In response to my post about how the European Union is requiring states to criminalize (among other things) "condoning, denying or grossly trivialising crimes of genocide ... when [the speech] is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group," a commenter writes:

I'm not a fan of such laws because of free speech concerns and I think they do more to encourage hate speech (making it forbidden attracts the very people you want to discourage) however to be fair you won't get jailed or arrested for doing serious scholarship.

Well, here's a story I wrote about in 2002:

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof ... of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Say that a European country enacts the core EU proposal (especially without the modifications that the proposal would tolerate though not encourage). Say that a historian -- especially one who lacks Bernard Lewis's prominence -- likewise says that the mass killing of Armenians wasn't "part of a deliberate campaign of extermination by the Turks," which I'm sure some will say "grossly trivialis[es] crimes of genocide." And say that he says this in a way that condemns some Armenians who say the contrary (perhaps claiming that they're deliberately distorting the facts in support of their view), so that it is "likely ... to incite ... hatred against ... a member of such a group [i.e., ethnic Armenians]."

Would we say "to be fair [this historian] won't get jailed or arrested for doing serious scholarship"? (Recall that the EU proposal expressly calls for "effective, proportionate, and dissuasive criminal penalties," specifically with a statutory "maximum of at least 1 to 3 years of imprisonment.") Or is it that sharing Lewis's views, coupled with condemning some who you think are distorting the facts, is per se not "serious scholarship"?