Marouf A Hasian Jr. Communications & the Law. Volume 21, Issue 3. September 1999.
Perhaps one of the thorniest problems in the realm of freedom of expression involves the question of what to do about Holocaust deniers. We are living during a period where we are simultaneously witnessing the loss of our last Holocaust survivors and an exponential growth in Holocaust-denial literature. Our dominant cultural and legal defenses of liberalism and tolerance are being challenged daily by critics from both the right and left ends of our political spectrum. One fruitful way of learning about the range of options available to combat this problem comes from observing how nations besides the United States have dealt with Holocaust deniers.
The purpose of this article is to provide a basic overview of some of the trials and tribulations that have come from Canada’s legal experiences with Holocaust issues. More specifically, it illuminates the ways that the Ernst Zundel trials provide a context for discussing the principles and interests involved in coping with Holocaust deniers. Unlike most American jurisprudential norms that highlight the libertarian, almost absolute nature of free expression, Canadian laws are built around a much more communitarian approach to free speech and free press rights. “The proliferation of hate speech in cyberspace,” notes Gosnell, “poses difficult questions for the application of the principle of freedom of expression in Canada.”
To explain the importance of the Zundel trials, this article is divided into five major sections. First it provides background regarding some of the international issues related to the Holocaust and Internet regulation. Second, it briefly summarizes the chronological events involved in the Zundel trials. The third and the fourth sections discuss the pros and cons of using balancing tests and the imposition of strict regulations on Internet sites. Finally, the article discusses the free expression implications of following Canada’s lead in dealing with Holocaust deniers.
The Extent and Limits of Freedom of Expression in International Holocaust-Denial Cases
Following Reno v. ACLU, it appears that United States decisions will continue to hold that most regulations of the Internet based on content are unconstitutional. As Fogo-Schensul wistfully complained in early 1998, “[T]he First Amendment precludes the possibility that the United States could officially regulate the dissemination of Holocaust denial materials over the ‘Net with respect to domestic regulation.” Granted, we have had occasional instances where the United States has found exceptions to First Amendment protections–libel; time, place, and manner restrictions; clear and present dangers; fighting words; etc. Yet these are considered to be rare instances of restrictions on our “marketplace of ideas.” When it comes to the issue of Holocaust denial, web site creators take this theorizing seriously, often acting out these libertarian freedoms by creating new linkages and mirror sites when other nations have banned or strictly regulated Holocaust-denial material.
This has created many legal conundrums for other countries that have tried to stop the creation and spread of Holocaust-denial material in their own backyards. Germany, for example, has taken a very strong stance against Holocaust denial. This communal orientation has arisen for several reasons–the trauma of the Nazi past, the rise of violent skin-head youth movements after German reunification, and the belief that such material has little pedagogical value. While German officials recognize the practical difficulty of enforcing some of the regulations internationally, they nevertheless think that it is important as a matter of principle to keep such material from circulating. In 1995, for example, Gary Rex Lauck (nicknamed the “Farmbelt Fuhrer”) was extradited from Denmark to Germany for his “dissemination” of Nazi “propaganda.” The German court sentenced Lauck to a four-year prison term. In the last few years, German officials have been working diligently try to find pragmatic ways of prosecuting online distributors of Holocaust-denial materials.
Canadian laws seem to be somewhere in the middle of this libertarian-communitarian spectrum. While the Canadian Charter of Rights and Freedoms provides guarantees for freedom of thought, belief, opinion, and expression, those norms also are balanced against other important governmental principles, including multiculturalism and the need to reduce racism. As a result, Canada has what it considers to be reasonable rules and regulations that touch on the willful promotion of hatred against an identifiable group (Section 319). There also are strict penalties for spreading “false news” (Section 181). In the recent case of Ross v. School District No. 15, the Canadian Court determined that a New Brunswick Human Rights Commission was perfectly within its rights when it decided to remove a teacher from the classroom when, outside of the classroom, he questioned the extent of the Holocaust. In the spring of 1997, Doug Collins had to face another human rights tribunal because his critique of Schindler’s List was considered by some Canadians to be racist speech.
In sum, a review of the existing literature seems to show that there are three major paradigmatic ways of legally handling Holocaust-denial literature. On one end of the spectrum are laws like Germany’ s that try to regulate Internet citations on the basis of specific content that is considered illegal. At the other extreme are American laws that provide very few regulations.
So how would Canadian courts deal with the open distribution of Holocaust-denial literature, and what does it mean to maintain the precarious balance between so many legal principles? This next section helps to answer this question by briefly examining the judicial history of the Zundel trials.
Canadian Law and the Zundel Cases
Ernst Zundel, a German citizen who emigrated to Canada in 1958, is known internationally for his battles with the Canadian government over a variety of issues related to Holocaust-denial material. In 1994, his exploits became so well known that he gained the attention of CBS and its 60 Minutes program. For decades he had made a fortune in his new home as a photo re-toucher for many different circular magazines. At the same time, he had been heavily involved in disseminating pro-Nazi literature for audiences in Canada, West Germany, the United States, and the rest of the world. Before the arrival of the Internet, much of the Holocaust-denial or “revisionist” literature was processed through a pseudo think-tank called the Institute of Historical Review (IHR), now the Zundelsite is beginning to catch up with its rival, the IHR.
Zundel’s formal legal troubles began in the early 1980s when Sabina Citron went before a Canadian justice of the peace and pressed charges against him for wilfully and falsely distributing news that was damaging to the “public interest.” His promotion of anti-Semitism through the publication and distribution of hate material was considered to be harmful to a variety of communities. This action began as a private complaint in November 1983, but by January 1984 public pressure had built up to the point where the Crown felt obligated to take over the case. Five months later, Zundel faced an indictment that involved two different charges:
- He had published a four-page letter, entitled “The West, War and Islam.” It argued that there was an international Zionist conspiracy trying to control the world through bankers, communists, and Freemasons;
- He had disseminated a thirty-page pamphlet entitled Did Six Million Really Die? which argued that the Holocaust was one of the biggest and most successful of fictitious deceptions.
The Crown thus advanced the legal argument that some of Canada’ s citizens were being stigmatized and that this directly affected the Crown’s public interest and its goals of establishing social and racial tolerance. By redistributing this literature, Zundel was helping promote the idea that the Holocaust was a Zionist hoax, and that only thousands and not millions of Jews had been killed during World War II. This brought “injury or mischief” to members of the Canadian Jewish community who either had survived the Holocaust or had relatives who had survived Hitler’s regime.
While some citizens might be mortified by the idea of having to appear in court and answer such charges, it appears that Zundel relished the thought of doing battle with his attackers. During his first trial in 1985, he once appeared in court with a blackened face, carrying a cross that bore the inscription “Freedom of Speech.” On several occasions he tried coming to court wearing a bullet-proof vest and a helmet-shaped hat, claiming that he needed protection from angry Jews. While jurists tried to halt such antics, it attracted a great deal of media attention, and Zundel helped catapult Canada into the international debate over the free-speech rights of Holocaust deniers.
On the surface the Zundel trial may have looked like any other criminal prosecution based on a minor statute, but the Canadian courts soon found that procedural formalities in the trial meant that the factuality of the Holocaust also was being placed at issue. Under normal circumstances courts may take judicial notice of well-known facts, but in this case the trial judge worried that judicial notice would mean that the prosecutor no longer would have to prove a key element of the case. In this particular instance the court, presided over by Judge Huck Locke, decided that the prosecution had to prove that the tract Did Six Million Really Die ? was false.
The Crown used a variety of legal strategies in trying to convict Zundel of having violated Canada’s “false news” statute. In the early part of the trial, some six witnesses who had lived in the concentration camps talked about their horrible experiences. Judge Locke also allowed the prosecution to show a very vivid documentary film of the concentration camps. The prosecution also called to the stand Dr. Raul Hilberg, a professor at the University of Vermont and one of the world’ s foremost experts in Holocaust studies. Hilberg’s discussions of the Holocaust corroborated the evidence supplied by the Holocaust-survivor witnesses.
The Crown then tried to convince the jury that Zundel knew that he was distributing falsehoods. The argument here was that no reasonable person who had researched the Holocaust could deny the Nazi devastation. Prosecutors argued that Zundel selectively appropriated material that advanced his cause while hiding the massive amounts of evidence supporting the existence of the Holocaust. The Crown then projected an image of Zundel as an anti-Semitic propagandist who hurt Canada’s attempt to foster racial and social harmony. Zundel was portrayed as someone who not only denied the Holocaust but who also revered both Hitler and his Nazi regime.
At trial, Zundel was represented by Douglas Christie, a well-known Victoria lawyer who had helped defend a number of alleged Canadian anti-Semites and hate mongers. For weeks before the trial Christie spent time with many Holocaust revisionists and helped prepare Zundel for trial. Christie was known in the press as a barrister used to taking about controversial issues–including separatist Western Canada, the metric system, and the restriction of police powers. His research for some of his cases had led him to believe that perhaps the critics of Holocaust deniers were not being treated fairly. In one statement to the press, Christie opined that a recent German case showed that narrow-minded people acted “as if we were living in an age when people where burned at the stake for their religious beliefs.” From that lawyer’ s point of view, Sabina Citron and the rest of the Canadian Holocaust Remembrance Association were looking for ways of advancing only one view of history and in the process violating freedom of expression.
Christie made things extremely difficult both for himself and for the Crown. Reporters recorded frequent clashes between Zundel’s lawyer and Judge Locke. Rather than politely leaving the Holocaust survivor witnesses alone, Christie asked them to remember the names of relatives who were burned in Nazi ovens. At one point he unsuccessfully attempted to have introduced into evidence a model of the Auschwitz crematorium so that the court participants could debate the purposes of those buildings. Christie even went to the trouble of bringing Robert Faurisson (a former professor of literature at the University of Lyons, called as a witness by Holocaust deniers) from France to support some of Zundel’s assertions.
Christie also took advantage of the evidential problems that had been created for the Crown when the court had refused to take judicial notice of the fact of the Holocaust. The defense introduced hundreds of maps, photographs, articles, and books. One of Christie’s detractors remarked that:
Among the 20 other defense witnesses were buffoons who joked about Olympic-size swimming pools and dance halls at Auschwitz, and who claimed that the genocidal death camp was actually a “happy” place where inmates got plumper as they worked …. Each day, Zundel’s corps of helpers in yellow hard hats carried boxloads of exhibits into the court. They sat there, in full view of the jury–a mountain of silent testimony to Zundel’s 25-year odyssey.
The appearance of these defense witnesses purportedly reinforced Christie’s claims that Zundel did not knowingly disseminate falsehoods. From the standpoint of the defense, the more the jury heard about the Holocaust itself, the better chance Zundel had in justifying his actions on the basis of freedom of expression.
Near the end of the trial, it soon became apparent that the Crown was trying to focus attention back on Zundel and his defense of Hitler. This type of approach was needed because the Holocaust issue was an incredibly sensitive subject in both legal and social circles in Canada. At various historical junctures Canada, like several other nations, had been accused of harboring former Nazi criminals. In the prosecution’ s closing remarks, it would not be freedom of expression but rather Zundel’s Nazism that was at issue.
Zundel’s first trial lasted eight weeks, and in February of 1985 the jury finally decided to acquit him of the charge related to his letter on “The West, War, and Islam.” However, it decided to convict him on the second charge related to Did Six Million Really Die, and in March Zundel received a fifteen-month prison sentence. Near the end of the proceedings, Zundel claimed that the trial had helped him get “one million dollars worth of publicity.” Zundel’s lawyer, Christie, complained that “tolerance cannot be legislated, understanding can’t be legislated, kindness cannot be legislated.”
Some commentators blamed Christie for taking a belligerent, combative stance in the trial. Claude Adams, who covered the Zundel trial for the CBC TV national news, thought that Christie’s courtroom activities were “misdirected” and that his “witnesses were low-grade.” For several years, Canadian newspapers deliberated on the question of whether such trials helped increase or decrease the amount of Holocaust-denial literature circulating within Canada’s national boundaries.
On January 23, 1987, Zundel’s name again would appear in the press because the Ontario Court of Appeals overturned his conviction and ruled that Zundel had to be re-tried. This time the Canadian press did not give the case anywhere near the attention that it had received earlier. This four-week re-trial ended in May of 1988, when Zundel again was convicted and sentenced. During this second trial, Judge Ronald Thomas decided to take judicial notice of the Holocaust, and the Toronto Star reported that Thomas ruled that “the Nazi extermination of millions of Jews is so notorious as to not be the subject of dispute among reasonable persons.” On appeal, the Canadian Supreme Court again overturned Zundel’s conviction. In recent years, Zundel has been conducting a running battle with various Canadian Human Rights organizations for the right to produce and disseminate Holocaust-denial material.
With this background in mind, the next sections examine the legal issues that are involved in this volatile controversy.
The Case for Stricter Enforcement of Canadian Race Hatred Statutes
Anyone interested in defending stricter enforcement of Canada’s race hatred statutes could argue that the Canadian Charter of Rights and Freedoms allows officials a great deal of discretion in determining when Holocaust deniers have crossed the line between liberty and license. Part 1, section 7 of the Canadian Constitutional Act, for example, allows for “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Another key rationale used by proponents of stricter Canadian regulations involves the claim that free press rights should not take priority over principles like the protection of multiculturalism and the reduction of racial or ethnic hatred. Peter McCrindle, for example, writing in the Montreal Gazette on January 23, 1999, averred that:
Mr. Zundel is seriously mistaken if the only people he thinks are opposing him are our federal lawmakers. In fact, by extension, he is suing the Canadian people. The vast majority of Canadians stand united in opposition to overt xenophobia, intolerance and racism so perfectly portrayed by Mr. Zundel and his ilk. He is truly an aberration ….
Within this scenario, either national or international human rights positions should be taken into consideration whenever courts review the potential costs and benefits of certain proscriptions. As Fogo-Schensul recently has observed, “an absolutist position on freedom of expression” might be appropriate for the United States, but “many other nations have come to a different conclusion.” American advocates of stricter regulation therefore could argue that Holocaust denial is a special form of hate speech that should not receive free speech or free press protection.
The Free Speech Defense of Holocaust Deniers
Obviously the strongest defense of the right of Holocaust deniers would come from absolutist positions that argue for maintaining the presumptive protection of the marketplace of ideas. At the same time, even those who wish to move toward a more balanced approach to freedom of expression could argue that because these deniers are a relatively small segment of society, they are a marginalized group needing protection from majoritarian politics.
Another argument against the prosecution of cases like Zundel’s involves the question of the feasibility of approaches. Canada’s prosecutions have brought about the establishment of mirror sites in America and elsewhere, where people who have no sympathy for neo-Nazi views maintain Internet connections to protect what they consider to be free speech and free press rights. This has created administrative nightmares for government officials in Germany and other places that have tried to close down websites located within their own borders.
Defenders of the civil liberties of Holocaust deniers might argue that an unfortunate consequences of the Zundel trials has been to legitimize and popularize the work of groups and institutions like the Institute of Historical Review. Fago-Schensul reluctantly has admitted that in 1985 that organization had only forty-two publications that were very crude and amateurish, but by 1997 the IHR’s website was linked to twelve other sites. It could be argued that those websites would have been created in spite of the trials, but the visibility of the trials also may have catalyzed interest in those sites.
Liberal defenders who object to the Zundel trials also might point out that one of the most effective ways to counter the pernicious influence of the Holocaust deniers would be through the proliferation of counter-speech networks that monitor and critique hate speech sites. For example, two of the most effective organizations involved in such rebuttals include Ken McVay’s Nizkor Project and The Simon Wiesenthal Center.
Remembrances of Things Past: What Price Shall Be Paid?
After carefully reviewing Canada’s laws of free expression, the history of the Zundel trials, and the extensive commentaries outside of the courtroom, one reasonably could conclude that Canada has paid a very high price in its attempts to strictly regulate Holocaust-denial material in the name of multiculturalism and ending racism. These goals indeed are laudable, but one might question whether the existence of such regulations has decreased the amount of such material circulating the Internet or produced any deterrent effect. Even if we were to use communal and not liberal standards of evaluation, it seems as if many of these expensive trials have served as an additional forum for Holocaust deniers.
The various decisions in Zundel’s trials have caused a great deal of controversy among American and Canadian scholars and members of the public. Critics lament the way that the trial seemed to raise the academic credentials of Holocaust deniers, while at the same time traumatizing some of the survivor witnesses who had to endure brutal cross-examinations by the defense. As Heinrichs observed in the winter of 1988, “[W]hile many Canadians think it is good that Zundel was convicted, a substantial segment of the community suspects the price paid for conviction was too high.”
Unfortunately, it looks as though the Zundel trials were only the beginning of Canada’s involvement with Holocaust denial. A relatively new site, the “Zundelsite,” in 1996 became the first Internet target of an inquiry by the Canadian Human Rights Commission.
Both Zundel and Christie constantly are looking for press conferences and Parliamentary galleries that might allow them new forums for the dissemination of their views. Citizens and scholars living in the United States soon may find that the international communities that are demanding stricter regulations of the Internet increasingly will call into question libertarian notions of free speech and press rights.