When it comes to freedom of expression, some liberal democracies are more liberal than others. The idea that hurt feelings and similar social harms can trump the right of free speech is actually fairly prevalent.
For example, the Swiss Criminal Code contains article 261, which states in part:
Any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity . . . or any person who on any of these grounds denies, trivializes or seeks justification for genocide or other crimes against humanity . . .
is liable to a custodial sentence not exceeding three years or to a monetary penalty.
Thus, genocide denial, or sometimes more specifically denial of the Shoa (the Jewish Holocaust at the hands of the Nazis and their collaborators) is illegal in many European countries, including Austria, Belgium, Bosnia, the Czech Republic, Germany, Hungary, Lithuania, Poland, Romania, and of course Switzerland. These laws are often part of larger prohibitions against defaming, offending or inciting hatred against racial, religious or ethnic groups.
No doubt this has had the desired effect of tamping down on neo-Nazis—Europe remains exquisitely aware of the devastation of World War II, and determined that Europe not see that sort of homicidal racism again (aside from Europe’s utter failure to deter or stop the mass murder, torture, rape and “ethnic cleansing” of the early 1990s Bosnia War).
But the criminalizing of ideas comes at the cost of discouraging debate of public issues, silencing opponents and pushing them underground instead of persuading them, and suggesting to fair-minded observers that the law’s brute strength is needed because the deniers may have the better side of the argument.
Enter Doğu Perniçek, the leader of Turkey’s Workers Party. Perniçek gave a series of lectures in Switzerland in which he asserted that the Armenian Genocide is an “international lie.” In 2007 Swiss authorities prosecuted and convicted him of violating Article 261. After exhausting his appeals in the Swiss judicial system, Perniçek turned to the European Court of Human Rights (ECHR).
This month the ECHR held that applying Article 261 to Perniçek’s genocide denial violated his right of free expression under Article 10 of the European Convention on Human Rights, which states in part:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
Unfortunately, the decision of the ECHR is not simply grounded in the notion that making genocide denial a “thought crime” is unacceptable. Instead, it asserted that there are legitimate arguments about the facts of the Armenian Genocide—unlike the Holocaust, the historicity of which is, supposedly, completely settled to the satisfaction of every reasonable person.
Reactions were predictable. Turkey lauded the decision, dead to the irony that in Turkey not denying the Armenian Genocide may lead to criminal prosecution under Article 301 of the Turkish Criminal Code. On the other hand, an Armenian newspaper in California demanded that Switzerland appeal the ECHR decision. The publisher, Harut Sassounian, pointed out: “Punishing Holocaust denial, while condoning rejection of the Armenian Genocide, is an unacceptable double standard. Either denial of both genocides should be outlawed or neither.”
He’s right, not merely because it involves a double standard, but because believing and expressing an unpopular, controversial, vile or false idea should not be treated as a crime.
The ECHR decision in the Perniçek case gives some hope that European laws against genocide denial, and even laws against offending people, will disappear, and Europe’s free speech laws will become genuinely liberal.