Memory and Tradition as Limits to the Freedom of Expression about History

Society has a robust interest in a free exchange about history. This interest even increases with the passage of time or when past public figures or victims of atrocity crimes are involved. According to international human rights law, such an interest can be restricted only under carefully determined circumstances and narrowly formulated conditions in the service of a few permissible interests. Memory and tradition are not among these interests. However, both concepts can be rephrased in such terms with relative ease : ‘Respect for the memory of the dead’ can be rephrased as an application of the permissible interest ‘respect of the rights or reputations of others’, and ‘protection of the tradition of the ancestors’ as an application of the permissible interest ‘public morals’. With these reframing options in mind, this paper balances the interests of history, memory, and tradition against each other. Within strict limits, ‘memory’ can be seen as a guarantee for reputation and privacy, and ‘tradition’ as a guarantee for morals. If that is the case, memory and tradition act as acceptable checks on how a society deals with its past. Memory and tradition then trump history. In all other cases – the large majority – they are problematic limits : in overprotecting them, memory and tradition distort and censor debates about history. Memory and tradition then trample history.