Is it legal to make a film that denies the Holocaust in the U.S.?

Question

There's a law in Portugal that makes Holocaust denial illegal. Article 240 section b states the following:

b) defames or slanders an individual or group of individuals because of race, colour, ethnic or national origin, or religion, particularly through the denial of war crimes or those against peace and humanity;

Now, I am wondering if the free speech Amendment overrides any law that would make it illegal to make a movie that denies the Holocaust ever happened. Knowing that it's legal to make violent movies, I am inclined to believe that it's legal, but not likely to happen for non-legal reasons.

Answer 1

Lying is protected in the United States

You can make films (or write books etc.) denying the Holocaust, or stating that UFOs are alien spacecraft, or that one race/ethnicity/gender is smarter/stronger/better than another without fear of government sanction. Further, the Supreme Court has consistently ruled that hate speech is protected in the United States - if you want to advocate that the members of [group] should be sterilized/deported/euthanased/violently murdered etc., feel free.

What isn't protected is:

• "advocacy of the use of force" when it is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action". Broadly, "kill all [blanks]" is OK, "kill these [blanks] now" isn't. This also means that inciting a suicide is illegal,
• some types of false statements of fact,
• counterfeiting is not protected speech,
• obscenity/indecency,
• child pornography,
• fighting words,
• threatening the President,
• speech owned by others (i.e. copyrights and trademarks),
• commercial speech (e.g. false advertising).

There are also limitations that the government may impose when it is acting in specific roles. For example, as an employer, the government can restrict the speech of its employees in ways that it can't for general citizens.

Private individuals and organisations can sanction or ostracize you however they want.

Holocaust denial is reasonably common among white supremacists and other anti-Semitic groups and they produce films and literature on the subject. The United States Holocaust Memorial Museum devotes this web page to it.

Of course, while it's legal to make these things in the United States, distribution of them in Portugal is against Portuguese law.

Answer 2

A movie denying the Holocaust would generally be legal in the United States. Rosenberger v. Rectors and Visitors of the University of Virginia (1995) (“When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.").

Although First Amendment protections are highly context-dependent -- a Holocaust-denying history teacher might be disciplined for teaching stupid nonsense, for instance -- a law criminalizing merely holding or speaking that belief would run afoul of the First Amendment.