Abstract

Excerpted From: Rob Kahn, Are Holocaust Denial Laws and Critical Race Theory Bans the Same?, 7 Cardozo International & Comparative Law Review 169 (Winter, 2024) (32 Footnotes) (Full Document)

Florida Administrative Code states, “Examples of theories that distort historical eve8 nts and are inconsistent with State Board approved standards include the denial or minimization of the Holocaust, and the teaching of Critical Race Theory.” The juxtaposition of Holocaust denial and “Critical Race Theory” begs the question: Do these concepts belong together? Are critical race theory bans and Holocaust denial bans the same? Can one oppose CRT bans and not oppose Holocaust denial laws?

I conclude that Holocaust denial laws and CRT bans are different. Holocaust denial was historically, and often still is, a form of hate speech. Countries might debate whether it is legitimate (or wise) to punish expressions of Holocaust denial with criminal sanctions, to oppose it as a form of hate speech, or counter it through education and regulatory mandates in school lesson plans, but, generally speaking, Holocaust denial spreads hate in spite of those efforts.

CRT bans are different. Critical race theory, which began in the 1990s, asserts that the United States was and still is systemically racist, and that the white majority only yields rights to people of color when it benefits them to do so. In the name of banning critical race theory, opponents take two main approaches. Some CRT bans list a set of “divisive concepts” that school teachers and administrators are forbidden to use. For example, the 2022 Virginia Executive Order banning “divisive concepts” includes expressions of the idea that the United States is “endemically,” “fundamentally,” or “inherently” racist. The laws also, whether or not they rely on a list of banned concepts, target speech that blames members of a specific racial, ethnic, religious, or other group for past crimes committed by members of that group.

Although some CRT bans also contain provisions punishing assertions that a given race, ethnicity, sex, or gender is inherently superior or inferior, the purpose of CRT bans is not to counter racism or to fight hate. Rather, the bans assume a link between the past and present and silence discussions about the racist nature of the past to tamp down on present conversations about race. The italicized words are crucial; CRT ban supporters vigorously insist that they do not forestall conversations about slavery or segregation. Rather, CRT ban proponents seek to prevent students from drawing “revolutionary conclusions” from this history.

Critical race theory bans, in other words, seek to silence the past in order to preserve the present status quo, which parallels Turkey's implementation of laws and educational policies that seek to silence discussion of the Armenian Genocide. In both instances, the function of these policies is to minimize discussion about ethical and moral responsibly for past wrongdoing, often at great cost to members of the group whose past trauma is being denied. This silencing quality distinguishes CRT bans from Holocaust denial laws.

The rest of this Article develops these points. The argument unfolds as follows. Part II discusses the history and rationale of Holocaust denial laws. As a historical matter, Holocaust denial prosecutions and the blanket bans on Holocaust denial that followed were aimed at countering hate speech. As a doctrinal matter, countering hate speech is the best rationale for justifying these laws (assuming they are justifiable at all). Part III discusses CRT bans. While CRT bans present themselves as protecting children from unfair assertions of guilt, and similar harms, the laws in fact serve to comfort the majority culture by silencing an unpleasant past. CRT bans' methods are similar to Turkey's silencing of the Armenian Genocide to make ethnic Turks feel comfortable. The Conclusion briefly addresses freedom of speech. Under robust free speech jurisprudence in the United States, Holocaust denial bans and CRT bans are likely unconstitutional. However, this should not obscure key differences between Holocaust denial and the speech targeted by CRT bans. We may tolerate speech we hate, but this does not mean all speech we tolerate is the same.

[. . .]

Voltaire supposedly said freedom of speech extends to speech we hate. So did Justice Alito in Matal v. Tam, citing back to Justice Holmes's dissent in United States v. Schwimmer, who called protecting speech we hate “our proudest boast.” When in the words of New York Times columnist Michelle Goldberg, “we're facing down a wave of censorship inspired by religious fervor,” has the time come to order a general retreat behind the First Amendment? Were this to happen, it would not matter how similar or different Holocaust denial laws and CRT bans were from each other. The only sure defense of speech would be to defend all of it.

Let me make two observations. First, there is very little chance that a Holocaust denial ban would survive First Amendment review; hopefully, the same is true of CRT bans. Second, however, not all speech acts--even tolerated ones--are created equal. Some speech acts, such as Holocaust denial, are hateful. Other speech acts, while subject to disagreement, still reflect worthy ideals, even misguided ones. It is worth reflecting on United States v. Schwimmer, in which a fifty-year-old pacifist refused to bear arms when there was no conscription and was denied her citizenship.

In an eloquent dissent that would have allowed Ms. Schwimmer to become a citizen, Justice Holmes disagreed that the world would soon learn that war was “absurd,” but he did not find her views hateful. Instead, he noted that noted that Quakers “had done their share to make the country what it is” and doubted that anyone regretted “our inability to expel them because they believed more than some of us do in the teaching of the Sermon on the Mount.” In other words, while there are some speech acts, like Holocaust denial, which a liberal society should find hateful, there should be other speech acts, such as a statement that the United States was racist from its founding, which deserve a certain level of respect. Chris Rufo might find this type of speech threatening to the established order, but it is not hateful.

The Turkish example provides an added warning. Silencing the past creates a world where the majority has the power of “epistemological ignorance”--of “not knowing” about past injustices. This power enables Turkish schoolchildren to ask their Armenian classmates, “Do you believe it happened?” It allows them to comment nonchalantly, “I didn't know there were Armenians in Sivas [a Turkish city].” The hidden subtext is: “Weren't they all killed?” It allows Turkish students to respond, “No problem,” when their Armenian acquaintances reveal their identity.

The spread of CRT bans has not reached Turkish proportions. Turkey had decades to perfect its regime of epistemological ignorance. The United States is at the dawn of CRT bans. Regardless of whether one believes they are memory laws, CRT bans are harmful to those whose history is denied and to the country at large. Informed by Turkey's concerning relationship with an oppressive history it seeks to hide, we still have time to nip them in the bud.

University of St. Thomas, B.A. Columbia College, Columbia University; J.D. New York University; PhD Johns Hopkins University (Political Science); Professor of Law, St. Thomas University, Minneapolis, Minnesota.