BY ADINA LEVINE
Dr. Robert Kahn presented a lecture entitled “Holocaust Denial and the Law: A Comparative Survey” sponsored by JLSA on March 10th, 2005. Dr. Kahn has written extensively on the topic of Holocaust denial and recently published a book on the topic in which he analyzed how courts in different countries have attempted to reconcile the tension between legal fairness and protecting the Holocaust from its denier.
“What I discovered in writing this [book], is that the law basically has two aspects to it,” commented Kahn. “Law is a professional-oriented system with a set of professional norms that judges try to follow, which could often lead to rulings that would seem to favor the deniers even though they don’t really. The second aspect is law as the voice of the community. You see this in all sorts of ordinary cases involving rapists or drugs or child molesters and you see it in holocaust deniers, in that judges feel there is really only one thing you should say about holocaust deniers: that they are guilty, that they are an offense to the community.”
Dr. Kahn holds a Ph.D. from Johns Hopkins and a J.D. from NYU. Dr. Kahn is currently an Instructor of Law at Brooklyn Law School.
“When I found out that actually there were holocaust denial prosecutions in France and Germany, it was something I had never thought about before,” Kahn explained about how he chose the topic for his thesis. “It surprised me on many different levels: as a Jew, as a lawyer, and as a student of comparative law.”
As a Jew, Kahn found Holocaust deniers surprising because he grew up in “the golden age of toleration” where anti-Semitism was heard of, but not a reality in his life. Recollecting that anti-Semitism “all seemed very abstract,” Kahn learned about holocaust deniers through a Saturday Night Live skit and embraced the idea that seemed to him shared by American society, that holocaust deniers were all “kooks.”
“But when you read about holocaust deniers in France or Germany, it’s very different,” commented Kahn. “There you have advanced industrial states that 60 or 70 years ago were ruled – in Germany with a Fascist government, and in France, a government that collaborated with it. The way people think about holocaust deniers in France or Germany is the way people think about the Klan in the south. There’s a real concern about the past coming back to haunt them.”
As a lawyer, Kahn was surprised about holocaust denial prosecutions because of its conflict with Free Speech.
“I thought how can you do this? Don’t Holocaust Deniers have the right to free speech?” questioned Kahn.
Indeed, Kahn noted that the American commitment to free speech has made holocaust denial prosecutions ultimately taboo.
“The conversations that you have in France, or Germany, or Canada are structured differently than here in that free speech just doesn’t enter into play,” asserted Kahn. “Where you have free speech absolutism or near absolutism in the United States, it comes at a cost. For example, that it is much more difficult to get radio stations or television shows to exclude ads from Holocaust deniers.”
Kahn noted that many editors of student-run newspapers feel that they have to run holocaust denier ads because of free speech rights, although Kahn observed that the Harvard Crimson did not run one holocaust denier ad, instead printing a brief editorial explaining why they were not going to run the ad. Student newspapers at Michigan and Ohio State did run the ad.
“Part of what motivated the students is a belief, mistaken or not, in the first amendment,” explained Kahn. “This belief is a reflection of the overall attitude of the first amendment in the country. This is typified by people like Alan Dershowitz, Deborah Lipstadt who are against holocaust deniers but unwilling to prosecute them.”
A second legal concern that Kahn raised is the uncertainty of the trial process.
“In the OJ Simpson case, there was a lot of evidence that the prosecution put out there and the result was acquittal,” Kahn said. “If you put a Holocaust denier on trial, aren’t you taking an incredible risk?”
Finally, Kahn found holocaust denial prosecutions specifically interesting as a student of comparative law. He examined the difference between civil law and common law countries and its relationship to holocaust denial prosecutions.
“The decentralized nature of the common law legal system makes it much more difficult to prosecute holocaust deniers as a practical matter,” commented Kahn.
Holocaust denial prosecutions in common law systems such as Canada become “a complete mess,” according to Kahn. Judges refuse to take judicial notice that the holocaust did happen because it would weaken the defendant’s case, and a “huge number of legal doctrines” including the hearsay rule make it difficult for the prosecution to introduce needed evidence that the holocaust did happen.
“The most important point is that the defense had a free hand in presenting evidence,” commented Kahn. “So you had a bunch of allegations that Auschwitz had a swimming pool and other horrific things. To a large extent, it made it much harder to control the trial.”
In comparison, France and Germany with their civil law systems have centralized judges that made it much more difficult for the holocaust denier to prevail.
“Germany in particular had such a central role for the judge that the holocaust denier defendant could do almost nothing to persuade the judge,” observed Kahn. “So when the denier would try to raise arguments that the Holocaust didn’t happen, German judges would just throw them out. Some judges take judicial notice of the holocaust.”
However, Kahn noted that even in civil law countries there were specific legal issues that emerged in Holocaust denial prosecutions. For example, France, in contrast to Germany, held a distrust of judges specifically in regard to historical matters.
“So even though they would almost always rule against the holocaust denier in France, often the language was incendiary, implying that the French judge could not say whether the Holocaust actually happened,” stated Kahn. “France had an interesting response to this, that if the problem is that judges don’t want to make statements about history, so what we the legislatures do is take it out of the judge’s hands and making denial itself the crime.”
The success of holocaust denial prosecutions and the people’s response to them, relates to how the law is viewed in a country, whether it is an independent legal standard or the voice of the community.
“Judges often get squeezed in between the rules of the law where they get their legitimacy from, and sending the message from the community,” asserted Kahn. “No matter how you slice it – common law, civil law – Holocaust denial prosecutions are an iffy business.”