Lying as speech

When David Irving was sentenced to a prison term for Holocaust denial I stated the view that he shouldn't have been. I stated it without much argument, appealing simply to standard free speech principles. Here I want to defend that view by considering the two main ways of challenging it I've come across in the discussion that has been going on since Irving was jailed.

These are, in short: (a) to question whether free speech protections should be invoked to apply to blatant falsification of historical evidence; and (b) to suggest that Holocaust denial amounts to incitement, threatening both democracy and lives.

(a) The first of these two lines of thought can be found in some of Ophelia's posts at Butterflies and Wheels. To be clear, Ophelia doesn't say that Irving should have been jailed; she's explicit that that isn't what she's saying. But she questions whether rights of free speech should be taken as covering outright and deliberate falsehood:

[I]t's not just his opinion that Irving gives, it's also his falsifications... It does seem to me that the right to give an opinion is different from the right to tell factual lies. I'm not a bit convinced that there is such a thing as a right to tell factual lies.

Again:

Irving doesn't just have an opinion or a belief about the Holocaust, he also falsified the evidence. Should falsification of evidence be protected free speech?

Now, even though Ophelia puts the point interrogatively and not as a conclusion, one can only assume she does so to leave open the possibility that falsehood, lying and such shouldn't be protected under norms of free speech, and therefore may in certain circumstances be criminalized. There are two points I want to make about this.

(a1) It seems to me that the 'in certain circumstances' clause here will have the effect of pitching this first line of thought, (a), into the second one, (b). I cannot imagine there would be an argument for innocuous falsehoods, even where these are deliberate, to be criminalized. Surely people must still be allowed to maintain that the world is flat (whether knowing this to be false or not), to claim - at Hyde Park Corner - Napoleon as a direct blood ancestor when he is not, and to assert that the Romans had mobile phones though no trace of these has survived. The examples may be frivolous, but the point isn't; it's that what matters in the present context is not any old false or lying claims for which there is no evidence, but falsehoods which could do grave harm. I don't know whether Ophelia would go along with this, but in one of her posts she says, 'denying a genocide that did happen is a kind of threat to the survivors'. And there's also this:

Irving is a real test. It's just too easy and way too comfortable to say airily that the way to deal with Irving is with facts to counter his lies, and that that will make everything all right. Maybe it will, but at least in some places and with some people, maybe it won't.

I do think this consideration works to pitch (a) into (b) - which I'll get to.

(a2) My principal worry with the first line of thought is, in any case, this - it's a political and not a philosophical worry. Like a Ophelia, I think that truth matters. Not everything is about competing beliefs; there are matters of fact, objective scientific and historical truths, and so forth (though our knowledge, even here, is always provisional, subject to revision and correction). As Andre Glucksmann has lately written, insisting on 'the distinction between fact and belief':

[T]here is no common measure between negating known facts and criticising any one of the beliefs which every European has the right to practice.

Yet, if rights of free speech on scientific, historical and other such matters are not to be held to cover the assertion - even deliberate - of untruths, then it assigns the task of determining truth to some political authority, and that is surely a danger of its own kind. There is truth and untruth, to be sure, but in the domain we are discussing, the (always provisional) finding of truth is left to processes of free enquiry, the standards set by communities of scholars, public debate and criticism. It is an open-ended and democratic search, and it countenances opposition to and denial even of the most established results. Stipulation of the truth by a political or legal authority does not fit in well with this and it has a bad historical track record.

(b) Unless, that is, one can show that the propagation of some particular view is directly, urgently, menacing enough that it puts lives in peril. This is the argument made by Brownie in a comment to a post at Harry's Place. He writes:

The reason there is Holocaust denial legislation in Austria is, in the main, to prevent the rehabilitation of Nazism. I think a decent argument could be made that anything that facilitates this rehabilitation - like, for example, being allowed to deny the Holocaust, as if it were something about which intelligent people could disagree - could very well [']result in a significant threat to the physical safety or liberty of living human beings'. Especially those living in Austria.
.....
There is no qualitative test that can prove speech leads to violence. None. And even if there were, speech, even hate speech, is still not, of itself, violent. However obscene, hate speech remains words, mere utterances. Anybody who agrees, like me, that incitement law is merited, is implicitly accepting that the freedom of speech principle can be justifiably qualified. It therefore follows that those of us sharing this view i.e. the great majority, must also agree that there is no principle at stake here at all; it's merely a question of where each of us draws the line.

(b1) To my eye, Brownie moves too fast here. First, 'a decent argument could be made' isn't good enough. If rights of free speech are to have any substance, then the argument has actually to be made. Perhaps Holocaust denial did once threaten a resurgence of Nazism in Austria and Germany, newly-emergent democratic structures, and people's lives. Does it still? I don't claim sufficient knowledge of either country to offer a confident answer, but without the actual argument I'm sceptical.

(b2) Second, on incitement, Brownie says 'it's merely a question of where each of us draws the line'. It surely isn't; or free speech principles would be worthless. Urging a crowd to lynch someone is, legally, incitement. Saying that one prefers not to keep company with certain kinds of people [fill in, as you will] isn't incitement. In Europe today, Holocaust denial, morally and politically foul as it is, is not evidently a danger to democracy or a direct threat to Jewish lives. If it is this, the case needs actually to be made that it is. Otherwise, you could just call 'incitement' for any form of historical falsehood that is prejudicial towards someone's interests, and the category would then have become too accommodating to be useful.