ISSN 1440-9828
                                                   March 2007               
                                                                                   No 321

 

Free Speech and its Postmodern Adversaries - II

 

Laurence  W Maher, Barrister

 

Faces Of Hate/Faces Of Repression

33. At its most extreme, the new postmodern censorship movement has sought not only to claw back the controls surrendered by the State in various struggles up to the mid-1970s, but also to regulate the tone and content of the underlying debate about justifications for, and the alleged harms of, free speech. In some cases, the attack on the traditional liberal democratic view of free speech has produced its own radical reactions. In part, the collection of essays, Faces of Hate: Hate Crime in Australia, [52] illustrates the intensity of the contemporary free speech debate in Australia and the influence of new intellectual and social movements which seek a return to the days of State intervention to suppress ideas and opinions which are said to be unpopular if not repulsive to most fair-minded Australians. The focus of Faces of Hate is on "hate crime" including the search for new justifications for suppressing speech and speech-related conduct said to be expressive of hate directed, in a harmful way, to certain allegedly vulnerable minorities.

34. In particular, in chapter 8 of Faces of Hate, entitled "Memory, Murder and Justice: Holocaust Denial and the 'scholarship' of Hate", [53] David Fraser, a member of the staff of the Faculty of Law at The University of Sydney, offers "an examination of the phenomenon known as Holocaust denial" and its relationship to freedom of expression. [54] His examination focuses on three publications:

        o (a) John Bennett's, Your Rights 94, a pamphlet published by the Australian Civil Liberties Union;

        o (b)This author's article, "Migration Act Visitor Entry Controls and Free Speech: The Case of David Irving" ("the Irving article") published in the Sydney Law Review [55] and

        o (c)Unidentified statements, attributed to Professor Christina Jeffrey of Kennesaw, State College of Marietta, Georgia, evaluating an education programme in the United States of America.

35. Bennett is known for expressing views that purport to cast doubt on the widely accepted account of the Nazi death camps. Fraser attacks Bennett for that part of his pamphlet in which Bennett is said to deny that the Nazi regime in Germany systematically murdered millions of European Jews. [56]

36. Fraser attacks Jeffrey for a critical evaluation of a Holocaust education programme that was said to lack objectivity because the Nazi point of view was not presented. [57]

37. The Irving article offered an analysis of the decision of the Full Federal Court of Australia in 1993 in Irving v Minister for Immigration and Ethnic Affairs. [58] That analysis, stripped of its detail, was relatively straightforward. First, it was critical of the Commonwealth Government's decision to deny David Irving entry to Australia. It argued that however odious Irving's well known views on the Holocaust might be, unless there was a clear danger to public safety, it was wrong in principle both to deny him the right to express his views and to prevent Australian audiences from hearing him. This was what might be called a standard liberal democratic view inspired by arguments that have evolved from Milton through J S Mill to Ronald Dworkin. Secondly, the criticism of the denial of an entry permit to Irving was based on the elementary distinction between, on the one hand, advocating Holocaust denial (or Holocaust revision) and, on the other, advocating the right of individuals to express Holocaust denial ideas and opinions. Finally, the article stressed the dangers to individual freedom implicit in censoring unpopular ideas or opinions on the ground that they "harm" entire groups or classes of "victims" or "subordinated" or "oppressed" social groups or imperil the struggle for equality.

38. In chapter 8 of Faces of Hate, Fraser vehemently attacks the three chosen publications. In doing so, he accuses those who argue that Irving or any other Holocaust denier (or Holocaust reviser) should be free to express Holocaust denial ideas and opinions of thereby engaging in the nightmare of Holocaust denial. In making his attack on individual free speech, Fraser expressly reveals a preference for the abstractions of postmodern social theory and analysis and the allied analytical or interpretative techniques generically collected under the term "deconstruction". [59]

39. As the passages reproduced below amply demonstrate, Fraser contends that the Sydney Law Review is to be criticised for publishing a contribution which lends respectability to, and, in substance, promotes and is thereby part of what Fraser repeatedly calls "the nightmare of Holocaust denial". [60]

40. In the end, Fraser's thesis is that the distinction between expressing a view and defending the right to express the view (hereinafter "the categorical free speech distinction") is both false and dangerous. By denying the existence or validity of that distinction, Fraser is able to assert that hatred, and more specifically anti-semitism, has become part of accepted public behaviour in Australia in part by reason of the availability of material like the three publications which are part of Fraser's self-described nightmare. [61]

41. The Irving article enjoys no immunity from criticism - informed or ill-informed, polite or strident. Nor should it. [62] However, Fraser caricatures the Irving article and the debate about individual free speech and, in doing so, inevitably invites a response. The purpose of this article is to refute Fraser's attack on the article (and the Sydney Law Review) and his disparaging characterisation of this author's motivation or purpose in authoring it, to comment on Fraser's views about free speech which are representative of much of the new censorship orthodoxy, to offer a brief assessment of one discrete use by Fraser of postmodernism in legal scholarship, to identify the ways in which postmodernist claims are being deployed to undermine arguments for minimal restrictions on individual freedom of expression, and, finally (and briefly) to suggest that there is a need for a renewed realist skepticism in legal scholarship.

42. In the end, anyone interested enough in the debate provoked by Fraser's attack on the Irving article and the Sydney Law Review's alleged complicity in its publication can read the article and Fraser's contribution and make an independent judgment.

Charge And Refutation

43. In order to demonstrate both the profound clash of values that the contemporary free speech debate exposes and the nature and extent of the error which Fraser commits in his contribution to Faces of Hate, it is necessary to set out the elements in Fraser's argument. Fraser's treatment of what he describes as the legal ideology and practice of free speech in the context of debates about Holocaust denial, [63] of which David Irving's work is said by Fraser to be a very prominent example, can be summarised as follows:

The Nazi regime in Germany systematically murdered millions of European Jews. [64] Fraser describes this as a truth that is basic and immutable. [65]

44. This claim commands near-universal acceptance. Any person prepared to read the Irving article could not escape the conclusion that it accepts the claim and that the article is not concerned to investigate whether or not it is true. However, contrary to what is clearly stated in it, Fraser goes on to assert that the Irving article means something else, something which is contradictory, sinister and deserving of censure.

45. In contemporary Australia, hate-motivated vilification of minority or traditionally oppressed communities focuses attention on the fact that there is an increasing acceptance of the intimate connection between Australian democracy and a "sanctified" status for speech, that a critical distinction is made between speech and action, and that responding to such vilification may lead to censorship of unpopular ideas. [66] For the most part, even though it rests on a kind of formulaic abstraction, this is a viewpoint that can act as an introduction to the arguments for and against censorship.

46. There is a phenomenon called Holocaust denial. It claims to offer a "truthful" account of historical events, it claims scholarly respectability, [67] and it cunningly trades off a tradition that even the expression of loathsome opinions can foster debate from which the truth can (or, perhaps, inevitably, will) emerge. For Fraser, the manifest absurdity of their claim to historical scholarship, demonstrates that the practitioners of Holocaust denial are evil. [68] This author's description of the phenomenon of Holocaust denial and details of some of the main sources of the scholarly debate are set out in the Irving article and it is not necessary to repeat that description here.

47. The next step is illustrative of Fraser's preference for highly abstract argument, and metaphor. He asserts that, by reason of the matter set out in step 3, the real danger of Holocaust denial is that "Truth" in free speech ideology becomes synonymous with hate and, even more disturbingly, it becomes synonymous with legally protected hate. [69] It is best to let Fraser articulate this claim:

To accept the vision of our society as defined by an overriding value placed in the concept and practice of free speech is to accept Holocaust denial as part of the discursive matrix that constitutes in a real and important way our democracy. In other words, Holocaust deniers seem to have found a way to make hatred and violence not just acceptable but necessary. (emphasis added)[70]

48. This step introduces a further layer of abstraction. Holocaust deniers are clever lawyers who have realised that merely being able to play the game is a form of winning. The Holocaust deniers accept something described (but not defined or illustrated) by Fraser as "the categories of the dominant discourses of modernity and thereby fundamentally [change] the substantive content of the categories". [71]

49. Reminding readers that Holocaust deniers are evil, Fraser states that they propagate the grotesque claim that there is a Jewish conspiracy to corrupt our civilization. Such propaganda is exemplified in the infamous anti-semitic tract, The Protocols of the Elders of Zion. [72] Holocaust deniers should be treated as (and therefore punished as) criminals. [73]

50. In some unexplained literal way, Holocaust deniers have had a "victory" - an "ultimate victory of form over content, of law over justice". That "victory" arises out of a legalistic strategy which is full of hate. [74]

51. Holocaust deniers have the temerity to seek to test the oral and documentary evidence which establishes that the Nazis instituted their campaign of mass murder. It seems to be Fraser's case that, by engaging in such an analysis, the Holocaust deniers have exhibited some devillish mastery of language which, again literally, immobilises all those exposed to such ideas even those who regard Holocaust denial with contempt and seek openly to resist it and to expose its practitioners as charlatans. [75]

52. Holocaust denial is a "nightmare". The "nightmare" is the denial of the tragedy of the Holocaust itself. It leads inexorably to an abstract condition described in the following terms:

Law replaces justice as it becomes impossible to speak of justice. The attack against memory, the sacrilege against the dead and the living, the incitement to hatred which is the message and goal of Holocaust denial, are all examples of the violence of the law (Derrida 1990) and are all closer than we might like to think. The academic legitimation of antisemitism, of hatred, paranoia, conspiracy and violence, which are the goals of the Holocaust deniers and which unite them with other practitioners of hate, are increasingly public and present in everyday life. [76] (emphasis added)

53. Fraser repeatedly asserts that there are various forms of Holocaust denial. Holocaust deniers claim that they are exercising their right to freedom of thought and freedom of expression. [77] Persons (like this author) who defend the right of individuals to express Holocaust denial views are themselves directly implicated in the evil and nightmare of Holocaust denial. [78] Even those (like the editors of the Sydney Law Review) who permit an author to argue the free speech cause for Holocaust deniers are similarly implicated. [79] In that sense, according to Fraser, they are all Holocaust deniers and they are all criminals. [80] Fraser is not given to understatement and does not altogether eschew the use of concrete imagery. So, for example, the work of the phoney practitioners of "academic" or "scholarly" Holocaust denial is more pernicious than hate-motivated violence. [81] Again, it is best to let Fraser do the talking directly - these are examples:

        o Holocaust denial is nothing more than the final victory of the signifier over the signified, the ultimate goal of any bureaucratic state. The euphemism under the Nazis became the new reality. Now the reality of the "Final Solution" is itself under semiotic assault by a new group which seeks to remove the euphemisms of the Third Reich in order to pave the way for a "Final Solution" of the "Final Solution"; [82]

        o In the pages of the Sydney Law Review, Holocaust denial has achieved the kind of victories for which its proponents fight every day. Their goal is to be treated as "Holocaust Revisionists", as another "school of historical thought", struggling against the dominant and hegemonic "Exterminationists". In footnote 1 [of the Irving article], and in the pages which follow, they have won an important victory. The nightmare [i.e. of Holocaust denial] becomes reality, from your local newsagent to the pages of a self-declared elite law review. [83]

        o [the Holocaust deniers] are at once more subtle and more pernicious than their skinhead cousins, for their acts of violence exist not against property or persons in the dark of night but against memory and justice in what appears to be the light of day, in the illuminating effect of knowledge from which the Enlightenment takes it name, and from which our legal system claims to draw its fundamental principles. [84]

        o ... it is vital to keep in mind the fact that Holocaust deniers are the intellectual and ideological storm-troopers of a worldwide assortment of violent antisemites. While they may not themselves firebomb synagogues, desecrate cemeteries or physically assault Jews, they provide the legitimating grounds for those who do. Their words are violent, and their hands are bloody. [85]

        o Are we condemned to live out [the] nightmare, in which the reality and memory of the extermination are themselves relegated to the ash heap of history in a legal struggle in which criminals set the rules? [86]

        o The amnesty afforded Holocaust denial in the official discourse of Washington raises as acutely as do Bennett's pamphlet and Maher's article in the pages of the Sydney Law Review, the basic and fundamental question of the role to be played by legal discourse and practice (if they can be separated) in the struggle with and around Holocaust denial. Hate, slowly but surely, enters the mainstream. [87]

        o In what may appear to be a contradictory tradition, in this battle for the terrain of memory, the Holocaust deniers adopt many of the same tactics and strategies of the Nazi regime they seek to rehabilitate. [88]

The safest course is to say nothing, or nothing even remotely "offensive". The idea that no individual should have a legal right not to be offended or not to have his or her convictions challenged is, it seems, highly offensive.

92. Secondly, there is the inevitable risk of selective or discriminatory enforcement according to the predispositions of the State enforcement authority, and/or orthodoxies prevailing from time to time so that an individual's right to express strongly dissenting opinions is subject to the whim of, or the external pressures exerted on, the policing agency. If the history of prohibitions on "offensive" conduct and speech is any guide, law enforcement is likely to be governed by oppressive political and other arbitrary considerations.

93. Finally, although the prohibition in s 18C is directed to "acts", it should be regarded with deep suspicion for the very reason that it tends to obscure the vital distinction between speech and conduct. Speech and conduct are best seen as involving a continuum with expressive conduct being given the widest possible ambit so that there is effective legal protection to individual free speech. Section 18C expressly targets the mere expression of ideas and opinions in addition to other forms conduct which in substance involve more than the mere expression of ideas or speech-related conduct. Moreover, s18C explicitly discriminates on the basis of the content of the targeted speech. There is no sound basis in a free and open society why the law should give effect to such discrimination.

94. These objections are compounded by the obscurity of the ostensible limitation in s 18D of the Act which provides that s 18C does not render unlawful anything said or done reasonably and in good faith:

o (a) in the performance, exhibition or distribution of an artistic work; or

o (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

o (c) in making or publishing:

+ (i) a fair and accurate report of any event or matter of public interest; or

+ (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

95. Section 18D is, in truth, a recognition of the futility (if not a logical contradiction) inherent in the search for a formula which only selectively prohibits conduct capable of giving offence. The use of the adjective "genuine", as in "genuine academic interest" and "genuine purpose in the public interest", is a further illustration of the unworkability of s 18C and the fact that legislation can be a very blunt instrument for securing civility and decency among the citizenry. For example, would a court be bound to hold that a visit to Australia by David Irving to promote his views about the Holocaust could not be a "genuine purpose in the public interest"? What, precisely, do the terms "reasonable" and "genuine" mean here? The potential which the 1995 Act has created:

        o (a) for the promotion of self-censorship across a wide-range of controversial speech,

        o (b) for official vetting of "offensive" speech, and

        o (c) for the wasting of scarce public resources in the extirpation of illegal speech is illustrated by the altogether bizarre spectacle of the Miss Bosnia case in which the playright, Louis Nowra, and the Melbourne Theatre Company were subjected to a full-scale inquiry by the Human Rights and Equal Opportunity Commission on the basis that Nowra's play offended a small group of persons loyal to Bosnia-Herzegovina. [130]

96. Taken as a whole, Part IIA is a direct attack on the proposition that the State has no business telling individuals what to think, and no business, absent a compelling justification far beyond the disagreeable or controversial content of speech, telling the individual what to say or not to say.

97. As indicated earlier, supporters of minimal restrictions on individual free speech frequently draw a distinction between, on the one hand, so-called mere expression and speech-related conduct and, on the other hand, expressive conduct or action going beyond mere speech so that restrictions on the latter which have the effect of limiting speech are more readily justifiable. It has to be said that the speech/conduct distinction is not always easily applied. After all, it is true that, in a broad sense, all speech is a form of conduct or action. Moreover, as Justices Holmes and Brandeis observed in Gitlow v New York, when it comes to the expression of ideas: "Every idea is an incitement". [131] In order to protect free speech adequately, it is necessary to give the mere speech element as wide an interpretation as is possible. However, some proponents of the new censorship regimes seek to characterise the speech/conduct distinction as artificial and dangerous and contend that "mere words" such as "hate speech" can be sufficiently harmful to warrant suppression.

98. This view is also exemplified in the curtailment of the expression of ideas or opinions especially those referable to minorities on the basis that mere speech can create or amount to a (discriminatory) "hostile environment". In substance, this new mechanism involves a re-casting of the offensive behaviour concept. It can be readily acknowledged, for example, that in the field of employment an employee may be subjected to unsolicited and unwelcome speech (or speech-related conduct) by an employer (or a fellow employee) in a way which is capable of interfering tangibly with the employee's right to work without unjustified and invidious interference. An employee may be subjected to depictions of sexually suggestive material (or spoken sexual advances), to religious proseltysing, to political campaigning, or to miscellaneous expressions of bigotry. The speech may be an isolated event or repeated or pervasive. Its impact on the targeted employee(s) may be transient or severe. It is, or should always be, to borrow the words of Holmes J in Schenck v US "a question of proximity and degree". [132]

99. The challenge here is to be clear about the purpose of the legislative prohibitions and to formulate a clear, fair and workable definition of the concept of the hostile environment. What is the relevant "environment" and when or how can it be said to have become impermissibly "hostile"? There are at least four possible perspectives - those of the perpetrator, the victim, actual bystanders (if any), and the hypothetical reasonable and objective bystander. A regime under which liability depends only on the perception of the perpetrator or the victim will, inevitably, produce its own discriminatory and capricious results especially since the mere fact that A disagrees with B is theoretically capable of enabling B to assert that A is hostile. An employer (or fellow employees or outsiders) should not be permitted to escape liability simply by asserting an absence of intention to be hostile. Likewise, an employee should not be entitled to establish liability simply by asserting that that there was a subjective perception of hostility. The hostile environment provisions ostensibly involve an attempt to anchor the law in a notion of justifiable harm prevention. However, unless they are carefully defined and applied, the price their enforcement will exact an unjustifiable retreat from tolerance. It is therefore critical to identify the actual harm.

100. Applying the hostile environment concept calls for an objective consideration of all relevant contextual factors including the extent of repetition, if any, of the unwelcome speech, the tone and language used by the speaker, and the overall context and the content of the speech. In the employment context, the mere fact that an employee is distressed by the knowledge that an employer (or a fellow employee) holds and expresses what may be perceived as offensive opinions about, say, abortion or censorship or homosexual marriage or aboriginal welfare or migration, ought not in itself be capable of supporting a hostile environment claim. Sexual overtures may or may not create the impermissible hostile environment. Ultimately, the specific content of the speech is one only (albeit potentially important) indicative factor. The real harm is to be judged objectively and is to be found in a course of conduct which tangibly interferes with the employee's right to work without unjustified interference. [133]

101. The risk that the hostile environment provisions will be used in a repressive way is real. In the Piss Christ controversy in Melbourne, the most vigorous opponents of the decision of the National Gallery of Victoria to exhibit the Andres Serrano photograph claimed not only that the Gallery had contravened the common law of blasphemy and legislative bans on obscenity, but that it had also contravened the Equal Opportunity Act 1995 (Vic). It was alleged that the mere fact that the Serrano image was publicly displayed was enough to produce a discriminatory hostile environment for Christians (and the adherents of other religions) such as to prevent them from having access to the Gallery thus subjecting them to illegal discrimination in the provision of services. In fact, the Serrano image was simultaneously acclaimed as aesthetically pleasing and artistically valuable, and condemned as profoundly disgusting and offensive. Although the complaint was struck out, the merits of the hostile environment claim were not resolved. [134]

102. The inherent imprecision of the concepts of offensive behaviour and the hostile environment demonstrate that there is a stark choice to be made between protecting individual free speech and being concerned that such speech (because of its form or content) may give offence. In prohibiting offensive speech and conduct in the 1995 Act, the Commonwealth Parliament has wrongly elevated assumed group feelings to a sacrosanct position. The imposition of legal sanctions may be thought to provide a kind of necessary therapeutic response to the psychic harm allegedly inflicted on protected minorities by what is so loosely labelled "hate speech". The objection to the new wide-ranging scheme of censorship embodied in the Act does not involve any denial that speech can be hurtful or threatening. Rather, the objection proceeds on the footing that in penalising offensive conduct the law ignores the fact that individuals are resilient. In postmodern terms, however, the feelings of offence, humiliation etc have their own "truth" and should not be questioned since, for example, the experience of the victim of "words that wound" is said to be every bit as real as that of the victim of a physical wounding. [135] However, the truth is that in this context there is a world of difference between the speech and the conduct. A system in which the supposed feelings associated with a vulnerable collective human experience operate to define liability is both unjust and unworkable. As the history of literary, artistic and political censorship over at least the past century amply demonstrates, the law is notoriously unsuited to the enforcement of virtue, good taste, and polite discourse and is used oppressively. [136]

103. The use of the generic term "hate speech" tends to detract from the free speech debate because, like the term "offensive speech", it is so hopelessly vague. Moreover, its rhetorical impact should not be under-estimated. "Surely, you can't be serious in wanting to defend the rights of hate mongers"? "How can you defend the indefensible"? These types of strictures suggest that the inquirer regards the object of the inquiry as being obviously beyond the postmodern pale of civilised conduct. Fraser's article demonstrates that it is but a short pejorative step to the conclusion that the defender embraces the allegedly odious views of the person whose speech rights are defended.

104. Fraser is resolute in his determination to deny the categorical free speech distinction and to promote the imposition of criminal penalties for "hate speech". That is a stance that is adopted by other Australian proponents of hate speech laws. Thus, for example, two leading Australian commentators had this to say in 1995:

To put the right of a person to express [racial] contempt or hatred ahead of the right of a victim to be protected from its effects is, in itself, an expression of racism. [137]

105. It would be wrong, of course, to assume that all proponents of "hate speech" laws regard those who disagree with them as being, for that reason alone, racists. It has to be said, however, that such profoundly irrational and intolerant appeals can have great weight in swaying public feeling against supporting the right to express obnoxious opinions. It is no great task to argue for the free speech rights of the virtuous or the orthodox or the timid.

106. Part of the confusion inherent in Fraser's attack on free speech is a kind of Manichean notion of tolerance expressed in terms that seem to be de rigueur in the postmodern domain given the so-called victory thesis and the stereotypical representation of vulnerable minorities.

The notion of "tolerance" itself has been increasingly deconstructed for the relations of power embedded in it. The notion implies the "tolerant" and the "tolerated", with an implicit and unequal power relationship between the two. Who indeed desires to be tolerated? To be tolerated is to be cast as less than, as an unequal who can be merely accepted within certain boundaries. The recent political history of Australia shows how flimsy "tolerance" can be and how quickly the boundaries can shift. The political climate from the beginning of 1996 has been one where the public expression of racism has increasingly become part of acceptable discourse. [138]

107. The deconstructionist effort here is, however, altogether wasted. This self-pitying conception of tolerance - as no more than being pitifully or sneeringly tolerated - is unrecognisable as part of any justification for minimum restrictions on individual freedom of expression. It is the antithesis of the liberal democratic claim that every person, regardless of "group identity", makes an equal claim of individual dignity and self-worth in being able to express and receive ideas and opinions. It confuses the positive and sustaining idea that a society is more likely to be healthy and to achieve true equality if it embraces/tolerates a wide range of opinions including sharply conflicting opinions with a negative and grudging idea that by permitting such a wide scope for individual expression we are being disdainful of vulnerable minorities. The irony is that on Fraser's simplistic binary view of the tolerant/the tolerated, David Irving really should be an object of derision, not the fear and hysteria which is inherent in Fraser's approach. Fraser's view in this respect is also incompatible with his adoption of the widely held view that the evidence against the Holocaust deniers is unanswerable and that there is such a thing as a basic and immutable truth. For someone so angry about a free and open society permitting the expression of "evil" opinions, Fraser mystifyingly swings, yet again, to a profoundly negative and defeatist conclusion.

We lose any grip on memory, we begin to think in terms of forgetting that which we have not really begun to remember. [139]

108. Again, allowing for the ambiguous use of the first person plural, does Fraser really believe this is what is happening to him? Does Fraser really believe this what is happening to the rest of us? If so, where is the evidence for the latter sweeping assertion? Whatever the answers may be, we have here another puzzling metaphor. This, in turn, focuses attention on the pitfalls of Fraser's preferred postmodern investigative methodology that underpins much of the new censorship movement. To begin with it is necessary to comment on a disturbing phase in the evolution of postmodernism to which Fraser draws attention.

A Postmodern Detour

109. Fraser's investigative technique owes everything to the broad sceptical or cultural relativist movement called postmodernism. [140]

110. Fraser identifies one passing descriptive reference to Irving's historiography in the Irving article as a criticism of something which, intellectually, Fraser holds dear. Fraser takes this author to task for including in the Irving article the following sentence:

Ironically, there is clearly something of the postmodernist in David Irving in his extraordinary attempt to deny the Holocaust. [141]

111. Here, Fraser's criticism has two aspects: one formal and trivial, the other arguably substantial, but, in truth, misconceived. First, says Fraser, the passage in the Irving article "is not even graced with a footnote". [142] Secondly, this author has, it seems, blasphemed by participating in what Fraser calls,

a now common discursive attempt to attack deconstruction or postmodernism by indirectly tainting it with some form of connection with the Holocaust or by some implied argument about "political correctness", [and] "less ambiguously" [by giving] "an intellectual legitimacy to Irving by granting to his work an intellectual gravamen it clearly does not merit. [143]

112. According to Fraser, this blasphemy is made worse because it trivialises and, worse still, pokes fun at the terrible suffering which the Holocaust inflicted. Thus,

[t]o call someone who denies the existence of the Auschwitz gas chambers, at least by implication, a postmodern ironist, is uncalled for and offensive. It is also exactly the position adopted by the deniers themselves" (reference omitted). Denying the reality of the gas chambers and the crematoria of Birkenau is not a matter for ironic interventions, postmodern jouissance, or for sardonic humour, except, it would appear, in the pages of the Sydney Law Review. [144]

113. As far as the concept of postmodern "readings" of "texts" is concerned, Fraser's chastisement is on its face at once a fantastic yet distinctly revealing "reading". There is nothing in the Irving article which could be characterised as detracting from the monstrousness of the Holocaust or as making light of the experiences of its victims. Nor is there anything directly or indirectly tainting deconstruction or postmodernism by some form of connection with the Holocaust. The Irving article was not an investigation of "deconstruction". [145] Nor is there any implied argument about "political correctness" although there is an express treatment of "political correctness" and free speech the elements of which Fraser skates over. [146]

114. The focus of what Fraser describes as the "uncalled for and offensive" [147] sentence - the irony - is manifestly on Irving and his historiography, not on deconstruction or postmodernism as such. It would be a challenging task to establish that Irving sees himself as consciously espousing or practising some form of postmodernist credo.

The passing reference to Irving's historiography simply illustrates the inherent defect in those self-contradictory brands of postmodernism for which truth as a concept is always chimerical or socially constructed or unknowable or dependent on no more than the perspective of the observer with the result that all historical events and opinions are contingent "texts" waiting to be "deconstructed".

 

115. Irving seeks to rewrite history in the face of overwhelming evidence (which is cited in the Irving article) of systematic Nazi extermination. Irving does not claim to be a postmodernist (of any particular school). Rather, he is a kind of unwitting postmodernist. His assault on historical truth involves an exaggerated and disordered skepticism, in the face of the truth, which is calculated to lead inevitably to a state of nagging doubt (if not relativism and nihilism). Thus, in its effect, Irving's skepticism closely resembles the relativism of much of what passes as deconstruction or postmodernism. The contextual basis for the sentence which Fraser characterises as "offensive" is clearly dealt with in the Irving article as part of an argument about new justifications for legal restrictions on dissenting speech. Again, Fraser ignores the surrounding argument.

116. The "offensive" sentence in the Irving article contains a claim that can be debated. But, Fraser exhibits exquisite sensitivity about it. As a matter of logical thinking, the claim which the offending sentence embodies does not make the adherents of deconstruction or postmodernism generally open to criticism for some dubious connection with the Holocaust any more than saying that Adolf Hitler's family had a Catholic background compels the conclusion that Catholics as a group must necessarily have his appalling sins and those of his gangster regime visited on them. [148]

117. Nevertheless, given the relevance of his trenchant criticism of the liberal case for minimum restrictions on individual freedom of thought and expression, Fraser's confused and confusing mention of a link between postmodernism and the Holocaust does raise an issue of importance regarding postmodern attacks on individual free speech.

Unfortunately, just as there were more troubling direct links between some Catholics and some forms of institutional German Catholicism and Nazism, there were, in fact, as Fraser himself announces, direct links between deconstruction or postmodernism, and Nazism. Since Fraser uses the subject of such links to underpin his attack on the Irving article in the context of an insistence that this author write (and the Sydney Law Review publish) only the type of law review article that meets with Fraser's ideological approval, but more importantly because Fraser's treatment of the link which he introduces is misleadingly incomplete, some response is called for.

118. In footnote 5, Fraser contributes this aside:

Ironically, Maher's efforts here [i.e. the reference to Irving as ironic postmodernist denier of historical truth] is not even graced with footnotes in support. His comment can nonetheless be seen to reflect recent debates around both the the "Heidegger affair" and the "de Man affair", revelations about the writings of Martin Heidegger and Paul de Man, two of the intellectual forces behind many of the writers associated with "deconstruction" and/or "postmodernism", and their involvement with Nazi ideology (Wolin 1990, Sluga 1993, de Man 1988 and Derrida 1988). (emphasis supplied) [149]

119. This is an example of Fraser's tendency to search for hidden sinister meaning in texts of which he disapproves. What is the reader to make of Fraser's footnote 5? It lacks an express point or conclusion, its abstraction and ambiguity misrepresents the historical record, and it excludes important sources [150] - all of which can be said not to come as that much of a surprise in an "investigation" that does not pretend to set much store by "dispassionate academic tract writing".

What is Fraser saying about the links which he introduces? That they do not exist? That they exist, but that are of little or no consequence? That they raise a substantive issue about the utility of deconstruction and postmodernism? Whatever criticism might justifiably be levelled at contemporary Holocaust deniers, they can scarcely be blamed for the links which Fraser hints at. Fraser is, after all, attacking a mixed group of persons who whatever else they are cannot be labelled as conscious postmodernists. [151]

120. In the interests of investigative accuracy, what Fraser calls "the Heidegger affair" may be said, in short, to refer to revelations about the active Nazi record of the noted German philosopher, Martin Heidegger. [152] Likewise, what Fraser calls "the de Man affair" may be said, in short, to refer to revelations about the active Nazi record of the Belgian-American literary theorist, Paul de Man. [153] As Fraser records, both men (but especially Heidegger) occupy prominent positions in the evolution of postmodernism and deconstruction.

121. It is simply not an accurate specification to say that "the Heidegger affair" is concerned with revelations about the writings of Martin Heidegger and something abstract described by Fraser as his involvement with Nazi ideology. Rather its very concrete focus is Heidegger's prolonged active career as a paid up Nazi from the 1930s until the end of the Second World War. Not to put too a fine a point on it, Heidegger enthusiastically embraced Hitler's ascension to power and stands accused of anti-semitism. As Rector of the University of Freiburg, Heidegger was responsible for appallingly discriminatory treatment of colleagues who opposed the Nazis. [154] It is not a pleasant story at all.

122. Similarly, it is simply not an accurate specification to say that "the de Man affair" is concerned with revelations about the writings of de Man and his involvement with Nazi ideology. As with Heidegger, the focus is very concrete, namely, de Man's active wartime career in which he enthusiastically collaborated with the Nazis during their occupation of Belgium and accusations that he propagated anti-semitic material. As with Heidegger, it is not a pleasant story at all. [155]

123. It may well be that the explanation for his misleading introduction of the subject of the Nazi affiliations of individuals whose writings inspired some forms of postmodernism lies in Fraser's approach to the annihilation of the distinction between speech and conduct. [156]

Thus, Fraser's complaint of "a now common discursive attempt to attack deconstruction or postmodernism by indirectly tainting it with some form of connection with the Holocaust" - through Heidegger and de Man - is an exceedingly weak complaint. It sets up a straw person. But, the problematic status of their connection with pro-Nazi activities is a fact of life. Any resulting intellectual or spiritual discomfort felt by disciples of Heidegger and de Man is entirely self-inflicted.

To the extent that there is a connection which has attracted criticism, it is direct, but it is not the work of the critics of postmodernism. Rather, it is attributable to the work of scholars who would ignore altogether or (like Derrida) seek to explain away the pro-Nazi activities of Heidegger and de Man. In the contingent postmodern world where it is said that the text is everything and everything is text, the risk is ever present that someone apparently as devillishly clever, dangerous and victorious as Fraser depicts David Irving to be will, in effect, treat the Holocaust (or the widely accepted representations of it) as no more than text to be deconstructed. [157]

Postmodernism, Free Speech And The Need For A Renewed "Realist" Skepticism

124. Fraser's misrepresentation of the Irving article and his attack on what he regards as the excesses of the liberal democratic case for minimal legal restrictions on individual free speech provide a vivid demonstration of the shortcomings of postmodernism. These ideological and methodological failings are to be found (in whole or in part) in various other applications in modern jurisprudence and have become quite influential in legal scholarship and legal education over the past 20 years. The systemic flaws can be summarised in following way.

The Eschewing Of Empirical Investigation

125. In the postmodern pantheon, this characteristic is more often than not to be heralded as a virtue. Empirical investigation is no substitute for intuitive deconstruction. In Fraser's case, this is taken one step further. When the empirical work of others is at odds with his pre-conceived intuitive position, he simply discards it even where he acknowledges that it is literally true. [158] It is, of course, easy enough to toss off sweeping generalisations and abstractions concerning "dominant" and "subordinated" social groups, and so on. But, it is not as if such claims cannot be subjected to careful definition, to logical analysis, and to empirical testing. Such testing, however, requires thorough and methodical effort. [159]

Fraser's occasional mention of empirical investigative method is hopelessly muddled. His inability to accept that the evidentiary claims of Holocaust deniers can be systematically analysed and empirically refuted is an inevitable outcome of his metaphorical and deeply pessimistic "victory" thesis;

The Propounding Of Grand "Theory"

126. Fraser's article exemplifies a propensity to "theorise" not in order to propound precise and tentative hypotheses for the explanation of phenomena in the real world, but rather as a manifestation of preconceived all-encompassing assertions which are put forward as a kind of catechism in the postmodern magisterium. This attachment to ideology and dogma passed off as a form of theorising is also proudly held aloft as a virtue since there is no perceived need to engage in experimental testing or verification of the postmodernists' explanations; they are, it seems, to be accepted as self-evidently and (oddly) universally true. "Theory" is thus really no more than a rhetorical tool or a strategic device;

A Determined Preference For Abstract Concepts Over Concrete Examples

127. This goes hand in hand with an attachment to sweeping intuitive generalisation. The less regard is had for the evidence of quotidian experience, the less likely it is that the postmodern theorist will succumb to the temptation to test theory or explain argument by the use of concrete examples drawn from the real world. The use of metaphor and abstraction is all-pervasive. It is conducive to the fudging (if not the outright denial) of the distinction between words and action evident in the concept of "symbolic violence" and the claim that hate speech is more harmful than physical violence; [160]

A Broad Rejection Of The Idea That There Is Useful Plain Language

128. This tenet liberates postmodern theorists to engage in abstract speculation and insinuation driven by a determination to weave all phenomena into the recondite conceptual fabric of the postmodern ideological world. Fraser's article is an illustration of the fact that much of the literature of postmodernism is a direct challenge to effective communication. Given the dominant presence of abstraction and overwrought metaphor and the use of jargon and code, it seems that incomprehensibility is also a postmodern virtue. [161] This results in a propensity to project profundity for its own sake when common sense (if the desire to communicate effectively is a motivation) demands simplicity of expression. [162] Instead, there is a kind of talking in tongues for an elite which has been initiated into the postmodern linguistic rite. The passages reproduced above amply demonstrate Fraser's seemingly evangelical fondness for this stylistic feature.

Here are some further examples:

        o ... law itself becomes not simply a form of redress against the perpetuation of hate, but must be reconstructed as a terrain of struggle in the process of positive reconstruction of identities. [163]

        o Indeed, in the realm of a legal and judicial discourse in which all of the signifying events are surrounded by the meta-narrative structure/function of free speech, the victory afforded to Holocaust denial within the semiotics of juridical space is, in fact, even more profound. A new reality now enshrouds Holocaust denial as the maniac becomes the martyr (Finkielkraut 1982:99).  [164]

        o Attacks and offensives are waged (by the Holocaust deniers) on the semiotic front; reality is questioned by way of the deployment of new signifiers through which history is literally to be rewritten. [165]

        o Holocaust denial presents itself in the judicial forum as presumptively valid. This is their victory, a victory guaranteed to them by the legal system itself. As they claim, they become another school of thought about which debate is not only possible but which is required by and within the discursive matrices of the judicial process. The action/speech dichotomy is irrelevant. [166]

        o Here we find the point of conjunction between and among Nazism, Holocaust denial and modern legal discourse From the Nazis' elimination of the distinction between words and action, to the semiotics of the policy and practice of extermination, and finally to the deniers' linguistic/juristic deployment of falsehoods as scholarship in the present-day legalistic conception of the marketplace of ideas and of free speech, we can trace the evolution of modernity. [167]

        o Thus is the irony of Holocaust denial in a democracy. The truth has no forum, no tribunal, no justice, but the truth must prevail. The crime must go unpunished in order that its truth be told. [168]

129. One way of approaching these assertions would be to invite the author to use the same number of words (plus some) and to render the intended meaning in plain English alluding to at least one arguably verifiable concrete example of the specific assertion. If the idea to be conveyed is potentially useful in the pursuit of knowledge and, if it is verifiable, it will not defy the clarity that will inevitably follow the pursuit of concrete and direct expression.

130. More than 50 years ago, in what has become one of his enduring essays, George Orwell commented ruefully on the fact "that the English language is in a bad way".[169] One can only guess what Orwell would have felt had he lived to witness the unique debasement of the English language in the widespread use, especially in academia, of impenetrable and pretentious postmodern Newspeak.

131. Occasionally, there is a preference for an idiom which reduces itself to gibberish or propels the would-be postmodern theorist into wild exaggeration and bombast. The eschewing of empirical inquiry and the highly questionable characterisation of entire groups in the community as helpless victims lead to metaphorical excess. In Fraser's case, entire groups of citizens are "forced to forget", [170] and the Holocaust deniers "have succeeded to a large extent in seeming to reverse the onus of proof ... that the Holocaust did happen." [171] Similarly, the argument that Holocaust denial should be legally protected in a free and open society is scathingly described as "legalisation of the Holocaust". [172]

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