A few loyal blog readers are triggering a debate regarding my last entry on the sentencing of the noxious and toxic Bishop Richard Williamson, now convicted for uttering Holocaust denial in Germany – something that would be legal in the United States. (“An Evil Bishop” http://blogs.jewishtimes.com/index.php/jewishtimes/neilrubin/hes_an_evil_bishop/) 

The question: Isn’t the conviction a violation of freedom of speech? As evil as his words were – no Jews were burned in Nazi ovens and no more than 300,000 Jews were murdered by the Nazis—isn’t his right to expound such mental midgetry something we Jews and Americans should protect and even cherish? After all, we’ve always been told that when free speech is squashed, democracy itself is endangered, and that’s never good for minorities.

The easy answer, and the very Jewish one, is “yes, but…” That is, yes this is a violation of freedom of speech. But one argument that I make with a very thoughtful friend who raised the issue is that context is everything.

For example, according to the famous 1919 case Schenk v. United States, the courts here ruled that one does not have the right to enter a crowded theater and shout “fire”. However, one can scream “fire” as much as he or she wants out on the streets (and likely look like an idiot with no consequence other than what other people will think about you).

Similarly, one cannot deny the Holocaust in Germany – or even sell Nazi paraphernalia – because of the context of venue. That’s because we know where such actions could (and did) lead. One, however, can sell Nazi items all over the United States (been to a flea market lately?) because a massive, extended genocidal campaign did not turn an entire society (and continent) into those who abetted humanity’s most documented crime, or at a minimum were passive bystanders. (A few heroes aside, the Shoah was a massive failure of everyone at every level.)

The interesting question is how such laws will hold up in Germany the coming decades. When the great-grandchildren of former Nazis and Holocaust survivors rise to positions of power in 20-30 years, will they seek to change it as something now outdated?

(Please share your thoughts to this ethical dilemma. If reading this via e-mail, click this web version and go to “comments” at the end. http://blogs.jewishtimes.com/index.php/jewishtimes/neilrubin/screaming_for_nazis/ . Otherwise, click on “comments.”)

I was one of the people commenting on Neil’s Facebook link to the column that German law, and as Steve notes, the laws of many other developed nations, puts limits on free speech. Unlike the U.S. “clear and present danger” test, these laws restrict political speech that would not reasonably be thought to pose such a danger. You can’t, for instance, spray-paint a swastika on a wall, even if you own that wall. My objection to such laws is the same as my objection to cross-burning laws. If you have something to say, and you’re not hurting anyone, I don’t trust the government to decide what is or isn’t acceptable political discourse. One could envision a law against people uttering “Jesus,” unless they were praying. Californians could pass a referendum prohibiting people from speaking Spanish (not likely, I know, but there was a time that could have happened). As for truly harmful behavior, there are other laws to control that, such as not lighting fires on others’ property (cross burning) or inciting riots or harassing or intimidating people.

Daer Stuart: Thanks so much for your always interesting comments. FYI: I happen to also post on Facebook, Twitter, Diggit, a few other places and get numerous personal e-mails on what I write. I"d be happy to have you follow me there as well.

I also am pleased that I have more people subscribing to my blog via feedburner (direct e-mail) than any other blog on our site. 

As always, may you have a joyous Shabbat.

I’m not sure I understand why readers of your column are concerned about the alleged “freedom of speech” issues implicated by his conviction.  Freedom of speech is an American Constitutional right, not a German one.  Other countries (most, in fact) don’t have an analogous legal right.

Neil Rubin writes:

“A few loyal blog readers are triggering a debate regarding my last entry on the sentencing of the noxious and toxic Bishop Richard Williamson…”

One wonders where this debate is taking place. Presumably, your “loyal blog readers” would comment on your blog page itself. Of course, reader comments are a rare thing on The Jewish Times’s blog pages.

So, the question is: WHERE is this so-called debate taking place?