Where's the Harm?: Free Speech and the Regulation of Lies

1. IntroductionFalse factual information has no First Amendment value,1 and yet the United States Supreme Court has accorded lies a measure of First Amendment protection.2 The First Amendment imposes something in the nature of a presumption against government interference in public discourse. This presumption is rooted in suspicion ofthe State's ability to distinguish facts from falsehoods as well as its motives for doing so.3 However, the presumption against regulation of false speech is not absolute. It can be overcome when verifiably false speech poses a direct threat of harm to individual interests.4 Unlike other countries, the United States has never justified the regulation of verifiably false speech on the grounds that it poses a generalized threat of dignitary harm.5 Using Holocaust denial as an example of verifiably false speech, this essay poses the question of whether such speech poses a more serious danger than First Amendment jurisprudence typically has acknowledged. In other words, this essay asks: Where's the harm in Holocaust denial? It then turns to the related question: Where's the harm in government suppression of verifiably false speech?6II. The Harm of DenialHolocaust denial, at its simplest, is the claim that the Holocaust - the German genocide of millions of Jews and others before and during World War II-never actually occurred.7 Holocaust deniers accuse Jews of "mventfing]" the Holocaust in order to profit from a spurious victimhood; Jews supposedly have exploited the Holocaust "for money, to victimize the Germans and to create the State of Israel."8 As proof, deniers offer trumped up and distorted historical "evidence" regarding matters such as the number of Jews exterminated by the Germans during the Holocaust and the justifications for the extermination.9Both individuals and societies suffer harm as a result of Holocaust denial. Holocaust denial is a profound affront to human dignity. The obvious effect when a speaker denies or discounts the deaths and suffering inflicted by the Nazis is to strip from Holocaust victims the fundamental respect to which they are entitled.10 This affront arguably demands a collective repudiation by society as a whole, specifically in the form of a response by the State. Absent that response, State silence may be seen as acquiescence in the oppression and persecution of vulnerable groups within the society. Some would even contend that State silence in the face of Holocaust denial fosters anti-Semitism and ultimately increases discrimination and hate crimes against Jews.'!The pernicious effects of Holocaust denial stem from its capacity to pollute and corrupt public discourse.12 Denial threatens to distort our collective memory of the past, to "cover up the truth with lies."13 If successful in gaining "converts," those who deny the Holocaust turn "history" into an excuse for anti-Semitism and persecution.In spite of the very real threats posed by Holocaust denial, First Amendment jurisprudence in the United States would likely treat these harms, standing alone, as an insufficient basis for punishing Holocaust deniers. The Supreme Court previously has struck down legislation designed to demonstrate community solidarity with historically persecuted groups.14 Preserving the dignity of a group, as opposed to an individual, has not been deemed a sufficient harm to overcome constitutional objections to speech regulation.15 Furthermore, the Supreme Court has repeatedly said that the State may not punish individuals simply for holding disfavored views.16 It may punish incitements to violence,17 discrimination,18 threats,19 crimes,20 and defamation,21 but the State may not punish citizens for holding anti-Semitic beliefs nor prevent them from receiving information likely to foster such beliefs.22 Finally, and perhaps most significantly, First Amendment jurisprudence relies on rational and committed citizens, rather than the State, to protect public discourse from being polluted by the lies of Holocaust deniers. …