Abstract
The past two decades have seen an explosion of memory laws, especially in Eastern Europe, and an explosion of objections to them. According to critics, memory laws (1) violate freedom of speech; (2) create an official history; and (3) foster a narrow, particularistic politics. This Essay evaluates these competing arguments. The free speech objection lumps all memory laws together—regardless of content—and runs the risk of becoming an objection to hate speech bans more generally, something that limits its appeal outside of the United States. Opposing memory laws as official history is narrower, but it privileges the national history and historians who guard it. Furthermore, neither objection gets to the deeper, political threat posed by a newer generation of nationalistic memory laws arising in Eastern Europe. To highlight this threat, memory law opponents should object to the narrow, exclusionist politics that underlay many memory laws. In this regard, opponents should link memory laws to laws that seek to shape the nation by restricting immigration and indoctrinating immigrants. At the same time, the political objection will not generally appeal to the nationalists themselves, especially if it comes from those seen as liberals. Therefore, it is helpful for memory law opponents to supplement the political argument with arguments based on free speech and official history.
Recommended Citation
Rob Kahn,
Free Speech, Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws,
31 Fla. J. Int'l L.
(2019).
Available at: https://scholarship.law.ufl.edu/fjil/vol31/iss1/2