Professor Alan Dershowitz Addresses Facebook And Holocaust Denial

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Facebook has taken great pains to point out that they have consulted “experts”  in coming to the conclusion that Holocaust Denial/ The fact of denying the Holocaust does not constitute “hate speech” under their terms of service(TOS).  In a interview on  CNN.com, Facebook representative Barry Schnitt stated:

“It’s a difficult decision to make. We have a lot of internal debate and we bring in experts to talk about it,” Schnitt said. “Just being offensive or objectionable doesn’t get it taken off Facebook. We want it [the site] to be a place where people can discuss all kinds of ideas, including controversial ones.”

In an email to Chris Matyszczyk on the CNET blog “Technically Correct” Barry Schnitt further stated:

“The experts we’ve talked to have generally been Internet law experts, free speech people, and experts on radicalism and technology. They haven’t been specifically related to the Holocaust but that is a good idea.”

Despite requests to Facebook as to the names of the experts that were consulted on the above issues and on the issue of whether Holocaust Denial constitutes hate speech, there has been no response.  CEO Mark Zuckerberg has  shown no transparency on this issue. I therefore decided to consult an expert of my own.

Professor Alan M. Dershowitz has been called “the nation’s most peripatetic civil liberties lawyer” and one of its “most distinguished defenders of individual rights,” “the best-known criminal lawyer in the world,” “the top lawyer of last resort,”  He is the Felix Frankfurter Professor of Law at Harvard Law School.  Dershowitz, a graduate of Brooklyn College and Yale Law School, joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg.

He has published more than 100 articles in magazines and journals such as The New York Times Magazine, The Washington Post. The Wall Street Journal, The New Republic, The Nation, Commentary, Saturday Review, The Harvard Law Review and the Yale Law Journal, and more than 300 of his articles have appeared in syndication in 50 national daily newspapers. Professor Dershowitz is the author of 27 fiction and non-fiction works with a worldwide audience. His most recent titles include Rights From Wrong, The Case For Israel, The Case For Peace, Blasphemy: How the Religious Right is Hijacking the Declaration of Independence and Preemption: A Knife that Cuts Both Ways, Finding Jefferson – A Lost Letter, A Remarkable Discovery, and The First Amendment In An Age of Terrorism.

You can dispute his qualifications if you like but I doubt there is a court in this country that would not admit him as an expert on hate speech,free speech or any 1st Amendment issue for that matter.

Here is the email I received from Professor Dershowitz regarding the issue of  Facebook’s tolerance of  Holocaust Denial Groups and whether it constitutes hate speech.

From:

To:
brian.cuban@dallasmavs.com

You are absolutely correct that Holocaust denial is hate speech. There are no Holocaust deniers who are not blatant antiSemites. Every Holocaust denial website also features antiSemitism. You are also right that transparency is the key. If Facebook took the position that it censors nothing,that would be one thing. But to espouse the substantive position that H denial is not hate speech is very dangerous and unacceptable.

An expert has spoken right to the point.  Are you listening Mark Zuckerberg?



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35 Responses

  1. You might be interested in checking Canadian constitutional law, (the Keegstra case esp.). In Canada, the definition of hate speech is much wider, and freedom of expression is not as "content neutral" as it is in the States. Holocaust denial constitutes hate speech under the Criminal code. Since Facebook is available to me here in Canada and I can be exposed to content that is illegal here….(Holocaust denial groups)….should this not affect Facebook's policy? Just axin….I've been out of the legal loop for a long time.

  2. "There are no Holocaust deniers who are not blatant antiSemites."

    You're looking at legalities; this is a ridiculous statement. A) it's not factual and B) it's thought-police. And I say this as someone who believes most Holocaust deniers are, indeed, hateful racists with underlying agendas (as opposed to just being ignorant).

    1. People who throw out “thought police” never seem to grasp the basics of the human process. I will help you. Repeat after me “thoughts=brain” “speech=mouth”

      Unless Minority Report has become reality or you are an alien, thought can not be read and therefore can not be regulated. Speech on the other hand can be constitutionally regulated and is done so though countless federal and state statutes.

      1. Yes, but only speech that threatens harm or intimidates can be constitutionally regulated. See Virginia v. Black, 538 U.S. 343 (2003) (holding that while prohibiting cross-burning with the intent to intimidate is constitutional, making cross-burning prima facie evidence of intent to intimidate then criminalizing cross-burning with the intent to intimidate is not).

        Saying "the Holocaust didn't happen" is clearly a factual misstatement, but that doesn't make it intimidating or threatening. There's a line between regulating hate speech and regulating speech that incites to dangerous action.

        However, I believe there's a huge difference between a law that criminalizes Holocaust denial and a policy of Facebook, a private entity, to not permit Holocaust denial using its resources. I think that a Facebook ban would be entirely appropriate.

      2. I expected someone might disagree with me but I didn't expect to be treated like an imbecile for no reason. There's no need to be insulting. I am, believe it or not, aware that others' thoughts can't be read by human beings. That's why the phrase "thought police" is a cliche: if and when people try to do it, it doesn't work on any level.

        My somewhat hyperbolic statement was that Dershowitz claiming that all Holocaust deniers are anti-Semites implies that he can read their thoughts. Then, he feels that he is mandated to prosecute those he finds offensive, and he knows this because he can Just Tell, under all the myriad countless federal and state statutes. Yay! Yay for Constitutionally Regulated Free Speech. (good grief.)

        1. You misrepresent Dershowitz's argument: he is not advocating for criminalization in the public sector, rather classification in the private sector. And yes, by the Constitution Facebook has the right to regulate its content.

          1. "classification in the private sector?" huh?

            Facebook has the right to regulate its content because it's a private company. (for now…the way this stuff is going….)

  3. Bravo!, Alan.
    and Bravo, Brian!
    Spoken by the man who is universally regarded in the legal community as one of the perhaps two top Constitutional lawyers in the country, he being from Harvard, the other, Lawrence Tribe, of Yale!

    1. I think you may have hurt Erwin's feelings.

      On a serious note, thanks for throwing the gauntlet down to Facebook.

  4. There are no holocaust deniers who don't hate Jews. The perpetrators (Germans) admit to what they did and on the numbers of people killed. So do the victims (the Jewish people, gypsies, homosexuals and political dissidents). What

    Holocaust denial is a terrible, insidious form of hate speech that seeks to encourage and repeat history by denying what happened – so it will be easier to do again!

  5. It's actually much WORSE than hate speech, because it is more subversive… more vicious. It has been repeated so often that it is widely taken as fact in parts on the Arab world where anti-semitism is part and parcel of daily religious and media programming.

  6. I just don't understand Facebook's motive behind this one… it feels like it's straight outta left field. I'm also Canadian, so being that "holocaust denial" is hate-speech here, I'd prefer Facebook played things a bit safer and just censored things that verge on hate-speech, whether or not the law actually defines it as hate-speech. Who really wants to have a meaningful conversation about killing people who aren't of your race, anyway? My point being, what does Facebook gain from taking such a dangerous stance? More racists? Hooray for them?

  7. I'm glad you're not letting this go, Brian. That's what they want you to do. They are trying to wait you out, wait until the media gets bored with the story.

  8. The concept of hate speech is unconstitutional. Hate speech is essentially thoughtcrime. An act can be made illegal. The thought accompanying that thought should be irrelevant. Speech of all kind should be encouraged. It is what creates the marketplace of ideas.

    Holocaust deniers are dumbasses at a minimum. But calling their speech hate speech doesn't help anyone.

    1. Be careful, you get called names for saying "thought" attached to any other noun around here. Even if you're right.

  9. Any human being who denies the Holocaust are far more than just ignorant. Lack of knowledge is putting it too simply.
    They are Jew haters! Racist! Anti-Semitic,! Deniers of History! Don't know what a massacre is! Purely with the intent to encourage violence! I say that we do need to judge people for their actions, that is how we are able form laws.

  10. A new law needs to be in effect for any/all publication of any/all form, speech, writing, blogs, etc. that all Holocaust denial (aka Haters) are banned, illegal & punishable by the law for up to 10 years in prison!
    While they are in jail they should be forced to study the truth about this FACT IN HISTORY. Let then view all the pictures, hear the stories of the survivors and what nightmares they lived with their entire time left here on this earth! It robbed them the gift of life!
    This is not a matter of "Free Speech" or "Rational Debates" This is a REAL FACT in History that they are trying to DENY! Regardless of their right to spread their opinions, this is about tons of people who were MURDERED & TORTURED! Though I am sure their groups must be small in number & who would actually believe them? Unless they have some form of super-hypnosis power as HILTER did! Abolish HOLOCAUST HATERS!!!!!!

    1. No, no. You're feeding in to it. You are saying EXACTLY what our opponents accuse us of saying. Remember, Brian is talking about the PRIVATE REALM. If you like hate speech laws, move to the EU or Berkley. But don't complain when they come around to bite you in the rear. Basic democratic values, folks.

  11. Why is "hate-speech" (an abomination of a term, much like "gun-crime," meant to create some nefarious, nebulous category of behavior to ban) not constitutionally protected speech? Are people not entitled to hate? Are they not entitled to speak of their hatred? Is that not the very point of the first amendment? Are we so scared of words and ideas that we have to drive them underground (where they're that much harder to hear)? As a Jew I'd like to know who my enemies are. And I have no need to supress their words — only criminal ACTIONS. If we suppress their words today, tomorrow someone will suppress the words "sham yisrael" because they're dangerous.

    1. Once again, a straw man. This debate is not about constitutional protections. That is PUBLIC. We are talking about PRIVATE entities. I wonder if people even read the posts before they comment.

  12. Mr.Dershowitz is an accomplished legal scholar but also a raging Zionist in many respects so his views on the Holocaust denial have to be taken with a grain of salt. He doesn't appear to want to classify the hate speech spewed within Israel against Arab and specifically Palestinians as hate speech. So, he's a relativist? That's less than impressive.

  13. one thing the post doesn't mention about dershowitz is that he's not very bright, as he demonstrates again. here he constructs an invalid argument that uses a highly questionable premise, for which he offers no compelling evidence.

    the argument "every holocaust denier hates jews, therefore holocaust denial is antisemitic" is invalid, and the claim that all holocaust deniers hate jews is implausible. it is easy to imagine motives other than hatred for holocaust denial, such as ignorance or psychological inability to cope with the implications of the holocaust. i've met people who deny the armenian genocide – turkish people who won't acknowledge it because they can't reconcile it with their national pride, and an azerbaijani who couldn't reconcile it with armenia's aggression against his country. none of these people were perceptibly hateful. i don't know any deniers of the jewish holocaust, but the same psychological mechanisms surely apply.

    BTW dershowitz may be well-known but he's not considered a heavyweight as a constitutional scholar. he's not in the same class as folks like laurence tribe (of harvard), erwin chemerinsky, or mark tushnet. my opinion, for what it's worth, based on very minimal reading of his legal writing, is that it's as lacking in insight and rationality as his writing on political issues.

  14. Dershowitz is 100% obnoxious and over-the-top, ALWAYS. I do agree that essentially all deniers are anti-Semites. Whether that makes Holocaust denial- as distinguished from direct rants against Jews- "hate speech," is how you slice it, Dersh's attempts to shout away the distinction nothwithstanding. Further, I see where Facebook can reasonably come out on this question differently, and decide who to ban and not ban from their site.

    If the people who actually run Facebook chose to ban deniers from the site, I'd be ok with that too.

  15. My husband walked into a court room with Alan as counsel. The judge said, 'I am honored to have you in my court". He was not addressing my husband, Bob. I would say to Mark Z that he highly rethink his ego and ask if these 3 groups that exist are really worth any more time on this issue and as the wife of a man who used that exact power to edit who he himself said he would never print such hate speech, is it time to say hey, may be it would be wise to have more positive talk about face book, then negative, its actually as a marketer beginning to put the word hate next to face book a little too much, when it use to be fun. At the same time, one cant ignore people who hurt others in open forums and Brian your a very strong man. I applaud you too. A I was very happy to see this message from Prof Dershowiz who I admire very much.

  16. Forget free speech issues–Facebook is a private actor. It should block this speech out of common decency.

  17. While I tend to be anti censorship when it comes to the govt and while I am a huge Free Speech advocate, neither is the issue here.Yes in this country one does have the right to speak hatred, provided they are not actually technically harming another. However, Facebook is a private entity. They have the right (and in my opinion the duty) to dictate what they will and will not allow on their site. Yes hate speech is legal, yes holocaust denial IS hate speech, and yes FaceBook can and should regulate that.

  18. Professor D. has a very big axe to grind, in spite of his impressive academic credentials. Where are the facts to back up his allegation that "There are no Holocaust deniers who are not blatant antiSemites."? Oh, he didn't supply any…and while this sort of speech is distasteful, at best, and gross ignorance at worst, it does not rise to the level of threatening any life or liberty. Shall we criminalize those who do not believe in evolution? Or perhaps those who insist on an invisible force governing the universe? I think not….and in the end, Facebook is a private company, not the Federal Government. Guess it's "free speech" until Dershowitz decides it ain't….

  19. It's a good quote- hopefully Dershowitz will help to spread the word about the problems.

    He could help the cause greatly.

  20. Before anyone calls Professor Dershowitz "a raging Zionist", one should note that he has frequently identified himself in interviews as sympathetic with Israel's Labor party and supports a two-state solution. A zionist, he is, "raging," I'm not sure about.

    That said, the only argument I've heard that attempts to dissociate Holocaust denial from antisemitism is from Noam Chomsky, and it's not a very strong argument, as Professor Chomsky has to invoke Martians in order to make his case, and seems to expect his readers to take it on faith that he's an expert on Martians.

    Since I am not an expert on Martians, however, I will just point out that Facebook has a policy on hate-speech, and has created a loop-hole that allows some forms of anti-Semitism to escape this policy.

  21. First: holocaust denial is – well, it is hard to find an adjective strong enough to describe just how factually wrong it is

    Second: it is doubtless true that all those who deny the holocaust are anti-semites; not all anti-semites deny the happening of the holocaust

    Third: part of two, above, is the very flexible definition of "anti-semite" employed in the Canadian and American press (I can't read German and/or French well enough to detect nuances in those languages)

    Fourth: Alan Dershowitz, and others, have been quick to label those who do not agree with the policies of the State of Israel vis-a-vis the occupied territories and its inhabitants (not the post-1967 squatters sanctioned by the government)

    Hate speech, whether it is Holocaust denial or anything else, should not be a concept sanctioned by American constitutional law. So far, it goes only to increase the sanctions imposed upon those convicted of some underlying crime, but – and this seems to be where AD and his fans want to go (and as the Europeans have gone) and that is to make hate speech a crime in and of itself.

    I would rather live in a country that does not recognize something characterized as "hate speech" than one that does – because this generation's hate speech (Holocaust denial) could become the next one's (it is almost there already – read everything Dershowitz has written with care) is the denial that the policies of the State of Israel are necessarily congruent with the interests of the United States of American

  22. Ask Mr Dershowitz if he believes in God. He doesn't. So what is worse? Not believing in God or questioning the Holocaust? Wouldn't you say not believing in God a form of hate speech?

    Mr Dershowitz forgets that ANY historical event can be questioned as to its truthfulness. The story of the holocaust has changed quite a bit in sixty years. Things believed in about the holocaust years ago would be have been holocaust denial now. Soap out of Jews? FALSE, Lampshades out of human flesh? FALSE, Human Gassings at DACHAU, OR Treblinka?" FALSE. I could go on and on.

    How many books written about the holocaust have been proved to be false at this moment? So to make these statements about the holocaust as being "hate speech" is a viewpoint of an idiot. As Americans we have EVERY right to question ANY event in history. Be it the Bible or the Holocaust. Unfortunately the Holocaust has been put on a pedestal higher than the Bible. I have more disrespect for Alan Dershowitz than any person who questions the Holocaust. I would suggest a good place for asking questions about the Holocaust would be at Nazigassings.com.

    1. I appreciate your post. I really do. I believe it is very important for people to see what Holocaust Denial looks like and you are a great example. Thanks again for the post!

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