Banning Hate Speech Doesn't Protect Jews From Either Its Causes Nor Its Effects (Daled Amos)

On January 28, 2010 -- just one day after Holocaust Remembrance Day -- Udo Pastors made a speech, where he stated that "the so-called Holocaust is being used for political and commercial purposes" and condemned a "barrage of criticism and propagandistic lies" and "Auschwitz projections"

At the time, Pastors was a member of the Land Parliament of Mecklenburg-Western Pomerania, so his speech got some attention.

Enough attention so that in August 2012 a district court convicted him of violating the memory of the dead and of intentionally defaming the Jewish people.

In March 2013, he launched an appeal -- and it was dismissed.

Human Rights Without Frontiers summed up the ruling:

the court found that Mr Pastörs had used terms which amounted to denying the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich. The court stated he could not rely on his free speech rights in respect of Holocaust denial. Furthermore, he was no longer entitled to inviolability from prosecution as the Parliament had revoked it in February 2012.

But Mr. Pastors was nothing if not persistent.

Finally, on March 10, 2019 a decision was passed down by the European Court of Human Rights -- and it was unanimous on the issue of Mr. Pastor's free speech rights:

The Court found in particular that the applicant had intentionally stated untruths to defame Jews. Such statements could not attract the protection for freedom of speech offered by the Convention as they ran counter to the values of the Convention itself. [emphasis added]

The "Convention" being referred to is The European Convention of Human Rights, which upholds the right of freedom of expression -- but with restrictions:

ARTICLE 10

Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States
from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. [emphasis added]

Of course, Mr. Pastor's own rights had to be taken into account, which the court addressed in their conclusion:

Summing up, the Court held that Mr Pastörs had intentionally stated untruths in order to defame the Jews and the persecution that they had suffered. The interference with his rights also had to be examined in the context of the special moral responsibility of States which had experienced Nazi horrors to distance themselves from the mass atrocities.[emphasis added]

Here the court is apparently claiming that beyond the law, those countries that experienced "Nazi horrors" have a special "moral responsibility" to protect Jews from those who try to defame them with the Holocaust.

Logo of The European Court of Human Rights

This may be something new.

According to The European Court:

o  It is a fact that the Holocaust happened
o  To say otherwise is a lie
o  Holocaust Denial is against the law not only because it is a lie, but because it defames: it damages the reputation and character of Jews
o  Europe has a special obligation "to distance themselves from the mass atrocities"

But is this really such a breakthrough?
Is this ruling good news for the Jews of Europe who are facing a sharp increase in antisemitic attacks across Europe?

Probably not.

Not if Europe limits its recognition of antisemitism to the speech of right-wing extremists, while ignoring the actual attacks by others.

For example, there have been multiple cases in France of denying the Jew-hatred behind attacks on Jews:

o  In 2003, Sebastian Selam, was stabbed to death by a Muslim who said afterward: “Mother, I’m going to heaven. I killed a Jew!” The murderer, Adel Amastaibou, was found unfit to stand trial -- even though he had no previous history of mental illness.

o  In February 2006, Ilan Halimi was kidnapped and held for 3 weeks for ransom. He was tortured by his captors, led by a Muslim immigrant, and died from the injuries. French police initially dismissed the idea of antisemitism, even after one of the suspects confirmed it.

o  In 2015, a Muslim man, Farid Haddouche, was deemed unfit initially to stand trial for his stabbing attack of Jews in Marseille -- because of mental issues. He shouted about Allah during the attack. He had no history of mental illness. After protests by Jewish groups, Haddouche was sentenced to four years in jail.

o  Sarah Halimi, a Jewish physician, was murdered in Paris in 2017 by Kobili Traore, a Muslim. A review by an independent panel of psychiatrists determined that Traore was generally mentally competent, but because not on the night of the murder, because he consumed cannabis. The judge in the case went so far as to order a third psychiatric examination -- independent of the defense attorney. More recently, in February 2018, the investigator finally admitted in writing that the attack was antisemitic. But by May 2019, Traore was still being considered unfit for trial.

But even in Germany, recognition of antisemitism seems only to extend to speech --

In 2017, a German regional court ruled that the firebombing of a synagogue in 2014 was an act of criminal arson -- but not anti-Semitic: it was a protest against Israel by 3 Palestinian-born Germans who wanted to “call attention to the Gaza conflict.”

There appears to be a certain ease with which neo-nazis and fascists can be publicly condemned for their expressions of Jew-hatred, and that does not extend to Muslims.

This apparent effectiveness in censoring hate speech is itself deceptive, when attacks on Jews can be reinterpreted as protests against Israel.

Meanwhile, back in the US, a recent poll indicates that a growing number agree with The European Convention of Human Rights that free speech should be limited.

Just last week The Washington Free Beacon reported that according to a poll, a Majority of Americans Want First Amendment Rewritten:

Nearly 60 percent of Millennials—respondents between the ages of 21 and 38—agreed that the Constitution "goes too far in allowing hate speech in modern America" and should be rewritten, compared to 48 percent of Gen Xers and 47 percent of Baby Boomers. A majority of Millennials also supported laws that would make "hate speech" a crime—of those supporters, 54 percent said violators should face jail time.

Yet, over the past few years, we have seen the difficulty and unreliability of policing "hate speech." Just look at all of the stories about Facebook, YouTube and Twitter stepping over the line and targeting conservatives in particular, while confusing those who merely publish examples of hate with those who are actually disseminating it.

Even if the proposed decision would be made by a court, not everyone will be so obliging as Mr. Pastors. If the accusations of hate speech and racism tossed back and forth on Twitter are any indication, we are a long way from any kind of consensus of definition, and the whole idea may well be nothing more than an attempt to weaponize hate speech against political opponents.

And that is likely to leave Jews once again as defenseless in the US as they are in Europe.

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