By ALAN M. DERSHOWITZ
Anyone who wants to understand the current spate of fake news and fake history must go back some years to its most extreme modern manifestation: Holocaust denial. An entire industry has been built to legitimize Holocaust denial. The deniers have funded “research” “institutes”, “journals”, books, magazines, videos, websites, newsflashes – all designed to provide a patina of academic respectability to demonstrable falsehoods. Nearly every day, I receive dozens of emails from websites with such legitimate-sounding names as “The Institute for Historical Review”, and “Legalienate” and “Reporters Notebook” that purport to disprove “the Holocaust yarn”. These include newsflashes containing “new facts” that put the “final nail in the coffin of history’s Mother of all hoaxes” – that Jews were “allegedly gassed” and cremated at Treblinka and other “death camps”.
This entire denial enterprise is devoted to proving that the Holocaust – the systematic murder of more than 6 million Jews in gas chambers, and via mass shootings, mobile killing units and other means of implementing the carefully planned genocide – simply did not occur; that it was made up wholesale by “The Jews” for financial and political gain. To Holocaust deniers, it matters not a whit that many of the hands-on perpetrators publicly admitted to their crimes and provided detailed eye-witness trial testimony. Nor does it matter that extensive documentation was maintained by the fastidious Nazi murderers. Even the surviving physical evidence is explained away by deniers who are unconcerned with truth. “There were no gas chambers”, the deniers insist, echoing Groucho Marx’s famous line “Who are you going to believe – me? Or your lying eyes?”
No reasonable person with a modicum of intelligence can actually believe that Hitler and his Nazi co-conspirators did not plan the implementation of the policy of mass extermination of Jews at the Wannssee Conference in 1942, and that they did not carry it out at death camps, such as Treblinka, Chelmno, Majdanek and Auschwitz-Birkenau, as well as by SS mobile killing units that gathered Jews in such places as Babi Yar and the Ponary Woods. During a recent visit to the Polish town from which my father’s family had emigrated I learned of the fate of two teenage relatives: a sixteen-year-old girl who was taken as a sex slave by Nazi soldiers and then murdered; and her fifteen-year-old brother who was murdered in Birkenau. They were among dozens of my father’s and mother’s relatives who were victims of the Nazi genocide. The evidence of the Holocaust is beyond any dispute.
Yet, thousands of people, many with academic degrees, and some with professorial positions, persist in denying the undeniable. These professional liars were given a degree of legitimacy by Noam Chomsky, who not only championed the right of these fake historians to perpetrate their malicious lies, but who actually lent his name to the quality of the “research” that produce the lies of denial. A widely circulated petition of 1979, signed by Chomsky as well as Holocaust deniers such as Serge Thion, Arthur Butz and Mark Weber, described the notorious denier Robert Faurisson as “a respected professor” and his false history as “findings” based on “extensive historical research”, thus giving it an academic imprimatur. Chomsky has since argued that he had intended only to support Faurisson’s right to free speech and not the validity of his claims, but whatever his intentions may have been, his name on the petition helped to bolster not only Faurisson’s standing, but also that of Holocaust denial.
I, too, support the right of falsifiers of history to submit their lies to the open marketplace of ideas, where all reasonable people should reject them. The First Amendment to the United States Constitution does not distinguish between truth and lies, at least when it comes to historical events. Just as I defended the rights of Nazis to march through Skokie, and the right of Ku Klux Klan racists to burn crosses on their own property, I defend the right of mendacious Holocaust deniers to spin their hateful web of lies. But, unlike Chomsky, I would never dream of supporting the phoney methodology employed by liars such as Faurisson, by saying it is based on “extensive historical research”. Chomsky should be praised for defending the right of Holocaust deniers, but he should be condemned if his involvement in the petition lent substantive and methodological credibility to their false history.
The marketplace is one thing, but let me be clear that I do not believe that any university should tolerate, in the name of academic freedom, these falsehoods being taught in the classroom. There is not and should not be academic freedom to commit educational malpractice by presenting provable lies as acceptable facts. Universities must and do have standards: no credible university would tolerate a professor teaching that slavery did not exist, or that the Earth is flat. Holocaust denial does not meet any reasonable standard deserving the protection of academic freedom.
This is not to say that outside the classroom, academics should be limited in their research output, or prevented from publishing improbable claims. Several years ago, I had a case that tested the proposition that professors had the right to publish what their colleagues believed was “false” information. My client, a distinguished Harvard Medical School professor of psychiatry, had examined numerous patients who claimed to have been abducted by space aliens. He then wrote a book in which he said that on the basis of what he had heard from his patients, he could not exclude the possibility that some of them may have actually experienced alien abductions. He did not teach his theory in the classroom or assign the book, which became an instant bestseller, turning him into a talk show celebrity. Harvard was not amused. The dean of Harvard Medical School appointed a faculty committee to investigate his “astounding” claims about the possible reality of alien abductions. I came to his defence and posed the following question: “Will the next professor who is thinking about an unconventional research project be deterred by the prospect of having to hire a lawyer to defend his ideas?” Eventually the professor was cleared but the controversy persisted.
It still does, both on university campuses and in the political sphere. Where should the line be drawn between demonstrably false facts and controversial matters of opinion? Should professors be allowed to teach that there are genetic differences between blacks and whites that explain disparities in outcomes? (A Nobel-prize winning Stanford professor of Engineering tried to teach such a course on what he called “dysgenics”.) Should the president of a university be allowed to speculate in public about possible genetic differences between men and women regarding the capacity to do groundbreaking work in maths and science? (Harvard’s former President Lawrence Summers lost his job over that.)
I have no problem with courses being taught about the phenomenon of Holocaust denial – it is after all a widespread concern – just as I would have no problem with courses being taught about the phenomenon of false history, false facts and conspiracy theories. But the classroom, with its captive audience of students being graded by professors, is never an appropriate place to espouse the view that the Holocaust did not take place. By publishing his book, the psychiatry professor mentioned above placed it in the public sphere, where readers could choose whether to read it, and believe its claims, or not. The classroom, however, is not a free and open marketplace of ideas. The monopolistic professor controls what can and cannot be said in his or her closed shop. Accordingly, the classroom must have more rigorous standards of truth than the book market, or the internet.
The responsible media should behave in a similar fashion to the professor in the classroom. They should report on the phenomenon of Holocaust denial but not themselves publish unsubstantiated claims that the Holocaust did not occur. There is no way to impose such standards on the free-wheeling internet, where Holocaust denial is rampant. It isn’t clear whether the apparent recent surge in online Holocaust denial has been caused by an increase in deniers, or whether closet deniers now have public platforms or social media that they previously lacked.
How then does this all relate to the current phenomenon of false political news and facts? How should the media, academics and the general public deal with politically motivated accusations that the “news” or “facts” they publish are false? Should they report on news and facts asserted by politicians that they have fact-checked and found to lack credibility? How should they deal with deliberately fake news circulated by social media to make a point? Who, in a free and open democratic society, is the judge of whether news, facts, history or other forms of expression are false, true – or somewhere in between? Do we really want governmental (or university) “truth squads” empowered to shut down stalls that are purveying false goods in the marketplace of ideas? And if not, what are the alternatives?
Censorship is, of course, a matter of degree, with the worst being governmental prior restraint, or criminalization of dissent. Following that would be university denial of academic freedom to express unpopular views outside the class. Then there is refusal by the media to report on events or issues out of fear of losing readership or advertising revenue. Finally there is self-censorship, based on fear of violating community norms.
The government – particularly the executive and legislative branches – must be kept away from the daunting task of striking the appropriate balance between free speech and the dangers it may pose, because dissent against the state must remain the paradigm of protected speech. The courts will inevitably have to play a role in striking that balance, but should invoke a heavy presumption in favour of free speech. The university administration should maintain reasonable standards, in the classroom and hiring decisions, but it must not interfere with the right of faculty and students to express unpopular or even “false” ideas outside the classroom. And the media should articulate and enforce reasonable journalistic standards in reporting and fact-checking on information that some claim is false. In the unregulated world of the internet and social media, there will neither be universal standards nor all-encompassing censorship. There are no “publishers” or censors in the cyber world. In the end, the people will decide what to believe, what to doubt and what to disbelieve. And they will not always make wise determinations in a world where lies spread with far greater speed than ever before.
There is no perfect solution to this dilemma. I have hanging on my wall a letter written in 1801 by the then President Thomas Jefferson in response to a pamphlet that would have criminalized the expression of opinions that were deemed to be dangerous to good order and morality. Jefferson criticized the call for judicial censorship arguing that if “The line is to be drawn” by judges, “the conscience of the judge then becomes the standard”, and “will totally prostrate the rights of conscience in others”. He believed that “We have nothing to fear from the demoralizing reasoning of some, if others are left free to demonstrate their errors”.
I wish he were correct about having “nothing to fear” from the open marketplace of ideas, but history has shown that “demoralizing reasoning” and false facts are too often accepted by many, even when others “demonstrate their errors”. The reality is that freedom of speech is anything but free. It can be hurtful and dangerous. It can provide a platform and a megaphone for false news and facts.
Freedom of speech and the open marketplace of ideas are not a guarantee that truth, justice or morality will prevail. The most that can be said is that freedom of expression is less bad than its alternatives such as governmental censorship, official truth squads or shutting down the marketplace of ideas. Like democracy itself, untrammelled freedom to express hateful and dangerous lies may be the “worst” policy – except for all the others that have been tried over time.
