“The Remedy to be Applied is More Speech”: Debunking Holocaust Denial

Introduction

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[1]

Freedom of speech is a fundamental aspect of American society and an important classical liberal ideal, but it is a right which is not always convenient, convivial, or comity-inducing. In fact, allowing the full flourishing of the freedom of expression and speech often includes permitting speech that much of society will find despicable, evil, offensive, or harmful. Unfortunately, there is a strong cultural – and outside of the United States, legal – movement to restrict speech freedoms and police the public discourse, sometimes with actual police officers.[2] This trend is only accelerating with the mass adoption of social media and Internet communications more broadly, as well as the perpetually searchable online past of nearly everyone in society. So-called ‘cancel culture’ is commonplace in certain circles of political and social activism, and virtually every potentially controversial opinion (and many that are not) is met with the metaphorical gnashing of teeth and rending of garments.[3] There are increasing levels of pushback against this trend, but the idea of ‘de-platforming’, stifling, or censoring speech which the vast majority of society considers beyond the pale – support for terrorism and blatant white supremacy, to give two examples – is quite popular, especially among younger people. According to a poll conducted by the Campaign for Free Speech, “61 percent of Americans agree that free speech should be restricted, and 51 percent believe that the First Amendment, ratified in 1791, should be rewritten to reflect the new cultural norms of today. Millennials feel a greater sense of negativity from free speech, with 57 percent agreeing that the First Amendment should be rewritten, and 54 percent believing that possible jail time would be an appropriate consequence for ‘hate speech.’”[4] Despite the strong American constitutional protections for free speech, as seen in the First Amendment quoted above, without a strong cultural presumption and acceptance of the values around free speech, the right itself can be chipped away.

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A Masterpiece of a Case

When there is a major advance in civil rights for a minority group that has been widely discriminated against, do people have the right to dissent with the new standard? Should individuals and businesses be treated the same with respect to the fundamental rights protected by our Constitution? Are artists, artisans, and other craftsmen exercising their free speech rights when they create custom works for paying clients in the normal course of business? Where does society draw the line when it comes to sincerely-held religious beliefs? And how, if at all, is racial discrimination different than discrimination based on sexual orientation? All of these critically important societal questions are deeply integrated in one of the most widely discussed and anticipated Supreme Court cases of this term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

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III. “The Only Remedy to be Applied is More Speech”

“If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

–   Justice Louis Brandeis, Whitney v. California


Before getting into the meat of this section, I have a simple question for you to consider: since the defeat of the Third Reich in 1945, has the United States or any American state ever been governed by a party or individual that has openly espoused fascist or Nazi ideology?Read More »

II. “Particularly Controversial or Unpopular Entities”

“It is easy to defend freedom of speech when the message is something many people find at least reasonable. But the defense of freedom of speech is most critical when the message is one most people find repulsive. That was true when the Nazis marched in Skokie. It remains true today.”

ACLU Statement, August 2000


Now that I’ve gone through a less-than-concise legal history of the First Amendment in the 20th Century, let’s talk about an organization that has made its own impact on the popular understanding of free speech and assembly in the United States: the American Civil Liberties Union, or ACLU. Read More »

I. “A Question of Proximity and Degree”

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

– The First Amendment to the US Constitution


The fundamental freedoms of speech, assembly, and association have been enshrined in our Constitution since the ratification of the Bill of Rights in 1791, and were expanded to include all Americans with the ratification of the Fourteenth Amendment and its key ‘equal protection’ clause in 1868. Since then, there have been many legal cases that have expanded upon or conversely, limited, the speech, assembly, and association rights recognized under the First Amendment.Read More »