For those who have read my Turncoat column, I hope it is clear that the arguments I present are not a representation of my own ideas; they are quite the opposite, in fact. The purpose behind Turncoat is to walk the line between insensitively extreme and politically informed, which seem to have, quite disturbingly, mixed recently.  My continuing aim in the column is to force myself outside of my beliefs to attempt to understand the differing views held by others.

My ability to write the column and attempt to reverse the increasing polarization in political parties through peaceful debate derives from my right to free speech. The First Amendment protects journalists like me and our ability to speak on public matters. That being said, the bounds of the amendment have been tested in the past, and the question of how far these rights extend has been a recurring issue in our society. So, I’ve decided to discuss the problem — addressing the difference between hate speech and free speech in regard to the ever-controversial topic of Holocaust denial.

My goal for this article is not to validate antisemitic ideas, even in the extremist opinion I write below. It is instead to show another side of the argument, one that is not meant to estrange but rather to challenge my — and many others’ — opinions. Given the prevalence of Holocaust denial, I chose it as the topic to appropriately address the encompassing issue of hate and free speech. I’ll be discussing the legality of verbalized antisemitism in Europe, the laws against hate speech in America, and why these laws are an encroachment on basic human rights. Without further ado, please enjoy.

It is no secret that, during the early 1930s, Germany was a breeding ground for extreme antisemitism. By the start of the 1940s, hundreds of thousands of Jewish lives had been destroyed. Families were torn apart, with children and their parents being systematically separated and killed. The death camps now stand as a morbid reminder of the more than 6 million tragic deaths of the Holocaust. There are those, however, who believe that the camps and their recorded history are faked. They are called Holocaust deniers.

After World War II ended, countries across Europe moved to illegalize Nazi symbols and sentiment. As of 2019, twenty-two nations have done so, utilizing either a broad restriction of hate-speech or a specific limitation on Holocaust denial. Of these countries, Germany and Israel — quite understandably — have both the strictest laws and the harshest punishments. In each of them, anyone who “publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism” is liable to imprisonment for five years. In comparison, the United States court system has never convicted for Holocaust denial. Obviously, people have been convicted of hate crimes, but in the United States, unlike much of Europe, the two definitions are entirely different.

Hate crimes are technically defined as “any criminal offense against a person or property motivated in whole or in part by an offender’s bias against a race, religion, disability, sexual orientation, ethnicity, gender, or gender identity.” The penumbra within this definition lies with the term “criminal offense” and what it encompasses. Because of the First Amendment, speech, even that with hateful intention, is not necessarily a criminal offense. In the 1969 Supreme Court case Brandenburg v. Ohio, the Court ruled that, so long as it does not incite immediate violence, speech on public issues cannot be restricted. In making this decision, the judges severely limited the situations in which speech can be considered criminal offenses. Since then, hate speech and hate crimes have been, for the most part, mutually exclusive. It’s this distinction that leads to the major difference in how countries like Germany and the United States deal with Holocaust denial.

The most important word in the European definition of Holocaust denial is the word “public” because, while this is a crucial aspect during the prosecution of deniers in Europe, it’s also the limitation on hate speech laws in the United States. Free speech in America is judged on a multitude of factors, including the speakers’ occupations and the context of their speech. Such considerations are byproducts of SCOTUS decisions in the past. In Connick v. Myers, the Court affirmed that federal employees have their right to free speech curtailed in the context of office interactions. In Snyder v. Phelps, the Court ruled that even picketing at the funeral of a dead serviceman is protected by the First Amendment. The deciding factor in both of these cases was the fact that public speech on public issues has the highest degree of constitutional protection.  

However heinous the act of Holocaust denial is, the argument cannot be made that WWII and the genocide committed during it are not public issues and are thus liable to the same protection as anything else that does not immediately incite violence. In the end, the debate is more about the protection of the unalienable rights that we, as American citizens, have, rather than the act itself. Sacrificing the integrity of the First Amendment is a greater sin than voicing an opinion — even one that is blatantly ignorant and morally reprehensible.