A while ago, at Shuggy's Blog, I tried to argue that having criminal penalties attached to public Holocaust denial might not necessarily be a particularly terrible thing, and, where the penalties are not disproportionate, it might actually be, if perhaps not mandated, desirable. Although perhaps I didn't explain myself very well, my reasoning for thinking this is something like this:
Holocaust denial is, more or less uniformly, the politically motivated distortion of exceptionally well established historical fact, which aims at legitimating one of the most disgusting regimes in recorded history, that of Nazi Germany, and its project of wiping out the Jews as an ethnic group;
Nazism, because of its extremely violent racism, its aim of purifying the German race by the extermination of those without roots in some hazily imagined bloody and tribal past, is profoundly anti-democratic, in the sense that it cannot countenance living in mutual distrust with, merely tolerating, anyone who fails to meet its bizarrely racialized standards of moral fitness;
this is anti-democratic because it refuses admittance to the public sphere to anyone who is not a Nazi, essentially - it absolutely denies their right to have any say in the way in which they are governed, and because democracy is about the consent of governed to their government, that is anti-democratic;
the public expression of a belief in the legitimacy of Nazism poisons the public sphere, the arena in which the debate which is essential to a properly functioning democracy occurs, by seeking to alter its shape by altering those who can participate in and enter it;
preventing this from happening is a reasonable preoccupation of democratic states and their citizens, since failing to prevent it could well damage whatever legitimacy their government possesses;
public affirmations, such as attaching relatively mild criminal penalties to Holocaust denial, of the illegitimacy of such acts, are a reasonable means to this reasonable end, since whilst it would be impractical to prosecute all those suspected of having denied the Holocaust, a demonstration of the public unacceptability of such denials reinforces that same public unacceptability.
Shuggy's objection to this argument was that it hands a disproportionate power to the agents of the state. I had compared it to the law in Britain banning smacking which, I have no doubt, is being used not to prosecute every parent who dares to raise their hand to a child, but to eliminate one defence against child abuse and to attempt to affect a cultural shift in attitudes towards what constitutes reasonable chastisement, specifically, that what constitutes reasonable chastisement is a smaller set than was once thought. In response, Shuggy pointed instead to the proposed offence of glorifying terrorism, saying this
the example you use is like 'glorifying' terrorism laws. I think it's a dangerous step to make quite illiberal laws that would cover a large number of people and then say in effect "It's ok, they'll only be used against very bad people".
Presumably, the problem that the ‘it’s ok, the law’ll only be used against very bad people’ retort is that the law in question would be illegitimate were it to be used against anyway other than very bad people. That requires that the law is generally illegitimate, which must require, at least for Shuggy’s claim, that the analogy with the glorification of terrorism works. Unfortunately, it doesn’t, and I think this is important in understanding what is objectionable about such a ban, because glorifying terrorism is not anti-democratic in the foundational way that seeking to legitimize Nazism is.
Terrorism is notoriously difficult to define satisfactorily, and although I think there are better definitions, let's just for the time being say that it is political violence by those who are not agents of the state. Glorification, again, is hardly the most opaque of concepts, but putting that aside, allow it to encompass more or less any statement expressing the view that such acts have, to some non-negligible degree, morally praiseworthy characteristics. Banning the glorification of terrorism would thus mean banning expressing the belief that any anti-state struggle which used violence was legitimate. I'm fairly pacifistic, but I can think of circumstances in which the use of violence by non-state actors would be acceptable and perhaps even desirable. Furthermore, there is nothing profoundly anti-democratic about the general thought that there are occasions on which political violence is acceptable and perhaps even desirable, which is not to say that there are not specific beliefs about the legitimacy of political violence - for example, those expressed by Nazis - which are not profoundly anti-democratic. Indeed, you might well think, particularly on the expanded definition of terrorism I favour - violence designed to expand the social space of battle - that preventing discussion of the moral properties of such action - in particular, say, the bombing of civilians during military conflicts - would be profoundly anti-democratic.
Shuggy says, in defence of his view that we ought not to restrict speech that
[t]o be able to recognise the rights of those who represent the very negation of freedom is the glory and wisdom of liberal democracy. That this is so should be a vigorously defended tenet of our beliefs. This requires more self-confidence than perhaps has been on display in recent years; we should understand that we can afford to do this because we have the strength to do it.
I don’t think that’s true: there is a genuine question about to what degree we are obliged to tolerate the intolerant, a question which is raised, quite obviously, by considering whether or not it is legitimate to ban particular types of speech acts. There are acts, I would contend, that stretch the reasonable bounds of tolerance because they threaten the foundations of tolerance itself, because they deny that there is any duty to tolerate at all, at least towards some people. Clearly, we do not have an obligation to tolerate in all cases, and it seems at least to me that it is reasonable to think that the boundaries of the obligation to tolerate do not extend to Neo-Nazis, whilst it is not obviously reasonable to think that they do not extend to those who refuse to condemn violence by non-state actors. Indeed, whilst Shuggy ascribes some kind of strength to the refusal to condemn, and there is a strength to that refusal, it is not universal: both democracy and liberalism involve some substantive commitments, and those who persistently violate those commitments ought to be, at least by liberals and democrats, condemned, condemnations which, it seems to me, may sometimes take the form of criminal penalties.