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On Mon, 06 Feb 2006 14:52:14 +0000, Matt Silberstein wrote:

Except that the view was that the marketplace had shown something
quite a bit different.

If you don't believe the common people can work out these things
themselves then you really have no reason to believe in democracy at all.

Jim07D6 wrote:
<snip>

Thanks, j.m. I'm not a lawyer either, but your reply gives enough
information to deduce the legal basis. The German constitution's
delegation of authority and responsibility, to the German federal
government, to enact laws to prevent disturbances to the public peace,
coupled with the (apparent) German federal court finding

I do not know if it was ever challenged in Constitutional Court (US term
would be Supreme court).
If it was, it survived, if not, nobody even bothered to challenge. There
have been convictions and punishments by lower courts.

that the
Holocaust Denial law does not infringe on protected individual rights,
appears to be the basis.

If you are able to tell me about the German constitutional protections
on free speech, I would appreciate it. Or perhaps, I can find an
English translation of the German federal constitution, so I don't
have to try my one year learning of the German language.
--- Jim07D6

German version is
here:http://www.bundesregierung.de/Gesetze/-,4222/Grundgesetz.htm


I found this English version:
http://www.lib.byu.edu/~rdh/eurodocs/germ/ggeng.html
last updated 1990, there were minor changes since them. Yes, I know that
compared with the US constitution we change it often, mainly because we
have so many details. No change was made on the basic rights part.[1]

The argument for the existence of basic rights is in Article 1:

Article 1 (Protection of human dignity).
(1) The dignity of man is inviolable. To respect and protect it is the
duty of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable
human rights as the basis of every community, of peace and of justice in
the world.
(3) The following basic rights bind the legislature, the executive and
the judiciary as directly enforceable law.


The article about freedom of speech is:

Article 5 (Freedom of expression).
(1) Everyone has the right freely to express and to disseminate his
opinion by speech, writing and pictures and freely to inform himself
from generally accessible sources. Freedom of the press and freedom of
reporting by radio and motion pictures are guaranteed. There shall be no
censorship.
(2) These rights are limited by the provisions of the general laws, the
provisions of law for the protection of youth and by the right to
inviolability of personal honor.
(3) Art and science, research and teaching are free. Freedom of teaching
does not absolve from loyalty to the constitution.

5(1) grants it, 5(2) puts limits.

More limits come in Article 18:

Article 18 (Forfeiture of basic rights).
Whoever abuses freedom of opinion, in particular freedom of the press
(Article 5, paragraph 1) freedom of teaching (Article 5, paragraph 3),
freedom of assembly (Article 8), freedom of association (Article 9), the
secrecy of mail posts and telecommunications (Article 10),property
(Article 14), or the right of asylum (Article 16, paragraph 2) in order
to attack the free democratic basic order, forfeits these basic rights.
The forfeiture and its extent are pronounced by the Federal
Constitutional Court.

19(1) regulates legal requirments for a restriction of basic rights:

Article 19 (Restriction of Basic Rights).
(1) Insofar as under this Basic Law a basic right may be restricted by
or pursuant to a law, the law must apply generally and not solely to an
individual case. Furthermore the law must name the basic right,
indicating the Article.
(2) In no case may a basic right be infringed upon in its essential content.
(3) The basic rights apply also to corporations established under German
Public law to the extent that the nature of such rights permits.
(4) Should any person's right be violated by public authority, recourse
to the court shall be open to him. If no other court has jurisdiction,
recourse shall be to the ordinary courts.

Article 20(4) might be of general interest about what my right would be
if the Islamists or other scum take over:

Article 20 (Basic principles of state order, right to resist).
(4) All Germans shall have the right to resist any person seeking to
abolish this constitutional order, should no other remedy be possible.
(inserted 24 June 1968)

j.m.
#1491


[1] About changing the basic law: See Article 79.
You may note that according this article we are still at war...

Article 79 (Amendment of the Basic Law; amended March 27, 1954).
(1) The Basic law can be amended only by a law which expressly amends or
supplements the text thereof. With respect to international treaties the
subject of which is a peace settlement, the preparation of a peace
settlement or the abolition of an occupation regime, or which are
designed to serve the defense of the Federal Republic, it shall be
sufficient, for the purpose of a clarifying interpretation to the effect
that the provisions of the Basic Law are not contrary to the conclusion
and entry into force of such treaties, to effect a supplementation of
the Basic Law confined to this clarifying interpretation.
(2) Such a law requires the affirmative vote of two thirds of the
members of the Bundestag and two-thirds of the votes of the Bundesrat.
(3) An amendment of this Basic Law affecting the division of the
Federation into Länder, the participation in principle of the Länder in
legislation, or the basic principles laid down in Articles 1 and 20, is
inadmissible.

On Mon, 06 Feb 2006 05:16:10 GMT, in alt.atheism , Jim07D6
<Jim07D6@nospam.net> in <6kmdu1599deo0dnpmd35fa22vjnc16n9p5@4ax.com>
wrote:

Matt Silberstein <RemoveThisPrefixmatts2nospam@ix.netcom.com> said:

On Sun, 05 Feb 2006 20:31:26 GMT, in alt.atheism , Jim07D6
<Jim07D6@nospam.net> in <l4ncu1dh8g9hvupfm3h9h03dhlmemt3slt@4ax.com>
wrote:

Serious replies only, please.

I'm posting this to aa because I know some folks here have some
background in this question.

According to the bbc website, the following countries have laws
against holocaust denial.
Austria
Belgium
Czech Republic
France
Germany
Israel
Lithuania
Poland
Slovakia
Switzerland
http://news.bbc.co.uk/1/hi/world/europe/4436275.stm

Most countries, including my own USA, have laws that place limitations
on the exercise of speech. An example of a basis of such limitations
is the USSC's "shouting fire in a crowded theater" standard. (See the
book "Perilous Times: Free Speech in Wartime: From the Sedition Act of
1798 to the War on Terrorism" for other examples of standards for
restrictions on speech.)

So here is my question: What is the *legal* basis for these laws
against holocaust denial, in these countries?

The same legal basis for any other laws in those countries.

Were legal bases cited
in the passage of these laws? I'm interested in knowledgeable replies
including guidance for how to find out. I can understand the
historical issues, and I can understand the moral pros and cons, but I
am interested in, for example, what constitutional or other legal
basis they have.

Did you bother to look to see if those countries have a constitution?

My response to that is unprintable.

Why? Because you want others to do the work?

Here is a clue: not everyone has a constitutional legal system.
England, for example, has no such system. England has laws that allow
prior restraint, something the U.S. forbids.

I know that. I said "...for example. what constitutional or other
legal basis..." with that exact thought in mind. You underestimate me,
Matt.

What other legal basis do you have in mind?

Do they flow from, say, a constitutional or other law
that protects a specific class of people, or is it like the "crying
fire in a crowded theater" standard, or something else.

That is not a legal basis, that is a political rational behind the
law. The laws are laws because the legislative bodies voted for them.

Laws are what they are because the government in toto says they are.

Why yes, what else do you expect for laws? If there is no constitution
what other kind of basis would there be?

You are asking the wrong question. You seem to assume that there is,
in those countries, some fundamental right to speech of some sort.
That is a poor assumption to make.