American legislators, 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 constitutional afterthought.
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 denial.