Joe Gandelman at The Moderate Voice has posted on the conviction in Austria of British “historian” (in quotes because I think he does not deserve that appellation) David Irving for the crime of denying the Holocaust occurred. The outcome of the court case caught my eye earlier today because of the implications of a person being jailed because of something he wrote.

Think about those implications for a moment.

Yes, denying that the Holocaust occurred is criminal, but should it be a crime in a society that treasures liberty and wishes to avoid the very mindset that permitted something as horrible as the Holocaust to occur?

Note that criminal is defined “having the nature of a crime” while crime is “a violation of the law”, a subtle but distinct difference.

In other words, where does the line between true political speech the freedom of which does indeed protect a democracy from descent into the tyranny of creeping expansion of government power versus the equivalent of “crying fire in a crowded theater” lie?

Millions died in the Holocaust, a systematic extermination of a people based upon their religion that was perpetrated in a society where dissent was punished by at the least exclusion from society and legal protection if not by the very same extermination.

Where does the line lie between the “internment” advocated by some versus the concentration camps that the Nazis created with such efficiency?

Ponder that for the time it deserves: Dissent was punished in Germany in the 1930s; in other words, the lack of freedom of political speech helped make the Holocaust possible.

Yet some democracies now make denying the Holocaust a crime. What is to prevent those same democracies from making other “undesirable” speech a crime, and more importantly, who chooses what is “undesirable” speech?

If we allow those in power to make the choice, what is to prevent them from choosing speech that is in opposition to their policies or even to their remaining in power?

Respect for the law? It appears that the law can be over-ridden by simple legal opinions written by lawyers in the pay of those in power if recent events in the United States are taken as a guide, or to put it simply, the interpretation of the law is rather too fungible to rely upon it to prevent the choices by those in power to preserve that power for the sake of keeping power rather than protecting freedoms.

I have recently been writing posts that reference the fundamentals that form the foundations of our Constitution, allusions that have been misinterpreted by some as calls to a “strict constructionist” interpretation of the Constitution. I do not follow the constructionist interpretation, I prefer to review the fundamental freedoms as laid out in the writings of the founders in the light of the understanding and culture of today.

What exactly are the fundamentals that apply to freedom of speech?

Do those fundamentals include the suppression of photos taken by American troops at the US-run prison at Abu Ghraib, where acts that were taken, regardless of whether they were sanctioned “officially” or not, have lost for the US the trust of the Arab Muslim world?

Do those fundamentals include cooperating with a repressive regime in finding dissenters when we condemn those who cooperated 70 years ago with a different repressive regime?

What exactly do we believe in now, and what do we believe is worth sacrificing to preserve?

More importantly, what sacrifices are we willing to make?

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