrin aalbe at available version, French original the on based is and author’s the is translation This The reader has thus far been made familiar with two cases, Germany and Austria, in Austria, and Germany cases, two with familiar made been far thus has reader The ttt, r y pro rcgie cpbe f uh rms y rnh or French by crimes such of capable recognized international jurisdiction. person a by or statute, stated of 9 article applying by criminal declared organization an of members the by either committed were that and 1945 August 8 of London accord the to in are annexed military tribunal defined they the international statute of the as 6 of article defined by means humanity against the crimes more of or one one of existence in the contested, 23, article have pf will paragraph who sixteenth the those in 24, stipulated article penalties the by punished be Shall so-called On July13,1990,theFrenchParliamentpassed bis inthe1881FreedomofPresslaw.Initsentirety,itreads: 255 Parquet de Paris de Parquet noted that “[t]he legislator wanted to wanted legislator “[t]he that noted loi Gayssot (namedafter

(last 69 CEU eTD Collection 260 259 258 257 256 notes: ensuing prosecutions, had in have these associations major influence noting the Roger Errera, become may they say, to is That discrimination. against fight the in involved associations legally-established the passed. when 1972, 1, July since exist discrimination racial and libel against group provisions Criminal regulation. unprecedented completely a not was this setting, anti-Semitic propaganda,” of campaign a of part forms which “lie a as lie, a of expression the as much so not negationism incriminates It incitement. racist and libel as such discourse, undesirable of kinds other prosecuting to similar matter, administrative an like more denial Holocaust play incontrollingpublicdiscourse,however,thischoiceisnotasunconventional. public. subsequently in claims he his upheld if even advance, in months three than more published was book/article his if “revisionist” a try to able being not as such inferred, Some easily are denier. difficulties procedural supposed the against brought be longer no can prosecution time, this after period: prescription three-month the is choice this from stemming difficulties of example expression.” of freedom to favorable extremely is which press, the of law the race, or religion an offense, whether committed against individuals, associations or companies. orcompanies. associations against individuals, committed religionanoffense,whether race, or 3 ule 19 tnat rpie tu at rcse atsmt o xénophobe ou antisémite raciste, acte tout réprimer à tendant 1990 juillet 13 http://www.cncdh.fr/IMG/pdf/colloque_negationnisme.pdf (1999), p.1253 (author’stranslation). (1999), al. la loiGayssot The in MatthieuBourrette in Goget Fabienne , French Government justifications for the for justifications Government French Michel Troper, “La loi Gayssot et la constitution,” constitution,” la et Gayssot loi “La Troper, Michel Comparative Constitutionalism: Cases and Materials Constitutionalism: Cases and Comparative loi Pleven loi 260 what individuals or target groups may or might be willing to do. Thesamecan be willingto target groupsmayormight what individualsor to limits obvious are there one: vital a is associations rights civil of role The the giving of aim The Interestingly, this law, as the as law, this Interestingly, ), p. 61 (this and subsequent citations from this source are the author’s translation). aretheauthor’s fromthissource (thisandsubsequentcitations ), p.61 258 makes discrimination and incitement to discrimination on grounds of ethnicity, nationality, nationality, ethnicity, of grounds on discrimination to incitement and discrimination makes r vn n c o ageso te oet t s expressed. is it moment the aggression of act an even or Rapport du colloque: La lutte contre le négationnisme: Bilan et perspectives de la loi du loi la de perspectives et Bilan négationnisme: le contre lutte La colloque: du Rapport ate civiles parties Ibid. , p.59. 257 Given the French understanding of the role the State should State the role the of understanding French the Given o Gayssot loi n ras a eeomn o mjr motne Professor importance. major of development a trials, in loi Gayssot loi loi Gayssot loi hs aeoiain a t mk te fes of offense the make to was categorization this in the National Assembly, cited in Norman Dorsen Dorsen Norman in cited Assembly, National the in (Thomson West, 2004), p.919. West,2004), (Thomson nae. itie Sine Sociales Sciences Histoire, Annales. (atacse ac 1 08 (hereinafter 2008) 31, March accessed (last does as well, grants well, as does Jl 20, vial at available 2002, July 5 , locus standi locus 259 o Pleven loi Vl 5, o 6 No. 54, Vol. , n h French the In 256 ut one Just to any to Bilan de Bilan was 70 et CEU eTD Collection speech, notably Holocaust denial, to go unpunished. go to denial, Holocaust notably speech, 264 263 262 261 category. victim the into heroes resistance national including of the possibility open Vichy left thus the chosen with language The struggling crimes. was wartime for France responsibility when government’s time a at came definition extended The the amended definition ofcrimesagainsthumanitytoimply Appeals Criminal of Court French the 1985, In applicability. and meaning its extending understanding, French the in enriched and modified been since has It tribunal. Nuremberg the of proceedings mentioned the from taken term a humanity”, against “crimes to refers law the Instead, text. the in appear explicitly not does “Holocaust” word the that Nationale Assemblée laws (suchasintheRomaniancase). anti-denial of ineffectiveness total almost the to lead may courts, the to recourse individual of penury the with coupled provisions, such of absence the that speculate may One well. as contexts other of true is this Spain, and Belgium notably cases, other in seen be will As law occurred during Romanian legislative proceedings. The proposal was not upheld, however. was not upheld, proposal The legislative proceedings. Romanian law occurredduring p.408. (2006), despite which resonance racist a p.1252. (1999), CitedinTroper law.” writings everything eludescriminal repulsive their give and press the of law the of subtleties all learned p.158. (1992), Interestingly, a parallel attempt at including “national heroes” within the protection of an anti-negationism anti-negationism an of protection the within heroes” “national including at attempt Stone parallel a ed. Interestingly, in Courtroom,” the in Holocaust the Sawoniuk: to Streicher “From Bloxham, Donald in Cited have writings pseudo-historical of authors “the Assembly: National the to declared Justice of Ministry The Coliver ed. in Law,” French in Libel Group and Incitement Racial Civility: of Defense “In Errera, Roger Most of the case law…would simply not have existed if French law had not empowered certainassociationstobringcivilandcriminalproceedings. had law proceedings. French if existed bring have not to simply law…would whether case the deciding of Most when authorities public of said be lo gis avrais f hs oiy waee my e h fr o their of form the be may whatever opposition. policy, this of adversaries but against only group, also religious or not racial a systematically to belonged they committed because individuals were against hegemony, a practicing ideological State a of of sake policy the for which, persecutions and acts Inhumane the of text the to back Going 263 that the that loi Pleven loi o Gayssot loi did not go far enough, allowing some forms of hate of forms some allowing enough, far go not did o sgiiac i te ecpin f the of perception the is significance of , 262 I sta uhmr neetn,then, interesting, more much that is It 261 264 ie this Given 71 CEU eTD Collection 269 268 267 266 265 1791 The opinion (article10)andof constitution. Civic Rightsproclaimedthefreedomof Declaration ofHumanand speech-protective generally a within operates too, It legislation. be discussed inChapterThree,undertherelevantFrenchjurisprudence. will succeeded they much How law. the of inception the from it against work to tried the under prosecution avoid Gayssot to language” “coded on rely to managed negationists law.” the the under of falls manner jurisdiction “dubitative” or “disguised” a in even the crimes, of these questioning of “all existence that means it as authorities, enforcing the to powers broader for – negationism indirect restrictive more the to term avoid the uses explicitly law the noted, Justice of Minister the of member a As reason. The hand. at crime actual invoked othergenocide)findsitselfonequalfooting. this end, toward attempts legislative been even have There consistent. remain to is legislature French the if necessary and fair only as atrocities, other even or genocides, other of inclusion the see the of criticism much of basis the constitutes this Nevertheless, guilt. WWII with terms to coming of effort French broader the within explained be can humanity against crimes to reference the understanding, coherence in this regard, this is only a moral, not a juridical, obligation. Troper (1999), p.1255. (1999), obligation. Troper juridical, amoral,not regard,thisisonly coherence inthis Khan (2004), p.101. Khan(2004), pursue to obligation an have might in MatthieuBourrette legislature French the while that, noted have commentators Some Seeft.6above. Ibid. . The defines the to otherlaws, incontrast how theFrenchtext, is Most significant,perhaps, . 265 269 but so far it cannot be said that the denial of the Armenian genocide (the most oft- Armeniangenocide(the the denialof cannot besaidthat so farit but t ol apa, oee, ht eiltr wr wl aae f hs agr and danger this of aware well were legislators that however, appear, would It o Gayssot loi Bilan de laloiGayssot Bilan de loi Gayssot loi douter s hs smwa “d cetr” hn t oe t anti-denial to comes it when creature” “odd somewhat a thus is 268 loi Gayssot loi nier (to doubt). (to oe ae bevd h rltv es wt wih French which with ease relative the observed have Some t dn) bt lo o anan h lw plcbe o more to applicable law the maintain to also but deny), (to on account of its restrictiveness. Thus, there are those who those are there Thus, restrictiveness. its of account on uses the verb the uses , p.58. 267 This extension in the language of the law allows law the of language the in extension This 266 contester (to contest), and not without not and contest), (to loi 72 CEU eTD Collection But I believe that it is a point of detail in the history of the Second World War.” Quoted in Khan (2004), p. 102. p. Quoted inKhan(2004), War.” World oftheSecond of detailinthehistory gas apoint But Ibelievethatitis the calling Pen, Le Marie Jean myself. politician to seethem wasn’t able I notexist. did wing gaschambers thatthe “Idon’tsay history:” “detail of chambers a right extreme by 1987 September in made statement a as the aftermath of some highly publicizedincidents, some highly the aftermathof without success. incitement, andnot group libeland prosecution of 277 276 (Pratique PHDN 275 274 273 Francia.pdf 272 271 270 subsequent chapter. the in discussion the in detailed are these All implementation. of record and effects societal future,” the in peace social of preservation necessary the and past the to due respect the to referring individual, the of rights and morals the of order, negationism. of nature misleading and eluding, comments. the of anti-Semitic nature the showing on depended prosecution the when removed proof which of law, problems new previous the behind judicial, and political impetus, double the explain the see commentators some therefore, for. provided amply also is law 11). (article opinions and ideas of communication osiuin” ae peetd t h XIh oges f h Itrainl cdm o Cmaaie Law, Comparative of Academy International the 14 of Congress XVIth Brisbane, the at presented Paper Constitution,” Constitution. sentence 2ofthe1958 at found be to are Constitution 1958 the as well as http://conseil-constitutionnel.fr/textes/constitu.htm Declaration 1791 the of texts English The Constitution. d’expresion en France,” d’expresion enFrance,” http://www.phdn.org/negation/gayssot/critiques.html Bourettein the Notably, négationnisme,” du nature la de Ignorance foi: bonne de critiques ses et Gayssot Loi “La Karmasyn, Gilles 30. p. Dhoquois(2006), la et haine la à “L’incitation Cammilleri-Subrenat, Anne also See (1992). Errera see review, a For 1, 1958 article under as well as Constitution, the 1946 the to Preamble the of in Declaration, 1791 the of 1 Preamble article Under the of way by Constitution current the into incorporated was Declaration The Errera (1992), p.155. Errera (last accessed March 31, 2008) and Régine Dhoquois, “Les thèses négationnistes et la liberté liberté la et négationnistes thèses “Les Dhoquois, Régine and 2008) 31, March accessed (last th Bilan de laloiGayssot Bilan de -20 loi Gayssot loi th uy 20, vial at available 2002, July, de Ethnologie française Ethnologie followed some highly publicized cases of desecrations of Jewish cemeteries, as well as cemeteries, Jewish of desecrations of cases publicized highly some followed l’histoire 274 tl ohr se t s lal nee i lgt f h perverse, the of light in needed clearly as it see others Still , p.53. 271 et oee, ro poiin eitd ht loe fr the for allowed that existed provisions prior However, , Vol. 37, No. 2 (2006), p.27-33. No. 2(2006), , Vol.37, o Gayssot loi dévoiements dévoiements (last accessed March 31, 2008). March 31, (lastaccessed (last accessed March 31, 2008). March31, (lastaccessed http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane- 275 If the initial purpose of this law, passed in passed law, this of purpose initial the If 276 270 s uncsay n unwise.” and “unnecessary as was to “permit[] the protectionofpublic “permit[] the wasto The equality of all citizens before the before citizens all of equality The négationnistes) 277 then its impact depends upon its upon depends impact its then 272 Under these conditions, Underthese (2002), (2002), available 273 Others 73 at CEU eTD Collection 280 279 consistency its of some lost 278 has it text, the of amendment successive the to due that out. pointed been has constitution Belgian the of incoherence interested associationstotakeupthevictim’splight. of inclusion civiles This Act. the involving disputes legal in act to 4) the (article or deported” resistance the of honor the and interests moral “defending in engaged personality legal with associations of possibility the is note of Also 2). (article party guilty the of charge the gives also law The the to displayed, and recidivism. newspapers more or one in published of being judgment the of possibility case in mandated is rights civic of suspension Additionally, fine. a and year one and days eight between of sentence prison a prescribes and War” World Second the during Regime genocide Socialist National the German the by approv[ing] committed or justify, to minimize[ing],attempt[ing] grossly “den[ying], law. anti-negationist an of features core 1995, March of 23 Belgian Act gap. The this fill Belgium might law. anti-negationism an of case “paradigmatic” after oft-sought the as serving neither with 1.4 Belgium presented at the XVIth Congress of the International Academy of Comparative Law, Brisbane, 14 Brisbane, Law, Comparative of Academy International the of Congress XVIth the at presented at available French original the from translation text, Author’s provision). French the of reminiscent (language Treaty London deny or 1945 justify of the 6 by article defined warcrimes” as trivialize, or humanity more crimesagainst “contest, or of one existence publicly the to forbidden is it that states Code Penal Luxembourgian the 457(3), article available through War,” World Second the during Regime Socialist National German the by perpetrated genocide the of approval and availability of material, I will not discuss the Luxembourg law in great detail,however. in Luxembourg law the material, Iwillnotdiscuss and availabilityof spacelimitations reasonsof years orafine).For two sentenceofupto for aprison provides provisions (thelatter March 31, 2008). A mirror provision is included in article 283(5) of the Lichtenstein the of 283(5) article in included is provision mirror A 2008). 31, March at 31, 2008). All citations from the French are the author’s translation. Frencharetheauthor’s All citations fromthe 31, 2008). 02 aalbe at available 2002, See Sébastien van Drooghenbroeck, “La Constitution de la Belgique et l’incitation à la haine,” Paper Paper haine,” la à l’incitation et Belgique la de Constitution “La Drooghenbroeck, van Sébastien See Under law. Luxembourg the is to referred generally is Holocaust the of denial what to closer perhaps Also or justification minimization, denial, the punishing on 1995 March 23 of “Act is law the of name full The http://www.llv.li/stgb-01-01-08.doc-3.pdf n hs tps f ras s eiicn o te rnh a, hc smlry allows similarly which law, French the of reminiscent is trials of types these in h dsuso s fr a idctd h seiiiy f l tre prahs covered, approaches three all of specificity the indicated has far so discussion The n em o te rae cntttoa faeok urudn ti lw te relative the law, this surrounding framework constitutional broader the of terms In http://diversiteit.be http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane-Belgio.pdf http://legilux.public.lu/leg/textescoordonnes/codes/index.html#code_penal (last accessed October 13, 2007). 13, (lastaccessedOctober ls acse Mrh 1 20), ih dfeec i sentencing in difference a with 2008)), 31, March accessed (last 279 ne atce , t dniis h cie as crime the identifies it 1, article Under 280 278 Some observers have noted have observers Some in many ways exhibits the ways exhibits many in Strafgesetbuch ls acse March accessed (last ls accessed (last th (available -20 parties th July, 74 CEU eTD Collection ol o mltn dmcay js ta ti hs agl be dn”usd o te osiuin n the and Constitution the Backs of A. done”outside see been discussion, largely broader has a this For that debates.” just constitutional democracy, militant of tools 283 Blok Vlaams 282 281 and access, TV from parties anti-democratic excluding infrastructure, cultural public of as well use the as limiting as such group, provisions, legal non-penal or Furthermore, discrimination. workplace person a against violence or hatred, discrimination, to incitement July 30 of Act 1981 the note should one these, Of found. be to denial and extremism against liberty withinresponsibility. of system a adopting of instead that note observers democracy, militant with engagement the country’s to regard with least, not but Last system. constitutional Belgian the of pillar a as law the before equality establishes also 10 Article 23(5)). (article fulfillment” social and cultural enjoy to right “the with together guarantees, economic and social includes dignity,” human with conformity in life a “lead to right the establishes provision This 23. article under text involved. are presse the prescribes which Constitution, the of 150 article with conjunction in read be to is ofthefreedomexpression.Thelatter former isunrestrictedexceptwhenitleadstoabuse Constitution, the of the press.The referring tothefreedomof of opinion,andarticle25, guaranteeing thefreedom 19 article in subsumed is which speech, of with protection evident the is to This respect rights). fundamental of protection the to comes it when (including xenophobia,” available through through xenophobia,” available racism,” antid The full name of the law is “Act of 30 July 1981 on the punishment of certain acts motivated by racism or racism by motivated acts certain of punishment the on 1981 July 30 of “Act is law the of name full The see ofarticle150, Foradiscussion Ibid. é 283 mocratiques. La loi, une épée à double trenchant? double à épée une loi, La mocratiques. and which makes special provisions for those instances where racism or xenophobia or racism where instances those for provisions special makes which and , p. 8. Van Drooghenbroeck explains that this does not mean Belgium has not employed some of the of some employed not has Belgium mean not does this that explains Drooghenbroeck Van 8. p. , International Journal of Constitutional Law of Constitutional Journal International fight the to relevant provisions are too, framework, constitutional the of Outside hc cnttts frrahn at-iciiain ntuet I proscribes It instrument. anti-discrimination far-reaching a constitutes which at bn se v Bes “egu: h Vam Bo pltcl at cnitd niety of indirectly convicted party political Blok Vlaams The “Belgium: Brems, Eva see ban, party éorte combative démocratie 281 Also of note is the provision on dignity made by the Belgian constitutional Belgian the by made dignity on provision the is note of Also http://diversiteit.be 282 Ibid. Blim pe fr n oe dmcay” emphasizing democracy,” “open an for opted Belgium , (last accessed October 13,2007). October (lastaccessed , Vol. 4, No. 4 (Oct., 2006), pp. 702-711. 2006),pp. No.4 (Oct., , Vol.4, (Mys & Breesch, 2001). For a discussion of the 2004 the of discussion a For 2001). Breesch, & (Mys t al. et , e ou grin e parties des gordien noeud Le délits de délits 75 CEU eTD Collection rms I ras “h pro wo ulcy eis pt i dut apoe o tis o utf []z or [N]azi justify to 3 tries to months or 6 of approves prison by doubt, punished be in will communists puts or [N]azis denies, of crimes publicly other or who genocide communist person “The reads: It crimes. 286 285 284 Republic Czech the notably laws, anti-denial have also region the in countries Other law. a such without context a as Hungary on and regulation, of example an as Romania on with focusing engagement denial, Holocaust European East Central the of exponents certain discuss will I follows, racism.” of victims the of protection the or peace, social of interests the in speech restrict to readiness tradition…of European the with line in are countries E[European] E[ast] “C[entral] that noted thus has observer One unconditionally. so do not did they especially, the speech of freedom which in of values, liberal embrace desire, to communism, of fall the the of aftermath despite Thus, speech. dangerous potentially restricting laws adopted of incidentshatespeechgenerally,andHolocaustdenialparticularly? East? Howdoestheirrecentauthoritarianpastinfluenceengagementwithandregulation the of democracies newer the in situation the is though, What, tradition. democratic standing A 2. discussed inChapterThreebelow. be will practice in operation its and negationism, against tool primary the is and most contestation the stirs that Act 1995 23, March the is it Nevertheless, public. in denial Holocaust financing restrictions onpublic Central and EasternEurope Central and Interestingly, the Czech provision (Section 261a of the Penal Code) punishes denial of Nazi of denial punishes Code) Penal the of 261a (Section provision Czech the Interestingly, Sadurski, Wojciech pp.15-18. (2002), seevanDrooghenbroeck Foradiscussion, NTI n bodecmasn iiil eak s ht hy l hv, o ayn degrees, varying to have, all they that is remark initial broad-encompassing One relatively long- with a European countries all Western covered are so far The contexts -H OLOCAUST ihs eoe ors A td o Cntttoa Cut i Ps-omns Sae of States Post-communist in Courts Constitutional of Study A Courts: Before Rights 286 D n Slovakia, and (Springer, 2005), p. 160. p. (Springer, 2005), ENIAL L 284 W IN AWS are also in place to prevent the encouragement ofracistand prevent theencouragement place to arealsoin 287 C NRLAND ENTRAL r niictmn lw ta hv be ue to used been have that laws anti-incitement or E ASTERN E UROPE or communist or 285 In what In 76 CEU eTD Collection omlzd o n extent.” an to normalized socially became provisions, legal the of [post- irrespective speech, many extremist countries communist] “in while constitutions, of level the at discussed often most is speech racist post- that of argues he Thus, context each. for socialization the of level the in at looking by speech countries communist extremist from speech hate distinguishes Sajó András countries. European Eastern Central within speech hate of approval of levels subsequent and the presentstudycanonly mentionthem. 289 288 287 http://mzv.cz/wwwo/default.asp?id=46561&ido=13925&idj=2&amb=3 of at Union,available totheEuropean Representation the CzechRepublic Permanent Law,” Czech in Incorporated Denial Holocaust for “Punishment in Cited years.” starkly evident. becomes practice” in “law the and books” the on “law the between difference the therefore, study, this in contexts other the in than more Here, discourse. extremist of types other with conjunction in claims “revisionist” their make and popularity relative enjoy that groups and politicians with associated often is it for countries, these in denial Holocaust at looking when Poland). and (Lithuania negationists prosecute http://www.legislationonline.org/?tid=218&jid=1&less=true at Rights, Human and Institutions Democratic for or Office OSCE the fascist of project a of Legislationonline, via accessed be propagation can laws public these of version the English The insult. punishes group criminalizes Code 257 article and Criminal state of Polish systems totalitarian the of 256 article while groups, against rms r te smlr oeet. h fl tx o te rvso my e cesd i Soa) at Slovak) (in accessed be may provision the of text full The movements. similar http://justice.gov.sk/jaspi other or crimes lvk utc Mnse i “išc eed fe speech,” free defends former with “Lipšic interview in See figures. Minister high-ranking Justice many Slovak by opposed was Code Penal the in 2005, in inclusion, for providing theseresources. for providing http://www.spectator.sk/articles/view/19007// András Sajó, AndrásSajó, violence or discrimination, hatred, to incitement penalizes Code Criminal Lithuanian the of 170 Section Section 261 of the Slovak Penal Code thus makes it a crime to publicly deny, doubt, accept or justify fascist justify or accept doubt, deny, publicly to crime a it makes thus Code Penal Slovak the of 261 Section It is also worthwhile to note the special, local character of hate speech in the region the in speech hate of character local special, the note to worthwhile also is It Freedom of Expression Freedom of ? (at cesd ac 3, 08. hs rvso i vr mc cnetd ad its and contested, much very is provision This 2008). 31, March accessed (last ? ?? 289 hs rcs o sca “omlzto” s atclry relevant particularly is “normalization” social of process This (Instytut Spraw Publicznych, 2004a), p.128. 2004a), Publicznych, (InstytutSpraw (last accessed March 31, 2008). Thanks are due to Peter Kocvar Peter to due are Thanks 2008). 31, March accessed (last 288 h Soa Spectator Slovak The For reasons of space and focus, however, focus, and space of reasons For (last accessed March 31, 2008). March31, (lastaccessed (last accessed March 31, 2008). March31, (lastaccessed Mrh , 05 aalbe at available 2005, 7, March , 77 CEU eTD Collection novmn n h Hlcut NT mmesi criterion,” membership NATO Holocaust, the in Involvement American representativetoNATOwasquotedatstating: an Thus, conditionality. membership EU and NATO by influenced strongly was Romania fronts, thiswillproverevealing.Thepublicdiscoursesurroundingcriminalizationofdenialin external the and internal the both on laws, such of role signaling the namely study, this of argument adoption. Giventhemain to its into thedevelopmentswhichled worthwhile tolook 294 0285+0+DOC+XML+V0//EN 293 Guest”), Michael Ambassador to answers 292 291 echo. without not 290 were 2007 in one achieve to attempts German the Directive, a of form the in as such standards legal common no are there while EU, the to for plan attention.” preparation special receives it the why is which of NATO, to candidacy Romania’s part is concern Jewish “the message: the got Romania that assuring theAmericanambassador The RomanianPrime-Ministeratthetimereactedquickly, 2.1 Romania rges f h Ngtain o te rmwr dcso o Ato t Cma Rcs ad Xenophobia, and Racism Combat to Action on decision Framework the available the on Concerning Negotiations 2007 June the 27 of of Council Progress the to Recommendation Parliament European the and (2007/2067) Andreescu, Gabriel anr fr o h Rmna public, Romanian the to for manner, http://adevarul.ro Resurse pentru Diversitate Etnoculturala, 2003), pp. 99-115. 2003), DiversitateEtnoculturala, Resurse pentru accessed March 31, 2008) (author’stranslation). 2008) accessed March31, measures along the line of decisions and values that are accepted everywhere intheworld.” everywhere accepted andvaluesthatare lineofdecisions measures alongthe take to important is it interests, government’s Romanian the of view of point the from but continue can debates http://adevarul.ro/articole/financial-times-implicarea-in-holocaust-criteriu-de-aderare-la-nato/17695 Notable here too is the European Union Framework Decision on Action to Combat Racism and Xenophobia Xenophobia and Racism Combat to Action on Decision Framework Union European the is too here Notable see form, current its in Parliament passed finally law the before written law, the of evaluation early an For Franco Frattini, the European Commissioner for Freedom, Security and Justice, was then quoted as stating: was thenquoted SecurityandJustice, for Freedom, Commissioner Franco Frattini,theEuropean Quoted in ““Financial Times” – implicarea în Holocaust, criteriu de aderare la NATO” (“Financial Times” – Times” (“Financial NATO” la aderare de criteriu Holocaust, în implicarea – Times” ““Financial in Quoted din ăts q Năstase Adrian iiie h Soh wr rms n cie aant uaiy Tee iw cnttt an world. the wholedemocratic constitute views to also but These descendants, their and tragedy humanity. that of victims the against to only not crimes affront unacceptable and crimes war or trivialize Shoah, deny, to the attempt minimize any of condemnation firm Commission’s the restate to want I at os o gaate diso, u a onr ta cery eue this refuses clearly that country a but confrontation, standsnochanceofadmission. admission, guarantee this not with confrontation does correct for past A cornerstone chapter. the values is the problem in Holocaust countries the candidate treat they which in way The eoe icsig h pclaiis f h Rmna ningtoim law, anti-negationism Romania the of peculiarities the discussing Before (last accessed March 16, 2007) (author’s translation). He did so, however, in typically evasive evasive in typically however, so, did He (author’s translation). 2007) 16, March accessed (last at xrmsu d depa n România în dreapta de Extremismul oe in uoted http://europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007- (last accessed March 31,2008). (lastaccessedMarch “Adrian Năstase îi răspunde ambasadorului Michael Guest” (“Adrian Năstase Năstase (“Adrian Guest” Michael ambasadorului răspunde îi Năstase “Adrian ăts peetd h ise s n ipsd rm outside: from imposed one as issue the presented Năstase Adev ă rul, March 23, 2002, previously available through through available previously 2002, 23, March ( ih-ig xrms i Romania in extremism Right-wing 291 Adev ă rul Jl 1, 02 aalbe at available 2002, 11, July , Ibid. 292 294 With respect With uig the During (etu de (Centrul )

“Historical 290 t is it (last 293 78 CEU eTD Collection 297 296 Holocaust 295 against laws adopt to nations EU urges “Frattini denial,” Lempkowicz, Yossi in quoted Frattini, Franco or crimes war for court criminal international “an of or court” foreign or “Romanian any of authority the invoking 1(c), article its in humanity” and peace against crimes committing of guilty “persons to refers law The history. postwar country’s the in guilt of assumption unprecedented acts—an genocidal of perpetrators among authorities Romanian for of inclusion allowed it as controversial, most the was collaborators” and “allies to reference The reads: thus 2(d)) (article Holocaust of definition The elude. to harder applicability law’s the make act key characteristics,preciselyto and includessome Romanian Holocaust,definesit explicitly invokes the The wording. its influenced substantially than more passing its preceding Ordinance They disapproval. their stated clearly perceived itascompromisingnationalpridetoabidebysuchinternationaldemands: Party Democratic Social governing the of also party extremist the of members several debates, Parliamentary available at: available its final form inParliament. its finalform http://cdep.ro/ the second sentence of article 2(d) was only added in late 2005, after newly elected President Traian B Traian President elected newly after 2005, late in added only was 2(d) article of sentence second the of theRoma. annihilation the to reference any make not did it because Parliament by passed originally act the sign to refused accessed March 31, 2008) accessed March31, onlu ai-uo, peh n h Snt peu dbts n Arl 02 aalbe through available 2002, April 2 on debates plenum in adopted discussedand tobe remaining upon publication, law becomes regulation Senate ofGovernment Thistype the in Speech Vadim-Tudor, Corneliu hs n al nun cttos r te uhrs rnlto ad r bsd n h oiia Rmna text, Romanian original the on based are and translation author’s the are citations ensuing all and This The Romanian anti-denial law was passed in the form of an Emergency Government Emergency an of form the in passed was law anti-denial Romanian The 9314. uig ol Wr I pr o te oa ouain a also was population Roma the of part subjected todeportationandannihilation. II, War period the World in During collaborators and 1933-1945. allies its European as well of as Germany, annihilation Nazi by andJews persecution state-sponsored systematic, The Romania’s toward But, end]. this [to commitment membership inNATO,ithasbecometoomuch. or statements any retract will us of none course of and thing good a is NATO joining course Of uoen eih Press Jewish European 296 http://cdep.ro/pls/legis/legis_pck.htp_act?ida=35293 (last accessed March 31,2008). (lastaccessedMarch on March 13, 2002. Looking at the adopted text, we find that the heated debates the find that text, we adopted Looking atthe 2002. March 13, on Jnay 7 20, vial at available 2007, 27, January , 297 (last accessed March 31, 2008). Interestingly, 2008). 31, March accessed (last 295 http://www.ejpress.org/article/13405 Partidul România Mare România Partidul ă , but , (last sescu 79 CEU eTD Collection ih i Rmna a lat ro t te dpin f mrec Odnne 120. The 31/2002. Ordinance Emergency of adoption the to prior least at Romania, in fight anti-discrimination the of picture distorted a paint provisions these reaching, far seemingly While punishment. same the prescribes and public” in means, any through performed state, totalitarian a of establishing for “propaganda proscribes too, 166, Article jail. in years five to months six by hatred” racial or national the stirring propaganda, “nationalist-chauvinistic punishing propaganda, against provision main the is Code Penal the of 317 Article religion.” race,sexor ongroundsofnationality, inapositionofinferiority citizen,orputtingthelatter a a rightby exertion of or the use of public employee, bya “limitation, 247, whichcriminalizes importantly, most and, discourse, public media, organizations. visual and printed space, public the symbols in missing: it waspreviously official controlwhere of reflects theperceivedneed scope broad Its 5). (Art. public” in means, any by propaganda, through ideology xenophobic or racist fascist, “promoting and criminals war of cult” personality the “promoting 4(1)), (Art. symbols” xenophobic or racist fascist, distributing of intention the with owning as well as distributing, selling, “producing, 3(1)), (Art. organization” xenophobic or a racist with fascist, organization an “establishing 1(b)), (Art. symbols” xenophobic or racist “fascist, is punishablewithprisonfromsixmonthstofiveyearsandremovalofcertainrights.” and crime a constitutes effects its or Holocaust the of denial “Public 6: article under text, the in denial reference to explicit the is discussion our of purposes the significant for Most after 1989. country the in surge a saw which Antonescu, Marshal of cult the to related directly here is criminals war to reference The persons. such prosecuting in humanity” against crimes Anti-discrimination legislation is also present in the Penal Code, such as under article under as such Code, Penal the in present also is legislation Anti-discrimination all banning measure, broader a as formulated specifically was law Romanian The 80 CEU eTD Collection of Hitler’s of 300 299 free the to right the alongside 1(3), 298 article as early as (included dignity to 29), (article in thecaseofHungarybelow. expression, free of principle be discussed will also This anti-liberal impulses. renounce certain to the ready nevertheless isnot to adhering while which, democracy new a of picture the paints speech on limitations of valid the as among well morality” to as contrary conduct violence,” “obscene public or separatism, territorial discrimination, to “incitement national,racial,classorreligioushatred,”of of aggression,to “instigationtoawar nation,” of including provisions, the and country the anti-speech of “defamation of of inclusion The obscenity. and array incitement, defamation, mixed a includes Constitution the of article 30(7) Furthermore, 30(6)). (article image” own one's to right the and person, of privacy honor, dignity, the to prejudicial be “not speech that requirement the including limitations, 30. article under provision number ofrelevantcasesisminimal. tools anti-discrimination implement to failure its for criticized been has country terms laid down by law. Indictable offences of the press shall be established by law. establishedby shallbe offences ofthepress by law.Indictable terms laiddown the under television station, or author, radio the producer, facilities, copying ofthe the owner artistic performance, of the the producer or publisher the upon falls public made creation or information any for liability Civil (8) any as well as violence, public law. or by morality shallbeprohibited to obscene conductcontrary separatism, territorial discrimination, to incitement any hatred, religious or national,racial,class to war ofaggression, toa instigation nation,any andthe the country of (7) Anydefamation own image. one's to right the and person, of privacy honor, dignity, the to prejudicial be not shall expression Freedom of (6) source. make publictheirfinancing media to forthe law mayimposeanobligation (5) The publicationshallbesuppressed. (4) No are public publications. upof involves thefreesetting ofthepressalso (3) Freedom in communication of means other or shallbeprohibited. (2) Anycensorship sounds by pictures, in writing, inviolable. in words, by creation, any copies under Article 166 of the Penal Code. Mentioned in thePenalCode.Mentioned Article 166of copies under and to investigate and prosecute perpetrations of violent attacks on other groups.” Quoted in Roth (1995), pp. (1995), Roth in Quoted 471-472. groups.” other on attacks violent of perpetrations prosecute and investigate to hatred and ethnic of expressions combat to action take government Romanian the that “recommended Romania, to Article 30, in its entirety, reads: (1) Freedom of expression of thoughts, opinions, or beliefs, and freedom of freedom and beliefs, or opinions, thoughts, of expression of Freedom (1) reads: entirety, its in 30, Article One example is that of the OSCE High Commissioner on National Minorities who, in June 1993, after a visit after a 1993, June who, in National Minorities on Commissioner High OSCE the that of is One example One of the rare cases that got to court was that of Oliviu Tocacili in 1993, who had sponsored the publishing the sponsored whohad in 1993, Tocacili Oliviu of that was court to got that cases rare the of One ih epc o peh h Rmna Cnttto poie fr t i a extensive an via it for provides Constitution Romanian the speech, to respect With h Rmna cntttoa tx as mks eeecs o h fedm f opinion of freedom the to references makes also text constitutional Romanian The Mein Kampf Mein . The prosecuting authorities in Sibiu banned the sale of the book and confiscated the confiscated and book the of sale the banned Sibiu in authorities prosecuting The . 300 hl poiiig esrhp te et lo it extensive lists also text the censorship, prohibiting While 299 Ibid. , p.415. 298 n the and 81 CEU eTD Collection 302 301 speech, racist and xenophobic to stranger no is which country post-communist a of context the in If arbitrary. means no by is yetit appear paradoxical, therefore study may this in Its inclusion law. Holocaust denial anti- an have present at not does Hungary Code, Penal the of 269 section and Constitution human dignity(article54(1))andequality66). interest. public of information to access to right the as well as opinions, express to freedom the for provides article 61 Hungarian Constitution’s The of Hungary. certain extent, a to said, can be same The limitation. speech at aimed provisions in rich is Code Penal its and norms, related 2.2 Hungary the against or law, of sovereignty, integrityorindependenceofRomania,”theyshallbedeclaredunconstitutional. rule the by governed State a of principles the pluralism, against political militate activity, or aims their “by when, that saying parties, political democratic anti- proscribes 37(2), article under Constitution, The 16). (article equality to and 30(6)), article in speech, on limitations the among as well as personality, human of development publishers) allowed for numerous openly anti-Semitic statements in the early 1990s.” Attila Pók, “Why Was “Why Pók, Attila No 1990s.” early There the in statements non-professional anti-Semitic by openly (frequently numerous for publications allowed quality publishers) poor of proliferation the speech, of freedom “Unlimited furthermore Chamberlin. ulc ces o nomto o pbi itrs ad h lw n h fedm f h press. the of freedom the on law the and sector. media the in monopolies interest of prevention the on and television, and radio directors commercial of the licensing of the public on appointment thereof, the as well as agency, news public of the and television radio, public of supervision information onthe thelaw to pass required to is present Parliament Members of the votes of of the two-thirds A majorityof (4) access public onthe thelaw to pass required is present Parliament Members of the votes of of the two-thirds A majorityof (3) (2) This was especially true in the years immediately following the fall of communism, as one observer noted: observer one as communism, of fall the following immediately years the in true especially was This and opinion, his express freely to right the has everyone Hungary of Republic the In (1) reads: 61 Article The ept a i o at-iciiain as icuig rils 0 ad 0 o the of 70B and 70A articles including laws, anti-discrimination of mix a Despite speech- of assortment broad a offers Constitution Romanian the above, seen was As 301 Historikerstreit The Holocaust in Hungary: SixtyYearsLater inHungary: TheHolocaust utemr, h Hnain osiuin lo rvds o te rtcin of protection the for provides also Constitution Hungarian the Furthermore, Republic to of of access in Hungary after 1989-1990?” in eds. Randolph L. Braham and Brewster S. S. Brewster and Braham L. Randolph eds. in 1989-1990?” after Hungary in Hungary Hungary 302 and teqeto fwehro o ociiaie negationism criminalize to not or whether of question the recognizes distribute distribute and (Columbia University Press, 2006), p.250. Press,2006), (ColumbiaUniversity respects information the freedom of public of the interest. press. 82 CEU eTD Collection 308 307 306 305 304 303 dangerous. more it makes which Hungary, in belligerent.” a but either of aims war represented the among objective] an not Jews, was it [as view of the point marginal secondary, of rescue or extermination the Holocaust, “the that noting well, as genocide communist the of victims the to extended be should “Holocaust” word the the of opening 2001 the at Minister Prime Hungarian the to adviser the by made comments are denial of form this of past for responsibility itself. event historical the of the occurrence denying outright not atrocities while eschewing the implying deflective, as denial of form Hungarian the describes Shafir Michael contrary. the to Quite country. the from denial Holocaust of compatriots.”) controversy andevenledtoalawsuitagainsthim. Jewish deported of thousands of tens and exterminated 600,000 for the Jews to apologize to is burden historic (saying: “Our Horn Gyula Minister then-Prime by apology public 1994 The collaborator-countries. other and Romanian the in than charged in ChapterThree. not jurisprudential section inthe bediscussed will PenalCode, (2) ofthe and under article269(1) does factors, as speech, internal hate criminalize of to attempts Furthermore, set regulation. new to distinct lead automatically a with faced when conditionality, that understand external us help will It important. is was that why negative, the in answered was victims of the fascist and communist regimesinHungary. andcommunist victims ofthefascist p. 139. (1999), ined.Ramet Right inHungary,” Karsai, “TheRadical Random Braham writes: RandomBraham commemorating of aim the with premiership Orbán’s Viktor during built museum a is Terror of House The Laszlo See apology. this of account on injury personal for Horn sued Mónus Áron extremist Right-wing Mária Schmidt quoted in Shafir (2002), pp. 59-60. pp. (2002), quotedinShafir Mária Schmidt oneinparticular. well, andintheRomanian contextsas Thisistrueinother Shafir (2002). 2,1997. Affairs,February Jerusalem CenterforPublic 351, No. Letter/Viewpoints,” Quoted in“Jerusalem The absence of a Hungarian anti-denial law should not be seen as proof of the absence notbeseen asproofoftheabsence The absenceofaHungariananti-deniallawshould highly no less is the Holocaust during Jews of European the murder in Hungary’s role 307 Other observers, too, have noted the more subtle form of negationism present negationism of form subtle more the noted have too, observers, Other Terrorhaza (House of Terror) in Budapest, in Terror) of (House 308 Its threat should also be apprehended with a with apprehended be also should threat Its 304 306 who commented that commented who 305 Evocative 303 arose 83 CEU eTD Collection http://www.legislationonline.org/upload/legislations/15/ef/84d98ff3242b74e606dcb1da83aa.pdf 312 311 310 309 simply Hungary…has symbols, “slammed thedooronsicktwentiethcentury.”” these by represented regimes the between distinctions the evaluate than the “Rather message: clear of a this aspect in saw painful Judt Tony Historian a past. country’s of renunciation sweeping a suggests however, ban, Hungarian law. Romanian the in symbols prohibited against provisions the to corresponds star) red the (including symbols communist and Nazi both of display public and distribution rights” the outlawing 269(B) article of Code Penal the within inclusion the Furthermore, constitutional basic amongst position “privileged a to point to seems doctrine emerging The below). Three Chapter in (discussed defamation group and incitement to respect with decision 1992 (HCC) Court Constitutional Hungarian by theresorttonegationismoftentimes“respectable”publicfigures. subverted is which system, democratic established newly Hungary’s of fragility the to view The of the dissemination or inforce. ofstates the history extend totheofficialsymbols (2) donot (1) and provisions ofsubsections (3) The of of events purposes the about the information for of purpose (1) notbepunishable. present time,shall the subsection with or in art, defined or science, act education, the knowledge, commits who person, The (2) the depicting symbol a or star red withfine. bepunishable amisdemeanor,andshall is realized—commits five-pointed graver crime above—unless a a hammer, and sickle arrow-cross, an sign, SS the swastika, a c) exhibitsinpublic; publicity; b) usesbeforegreat a) distributes; who person (1) The adlh . rhm “h Asut n itrcl eoy Hnain ainlss n te Holocaust,” the and Nationalists Hungarian Memory: Historical on Assault “The Braham, L. Randolph and the Criticism of Judges: A comparative study of European legal standards Europeanlegal studyof Acomparative Criticismof Judges: and the Orbán at the opening ofthe Orbán attheopening March 31, 2008). March 31, European Quarterly, European Tony Judt, Tony reads: Article269(B) Ibid. Gábor Halmai, “Criticizing Public Officials in Hungary,” in ed. Michael K. Addo, K. Michael ed. in Hungary,” in Officials Public “Criticizing Halmai, Gábor , It is within this context, thus, that the reader must read the great importance of the of importance great the read must reader the that thus, context, this within is It n dngaig h ctsrpe f h Jw i fil lre n—ugn b recent by and—judging large fairly is Jews the of catastrophe developments—growing. the denigrating distorting those of and camp the small, Hungarian relatively the Holocaust—is of the denying that actually anti-Semitism—like neo-Nazis of champions xenophobic of number the While English Postwar: A History of Europe Since 1945 Since Europe of History A Postwar: Vol. 33, No. 4 (1999), p.198. No.4(1999), Vol.33, text Terrorhaza of the on February 24,2002. onFebruary Hungarian Hungarian (Penguin Books, 2005), p. 828, citing Prime Minister Prime citing 828, p. 2005), Books, (Penguin 312 Criminal 310 Code o fedm f speech. of freedom for (Ashgate, 2000), p.204. (Ashgate, 2000), 309 311 Freedom of Expression of Freedom h etn o the of extent The is ls accessed (last available East 84 at CEU eTD Collection 315 314 313 Nuremberg the to reference with or text, legal the of confines the within defined strictly A 3. on restrictions lax more norm, a freedom ofexpression. as has, that country a in even speech, the hate of of awareness dangers increased show however, does, It unclear. is country the of extremism now.” as remarks anti-Semitic many so been never have There happening. horrible something is “There saying as quoted been has Gyurcsány gain. (now of political likes for anti-Semitism exploiting of the accused he whom Orbán, from Viktor leader) opposition himself distanced Gyurcsány, Ferenc Minister, Prime The current denial. Holocaust and anti-Semitism by posed threat the of apprehensive more been has discourse political Hungarian that true nonetheless is It specifications. further requesting Parliament to law the returned and necessity this see to failed however, Court, Constitutional law].” a [such for need a is there today even where countries of range the said. statements,”he modification istoclosethelegalloopholesusedbythosemakinganti-Semitic the of objective “The crimes. motivated racially and crimes hate against provisions penal the amend andto criminalize Holocaustdenial to aproposal pointedto in2002, the UnitedStates to visit a on Kovács, László Minister Foreign Hungarian it. instituting at attempts repeated been have there place, in not still is denial Holocaust banning law a While speech. extremist 3, 2007, available at 3, 2007, 2002, previously available through previously availablethrough 2002, Quoted in “Hungarian PM warns of escalating anti-Semitism in his country,” his country,” in anti-Semitism escalating warns of PM in “Hungarian Quoted crime,” a denial Holocaust make to gov’t says FM “Hungarian in Quoted Ibid. NTI 313 Referencing German and Austrian anti-denial law, he described Hungary as being “in being as described Hungary law, he anti-denial and Austrian German Referencing n eet er, ugr hs otne is erh o te rpr en o fighting of means proper the for search its continued has Hungary years, recent In All the countries discussed thus far have made the denial of the Holocaust—whether the of denial the made have far thus discussed countries the All -G ENOCIDE http://www.ejpress.org/article/14710 D ENIAL L http://haaretz.com AWS (last accessed March 16, 2007). March16, (lastaccessed (last accessed March 31, 2008). (lastaccessedMarch31, 315 Whether this signals a rise in the in rise a signals this Whether Associated Press Associated European Jewish Press European 314 The Hungarian The , September 16, September , , March , 85 CEU eTD Collection (last accessed March 31,2008). (last accessedMarch Penal Código 318 317 316 which reads: 607(2), article in described is itself Denial crime. the of elements the for sentences prison Penal Código into slip similar a prevent authoritarianism. to intended as well as past difficult country’s the to reaction direct a are text the in provisions certain that then, surprise, no as Francisco come should General It Franco. under dictatorship of years thirty-six after force into came document 3.1 Spain contexts, different a with coupled This, so. Swiss the in and Spanish the in Holocaust, both done the in involvement national of understanding actually have two ensuing the only that note resurface, suggestions todothesameinpreviouscountriesconstantly While genocides. all of denials include to laws anti-negationist respective their of scope the extended have Switzerland, and Spain further, discussed be to countries The crime. trials—a national self-understanding in these two countries, which is nowhere near as negative asintheothercontexts. nearasnegative which isnowhere these twocountries, in national self-understanding the to refers however, point, My victims. Jewish their from money and gold away put Nazis helped notoriously countries. EastEuropean crimesinCentral with respecttocommunist This and ensuing translations from the Spanish Criminal Code are the author’s. The full text of the Spanish the of text full The author’s. the are Code Criminal Spanish the from translations ensuing and This banks Swiss example, For Holocaust. the of aspects some in involvement their course, of deny, not to is This as well as contexts, French and German the others, among in, posed was problem the above, discussed As h cie cdfe i te ro scin f hs ril, r tep the attempt or article, this of same [crimes]willbepunishedwiththeprisonsentence ofonetotwoyears. section prior the the generating whichfostered practices or institutions rehabilitation ofregimes in codified crimes the justifying denying or doctrines ideas or of whatever means by The distribution the of 607 article in incorporated is provision denial anti-Holocaust Spanish The That 1978. to back dating constitution a with monarchy constitutional a is Spain 317 justifiestheirinclusioninaseparatecategory. can be found at found be can Te ul ril dfns h cie f eoie n pecie te specific the prescribes and genocide of crime the defines article full The . http://www.boe.es/g/es/bases_datos/doc.php?coleccion=iberlex&id=1995/25444 316 itisinterestingto 318 86 CEU eTD Collection 320 319 “the as others for respect and personality” of development free “the as well as inherent,” are which rights “inviolable of clause, dignity the in mention, 10) forthright (article makes dignity Constitution of Spanish protection the the for that provisions noted be should It discussion. this to relevant greatly is framework constitutional broader The however. 607, article to discussion Holocaust. ThisisafeaturesharedbytheSwissanti-denialprovisionaswell. the just genocides, not all to the provision of extension the is of note least, not Last but issue. very this on say to much had Tribunal Constitutional Spanish the seen, be will As accused. the of independent negationism of prosecution making intent, the of evade question to be to appears however, does, 607(2) article What prove. to difficult least at or obvious, near nowhere is denial of crime the perpetrating behind intent of element the that happen may it however, time, same the At both. or neo-Nazi, a anti-Semite, an also is denier Holocaust a that be well may it previously, noted As intent. of question the is there hand, other the On intelligibility. of reasons for clearly more two the divide to legislators Spanish unfit the entering debates historical as Holocaust deniallaws overthenatureof thinking oftheintensedebates very existence.When its denies other the while it excuses but it accepts one dissimilar: is truth historical to regard with accused supposed the of attitude the hand, one the On two. the between distinctions their justification.Thereareclear opposed to negation ofgenocidalcrimesas types ofcrimes: distinct two essence, in are, what of conjunction interesting the notice should reader The sex, religion, opinion, or any other personal or social condition orcircumstance. socialcondition personalor oranyother sex, religion,opinion, by Spain. those mattersratified on agreements and treaties international the and Rights Human of Declaration Universal the with conformity in interpreted be shall Constitution the by recognized are which liberties and rights basic to relative norms The (2) social and order political of foundation the are peace. others, of rights the and law the for respect personality, the of Article 14 reads: Spaniards are equal before the law, without any discrimination for reasons of birth, race, race, birth, of reasons for discrimination any without law, the before equal are Spaniards reads: 14 Article free development the inherent, which are rights inviolable the person, the of dignity The (1) reads: Article 10 n wud ny ae pril da f h Saih otx we lmtn the limiting when context Spanish the of idea partial a have only would One locus of the courtroom, one may have expected the expected have may one courtroom, the of 319 n eult (ril 14). (article equality and foundation of political order and order political of es rea mens 320 f the of The 87 CEU eTD Collection oiia gop, epcig h puaim f oit ad h vros agae o Spain. of languages various the censorship. and resolution. prior judicial a by determined society be may only information of means other or of recordings, publications, of seizure The (5) of type youth of any and protection pluralism and identity, personal privacy, honor, to right the through in especially, and, the it develop which laws restricted the of respecting precepts in the Title, in this recognized and rights the for be respect social in the limitation find their liberties significant These (4) by means groups, those cannot to access guarantee shall rights and political communication entity social public of any means or the these State of the control by parliamentary owned and of organization the regulate shall law exercise The (3) The truthful freely receive (2) or communicate To freedoms. ofthese in secrecy theexercise on conscienceandprofessional d) freedom. clause the of protection the to right the Academic regulate shall law The dissemination. of means c) any through information creation. and production, technical and scientific, artistic, Literary, b) reproduction. of means other any or writing, words, through freely thoughts activity are free within the observance of the Constitution and the laws. Their internal structure and operation operation and structure internal Their must bedemocratic. laws. the and Constitution the their of of observance exercise the the within and free creation are Their activity participation. political for instrument basic a are and will, popular the perhaps weaker than we have seen elsewhere. seen have we than weaker perhaps 324 323 322 to right “the that 321 emphasizing Constitution, the of I Title in included rights fundamental the of view in restricted be may expression of freedom the which under conditions the gives information.” factual of flow the protects other Tribunal, “thefirstrightallowsindividualstoexpressanopinion,avalue-judgment,whilethe senso stricto speech of freedom the includes It communication. of freedom as well as freedom, academic creation, scientific and artistic for thoughts,” disseminate and “express to freedom the for operation” bedemocraticechoesthemilitantdemocracydiscussioninChapterOne. structureand parties’“internal thatthe Therequirement also relevanthere. political parties,is Constitution, the of 6 Article peace. societal and order political entire the also but individual, the to just not dignity links article the that noted be constitutional also should It the structure. within importance central its to speak added) (emphasis peace” social f h Itrainl cdm o Cmaaie a, rsae 14 Brisbane, Law, Comparative of Academy International the of http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane-Spagna.pdf ulw aaua” n d Sj (04, p 1316 Lsi Trn, San Bnig oiia pris s a as parties political Banning “Spain: Turano, Leslie 133-156; pp. terrorism,” (2004), to Basque response Sajó ed. in Batasuna,” Outlaw to Decision the and Spain, in Parties Political of Regulation New “The Comella, Ferreres Victor see study, case 4; n In rm “osiuinl epne t eteit oiia ascain – associations political extremist to responses “Constitutional Cram, Ian and 740; democratic norms,” democratic norms,” Victor Ferreres Comella, “The Regulation of Hate Speech in Spain,” Paper presented at the XVIth Congress Congress XVIth the at presented Paper Spain,” in Speech Hate of Regulation “The Comella, Ferreres Victor the of outlawing the with Spain in parties political of regulation the of discussion a For Article 6 reads: Political parties express democratic pluralism, assist in the formulation and manifestation of manifestation and formulation the in assist pluralism, democratic express parties Political reads: 6 Article Article 20 reads: (1) The following rights are recognized and protected: a) To express and disseminate disseminate and express To a) protected: and recognized are rights following The (1) reads: 20 Article ovrey te pns cntttoa poiin fr h poeto o sec are speech of protection the for provisions constitutional Spanish the Conversely, and the right to freedom of information; according to the Spanish Constitutional Spanish the according to information; of freedom right to the and Legal Studies International Journal of Constitutional Law Constitutional of Journal International , Vol. 28, No. 1 (March 2008), pp. 68-95. 2008),pp. No.1(March , Vol.28, 323 Article 20 initially makes broad provisions broad makes initially 20 Article 324 eetees atce 04 extensively 20(4) article Nevertheless, (last accessed March 31, 2008). 31,2008). March (lastaccessed , Vol. 1, No. 4 (Oct., 2003), pp. 730- pp. 2003), (Oct., 4 No. 1, , Vol. th -20 th uy 20, vial at available 2002, July, ETA Batasuna , 321 Batasuna regulating 322 childhood. party as a as party

and 88 CEU eTD Collection 326 325 with struggle Spain’s of light in explicable accommodating itsCatholicidentityalongsidereligious pluralism. is sensitivities religious on emphasis ( abuse the public ceremonies or beliefs or ( derision public the to explicitly refers Code Criminal the in further provision even defamation. An group of type a with latter the violence), while as well as hatred, discrimination, (to incitement with deals former the words, other In associations. or groups of types same the concerning information injurious spread truth the for reckless disregard with or knowingly who those for punishment same the stipulates 510(2) Article for fine a and years three and one between of sentence prison a for provides 510(1) article Thus, speech. dangerous potentially curbing at aimed stipulations further has it that note and Code social for precondition peace; equality;andmilitantdemocracy. a and right human a as dignity important on emphasis with strong but a limitations; expression, of of freedom discussion country: this our in for regulation characteristics denial Holocaust key several exhibits Spain of text prohibited. be constitutional theoretically, least at may, denial Holocaust as such speech problematic that wonder small clause, limitation strong especially a such With process. this are in weighed childhood” and youth of protection and identity, personal privacy, honor, constitucional Rights,” protection. from excluded constitutionally is insult that notes also He speech.” protected constitutionally of boundaries the See Augustín Motilla, “Religious Pluralims in Spain: Striking the Balance Between Religious Freedom and Freedom Religious Between Balance the Striking Spain: in Pluralims “Religious Motilla, Augustín See outside is speech hate that hola to countries other in than Spain in easier is “it that remarks Comella Ferreres race, totheirnationalorigin,sex,sexualorientation,ailmentordisability. or ethnicity an to members their of belonging the to situation, family or beliefs, religion ideology, the to referring reasons other or anti-Semitic racist, for associations groups or against violence hatred or discrimination, to incitement Criminal the at again look also should one provisions, constitutional these Beyond Ibid. Brigham Young University LawReview University Brigham Young vejar ) of believers (and atheists) (article 525). This (article 525). atheists) (and of believers ) , No. 2 (Summer, 2004), pp.575-606. (Summer,2004), , No.2 escarnio 326 ) of religious dogma, religious of ) 325 hs the Thus, 89 CEU eTD Collection 327 in made extension for suggestions the of law into transference the ways, some in is, This analysis. this in against studies case other crimes the from further, departure marked a even seems certainly and humanity, genocides all of inclusion the Moreover, incitement. hate of types other as punishment of deserving as speech hate of form a is understanding, Swiss the in negationism, conclude that to therefore, logical, seem It would measures. racism heading “ under the 261 article fact, In Code. Penal Swiss the of confines the within so the If racism. not is it and contested, still is observers many humanity of contention anti-Semitism” is against denial “Holocaust crimes other and genocide of denial the between too, speaksof“ text, Swiss (the them of most in apparent denial-minimization-justification of sequence the with laws, these of many across language in similarity the note to interesting again yet is It discrimination andspreadingofracistideologypropaganda,underparagraph4reads: 261 Section Strafgesetzbuch Holocaust. Schweizerisches Nazi the just not crimes, of array wider a of negation 3.2 Switzerland accessed March 31, 2008). 2008). accessed March31, uhrs rnlto o te emn rgnl et aalbe at available text, original German the of translation Author’s f oe infcne ee r to set o te ws lw Oe s h drc link direct the is One law. Swiss the of aspects two are here significance more Of a fine. crimes other or reasons genocide these justifyyearsor three of upto imprisonment of be punishedwith against humanity…will to basis attempts the or on minimizes, or grossly religion, denies, or ethnicity, race, their of basis the prohibit to aims law anti-denial Swiss the provision, Spanish the to Similar r n n ohr a wih fet hmn int bltls r discriminates or belittles dignity human ( affects which way other any in or acts gesture, image, through writing, in mouth, of word by publicly Whoever herabsetzt oder diskriminiert oder herabsetzt 327 leugnen, gröblichverharmlosenoderzurechtfertigensuchen Rassendiskriminierung , after criminalizing the public incitement to racial hatred or hatred racial to incitement public the criminalizing after , ) against a person or a group of persons on the on persons of group a or person a against ) ” and, as noted above, includes a multitude of anti- of a multitude above, includes as noted ” and, http://admin.ch/ch/d/sr/3/311.0.de.pdf bis in its entirety comes entirety its in ”). bis f the of (last 90 CEU eTD Collection 330 329 328 had. provision criminal this that states other with relations international Switzerland’s on toll the with dissatisfaction voiced also more and offended, be will is minorities some whether than expression valuable of freedom to right the that belief his expressed He denial. genocide on prohibition the of repelling the on called has one, for Blocher, Christoph Minister Justice directly the enjoyed margin, expressed supportoftheSwisspopulation. small a by albeit has, it law: the of challenges subsequent votes. the of percent six point fifty-four received it it allbutunique:itsadoptionfollowedanationalreferendumonSeptember24,1994,wherein makes which feature one carries law anti-denial Swiss The others.” of rights fundamental of “protection and interest” “public restrictions for bases as mentions which article 36, clause in limitation general the in found be to is rights these of limitation The discrimination. from protection ensures 8(2) whereas law, the the before equality provides in 8(1) Article case. as German State the of obligation positive a to pointing seemingly dignity, human protect freely). information receive to one as well as expression, to right a provides ways—it both goes latter (the information and opinion of the is freedom the what 16 protects Article this lawoperates. within which context broader constitutional ask to relevant again, is, it genocide, Armenian the of denials to application some lightintowhathappenswhenthelawismadeapplicabletoallanalogouscases. shed operation might its above), so French, discussed German and as the (such other contexts at http://www.nzz.ch/2006/10/05/il/newzzeswub03c-12_1.66029.html http://www.nzz.ch/2006/10/07/il/articleejqwt_1.66537.html “Blocher will Genozid-Leugnunglegalisieren,” Genozid-Leugnunglegalisieren,” will “Blocher Wortlaut,” in Rassismusstrafnorm “Die http://admin.ch/ch/d/sr/1/101.de.pdf available text, German original the on based are Constitution Swiss the to references subsequent all and This 330 A party which in 1994 had approved of the new law, the Swiss People’s Party (SVP), Party People’s Swiss the law, new the of approved had 1994 in which party A dbt oe te eom f ril 261 article of reform the over debate A its as well as law, Swiss the surrounding controversies the mentioning to Prior (last accessed March 31, 2008) and are the translations oftheauthor. are thetranslations 2008)and 31, (lastaccessedMarch ee üce Zeitung Zürcher Neue 328 ee üce Zeitung Zürcher Neue ril 7 rcam te ed o epc and respect to need the proclaims 7 Article (last accessed March 31, 2008). March31, (lastaccessed bis a be ogig n wteln. The Switzerland. in ongoing been has 329 (last accessed March 31, 2008). March31, (lastaccessed hs ds nte dmnin o all to dimension another adds This Otbr , 06 aalbe at available 2006, 6, October , Otbr 2 20, vial at available 2006, 12, October , 91 CEU eTD Collection h psiiiy f etitn is rvsos o ny fw nmd eoie (oal the genocide). (notably Armenian the genocides and named Holocaust few, a only to provisions its restricting of possibility the 261 of reform the on suggestions make to up set even was commission 333 332 331 withinabroaderanti-discriminationtooldidinSwitzerland. in Germany,andastheirframing certain it with carried did Francedead the of memory the of protection in and insult with connection their as Press just restrictions, the of Law the in inclusion their seen, have we As relevant. similarly is instruments legal distinct in laws anti-negationism of inclusion The law. the of application of scope ensuing the shaping clearly significant, is Republic) Czech also the but Switzerland, genocides (Spain, other to extends or the Holocaust covers law only the whether Moreover, event. historical as Holocaust the of understanding country-specific certain a indicates Switzerland) and (Spain terms general more in or Belgium), and (France Tribunal Nuremberg the to reference by not, or Romania) Austria, (Germany, Holocaust the instance, the to relationship strict For in defined Whether importance. laws. crucial of is component definitional these of elements primary the over view enriched an us affords outlook comparative the themselves, laws the listing just laws Beyond purposes. denial multiple serves anti-Holocaust of texts the of features main the of exposition extended This a fineforhisremarks. and imprisonment days ninety to sentenced was lie, international an was genocide Armenian the that maintained had who Perincek, Dogu politician Swiss the 2007, As March not. as recently or racist is genocide Armenian the of denial the whether over exchanges heated the against fight the of forefront the at now is Swiss-Armenian Association was a private party tothistrial. was aprivateparty Association Swiss-Armenian available at http://www.nzz.ch/2007/05/24/il/articlef7i86_1.363527.html http://nzz.ch/2007/03/12/il/articleezypn_1.125424.html GnzdLunr eick verurteilt,” Perincek “Genozid-Leugner Rassismusgesetzes,” des Revision zur “Vorschläge Rassismus-Strafnorm,” die gegen Sturm zum bläst “SVP http://www.nzz.ch/2006/11/16/il/newzzeukw4h74-12_1.75908.html 333 332 ee üce Zeitung Zürcher Neue This renewed debate comes in conjunction with conjunction in comes debate renewed This ls acse Mrh 1 20) O nt i ta the that is note Of 2008). 31, March accessed (last ee üce Zeitung Zürcher Neue (last accessed March 31,2008). (lastaccessedMarch Rassendiskirminierung ee üce Zeitung Zürcher Neue Mrh 2 20, vial at available 2007, 12, March , (last accessed March 31, 2008). March31, (lastaccessed My 4 20, vial at available 2007, 24, May , bis , November 16, 2006, 2006, 16, November , , which discussed which , provision. 331 A 92 CEU eTD Collection f h floig uipueta dsuso, hc ilsrts hi ata apiain and interpretation bypertinentauthorities. application actual their illustrates which discussion, jurisprudential following the of view in become clearer elements will constitutive of these All laws. the wording of the actual in stated explicitly less or more is which element, intentional the is too, forgotten, be to Not 93 CEU eTD Collection osiuinl eiw n ugr (ril 3A3 o te osiuin. h Spanish The Constitution). the of 32A(3) (article Hungary in review constitutional of option similar A authority. public been a have by rights) violated enumerated other of set a (or rights basic his that claim individual the ( unconstitutionality of complaints bring to individuals of capacity the present to refers the provisions its For of relevant Law. most Basic the purposes, the with enforced, as laws, of compatibility the as reviewing well as organs public of duties and rights the concerns and GG 93 article in described and review judicial to comes it when rules different vastly have however, study, the in countries The andStanding 1.1 TheLaw and procedural on words preliminary enforcement mattersareinorder. few a however, proceeding, these Before in countries. laws anti-denial of implementation the of elements doctrinal main the extricate to effort an Spain—in shall and Hungary, Belgium, I France, studies—Germany, case follows, five analyze what In practical doctrine. the speech anti-hate understanding and toward anti-negationism of further implications even move will chapter this in discussion The laws. denial anti-Holocaust actual from the transpire they as justifications explore these of influence to proceeded then speech, hate of prohibition the conversely, and, speech of A 1. NTI In the previous chapters, I dealt with the philosophical justifications for the protection for the justifications philosophical the with I dealt chapters, previous In the Wherever possible, the analysis will center on case law from the constitutional level. constitutional the from law case on center will analysis the possible, Wherever -H OLOCAUST ou standi locus D ENIAL I Gray te C’ cmeec t rve lgsain is legislation review to competence FCC’s the Germany, In . L EGISLATION Verfassungsbeschwerde CHAPTER III E NFORCEMENT ci popularis actio ). Article 93(4b) thus requires that requires thus 93(4b) Article ). a fr te ai of basis the form may 94 CEU eTD Collection (last accessed March 31,2008). (last accessedMarch 334 second In the countries. between contrasts stark the source of the grasp to position better a in be procedural caveat above, mind the reader will,keepingin concerning anti-deniallaws.The cases of number a on data available the of some survey I follows, what In court. higher a by review judicial deficient) (democratically the to an opposed as indicate democracy, direct may on referendum emphasis to recourse the laws, review to power have not does Court Federal Swiss the Whereas misleading. be may cases above the of some Moreover, recourse. the of provisions the with courts) the as (such authority public a by applied law the of compatibility the contest may citizen German the If other. the to country one from greatly differ will levels court higher the even or constitutional the at cases of number ensuing the that inferred be to therefore of Parliament ortheFederalCouncil(article189(4)),exceptifotherwiseprovidedinacts. “exceptions review the the precludes or Constitution courts Swiss The normal may Ombudsman. by raised as Court Constitution), the of 146 Constitutional (article unconstitutionality” Romanian The Parliament. of Members sixty or Senate, the of President the Assembly, National the of President the other review review to the Constitution, French 1958 the of 61 article Under force. into goes actually it before only legislation review may it words, other in powers; review abstract only violations. rights claiming citizens ( protection constitutional for appeals individual hear to possibility the and laws of review the including powers, review broad has also Tribunal Constitutional http://www.tribunalconstitucional.es/tribunal/leyesacuerdos/Texto%20consolidado%20nueva%20LOTC.pdf Article 2(1) of the Article2(1) The schematic picture painted here illustrates how much procedural rules vary. It is It vary. rules procedural much how illustrates here painted picture schematic The os organiques lois lois , it requires a referral by the President of the Republic, the Prime Minister, Prime the Republic, the of President the by referral a requires it , Ley Orgánica del Tribunal Constitucional delTribunal Ley Orgánica n rls f rcdr o Primn atmtcly wees to whereas automatically, Parliament of procedure of rules and Grundgesetz 334 n rne hwvr the however, France, In a iial stae Fec ctzn a n such no has citizen French situated similarly a , , availableat Bundesgericht osi Constitutionnel Conseil recursos de amparo de recursos rm eiwn at of acts reviewing from Conseil has the power the has ) from ) has 95 CEU eTD Collection 338 337 336 335 In involving cases of courts. number the lower lists 2000 the and 1999 in years the finality for report one finding Switzerland, increasingly Austria, and Germany in news incitement. laws againstdefamationor 24 article of basis the on rendered been had nine only “revisionism,” 2000. and 1992 between trial reached that cases nine twenty of total a in resulted prosecutions, of avalanche The therein. societies, constructingthelegalanalysisuponthisbackgroundofpubliccontestation. works some Thus, answers. their respective “scandals” in the biggest produced cases whichhave the different specifically focuson provide and when laws, methods these anti-negationism of other discussing the or one chosen have authors Some legislation. this by cases, emerging of number the at look may one laws, anti-denial to respect With reach. is of out law completely given a of effectiveness the of evaluation an that mean not does that but answers, straightforward no have questions These quantifiable? success Is success? its determining inNumbers 1.2 TheLaw anti-negationism laws. with countries the of five from stemming law case discuss to proceed I chapter this of part with new statistics as it becomes availablein thefuture. asitbecomes with newstatistics it complement to view with a here, discussed is data partial only consequence, a As study. this in surveyed laws Université de Paris I (1995), cited in Dhoquois (2006), p. 30. p. cited inDhoquois(2006), I(1995), Université deParis eni France, Jeannin Kahn(2004), anti-denial the all to respect with data prosecution on available data board the across consistent, no is There Bilan de laLoiGayssot Bilan de o d w ko wehr cran a “ok” Wa ae h ciei for criteria the are What “works”? law certain a whether know we do How te atos ok t h nme o eegn css n da ter conclusions their draw and cases emerging of number the at look authors Other o Gayssot loi passim. 335 337 e éiinim. otiuin léue e a iet d’expression liberté la de l’étude à Contribution révisionnisme. Le their prominence, or, more generally, the amount of public debate spurred debate public of amount generally, the more or, prominence, their n le suy a fud ht o tit jdmns concerning judgments thirty of that, found had study older An , p.57. dsie t bod agae n fas ht t ol la t an to lead would it that fears and language broad its despite , 338 Conversely, a steady flow of cases is reported inthe flowofcasesis Conversely,asteady bis , the others invoking others the , Tèe e droit, de Thèse , 336 96 CEU eTD Collection yptie o te newr acs Rmna movement Romanian fascist interwar the of sympathizer concerned oneindividual Ordinance 31/2002 Emergency the caseinvolving the onlyreported forinstance, of.InRomania, caselawtospeak ones inCentralandEasternEurope,havelittle 343 342 341 340 339 opposed totheactivityofsuchactorsinSpain,Belgium,orFrance). (as lawsuits of shortage the for cause a constitute also might in Europe Eastern work and anti-racismCentral in involved organizations society civil of scarcity comparative The implementation. successful future its of hope little leaves such as and law the of purpose main the with odds at speech of freedom the of importance the of appreciation an suggest poor predicting already some with negative, very been had Parliament Romanian the in reactions the of some forget, we Lest one. valid a is ordinance Government via implemented being rights individual of restriction severe a against argument the and passed, was law the which state. democratic and free a the of to precepts contrary opinion, of crime a up sets unlawfully question in law the that stated and condemnation his reversed 2006, in which, Justice and Cassation of Court High the reached 261 article Adrian P http://cotidianul.ro/justitia_recunoaste_legalitatea_miscarii_legionare-11853.html prominent public figures in Romania have not been prosecuted. See Andreescu (2003). SeeAndreescu prosecuted. have notbeen inRomania prominent publicfigures streetsbearinghisname. the renamingof l’Élimination de Toute forme de discrimination raciale de discrimination deTouteforme l’Élimination http://edi.admin.ch/shop/00077/index.html?lan=fr 2008). Legionară accessed March 31, 2008). accessed March31, Some authors also point out that, despite their use of obvious inciting and even “revisionist” language, language, “revisionist” even and inciting obvious of use their despite that, out point also authors Some “ and spaces public from Antonescu Marshal of statues certain of removal the was law the of effect main The One Senator is quoted asstating: One Senatorisquoted exèe t riim rpot proius rsnés a l Sis a Cmt ds ain Uis pour Unies Nations des Comité au Suisse la par présentées périodiques rapports troisième et Deuxième utţa euoşe eaiae Mşăi Legionare Mişcării legalitatea recunoaşte Justiţia e facto de ă big a rush the Executive announces. big arushtheExecutive too in which time, jail of fear for not good, general the for this is repeat, I my opinions. about hold silent now –to NATO accession toward Romania, situationof good will servethe –if this ready I am Government, and the Minister Prime the that of from opinion my different Despite unescu, Speech in the Senate plenum debates on 25 March 2002, available through availablethrough March 2002, 25 on plenum debates Senate inthe unescu, Speech ”) Cotidianul bis n h ffis o each. for fifties the in implementation. , June 2, 2006, availableat , June2,2006, 342 h lnug o te ih or’ raoig em to seems reasoning Court’s High the of language The 339 te lw, atclry h mr rcnl adopted recently more the particularly laws, Other 341 (last accessed March 31, 2008), p.59. 2008), March31, (lastaccessed Undoubtedly, this had to do with the manner in manner the with do to had this Undoubtedly, (2002), available at (2002),available ” “h lw eonzs h lglt of legality the recognizes law (“The ,” Mi ş ae Legionar carea ls acse Mrh 31, March accessed (last http://cdep.ro/ ă . 340 h case The Mişcarea Mişcarea (last 343 97 CEU eTD Collection niptbe i ter sfles t pbi rpeso ad eaoy t h bnft of benefit the at pedagogy and others.” repression public to usefulness] their [in indisputable seem that [cases] those choose to central hold associations discernment, with because, but osbe ee Te ubr dfe sgiiaty de o n ra o fcos including factors, 346 of array 345 an to due 344 significantly, differ numbers The here. possible not is data this of evaluation comparative detailed, A laws? these of nature self-defeating the of unsatisfying, proof and mediocre numbers are such Or are “appropriate”? years (Romania) in six years (France),orone in eight year(Switzerland), casesper twentynine we believefifty find thenumberoftrialsandreasoningbehindthemasigndefeatinthemselves: scholars some Holocaust, the on doubt casts that anything prosecuting in and truth” “state a instituting in danger the Given scope. subsequent and language law’s the of nature slippery [“ thought detestable the of decrease a is there because “not skyrocket not did trials of number the view, his In explanation. nuanced more a offered cases anti-denial in involved attorney French one Indeed, denial. Holocaust of proponents fewer and activity the of adoption the with decreased France in “revisionism” of impact the whether assess to hard [“ consciousness profound of assumption an permitted has law the that and limited, luckily are theses negationist the that suggest simply can mediocre, relatively priori a numbers, “[s]uch that belief strong a stating jurists, French some by expressed that as such optimistic, more is une prise de conscience profonde conscience de prise une Khan (2004), p.115. Khan(2004), in ChristianCharriere-Bournazel in Bourrette loi Gayssot loi When interpreting the significance of the number of trials, two attitudes emerge. One emerge. attitudes two trials, of number the of significance the interpreting When Ultimately, in what numbers are concerned, their assessment is a subjective matter:do is asubjective areconcerned,theirassessment Ultimately, inwhatnumbers long run,however,thatsamepolicyfedagrowingimpatiencewiththelaw. of the expansive interpretation the the court’s prosecuted In shortrun, the blessing. was amixed denial. This slightest hintof plaintiffs civil Holocaust, the contest to willing one no With 345 The less optimistic explanation for prosecution figures goes back to a belief in the in belief a to goes back figures prosecution for explanation optimistic less The Bilan de laloiGayssot Bilan de . It is not at all clear that a limited number of trials implies less negationist less implies trials of number limited a that clear all at not is It . Bilan de laLoiGayssot Bilan de , p 57. , p57. ”], on the part of the majority of the population.” the of majority the of part the on ”], loi Gayssot helped France avoid scandal. In the France avoidscandal. helped , p.64. pensée immonde pensée 346 344 It is It ”], 98 CEU eTD Collection 349 348 347 prior this restraint constitutedanunlawfulinfringementon itsrighttofreedomofexpression. that arguing complaint constitutional a filed NPD The violated. be to likely as the of allseen ofthe dead) were thememory (agitation StGB (denigrating (insult), and189 people), 185StGB StGB 130 Sections organizers. the on falling liability with conference, Act, Assembly blackmail.” political of shadow the the on the decision FCC 1994 the on emphasis an with here, discussed be will ones constitutional-level 2.1 Germany A 2. jurisprudential remarks. following the considering when precaution necessary the reader the to signals and countries, different in laws different comparing in difficulties the the indicate to for sufficient study, is, present this believe I implementation. laws’ the to regard with information anecdotal give to was here goal my end, the In statistics. resulting the vitiate often cases of reporting in differences for scrutinized, minutely be should itself data available the Moreover, country. given ofprosecutablenegationistsina specificities ofeachjudicialsystemandtheprevalence committed. theoriginal. ones aretakenfrom language whereas theGerman The Act allows for prior restraint on associations where there is a likelihood of criminal acts being being acts criminal of likelihood a is there where associations on restraint prior version, Kommers for the allows to Act refer The decision the of citations English All 382. p. (1997), Kommers in Cited 241(1994). 90BVerfGE Nazional Partei Deutschland Partei Nazional NTI Auschwitz-lüge The facts of the case involve a meeting planned by one of the regional associations of associations regional the of one by meeting planned a case involve the of facts The relevant the only Holocaust denial, upon decisions touching German numerous Of the -H OLOCAUST 349 made it a pre-condition that there would not be negationist claims at the at claims negationist be not would there that pre-condition a it made D . 347 ENIAL L EGISLATION (NPD), at which to be discussed was “Germany’s future in future “Germany’s was discussed be to which at (NPD), 348 h Mnc atoiis o te ai o te Public the of basis the on authorities, Munich The C ASE L AW 99 CEU eTD Collection 353 352 351 350 considered opinion. be to is former the Otherwise, utterance. the of meaning” the “falsifying without possible is this when held, further Court the disentangled, be only should opinion, and fact two, The foundation ofanopinion,statementsfactalsoenjoyprotection.Itwentontostate: the form they that extent the to that, emphasized Court the denial), Holocaust of case the clearly involvedin truthfulness. Withregardtotherelationshipbetweenopinionandfact(one Realität der und Äußerung der zwischen fore” the to comes that reality to utterance the of relationship objective the is “it case, their in Because opinion. of expressions not are view, its in which, worded” hurtfully or “sharply verletzend when even opinion, of expressions harmless.” or dangerous worthless, or valuable rational, or emotional deemed or well-founded are they whether of regardless rights basic of protection the enjoy “[they] Law: Basic the under protected be to and subjective are opinions that emphasized itsstanceonopinions for restriction),theFCCwentontoclarify grounds the were that complainant the of utterances the was it (since expression of freedom Cited in Kommers (1997), p.383. (1997), CitedinKommers Ibid. Ibid. Ibid. , p.384. fe epann ta te ae i nt nov te ih o asml, u ta of that but assembly, of right the involve not did case the that explaining After urne o fe epeso [ expression free Tatsachenbehauptung nichvomSchtuzderMeinungsfreiheitumfaßtwird of guarantee the a by protected that not is ruled fact of consistently representation untrue has demonstrably deliberate, [FCC] the Thus formation. of worthy interest an constitute not does information incorrect view, of point this From opinion. of formation protected constitutionally the to nothing contributes fact] called so- [the when only stops fact of representation a of protection Consequently, fact,” of “representations analyze to on went It however. here, stop not did Court The ”), donotlosetheirconstitutionalprotection. i bwß oe ewee unwahre erwiesen oder bewußt die ) te ae o e ujce t a eiw of review a to subjected be to are they ”), 352 versus (“ die objektive Beziehung objektive die 350 facts.Thus,theCourt In other words, mere words, other In 351 (“ ]. caf oder scharf 353 100 CEU eTD Collection 355 354 which based thisinterpretationontheparticularhistoryofJewishcommunityinGermany: Justice of Court Federal German the by decision a recalled Court the doing, so In ( insulted” being of capable “group a as definition their upheld first It Jews. the to application 130’s Section understand to chose Court the how is Holocaust denial of case the to specific is What GG. 1(1) article in expressed as dignity human of inviolability of provision the with generally more as well as honor, mentions also which GG, 5(2) article of provisions the with justifiable said, it line, a in is It be speech. of freedom on to limitation 130 Section held Court the honor, protecting defamation against law historical and cases, criminal numerous in analysis,” courts of eyewitness innumerable findings of documents, light case accounts, the the “in in untrue proven discussed been have utterances claims) the (negationist because Furthermore, yields. normally speech of protection the vilification” to or right insult the “formal via on personality infringes it where cases In precedence. take always not does speech that emphasized FCC the doing, so In Act). Assembly Public the case, this (in review under statute the by served interest legal the against balanced be personal to needed honor) and youth the protecting provisions statutory and laws (general GG 5(2) article Ibid. Ibid. , p.385. In the present case, the Court said, the limits on the freedom of speech enunciated in enunciated speech of freedom the on limits the said, Court the case, present the In ite f hi ft ad n eain o hm hr i a pca moral special a is there guarantees the of whom dignity. one is their individual, of each to for part self-perception, is this for this Respect relation that and others, in all of part and the on responsibility fate their of by out stands virtue who people of group a of part as understood be to perception, self- personal their of happened part is It today. relationship this in what also present is [then] citizens; fellow their vis-à-vis relationship personal special, a in Federal Republic the living in Jews puts extermination, of purpose for the individuality their of robbed and Laws” “Nuremberg so-called the of criteria the to according out singled were beings human that itself, fact historical The a As GG. the with StGB 130 Section reconciled FCC the how see to interesting is It 355 theyarenotdeservingofprotection. 354 (“ omleedgn oe Schmähung oder Formalbeleidigung beleidigungsfähige Gruppe beleidigungsfähige 101 ”), ). CEU eTD Collection 360 359 358 357 356 Constitutionnel 2.2 France complex always are events historical evaluations notreducibletorepresentationsoffact.” for responsibility and guilt about “[u]tterances facts, untrue demonstrably on based was which therefore, denial, Holocaust Unlike judges. of instead historians to left best thus was and answer definitive a prevented event historical war. the for guilt German of question population assimilarinstancesofgroupinsult. Turkish country’s the against acts discriminatory view to refusal the and population Jewish the toward attitude this between contrast stark the noted have observers Some unchallenged. a as constitution their racial into with translating it Jews, linked it but group, a as discrimination. totality their of and each of Jew dignity German the respecting individual of value high the only not emphasized hence Court The the racially motivated extermination of Jews during the Third Reich and a [current-day] attack on the right to right the on attack Jews.” dignityoftoday’s [current-day] respet andhuman a and Reich Third the during Jews of extermination motivated racially the Second WorldWar Second Cited in Kommers (1997), p.385. (1997), CitedinKommers entitled book a concerned case The (1994). 1 BVerfGE 90 (2000). Whitman Krotoszynski(2004), between connection logical Justice’s Court of Federal the flaw in no “there is regard: this stated in Court The 162 BGHZ160, i--i ec idvda te esnl ot o [eih esn] Fr the For he belongsand,aspartofthegroup,againsthim. persons]. [Jewish of which to the group worth against continuing discrimination is this person concerned, personal the individual each vis-à-vis events denies deny to these seeks Republic. Whoever the Federal in their lives of condition basic forms a and of discrimination kind of this against repetition shsbe oe, the noted, been has As the with dealt decisions, which FCC’s previous the one of note to also interesting It is 357 prior to its ratification. Some speculate that the reasons behind this have to do this haveto the reasonsbehind its ratification.Somespeculatethat priorto by ErnstNolte. by et seq. The great weight given to the moral responsibility of Germany toward the toward Germany of responsibility moral the to given weight great The , cited in Kommers (1997), p. 386. p. , citedinKommers(1997), o Gayssot loi Ibid. 359 hr, h Cut esnd te opeiy f the of complexity the reasoned, Court the There, a o sbitd o h eiwo the of review the to submitted not was 358 eedgnsäie Gruppe beleidigungsfähige 360 Truth for Germany: The Question of Guilt for the for Guilt of Question The Germany: for Truth 356 hs o gone not has , Conseil 102 CEU eTD Collection 366 Politics Comparative 365 364 363 31,2008). (last accessedMarch 362 361 of pre- the (under freedom libel group for the prosecuted was he to when upon infringed right been had expression his an that rejected claiming citizen, again German Commission a from the time when this application, later years three reiterated was stance This that thetwoapplicants It found article17. in lightof as well ECHR, ofthe by article10(2) restrictions allowedfor party, European CommissionofHumanRightsevaluatedthebanonincitinglanguageinlight radical Dutch a of members two of application an rejecting In years. emerged fromcasesdiscussingtheFrench—andother—lawsindetail. it as here, surveyed be also will This denial. Holocaust on public restrictions surrounding law case of basis the upon space, collective authority.” a within affirmed and promoted be must liberty individual that republican understanding the “consistent with be to presumed has been amply studied, jurists prominent do so. to chosen it had incurred have would Parliament in minority the that risks political the with ’itie” ie i “e hsoin s rebiffent,” se historiens “Les in cited l’histoire,” 1979 (rejected). 1979 available at Gayssot Karen L. Bird, “Racist Speech or Free Speech? A Comparison of the Law in France and the United States,” United the and France in Law the of Comparison A Speech? Free or Speech “Racist Bird, L. Karen (1999). Troper pour “Liberté heading the under historians French prominent of number a by signed letter open the See “ of the repeal for the calling jurists fifty-six signed by letter open the See (1999),p.1239. Troper J. Glimmerveen and J. Hagenbeek J. and Glimmerveen J. 361 Nvme 2, 06 aalbe at available 2006, 23, November , r esnily ekn t ue ril 1 t poie bss ne the under basis to thedestructionofrightsandfreedomsreferredabove. a provide contribute would granted, if to right, which and Convention the of spirit and text 10 Article use the are…contrary to which activities these engage in right to for a Convention to seeking essentially are of number a back goes speech racist of ban the surrounding doctrine ECtHR The Even so, the law certainly had and continues to have a fair share of critics, including share of a fair to have continues hadand law certainly so, the Even http://communautarisme.net/Les-historiens-se-rebiffent_a654.html 365 The legitimacy of the of Thelegitimacy 364 and the restriction of racist speech generally, and negationism in particular, in negationism and generally, speech racist of restriction the and 362 , Vol. 32, No. 4 (Jul., 2000), p. 406. (Jul., 2000), p. No.4 , Vol.32, n historians. and v. The Netherlands, Application no. 8348/78 and 8406/78, October 11, October 8406/78, and 8348/78 no. Application Netherlands, The v. loi Gayssot 363 http://www.ldh-toulon.net/spip.php?article1683-gyssot_9913.html t cnomt wt te osiuin a as been also has Constitution the with conformity Its bevtie u communautarisme du Observatoire has also been discussed in light of the ECtHR light of in beendiscussed hasalso lois mémorielles lois (last accessed March 31, 2008). 31,2008). March (last accessed Dcme 1, 2005, 13, December , ,” including the ,” including 366 h (then) the 103 loi CEU eTD Collection 370 369 368 367 to ready not is it that showed also Court The denial. Holocaust on decision FCC German the echoing thus choice, this explains history special their that reasoned It laws. anti-negationist the protectionof from community, andexcludingothers the Jewish group, singling outofone problematic the not find Courtdid Furthermore,the democracy). idea ofamilitant in part,the embracing, atleast very existence(astance its abuses ofrightswhichundermine punish those to entitled is which system, democratic the of nature specific the emphasizes It clear. speech hatred “istodisplayanoptimism,whichsaytheleast,isbeliedbyexperience.” racial of encouragement the allow to that noted however, opinions, dissenting the of One racist statements. condonationofthe as nottoimply the of thebroadcastwassuch the context and remarks the from himself distanced sufficiently had journalist the that decided Court the group. racist a on reportage news TV a denunciation, sufficient without airing, for convicted was journalist Danish a which StGB. 194 and 189, 130, Sections into incorporated are they as provisions, denial anti-Holocaust German the of state current the with fault found not also has ECtHR yeas, the recent In more democratic society,”theCommissionrecalledthat StGB). 185 Section reform Application no. 41448/98, April 20, 1999 and Application no. 7485/03, December 13, 2005 (both rejected). 2005(both December13, no. 7485/03, 1999andApplication April20, 41448/98, Application no. Joint dissenting opinions of judges Gölcüklü, Russo and Valticos, in Russo andValticos, Gölcüklü, opinionsofjudges Jointdissenting See laws. these discuss Witzsch, Hans-Jürgen applicant, same the to relating admissibility of decisions Two Jersild v.Denmark ofGermany Republic X. v.Federal 368 These prior rulings make the ECHR interpretation of the legitimacy of restricting hate restricting hate legitimacy of of the interpretation ECHR the rulings make These prior the of 14 Article to contrary discrimination of Convention. element any involve not does [J]ews including groups specific certain to limited is haveprotection defamation against collective which that fact groups The discrimination. vis-à-vis from indicated suffered historically especially be may principles of these broadmindedness protection The and observe. to tolerance failed clearly ofquestion in principles pamphlets the which the on rests society a [s]uch One more decision of relevance involved a case, decided by the Grand Chamber, in Chamber, Grand the by decided case, a relevance involved of decision more One , Application no. 15890/89, Decision of the Grand Chamber, September 23, 1994. 23, Chamber, September DecisionoftheGrand no.15890/89, , Application 367 , Application no. 9235/81, July16, 1982 (rejected). July16, 1982 , Applicationno.9235/81, n idn te etito “eesr wti a re and free a within “necessary restriction the finding In 369 Despite the injurious remarks by members of the group, the of members by remarks injurious the Despite Ibid. 370 104 CEU eTD Collection 374 373 372 371 of prosecution the found ECtHR the too so War, the for responsibility German discussing German the like much hatred ofthem.” to of incitement Jews and of defamation racial of forms serious themost of humanity is…one against crimes “[d]enying members. state the of appreciation of margin the within and individuals”) of honor and reputation the damaged or seriously order public threatened that behavior punishing of that or anti-Semitism fighting of aim general the be the found Court the too, Elsewhere, Convention.” the by guaranteed liberties and rights the of destruction the to contribute “would goals anti-democratic toward speech free of use the allow to that finding the ECHR, of 17 article on decision its rested it Again, WWII. during Jews the of extermination technique démonstration d’une (“ demonstration,” technical a of cover the “under that, agreed Commission Jewish the of extermination the of gas chambers.”TheEuropean end ofthe to this of theuse regimeand community bytheNazi reality the contested he that understood be to “left (“ supposed gassings” to“the constantly article (butreferring his careful phrasingof Despite the negationism. for fined and condemned was camp, concentration specific a at chambers gas of deadliness the contesting article “revisionist” a of publication the on based who, citizen the serious to regard with journalism, inanefforttomaintaintheroleofpressformingpublicopinion. particularly speech, of restriction of direction the into far too go the author’stranslation. les prétendus gassages prétendus les The case is that of Roger Garaudy, Application no. 65831/01, June 24, 2003 (rejected). June24, no. 65831/01, Application is thatofRogerGaraudy, Thecase are citations ensuing All (rejected). 1996 24, June 31159/96, no. Requête Marais, Pierre of that is case The Ibid. Ibid. loi Gayssot loi With respect to cases specifically brought against France, the Commission declared Commission the France, against brought specifically cases to respect With in line with the Convention as early as 1996. as early as Convention the with line in ”) in concentration camps), the camps), concentration in ”) Bundesverfassungsgericht ) h apiat a ide dne te elt o te mass the of reality the denied indeed had applicant the ”) loi Gayssot loi 374 At the same time, one should keep in mind that, inmind should keep one sametime, Atthe 373 to be pursuing a legitimate aim (“whether it (“whether aim legitimate a pursuing be to n o on, t xrse te iw that view the expressed it doing, so In itnuse Hlcut eil from denial Holocaust distinguished Cour d’appel de Paris de d’appel Cour 371 The case concerned a French a concerned case The found that he that found os couvert sous 105 372 CEU eTD Collection 378 377 376 375 possible.” be to appears defense no which of respect in liability “absolute an the of formulation the in implied aspect complex more The court. in law the applying when avoided extent some to was risk this case, French the in enforcement, on section above the in discussed was As present. is truth historical unique the in employed Gayssot language” “wide the Given laws. anti-denial of a criticism is common Holocaust the to related discussion any over taking dogma” “legislative of fear The state, oneofthejudgesseverelycriticizedlaw: Rights Human UN the of in Committee judges the of some by formulated also consequences—was the Faurisson. denier Robert French Holocaust famous the case involving a in Marshal Pétain. as such criminals war convicted rehabilitating at attempts from different be to “revisionism” at the rehabilitation ofaman(Pétain). at therehabilitation attempt an but condemned), actually had applicants the (which crimes Nazi of glorification the discussion involve under not did articles the that emphasizing by ones previous its from decision this distinguished Court The (1996). Judge Rajsoomer Lallah, concurring in Lallah,concurring JudgeRajsoomer in concurring andDavidKretsmer, JudgesElizabethEvatt eiex n Ion v France v. Isorni and Lehideux oet arso v France v. Faurisson Robert loi Gayssot loi Perhaps the most detailed analysis of the of analysis detailed most the Perhaps nor itslikelyconsequences. challenge, that behind object the what matter no challenged, be not may that been dogma legislative into experiences have and truths historical turn certainly to attempted had could party State the that law imply not anti-Semitism. would that the provision drastic to less a of by incite achieved object to publication legitimate the the of Furthermore, tendency the to nor author, the of intent the to liability link not do They test. proportionality the meet not do imposed restrictions the anti-Semitism, the to incitement from free by be to right the decided protect to is matters prohibition this of with purpose the if connected Even Tribunal. Nuremberg research fide bona of publication prohibit would seemto the widestlanguageand phrasedin The GayssotActis atclry i wud em ht h ptnil o etbihn a state-sponsored, a establishing for potential the that seem would it particularly, Robert Faurisson v. France v. Faurisson Robert mentioned already—that its language is imperfect with potentially hazardous potentially with imperfect is language its already—that mentioned 375 , Human Rights Committee (United Nations), UN Doc CCPR/58/D/550/1993 CCPR/58/D/550/1993 Doc UN Nations), (United Committee Rights Human , Apiain o 5/978914, rn Cabr Spebr2, 1998. 23, September Chamber, Grand 55/1997/839/1045, no. Application , 377 Ibid . . Though the decision was favorable to the French the to favorable was decision the Though . loi Gayssot loi Ibid . loi Gayssot loi and its language came in 1993, in came language its and is that it seems to create to seems it that is 376 The criticism of criticism The 378 By leaving By 106 loi CEU eTD Collection http://concourt.am/armenian/almanakh/almanac2003/papers/20.doc 382 d’arbitrage Cour la sur 1989 janvier 6 381 du Speciale Loi 380 045f.pdf 379 of articles several on claims their rested defendants The atrocities. mass or genocides other of exclusion the to War, World Second the during perpetrated crimes Socialist National the of inclusion sole the to due narrow, too also was law the went, argument the hand, other the On journalistic work. well as research, as scientific forms of include legitimate excessively to extended crime the of definition its because broad, too was question in Act the that claimed was it hand, one the on fronts: distinct two on levied was attack The law. of points several 1995. d’arbitrage 2.3 Belgium point, withreferencetothejudge’sroleofdeterminingperniciousintentbehindnegationism. the below, case Belgian the in seen be will As society. to pose they threat the presupposes instead and speech, or literature ofnegationist totheintentofauthors thelawdoesnotpoint out theelementofincitement, translations oftheauthor. criminalization of Holocaust denial comes from the first appellant, a certain S. Verbeke ( Verbeke S. certain a appellant, first the from comes denial Holocaust of criminalization justice Belgique,” la de pratique la de dans l’homme de droits d’arbitrage aux restrictions des base de Cour critères “Les d’Arménie: République la la de d arrest quelques travers à Courconstitutionnelle avecla Erevan encoopération de internationale VIIIe Conférence d’expression the Speech presentedat liberté la à atteintes aux limites The Court dismissed it. The Courtdismissed go far enough and based his based and enough far go not did law the that was claim defendant’s second The here. decision the of discussion main the centers this On http://www.arbitrage.be/fr/common/home.html h to eedns cam ae icse sprtl i te eiin bt h mi atc o the on attack main the but decision, the in separately discussed are claims defendants’ two The “Les Moerman, Jean-Paul and 19-24 pp. (2002), Drooghenbroeck van see decision, the of discussion a For the of 2.2 article See involved. case the in interest an prove can they if individuals by brought be can These Arrêt no. 45/96 du 12 juillet 1996 de la Cour d’arbitrage la Cour de juillet 1996 12 du 45/96 no. Arrêt 381 (hereinafter The case concerns an appeal, brought by two defendants, two by brought appeal, an concerns case The the by decision 1996 the is note of jurisprudence, Belgian to respect With 379 constitutionnelle,” constitutionnelle,” dsusn so-called a discussing rê n. 45/96 no. Arrêt recours on the personal offense he took with it, rather than an objective interest. objective an than rather it, with took he offense personal the on Cour d’arbitrage Cour ls acse Mrh 1 20) Al iain o te eiin are decision the of citations All 2008). 31, March accessed (last ) October recours en annulation en recours (last accessed March 31, 2008). 31, March (lastaccessed there intervened and clarified precisely this precisely clarified and intervened there , available at , available 3-4, (last accessed March 31,2008). (lastaccessedMarch Jnay , 99 aalbe at available 1989, 7, January , 380 http://arbitrage.be/public/f/1996/1996- around the Act of 23 March 23 of Act the around 2003, 2003, 382 attacking the said Act on Act said the attacking affaire numéro 858 numéro affaire available Cour 107 at ). CEU eTD Collection 383 by so done have should it curb, to 1981 appropriate means,notviaalawaimedatfreeexpression (pointingtotheActof30July sought it racism was it if that and overstated, was Government of the argument racism the claimed that the defendants instance, ineffectual. For the these, respect to With truth. of historical guarding the and their defendants, and Holocaust the of the victims of and memory the honor of protection the others the society), Belgian in racism in surge the and anti-Semitism with denial Holocaust (linking political one identified: were goals distinct Three 1995. March 23 (“ dogma historical a impose exaggeratedly interferingwithfreespeechnorms. to trying was state est imposé historiquequi incontestablement undogme the that was here claim recours the Finally, effects. unwanted to prone and predict, to difficult vague, crimes) overly law the Nazi makes of approving or justify, to attempting minimizing, grossly (denying, crime the of description the to relating difficulties, definitional the discriminatory. that claimed they is Furthermore, law the abstain), who those and views (negationist) their express who (those persons of categories distinct two creating by that, basis their on argued defendants The to. appealed strongly were discrimination, prohibiting and citizens Belgian of equality for the proclaiming need Constitution, the the of 11 and emphasizing 10 Articles invoked, teaching. in neutrality was ideological forbidden, measures preventive and free be 24(1), Article Constitution. Belgian the The community organizes neutral education. Neutrality implies notably the respect of the philosophical, philosophical, moralteaching. non-denominational and therecognizedreligions the teachingofone the between choice of the scholarity, obligatory of end the respect until offer, authorities public the by the organized schools The notably implies Neutrality education. and pupils. ofparents religiousconceptions ideological or neutral organizes community The toparents. offersfreechoice The community decree. or law by governed only is offences of repression the forbidden; is measure preventative any free; is Education The full text of article 24(1) of the Belgian Constitution reads: reads: of theBelgianConstitution 24(1) Thefulltextofarticle Of great interest is the discussion surrounding the legislative aims behind the Act of Act the behind aims legislative the surrounding discussion the is interest great Of noe atce 9 f h Cnttto, euaig h fedm f xrsin The expression. of freedom the regulating Constitution, the of 19 article invoked 383 disposing that education and parents’ choice shall choice parents’ and education that disposing recours argued that the law was inconsistent and inconsistent was law the that argued ”), stifling scientific debate and as such and as debate ”), stiflingscientific C’est 108 CEU eTD Collection 385 384 withrespect oneinBelgium theonly presently “this is Itnoted that genocides. denial ofother the BelgianGovernmentchosetodefenditsfocus onHolocaustdenial,totheexclusionof order.” such an presupposes which exercise of the others, rights of the of protection the to equivalent is “the which defended: protection, special be deserves to order needs democratic such as and deniers Holocaust from attack under was itself democracy that jurisprudence, ECtHR invoking point, the made also It others. of rights and reputation the of protection the and crime, of prevention the order, public protect to need the rationales its as advanced Government The case here. the be to also believed it This justified. are they as long as persons, of categories different between distinctions make to law the for wasnotuncommon explaining thatit the defendants, argumentof rejected theequality-rooted It aim. its under it come which as activities of broad, types the overly described intentionally not and specifically was law the that argued It unfounded. as them of all dismissing main pillarinequalityratherthanfreedomofspeech: the of argument central the how understand to interesting thus is It freedom. scientific for pleaded and Holocaust the of study the on dogma a of imposition the above, noted as truth, historical to regard With unacceptable. the to was genocide, Armenian the victims, or crimes Stalinist as such Holocaust atrocities other of those of of exclusion inclusion unilateral the that descendants, their of and protection victims the concerning argued, further They goals). anti-racism such of seat the as Ibid. Arrêt no.45/96 , p.12. pursued andarehenceunreasonable[ aims the to proportional not are law the of effects the that show exposed been have which consequences considerable the with used…combined criterion the o is at te ega Gvrmn rsodd on b pit o hs claims, these to point by point responded Government Belgian the part, its For the of object the constitute not does opinion of expression free the to right the of contention, in law the of violation, [T]he , p.15. déraisonnable recours ]. 384 . But the subjectivity of subjectivity the But . recours 385 Noteworthy is also how is Noteworthy recours was shaped, with its with shaped, was otse the contested 109 CEU eTD Collection reach, shouldothergenocidedenialsproveequally pernicious. present at was Act’s the it of expansion potential the on only door the close dangers,not did Government the criminalized; of set specific a posed denial Holocaust only because 389 388 387 386 the of legitimacy the of proof the as countries to European other pointed in laws It anti-denial of discrimination). existence unlawful to led it of that freedom matter, that the for on (or, infringed expression unwarrantedly or extensively too Holocaust the of denial be, though,uptothejudgedetermineit,basedoncircumstancesofeachcase. Itwould proven. being ofits difficulty the dueto was solely reasoned, it the Court the law, in beings.” human of categories more or one offend “gravely to and ideology” democracy to hostile and criminal a “rehabilitate it.” “save thereby préparatoires it, put observer one as and, 1995 March ( ( minimizing grossly finally, and, ideology; grossièrment its legitimize to such as and justifier ( justify to attempting ideology; ( Nazi to subscribing approve and for approval to expressing genocide; the of existence the of contestation total ( deny to that explained it Thus, negationism. of types different four the the rejected history.” falsify to and opinion manipulate to attempts one which to scientific research, and as such further trusted with the judge to apply the lawcorrectly. toapply with thejudge furthertrusted andassuch scientific research, outrancière h Cut lo oe te utey f oe om o dna, nldn peetn tesle a pseudo- as themselves presenting including denial, of forms some of subtlety the noted also Court The p.21. (2002), VanDrooghenbroeck Arrêt no.45/96 Ibid. , p.10. The o u u, h Belgian the up, sum To ) went less far than approval but tended to present the Nazi genocide as acceptable as genocide Nazi the present to tended but approval than far less went ) Cour d’arbitrage Cour o ofnig Te or as caiid h lgsaie is f h At f 23 of Act the of aims legislative the clarified also Court The offending. or ) recours ipid h mnmzto t te xrm ad f gae aue outrageous nature, grave a of and extreme the to minimization the implied ) te ega Cut dniid eid h ciiaie atvte te net to intent the activities criminalized the behind identified Court Belgian the , , p.27. on its merits. It did, however, manage to clarify the meanings given to given meanings the clarify to manage however, did, It merits. its on , for the most part, accepted all of the Government’s points and points Government’s the of all accepted part, most the for , or d’arbitrage Cour 388 If the legislature didn’t include this intent requirement intent this include didn’t legislature the If a nt ovne ta te a against law the that convinced not was 387 okn a the at Looking approuver Ibid. nier 386 n te words, other In , p.31. ) referred to the to referred ) rfre to referred ) chercher à chercher 389 minimiser travaux 110 CEU eTD Collection did notautomaticallygiveprecedenceofoneovertheother. and involved, interests all of considerations on grounded was decision its that ensured stake non-criminalization, its mean to have automatically rarityofaneventdoesnot genocides, hasnotconvincedallobservers.Asonepointedout,the all to opposed as Holocaust, the of out singling the to given explanation The uncontestable. 392 391 390 limitations. European-style and absolutism American between in speech, of freedom the of view broader a adopted HCC the that noted be should It this. balance to serve will prosecuting here discussed at be to Court Constitutional aimed Hungarian the of provisions law case The legal denial. Holocaust those upheld ultimately which of all reviewed, 2.4 Hungary liberties “concurrent” these understood it That speech. their of victims the upon effects their of understanding complex more a to negationists the of expression of freedom of the simple question from a discussion of the the focus shift to made sure Court the Belgian Nevertheless, Holocaust. the of that as visible as least at is instance, for genocide, Armenian (“ its denial of expressed safe heaven a becoming to prone Belgium leave might also otherwise do to that concern it Interestingly, anti-Semitism. fight to wanting in goals legislature’s s raig “ugra Frt mnmn. Lsl Slo, Te oe f osiuinl ors n the in Courts Constitutional of speech Role free “The Hungarian Sólyom, László the Hungary,” to Reference Amendment.” seeing Special with Democracy to First Transition 158, “Hungarian p. a (2006), creating Choudry as ed. jurisprudence HCC the to referred have Some approaches. in German and American the of mix a democracies,” as jurisprudence new in rights speech 2003), p. 145. 2003), e eue u négationnisme du refuge le See Michel Rosenfeld and András Sajó, “Spreading liberal constitutionalism: an inquiry into the fate of free of fate the into inquiry an constitutionalism: liberal “Spreading Sajó, András and Rosenfeld Michel See p.23. (2002), VanDrooghenbroeck Ibid. , pp.24. o a, h jrsrdne f aiu ntoa ad nentoa bde hs been has bodies international and national various of jurisprudence the far, So ) A t sm o te eal o te eiin te ae not are they decision, the of details the of some to As ”). International Sociology International 390 vn oe o s h dna o the of denial the as so more even , Vol. 18, No. 1 (March, 1 No. 18, Vol. , 391 to be at be to 392 In a In 111 CEU eTD Collection 697.html 394 393 the Hungarian systemofvalues,includingthoseequality anddignity.TheHCCreasonedthat of pillars other with clashes speech of freedom the case, this in that, explained Court Oneabove,the hatred. Inwordingthat,again,echoestheconsiderations canvassedinChapter making incitement tohatredacrime. provision a of constitutionality the upheld HCC the extremism, of exclusion the to members its of dignity the and tolerance embraces which society pluralist a to reference by Thus, decision. hate Hungarian the into way their found of have One Chapter in speech discussed prohibition the for justifications philosophical the of many how noteworthy is It caused byincitementtohate.Itnotedthatexpressionofhate, harm real the very considered the HCC Constitution, the line with in 269(1) article In finding Penal Code,whichstated: decision, 1992 Holocaust denier. accessed March 31, 2008). accessed March31, Keegstra A similar point, also grounded on the specific Canadian version of a multicultural society, was made in made was society, multicultural a of version Canadian specific the on grounded also point, similar A at available 1992, 18, May HCC, the of Decision AB 26) (V. 30/1992 ls acse Mrh 1 20) wee h Cnda Spee or uhl te ovcin f the of conviction the upheld Court Supreme Canadian the where 2008), 31, March accessed (last 19] SCR 67 aalbe at available 697, S.C.R. 3 [1990] to incitement outlawing not of pitfalls the considered and further went HCC The multiculturalism, tolerance, on based beings, onewhichrefusestorecognizediscriminationasavalue. one human all of dignity system, equal embracing different, be to right value the of recognition pluralist a on based society a creating of prospect the weaken they Combined, intolerance. and extremism, prejudice strengthens tearssocietyasunder, larger, community or given, smaller a existing within tension social or emotional the intensifying or offensive an offense byimprisonmentforuptooneyear,correctivetrainingorafine. uses the for punished be to gathering is acts, nationality, similar other commits public other or race, or any creed people, large nation, Hungarian a the of against expression front denigrating in who One (2) punished by imprisonmentforaperiodofuptothreeyears. be to is and offence criminal a commits hatred, the incites among population, groups certain furthermore race, or creed people, any against (b) (a) againsttheHungariannationoranyothernationality, (1) Onewhoinfrontofalargepublicgathering, 393 the Court tackled the constitutional problems set forth by article 269 of the of 269 article by forth set problems constitutional the tackled Court the 394 http://csc.lexum.umontreal.ca/en/1990/1990rcs3-697/1990rcs3- http://mkab.hu/en/enpage3.htm (last (last 112 R v. R CEU eTD Collection 395 content” its of basis the on opinion “classif[y] to is 269(2) article of aim Court real or the the reasoned, Instead, “offensive” peace. the of disturbing use of capable the clearly not hatred, is language to “denigrating” incitement unlike that, held It unconstitutional. law andthepreservationoflegalmoralnormswouldbestrengthened. penal—as opposedtootherformsof—liability.Insodoing,themessageofdisapproval employing of necessity the emphasized HCC the cause, may incitement hate that harm the of serious nature very Acceptingthe system.” overall legal of the foundation “the sanctioning ratio ultima that role the namely, study, public discourse. themselves within express to targets of its the eagerness diminishing speech as hate effects of visible less indirect, the to referred These One. Chapter in detailed arguments silencing the of reminiscent clearly is This expression).” of freedom to right the (including well as other rights their of exercise the in them restrict[ing] “intimidation the and group target a certain of individuals of dignity and honor to threats the both considered it Thus, show. might itsdirectconsequences than solely as broader speech impact ofhate the The HCCunderstood The Court’s decision went on to say: wenton TheCourt’sdecision n te etrto o te iltd ea ad oa odr eurs h apiain f the of application the requires order moral and legal violated instruments ofpenallaw. the of restoration the and activities, ofthese the perpetrators attacked by which are values ideas and democratic of those fortification the behavior, such of condemnation and disapproval of expression emphatic The ainl n ehi mnrte—s eonzd y h vros rils f the of of articles Constitution. protection various the the by recognized conscience, minorities—as ethnic and and national religion of freedom the discrimination, and system of value prohibition the as well as dignity, of equality beings, human equality of the the with law, of rule contradiction democratic the Constitution: the in expressed orientation political indissoluble press an of freedom present and expression of would freedom the of guise the under groups certain against hatred of incitement the to protection constitutional afford [t]o n otat o h aoe osdrtos te C rjce atce 6() as 269(2) article rejected HCC the considerations, above the to contrast In present the of consideration main another upon touched HCC the least, not but Last in the system of legal responsibility” and saw its social function as serving as serving as function social its saw and responsibility” legal of system the in criminal law plays. The Court explained that “criminal law is the is law “criminal that explained Court The plays. law 395 113 CEU eTD Collection 398 and reiterated a 397 “in genocide 396 Nazi the justified and denied the that question held in court That materials fine. a and years) (five sentence prison cumulative the to maximum him sentenced and accounts all on guilty defendant the found It unequivocal. was de Barcelona the with office prosecutor’s public the by him against brought was suit The hatred. racial to incitement for 510(1) article under as well as and genocide, of denial justification for Code Penal the of 607(2) article under charged and was art publications), history of amount small a (alongside material audio-visual and publications negationist the of owner The Geiss. Varela Pedro of name the by owner library a against forth brought proceedings concerns the of 607(2) article surrounding law case 2.5 Spain of racists,havenotbeensuccessful. efficient). acquittals frequent the very of light in particularly speech, hate not criminalize to attempts Hungarian are these noted, been has as though, (even civil remedies only remain there latter the For probability.” statistical a or “hypothetical remained peace public on which of impact the 269(2), article in included as language offensive merely from peace,” and order public the of protection abstract “an as 269(1) article with hatred, to incitement of harm the distinguished therefore HCC The unconstitutional. such as and http://www.mkab.hu/en/enpage3.htm be accessed at accessed be 31, 2008). All ensuing citations of the decision refer to this document and are the translations oftheauthor. andarethetranslations thisdocument thedecisionreferto All ensuing citationsof 31, 2008). which is “disparaging or humiliating” toagroupunconstitutional. orhumiliating” which is“disparaging Rosenfeld and Sajó (2004), p.162. (2004), RosenfeldandSajó Sentencia del Juzgado de lo Penal No. 3 de Barcelona de 3 No. Penal lo de Juzgado del Sentencia Ibid. If the HCC decision above did not deal with an anti-denial law anti-denial an with deal not did above decision HCC the If p 13 Se lo 820 (.5 A Dcso o te C, vial at available HCC, the of Decision AB (V.25) 18/2004 also See 163. p. , http://www.der.uva.es/constitucional/verdugo/sentencia_varela_europa.html and two anti-racist organizations as civil parties. The verdict of the trial court The verdictofthe as civilparties. anti-racist organizations andtwo Lbeí Europa” “Librería (last accessed March 31, 2008), finding a proposal to ban public speech public ban to proposal a finding 2008), 31, March accessed (last 397 Código Penal Código , November 26, 1998. The full text of the verdict can can verdict the of text full The 1998. 26, November , n acln, hc sl noNz and neo-Nazi sold which Barcelona, in did engage fully with such a law. It law. a such with fully engage did Comunidad Israelita Comunidad per se per (last accessed March March accessed (last 396 , the Spanish the , Subsequent 114 398 CEU eTD Collection 399 of xenophobia in resurgence European the of light in especially climate, a such of creation the by reasoned, prosecutor public the harmed, also was large at society The community. Jewish against the violence potential and even discrimination of acts to hence, indirectly, and climate ofhostility genocide wasconducivetoa that denialof public prosecutorhadreasoned the of arguments the Estado dismissed del Abogado tribunal The injury. constitutional further of showing a yet itdidnotinclude and dislikedideology, of materialanoffensive a neutraldistribution by constituted be genocide may of denial that It reasoned distinguished. be to genocide, were ruling. contested and extensive an with 2007 November in 235/2007 STC decision its issued latter The Tribunal. Constitutional Spanish the to constitutionality of review a for Code Criminal intervention ofthelawasnotonlyallowed,butnecessary. that the viewed thus message: tribunal The expect. should Spain symbolic in community Jewish the what a is violence also but order, of public denial to threat behind indirect saw an only court not trial genocides the Thus, parties. third by discrimination or violence translateintoactsof thatcouldeasily court reasoned,ledtoaclimateofviolenceandhostility the message, This genocide.” the by affected collectivity the toward of disdain message and unequivocal hostility “the crime: the of essence the also was It view involved.its in group” what ethnic highlighted or social the of dignity human the on attack “direct the other that fact the European countriespenalizeHolocaustdenialaswell,theBarcelonatribunalalsoemphasized and jurisprudence international to reference ample a making In sentence community.” Jewish the by formed group social the to form abusive unequivocally citations of the decision refer to this document and are the translations oftheauthor. are thetranslations thisdocumentand refer to citations ofthedecision http://tribunalconstitucional.es/jurisprudencia/Stc2007-235.html Sentencia Sentencia 399 Varela appealed the verdict and the court of appeals submitted section 607(2) of the of 607(2) section submitted appeals of court the and verdict the appealed Varela It reasoned that the two crimes included in article 607(2), denial and justification of and denial article 607(2), in included two crimes the reasoned that It STC (public prosecutor) with regard to the harm posed by negationism. The negationism. by posed harm the to regard with prosecutor) (public 235/2007, 235/2007, de 7 de (last accessed March 31, 2008). All ensuing ensuing All 2008). 31, March accessed (last noviembre noviembre de 2007 , available 115 at CEU eTD Collection 403 20080305elpepunac_23/Tes 402 401 400 code), criminal current the of force into entering the before decision (a 214/1991 STC In situations. similar with dealt which appeals courtwaslefttoruleontheoutcomeofVarela’scase. void and unconstitutional was genocides of denial to relating part the final while constitutional, Its was 607(2) article Spain. of portion in “justification” the that guaranteed” was reasoning constitutionally dignity human the of view of point the from “repulsive are which ideas involving cases in even true was explained, court the This, of odiousbeliefs,wasatthecoredemocracyandpluralism: even expression, of freedom that argued It order. constitutional the to citizens its of adhesion positive the encouraged instead but model democracy militant a follow not did Spain that emphasized democracy, it regard to with decision.Thus, tribunal’s inthe Chapter Oneappear perpetration ofgenocide. (“ element biased the judgment, tendencial value a Being opined. court the danger, spared. not was Spain which ( psychological “systematic the by acceptable made viapropaganda. preparation” violence of climate a from society preventing at but were, http://elpais.com/articulo/espana/librero/Pedro/Varela/condenado/meses/prision/justificar/Holocausto/elpepuesp/ 3,2008, apologia h dsuso as ivle a itnto bten h cie i atce 0. ad ht f “apology” of Holocausto,” that el justificar and por prisión de 607.2 meses siete a article condenado Varela, in Pedro librero “El crimes the between distinction a involved also discussion The they as reprehensible as opinions, of suppression at aim not did crime the that opined prosecutor public The Sentencia STC 214/1991, de 11 de noviembre de 1991 noviembrede de11 STC214/1991, Sentencia The court made it explicit that its decision was in line with two of its previous rulings previous its two of with line was in decision its explicit that it made court The public mere the restrict circulation ofideasordoctrines. gravely or select, control, to tending powers public anyactivityofthe representative democraticsystemprohibit substratum ofthe the as ideas of exchange free the of necessity the and pluralism of value The in discussed values constitutional all study, this of purposes the for Interestingly ) of certain crimes. For reasons of space and relevance, this cannot be covered here. covered thiscannotbe ofspaceandrelevance, reasons ) ofcertaincrimes.For ) a dsigihbe n alwd h lgsaue o rvn ictmn t the to incitement prevent to legislature the allowed and distinguishable was ”) (last accessed March 31, 2008). 2008). (last accessedMarch31, 400 Justification, conversely, would pose more than this abstract this than more pose would conversely, Justification,

403 the Tribunal had ruled on a case brought by a Jewish a by brought case a on ruled had Tribunal the , availableat available 402 401 n te Barcelona the and El País El l elemento el , March , 116 at CEU eTD Collection 405 404 http://boe.es/g/es/bases_datos_tc?doc.php?coleccion=tc&id=SENTENCIA-1991-0214 “the was denial Holocaust that emphasized he Parliament, Addressing rendered. was decision the after soon denial on ban criminal a of reinstitution the for called Communities Jewish of Federation Spain’s of leader The it. banning decriminalizes toward Spain and moves denial latter Holocaust the as Europe, of rest the with step of out be would Spain that justices the of some by remarks the also are Noteworthy relies. order democratic the they which (as upon dignity of basis the contained maintain to order in be danger”) present and “clear a should represent groups the anti-pluralist on that precisely indicate relied to judge One argument violence. pluralism of climate a of creation the in danger the of reasoning prosecution’s public the admitted Others justification). and (denial crimes two the distinguish to impossibility the included these of Some grounds. multiple on dissented, same timemaintainingthat“revisionist”speechwasprotected. the at while category, speech a as insult on ban its balanced Tribunal the therefore, cases, injuries the had insistedon protection ofthespeech,but found againstthe Constitutional Tribunalhad the too, Here “Hitler-SS”). (entitled magazine complained neo-Nazi a had of director that and editor associations the against Jewish several of favor in ruled also had Tribunal the 176/1995, STC In principles. non-discrimination and dignity human of light in plaintiff, the of reputation or honor to right the upheld and language offensive other the on ruled had tribunal the Instead, involved. “revisionism” historical the of account on not but defendant, the of favor in found had It remarks. anti-Semitic and claims negationist made had which of latter the interviewee, the and article an of editor the against survivor camp concentration http://boe.es/g/es/bases_datos_tc/doc.php?coleccion=tc&id=SENTENCIA-1995-0176 2008). 2008). See also discussion of these two cases in Ferreres Comella (2002). Comella casesinFerreres ofthesetwo Seealsodiscussion Sentencia STC 176/1995, de 11 de diciemberde1995 de11 STC176/1995, Sentencia The Constitutional Tribunal’s decision did not go uncontested, however. Four justices Four however. go uncontested, not did Tribunal’s decision The Constitutional (offensive expressions), and not the denial of history, as its basis. In both of these of both In basis. its as history, of denial the not and expressions), (offensive , availableat 405 ls acse Mrh 31, March accessed (last (last accessed March 31, March accessed (last 117 404 CEU eTD Collection 406 threat posedbynegationismasaformofhatespeech. presumed and the of envisioned, of society type the system, the constitutional in different norms place the including factors, of number a on rests review judicial by shaped is actually law the How respect. this in insufficient remain always will discussion theoretical purely times at a that shows value This rejection. its same for times at the and law the with upholding for basis context, the constituting each in forms distinct in however, so, do They denial. Holocaust against laws the of considerations constitutional into others, than so more some way, their find One Chapter in discussed considerations normative the all that obvious propaganda. Nazi of distribution the in rise a to lead could “depenalization” and speech” hate of threshold Jewish Press aoo sal azn qoe i Saih eihlae ugs al em fr ooas denial,” Holocaust for terms jail urges leader Jewish “Spanish in quoted Garzon, Israel Jacobo Putting these decisions into the broader perspective adopted in this study, it is quite is it study, this in adopted perspective broader the into decisions these Putting , November 29, 2007, available at 2007,available 29, , November 406 http://ejpress.org/article/23776 (last accessed March 31,2008). (lastaccessedMarch European European 118 CEU eTD Collection ih esra ptnil ad hi ue s rmtr o ofca hsoia dga Some dogma. historical official of promoters as use their and potential, censorial high their racism, against fight the in effectiveness tenuous their on based them against arguments national all in laws these surrounding reach ofthelawtojustificationNazicrimes. Constitutional the the restrict of and involved harm aftermath the of view the limited more a in accept decision, 2007 particularly Tribunal’s Spain, of that as such laws, Other indeed. far-reaching is group, target the on aggression an is denial Holocaust of utterance very the that law, French the of implication The bans. anti-denial upholding jurisprudence of ECHR of favor core the at in are and order democratic arguments the defending as the framed also are regulation mandated, constitutionally is democracy of protection the where Incountries law,forinstance. sought bytheBelgium is and specificallyanti-Semitism, racism, fight against a broader law, case of German the centerpiece is of others the reputation and dignity of protection the while Thus, other. the to study case one from differs however, weigh, much how given is value Which laws. anti-negationist of interpretations court and behind intent legislative for bases the as former emerge the in discussed values constitutional different The Three. and Two Chapters empirical more the for stage the up set One Chapter of discussion theoretical initial The bodies. review judicial by examination their of result the as well as laws, such of application practical the illustrated it front, jurisprudential the on of anti-deniallaws,pointingtothedifferentconstitutiveelementscrime;andfinally, provisions detailed the front, it the textual particular; on in andnegationism speech generally, ofhate and againsttheprohibition illuminated thevariousjustificationsfor normative front,it hs td hs rpsd dsuso o Hlcut eil n he fot: n the on fronts: three on denial Holocaust of discussion a proposed has study This lo vdn fo te rcdn aayi i te ih ere f contestation of degree high the is analysis preceding the from evident Also CONCLUSION milieus Te hv be rgrul ciiie, with criticized, rigorously been have They . 119 CEU eTD Collection 409 408 407 said, authorities Spanish the be, to assumed be easily could It negationists. of legitimization generalclimatefollowingtheacceptanceand not justwiththeindividualvictims,but the with was concern its do denial, Holocaust of criminalization the of defense its in to argued Government Spanish the has As unacceptable. again the of which demarcation the generally, and values more certain of society reinforcement to sent message a also is There ineffectual. them render may provision these to substance giving in involvement state are society of lack in the hand, other the on participation stipulations; other and constitutional via full for provided and discrimination, from freedom dignity, their hand, one the on one: contradictory a is speech hate of the form this argue, of victims could the to one sent message absence, their In further. even goes especially laws anti-denial of tolerate.” will it what of limits the and values its express can society by which vehicle a as them need We one. crucial a remains instruments legal of role “the commenter, one of words the In society. given a within plays generally law role the with connected part, in is, This vein. this in employed be will law of apparatus the which to extent the of and not, does it behavior and expression the embraces, society values the of mechanism signaling a as themselves, of and in significant as laws these view they that clearly indicated have courts Some anti-Semitism. against fight the in use direct their beyond goes which one laws, these and non-discrimination.” tolerance of promotion the in laws such of effectiveness the question into “calls laws, speech anti-hate despite xenophobia, and racism European in rise the that conclude authors same audience.” broader a to acceptable laws, more hate such of messages of their “making adoption potentially the of aftermath the in deniers the by note adopted They language” “sanitized effects. counter-productive laws’ anti-negationist to point even scholars Errera (1992),p.157. Errera 374. p. Coliver(1992), Ibid. Emerging from the case law, however, is also a broader understanding of the role of role the of understanding broader a also is however, law, case the from Emerging 408 409 But the role the But de facto de 407 The 120 CEU eTD Collection 410 “competing view that the denotes writes, Teitl against denial, sanctions criminal to civil from shift The laws. such of aim primary the are that Holocaust) the during responsibility national denying those (notably, accounts historical competing is it posits, she Instead, legislation. denial anti-Holocaust passing in role lesser a play victims that emphasize does however, counteraccount.” a of impact owned harmful potential justice the historical of the and victims of persecution’s terms in justified been generally have laws censorship “these society-oriented: and victim- being as also laws such Teitl to Ruti justifications main as the such identify Scholars novel. entirely not is laws anti-negationist of function other nationalcontextsinanefforttoextricateatransnational,Europeananti-denialstandard. reference they but that, only Not laws. negationist of interpretations own their from in Strasbourg guidance on rely courts national which to degree great the indicates Three Chapter in discussed law case the Furthermore, society. democratic a in speech of freedom the with legitimate interference constitutes what to respect with countries European guidance to offers speech hate of domain the in jurisprudence ECHR denial. Holocaust NATO tackle legally how—to whether—and and of decision the EU in involved But factors external standards. only the international not are with conditionality comply to effort an in opposition internal strong) (even of spite in laws speech anti-hate adopt countries sometimes that clear it made case Romanian the concerned, is law the of role international the what In externally. and internally both law, of function communicative the involve These themselves. legislators the by for accounted fully times the of most legislation, of type this of effects indirect more the to pointed have I “symbolic,” By laws. denial anti-Holocaust of role symbolic the with do having to one thesis, this of argument main the into reasoning ties of line This ensue. thus may violence where and ostracized, adequately always not is discrimination which in one RutiG.Teitl, My multi-tiered argument of an internal-individual/internal-societal/external symbolic symbolic internal-individual/internal-societal/external of an argument My multi-tiered Transitional Justice (Oxford University Press, 2000), p.106. 2000), UniversityPress, (Oxford 410 Teitl, 121 CEU eTD Collection one expected to have a salubrious impact on its solidarity.” its on impact salubrious a have to expected one history, country’s the of interpretation particular a teaching to view in a with used societies several been increasingly has law criminal century, half last the “[i]n that finding trend, of sign a broader thisas harshest scholars see employ.Some societymay of punishment disapproval andform the constitutes it as legislation, such by carried burden heavy the noted One Chapter in discussion The been predictedasrelevantforthepurposesofthisanalysis. actors’ behavior. political upon influence its and neglexts, Teitl which element, international the on elaborates also It laws. denial into appropriation—incorporated national distinctive their values—and normative broader the on light sheds and further, goes however, analysis, present The well. as observers other by echoed seen, been has as is, denial Holocaust against fight energetic of the the root history as emphasison criminal offences.Teitl’s denial as punishes attemptsat 413 412 411 have to seems intent legislative the French, and Belgian the as such contexts, other In fact. of statement untrue demonstrably a negation its making thus fact, historical as Holocaust the treat to was approach the there, that showed decision FCC German The less. no law criminal and law, of realm the in event historical a concerning speech placing in involved dangers the acknowledged courts alike legislators and however. The go unnoticed, not did and history laws denial anti-Holocaust between interaction special The society. pluralist a within values particular a of as such goals, other of exclusion the to teaching history the to justice,” historical done wrongs also but victims individual community.” to insults merely not are accounts Osiel (1996), p.466. Osiel(1996), Ibid. Ibid. , p.107. h seil ucin f rmnl a opsd o te, ye o lgsain a also has legislation of types other, to opposed as criminal, of function special The 411 hr i, hrfr, fl ne t “nue dsic cnetaiain of conceptualization distinct a “ensure to need felt a therefore, is, There 412 n ta lae n ro fr one-ocpulztos n which and counter-conceptualizations for room no leaves that one 413 Again, this view emphasizes view this Again, mélange f civic of 122 CEU eTD Collection 416 415 414 to witness “bear[ing] as perceived being laws anti-denial for evidence be to external seem does there or all, at society hardly or year civil a times dozen strong few a implemented a whether end, the as In conditionality. such factors, “triggering” of availability the on and, noless, protection; system ofrights its Holocaust; on ofthe historical event regard tothe with self-understanding country’s each on rests It difficult. less evidence, presented the of light initial become, in has deniallaws?, adopt anti-Holocaust choose to docountries question, Why the to answer An cases. of number limited a on focus generally which legislation, negationist of analyses typical more the beyond go to attempted has discussion the approach, comparative a taking By not). (or accepted socially become they from until adoption operate, their before laws denial anti-Holocaust how law, case relevant and provisions, textual deniers andofficiallystigmatizenegationism.” discredit and ostracize to instrument legal necessary a as seen thus [i]s law “[t]he message: clearer send outa prosecution ofdenialcertainand laws bothmake that specificanti-negation some noted,useless. negationist lawspotentiallyredundantor,as the making well, as laws anti-defamation include sometimes but laws, anti-discrimination and involveanti-incitement latter generally The place? penal lawsin effective there areother, if necessary denial Holocaust of criminalization the is far: so upon touched briefly point, another fore the to brings This community. entire an to insult criminalizing of step further the take to refused hatred, to incitement against law penal a for need the accepting while Court, Constitutional Hungarian The upheld. not was law defamation anti-group an which on deliberate or historian, a historical methodologyandfacts,whichheisnotqualifiedfor.” as act to having from judge the prevent “to precisely been Errera (1992), p. 155 aboutthe (1992),p.155 Errera (1999),p.1251. Troper Bourrette in Of no less importance, for the present purposes, has been the discussion of one case in ofonecasein beenthediscussion importance, forthepresentpurposes,has Of noless This study has endeavored to show, via a minute analysis of normative justifications, normative of analysis minute a via show, to endeavored has study This Bilan de laLoiGayssot Bilan de loi Gayssot , p.57. . 416 414 415 The response seems to be Theresponseseems 123 CEU eTD Collection 417 the ameliorationofpresentandsafeguardingpresent. country,” [the] of will the Jean-Louis Nadal in Jean-LouisNadal Ibid. p.11. , 417 both with a view toward the painful past, and with concern for concern with and past, painful the toward view a with both 124 CEU eTD Collection 5 BVerfGE85(1956)( rê n. 59 d 1 jilt 96 e a or d’arbitrage Cour la Autopsie d’unmensonge de 1996 juillet Austrian 12 du 45/96 no. Arrêt W. Thurman Arnold, United the by Taken Approaches the of Comparison A Speech: “Hate A. Bradley Appleman, available 2006, 23, November »,” mémorielles lois « des l’abrogation à juristes 56 de “Appel denial,” Holocaust condemns “Annan Andreescu, Gabriel. Grimm,” Dieter Professor and Iacobucci Frank Justice with Interview “An Paul Frankel Ellen in Paradox,” Radical The Expression: and “Equality Andrew. Altman, to answers Năstase (“Adrian Guest” Michael ambasadorului răspunde îi Năstase “Adrian at of approval or justification minimization, available denial, the punishing on 1995 March 23 of 1992, “Act 18, May xenophobia,” or racism by motivated acts certain of punishment the on 1981 July 30 of “Act HCC, the Abrams v.UnitedStates of Decision at available HCC, the of Decision AB AB (V.25) 18/2004 26) (V. 30/1992 90 BVerfGE241(1994)(Holocaustdenialcase). 90 BVerfGE1(1994)(Germanwarguiltcase). 30 BVerfGE173(1971)( 16 BGHSt49,57(21April1961). 11 BGHSt207(28February1958). 2 BVerfGE1(1952)( al http://www.dagegenhalten.at/Verbotgesetz.pdf accessed March31,2008). 1938). pp. 422-439. Germany,” and States March 31,2008). at http://news.bbc.co.uk/1/hi/world/europe/4653666.stm (Cluj-Napoca: CentruldeResursepentruDiversitateEtnoculturala,2003). Equality through Guest”), Michael Ambassador World War,”availablethrough Second the Regime during Socialist National German by the genocide perpetrated the available through (last accessedMarch31,2008). http://mkab.hu/en/enpage3.htm http://arbitrage.be/public/f/1996/1996-045f.pdf ., http://www.ldh-toulon.net/spip.php?article1683-gyssot_9913.html Freedom ofSpeech http://adevarul.ro , Vol.2,No.2(Fall,2003),pp.197-209. Criminal Extremismul de dreapta în România dreapta în de Extremismul Sozialistische Reichpartei Sozialistische Kommunistische ParteiDeutschlands h Smos f Government of Symbols The , 250U.S.616(1919). (LiliProductions,2000). http://diversiteit.be Mephisto , ed..(NewYork:CambridgeUniversityPress,2004),pp.1-23. Wisconsin International Law Journal Law International Wisconsin (lastaccessedMarch16,2007). BIBLIOGRAPHY case). Code (lastaccessedMarch31,2008). http://diversiteit.be Adev B News BBC (lastaccessedOctober13,2007). ă rul, (SRP) bancase). ( Verbotgesetz ac 2, 02 peiul available previously 2002, 23, March (lastaccessedMarch31,2008). Nw ae: ae nvriy Press, University Yale Haven: (New (lastaccessedMarch31, 2008). (hereinafter Jnay 7 20, vial at available 2007, 27, January , http://www.mkab.hu/en/enpage3.htm ( (lastaccessedOctober13,2007). Right-wing extremism in Romania extremism in Right-wing (KPD)bancase). ), , Vol. 14 (Spring, 1996), (Spring, 14 Vol. , rê n. 45/96 no. Arrêt available Journal of Law & Law of Journal aalbe at available , ls accessed (last (last ) 125 et at ) CEU eTD Collection rchie, ee J, I “ Hvn o Ht: h Frin n Dmsi Ipiain of Implications Domestic and Foreign The Hate: for Haven “A II. J., Peter Breckheimer, the and Nationalists Hungarian Memory: Historical on Assault “The L. Randolph Braham, ed., L. Randolph Braham, World?,” the of Rest the Versus States United Speech—The “Hate Boyle, Kevin. P. Gregor Boventer, Bollinger, LeeC. ed. in Courtroom,” the in Holocaust the Sawoniuk: to Streicher “From Donald. Bloxham, Genozid-Leugnunglegalisieren,” will “Blocher Disengagement from and Promoting Recruitment Neo-Nazism: Reducing “Exit Bjørgo, Tore. the and France in Law the of Comparison A Speech? Free or Speech “Racist L. Karen Bird, 162 BGHZ 160, EU,” in denial Holocaust bar to seeks “Berlin W. Claus-Christian and Davies L. Martin in Today,” “Anti-Semitism Wolfgang. Benz, Nolte, Georg ed. in “Comment,” Eyal. Benevisti, Law),” Basic the of 1 (Article Dignity Human of Protection “The Ernst. Benda, A. Backs, Promotion Criminalizing Legislation Other and Laws Denial “Holocaust J. Michael Bazyler, Academic of Concept the and Speech” “Hate Academies, “The Jr. N., Fletcher Baldwin, eds. Heinig M. Hans and Petra Bahr, and Kretzmer David eds. in Law,” and Democracy of Dilemmas “Violence: Susanne. Baer, trenchant? Review accessed March31,2008). at available 2007, York: PalgraveMacmillan,2007),pp.261-271. Methodist UniversityLawReview (1995), pp.41-93. Verlag, 2006). (The Hague:KluwerLawInternational,2000),pp.63-98. rtcig nent ae peh ne te is Amendment,” First the under Speech Hate Internet Protecting Holocaust,” Postcommunist EasternEurope Vergleich internationalen Humbolt, 1985). einem in Demokratie streitbaren pp. 397-419. Stone, Dan at available 2002). Groups,” Racist United States,” of theFederalRepublicGermany eds., Szejnmann (Cambridge: CambridgeUniversityPress,2005),pp.125-127. of Nazism,”YadVashemInternationalInstituteforHolocaustStudies(2006). Intellectual Freedom,” Perspektiven theologische und Rechtswissenschaftliche Hazan, Kershman Francine Law Review March 31,2008). et al. Le noeud gordien des parties antid parties des gordien noeud Le al. et , Vol.53(2001),pp.487-502. et seq. The TolerantSociety (Gent: Mys&Breesch,2001). Historiography of the Holocaust the of Historiography , Vol.75(2002),pp.1493-1528. http://www.nzz.ch/2006/10/07/il/articleejqwt_1.66537.html East EuropeanQuarterly, Grenzen politischer Freiheit im demokratischen Staat. Das Konzept der Konzept Das Staat. demokratischen im Freiheit politischer Grenzen Comparative Politics , cited in Donald P. Kommers Donald P. Kommers Donald Donald P. cited in , NUPI o te ooas Los o: nentoa Perspectives International Now: Looks Holocaust the How http://www.iht.com/articles/2007/01/12/news/germany.php ae,n. 2 (owga Isiue f nentoa Affairs, International of Institute (Norwegian 627 no. paper, University of Florida Journal of Law and Public Policy of Lawand Florida Journal University of niSmts ad h Tetet f h Hlcut in Holocaust the of Treatment the and Anti-Semitism reo o Sec ad nieet gis Democracy Against Incitement and Speech of Freedom Menschenwürde in der säkularen Verfassungsordnung. säkularen der in Menschenwürde (NewYork:OxfordUniversityPress,1986). , (NewYork::ColumbiaUniversityPress,1994). , Vol.53(Spring,2000),pp.443-454. (Durham: Duke University Press, 1997). (Durham:DukeUniversity , Vol.32,No.4(Jul.,2000),pp.399-418. Vol.33,No.4(1999),pp.411-425. ee üce Zeitung Zürcher Neue nentoa Hrl Tribune Herald International (New York: Palgrave Macmillan, 2006), Macmillan, Palgrave York: (New é mocratiques. La loi, une épée à double à épée une loi, La mocratiques. uoen n U Constitutionalism US and European Teign Mh Siebeck Mohr (Tuebingen: Constitutional Jurisprudence Constitutional Bri: uce & Duncker (Berlin: Otbr 2 2006, 12, October , oten California Southern (last accessed (last Jnay 12, January , Maine Law Maine Southern , Vol.7 (New (last 126 CEU eTD Collection Brison, Susan J. “The Autonomy Defense of Free Speech,” Free of Defense Autonomy “The J. Susan Brison, egd, ihr “od Ta Wud A ot cin o Rca Isls Eiht, and Epithets, Insults, Racial for Action Tort A Wound: That “Words Richard Delgado, Amendment,” First the of View Realist Legal a “Toward Richard. Delgado, Gey,” Steven to Reply A Heresy? Constitutional Rules Hate-Speech “Are Richard. Delgado, Hate Henri. to Deleersnijder, Response A Norms: International and Speech of “Freedom F. Elizabeth Defeis, P. David Currie, Speech,” – associations Hate political extremist to responses “Constitutional of Ian. Cram, Theory a of “Foundations Francescotti. Robert and Angelo J. Corlett, and Legislation, Statistics, of Overview An Region: OSCE the in Crimes Hate Combating ed., Sandra Coliver, and Kretzmer David eds. in Value,” Constitutional a as Dignity “Human Arthur. Chaskalon, Other or Holocaust the of Denials of Satisfaction Psychological “The W. Israel Charny, interwar in extremism political to reactions democracy: “Defending Giovanni. Capoccia, Giovanni. Capoccia, Isabelle. Canu, at presented Paper Constitution,” la et haine la à “L’incitation Anne. Cammilleri-Subrenat, Brian. Brix, Speech,” Hate and Expression, of Freedom Principles, “Millian O. David Brink, racism,” of indirectly convicted party political Blok Vlaams The “Belgium: Eva. Brems, Review March 31,2008). http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane-Francia.pdf 1995). 1998), pp.312-339. Theory International JournalofConstitutionalLaw (Spring, 1982),pp.133-181. Name-Calling,” University ofPennsylvaniaLawReview 2001). EditionsEspacedeLibertés, (Paris: EditionsLabor: Speech,” of ChicagoPress,1994). democratic norms,” Wayne LawReview 2005). Initiatives National discrimination Hague: KluwerLawInternational,2002),pp.133-144. Klein, Eckart 6, No.1(Jul.,2001). Scholars,” Known by Even and Bigots, or Non-Extremists by Genocides 431-460. Europe,” (Baltimore: JohnsHopkinsUniversityPress,2005). europäischen der Integration Hintergrund dem vor Extremismus politischem mit Umgangs des Brisbane, Law, Comparative of 14 Academy International the of Congress XVIth the th -20 Law, Language, and Legal Determinacy Legal and Language, Law, , Vol.7(2001),pp.119-157. th , Vol.113,No.3(Jan.,2000),pp.778-802.

e Sht dr eorte n etcln ud rnrih En Vergleich Ein Frankreich. und Deutschland in Demokratie der Schutz Der Stanford JournalofInternationalLaw uoen ora o Pltcl Research Political of Journal European The Constitution of the Federal Republic of Germany of Republic Federal the of Constitution The (Opladen: LeskeundBudrich,1997). tiig Blne Ht Sec, reo o Epeso ad Non- and Expression of (London,Article19,1992). Freedom Speech, Hate Balance: a Striking eedn Dmcay Ratos o xrms i Itra Europe Interwar in Extremism to Reactions Democracy: Defending e péaer d l mmie a ha a prl e négationnistes des péril au Shoah la mémoire: la de prédateurs Les h Cnet f ua Dgiy n ua Rgt Discourse Rights Human in Dignity Human of Concept The avr Cvl ihsCvl iete Lw Review Law Liberties Rights-Civil Civil Harvard , Vol.48(Fall2002),pp.1071-1100. OC Ofc fr eortc ntttos n Hmn Rights, Human and Institutions Democratic for Office (OSCE Legal Studies July, , Vol.28,No.1(March2008),pp.68-95. , Vol.146,No.3(Mar.,1998),pp.865-879. 2002, , Vol.4,No.4(Oct., 2006),pp.702-711. (New York: Oxford University Press, University Oxford York: (New , Vol.29(1992),pp.57-130 Vl 3, o 4 Jn, 01, pp. 2001), (Jun., 4 No. 39, Vol. , Ethics , Vol. 108, No. 2 (January, 2 No. 108, Vol. , available (Durham: University (Durham: ETA Vl 1, o 1 No. 17, Vol. , ls accessed (last , avr Law Harvard Batasuna IDEA (The , Vol. , Legal and 127 at CEU eTD Collection oga-ct, inih “h Htfles f rtce Sec: Cmaio o the of Comparison A Speech: Protected of Hatefulness “The Sionaidh. Douglas-Scott, France,” en d’expresion liberté la et négationnistes thèses “Les Régine Dhoquois, bre Ewr J “ulc icus i Cneprr Germany,” Contemporary in Discourse “Public J. Edward Eberle, J. Edward Eberle, Eaglestone, Robert. András ed. in Schmitt,” Carl to Response A Enemy: the “Constituting David. Dyzenhaus, Pornography,” and “Women Ronald. Dworkin, Ronald. Dworkin, Waldron, Jeremy ed. in Trumps,” as “Rights Ronald. Dworkin, Dworkin, Ronald. Ronald. Dworkin, Speech,” Free over Battlers Coming “The Ronald. Dworkin, Paul eds. in Sicht,” Amerikanischer Aus Bewertung Grundsätzliche “Eine Cole. W. Durham, Lawrence. Douglas, Douglas, Lawrence.“Language,JudgmentandtheHolocaust,” Norman Dorsen, Wortlaut,” in Rassismusstrafnorm “Die Nations des Comité au Suisse la par présentées périodiques rapports troisième et Deuxième “Attacking C. Anuj Desai, Our Why Communities: Loving Speech, “Hateful Stefanic, Jean and Richard Delgado, Stefanic, and Jean Delgado, Richard Analysis An Chickens: Bloodied and Valves “Pressure Yun. H. David and Richard Delgado, American and European Approaches,” European and American It?,” Journal Suppressing Statute Criminal a Justify Speech Holocaust 19, No.1(Spring,2001),pp.177-182. Thomson West,2004). March 31,2008). http://www.nzz.ch/2006/10/05/il/newzzeswub03c-12_1.66029.html française No. 4(Jul.,1994),pp.851-869. York UniversityPress,2001). 82, No.4(Jul.,1994),pp.871-892. States Sajó 17, October21,1993. 1977). York: OxfordUniversityPress,1984). York: OxfordUniversityPress,1996). deutsch-amerikanischen Konferenz Kommers, P. Donald and Kirchhof at raciale discrimination de forme Toute de l’Élimination pour Unies Slowly,” So Changes Balance” Just “A of Notion Regulation,” Speech Hate to Objections Paternalistic of Vol. 47(Spring,1997),p. 797-901. Vol. 39,No.11,June1992. (Feb., 1999),pp.305-346. http://edi.admin.ch/shop/00077/index.html?lan=fr Militant Democracy (Westport:PraegerPublishers, 2002). , Vol.55,No.2(2003),pp.353-394. , Vol.37,No.2(2006),p.27-33. et al. Comparative Constitutionalism: Cases and Materials and Cases Constitutionalism: Comparative al. et (NewHaven:YaleUniversityPress,2001). A MatterofPrinciple Freedom’s Law: The Moral Reading of the American Constitution American the of Reading Moral The Law: Freedom’s aig ihs Seriously Rights Taking int ad iet: osiuinl iin i Gray n te United the and Germany in Visions Constitutional Liberty: and Dignity Postmodernism andHolocaustdenial The Memory of Judgment: Making Law and History in the Trials of the of Trials the in History and Law Making Judgment: of Memory The Brandenburg (Utrecht:ElevenInternationalPublishers,2004), pp.19-34. Critical Race Theory: An Introduction Theory: An Race Critical (Cambridge,MA:HarvardUniversity Press,1986). Neue Zürcher Zeitung Zürcher Neue with History: Does the Long-Term Harm of Biased of Harm Long-Term the Does History: with (Portland:Nomos,1992). Deutschland und sein Grundgesetz: Themen einer Themen Grundgesetz: sein und Deutschland Cmrde M: abig Uiest Press, University Cambridge MA: (Cambridge, William & Mary Bill of Rights Journal Rights of Bill Mary & William The New York Review of Books of Review York New The (London:TotemBooks,2001). (lastaccessedMarch31,2008). aiona a Review Law California The New York Review of Books of Review York New The eea Cmuiain Law Communications Federal , October 6, 2006, available at available 2006, 6, October , Law and History Review Law andHistory California Law Review Law California hois f Rights of Theories ae etr Reserve Western Case ls accessed (last (New York: New York: (New (2002), available (2002), (St. Paul, MN: Paul, (St. , Vol. 40, No. 40, Vol. , Ethnologie , Vol. 82, Vol. , , Vol. 7 Vol. , (New (New , Vol. , , Vol. 128 , , CEU eTD Collection Ferreres Comella, Victor. “The Regulation of Hate Speech in Spain,” Paper presented at the at presented Paper Spain,” in Speech Hate of the Regulation “The Victor. Comella, Ferreres and Spain, in Parties Political of Regulation New “The Victor. Comella, Ferreres in discrimination,“ racial and parties right extreme of repression “Legal Meindert. Fennema, France v. Faurisson of Foundations Theoretical and Historical The Matrix: the “Molding Stephanie. Farrior, Values,” vs. Technology Borders: Across Speech “Regulating Matthew. Fagin, J. Richard Evans, Xenophobia and Racism Combat to Action on Decision Framework Union European denial,” Holocust outlawing measure adopts “EU Law,” in French Libel in Group Incitement and Racial of Civility: “In Defense Errera, Roger. Emergency Ideological and Historical The Regimes: Speech Free Old Medium, “New Lyombe. Eko, Holocausto,” el por justificar prisión de meses siete condenado a Varela, Pedro librero “El genocidio,” el justificar por pena la mantiene Constitucional “El 1964). Muray. Edelman, Muray. Edelman, Vol. 14,No.1(1996),pp.1-98. Expression andNon-discrimination Comparative LawReview 2008). car/Holocausto/elpepuesp/20080305elpepunac_23/Tes dio/elpepuesp/20071109elpepinac_12/Tes http://www.elpais.com/articulo/espana/Constitucional/mantiene/pena/justificar/genoci available Academic Press,1971). 20 14 Brisbane, Law, Comparative of Academy International the of Congress XVIth ed., Sajó András ed. in Batasuna,” Outlaw to Decision 2000), pp.119-144. Perspectives Statham, European Comparative Paul Politics: and Relations Koopmans Ruud eds. CCPR/58/D/550/1993 (1996). Speech,” Hate Concerning Law International Telecommunications andTechnologyLawReview York: BasicBooks,2002). 0285+0+DOC+XML+V0//EN on decision Framework the on Negotiations Action the of Progress June the 27 Concerning of Council 2007 the to Recommendation Parliament European and (2007/2067) March 31,2008). at available 2007, ed., Sandra Coliver, Sandra ed. http://cdep.ro/pls/legis/legis_pck.htp_act?ida=35293 and Speech Bias-Motivated Internet,” of the Regulation on American Expression Symbolic & French of Foundations País Eleven InternationalPublishers, 2004),pp.133-156. http://europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007- http://elpais.com/articulo/espana/librero/Pedro/Varela/condenado/meses/prision/justifi th

, Lying About Hitler: History, Holocaust, and the David Irving Trial Irving David the and Holocaust, History, Hitler: About Lying h Smoi Ue o Politics of Uses Symbolic The Quiescence and Arousal Mass Action, Symbolic as Politics to March Ordinance Hmn ihs omte (ntd ain) U Doc UN Nations), (United Committee Rights Human , Combat July, http://iht.com/articles/2007/04/19/news/eu.php , Vol.28(Winter,2006),pp.69-127. (lastaccessedMarch31,2008). Racism 3,2008, (London:Article19,1992),pp.144-158. tiig Blne Ht Sec, reo of Freedom Speech, Hate Balance: a Striking 2002, 31/2002, (lastaccessedMarch31,2008). ooa f o Agls nentoa and International Angeles Los of Loyola Capin Uiest o Ilni Press, Illinois of University (Champaign: and nentoa Hrl Tribune Herald International Berkeley Journal of International Law International of Journal Berkeley hlegn Imgain n Ethnic and Immigration Challenging , Vol.9(2003),pp.395-455. (lastaccessedMarch31,2008). Xenophobia,

Militant Democracy Militant ls acse Mrh 31, March accessed (last El País El Ofr Uiest Press, University (Oxford available available available , November 9, 2007, 9, November , ls accessed (last available Nw York: (New Arl 19, April , (Utrecht: Michigan (New 129 at: El th at at at at - , CEU eTD Collection ufed Jsp R. Joseph Gusfield, International An Iceland: in Beer of “Prohibition Galliher, F. John and Helgi Gunnlaugsson, Justifications,” Speech “Free Kent. Greenawalt, Context,” Question of Internet: A the on Speech “Hate Gosnell, Chris. Theory,” Censorship Postmodern Hagenbeek and against Glimmerveen Case “The G. Steven Gey, Manfred. Gerstenfeld, German party,” neo-Nazi ban to attempt rejects court “German verurteilt,” Perincek “Genozid-Leugner Dialogue Garaudy v.France Difficult The Negationism: of Punishment “The Fronza. Emanuela Fronza, at available texts, constitutional French France, Jeannin. and Internet, the Denial, Holocaust Egypt: in River a Than “More Credence. Fogo-Schensul, M. Owen Fiss, Fiss, OwenM. Lecture, Seegers Freedom,” Academic and Denial “Holocaust Stanley. Fish, (“Financial NATO” la aderare de criteriu Holocaust, în implicarea – Times” ““Financial Gould, Jon B. Jon Gould, October 11,1979(rejected). Anti-Semitism thèses “Les Dhoquois, Régine in cited (1995), 2 (2006). I Paris France,” d’expresion en la liberté négationnistes et de Université droit, (1997), pp.241-276. (Boulder: WestviewPress,1996). University LawReview holocaust-criteriu-de-aderare-la-nato/17695 March 31,2008). http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane-Spagna.pdf Movement 354. Politics,” Symbolic of Test 119-155. of ChicagoPress,2005). at available 2008). http://nzz.ch/2007/03/12/il/articleezypn_1.125424.html 626. Memory,” and Law Between (last accessedMarch31,2008). Norms,” Expression of Freedom International at available 2002, 11, membership criterion,” NATO the Holocaust, in Times” –Involvement Pennsylvania LawReview http://bundesrecht.juris.de/stgb/index.html accessed March31,2008). Vol. 23(1998),pp.371-438. Speak No Evil: The Triumph of Hate Speech Regulation Speech Hate of Triumph The Evil: No Speak The IronyofFreeSpeech Liberalism Divided: Freedom of Speech and the Many Uses of State Power State of Uses Many the and Speech of Freedom Divided: Liberalism Criminal Le révisionnisme. Contribution à l’étude de la liberté d’expression àl’étudedela Le révisionnisme.Contribution (Champaign:University ofIllinoisPress,1976). , Application no. 65831/01, June 24,2003(rejected)., Applicationno.65831/01,June http://www.quardian.co.uk/world/2003/mar/19/thefarright.germany (Jerusalem:JerusalemCenterforPublicAffairs,2003). yblc rsd: tts oiis n te mrcn Temperance American the and Politics Status Crusade: Symbolic uoes rmln Mts TePs-ooas Oiis f Today’s of Origins Post-Holocaust The Myths: Crumbling Europe’s , Vol.35(2001),pp.499-524. . h Ntelns Apiain o 84/8 n 8406/78, and 8348/78 no. Application Netherlands, The v. Code , Vol.145,No.2(Dec.,1996),pp.193-297. Law & Society Review Society & Law Vermont Law Review Law Vermont http://adevarul.ro/articole/financial-times-implicarea-in- (Cambridge,MA:HarvardUniversityPress,1998). Neue Zürcher Zeitung Zürcher Neue http://conseil-constitutionnel.fr/textes/constitu.htm ( Stastsgesetzbuch Columbia Law Review Law Columbia (lastaccesedMarch 31,2008). (lastaccessedMarch31,2008). Gonzaga Law Review Law Gonzaga Ethnologie française Ethnologie , Vol. 30 (Spring, 2006), pp. 609- pp. 2006), (Spring, 30 Vol. , , Vol. 20, No. 3 (1986), pp. 335- pp. (1986), 3 No. 20, Vol. , h Guardian The ls acse Mrh 31, March accessed (last , March 12, 2007, available at available 2007, 12, March , ), Queen’s Law Journal Queen’s Law (Chicago: University (Chicago: , Vol. 80 (1989), pp. (1989), 80 Vol. , Mrh 9 2003, 19, March , available , Vol. 33, No. 1 No. 33, Vol. , ls accessed (last Adev nvriy of University , Vol. 37, No. Vol. 37, , Valparaiso , Thèsede ă rul (last , July , July 130 at , CEU eTD Collection Jsii rcnat lgltta icri einr, (Te a rcgie te eaiy of legality the recognizes law (“The Legionare,” Mişcării legalitatea recunoaşte “Justiţia Judt, Tony. Eckhard. Jesse, 2, February Affairs, Public for Center Jerusalem 351, No. Letter/Viewpoints,” “Jerusalem Denmark v. Jersild Gerd. Hans Jaschke, 'myth',” a Holocaust leader: “Iranian International the in Law Through the Denial Holocaust “Combating of Research, Policy instruments Jewish for the Institute with right extreme the “Combating Christopher. Husbands, country,” his in anti-Semitism escalating of warns PM “Hungarian crime,” a denial Holocaust make to gov’t says FM “Hungarian Hungarian jailed,” is Irving denier “Holocaust Choudry Sujit law,” in constitutional of matrix methodological blurred the “On Ran. Hirschl, Wound,” That “Words on Comment A Words: “Banning Marjorie. Heins, Haworth, Alan. and Individual, The State, The Memory: Public of Theory a of Search “In F. Brian Havel, Don’t: If You Damned Do and If You Damned – Hate Speech E. “Regulating Haupt, Claudia Trials,” Zündel the and Denial, Holocaust Liberties, Civil “Canadian Jr. A., Marouf Hasian, Addo, K. Michael ed. in Hungary,” in Officials Public “Criticizing Gábor. Halmai, 6 20, rvosy vial through available previously 2002, 16, http://www.news.bbc.co.uk/2/hi/europe/4733820.stm 2006), pp.39-66. Rights-Civil LibertiesLawReview University InternationalLawJournal Communications andtheLaw legal European of study standards comparative A Judges: of Criticism the and Expression of Mişcarea Bundesrepublik Deutschland 1997. Kritik 2008). http://www.cnn.com/2005/WORLD/meast/12/14/iran.israel/ http://www.servat.unibe.ch/law/icl/idenx.html 31, 2008). http://www.jpr.co.uk/Reports/CS_Reports/no_3_2000/index.htm United in Europe,” Western Konflikt- undGewaltforschung in experiences from lessons state: constitutional 31, 2008). 2007). a83aa.pdf ed., Marcel Proust,” Approaches,” U.S. and German the Comparing from Learned Lessons 23, 1994. at 2007, available March 3, http://www.legislationonline.org/upload/legislations/15/ef/84d98ff3242b74e606dcb1d The Migration of Constitutional Ideas Constitutional of Migration The Postwar: AHistoryofEurope Since1945 (Opladen:WestdeutscherVerlag,1991). Free Speech (lastaccessedMarch31,2008). (Burlington:Ashgate, 2000),pp.203-224. tetae eorte Tere Pai ud easodrne i der in Herausforderungen und Praxis Theorie, Demokratie, Streitbare Kingdom,” , Application no. 15890/89, Decision of the Grand Chamber, September Chamber, Grand the of Decision 15890/89, no. Application , Legionară Constitutional Streitbare Demokratie und innere Sicherheit, Grundlagen, Praxis und Praxis Grundlagen, Sicherheit, innere und Demokratie Streitbare Indiana LawJournal Criminal (NewYork:Routledge,1998). ”)

JPR http://www.ejpress.org/article/14710 (Berlin: ColloquimVerlag, 1980). , Vol.21(Sept.,1999),pp.43-56. Cotidianul , Vol.1(2002),pp.52-73. , Vol.18,No.2(Summer,1983),pp.585-592. Report B News BBC Law , Vol.80(2005),pp.605-726. , Vol.23(Fall,2005),pp.299-335. CNN Code, , http://haaretz.com (Cambridge: Cambridge University Press, University Cambridge (Cambridge: Dcme, 4 20, vial at available 2005, 14, December, , (NewYork:PenguinBooks, 2005). (lastaccessed March31,2008). No. June Fbur 2, 06 aalbe at available 2006, 20, February , Project, (lastaccessedMarch31,2008). 3 2, Associated Press Associated ls acse Mrh 16, March accessed (last (2000), (last accessed March 31, March accessed (last available 2006, European Jewish Press Jewish European (last accessed March accessed March (last (last accessed March (last available avr Civil- Harvard available available , September , ora für Journal Freedom Boston 131 at at at at , CEU eTD Collection an Rbr A “noml esrhp f ooas eiins i teUie Sae and States United the in Revisionism Holocaust of Censorship “Informal A. Robert Kahn, egwe Cas n Hrt Meier. Horst and Claus Leggewie, Campus,” Regulating RacistSpeechon Let Him Go: III, “IfHeHollers Lawrence, CharlesR. a Free Truth in Quest for Amendment: The the First Denial and “Holocaust Lasson, Kenneth. Acts,” Unspeakable and Acts “Speech Rae. Langton, a of Jürgen. Aspects Lameyer, Transnational Speech? Racist for Freedom Much “How Friedrich Kübler, Free Amendment: First the on Perspective Comparative “A Jr. J., Ronald Krotoszynski, repression for opportunities discursive sphere: public the and “Repression Ruud. Koopmans, P. Donald Kommers, Speech,” Hate Regulate to “When C. John Knechtle, Mayer. Nonna and Bert Klandermans, Werner and Grimm Dieter eds. in Gesetzgebung,” “Symbolische Harald. Kindermann, of the Subordination Expression and Freedom of Reasons: L “Boundariesand Karst, Kenneth P. Ramet ined.Sabina in Hungary,” “The RadicalRight Karsai, Laszlo. du nature la de Ignorance foi: bonne de critiques ses et Gayssot Loi “La Gilles. Karmasyn, Anti-Hate Concerning Debate the to Responses Group Target Again: “Never Evelyn. Kallen, Speech Hate of Development the and Denial, Holocaust “Cross-Burning, A. Robert Kahn, Kahn, Robert A. Robert Kahn, Germany,” Macmillan, 2004). eta ad atr Erp sne 1989 since Europe University Press,1999),pp.133-146. Eastern and Central 31, 2008). available at 46-73. pp. 125-149. (last accessedMarch31,2008). http://cotidianul.ro/justitia_recunoaste_legalitatea_miscarii_legionare-11853.html Demokratie Duke LawJournal Society,” (1993), pp.293-330.SeealsoBrison(1998), 335-336. (Berlin: Duncker&Humbolt,1978). Conflict ofHumanRights,” Value inGermany,” Constitutional Dignity asaPreferred andthePrimacyof Speech, MilitantDemocracy, Mobilization Davenport Christian in Germany,” in right extreme the against (Durham: DukeUniversityPress,1997). Magnifying Glass Rechtstheorie XIII) Maihofer, Groups,” négationnisme,” Legislation,” Propaganda Germany,” and States United the in Law (Winter, 2006),pp.539-578. Vol. 83(Spring,2006),pp.163-194. University ofIllinoisLawReview George MasonLawReview Holocaust Denial and the Law: A Comparative Study Comparative A Law: the and Denial Holocaust Gesetzgebungstheorie und Rechtspolitik (Jahrbuch für Rechtsoziologie und Rechtsoziologie (Jahrbuch für Rechtspolitik und Gesetzgebungstheorie George Mason University Civil Rights Law Journal Law Rights Civil University Mason George (Leipzig:RowohltVerlag, 1995). http://www.phdn.org/negation/gayssot/critiques.html tetae eorte En vrasnsemnuice Untersuchung verfassungshermeneutische Eine Demokratie. Streitbare (Minneapolis:UniversityofMinnesotaPress,2005),pp.159-188. osiuinl uipuec o te eea Rpbi o Germany of Republic Federal the of Jurisprudence Constitutional PHDN (Pratique de l’histoire et dévoiements négationnistes) dévoiements et l’histoire de (Pratique PHDN (NewYork:Routledge,2006). , Vol.1990,No.3(Jun., 1990),pp.431-483. (Opladen:WestdeutscherVerlag,1988),pp.222-245. Tulane LawReview Windsor Yearbook of Access to Justice to Access of Yearbook Windsor Hofstra LawReview eulkcuz Mstb fr i Vredgn der Verteidigung die für Masstäbe Republikschutz: xrm Rgt ciit i Erp: hog the Through Europe: in Activists Right Extreme , Vol.6,No.1(1997),pp.35-86. , Vol.78,No.5(May,2004),pp.1549-1609. (1990),pp.95-149. nvriy f eri MryLw Review Law Mercy Detroit of University Uiest Pr: enyvna State Pennsylvania Park: (University Philosophy and Public Affairs Public and Philosophy , Vol.27(Winter1998),pp.335-376. en tt Lw Review Law State Penn , Vol. 9, No. 1 (1998), No. 1 9, Vol. , (New York: Palgrave York: (New et al. et (lastaccessedMarch The Radical Right in Right The Radical pp. (1991), 11 Vol. , , Repression and Repression Vl 110 Vol. , , Vol. 22 Vol. , (2002), 132 , CEU eTD Collection ake, arc. Mltn dmcay lgl lrls, n te aao o self- of paradox the and pluralism, legal democracy, “Militant Patrick. Macklem, A. MacKinnon, Catharine MacKinnon, CatharineA. ( Code Criminal Lichtenstein Luxembourgian Germany,” and States United the in Enterprise Free Meets Speech “Free Thomas. Lundmark, movement denial Holocaust the of history recent the Führer: the “Forgetting d’arbitrage Anthony. Long, Cour la sur 1989 janvier 6 du Speciale Loi Loi I,” Rights Fundamental and Democracy “Militant Loewenstein, Karl. Post in Denial Holocaust and “Antisemitism Florin. Lobonţ, Democratic for Office (OSCE Legislationonline at available Code, Criminal Lithuanian Deborah. Lipstadt, Lipstadt, Deborah. speech,” free defends “Lipšic Ley “ Paul. Lendvai, denial,” Holocaust against laws adopt to nations EU urges “Frattini Yossi. Lempkowicz, France v. Isorni and Lehideux e hsoin s rebiffent,” se historiens Les http://www.spectator.sk/articles/view/19007// Collins, 2005). York: Plume,1993). 0nueva%20LOTC.pdf http://www.tribunalconstitucional.es/tribunal/leyesacuerdos/Texto%20consolidado%2 accessed March31,2008). at available Doubleday, 1971). European 2006), pp.488-516. determination,” University Press,1991). 08.doc-3.pdf Indiana InternationalandComparativeLawReview 72-84. Germany,” in http://www.arbitrage.be/fr/common/home.html exte=20080328 http://legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006070722&dateT Science Review 2006), pp.440-468. Stone, Dan ed. 2008). Institutions http://www.ejpress.org/article/13405 September 23,1998. accessed March31,2008). http://legilux.public.lu/leg/textescoordonnes/codes/index.html#code_penal http://www.legislationonline.org/?tid=218&jid=1&less=true Orgánica de niSmts wtot es omns Esen Europe Eastern Communist Jews: without Anti-Semitism Denying the Holocaust: The Growing Assault on Truth andMemory The GrowingAssaultonTruth Denying theHolocaust: History on Trial: My Day in Court with David Irving David with Court in Day My Trial: on History (lastaccessedMarch31,2008). http://communautarisme.net/Les-historiens-se-rebiffent_a654.html Australian Journal of Politics and History and Politics of Journal Australian Jewish , Vol.31,No.3(Jun.,1937),pp.417-432. (lastaccessedMarch31,2008). itrorpy f h Holocaust the of Historiography nentoa Junl f osiuinl Law Constitutional of Journal International la Only Words Towards a Feminist Theory of the State Theory of a Feminist Towards del Criminal (lastaccessedMarch31,2008). and bevtie u communautarisme du Observatoire Strafgesetbuch Press Apiain o 5/978914, rn Chamber, Grand 55/1997/839/1045, no. Application , h Soa Spectator Slovak The Tribunal Presse (Cambridge, MA:HarvardUniversityPress,1993). , (lastaccessedMarch31,2008) , January , vial at available ), Human Code, (lastaccessedMarch31,2008). Constitucional (lastaccessedMarch31,2008). 1881, Nw ok Plrv Macmillan, Palgrave York: (New 27, Mrh , 05 aalbe at available 2005, 7, March , , Vol.11(2001),pp.289-317. Jnay , 99 aalbe at available 1989, 7, January , -Communist Eastern Europe,” in Europe,” Eastern -Communist http://www.llv.li/stgb-01-01- , Vol. 48, No. 1 (2002), pp. (2002), 1 No. 48, Vol. , (Cambridge, MA: Harvard MA: Harvard (Cambridge, 2007, (last accessed March 31, March accessed (last , Dcme 1, 2005, 13, December , available The American Political American The Rights), Vl 4 N. (Jul., 3 No. 4, Vol. , available (New York: Harper York: (New available available

(London: (New (last (last 133 at at at at at CEU eTD Collection Michelman, Frank. “Conceptions of Democracy in American Constitutional Argument: The Argument: Constitutional American in Democracy of “Conceptions Frank. Michelman, otk, aocer Oeig eak a te Itrainl ofrne o eiw the Review to Conference “International the at remarks Opening Manouchehr. Mottaki, quelques travers à d’expression liberté la à atteintes aux limites “Les Jean-Paul. Moerman, A Law, Becoms Rhetoric When Forget:” Dream—Never a Have ““I L. Natasha Minsker, in right radical the and democracy militant reaction: and “Repression Michael. Minkenberg, Michael. Minkenberg, in Speech Hate of Notion Emerging the of Sign A Australia: v. “Hagan Mariana. Mello, Meiklejohn, Alexander History The Denial, Holocaust Judgment: and Memory, Lawrence.“History, McNamara, Denial?,” Tolerate Holocaust We “Should McKinnon, Catriona. Speech,” Hate of Tolerance from Equality (Racial) “Wrestling Tarlach. McGonagle, national with consistency laws: speech “Hate O’Donnell. Therese and Dominic McGoldrick, Dürig Günter and Theodor Maunz, J. Mari Matsuda, the Considering Speech: Racist to Response Public Storytelling: “Legal J. of Mari Matsuda, Freedom of Mathis, AndrewE.“GeneralSemanticsandHolocaustDenial,” Contradiction or Affirmation Marais v.France Speech: “Hate E. Kathleen Mahoney, in Expression of Freedom to Approach Constitutional Canadian “The Kathleen. Mahoney, Case of Pornography Regulation,” Pornography of Case 353-394. pp. 9-28. University LawReview 1959). First Amendment 1 (Winter,1992),pp.77-10. March 16,2007). http://www.ipis.ir/English/meetings_roundtables_conferences.htm Global at available 2003, March 31,2008). 3-4, la October constitutionnelle,” de justice http://concourt.am/armenian/almanakh/almanac2003/papers/20.doc constitutionnelle la de Cour pratique la la dans l’homme avec de droits aux restrictions des coopération base de critères “Les en d’Arménie: République Erevan de internationale Conférence VIIIe the at presented Speech Belgique,” de d’arbitrage Cour la States,” d arrest United the and Germany in Race of Harvard BlackLetterJournal Jurisprudence the of Comparison Germany andFrance,” Deutschland 291-319. Law Review International Law,” Customary & BrothersPublishers,1948). Past,” the with Problems Law’s and Wars, and internationalhumanrightslaw,” Victim’s Story,” Expression,” Pornography,” and Propaganda Hate , Requête no. 31159/96, June 24,1996(rejected). , Requêteno.31159/96,June et al. Words That Wound: Critical Race Theory, Assaultive Speech and the and Speech Assaultive Theory, Race Critical Wound: That Words al. et , Vol.28(2006),pp.365-378. (Opladen:WestdeutscherVerlag,1998). University ofIllinoisLawReview Vision Free Speech And Its Relation to Self-Government to Relation Its Speech And Free Michigan LawReview (Boulder: WestviewPress,1993). i nu rdkl Rct i Vrlih UA Frankreich, USA, Vergleich: im Rechte radikale neue Die , Vol.23(2001),pp.21-54. Patterns ofPrejudice Grundgesetz Kommentar Grundgesetz of , Vol.14(Spring,1998),pp.113-169. Loyola of Los Angeles International and Comparative and Angeles International Los of Loyola Tennessee Law Review Law Tennessee Legal Studies Law and Contemporary Problems Contemporary and Law the , Vol.87(Aug.1989),pp.2320-2381. , Vol.40,No.1(2006),pp.25-44. Sydney Law Review Law Sydney , Vol.1996,No.3(1996),pp.789-808. Holocaust,” , Vol.18(1998),pp.453-485. (München: C.H. Beck Verlag, Beck C.H. (München: ETC Res Publica , Vol. 56, No. 2 (1989), pp. (1989), 2 No. 56, Vol. , (Jan.,2006),pp.50-59. , Vol. 26 (2004), pp. (2004), 26 Vol. , (New York: Harper York: (New

ls accessed (last available , Vol. 13 (2007), 13 , Vol. (last , Vol. 55, No. 55, Vol. , accessed Dublin 134 at CEU eTD Collection P Incitement Fight to Attempt An Democracy’: ‘Militant “Germany’s Dieter. Oberndörfer, R Representation of Law,”Permanent Incorporated inCzech Denial “Punishment forHolocaust Nahimana Ferdinand and Ngeze Hassan Barayagwiza, Jean-Bosco v. Prosecutor contre crimes et génocides les tous de contestations la interdire à visant loi de Proposition No There Was “Why Attila. Pók, Speech, Racist Harassment: Sexual and Racial, Religious, and Speech “Free C. Robert Post, C. Robert Post, Democratic for Office (OSCE Legislationonline at available Code, Criminal Polish banning?” for case a there Is Speech: “Hate Bhikhu. Parekh, J. Mark Osiel, Massacre,” Administrative of Legal Remembrance Again: “Ever J. Mark Osiel, ed. in elements,” essential comparing constitutionalism: US and “European Georg. Nolte, Wochenschrift Juristiche Values,” Neue Constitutional of Ordering “An F. Walter Murphy, Religious Between Balance the Striking Spain: in Pluralims “Religious Augustín. Motilla, ă unescu, Adrian. Speech in the Senate plenum debates on 25 March 2002, available through 2002, available 25 March on plenum debates the Senate in unescu, Adrian.Speech 2005-Feb. 2006),pp.213-223. Provisions: Constitutional Through Speech Hazan, Kershman Francine and Kretzmer David eds. in of Record,” Overall and History Freedom and Democracy Against Press, 2005),pp.3-20. (Winter, 1991),pp.267-327. Pennsylvania LawReview International, 2000),pp.237-247. Review (Summer, 2004),pp.575-606. http://csc.lexum.umontreal.ca/en/1990/1990rcs3-697/1990rcs3-697.html the March 31,2008). nationale.fr/12/dossiers/reconnaissance_genocide_armenien_1915_loi_2001.asp l’humanité Later Chamberlin. S. Brewster and L. Randolph Amendment,” First the and Democracy, MA: HarvardUniversityPress,1995). Institutions http://www.cdep.ro// Publishers, 1997). Democracy Against Incitement and Speech of Freedom Georg Nolte, and theLaw:AComparativeStudy Rights,” constitucional and Freedom accessed March31,2008). March 31,2008). http://mzv.cz/wwwo/default.asp?id=46561&ido=13925&idj=2&amb=3 through available Trial”), Media (“The ICTR-99-52-T accessed March31,2008). 2008). http://www.legislationonline.org/?tid=218&jid=1&less=true v. (NewYork:ColumbiaUniversityPress,2006). , Vol.53(1980),pp.703-760. Czech Keegstra Constitutional Domains: Democracy, Community, Management Community, Democracy, Domains: Constitutional as toiy Cletv Mmr, n te Law the and Memory, Collective Atrocity, Mass , European and US Constitutionalism US European and

Republic (lastaccessedMarch31,2008). (1982), p. 1203, cited in Robert A. Kahn. A. Robert in cited 1203, p. (1982), [1990] and available , Vol.144(1996),pp.463-707. Historikerstreit to (NewYork:Palgrave-Macmillan,2004),p.19. 3 the Brigham Young University Law Review Law University Young Brigham Human in Hungary after 1989-1990?” in Braham, in 1989-1990?” after Hungary in ila ad ay a Review Law Mary and William h Hlcut n ugr: it Years Sixty Hungary: in Holocaust The S.C.R. European at: (Cambridge: Cambridge University Cambridge (Cambridge: Public Policy Research Policy Public www.ictr.org Te au: lwr Law Kluwer Hague: (The 697, Union, oten aiona Law California Southern (last accessed March 31, March accessed (last Rights), Eio: Transaction (Edison: http://www.assemblee- Holocaust Denial Holocaust available available ls accessed (last (last accessed (last

(Cambridge, University of University , Case no Case , Vl 32 Vol. , , No. 2 No. , (Dec. (last (last 135 at at at CEU eTD Collection Schabas, William A. “Hate Speech in Rwanda: The Road to Genocide,” Roadto Rwanda: The A. “HateSpeechin Schabas, William Schauer, Frederick F. “Speech, Behaviour and the Interdependence of Fact and Value,” in Value,” and Fact of Interdependence the and Behaviour “Speech, F. Frederick Schauer, Parent, A. William and Myer J. Michel eds. in Dignity,” of “Speaking F. Frederick Schauer, Debate,” Speech Hate the of Sociology “The F. Frederick Schauer, Harm,” and Speech of Phenomenology “The F. Frederick Schauer, of Memory in Essay An Amendment: First the and Truth, “Language, F. Frederick Schauer, Expression,” of Freedom of Theory “A M. Thomas Scanlon, Expression,” of Categories and Expression of “Freedom M. Thomas Scanlon, Scanlon, ThomasM. Sajó, Andrásed., Sajó, András. Wojciech. Sadurski, in Egalitarian of Critique Lens’: Equality Developments an Through Speech ‘Seeing “On of Wojciech. Sadurski, Survey Anti-Semitism: Against Fight Legal “The J. Stephen Roth, the into inquiry an constitutionalism: liberal “Spreading Sajó, András and Michel Rosenfeld, Analysis,” Comparative A Jurisprudence: Constitutional in Speech “Hate Michel. Rosenfeld, Tolerance,” of Paradox the and Speech “Extremist Michel. Rosenfeld, Speech,” Free and “Toleration J. A. David Richards, Turkey Others v. Party) and (The Welfare Refah Partisi 13 du loi la de perspectives et Bilan négationnisme: le contre lutte La colloque: du Rapport Theories,” Emerging Trials Recent Law: The and History “Holocaust Vera., Ranki, P. Sabrina Ramet, cae, rdrc F. Frederick Schauer, Vol. 1,No.2(Winter,1972),pp.204-226. accessed March31,2008). of ConstitutionalIdeas No. 4(Autumn,1988),pp.323-336. February 2003. at available 2002, Studies inLawandLiterature Park: PennsylvaniaStateUniversityPress,1999). d. ai Keze ad rnie esmn Hazan, Kershman Francine and Kretzmer David eds. Values American and Dignity Human Rights: of Constitution The (Jul., 1993),pp.635-653. Harry Canter,” University Press,1982). communist StatesofCentralandEasternEurope Pornography,” and Legal Studies Speech Hate of Suppression for Arguments 1993,” ed., Choudry Sujit in democracies,” new in rights speech free of fate Cardozo LawReview xénophobe ou antisémite raciste, acte tout réprimer à tendant 1990 juillet University Press,1992. Vol. 37(1992),pp.805-819. Pittsburg LawReview Cambridge UniversityPress,2003). Vol. 100(1987),pp.1457-1481. Vol. 46(2000),pp.141-171. Freedom ofExpression upeett IsraelYearbookonHumanRights Supplement to Militant Democracy The Radical Right in Central and Eastern Europe since 1989 since Europe Eastern and Central in Right Radical The , Vol.16,No.4(Winter1996),pp.713-723. The Difficulty of Tolerance: Essays in Political Philosophy in Political of Tolerance:Essays The Difficulty ihs eoe ors A td o Cntttoa Cut i Post- in Courts Constitutional of Study A Courts: Before Rights Virginia Law Review Virginia Law re peh A hlspia Enquiry Philosophical A Speech: Free , Vol.24,No.4(2003),pp.1523-1567. http://www.cncdh.fr/IMG/pdf/colloque_negationnisme.pdf , Vol.40(1979),pp.519-550. (Cambridge:CambridgeUniversityPress,2006),pp.142-177. , Vol.9(1997),pp.15-44. (Warsaw:InstytutSprawPublicznych,2004a). (Utrecht:ElevenInternationalPublishers,2004). , Vol.64,No.2(Mar.,1978),pp.263-302. Philosophy and Public Affairs Public and Philosophy , Judgment of the Grand Chamber, 13 the Grand of , Judgment (Norwell:Springer,2005). Philosophy and Public Affairs Public and Philosophy , Vol.25(1995). Cmrde Cambridge (Cambridge: reo o Sec and Speech of Freedom Ethics Villanova Law Review Law Villanova Harvard Law Review Law Harvard McGill Law Journal McGill Law xod ora of Journal Oxford , Vol. 103, No. 4 No. 103, Vol. , Ihc: Cornell (Ithaca: The Migration The University of University (Cambridge: (University , Vol. 17, Vol. , Cardozo , 5 July July 5 , (last 136 , , , , CEU eTD Collection Strossen, Nadine. “Hate Speech and Pornography: Do We Have to Choose BetweenFreedom Haveto Do We Pornography: and “Hate Speech Strossen, Nadine. Stern, KennethS. – “Auschwitz” the against Law German New The Speech: Free against “History Eric. Stein, University Yale the at presented Paper Genocide, of Stages “Eight H. Gregory Stanton, denial,” Holocaust for terms jail urges leader Jewish “Spanish Spanish with Democracy to Transition the in Courts Constitutional of Role “The László. Sólyom, University,” a of Idea the and Speech, Hate Freedom, “Academic A. Rodney Smolla, Slovak CriminalCode,availableat Never Holocaust the Says Who History: Denying Grobman. Alex and Michael Shermer, ed. Shelly Shapiro, Michael. Shafir, “ Michael. Shafir, Sentencia Sentencia Sentencia Barcelona de 3 No. Penal lo de Juzgado del Sentencia Gill. Seidel, East,” http://boe.es/g/es/bases_datos_tc/doc.php?coleccion=tc&id=SENTENCIA-1995-0176 pp.449-478. 324. http://www.genocidewatch.org/8stages.htm 2003), pp.133-161. and ContemporaryProblems Centrala Europa din postcomuniste 31, 2008). (last accessedMarch31,2008). http://www.der.uva.es/constitucional/verdugo/sentencia_varela_europa.html the Pale Collective,1986). 61. Democracy Incitement Against f peh n Equality?,” and Speech of “Lies,”” – Other and Center 31, 2008). accessed March31,2008). Hungary,” to Reference Special Happened andWhyDoTheySayIt?(Berkley:UniversityofCaliforniaPress,2000). Report Europe Central East Post-Communist (Ia in Negationism Holocaust Trivialization:’ http://tribunalconstitucional.es/jurisprudencia/Stc2007-235.html (last accessedMarch31,2008). http://boe.es/g/es/bases_datos_tc?doc.php?coleccion=tc&id=SENTENCIA-1991-0214 accessed March31,2008). http://www.boe.es/g/es/bases_datos/doc.php?coleccion=iberlex&id=1995/25444 November 29, 2007, available at available 2007, 29, November ş i: Polirom,2002). STC STC STC h ooas eil nieiim aim n h e Right New the and Racism, Antisemitism, Denial: Holocaust The Studia Hebraica (Paris:BeateKlarsfeldFoundation,1990). Criminal Între negare si trivializare prin compara prin trivializare si negare Între for Ex Occidente Obscuritas Occidente Ex Holocaust Denial Truth Prevails: Demolishing Holocaust Denial: The End of the Leuchter the of End The Denial: Holocaust Demolishing Prevails: Truth 214/1991, 176/1995, 235/2007, verdict International Michigan Law Review Law Michigan , Vol.3(2003),pp.23-82. Code de de de http://justice.gov.sk/jaspi (AmericanJewishCommittee,1993). , Vol.53,No.3(Summer,1990),pp.195-225. ae etr Rsre a Review Law Reserve Western Case (The Hague: Kluwer Law International, 2000), pp. 43- 2000), pp. Law International, Kluwer Hague: (The 11 11 7 http://ejpress.org/article/23776 can and nentoa Sociology International : The Diffusion of Holocaust Denial from West to West from Denial Holocaust of Diffusion The : ( de de Código de ş d Est de i Area noviembre (lastaccessedMarch31,2008). noviembre diciember , Vol. 85, No. 2 (Nov., 1986), pp. 277- pp. 1986), (Nov., 2 No. 85, Vol. , , November 26, 1998. The full text of text full The 1998. 26, November , ( be ewe Dna ad ‘Comparative and Denial Between Studies, ţ ie. Negarea Holocaustului în Holocaustului Negarea ie. Penal (lastaccessedMarch31,2008). de de de ), Vl 1, o 1 (March, 1 No. 18, Vol. , uoen eih Press Jewish European 1998, 2007 1995 1991 accessed (last accessed March accessed (last (last accessed March accessed (last Vl 4 (1996), 46 Vol. , available , , , available available available available (Beyond the (Beyond

(last ţă Law (last 137 rile at at at at at at ) , CEU eTD Collection sss Alexander. Tsesis, of Comparison Protected? or Restricted Online: Speech “Hate A. Yulia Timofeeva, Teitl, RutiG. R. Cass Sunstein, a Kik Bart. Klink, van Stephen. Evera, Van haine,” la à l’incitation et Belgique la de Constitution “La Sébastien. Drooghenbroeck, van Especially Law, of Functions Communicative and Expressive “The Wibren. Burg, der van available 2002, April 2 on debates plenum Senate the in Speech Corneliu. Vadim-Tudor, terrorism,” Basque to response a itself,” Iran disassociates by consensus; Holocaustdenial “UN Assembly condemns as parties political Banning “Spain: Leslie. Turano, A Jurisprudence: Amendment First of shortcomings empirical “The Alexander. Tsesis, constitution,” Gayssot etla loi Troper, Michel.“La for Remedy Compensatory Non-Punitive, A Collision: in “Rights Diana. Meyers, Tietjens Anti- European on Reflections Crime: a Denial” “Holocaust “Making R. Peter Teachout, availableat Swiss CriminalCode, available at Constitution, Swiss Rassismus-Strafnorm,” die gegen Sturm zum bläst “SVP Proposal?,” Modest A Campus: on Speech Hate “Regulating Nadine. Strossen, 4 o 19) .1239-1255. 54, No.6(1999),p. Policy Germany,” and States United the in Regulations 1995), pp.203-243. Centre Law Review 31, 2008). 2008). 12_1.75908.html 16, 1993). Journal eadln vn ann n rue bj e arbeid de bij Willink, 1998). vrouwen en mannen van behandeling University Press,1997). http://ddp.unipi.it/dipartimento/seminari/brisbane/Brisbane-Belgio.pdf Law, Comparative of Academy International the of Congress XVIth the at presented Paper 31-59. Issues,” Moral to Regard with through http://www.un.org/apps/news/story.asp?NewsID=21355&Cr=holocaust&Cr1 International JournalofConstitutionalLaw Speech,” Hate of Power the on Perspective Historical Social Movements Abusive Speech,” Experience,” Constitutional U.S. of Perspective the from Laws Negationist March 31,2008). accessed March31,2008). 40 (2000),pp.729-786. , Vol.12,No.2(Spring,2003),pp.253-285. Transitional Justice , 2006, , Vol.1990,No.3(Jun.,1990),pp.484-573. http://cdep.ro/ e e as ybl Oe wteik cmuiai e d Wt gelijke Wet de en communicatie wettelijke Over symbol. als wet De eorc ad h Polm f re Speech Free of Problem the and Democracy Brisbane, , Vol.30(Spring,2006),pp.655-692. etutv Msae: o Ht Sec Pvs h Wy o Harmful for Way the Paves Speech Hate How Messages: Destructive ud t Mtos o Suet o Pltcl Science Political of Students for Methods to Guide available (lastaccessedMarch31,2008). January (New York: New York University Press, (NewYork:NewYorkUniversity 2002). Law and Philosophy Law (lastaccessedMarch31,2008). http://admin.ch/ch/d/sr/1/101.de.pdf (NewYork:OxfordUniversityPress,2000). http://admin.ch/ch/d/sr/3/311.0.de.pdf 14 at th Law and Philosophy and Law -20 http://www.nzz.ch/2006/11/16/il/newzzeukw4h74- th 26,

, Vol. 14, No. 2, Special Issue on Rights (May, (May, on Rights Issue 2, Special 14, No. , Vol. , Vol.1,No.4(Oct., 2003),pp.730-740. July, Annales. Histoire, Sciences Sociales Annales. Histoire,Sciences 2007, Journal of Transnational Law and Law Transnational of Journal Neue Zürcher Zeitung Zürcher Neue , Vol. 20, No. 1 (Jan., 2001), pp. 2001), (Jan., 1 No. 20, Vol. , Santa Clara Law Review Law Clara Santa Asedm WEJ Tjeenk W.E.J. (Amsterdam: 2002, Dtot Te re Press, Free The (Detroit: (last accessed March 31, March accessed (last (lastaccessedMarch available available Ihc: Cornell (Ithaca: ls accessed (last , November , ue Law Duke UN News

Vermont , Vol. , , Vol. (last 138 at at CEU eTD Collection hta, ae Q “Hmn int’ n uoe n te ntd tts Te Social The States: United the and Europe in Dignity’ “‘Human Q. James Whitman, Pierre. Vidal-Naquet, imra, on C. John Zimmerman, Nicolle Zeegers, Remedy,” Tort A Academy: the in Denial Holocaust and “Anti-Semitism J. Geri Yonover, X. v.FederalRepublicofGermany Nicholas. Wolfson, Witzschv v.Germany Communicative A Law? Really Law Soft Is “Why Klink, van Bart and J. Willem Witteveen, van Hanneke ed. in Laws,” Symphonic and Symbolic “Significant, J. Willem Witteveen, Law,” the and “Language L. Glanville Williams, Whitney v.California Liberty,” versus Dignity Privacy: of Cultures Western Two “The Q. James Whitman, Societies,” Three Respect: and Civility “Enforcing Q. James Amendment,” First Whitman, the and Evil of Banality “The Bradley. W. Wendel, Theory,” Post-Modernist and Denial Holocaust Bait: the Takes “Fish H. Richard Weisberg, Rassismusgesetzes,” des Revision zur “Vorschläge Jan. Robert Pelt, van onain” n d Gog Nolte, Georg ed. in Foundation,” Indiana UniversityPress,2002). Perspectives 71, p.179,293,and384. Yale LawJournal Journal Law andLiterature available York: ColumbiaUniversityPress,1992). (Lanham: UniversityPressofAmerica,2000). (New York:TheEdwinMellenPress,2005). Dickinson LawReview 1997). December 13,2005(bothrejected). Approach toLegislation,” Schooten, Cambridge UniversityPress,2005),pp.108-124. Review accessed March31,2008). , Vol.102(May2004),p.1413,alsocitingSunstein(1993),pp.1404-1422. , Vol.109,No.6(Apr.,2000),pp.1279-1398. t al. et Semiotics and Legislation: Jurisprudential, Institutional and Sociological and Institutional Jurisprudential, Legislation: and Semiotics at (DeborahCharlesPublications,1999),pp.27-70. ae peh Sx peh Fe Speech Free Speech, Sex Speech, Hate , Application no. 41448/98, April 20, 1999 and Application no.7485/03, 20, 1999and no.41448/98,April , Application , 274U.S.357(1927). The Case for Auschwitz: Evidence from the Irving Trial Irving the from Evidence Auschwitz: for Case The sasn o Mmr, sas n h Dna o te Holocaust the of Denial the on Essays Memory, of Assassins , oil n Smoi Efcs f eilto Udr h Rl o Law of Rule the Under Legislation of Effects Symbolic and Social , Vol.113,No.6(Apr.,2004), pp.1151-1221. http://www.nzz.ch/2007/05/24/il/articlef7i86_1.363527.html ooas Dna: eorpis Tsiois n Ideologies and Testimonies Demographics, Denial: Holocaust , Vol.14,No.1(Spring, 2002),pp. 131-141. , Vol.101,No.1(1996),pp.71-94. RegelMaat , Application no. 9235/81, July16, 1982(rejected). , Applicationno.9235/81,July16, uoen n U Constitutionalism US and European (1999),pp.126-140. Law Quarterly Review Quarterly Law ee üce Zeitung Zürcher Neue Wspr: ree Publishers, Praeger (Westport: , Vol. 61 (1945), p. (1945), 61 Vol. , My 4 2007, 24, May , (Bloomington: h Yl Law Yale The ihgn Law Michigan (Cambridge:

(New The (last 139