Criminalizing Holocaust denial would draw a moral line in the sand, say two advocates for legal action, but a lawyer and Canadian-Israeli former member of the Knesset has reservations.
Michal Cotler-Wunsh, head of the Nefesh B’Nefesh Institute for Aliyah Policy and Strategy and a former Israeli parliamentarian, acknowledged free speech concerns but focused more on the need for evidence-based decision-making before criminalizing those who question historical facts around the Shoah. She also noted that the countries that have adopted criminal sanctions against those who spread historical fabrications – Germany and France, for example – are among the very places where antisemitism is at its worst.
Sacha Ghozlan, a French legal expert and former president of the Union des étudiants juifs de France (Union of French Jewish Students), dismissed free speech concerns and warned against confusing cause and correlation between antisemitism and legal proscriptions.
“I don’t think you can draw a line between rising antisemitism in its new forms and the fact that a country has developed legislation to address rising Holocaust denial,” Ghozlan said.
Dr. Carson Phillips, managing director of the Neuberger Holocaust Education Centre, in Toronto, generally agreed with Ghozlan. Holocaust denial and expressions of hatred should not be protected grounds based on free speech arguments, he said.
“I don’t see this so much as a freedom of speech,” he said. “This is really an abuse of speech.… Does the listener have to be exposed to hate speech and an abuse of free speech?”
He argued that “putting a fence around free speech” is legitimate in cases where historical revisionism can lead to expressions of hatred.
The three speakers were panelists in an event presented by the Centre for Israel and Jewish Affairs (CIJA) March 29, titled Perspectives on Criminalizing Holocaust Denial.
A private member’s bill introduced in Parliament by Saskatchewan Conservative MP Kevin Waugh would amend the Criminal Code section that prohibits inciting hatred “against an identifiable group” to include “communication of statements, other than in private conversation, that wilfully promote antisemitism by condoning, denying or downplaying the Holocaust.”
Phillips contextualized Holocaust denial as a threat to Canadian society.
“The Holocaust is often [viewed] as being one of the foundational cornerstones of modern human rights and an attack on the Holocaust is certainly an attack on Canadian values and Canadian democracy and it needs to be taken very seriously,” he said.
While he supports criminalization, he acknowledged that this is only a part of the solution.
“I am an educator,” he said, adding that education has to exist alongside legal prohibitions.
“To me, it’s not an either/or situation, it’s a combination,” he said. “I see this as really strengthening and working together.”
Legislating against Holocaust denial would send a societal message, Phillips argued.
“It’s really important to draw a moral line,” he said. “In Canada, where we are a pluralistic society with strong democratic values, I think this is one example of a way of being able to draw a moral line in the sand and being able to say there are certain abuses of free speech that will not be tolerated and for very good reasons because we know where this can lead – obviously, to the Holocaust. But also looking at it from the perspective that Holocaust denial is a form [of], and leads to, antisemitism but it is also an attack on democratic values, which we value so much within the Canadian context.”
Ghozlan said that social media companies have faced calls to pull down expressions of hatred and Holocaust denial, but have often demurred based on the free speech assurances of the U.S. Constitution.
“But it’s not freedom of speech, it’s fake news,” he said. Advocates need to “level up pressure on social media, explaining to them that Holocaust denial is not about freedom of speech but it’s about an abuse of freedom of speech,” he said.
Cotler-Wunsh, former Blue and White party member of the Knesset and Canadian-raised step-daughter of legal scholar and former Canadian justice minister Irwin Cotler, said she has always been a fighter against antisemitism. But she raised red flags around the issue of free expression and focused more narrowly on whether a prohibition on Holocaust denial would have the desired outcome.
“Does the criminalization of Holocaust denial in fact meet the goal of combating antisemitism?” she asked. Banning Holocaust denial – which is easily debunked – may simply be a feel-good act that is “low-hanging fruit” in the battle against anti-Jewish hate and might detract from the bigger responsibility to remain vigilant, contest mistruths in the marketplace of ideas and educate, rather than merely seek to silence, she said.
Canada already has fairly robust legal consequences for hate expressions and Cotler-Wunsh warned that new laws that are difficult to administer, or that sit on the books without being enforced, could have the opposite of the intended effect.
By example, she said, a recent controversy around the Holocaust represents a missed opportunity. After Whoopi Goldberg said on the TV show The View that the Holocaust “was not about race,” she was suspended from the show for a period.
“I would have argued, if anybody would have asked me, that that was a great, great missed opportunity,” said Cotler-Wunsh. It was “exactly the moment to educate the millions of viewers of that show and be able to utilize that opportunity to engage in what the Holocaust was about.”
Education, while slow, is the only answer, she contended.
“At the end of the day, education is the key and that is one of the hardest things to say because it actually is the longest process,” said Cotler-Wunsh. “There is no quick fix in education.”
Where compulsion should be exercised, she said, is on social media platforms, which she said should adopt and implement the International Holocaust Remembrance Alliance Working Definition of Antisemitism.
She worries that passing legislation against Holocaust denial might let elected officials off the hook. She imagines legislators thinking, “Oh we’ve done something. We confronted antisemitism, when in fact data and empirics may show that criminalizing Holocaust denial hasn’t actually made a dent in the rising antisemitism in Europe 30 years [after some countries criminalized it].”
Cotler-Wunsh, Ghozlan and Phillips were in discussion with Emmanuelle Amar, director of policy and research in CIJA’s Quebec office. The event was opened and closed by Jeff Rosenthal, co-chair of the national board of CIJA.