Holocaust Denial, the First Amendment, & "Over-Protecting" Speech

Anyone simultaneously committed to the First Amendment while passionately devoted to other moral values will inevitably confront a conflict between the former and the latter. This predictable conflict is the subject of a new off-Broadway play entitled "Denial," which explores the relationship between the right of free of speech and Holocaust denial. I have not yet seen "Denial," but according to the NY Times, "Peter Sagal's 'Denial' at the Metropolitan Playhouse, is an engrossing legal drama that examines the moral and ethical dilemmas inherent in the First Amendment." The battle over the First Amendment, like similar battles involving constitutional morality, focuses on the fear--sometimes justified and sometimes not--of slippery slopes. Where does one draw the line between protected and unprotected speech? I suspect few would argue that Holocaust denial contributes to the deliberative conversation of a free people. Nonetheless, many believe that such a precious value as freedom of speech needs to be over-protected, so to speak, by constitutionally guarding not only authentic speech but inauthentic speech as well. (Indeed, the idea of over-protecting speech rejects outright any distinction between authentic and inauthentic speech.) The bet is that by constitutionally protecting speech such as Holocaust denial, the speech of other unpopular majorities is more likely to be protected. Of course, this fear of slippery slopes discounts the harm Holocaust denial may cause. First, it is a supreme affront to Holocaust survivors--those who have endured the Nazis' brutal attempt to eradicate European Jewry--to now tell these individuals that their treatment in the death camps never happened. It was, perhaps, a delusion--a collective delusion. This denigration of a person's experience, especially inhuman treatment at the hands of moral monsters, is more than an insult or offense; rather it is an affront to the very manner in which the person understands him or herself. Second, and equally, if not more, important, it successfully treats Holocaust denial as just another controversy over which reasonable people can agree to disagree. If the Times is right, "Denial" will contribute to our more fully appreciating the vexing dilemmas created by an expansive conception of the right to free speech.

The actors featured in the above photograph are Martin Novemsky and Suzanne Toren. The photographer is Michelle DeBlasi.