No in Between?
More on free speech and the discussion with Norm, who has said more on the subject.
If the law does not prohibit people from doing something, then legally – and assuming no restraints created by voluntary contracts etc – they have the right to do that thing. It is what is sometimes called a ‘liberty right’, as opposed to a ‘claim right’…If (where) Holocaust denial is not a criminal offence, consequently, Irving and others have a liberty right to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated.
Sure. I’ve stipulated that more than once – though without knowing the term ‘liberty right’, which is useful. But on the other hand, that still leaves out what I’ve been wondering about, which is the fact that Irving did more than just write and publish that the Holocaust did not happen or that it has been exaggerated – he also falsified the evidence – and according to Richard Evans (who spent 18 months with two research assistants looking into the matter), he did so very extensively. I don’t even know if Irving in fact has a liberty right to do that or not, but I think and assume he does. I don’t think it is actually against the law to falsify evidence in scholarly or would-be scholarly books. But doing so can probably get one in trouble in certain legal contexts – a libel trial being one. (I think there are some relevant differences between US and UK law here – whether or not it’s libelous to express an opinion that someone is dishonest, wicked, an exploiter, a purveyor of unhealthy food…Let’s not get into that, or we’ll be here all month.) But either way – whether Irving has a liberty right to falsify evidence or not – I think the fact that that is what he did is a major part of the issue, and should be included in discussions of it.
One might concede, of course, that this is (wherever it is) the legal state of affairs, and go on to argue that it’s a morally bad one: the law should be changed. But as Ophelia herself has repeatedly said that she’s not arguing for criminalization, that can’t be her view.
Eh? It can’t? Yes it can, surely! That colon there – I dispute that colon. I dispute the colon between ‘it’s a morally bad one’ and ‘the law should be changed’. Because we don’t think everything that’s morally bad should be against the law. Do we? Have I missed the boat here? Have I been spending too long on planet OB and missing what the rest of the world thinks? I could have sworn it was common knowledge that there are lots of things that are morally bad that nevertheless should not be agin the law. Rudeness, meanness, selfishness, egotism, lack of consideration – we think those are morally bad but not police matters – don’t we?
If she thinks Holocaust-denial shouldn’t be a criminal offence, then it follows that, according to her, Holocaust deniers should have liberty rights to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated.
Sure. Again, I’ve said as much – saying ‘legal right’ for ‘liberty right’. In other words, I see that my agreeing (without much enthusiasm) that Holocaust-denial shouldn’t be a criminal offence forces me to agree that deniers should have rights, in the thinnest possible sense of rights, to write and to publish that the Holocaust did not happen or that it has been exaggerated. But, also again, what about rights to falsify the evidence? Are we including falsification of evidence in this liberty right? I don’t know. I’m not sure what I think about that. (I don’t think falsified evidence should be taught as genuine evidence in state schools, I can say that much.) But I think in order to discuss it we need to include it. We need to mention it.
In the next bit I think Norm misrepresents what I’m saying a little (not intentionally, of course). He quotes something I said but starts after the part where I talk about falsification, so that it looks as if I’m saying publishers should shut Irving up, full stop, when in fact I’m saying publishers should refuse to publish falsifications.
He says my attempt to talk about rights other than legal rights (or liberty rights) won’t do the job.
None of the points Ophelia makes by way of trying to establish some conceptual ground in between something’s being a criminal offence and its being a right succeed in doing so…But to disapprove of something, think it wrong, decline actively to protect it is perfectly compatible with still holding it to be a right.
A legal (or liberty) right, yes – but any kind of right? Is a legal right the only kind there is? Isn’t there a pretty common ordinary language usage in which a right is – pretty much whatever we think it is? For instance when we shout at each other ‘You have no right to talk to me that way!’ Or when we earnestly tell each other ‘My boss had no right to make me work Saturday on such short notice.’ Or when we darkly mutter that oil companies have no right to you know the rest. Come on, sure there is, I didn’t just make that up. People say things like that all the time. They don’t think they’re citing case law!
In a subsequent post, Ophelia brings forward in support of her argument that we hold the press and broadcast media to certain standards that restrain them from hate speech, abusive and foul language, and deliberate lying. I don’t think the example is to the point.
No, but it wasn’t meant to be to the same point; it was meant to be to a different point. That post was more relevant to the Motoons debate than the Irving debate. I’m just all over the map, that’s what I am.
We agree on the substance, Norm and I do, but there are some wrinkles in the language that need ironing out.
I’m not a lawyer, but it seems to me that fraud would be the appropriate charge for knowingly presenting evidence which the author knows is false. Is there a right to commit fraud?
I was struck, having just come across this article:
http://www.opendemocracy.net/debates/article.jsp?id=6&debateId=57&articleId=3339
that it overtly refers to an unyielding commentment to ‘free speech’ as a form of ‘fundamentalism’, which it is against…
As for the rest of the article, I can’t quite decide if it’s fairly insightful, or fatally woolly…
‘Commitment’, that is, though I suppose ‘commentment’ is all most of us blog-botherers ever come up with… ;-)
“As for the rest of the article, I can’t quite decide if it’s fairly insightful, or fatally woolly…”
Dave, my instinct is to distrust anyone who cites Freud as an authority. And Thompson seems to be striving officiously to be paradoxical, viz: “We are narcissistically fascinated with minor differences because, at root, we all desire to be the same. ”
I would suggest that a narcissist, insofar as s/he thought of others at all
would not want to be the same as others, but would rather desire others to be the same as him/her. A desire to be “the measure of all things”, rather than a desire to “fit in”.
I saw that open democracy article, and had exactly the same reaction. I was going to post it in News, and then when I read further decided I couldn’t separate the fairly insightful from the fatally woolly, so didn’t post after all.
The ‘reason’ he offers for treating ‘secular fundamentalisms’ as parallel to religious ones is a complete non sequitur.
“Is there a right to commit fraud?”
This seems to be what I’m asking. It seems to be quite a difficult question. It looks as if there is a sort of de facto ‘right’ to commit fraud unless someone hauls you into court for it.
You and me, OB, it’s that wavelength thing…
As for ‘rights to fraud’, everyone has the right to break the law, so long as they don’t mind paying the price for getting caught — there’s an ineluctable logic to that, in the absence of the ability to make windows into souls, and actually control behaviour directly. Likewise anyone has the right to disapprove of what people do… What no-one has the right to is to GET AWAY WITH what they do, if society has judged that it ought to be illegal [assuming for the moment a society with a reasonably liberal sense of what constitutes an actual crime…]
I think someone in the 60s expressed this concept in relation to civil disobedience — that it’s a perfectly legitimate, indeed honorable form of protest, as long as the protestors accept that they WILL be arrested and do time, etc…
Yes, but then again there is fraud and then there is fraud. Is there any statute under which someone could have charged Irving with fraud if he hadn’t charged Lipstadt with libel? In fact, Dave, you’re the ideal person to answer such a question, being a historian yerself. (Oi, Chris Williams, you could pitch in too.) There are all sorts of vocational consequences for scholarly fraud, but legal ones are more elusive…right?
“it seems to me that fraud would be the appropriate charge”
I’m not a lawyer, either. To the best of my knowledge, William Buckingham hasn’t yet been charged for perjury and Judge Jones was pretty clear about him having lied. Perjury is about people lying under oath, so that kind of leaves a great deal more lenience for people just lying without being under oath. In practice, I assume it will always be the legal people who end up drawing those lines. Someone saying “Sure, you can take the Bridge home with you just as soon as you pay me the money” will sound a lot like fraud to most of us. Can you get your money back every single time a product doesn’t do what you’ve been promised it will? With or without going to court about it? And if David Irving writes a book, is it then a product that makes the claim that it will correctly inform you about a certain subject? And if for years everyone thought that’s just what it did, till he sued someone for claiming it didn’t? And lost?
I had some involvement in one case involving a film which cleverly re-cut archive footage to create exchanges which absolutely never took place, but had everybody fooled. The State Attorney ended up saying it wasn’t in his jurisdiction, family members of people seen on screen intended to sue the filmmaker to insist that any public moneys used be returned, he threatened to sue for censorship (claiming there is no such thing as faking a movie) and an institute that had awarded the film a prize in the category of “Documentation” said it would investigate taking the prize back. As far as I know, no threats have yet turned into facts.
Beautifully apposite example, Stewart (in fact, come to think of it – so apposite that you made it up, right?! haw!). I think that’s how it is. It’s no one’s jurisdiction.
But I still think it would help if at least the discourse were clear about it. If people were explicit that what Irving has a right to do is lie and falsify; that that’s legal but far from ideal.
Just wondering before bedtime – hasn’t this debate really being going round in circles ever since James Fitzjames Stephen’s Liberty, Equality, Fraternity, Chapter II of which is devoted to free speech (On the liberty of thought and discussion)?
You’ll find Chapter II here. It’s lengthy and pretty hard going for the ‘instant gratification’ blogger, though.
JFS’s reasoning seems to be purely instrumental: if free speech is compatible with peace, law and order, permit it. If not, don’t. Blow the bastards away, if necessary.
JFS writes:
“I would appeal again to Indian experience. Suppose that some great religious reformer–say, for instance, some one claiming to be the Guru of the Sikhs, or the Imam in whose advent many Mahommedans devoutly believe–were to make his appearance in the Punjab or the North-West Provinces. Suppose that there was good reason to believe–and nothing is more probable–that whatever might be the preacher’s own personal intentions, his preaching was calculated to disturb the public peace and produce mutiny and rebellion: and suppose further (though the supposition is one which it is hardly possible to make even in imagination), that a British officer, instead of doing whatever might be necessary, or executing whatever orders he might receive, for the maintenance of British authority, were to consider whether he ought not to become a disciple of the Guru or Imam. What course would be taken towards him? He would be instantly dismissed with ignominy from the service which he would disgrace, and if he acted up to his convictions, and preferred his religion to his Queen and country, he would be hanged as a rebel and a traitor.”
In summary (squeamishly omitting the fate of the British officer):
1. The expression of opinion X is likely to lead to mayhem and mass slaughter.
2. Mayhem and mass slaughter are bad things.
3. Preventing the expression of opinion X is possible at a reasonable cost.
4. Hence, prevention of the expression of opinion X is a good thing — i.e. stuff free speech.
Question 1: Does anybody disagree with that?
Question 2: Is Irving’s Holocaust denial likely to lead to mayhem if not prevented?
Question 3: Is preaching of Islamism likely to lead to mayhem if not prevented?
Question 4: Can preaching of Islamism be prevented at reasonable cost?
Question 2: I don’t know the temper in Austria right now. Are there indeed sething under the surface large numbers of people ready to rise up because of a scholarly book written by a hack. If so, then yes. If not (which I am guessing is the case-hopefully) then no.
Question 3: You need to define “Islamism” more clearly. By Islamism do you mean seditious religious leaders calling outright for violence and overthrowing of the State? And, do these leaders have large followings eager to do their bidding? Or do you mean by “Islamism” the preaching of religious beliefs, no matter how regressive, that do not indeed call for the abolition of the European State in question? If the former, then all States, even the United States, have laws against sedition, which can be enforced. We in the United States cannot call for “death to President Bush” “Overthrow the United States government” etc. in any serious form.
Question 4 is a challenge: How do you prohibit the preaching of the (toxic form of) Islamism wholesale without police state monitoring of all religious groups? Does the State have to define “acceptable” religion? A true dilemna.
I intended my original question to be rhetorical. I disagree with those who feel one has a right to do whatever one can get away with. If one has a right to commit fraud, how can fraud be illegal? If one argues that there is a right to commit fraud as long as one is willing to accept the legal consequences, does that argument extend to a right to commit murder?
A basic element of the problem here is that there is no way to write laws regarding free speech which can cover every future situation. In the end we must depend on people thinking and deciding for themselves what to say, what to believe, and what to act on. Unfortunately, critical thinking is an increasingly endangered species.
Perhaps an appropriate punishment for a writer who has used evidence which he knows to be false is to pin a scarlet “L” on him. Then all writers – not scholars alone – would know that they are flirting with professional suicide when they present as true something which they know to be false.
“haw!”
I’m not sure whether that was in appreciation of something you think I really did make up, or recognition of the rather sad truth that I was exercising more tact than imagination.
Further to my thought about one of Irving’s books as a product that fails (deliberately) to deliver what it promises, and in recognition of the fact that even if lawyers have a say, so do market forces:
Supposing someone hadn’t waited for Irving to sue Lipstadt and publisher, but did the research of Evans and team and initiated that kind of fraudulent product claim against Irving and especially publisher. Who would need criminalisation if a publisher ended up having to shell out big bucks for having published a work with falsifications? The currently non-existent pressure to be accurate in any work not identifying itself as fiction would be a thing of the past.
Well, I think a lawyer rather than an historian would know more about statutes of fraud, but I do have an O-level in law…
Like any crime involving loss and gain, these things have to be proved beyond reasonable doubt, as does intent to commit the said crime, and in order for the authorities to prosecute it as a crime, it has to pass a public-interest test — i.e. is it worth the trouble/money?
Certainly one could make a theoretical case for someone having spent money on Irving’s book, having been enticed into believing they were acquiring thereby a new perspective on the Third Reich, only to discover at a later date that they had been sold a pack of lies… But OTOH, there would be a much greater case for prosecuting the authors of the Holy Blood and the Holy Grail, who sold their book as fact, but are now sueing Dan Brown for stealing ‘their’ ideas — the effrontery of it, how can you have copyright in an idea you claim *not* to have made up?!?
On the gripping hand, as fans of Larry Niven would say, the whole Dan Brown thing is as fine a case for mass public lobotomisation as I’ve ever seen… I wonder if sales of Foucault’s Pendulum have also followed his upwards? ;-)
Brian,
Thanks – yes, it is really a question of degree:
black zone (let’s murder Bush and blow away every neocon bastard we can find RIGHT NOW — sedition);
grey zone (let’s espouse Sharia law and pass an act making sodomy and gomorrhy a capital offence – many ‘devout’ Muslims presumably agree);
white zone (let’s ban the sale of pornography).
Or does any B&W reader really believe that preachers who call for the adoption of Sharia law should on principled grounds enjoy ‘freedom of speech’ in our societies?
‘Or does any B&W reader really believe that preachers who call for the adoption of Sharia law should on principled grounds enjoy ‘freedom of speech’ in our societies?’
Yes, I do. Why on earth should anyone – preacher or otherwise – be prevented for arguing their case. The recent call for Sharia law in Canada was covered extensively here and while no-one thought the concept other than iniquitous, I can’t recall any suggestion that the other side should be prevented from putting their argument. Although I may have missed some of the debate.
Should those who call for religious schools (a real and expanding ill) be prevented from speaking or publishing? Those who urge the re-criminalisation of homosexuality and abortion? those who want to see a return to the death penalty (a real and immediate danger to innocent life as recent history has vividly shown)?
Dumb and odious ideas all. How do I reach that conclusion? Because I’ve heard the arguments.
Incidentally, I recently discovered that sharia law is applied in Israel. Doesn’t make me feel better about it, but communalist legal systems exist in many countries and are generally patriarchal, regressive and riddled with outmoded beliefs, supersitions and traditions.
And on a purely practical note, how exactly would you go about preventing this advocacy?
Don writes:
And on a purely practical note, how exactly would you go about preventing this advocacy?
Nail on head, Don.
I really haven’t a clue at this writing.
Don, I think sums it up pretty good. I would rather, frankly, have these odious beliefs out in the open. Still, as OB has pointed out in other threads, sometimes this type of speech can veer into the “Black Zone.” A particularly fervent Iman riles up his followers (or, for instance, forges some cartoons which he blames on western “infidels) and then said followers engage in riotous violence. Is his right to free speech violated if we expel him from the country? I don’t think so.
Cathal: would you find it a moral problem if agents of El Presidente Loco (Hugo Chavez) assassinated Pat Robertson? Interesting.
Brian,
I suppose the easy answer would be that, as long as he is kept away from sharp implements, he doesn’t represent a real and immediate danger. In reality, of course, he has very real influence based on the votes he can deliver.
Serendipitously, many of the points I think we have both been trying to make have been expressed very succinctly by David T on Pickled Politics. I hope it isn’t some kind of breech of etiquette to paste;
‘It is pretty clear to me that there are two real forms of Islamophobia which need to be recognised. The first is anti-asian/arab racism. The second is an emerging form of conspiracism aimed at Muslims. Both of these need to be taken seriously, and fought hard.
Somewhere in the middle ground is a reactionary, bourgeois, religiously inspired politics which strikes me as no different in essence from Hindu, Jewish, or Christian chauvenistic movement. I wouldn’t regard, for example Erdogan’s politics as that different from the politics of the Christian conservative Right in the US.
And then, far to the right, is the politics of groups like the Muslim Brotherhood and Hizb ut Tahrir which is primarily theocratic and is fundamentally antagonistic to democracy: although the Muslim Brotherhood has a strategic and short-term commitment to democratic poitics.’
http://www.pickledpolitics.com/archives/359#15216
To clarify, I’m not attributing Islamo- or any other phobia to any one here, just suggesting that there is a need to make a clearer analysis.
Of course, when anyone uses a phrase like ‘reactionary, bourgeois’ unselfconsciously, you know they themselves have problems with reality. Not that I dispute the rest of his analysis directly.