Q: do prohibitions of hate speech harm public discourse?

Particularly troublesome in trying to understand the popularity of therapeutic censorship in Europe is the vagueness of the crimes condemned. As in the United States, all forms of insensitivity are imagined to be the same--or at least to dovetail. In France, Holocaust revisionists routinely are lumped together with anti-immigrationists as racist enemies of humanity. This linkage crops up in the pronouncements of the French League Against Racism and Anti-Semitism and is characteristic of polemics against the "extreme right" in Le Monde.

Eric Delcroix, a legal scholar who frequently has represented those accused of hate speech, argues that the prohibitions against Holocaust revisionism in France and elsewhere in Europe often are legal abominations. They seek to ban the questioning of a received historical account, and for want of another legal authority on which to found this account, they enshrine as infallible the judgments about crimes against humanity rendered by the Nuremberg Tribunal in 1947. But the judgments of that tribunal were sometimes flawed as in its condemnation of Germans rather than Russians for the slaughter of 10,000 Polish officers in the Katyn Woods in 1941; nor did the tribunal provide definitive answers on the number of Jews killed or on the manner in which the Nazis killed their victims. It is even doubtful, explains Delcroix, whether the Nuremberg Tribunal's judgments can have the standing of a duly registered French law. Unlike such a law, the hundreds of pages of text containing the tribunal's decisions did not become part of the Official Journal of the French Republic and therefore do not have the status of binding legislation.

These legal arguments aside. it seems foolish to try to settle historical discussions by threatening one side with imprisonment. Such action does not seem likely to help the course of scholarship and it may leave the modern state with terrifying power that there is every reason to believe it will seize. Europeans already have been jailed and financially ruined as real or imagined Holocaust-deniers or revisionists, and intellectuals have shown a truly ugly side in instigating political authorities against those suspected of holding revisionist opinions.

Whereas in Europe and the British Commonwealth hate-speech laws have been enacted for minorities by accountable legislative bodies, what is more likely in the United States is speech policy by administrative fiat. This is the way America's "captive public," in the phrase of Benjamin Ginsberg, becomes scientifically socialized. The political imposition of behavioral codes requiring anxiously weighed language, for the benefit of some and for the terror of others, has begun nondemocratically through a freewheeling but insulated office of the Department of Education. This way the sensitizers can muzzle whomever they choose without facing electoral consequences. And, as long as they engage in the fiction of controlling social behavior, their friends in government and the universities do not have to concern themselves with the actionable charge of suppressing speech.