Eudoxa

Recently the French National Assembly passed a law making it a criminal offence to deny the Armenian genocide by the Turks during World War I. Turkey complained that France were restricting the freedom of expression and rewriting history for political ends, a somewhat curious position for a country where Article 301 is used to prosecute people for insults to "turkishness" if they claim there was a genocide.

In an open society people are allowed to form their own opinions, engage in discussions and ideally develop knowledge and values together. This open debate will help produce a better informed society, not just despite disagreements but thanks to them: if unpopular or unusual opinions are allowed to be heard there is a better chance that true but minority views will eventually become recognized (and false majority views eventually discredited), and the vigorous debate often stimulates better arguments from both sides.

If some values and theories are sacred and kept exempt from the debate their correctness can never be tested. A strong value or theory is one that has been challenged fiercely yet remains standing. The reason to trust evolution theory is not that all biologists believe in it but that it has survived and thrived despite internal and external criticism, motivated by everything from scientific curiosity to religious fundamentalism.

One way of defending a prohibition is to argue that it constitutes a speech act: it is not the fact of the statement that constitutes reason for prohibiting it, but the act of hurting survivors by denying their suffering. Yet sometimes hurtful opinions need to be heard. Civilization has advanced thanks to the profoundly unsettling and occasionally hurtful realisations. Preventing any expression that might upset anybody would seriously limit legitimate criticism, intellectual inquiry and the debate needed to achieve true consensus.

The problem is that this form of valid hurtful speech is impossible to distinguish from speech only intended to hurt. As emotions run high it is impossible to separate verbal aggression from the desire to disprove the opposing point of view. There is also a serious risk that the parts fail to recognize what the other is trying to communicate: to the believer the heretic is not trying to make a valid point.

Adding a provision that speech should not be prosecuted if it is not intended to cause hatred does not work. Denying, even forcefully, that a certain group has been suffering is formally not inciting hatred. After all, it would just reduce pity for the suffering group rather than make others dislike them. But such statements will most certainly be interpreted as inciting hatred. Even very mild statements have been condemned in the past, and it seems unlikely that we could rely on laws accurately or reliably identifying motivations. At best prosecution would take context factors such as apparent racism and ties with racist views, but that is in itself fraught with uncertainties since racism is again more based on motivation than factual content.

There are psychological methods such as the Implicit Association Test that have been purported to detect biases, stereotypes or even hidden racism in test subjects. It does not seem too unlikely that within a few years we will have brain imaging methods that could detect negative reactions triggered by certain groups of people. There is already a vigorous neuroethical debate about what mental privacy rights we have and it is likely to become a major societal debate in time. If intentions become key to prosecuting various forms of hate speech invasion of mental privacy may be the only way of actually proving guilt or innocence. But given that the present data suggests that even normal people harbour many negative stereotypes, it might be much harder to prove innocence than guilt.

If the problem is the racist or ideological views underlying the deniers' claim, then it makes more sense to work against them directly rather than attack one expression of them. The overall effect of banning certain vaguely defined forms of expression is to chill free expression.

Imagine that the world community decides that a genocide is occurring and a power decides to intervene. Criticism of such an intervention would be seriously hampered if it was possible to claim it was genocide denial and hence illegal. Even mere criticism of the intervention itself and not its causes would be easy to tar with the genocide-denial brush, possibly making media uneasy about giving time to the criticism out of fear of legal repercussions. One might argue that bans are only intended to work on historical genocides, not present ones. But that would have the paradoxical effect that denying a current genocide would after sufficient time automatically become a crime. It seems likely that the application of the legislation would be fairly arbitrary, based more on whether somebody would claim to be upset rather than any factual content. This makes it an excellent tool for harassing other views.

German Justice Minister Brigitte Zypries said "Historically proven facts must not be denied". But if this is to be taken as a correct moral principle, it does imply that other facts of equal importance to human life must be treated similarly. What about denying proven facts of economics? Or evolution?

Given how the climate change debate has been going I would not be too surprised to see more people than Australian commentator Margo Kingston eager to make "climate change denial" illegal too. If one really believes that climate change is a terrible global problem, that denying it is a problem will contribute to it, and that it is OK to prohibit denying certain propositions, then it would be entirely logical to work towards such legislation. In fact, it might be even more logical since the risk of new genocides is only slightly increased by free denial, while the climate change problem might be directly worsened by denial. Similarly, denying the extinction (or man's role in the extinction) of various species could also be made illegal.

Once such rules exist and are accepted it seems hard to make a principled argument against extending it to new applications. Extension would also be very tempting for groups unwilling to engage in debate about issues. Anti-denial rules are the ultimate debate-killer, helping strong majority views wipe out dissenting views. This makes attempts to ban defamation of religion particularly worrying.

Society needs defences against racism, shoddy research and misinformation. Insisting on protection from ill-defined fuzzy threats opens the doors for a host of potential tyrannical prohibitions. The way to deal with it is of course to debate and show them are wrong. That requires historical debate and public engagement, but it is also very educational to the public debate. It takes far more effort and interest than just instituting bans, and is ultimately more beneficial.

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