Less Freedom, Less Speech
WASHINGTON -- In
some recess of David Irving's reptile brain, he knows that his
indefensible imprisonment is helping his side. His side consists
of all the enemies of open societies.
Irving, born in England
in 1938, was a prodigy of perversity, asking for a copy of ``Mein
Kampf'' as a school prize. He grew up to be a ``moderate fascist''
-- his description -- historian who has made a career of arguing,
in many books and incessant speeches, that although many Jews
died of disease and hardship during the Second World War, nothing
like the Holocaust -- 6 million victims of industrialized murder
from crackpots to the president of Iran, argue that the ``so-called''
gas chambers were only for showers or fumigation; that Zyklon
B gas was too weak to produce mass deaths; that it was too strong
to be used -- it would have killed those emptying the chambers;
that the crematoria were built after the war by Poles as a macabre
tourist attraction, or by Jews to extort compensation; that Germans
concocted ``evidence'' of ``genocide'' to please their conquerors;
which is anti-Semitism tarted up with the trappings of historiography,
is a crime in Australia, Belgium, Canada, the Czech Republic,
France, Germany, Israel, Lithuania, New Zealand, Poland, Romania,
Slovakia and Switzerland. And in Austria, which criminalizes speech
that ``denies, grossly trivializes, approves or seeks to justify''
In 1989, in two speeches
in Austria, Irving said, among much else, that only 74,000 Jews
died of natural causes in work camps and millions were spirited
to Palestine after the war. An arrest warrant was issued. Last
November, Irving was arrested when he came to Austria to address
some right-wing students. Last week, while Europe was lecturing
Muslims about the virtue of tolerating free expression by Danish
cartoonists, Irving was sentenced to three years in prison.
What folly. What
dangers do the likes of Irving pose? Holocaust denial is the occupation
of cynics and lunatics who are always with us but are no reason
for getting governments into the dangerous business of outlawing
certain arguments. Laws criminalizing Holocaust denial open a
moral pork barrel for politicians: Many groups can be pandered
to with speech restrictions. Why not a law regulating speech about
slavery? Or Stalin's crimes?
Some defenders of
the prosecution of Irving say Europe -- and especially Austria,
Hitler's birthplace -- rightly has, from recent history, an acute
fear of totalitarians. But that historical memory should cause
Europe to recoil from government-enforced orthodoxy about anything.
using the criminal law for moral exhibitionism, enact ``hate crime''
laws. Hate crimes are, in effect, thought crimes. Hate crime laws
mandate enhanced punishments for crimes committed as a result
of, or at least when accompanied by, particular states of mind
of which the government particularly disapproves. Governments
that feel free to stigmatize, indeed criminalize, certain political
thoughts and attitudes will move on to regulating what expresses
such thoughts and attitudes -- speech.
For several decades
in America, the aim of much of the jurisprudential thought about
the First Amendment's free speech provision has been to justify
contracting its protections. Freedom of speech is increasingly
``balanced'' against ``competing values.'' As a result, it is
whittled down, often by seemingly innocuous increments, to a minor
On campuses, speech
codes have abridged the right of free expression in order to protect
the right -- for such it has become -- of certain preferred groups
to not be offended. The NCAA is truncating the right of some colleges
and universities to express their identity using mascots deemed
``insensitive'' to the feelings of this or that grievance group.
Campaign finance laws ration the amount and control the timing
and content of political speech. The right to free political speech
is now ``balanced'' against society's interest in leveling the
political playing field, or elevating the tone of civic discourse,
or enabling politicians to spend less time soliciting contributions,
or allowing candidates to control the content of their campaigns,
or dispelling the ``appearance'' of corruption, etc.
To protect the fragile
flower of womanhood, a judge has ruled that use of gender-based
terms such as ``foreman'' or ``draftsman'' could create a ``hostile
environment'' and hence constitute sexual harassment. To improve
all of us, people with various agendas are itching to get government
to regulate speech of this or that sort.
Even open societies
have would-be mullahs. But the more serious threats to freedom
are mullahs who control societies: Irving, expecting a suspended
sentence, had planned to travel to Tehran to participate in a
conference, organized by Iran's government, to promote Holocaust
2006, Washington Post Writers Group