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 -- occurred.
Holocaust deniers, 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; etc.
Holocaust denial, 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'' Nazi atrocities.
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.
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.