I haven't posted on this because I don't have that much beyond the obvious to add (though I might have a little more later); but I thought I'd at least pass along a link to Mickey's take.

UPDATE: D'oh! Jim beat me to this. In any case, Jim's right.

Brandonks (mail) (www):
Supporting a Nazi Lover

David Irving, a British "historian", was called "an active Holocaust denier ... anti-Semitic and racist" by a British Judge in a civil case. And that may be putting it mildly. But I'm supporting him. To be more accurate, I am not defending him, but condemning the criminal trial in which he is a defendant in Austria. His "crime" was to "publicly diminish, deny or justify the Holocaust". Under an Austrian law that could put him in prison for 10 years.

Austrians are understandably rather sensitive about Nazis and the holocaust. They want to make sure that the world sees that they are repentant about the crimes of the third Reich, and to prevent a resurgence of neo-Nazism. Nothing wrong with that.

There is something wrong with criminalizing ideas, thought, and opinion. It is ironic that in their effort to condemn fascism, they are employing one of the fascist's favorite tools -- banning free expression and imprisoning those who dissent. It is wrong no matter how laudable the intent, nor the noxiousness of the thought they wish to suppress.

Some Americans might feel a bit superior to the Austrians and point to our fidelity to free speech. They shouldn't - we tread down the same path in our own way. We allow universities to have policies that ban and punish "hate speech". So much for their commitment to free expression. We create special criminal penalties for "hate crimes". A hate crime statute adds punishment for the motivation -- the thoughts and feelings -- of the defendant.

If we tolerate the criminalization of thoughts and feelings, we abandon our basic belief in intellectual freedom. The intent may be good, but the proverbial road to hell is paved with good intentions.
2.22.2006 1:11pm
Defending the Indefensible:

I agree with you to a point, but we've always created special penalties for motivation -- premeditated murder, for instance.
2.22.2006 1:16pm
Justin (mail):
Some have argued that anti-Nazi speech laws in Germany and Austria helped the democratic process in those countries. Whether those arguments are correct, and whether Germans and Austrians should consider revising their laws to reflect a modern stability, are certainly at least open questions, but they deserve to be addressed, not dismissed.
2.22.2006 1:20pm
Brandonks (mail) (www):

Respectfully, premeditation is not a motivation for murder, it is whether the crime was planned in advance as opposed to being a spontaneous act. In other words it is a "how" aspect of a crime, not a "why".
2.22.2006 1:39pm
JosephSlater (mail):

I'll take the same tack as Defending ... and agree with you re the prosecution of Irving. But as to your distinction of "how" vs. "why," is it really true that I would get the same sentence if (i) I shoot a guy because I find him, to my surprise, in bed with my wife and (ii) I shoot a guy because I find him, to my suprise, holding a bunch of crisp thousand dollar bills that I would like to have? More broadly, isn't it true that in sentencing, courts can look at intention and purpose?

Heck, in other areas of law, intent/purpose matters: intentional torts often allow types of damages (punitives) that aren't allowed for negligent torts; in Title VII cases, there are more damages available for intentional discrmination (disparate treatment) than for disparate impact, in which no finding of intent is needed.

This is not necessarily a brief for hate crimes laws, but I don't think they are really all that far beyond where the law already is in a number of places.
2.22.2006 1:52pm
James Dillon (mail):
Does anyone have a link to an English translation of the Austrian Holocaust denial statute?
2.22.2006 2:55pm
Richard Aubrey (mail):
Others have said that speaking in the special category of Holocaust denial and related subjects is the equivalent of "fighting words" in some countries. Could be.
Says a hell of a lot about those countries.
We should snuggle up to them and take them as moral examples. Get a global test to see if they think we're okay.
2.22.2006 3:27pm