Free Speech, David Irving, and Historians Against the War

by Liberty and Power

Historians Against the War (HAW) is a worthwhile organization. Membership is free and not limited to professional historians. L and P members and readers, if they are"historical-minded" scholars, teachers, or students of history, can join just by signing this online petition.

Even so, some of HAW’s stands on free speech and academic freedom have invited criticism. For example, while it has vigorously opposed David Horowitz’s Academic Bill of Rights, it has remained silent on the use of speech codes to undermine academic freedom.

For this reason, all friends of free speech can be encouraged by the recent HNN article by Jesse Lemisch. Lemisch is a professor of history emeritus at City University in New York and a leading member of the HAW. In this article, he strongly defends the free speech rights of David Irving and chastizes his fellow historians for failing to follow suit:

As a kind of a First Amendment absolutist, I have long been puzzled as to where I stand on restrictions on expression in Europe after the Holocaust, but I have thought, well, they have a special history, it's understandable. But now, seeing such restrictions take concrete form in imprisonment of a (bad) historian, I feel professionally obliged to oppose this, to see what other historians think about it, and whether they are willing to take a stand.

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Roderick T. Long - 2/27/2006

Here's the difference I see between libel/slander on the one hand and fraud on the other.

If I induce you to give me some good A by offering you B in exchange but I don't really give you B, then the condition on which you consented to transfer B to me has not been met, and so you have not voluntarily transferred B to me. Thus by holding on to B I'm holding on to stolen property. It's not my false statement but my obtaining your property without your (genuine) consent that's the legal problem here.

By contrast, if I just say false things about you and thereby cause people to think worse of you, well, your reputation isn't your property, it consists in other people's thoughts and you have no right over those, so I haven't violated your rights.

On a related topic: can I violate your rights just by saying something? Sure. If I say to a hitman, "I offer you a million dollars to kill so-and-so," or if I just say to one of my <strike>brainwashed</strike> loyal followers, "I order you to go kill so-and-so," I'm thereby entering in to the agency of the killer and so should be legally accountable. But if I just say "in my opinion so-and-so ought to be killed" then although I might thereby influence someone to kill you, I'm not actually participating in their agency and so shouldn't be legally accountable. (Of course the boundary between the two will be fuzzy sometimes. That's what courts are for.)

On a less related topic: what's the source of the Lao-tzu quote "The beginning of wisdom lies in drawing proper distinctions"? I ask because it sounds more like Confucius than like Lao-tzu; Lao-tzu by contrast seems to hold that all distinctions are artificial and should be transcended -- names and distinctions are what break up the "primordial unity."

Craig J. Bolton - 2/24/2006

3. No. I am against libel laws. If someone is a creep and liar, the best solution is to denounce and expose him.
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Well, that explains some of the difference in our positions. What would you say about oral fraud? Is that protected by "free speech" or is it actionable?

David T. Beito - 2/24/2006

1. Probably.....but I'm not sure what you are driving at. In some ways, the established legal defintion can be too broad, especially in those cases where laws and court rulings use "free speech" as a pretext to limit property rights.

2. Not at all. It should exonerate you in the sense of giving you protection from legal coercion. I doubt that anyone can argue that Irving, who was discredited long before this case, was ever "exonerated" in the sense of gaining greater credibility for his crackpot theories. 3. No. I am against libel laws. If someone is a creep and liar, the best solution is to denounce and expose him.

Craig J. Bolton - 2/24/2006

Since this controversy and the previous one seem to turn around the concept of "free speech," and not merely about the prudence of a particular law, I wonder if David would favor us with his definition of that term?

As far as I can make out we've so far determined that (1) the established legal definition is way "too narrow," (2) that "free speech" should exonerate one from the conseqences of what one says, as well as one merely being free to say what one wants without prior restraint and then take the consequences, (3) that "free speech" extends to at least some sorts of lies [or it all lies?] as well as to speaking unpleasant truths. So, ah, is there any speech that should be excluded from "free speech?" If so, what?

"The beginning of wisdom lies in drawing proper distinctions."

Lao Tze