The Harm of Holocaust Denial v the Freedom of Expression: Hate Speech, the Legal Response and the Search for a Universal Solution to a Universal Problem

Abstract

The paper starts with a discussion of Holocaust denial in general. This includes an analysis of what falls under Holocaust denial, where the particular harm of such allegations lies and who the main advocates of Holocaust denial are. The paper then places Holocaust denial in the context of the freedom of expression and the hate speech concept and concludes that it carries despite its harmful content, factual nature and falsity a certain free speech value. Then the legal response of the United States, Germany and New Zealand to hate speech and Holocaust denial in particular are discussed. The paper concludes that with regard to the First Amendment and Supreme Court jurisprudence the punishment of Holocaust denial seems to be impossible in the United States while the strict German and more broad New Zealand hate speech laws allow a prohibition of Holocaust denial that is consistent with the freedom of expression. Finally, it is ascertained that hate speech laws are generally an effective tool to combat Holocaust denial. Whether the introduction of such laws is possible or how they should be designed, however, depends largely on the legal culture and history of a country.