The Criminal Protection of Memory

Denial of the Holocaust has a growing presence in our society. Its dissemination is even more insidious today since text as well as images can easily circulate on the Web. Propaganda denying, justifying, or minimizing the Holocaust, other genocides, and crimes against humanity surreptitiously complicate and augment the landscape of racist phenomenologies that manifest themselves through acts or words. For this reason, most European legislators have introduced ad hoc criminal laws punishing acts of denial into their legal systems. This chapter investigates this reality. The laws examined have been challenged in a series of legal proceedings before domestic trial courts, constitutional courts, and the European Court of Human Rights. Analyzing denial as a crime means having to deal with the limits that criminal law imposes on freedom of expression and the question of whether the law and criminal trials can become the primary instrument for protecting and constructing memory.