On 27 November 2007, Spain's Constitutional Court ruled, in reference to genocide, that to penalize “negationist” behavior is “an attack against the right to freedom of expression” (Panyella 32). The sentence modified an article of the penal code that made negationism punishable, and it came in the wake of a trial against well-known neo-Nazi Pedro Varela. The high court justified its decision by arguing that “[it cannot] be stated that all denial of conduct legally defined as a crime of genocide objectively pursues the creation of a social climate of hostility against those persons who belong to the same groups … who in their day were victims of a specific crime of genocide” (Constitutional Court Judgment No. 235/2007, of 7 November). The Spanish magistrates’ ruling was laden with implications for jurisprudence and for the relation between law and history. It is worthy of attention for what it can tell us about the conditions for democracy, and indeed the very conception of democracy, in post-transition Spain.

The key question, in every legal settlement, is whom does the sentence favor? If the parties directly affected by the change in the penal code are deniers on the one hand and the victims of genocide on the other, then the question has an unequivocal answer: deniers win. And they win big for linking their cause to a democratic freedom, to freedom in short. Unquestionably, democracy protects negationists as much as anyone else, but one can reasonably ask if it must protect negationism as well. If democracy includes respect for the truth (that is, a certain adequation of legislation to a social consensus based on unimpeded and undistorted access to facts) and protection of minorities’ physical and social wellbeing, then it is possible to ask whether the Spanish Constitutional Court's decision was not a setback to democracy under the pretext of a principled defense of the democratic right to freedom of expression. We shall come back to the nature of this freedom. For now, we should remark that the sentence is offensive because negationism is, in and of itself, an aggravation of the original crime.

Negation of crimes and thus of the truth flourishes where perpetrators enjoy social esteem or at the very least rely on passive indifference, and where the political and juridical arrangement is pervaded by consciousness of the lingering effects of crimes that are negated.