Historical Facts and Freedom of Expression

A diplomatic crisis of sorts has erupted between Turkey and France over the latter's decision to proscribe criminal sanctions for the rejection or denial of genocide. The new French law, which has been passed through the assembly but not the Senate (as yet) imposes a potential €45,000 fine and/or 1 year imprisonment. The reason why Turkey is so furious is because Turkey rejects that the events that occurred way back in 1915, concerning the massacre of Armenians by the then Ottoman Empire in the Great War, are to be construed as 'genocide'. The Turkish prime minister argues that this is nothing but an electoral ploy by the French president to get the French-Armenian minority vote. 

These restrictions on freedom of speech which are not clear-cut, such as incitement to hatred and violence, are bound to open a can of worms both politically and especially legally. A similar example of dodgy restrictions are those concerning public morals - and rightfully so - because vague concepts such as 'morality' are relative: they change in time and space. 

All free-speech theorists agree that certain forms of speech can lead to some harm and justifications on restrictions in this sense are not controversial, even in a utopian liberal democracy. Yet there is also cause for disagreement on what constitutes 'harm'. Take the case of blasphemy for example. The debate rages on to this very day on whether blasphemy should be censored by the State merely for offending religious sentiment or whether the state should only 'penalise expressions about religious matters which intentionally and severely disturb public order and call for public violence'. (Recommendation 1805(2007) on Blasphemy, religious insults and hate speech against persons on grounds of their religion, the Parliamentary Assembly of the Council of Europe). 

Back to the matter at hand. What harm does revisionist speech (aka 'negationism') cause to a democratic community? The strongest argument against such a form of expression is one based on public order, namely that '[t]he denial or rewriting of...historical fact undermines the values on which the fight against racism and anti-Semitism are based and constitutes a serious threat to public order'. Consequently, such speech is seen as 'incompatible with democracy and human rights because they infringe the rights of others' (Garaudy v France - European Court of Human Rights - 2003-IX DA). Yet the reasoning quoted emerged from a case concerning an outright denial of the Holocaust and was buttressed by a 'proven racist aim'.  

Nonetheless, I fail to see the harm that could possibly emerge from debating, perhaps even denying specific historical events. On the contrary, such punitive laws are only bound to open up legal black-holes. Firstly this would give rise to a situation where the courts have to assess history: something which they are not set up to do, for the task of the court, ultimately, is to dispense justice. [A similar controversy arises when the courts would have to assess the nebulous concept of 'morality']. Can the judge have a final say on what constitutes 'clearly established historical fact'; and how far should this discretion go? Should it also judge upon speculative debate regarding the denomination of the crime (i.e. on whether it constitutes genocide, crimes against humanity, etc)? In Chauvy v France (2004) the ECtHR rightfully argued that:

 '...it is an integral part of freedom of expression to seek historical truth and it is not the Court's role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation'. 

Legal perplexities aside, the political ramifications of such criminal sanctions are also a cause for concern. Driving such discourse underground would only make things worse - providing the unnecessary impetus for extremist ideologues to become more extreme. One of the main purposes of freedom of speech is to do away with state paternalism on issues such as morality and, in this case, what it considers to be historical fact or otherwise. Indeed, the Franco-Turkish diplomatic row is proof of this although I commend Sarkozy's statement that "France does not give lessons to anyone...". 

My conclusion is that this bill was a highly unnecessary and disproportionate measure to curtail certain revisionist speech. Its ramifications on freedom of expression, should it go through, are yet to be determined by the European Court. Rather than proscribe a general criminal sanction on the denial of genocide I would argue that it would be more reasonable to assess, on a case-by-case basis, whether such revisionist speech is maliciously intended to cause racial prejudice or hatred. Otherwise, it would be conferring upon the state authorities a discretion that is arbitrary and wholly uncalled for.  

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