The German justice minister has proposed that all EU states should criminalise Holocaust denial and ban the public display of Nazi insignia, as Germany itself does. The EU's justice commissioner has apparently supported her. No reasonable person will doubt their good intentions, but this would be a big mistake. I hope and trust that other EU members will put a stop to this deeply unwise proposal, as they have to similar ones in the past.

Let me be clear about my starting-point. The Nazi Holocaust of the European Jews was unique. The main historical facts about it should be known by every contemporary European. Trying to ensure that nothing like that ever again happens here in Europe (or anywhere else in the world, insofar as that is in our power) should be one of the fundamental aims of the EU. As someone who came to European affairs through the study of Nazi Germany, I can say that this was a major reason for my personal commitment to what we call the European project.

That a measure is well-intended does not, however, make it wise. The road to hell is paved with good intentions. And this proposal is very unwise. First of all, if passed, it would further curtail free expression - at a time when that is under threat from many quarters. Free expression is a unique and primary good in free societies; it's the oxygen that sustains other freedoms. You must therefore have very good reasons for restricting it by law.

The German justice minister, Brigitte Zypries, argues that she has such reasons. Recalling the way in which the anti-semitic words of Hitler and others paved the way for the horrors of Nazism, she says: "This historical experience puts Germany under a permanent obligation to combat systematically every form of racism, anti-semitism and xenophobia. And we should not wait until it comes to deeds. We must act already against the intellectual pathbreakers of the crime" (I translate from a speech posted on the German justice ministry's website). So this additional restriction on free expression - an EU-wide ban on Holocaust denial and Nazi insignia - is justified because it will make a significant difference to combating racism, anti-semitism and xenophobia today.

But what is the evidence for that? Nine EU member states currently have laws against Holocaust denial: Austria, Belgium, the Czech Republic, France, Germany, Lithuania, Poland, Romania and Slovakia. That happens to be a list of countries with some of the strongest rightwing xenophobic parties in the EU, from France's National Front and the Vlaams Belang in Belgium to the NPD in Germany and the Greater Romania party. Self-evidently those parties don't exist as a result of Holocaust denial laws. Indeed, the existence of such parties is one of the reasons given for having the laws, but the laws have obviously not prevented their vigorous and dangerous growth. If anything, the bans and resulting court cases have given them a nimbus of persecution, that far-right populists love to exploit.

The same thing has happened with the imprisonment of David Irving in Austria. Six years ago Irving lost, in the British high court, a spectacular libel case that he had himself initiated against the American historian Deborah Lipstadt, who had described him as "one of the most prominent and dangerous Holocaust deniers". Mr Justice Gray concluded that Irving was "an active Holocaust denier". The last shreds of his reputation as a serious historian were torn apart - in a country that does not ban Holocaust denial. Now, having served time in Austria for statements he made there 16 years before, he can pose as a martyr for free speech and receives renewed publicity for his calumnies. At a press conference after his release, he reportedly endorsed the drunken anti-semitic comment of Mel Gibson that "the Jews" are responsible for all the wars in the world

Now suppose the ban on displaying Nazi insignia had already been in force EU-wide and the British courts had therefore been obliged to prosecute Prince Harry for (offensively and idiotically) sporting an Afrika Korps uniform and swastika armband at a friend's fancy dress party. What would that have done to combat Eurosceptic and xenophobic extremism in Britain? Nothing. Quite the reverse: it would have been worth thousands of votes to the British National party. And while we're on the subject of the swastika, Hindus across Europe are protesting against the proposed ban, on the grounds that for them the swastika is an ancient symbol of peace. Meanwhile, the German legal authorities have got themselves into a ridiculous tangle because a court in Stuttgart has convicted the manager of a mail-order company for selling T-shirts showing crossed-out and crushed swastikas. These might be anti-fascist T-shirts, you see, but they still showed swastikas and were therefore illegal. And so it goes on, and would go on even more if the whole EU adopted such measures.

The argument that these well-intentioned bans actually feed the flames they are meant to quench is, of course, ultimately unprovable, although circumstantial and anecdotal evidence points in that direction. But the burden of proof is on the proponents of the ban. In a free society, any restriction on free speech must have a compelling justification - and that is not available here.

Holocaust denial should be combated in our schools, our universities and our media, not in police stations and courts. It is, at most, a minor contributing factor to today's far-right racism and xenophobia, which now mainly targets Muslims, people of different skin colour, and migrants of all kinds. Nor will today's anti-semitism be countered most effectively by such bans; they may, at the margins, even stoke it up, feeding conspiracy theories about Jewish power and accusations of double-standards. Citizens of the Baltic states, who suffered so terribly under Stalin, will ask why only denial of the Holocaust should be criminalised and not denial of the gulag. Armenians will add: and why not the genocide that our ancestors experienced at the hands of the Turks? And Muslims: why not cartoons of Muhammad?

The approach advocated by the German justice minister also reeks of the nanny state. It speaks in the name of freedom but does not trust people to exercise freedom responsibly. Citizens are to be treated as children, guided and guarded at every turn. Indeed, the more I look at what Zypries does and says, the more she seems to me the personification of the contemporary European nanny state. It's no accident that she has also been closely involved in extending German law to allow more bugging of private homes. Vertrauen ist gut, Kontrolle ist besser (trust is good, control is better). Isn't that another mistake Germany made in the past?

Zypries is right: we must learn the lessons of history. But we must learn the right lessons of history, the ones relevant to a free, multicultural continent today. "Experience shows," writes the former attorney general of India, Soli Sorabjee, "that criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression ... We need not more repressive laws but more free speech to combat bigotry and to promote tolerance." True for India and true for Europe.



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