Norm wrote a post a few days ago on lying as speech, taking off partly from some of my posts on Irving. I’ve been wanting to consider the subject a little more.

I think we may be talking about slightly (or perhaps not so slightly) different things.

Now, even though Ophelia puts the point interrogatively and not as a conclusion, one can only assume she does so to leave open the possibility that falsehood, lying and such shouldn’t be protected under norms of free speech, and therefore may in certain circumstances be criminalized.

Hmm. No, it’s not really criminalization that I’m talking about. I don’t think Irving should be in prison, but I’m not sure I therefore think his falsehoods should be protected. I’m not talking about criminalization so much as about right, and rights. I don’t think Irving should be in prison, but do I therefore think he has a right to falsify history? No, I don’t – at least not a moral right, and that’s part of what I’m saying – that the fact that falsification of history should not (on the whole – there could be exceptions) be an imprisonable offence does not necessarily mean that it’s a right in all possible senses. Is that incoherent? I don’t think so. Look at the Dover school board – they found via Judge Jones’s decision that they don’t have a right to force science teachers to teach religion in the classroom, but they didn’t go to prison.

I cannot imagine there would be an argument for innocuous falsehoods, even where these are deliberate, to be criminalized. Surely people must still be allowed to maintain that the world is flat (whether knowing this to be false or not), to claim – at Hyde Park Corner – Napoleon as a direct blood ancestor when he is not, and to assert that the Romans had mobile phones though no trace of these has survived. The examples may be frivolous, but the point isn’t; it’s that what matters in the present context is not any old false or lying claims for which there is no evidence, but falsehoods which could do grave harm.

Why Hyde Park Corner, I wonder? Why the stipulation, between hyphens, as an afterthought, of Hyde Park Corner? It’s interesting, because I agree with Norm if he really does mean ‘at Hyde Park Corner’ and not in textbooks or history books by reputable (trusted) publishers. But if he means ‘at Hyde Park Corner’ and in textbooks and history books by reputable (trusted) publishers, then I don’t. But he probably doesn’t mean that, or he wouldn’t have stipulated Hyde Park Corner. But this is just where the difficulty (or one of them) comes in. The park soapbox doesn’t matter much, because it’s wide open (like the internet), there are no filters, anyone can stand on a chair and say any old fool thing, and most hearers know that. But in textbooks and history books (for instance) readers don’t know that. So do people have a ‘right’ to falsify the evidence – by mistranslating, dropping a few zeroes from numbers, that sort of thing – in history books? I don’t think they do. And, actually, I’m not sure anyone thinks they do. It’s not usually considered a violation of rights when copyeditors and fact checkers and researchers correct mistakes in manuscripts is it? (Assuming they actually do correct mistakes as opposed to inserting mistakes of their own, which can happen, she said through gritted teeth.) And then consider science. Scientists tend to be really quite harsh about falsification of evidence. Really very sharp indeed, when it comes to their attention. They don’t think their colleagues have a right to fake their experiments, do they? No. In fact fakery is a firing offense, even though not (usually) one that gets you sent to prison.

So – given that Irving was found by the judge at the libel trial to have not merely got things wrong but to have faked the evidence – it’s not clear to me that he does really have a meaningful ‘right’ to do that, even though a prison sentence is probably the wrong way to deal with the matter.

Yet, if rights of free speech on scientific, historical and other such matters are not to be held to cover the assertion – even deliberate – of untruths, then it assigns the task of determining truth to some political authority, and that is surely a danger of its own kind. There is truth and untruth, to be sure, but in the domain we are discussing, the (always provisional) finding of truth is left to processes of free enquiry, the standards set by communities of scholars, public debate and criticism. It is an open-ended and democratic search, and it countenances opposition to and denial even of the most established results. Stipulation of the truth by a political or legal authority does not fit in well with this and it has a bad historical track record.

Yes, ideally, but what about for instance public hearings about textbooks, at which religious campaigners attempt to insert ‘corrections’ that have no scholarly basis? It is in fact a political authority that makes the decision. The issue of falsifications and inaccuracies in books becomes a matter of political or legal authority when state schools are involved – that seems to be inevitable.

Perhaps the relevant distinction is between prevention and punishment. I don’t think Irving should be punished, but I do think he should be prevented, at least from publishing (by publishers rather than by cops). So in that sense, I don’t think he does have a right to protected free speech. I don’t think we’re obliged to make any affirmative efforts to see that his falsifications get placed in the permanent record. I don’t think he should be forcibly silenced, but I don’t think he should be officiously handed a megaphone, either.