German citizen and Holocaust denial advocate Germar Rudolf currently lives in Chicago. The question is, how long will he be there?

Convicted in 1996 under a German criminal code prohibiting distribution of Holocaust denial literature, Rudolf fled his home country to avoid serving a 14-month prison sentence and to thwart other pending criminal indictments.

How he got to the United States remains unclear, but Rudolf's plan to remain here will pit the U.S. Constitution's guarantee of free speech against U.S. immigration law. The Holocaust revisionist's claim? He's a political refugee in need of asylum.

In Germany, citizens like Rudolf possess the right to express themselves, but not to an extent that infringes upon other citizens' rights to human dignity or respect. [See generally, Art. 5(1), Art. 1(1) and Art. 2 of the German Constitution (the Grundgesetz).] According to the German Constitutional Court, "the denial of the Holocaust [can] be punished as a mendacious affront to surviving Jews." [David P. Currie, The Constitution of the Federal Republic of Germany 203, 206 (1994).]

In the United States, on the other hand, there is no balancing act between speech and respect. The government may not restrict speech because of the idea, message or content conveyed; a person is free in this country to shout racial epithets, operate a hate Web site or disseminate literature denying the Holocaust regardless of its affront to the dignity of others. [See R.A.V. v. City of St. Paul, 505 U.S. 377, 381-382 (1992); See e.g. Collins v. Smith, 578 f.2d 1197 (7th Cir. 1978) (ordinance prohibiting neo-Nazis from marching in a town with a large Jewish population, including Holocaust survivors, found unconstitutional)]

But, for Rudolf, the question is not whether his Holocaust denial activities in the United States are legal, but instead whether his criminal conviction for the same activity in Germany should afford him refugee status in the U.S.

To obtain asylum under the Immigration and Nationality Act, as amended by the Refugee Act of 1980, an individual must prove that he is unable or unwilling to go back to his home country "because of persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion." [See 8 U.S.C. § 1101(a)(42)(a); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)]

Hate speech is unquestionably political speech under the U.S. First Amendment, but it may not qualify as a "political opinion" under asylum law. Asylum protections traditionally have been extended to individuals who speak or act against totalitarian governments, and some courts have construed the definition of "political opinion" as one that relates to challenging a governmental regime or policy.

"Communism is evil" — a statement that relates to or implicates the administration or policies of the government — is probably "political opinion" under asylum law, but "Six million Jews were not killed during the Holocaust," a mere statement of social belief or opinion, may not be. [See Dwomoh v. Sava, 696 f. Supp. 970, 975-977 (S.D. N.Y. 1988) (explaining asylum law history and describing the "purely political offense" as an offense "directed immediately against the existence or the security of the State. . .") (citations and quotations omitted); see also Chang v. INS, 119 f. 3d 1055, 1063 n. 5 (3rd Cir. 1997).]

Prosecution vs. Persecution
Further, an asylum petitioner must demonstrate that prosecution under laws in his native country qualifies as "persecution," or some infliction or threat of physical harm or infringement upon his personal freedoms. Generally, prosecution for criminal conduct does not equal persecution, when the individual is subjected to "fairly administered laws" that are applied to all citizens of that country. [See Chang v. INS, 119 f.3d 1055, 1060 (3rd Cir. 1997); see also Chanco v. INS, 82 f.3d 298, 301 (9th Cir. 1996).]

Two cases are instructive in analyzing the distinction between prosecution and persecution.

In Abedini v. INS, an Iranian national sought political asylum for, among other things, distributing movies and concert videos made in the Western Hemisphere. His request for asylum was denied, even though he faced a two-year prison sentence and 19 lashes under Islamic law if he returned to Iran. [971 f.2d 188 (9th Cir. 1992)]

The federal court of appeals held that, standing alone, Abedini's prosecution for distributing movies and videos was not persecution, but prosecution "for an act deemed criminal in Iranian society, which is made applicable to all people in that country." [Id. at 191.]

On the other hand, in Zahedi v. INS, also a request for asylum by an Iranian, Zahedi sought asylum for translating into Farsi and distributing a banned book, Salman Rushdie's The Satanic Verses. [Zahedi v. INS, 222 f.3d 1157 (9th Cir. 2000)] In light of testimony that Zahedi's business partner in the book distribution venture was tortured and died in Iranian custody and because of significant evidence that he would not receive a fair trial and would likely be executed, the court was satisfied that Zahedi qualified for asylum based on a well-founded fear of persecution. [See Zahedi, 222 f.3d at 1165-1168 (9th Cir. 2000).]

As these two cases demonstrate, in order to obtain asylum on the basis of political opinion, a petitioner facing prosecution must prove that he has been persecuted — singled out because of his political opinion, denied procedural safeguards and/or targeted for an invidious purpose.

But criminal defendants from the majority of European jurisdictions, including Germany, are afforded rights of due process similar to those of the United States, such as the presumption of innocence, the right to counsel and the right to present and confront witnesses. [See Tadeo v. INS, 83 f.3d 429 (9th Cir. 1996) (unpublished opinion) (denying asylum to citizen of the Philippines in part because criminal trials in his country are fair and provide similar rights to those in the U.S.)]

And, whether one agrees with the speech limitations of European nations or not, it is difficult to argue that Germany's goal of protecting the personal dignity and respect of its Jewish citizens amounts to an invidious purpose or motive. Proving persecution in such jurisdictions based on the prosecution of hate speech laws is unlikely.

Hate speech and Holocaust denial advocates may face an additional road block in obtaining asylum if it is determined that such speech ordered, incited or assisted in the persecution of another. Under U.S. immigration laws, an asylum seeker must be denied refuge if their speech or political actions "ordered, incited, assisted or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion." [8 U.S.C. § 1101(a)(42)].

Rudolf and other hate-spewing aliens, it seems, should enjoy the First Amendment while they're in the United States, but they shouldn't count on it keeping them here.


Catherine E. Smith is an assistant professor at the Denver University College of Law, where she teaches a course on extremism and the law.