Hate Speech: Would You Give the Devil His Due?
A professional debunker rigorously defends his opponents’ right to free speech.
Posted June 9, 2020
In the riveting 2016 film Denial, which re-enacts the libel trial of Irving v Penguin Books and Deborah Lipstadt and the events leading up to that trial, the Holocaust denier David Irving (played by Timothy Spall) is seen in the opening scene declaring: “More women died on the back seat of Edward Kennedy’s car in Chappaquiddick than ever died in a gas chamber at Auschwitz.” Irving, who once had a serious reputation as a historian, did not deny that many Jews died at Auschwitz but claimed this was mostly from disease. He was convinced that no one was gassed at Auschwitz.
In her 1993 book Denying the Holocaust, historian Deborah Lipstadt had called Irving a Holocaust denier, falsifier, and a bigot, and wrote that he manipulated and distorted documents. In 1996, Irving filed libel charges in England against Lipstadt and her publisher, Penguin Books, claiming that her accusations were false and had defamed his reputation as a historian. Irving chose to file the suit in England rather than in the U.S. because English defamation law puts the burden of proof in libel cases on the defendant. In his closing statement to the court, Irving claimed to have been a victim of an international, mostly Jewish conspiracy for more than three decades.
On April 11, 2000, Judge Charles Gray of the High Court of Justice in London handed down his judgment: Lipstadt and Penguin had won their case resoundingly against Irving’s charges that they had libeled him. Judge Gray found that Irving had “for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence” in order to portray Hitler “in an unwarrantedly favorable light,” particularly in his treatment of the Jews. Judge Gray also found that Irving was an “active Holocaust denier; that he is anti-semitic and racist, and that he associates with right-wing extremists who promote neo-Nazism.”1
Both debunking and defending the Devil
New York Times bestselling author and professional skeptic Michael Shermer is an expert on the psychological and social dynamics of conspiracy theories. He described his own firsthand encounters with Irving and other Holocaust deniers, and his attempts to get inside their heads to try to understand how and why they believe the things they do, in a carefully researched book coauthored with Alex Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (2000).2
To be clear, Shermer’s use of the term skeptic is very different from the sense in which Irving might mean it as skeptical about the Holocaust. Shermer subscribes to a scientific approach to skepticism, applying the scientific method to test and debunk false claims, scrupulously attempting to neutralize one's own biases, assumptions, and motivated reasoning. Shermer represents mainstream science and mainstream approaches to establishing historical facts.
Despite, or perhaps because of, having made a career as a professional skeptic dedicated to the debunking of falsehoods, conspiracy theories, and weird beliefs, Shermer is an ardent supporter of almost unrestricted free speech. He argues that the best remedy for bad speech is more speech.
He presents these arguments in his newest book, Giving The Devil His Due: Reflections of a Scientific Humanist. It is a timely publication in our heated, hyper-polarized political climate in which bizarre conspiracy theories have run rampant, but he knows the approach he advocates for dealing with hate speech might also feel counterintuitive and unappealing at a time of heightened sensitivity to racism. The book is a collection of some of Shermer’s best essays and articles from the past 15 years on free thought, free speech, and his reflections on related topics: God and religion, politics and society, scientific humanism, and the ideas of several controversial intellectuals whom he has either admired or debated.3
To make his point on why we must give the Devil his due—why the "Devil" should have free speech—Shermer quotes from Robert Bolt's 1960 play "A Man for All Seasons" about the 16th-century Chancellor of England Sir Thomas More's clash with King Henry VIII. A dialogue ensues in the play between More and his future son-in-law, Roper, who is urging More to arrest a corruptible man (Richard Rich) whose perjury will eventually lead to More's execution, but who has not yet broken the law. More refuses:
More: "And go he should if he were the Devil himself until he broke the law!"
Roper: “So now you’d give the Devil the benefit of the law!”
More: "What would you do? Cut a great road through the law to get after the Devil?”
Roper: “I’d cut down every law in England to do that.”
More: “Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast . . . and if you cut them down . . . do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety's sake!"
In April 2005, as part of his research into Holocaust denialism, Shermer attended a lecture Irving gave in Costa Mesa, California, sponsored by the Institute for Historical Review, the leading voice of Holocaust denial in the U.S., where Irving held up his right arm and boasted, “This hand has shaken more hands that shook Hitler’s hand than anyone else in the world.”
Irving was arrested in Austria in November 2005 on his way to deliver a lecture to a far-right student fraternity, based on a warrant dating back to 1989, when he gave a speech and interview denying the existence of gas chambers at Auschwitz. In February 2006, he was sentenced to three years in an Austrian jail for violating a law prohibiting denial of the genocide committed by the Nazis. Unbidden and unbeknownst to Irving, Shermer wrote a letter to the Austrian judge asking for Irving not to be convicted, in the name of free speech.
Lipstadt expressed a similar sentiment regarding this case, telling the media, “I am not happy when censorship wins, and I don’t believe in winning battles via censorship. The way of fighting Holocaust deniers is with history and with truth.” (Remember that her court confrontation with Irving was a civil suit, not a criminal prosecution, and it was initiated by him).
Shermer argues that censorship is often impossible or ineffective in this information age. He clarifies that there is, of course, no obligation to provide a platform to purveyors of hate speech or to publish their writing. They should be ignored and, when necessary, debunked. But banning them, he argues, may have the unintended consequence of bolstering them, making them look like oppressed victims, and giving them even more publicity.
His main argument, though, is that any law used to censor one set of ideas has the potential to be used by a less benign government to censor any other set of ideas. His concern is: Who decides what counts as dangerous speech? He argues that “We have to defend David Irving in order to defend ourselves. My freedoms are inextricably tied to Irving’s freedoms.”
Shermer is a strong believer in the United States’ constitutional approach, as embodied in the First Amendment, protecting almost unrestricted free speech. As he is well aware, this is not an approach shared by most other Western democracies.
For example, while the Canadian Charter of Rights and Freedoms protects freedom of speech, Section 1 of the Charter states that it “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This “reasonable limits” clause allows for laws prohibiting hate speech (against an "identifiable group," e.g., racial, gender, sexual, religious). Hate speech is not specifically defined in Canadian law, and a number of these prosecutions have had to be judged by the courts on a case-by-case basis.
I find myself agreeing more with the Canadian approach than with the almost unrestricted American one—especially witnessing once again right now the despairing intractability of systemic racism in America, to which we are not immune in Canada, but which is much less pervasive here. Nevertheless, I do find Shermer’s arguments cautionary. The Canadian system of “reasonable limits” works well only so long as there is a trustworthy judicial system.
In 2016, the University of Toronto psychology professor Jordan Peterson rocketed to fame or infamy, depending on your point of view. Believing that an overstepping of the reasonable limits clause had occurred, he very publicly opposed Bill C-16, “An Act to amend the Canadian Human Rights Act and the Criminal Code,” which added gender expression and gender identity as protected grounds to the Canadian Human Rights Act and to the Criminal Code provisions dealing with hate speech.
Peterson argued that this new law would "compel speech," claiming it would classify the failure to use preferred pronouns of transgender people as hate speech and that it would allow him to be fined or imprisoned if he refused to refer to students by their preferred gender pronouns. Legal experts disagreed, saying that refusing to use preferred pronouns would not meet legal standards for hate speech. Shermer, too, is inclined to disagree: “As I read the Bill, there is, as in most legislation, much room for interpretation and many steps between legal language and the gulag archipelago. I don’t think Peterson was ever in danger of losing his job, much less residing in the Graybar Hotel.”
Changing one’s mind
Giving the Devil His Due is a joy to read for its penetrating insights on a wide range of subjects. You don’t have to agree with Shermer on everything—I didn’t (such as some of his more libertarian economic views). But you will still find that many of the essays are in their own right worth the effort of obtaining and reading the whole book.
In addition to his many astute insights and critical thinking ability, we can all learn from Shermer’s admirable willingness to change his mind after he has carefully considered the evidence, as he has done over the years on issues such as climate change, gun control, and government spending on social welfare.
Shermer is a strong and optimistic advocate for human rationality, and for the power of good ideas and evidence to overcome bad ideas.
2. Denying History was positively reviewed by such respected Holocaust scholars as Yehuda Bauer, academic adviser to Israel’s official Holocaust museum Yad Vashem, and Robert Jan van Pelt, one of the world's leading experts on Auschwitz, as well as by acclaimed author Jared Diamond.
3. Disclosure: Shermer wrote the foreword for my book Finding Purpose in a Godless World, and quotes me in Giving the Devil His Due, in the context of a discussion we’d had about how people who attempt suicide often change their mind later (he uses this to strengthen his arguments for gun control).