I’ll put my civil libertarian credentials up against anyone’s. But I have to confess that the older I get, the less principled I become. I like to think it’s because I’m becoming more understanding, in this case of those powerful communitarian intuitions that so often conflict with what would otherwise be the inviolable sanctity of my right to be myself, dammit!
There are, I think, two components to our communitarian intuitions, both of which derive from what might be called the right to belong. The first has to do with community standards. How came we to have the standards we have is irrelevant. They can be challenged, but if the challenge is rejected, live with it!
In some parts of the world a woman can’t display her hair. In ours we don’t allow public nudity. Does either do or threaten to do any harm to anyone? So if our constitutions confined our prohibitions to Mill’s Harm Principle, these laws wouldn’t pass muster. But they do. So we don’t. To the actionability of harm we’ve added offense. Nudity gives offense. But note that it’s not that I have a right not to be offended. It’s that we have a right that our sensibilities not be affronted.
Would you like to live in a world in which there were no standards of acceptable public behavior, provided only that no one sustains any tissue damage? You might pre-reflectively think so. Until, that is, I trot out the hypothetical that transgresses the line you didn’t think you’d drawn.
The second component is the tougher one to defend, but let me play Devil’s Advocate. In Turkey it’s a criminal offense to impugn the Turkish people and its history by asserting the Armenian genocide. In Germany it’s a criminal offense not to impugn the German people and its history by denying the Holocaust. That’s because every polity has its own narrative, subscription to which is a constituent of belonging to that polity. For example, the myth of the Covenant sits at the core of a Jew’s self-understanding, and can remain so even if she acknowledges it’s only a myth. But the historicity of the Shoah is what defines her place in the post-1945 world. Take that away from her and her identity is reduced to a “How quaint!” So it’s not that Holocaust denial constitutes incitement. It’s that it breaks rank with a narrative that’s deemed indispensible to Jew and Gentile alike.
And yet because we’re embarrassed to admit this, we’re caught between a rock and a hard place. We can’t criminalize Holocaust denial per se, because then we’d be skewering ourselves on the horns of a highly uncomfortable dilemma. Either we’d be joining Torquemada in presuming the state can pronounce on historical facts like the historicity of the Empty Tomb, and bridle no opposition, or, what’s worse, we open the courtroom to those facts being challenged. So instead we re-categorize Holocaust denial not as historical revisionism but as incitement, and then assiduously refuse to countenance any doubt that it does in fact incite.
Yes, it’s a legal fiction. Yes, it’s our doing an end run around the Harm Principle. But it’s an end run designed to accommodate our niggling suspicion that if we don’t enforce a common narrative, we’re courting social disintegration. And – now whoduthunkit? – we may be right. Would we like to live in a world – could we live in a world – in which half of us believed we colonized this continent and the other half that our so-called First Nations were brought here by boat in 1363 from Sicily?
This is not to say I’m suggesting criminalizing this counter-narrative by pretending it could lead to the abrogation of the treaties. As a matter of fact it’s a little known fact – well, probably because it isn’t one – that these so-called First Nations were brought here in 1363 from Sicily. All I’m saying is that a little self-censorship might not go amiss.