The right to deny

In the post on Holocaust denial in which I engaged with a line of thought expressed by Ophelia at Butterflies and Wheels, I misunderstood something. I took Ophelia, asking as she was whether Holocaust denial should count as protected free speech, to be raising as a possibility that David Irving-style falsehood ought to be a criminal offence, even though she'd said she didn't think Irving should be in prison. In two posts responding to mine, Ophelia has made it clear that this wasn't her point. Rather, she wanted to suggest a conceptual ground in between something's being a criminal offence and its being a right, such that it could be neither the one nor the other:

I'm not talking about criminalization so much as about right, and rights. I don't think Irving should be in prison, but do I therefore think he has a right to falsify history? No, I don't - at least not a moral right...
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So do people have a 'right' to falsify the evidence - by mistranslating, dropping a few zeroes from numbers, that sort of thing - in history books? I don't think they do.

I'm happy to accept the misunderstanding here as having been my mistake; but, on the other hand, this suggestion by Ophelia of some 'ground in between' is her mistake.

If the law does not prohibit people from doing something, then legally - and assuming no restraints created by voluntary contracts etc - they have the right to do that thing. It is what is sometimes called a 'liberty right', as opposed to a 'claim right'. No corresponding duty on anyone else is entailed by it (as with, say, a right to free medical care). No one is obliged to assist with or cooperate in anyone's exercise of a liberty right. But this does not alter the fact that they themselves may exercise it, with or without help or backing from others. Liberty rights are not unimportant. Think of the right of assembly: you and others can gather and organize in pursuit of political, cultural, sporting, ends. That no one who doesn't want to help you need do so doesn't detract from the existence or the value of this as a right.

If (where) Holocaust denial is not a criminal offence, consequently, Irving and others have a liberty right to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated. One might concede, of course, that this is (wherever it is) the legal state of affairs, and go on to argue that it's a morally bad one: the law should be changed. But as Ophelia herself has repeatedly said that she's not arguing for criminalization, that can't be her view. If she thinks Holocaust-denial shouldn't be a criminal offence, then it follows that, according to her, Holocaust deniers should have liberty rights to say, to write and to publish that the Holocaust did not happen or that it has been exaggerated.

None of the points Ophelia makes by way of trying to establish some conceptual ground in between something's being a criminal offence and its being a right succeed in doing so. In her first post, she writes:

I don't think Irving should be punished, but I do think he should be prevented, at least from publishing (by publishers rather than by cops). So in that sense, I don't think he does have a right to protected free speech. I don't think we're obliged to make any affirmative efforts to see that his falsifications get placed in the permanent record. I don't think he should be forcibly silenced, but I don't think he should be officiously handed a megaphone, either.

The example just muddies the water. No publisher has an obligation to publish Irving or anyone else; they have no duty to propagate Holocaust denial. So Irving has no claim rights against any publisher. All the same, where Holocaust denial is not illegal, he has a liberty right to put his work about if he has a publisher that will publish it. In the second post Ophelia writes:

[T]here's a whole mess of things, a whole choppy sea of them, that we disapprove of and think wrong and wouldn't dream of actively protecting, without therefore thinking they should be felonies.

But to disapprove of something, think it wrong, decline actively to protect it is perfectly compatible with still holding it to be a right. Bob and Helen have the right to get married, even if Gavin happens to think that their marriage will be a disaster; people may legitimately foregather to discuss ideas that you find hateful; denial of the Holocaust is, in this country now, a liberty right, and in my opinion it should remain one, even though it's a view and an activity that I abhor and will do all I legally can to oppose. And so forth.

Ophelia also says that, while free speech is 'one good' there are many others, among them 'truth, accuracy... reliable scholarship', and that rights to free speech are not 'unlimited or unconditional'. But few defenders of free speech deny either of these propositions, which are indeed dependent on free speech being - in its own right - both a good and a right.

In a subsequent post, Ophelia brings forward in support of her argument that we hold the press and broadcast media to certain standards that restrain them from hate speech, abusive and foul language, and deliberate lying. I don't think the example is to the point. That there are public standards of decency, morality and trust is undoubtedly the case, as is the fact that certain institutions are expected to meet certain standards - and often regulate themselves to do that - in light of what their purposes are. That is not material to the question of the rights people in general legally have over what they can say and publish about historical events, even falsely, and the rights one thinks they should have.

It's one thing or the other. If Holocaust denial should not be a crime, then the deniers will have a liberty right to deny the Holocaust. You won't be obliged to approve of them, much less to help them in disseminating their views. But they will have the protection of the law in doing that if others seek forcibly to prevent them. Or else Holocaust denial should be a crime.

[Amended at 3.45 PM.]