Genocide Denial and Freedom of Speech

Abstract

The Spanish Criminal Code of 1995 criminalized the dissemination by any means of ideas and doctrines denying or justifying genocide. Recently, the Spanish Constitutional Court, prompted by a referral of the Barcelona Court of Appeals, ruled in Judgment 235/2007, November 17th on the compatibility of this crime with the freedom of speech clause of the Spanish Constitution in the setting of the prosecution of a neo-Nazi activist and owner of a shop in the business of selling and distributing books, tracts and leaflets in many of them the Holocaust was, as a historical fact, denied, trivialized or justified.

This article, on occasion of the Constitutional Court's Judgment, focuses on the grounds that justify analyzing the intersections between genocide denial and freedom of speech and seeks for explanations to the majority's ruling according to which simple denials of genocide fall under the umbrella of freedom of speech and only positive value statements, that is to say, utterances extolling genocide or minimizing or trivializing its consequences might be punished.

Keywords: Genocide Denial, Freedom of Speech, Spanish Criminal Code, Spanish Constitutional Court, European Court of Human Rights' Case-law

JEL Classification: K14