If I express my opinion on this blog that a person, X, is a thief, X may take action at law against me and would, if I could not prove him to be a thief, win his case. In some jurisdictions, even that it was true would not be a sure defence.
If I express my opinion on this blog that a person, Y, did a thing they did not do, and this damages her reputation, Y may take action at law against me and would, if I could not prove her to have done it, win her case.
We accept that the freedom to give one's opinion has certain limits. It's possible to argue that the laws on defamation infringe the right to freedom of speech but very few of us believe that a/ all rights are absolute and unbounded and b/ the right to freedom of speech in particular does not have some bounds. For instance, few would agree that shouting "Fire!" in a movie theatre, to give that old chestnut, is an expression of that right, nor are certain forms of threatening and abusive behaviour. You may well have the freedom to describe your neighbour as a [bleep], but you are probably not free to do so at the top of your voice in the high street.
I accept that the principle of disallowing defamation is sound. I'm not a huge fan of the libel laws as they stand, either here or in the UK, nor of the means of taking action, which of course favours the rich and powerful. But I do believe that a person should not be exposed to sometimes very painful damage to their reputation, not to mention their feelings, by the telling of lies.
Because I accept that, I cannot disallow that defamation of a people is equally an expression of opinion that should be disallowed.
I have some difficulty with hate speech provisions, such as those aimed at Abu Hamza recently. There would be in my view a fine line between expressions of hatred, which I would certainly permit, and incitements to hurt, which I feel are debatable at best. If I heard men in the street yelling "Kill the nigger", do I feel their speech should be protected? No, I do not. My gut feeling is that they should be punished. I feel that our society should more strongly protect the victim's right not to be hurt, and not to have others incite his or her hurt, than the perpetrator's right to express themselves.
It is a fine line. Fall on the wrong side and you are not protecting some forms of political speech that definitely should be permitted. "Blair out!" could be seen as an incitement. "Smash the system!" could be too. I would want both to be protected.
When I consider Holocaust denial, I think it achieves at least three ends: first, it defames a people. In my example, person Y could sue me for claiming they did a thing. In Holocaust denial, Jews are defamed by those who say they did not do a thing: namely, die in huge numbers.
Which they did. Six million Jews, and maybe the same number of others. That is a fact, a truth.
Second, it expresses hatred. What does it say to deny the murder of millions of a people? It says you believe the people are worth nothing, that you quibble over their deaths because you wish to minimise them and maximise those who killed them. By denying a fact you know to be true, you are expressing your hatred of the people who were killed. I cannot understand Holocaust denial in any other way. I cannot understand that you could deny the facts that are so clear unless your aim is to dismiss the murder as in some way trivial.
Third, it incites others to that hatred. Because we all know the fact, we understand that denying it is not an expression of an opinion but an expression of hatred. We know that the person denying the Holocaust is saying to us that we should also hate Jews enough not to care that they were murdered in their millions by people like us. By people like us! Here is the key to my understanding. We are incited to feel the murder was nothing, unimportant, and in doing so, the inciter is trying to create, helping to create, the conditions in which the murder could happen again.
I do not know whether I would put Holocaust denial on the statute books as a crime. I would certainly permit suits for defamation against those who denied it, and I would not consider this an infringement of anyone's right to free speech.
Do I think David Irving deserved what he got
? He had a fair trial and was convicted in accordance with the laws of a free country. That's more than can be said for the millions he said didn't die.