Today that form of historical revisionism popularly called “Holocaust denial” abounds worldwide in all its full foul flourish—disseminated not only on Arab streets but in American university newspapers, not only in books, articles, and speeches but in mosques and over the Internet. Can we reject spurious revisionism, or punish purposeful expressions of hatred, and still pay homage to the liberty of thought ennobled by the First Amendment? Are some conflicts between freedom of expression and civility as insoluble as they are inevitable? Can history ever be proven as Truth? This article attempts to answer those questions. Part I describes the background and nature of Holocaust denial, tracing the Nazis’ adoption of a plan for the “Final Solution of the Jewish Problem” through the post-War Nuremberg Trials to the present day. Part II examines the tension between free speech and historical revisionism, presenting various arguments in deference to principles of liberty and opposed to group defamation. Part III addresses the quest for truth in a free society, including psychological and geopolitical analyses of denial and anti-Semitism.

1. Eisenhower’s words, written in a letter to Chief of Staff George C. Marshall on April 12, 1945, are etched in stone at the United States Holocaust Memorial Museum in Washington, D.C. Eisenhower went on to say that “The visual evidence and the verbal testimony of starvation, cruelty, and bestiality were so overpowering as to leave me a bit sick. In one room, where there were piled up 20 or 30 naked men killed by starvation, George Patton would not even enter. He said he would get sick if he did so.”See The Papers of Dwight David Eisenhower: The War Years 2616 (Alfred D. Chandler, Jr., Ed., 1970).

2. Sponsored by the Boston College Law School Holocaust/Human Rights Research Project and the Anti-Defamation League of B’nai Brith, the conference took place on April 17, 1986. See Debate, Freedom of Speech and Holocaust Denial, 8 Cardozo L. Rev. 559 (1987).

3. International Conference on Holocaust Opens in Tehran, BBC Worldwide Monitoring, December 11, 2006.

4. 2 Trial of the Major War Criminals before the Int’l Military Tribunal 130 (1947). Sen. Dodd served as executive counsel to the American prosecutorial team.

5. See supra note 1.

6. Levi, P. (1989).The drowned and the saved. (Raymond Rosenthal trans., Vintage Int’l.).

7. Both theNew York Times and theNew York Herald Tribune published limited reports of the camps as early as 1942.See Laqueur, W. (1980).The terrible secret: Suppression of the truth about Hitler’s “final solution.”

8. See Abzug, R. (1985).Inside the vicious heart: Americans and the liberation of Nazi concentration camps 128.

9. Ibid.

10. Holocaust deniers, on the other hand, argue that the Holocaust did not occur regardless of historical evidence.See Lipstadt, D. (1993).Denying the holocaust: The growing assault on truth and memory.

11. Natalie O’Brien, Muddle Headed Mufti,The Australian, October 27, 2006 at p. 17.

12. When he was asked in an interview, “The Holocaust happened, right?” Gibson responded by minimizing its uniqueness: “Yes, of course. Atrocities happened. War is horrible. The second World War killed tens of millions of people. Some of them were Jews in concentration camps. Many people lost their lives. In the Ukraine, several million starved to death between 1932 and 1933. Rafael Medoff and Alex Grobman, Holocaust Denial: A Global Survey - 2006, Wyman Institute for Holocaust Studies, available athttp://www.wymaninstitute.org/articles/HolocaustDenial2006.pdf (hereinafter, Wyman Survey 2006). See also news report, Mel Gibson’s Racist Tirade, Daily Telegraph (Australia), July 31, 2006 at p. 1.

13. Special Dispatch #1135, Middle East Media Research Institute (hereinafter M.E.M.R.I.), April 6, 2006, available athttp://memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP113506.

14. U.S. Fed News, Top Academics, Political Leaders, Seek ‘Incitement to Genocide’ Charges Against Iran, President Ahmadinejad, Dec. 12, 2006.

15. Reuters, Nov. 14, 2006.

16. Wyman Survey 2006,supra note 12.See infra notes 66–70 and accompanying text.

17. Ibid.

18. Ibid.

19. Ibid.

20. Ibid.

21. Japan Should Respect History, Recognize Reality: U.S. Historian, Xinhua General News Service, April 21, 2005. Although there is a Holocaust museum in Hiroshima, Holocaust education is virtually non-existent in Japan. Jenny Hazan, Hana’s Suitcase Wins Yad Vashem Award,Canadian Jewish News, Nov. 16, 2006 at p. 1.

22. Ibid.

23. See entry on Holocaust Denial, athttp://en.wikipedia.org/wiki/Holocaust_denial#Notable_Holocaust_deniers.

24. Edward I Koch and Rafael Medoff, What Can Be Done About Holocaust Deniers?, The Jerusalem Report, Jan. 8, 2007 at p. 47.

25. Akiva Eldar, Interview with Mahmoud Abbas, Ha’aretz, March 30, 2006.

26. Jeff Jacoby, Statehood for Palestine? Take A Good Look, Boston Globe, Feb. 14, 2007 at p. A9.See also Rosie Dimanno, No Guarantee This ‘Map’ Leads Anywhere,Toronto Star, May 1, 2003 at A10.

27. Scott MacLeod, A Date With A Dangerous Mind, Time, Sep. 25, 2006.See generally Mark Mazzetti, Some in G.O.P. Say Iran Threat Is Played Down,New York Times, August 24, 2006 at A1.

28. Iran Hosts Anti-Semitic Hatefest in Tehran, report of Anti-Defamation League, Dec. 14, 2006, available athttp://www.adl.org/main_International_Affairs/iran_holocaust_conference.htm?Multi_page_sections=sHeading_5. In fact there were several Arab commentators who condemned the conference. See M.E.M.R.I. Special Dispatch Series - No.1425, Criticism of Tehran Holocaust Denial Conference in Arab and Iranian Media, Jan. 16, 2007.

29. Ibid.See also Bill Hutchinson, Rabbi Among the Rabble-Rousers,New York Daily News, Dec. 13, 2006 at p.7.

30. Ibid.See also Katrin Bennhold, Ties Cut With Iran Institute Over Holocaust,New York Times, Sep. 16, 2006 at p.A9.

31. James S. Robbins, Adrift on Denial: The Threat from Iran,National Review, Dec. 13, 2006 (“Not that speech in Iran is particularly free–I am waiting for the conference that brings together those who deny the divinity of the Koran.”).

32. See D. D. Guttenplan, Should Freedom of Speech Stop at Holocaust Denial?, Index of Free Expression 2005.

33. See X. v. Federal Republic of Germany, European Commission of Human Rights 16 (July 1982);Lehideux and Isorni v. France, 1998-VII, no. 92 (European Court of Human Rights 23 (September 1998); andFaurisson v France, 2 BHRC UN Doc. CCPR/C/58/D/550/1993, 1 (United Nations Human Rights Committee 1996). D. D. Guttenplan, Should Freedom of Speech Stop at Holocaust Denial?, Index of Free Expression 2005.

34. Wyman Survey 2006,supra note 12.

35. Michael Berenbaum, Holocaust Denial: Iranian Style, Britannica Blog, April 19, 2007. Berenbaum suggests that it would be wise for the West to distinguish between Holocaust denial in the Islamic world and that elsewhere. Ibid.

36. Rosie Dimanno, “No Guarantee this ‘Map’ Leads Anywhere,”Toronto Star, May 1, 2003 at A10.

37. Hizbullah Leader Nasrallah: Great French Philosopher Garaudy Proved Holocaust A Myth, Middle East Media Research Institute (MEMRI), Special Dispatch No.1088, Feb. 7, 2006, available athttp://memri.org/bin/articles.cgi?Page=archives&Area=sd&ID=SP108806.

38. Lebanon’s New TV: “Contradictions, Lies, and Exaggerations in Number Killed in Jewish ‘Holocaust,’” MEMRI press release No. 1194, June 29, 2006, available athttp://www.normanfinkelstein.com/article.php?pg=11&ar=245.

39. Ibid.See Patricia Cohen, A Bitter Spat Over Ideas, Israel and Tenure,New York Times, April 12, 2007.See also David Remnick, The Apostate: A Zionist Politician Loses Faith in the Future, The New Yorker, July 30, 2007 at p.32 (interviewing Avraham Burg, former head of the World Zionist Organization: “Didn’t we cheapen the sanctity of the Holocaust by using it about everything?”) Ibid. at 35.

40. An Hour with Syrian President Bashar al-Assad, Charlie Rose Show, March 27, 2006, Public Broadcasting System, available athttp://www.charlierose.com/shows/2006/03/27/1/an-hour-with-syrian-president-bashar-al-assad.

41. See Wyman Survey 2006,supra note 12 at 6.

42. See Alan Dershowitz, It’s Time for a Holocaust Video,Times-Union, Sept. 4, 1995, at A6.

43. For a detailed analysis of the use of film as evidence of the Holocaust,see Lawrence Douglas, Film as Witness: Screening Nazi Concentration Camps before the Nuremberg Tribunal, 105 Yale L.J. 449 (1995). The principal film described by Douglas also has been used to prove the falsity of Holocaust denials.See Leonidas E. Hill, The Trial of Ernst Zundel and the Law in Canada, 6Simon Wiesenthal Center Ann. 165, 184 (1989).

44. See Greg Beck, Hate War’s New Battleground: The Internet,San Francisco Examiner, June 10, 1996, at A1;see generally Michael Shermer, Proving the Holocaust, 2Skeptic 32 (1994).

45. See Lasson, K. (2003).Trembling in the ivory tower: Excesses in the pursuit of truth and tenure. Baltimore: Bancroft Press.

46. See Lipstadt,supra note 10 at 183–208 (1993). Some campus papers published the advertisements on free-speech grounds, while others refused to do so. See infra notes 83ff.and accompanying text. CODOH is largely the work of Bradley Smith. Apparently in response to Smith’s campaign, classes on the Holocaust have been increasing.

47. See generally Stern, K. (1993).Holocaust denial.

48. See Text of ADL Audit of Anti-Semitic Incidents 1995, U.S. Newswire, Feb. 28, 1996, available in Lexis Nexis Library, USNWR File [hereinafter ADL Audit].

49. The most famous of the modern blood libels isThe Protocols of the Elders of Zion, first published in Russia in 1905 and still in widespread circulation today.See infra notes 259–60 and accompanying text. A detailed account of the book’s evolution is on display at the United States Holocaust Museum in Washington, D.C. Three new books on Jewish ritual killings have been published in the past year by Jewish scholars themselves. See Hillel Halkin, Bloody Jews?, Commentary, May 2007, and David Abulafia, The Blood Libel, Then and Now,The Times Literary Supplement, March 2, 2007.

50. See ADL Quotes Farrakhan One Year After Million-Man March, U.S. Newswire, Oct. 9, 1996; Richard Cohen, Why the Silence on Farrakhan,Washington Post, July 26, 1985, at A25; The Farrakhan Show, Washington Post, Aug. 1, 1984, available in 1984 WL 2024765; Garry Wills, Perot’s Anti-Semitic Company, Times-Union, Aug. 15, 1996, at A15.

51. See Ken Ringle, Of History and Politics: A Classicist at War,Int’l Herald Trib., June 12, 1996; Text of ADL Report on Writings of Professor Tony Martin, U.S. Newswire, Oct. 12, 1995; see also Selwyn R. Cudjoe, Academic Responsibility and Black Scholars,Baltimore Sun, Mar. 23, 1994 at 19A.

52. See Nat Hentoff, The Return of Khalid Muhammad: “Hitler Used the Same Words About Jews,”The Village Voice, Nov. 26, 1996, at 10 (quoting Jesse Jackson’s characterization of Khalid Muhammad’s Kean College speech as “racist, anti-Semitic, divisive, untrue, and chilling”); Stephen A. Holmes, Farrakhan Is Warned Over Aide’s Invective,NEW YORK TIMES, Jan. 25, 1994, at A12; Jon Nordheimer, Divided by a Diatribe: College Speech Ignites Furor Over Race,NEW YORK TIMES, Dec. 29, 1993, at B1; Steven Lubet, That’s Funny, You Don’t Look Like You Control the Government: The Sixth Circuit’s Narrative on Jewish Power, 45 Hastings L.J. 1527, 1527–28 (1994); Speech: “The Secret Relationship Between Blacks and Jews,” N.J.L.J., Jan. 24, 1994, at 17 (entire text of Khalid Muhammad’s Kean College speech).

53. See ADL Audit,supra note 48; Joseph Berger, College Chief Calls Jeffries “Racist,” But Defends Keeping Him,New York Times, Nov. 5, 1991, at B1; Donna Prokop, Note, Controversial Teacher Speech: Striking A Balance Between First Amendment Rights and Educational Interests, 66 S. Cal. L. Rev. 2534, 2536 (1993); Jacques Steinberg, CUNY Professor Criticizes Jews,New York Times, Aug. 6, 1991, at B3; Wills,supra note 50. See also Geri J. Yonover, Anti-Semitism and Holocaust Denial in the Academy: A Tort Remedy, 101 Dick. L. Rev. 71, 83 n.75 (1996).

54. See, for example, Michael W. Sasser, Speakers Find Cozy Home at Universities,Palm Beach Jewish J., July 23, 1996, at 1.

55. See Muhammad Speech,supra note 52.

56. See ADL Audit,supra note 48. The Black Holocaust Nationhood Conference was held at two Washington, D.C., high schools. See Ibid.

57. Ibid. Other conference speakers included Professors Martin and Jeffries.

58. Text of ADL Report, Federal Funds for NOI Security Firms: Financing Farrakhan’s Ministry of Hate, U.S. Newswire, Sept. 22, 1995.

    The range of controversial speakers runs the gamut from anti-abortionists to xenophobic isolationists, but even an analysis limited to garden-variety hate speech can run well beyond the scope of this article, which limits itself to the subject of Holocaust denial. An examination of the multifarious First Amendment issues regarding the rights that universities must accord to controversial speakers invited onto campus by student groups—for example, who bears the responsibility for payment of fees and honoraria, security, assurance of equal time for other speakers and student groups, the guarantee of an open forum—is likewise farther afield. But see Kenneth Lasson, Controversial Speakers on Campus: Liberties, Limitations, and Common-Sense Guidelines, 12St. Thomas Law Review 39 (1999).

59. A self-described “historical revisionist society,” the Institute supports the idea that the Holocaust was a distortion of history. See 1 Encyclopedia of Associations 9 (15572) (Sandra Joszczak ed., 31st ed. 1996); see also See Lipstadt,supra note 10 at 105; Yonover,supra note 53, at 76 n.30.

60. See Doreen Carvajal, Extremist Institute Mired in Power Struggle, L.A. Times, May 15, 1994, at A3. Carto had already organized the Liberty Lobby, a Washington-based group considered to be one of the most active anti-Semitic organizations in the country. Ibid.

61. See Lipstadt,supra note 10 at 185; ADL Report Reveals Split in Holocaust Denial Movement that is as Hateful as Their Anti-Semitic Propaganda, Business Wire, available in Lexis Nexis Library, BW File; News Brief, Houston Chron., Jan. 25, 1992, at A12.

62. Butz, A. (1976).The hoax of the twentieth century. Butz’s publisher (Noontide Press) and the Institute for Historical Review are closely related. See Lipstadt,supra note 10 at 152–53;see alsoLiberty Lobby, Inc. v. Dow Jones & Co., Inc., 838 F.2d 1287, 1296 (Bork, J.) (D.C. Cir. 1988) (describing the relationship as the “Liberty Lobby/Legion/ Noontide/IHR network”). In 2006 Butz, a tenured professor of electrical engineering at Northwestern, wrote a column in the campus newspaper expressing support for the Holocaust-denial activities of Iranian President Mahmoud Ahmadinejad.See Jodi S. Cohen, NU Rips Holocaust Denial, President Calls Prof An Embarrassment But Plans NoPenalty, Chicago Tribune, Feb. 7, 2006.

63. Rassinier, P. (1978).Debunking the genocide myth.See also Lipstadt,supra note 10 at 51–64.

64. See Prokop,supra note 53, at 2564;See Lipstadt,supra note 10 at 123–36, 51–65.

65. Friedrich, C. & Thomson, E. (1977).The Hitler we loved and why.See also Lipstadt,supra note 10 at 157–58.

66. Harwood, R. (1974).Did six million really die?. “Richard Harwood” was a pseudonym for Richard Verrall, the editor ofSpearhood, a neofascist publication.See Lipstadt,supra note 10 at 104.

67. See Lipstadt,supra note10 at 157–59.

68. See Douglas,supra note 43 at 478 (citing R.S.C., ch. C-34, § 177 (1970) (Can.). Zundel’s conviction was overturned on appeal.

69. 60 Minutes, CBS television broadcast, Mar. 27, 1994.

70. Zundel was sentenced to nine months in prison after the Ohio Court of Appeals upheld two lower-court convictions for spreading false information. In 1992 the Supreme Court of Canada overturned the conviction. Zundel was deported to Germany in 2005, where in February 2007 he was sentenced to five years in prison for inciting hatred and denying the Holocaust. Paul Lungen, Zundel Gets Five Years for Inciting Hate, Canadian Jewish News, Feb. 22, 2007 at p. 40. The prosecution chose to prove the falsity of Zundel’s claim solely by showing a documentary film first used at the Nuremberg Trials entitled Nazi Concentration Camps. Zundel was convicted and sentenced to two years in prison. On appeal, however, the conviction was overturned, on the grounds that—because the film’s nameless screenplay writer and narrator were unavailable for cross-examination—the documentary failed under the rules of hearsay. See also Irwin Cotler (quoted in Debate,supra note 2 at 564).

71. ADL Background Information on Holocaust Denier David Irving, U.S. Newswire, June 4, 1996, available in LEXIS, Nexis Library, USNWR File [hereinafter ADL Background Information]. Irving’s book Hitler’s War was said to have “hundreds of errors: wrong names, wrong dates, and… statements about events that did not really take place. These errors… are not the result of inadequate research or technical mistakes or oversights. They are the result of the dominant tendency of the author’s mind.” John Lukacs, Book Review, National Review, Aug. 19, 1977 at p. 46. See also Irving’s 1987 book, Churchill’s War, which may have been his most crudely anti-Jewish work. ADL Background Information at 39. On the witness stand during the Zundel trial, Irving stated that he had found “no document whatsoever indicating the Holocaust occurred.” Ibid. In April of 1990 he was quoted as saying that “the holocaust of the Germans of Dresden was real. The holocaust of the Jews in the Auschwitz gas chambers is a fabrication.” Ibid.

72. He was released in 2006 and allowed to serve the remainder on probation. See Nicola Boden, The Comeuppance of David Irving, Press Association Newsfile, Dec. 20, 2006.

73. Shoah is the Hebrew word for Holocaust. See Barry James, Cleric Draws Rebuke by Anti-Racists,International Herald Tribune, May 2, 1996 at p. 1. See also A Land Stained With Guilty Secrets,London Guardian, Aug. 9, 1997, at 21; Douglas Johnson, French Historians and the Holocaust, History Today, Oct. 1996, at 2; Julian Nundy, Mystifying Downfall: Onetime Hero’s New Belief’s Embarrass France, Newsday, May 29, 1996, at B3; With Both Eyes on the Human Condition,Financial Times (London), June 21, 1997, at 4.

74. Garaudy, R. (1996).The founding myths of Israeli politics.See also Nundy,supra note 73 at B3.

75. See Mary Ann Roser, A&M Professor Stirs Debate Over Holocaust Denial Books,Austin-Am. Statesman, Apr. 10, 1996, at B1.

76. Ibid.

77. Ibid.

78. Ibid. Even more confusing may be the fictionalized accounts of the Holocaust. For a defense of their utility, see Douglas,supra note 43.

79. See Eric Stein, History Against Free Speech: The New German Law Against the ‘Auschwitz’—and Other—‘Lies,’ 85 Mich. L. Rev. 277, 280 nn.9–11 (1986) (citing Pierre VidaNaquet, Theses sur le Revisionnisme, in L’Allemagne Nazie et le Genocide Juif 496, 505 (1985)).

80. Ibid. at 280 n.11. The paper provoked a storm of protests, and the French government ordered the doctorate be withdrawn because of improprieties in the examining process. Ibid.See also France Revokes Thesis That Denies Nazi Acts,New York Times, July 3, 1986 at A2; Frenchman Assailed for Denying Nazi Crimes,New York Times, June 13, 1986 at A4.

81. See Stein,supra note 79, at 280 n.11.

82. See Swiss Doubter of Nazi Camps is Forbidden to Teach History,New York Times, Feb. 22, 1987 at A10.

83. See Bob Keeler, Assault on History,Newsday, Feb. 24, 1994, at 68.See generally Lipstadt,supra note 10 at 183–208.

84. See Jeff Ristine, Ad Questioning Holocaust Takes Aim at Students, San Diego Union-Tribune, Jan. 11, 1992 at p.A1.See also Lipstadt,supra note 10 at 183–208 and Leon Jeroff, Debating the Holocaust,Time, Dec. 27, 1993, at 83.

85. See Dimitry Nemirovsky, That Ad Shouldn’t Have Run,Washington Post, Feb. 4, 1992 at A15.

86. See Jeroff,supra note 84. Smith has also been associated with the Populist Party (which ran David Duke for president in 1988) and the Liberty Party. See Nemirovsky,supra note 85, at A15.

87. Lipstadt,supra note 10 at 184. See generally John Fernandez, Holocaust Ad in UM paper Costs $2 Million Donation, Palm Beach Post, Apr. 13, 1994 at 1A.

88. See Lipstadt,supra note 10 at 189–208.

89. See Michael Kenney, The Holocaust and the Politics of Denial, Boston Globe, Aug. 12, 1993 at 62. See also discussion regarding the right to access,infra notes and accompanying text.

90. Beck,supra note 44 at A1.See also Kenneth Lasson, Holocaust Denial and the First Amendment: The Quest for Truth in a Free Society, 6George Mason Law Review 35 (1997).

91. Sinn, 638 F. Supp. at 149.

92. See Associates & Aldrich Co. v. Time Mirror Co., 440 F.2d 133, 135 (9th Cir. 1971).

93. Sinn, 638 F. Supp. at 151. The Supreme Court has identified three kinds of public forums: (1) sidewalks, streets, and public parks; (2) spaces specifically set aside for public discourse; and (3) other public property. The first have always been considered places which “from time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions,” and are thus open to all on a first-come, first-served basis without regard to the content of the messages being communicated. So have the second, areas the government designates as places for public discourse and a free exchange of ideas. As for the third, the Court has found no constitutional right to access.See Perry Educ. Assoc. v. Perry Local Educator’s Assoc., 460 U.S. 37, 45 (1983);see also Boos v. Barry, 485 U.S. 312 (1988). A student newspaper would not appear to fit any of the categories where access is guaranteed.

94. Sinn, 638 F. Supp. at 149. In Sinn, the district court held that theDaily Nebraskan was not a public forum because it did not consent to unrestricted access by the general public, and did not relinquish editorial control over proffered material. Ibid. at 150–51.

95. See Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 252–56 (1974).

96. Lee v. Board of Regents, 306 F. Supp. 1097, 1100–01 (W.D. Wis. 1969), aff’d, 441 F.2d 1257 (7th Cir. 1971).

97. Perry, 460 U.S. at 49.

98. See Joyner v. Whiting, 477 F.2d 456, 461 (4th Cir. 1973).

99. See Ristine,supra note 84.

100. See Jenish D’Arcy & William Lowther, “War of Words: Academics Clash Over ‘Correctness,’”MacLean’s, May 27, 1991 at 44.

101. Deborah Lipstadt, “False ‘Reasoning’ on the Holocaust,”Newsday, July 23, 1993 at p.61.

102. Poll Shows Israeli-Arab Holocaust Denial, Support for Hizbullah, Israel Faxx, March 19, 2007; Holocaust Denial, Israel Faxx, March 30, 2007.

103. See Robert Hawkins, Some Imprints Left as 1991 Fades… Art-censorship Battles Loom as Pressure Increasing from All Viewpoints,San Diego Union-Tribune, Dec. 27, 1991 at C1.

104. See generally Kenneth Lasson, Political Correctness Askew: Excesses in the Pursuit of Minds and Manners, 63 Tenn. L. Rev. 689 (1996). The pernicious nature of political correctness is most clearly revealed by the absurd extremes encouraged by some campus conduct codes. Though many of them have never been tested in court and continue to be broadly implemented—some to the destruction of careers and reputations—not one of them to date has been found constitutional.

105. See Stephen Reese & John D.H. Downing, Holocaust Ad Poisons Public Debate, Austin-American Statesman, May 1, 1992 at 1.

106. The rules regarding harassment have iced over into the first icy patch on the slippery slope to repression of unpopular ideas. They deter not only genuine misconduct but also harmless (and even desirable) speech, which in higher education is central both to the purpose of the institution and to the employee’s profession and performance. Legislative remedies should not be necessary, but they are. In 1993 California saw fit to enact a new law guaranteeing “students… the same right to exercise their free speech on campus as they enjoy when off campus.” Cal. [Schools and School Districts] Code § 4(b) (West 1997).

     The clear line to be drawn between academic freedom and actionable harassment is the same as that between speech and conduct. The former is almost always protected by the First Amendment, the latter can be constitutionally proscribed.

107. Some teachers have dropped references to the Holocaust studies altogether, so as to avoid offending children of certain races or religions.See Alexandra Frean, Schools Drop Holocaust to Avoid Offence,The Times (London), April 2, 2007 at p.8.See also Abraham Cooper and Harold Brackman, You Can’t Teach History Without the Holocaust,The Globe and Mail (Canada), April 16, 2007 at p. A13.

108. See Julia Neuberger, A Brief History of the Wickedest Lie of All,London Times, May 4, 1995 at Features 1.

109. Kenney,supra note 89 at 62.

110. Ibid.

111. See Alvin H. Rosenfeld, The Americanization of the Holocaust, Commentary, June 1, 1995 at 35, 36. Ironically, the concept that the Holocaust was unique has been diminished by both the United States Holocaust Museum in Washington, D.C., and the Simon Wiesenthal Center’s Museum of Tolerance in Los Angeles. The Holocaust Museum’s ultimate goal is an “en masse understanding that we are not about what the Germans did to Jews but what people did to people.” Ibid. The Museum of Tolerance situates the Holocaust within a historical framework that includes such non-genocidal social problems as the Los Angeles riots and the struggle for black civil rights. Ibid.

112. Ibid. at 37–38.

113. See Whitney v. California, 274 U.S. 357, 372–80 (1927) (Brandeis, J., concurring); Abrams v. United States, 250 U.S. 616, 624–31 (1919) (Holmes, J., dissenting).

114. Whitney, 274 U.S. at 375–76.

115. See Lasson,supra note 118, at 78.

116. There is some doubt that Voltaire actually made this statement, although it is indicative of an attitude attributed to him.See Stevenson, B. (10th ed. 1967).The home book of quotations, and Tallentyre, S.G. (1907).The friends of Voltaire.

117. See International Bhd. of Elec.Workers Local 501 v. NLRB, 181 F.2d 34, 40 (2d Cir. 1950),aff’d, 341 U.S. 694 (1951).

118. Thomas I. Emerson,Toward a General Theory of the First Amendment, 72 YALE L.J. 854, 882 (1963). Professor Emerson’s seminal article suggested three other First-Amendment values besides truth-seeking: individual self-fulfillment; securing participation by members of society in social and political decision-making; and maintaining a balance between stability and change.

119. Bollinger, L. (1986).The tolerant society: freedom of speech and extremist speech in America.

120. Lee C. Bollinger,The Tolerant Society: A Response to Critics, 90 COLUM. L. REV. 979, 986–88 (1990).

121. See, for example, Nagel, E. (1961).The structure of science: problems in the logic of scientific explanation.

122. See Debate,supra note 2, at 588 (statement by Alan Dershowitz).

123. See Suzanna Sherry,The Sleep of Reason, 84 GEO. L.J. 453, 483–84 (1996). Butsee infra notes 243 and accompanying text (suggesting the Holocaust is a crime that lies outside both speech and reason).

124. For a list of those countries,see infra notes 208ff.

125. At first several Armenian groups sought to have Prof. Lewis prosecuted under France’s criminal Holocaust denial law, but a court ruled that the statute applied only to the Nazi regime of terror. The groups were more successful before a subsequent civil tribunal, which found Lewis guilty and fined him $2000 (while declining to rule on whether his opinion as expressed was right or wrong).See ‘Hate Speech’ Again, Abroad, WASH. POST, Sept. 9, 1995, at A16: “When a court is willing to punish a scholar—or anyone, for that matter, for expressing an ‘insulting’ opinion on a historical matter, even when debate on the point in question has been raging worldwide for years, the absurdity and perniciousness of such laws is on full display.” Ibid.

126. Stein,supra note 79, at 323–24 (translating Art. 194 StGB). Germany also recently used its presidency of the European Union to replicate its strict laws prohibiting Holocaust denial.See David Charter,EU Declares Trivializing Genocide A Crime, NSW COUNTY EDITION, April 21, 2007 at p. 14.

127. See Correspondence,On the ‘Auschwitz Lie,’ 87 MICH. L. REV. 1026, 1031 (1989).

128. Ibid.

129. See Stein,supra, note 79 at 315. Bollinger was roundly criticized for inviting Ahmadinejad to Columbia.See,e.g., Harvey Mansfield, The Tough-Guy Liberal, The Weekly Standard, Oct. 8, 2007.

130. See Rekha Basu,Banned Books Given Spotlight, DES MOINES REG., Sept. 29, 1995, at 1.

131. For example, in Queens, N.Y., a book about Martin Luther King was opposed by a schoolboard member who viewed him as a “leftist hoodlum with significant Communist ties.” Ibid. at 1.

132. See Carol Berger,Hate Book Sparks Debate of Freedom, EDMONTON J., Jan. 24, 1995, at A7.

133. For a recent learned article arguing why democratic principles of free speech should trump laws that prohibit Holocaust denial, see Peter R. Teachout,Making Holocaust Denial A Crime: Reflections on European Anti-Negationist Laws from the Perspective of U. S. Constitutional Experience, 30 VT. L. REV. 655 2007).

134. Justices Hugo Black and William O. Douglas generally took the First Amendment literally to mean that Congress could make no law abridging free speech “without any ‘ifs’ or ‘buts’ or ‘whereases.’”Beauharnais v. Illinois, 343 U.S. 250, 275 (1952) (Black, J., dissenting);see also Columbia Broadcasting Sys., Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 156 (1973) (Douglas, J., concurring) (“The First Amendment is written in terms that are absolute…. The ban of ‘no’ law that abridges freedom of the press is in my view total and absolute.”).

135. Lasson,supra note 118, at 79.

136. For a comprehensive discussion,see Smolla, r. (3d ed. 1996).1Smolla & Nimmer on freedom of speech § 10.

137. See generally Kenneth Lasson,Racial Defamation as Free Speech: Abusing the First Amendment, 17COLUM. HUM. RTS. L. REV. 11, 20–30 (1985).

138. See, for example, New York v. Ferber, 458 U.S. 747 (1982);Young v. American Mini Theaters, 427 U.S. 50 (1976); Roth v. United States, 354 U.S. 476 (1957).

139. See, for example, Dennis v. United States, 341 U.S. 494 (1951);Debs v. United States, 249 U.S. 211 (1919);Frohwerk v. United States, 249 U.S. 204 (1919).

140. See, for example, Watts v. United States, 394 U.S. 705 (1969).

141. See Mayer,supra note 119 at 171–72 (discussing Jefferson’s views on the liability of publishers for false facts printed, despite freedom of the press, and criminal acts dictated by religious error as punishable despite guarantee of free exercise of religion);see generally Lasson,supra note 118 at 97.

142. Frederick Schauer, The First Amendment as Ideology, 33WM. & MARY L. REV. 853, 854 (1992).

143. See generally Levy L. (1960). Legacy of suppression: freedom of speech and press in early American history.

144. See generally Schauer,supra note 187.

145. Bollinger,supra note 233 at 995. In Germany, for example, as long as the Holocaust remains part of recent memory, it will be difficult not to punish the expression of Nazi ideology. Ibid. at 990.

146. Schauer,supra note 187 at 867.

147. See Nationmaster.com, available on the Internet athttp://www.nationmaster.com/red/graph/gov_law_aga_hol_den_pen_for_vio_min-holocaust-denial-penalties-violation-minimum&b_printable=1.

148. Debate,supra note 2 at 571, 582–83.

149. See Kathleen E. Mahoney,Hate Speech: Affirmation or Contradiction of Freedom of Expression, 96 U. ILL. L. REV. 789, 792 (1996).

150. See generally Richard Delgado,Words that Wound: A Tort Action for Racial Insults, Epithets, and Name-calling, 17 HARV. C.R.-C.L. L. REV. 133 (1982); Mari M. Matsuda,Public Response to Racist Speech: Considering the Victim’s Story, 87 MICH. L. REV. 2320 (1989).

151. See Allport, G. (1954).The nature of prejudice.

152. See Lasson,supra note 182 at 108–28.

153. See, for example, Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).

154. See, for example, New York v. Ferber, 458 U.S. 747 (1982);Miller v. California, 413 U.S. 15 (1973).

155. See, for example, Nixon v. Administrator of Gen. Servs., 433 U.S. 425 (1977); New York Times Co. v. United States, 403 U.S. 713 (1971).

156. See, for example, Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974);New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

157. See Skokie v. National Socialist Party of Am., 373 N.E.2d 21 (Ill. 1978) (allowing neo-Nazis to march through residential area largely inhabited by Holocaust survivors).

158. See Debate,supra note 2 at 576 (quoting Arthur Berney).

159. Restatement (Second) of Torts § 46 (1965).See also Stephen Fleischer,Campus Speech Codes: The Threat to Liberal Education, 27 J. MARSHALL L. REV. 709, 724–25 (1994). Butsee Geri J. Yanover,Anti-Semitism and Holocaust Denial in the Academy: A Tort Remedy, 101DICK. L. REV. 71 (1996) (arguing strongly for the viability of intentional infliction of emotional distress as a remedy for Holocaust denial).

160. See Delgado,supra note 195 at 252. Prof. Delgado notes, however, that although his call for establishment of a tort for racial insults has not been heeded, over the years since his article first appeared, a number of courts have recognized various causes of action to redress racist slurs. Telephone Conversation with Richard Delgado, Professor of Law, UCLA Law School (Sept. 11, 1996).

161. See Delgado,supra note 195 at 172;see alsoWiggs v. Courshon, 355 F. Supp. 206 (S.D. Fla. 1973); Agarwal v. Johnson, 603 P.2d 58 (Cal. 1979);Alcorn v. Anbro Eng’g, Inc., 468 P.2d 216 (Cal. 1970);Contreras v. Crown Zellerbach, Corp., 565 P.2d 1173 (Wash. 1977).

162. See Emerson,supra note 163, at 879–86. This function of the First Amendment has been viewed by some as limited to politicalideas.See Delgado,supra note 195 at 175–79;see generally ALEXANDER MEIKLEJOHN, POLITICAL FREEDOM (1960).

163. Convention on the Elimination of All Forms of Racial Discrimination, 660 U.N.T.S. 194, 3 I.L.M. 164, 166–67.

164. See Roth, S. (1995).The legal fight against anti-Semitism: survey of developments in 1993.

165. Ibid. Countries punishing hate speech generally include Belgium, Brazil, Cyprus, England, Italy, and The Netherlands. Those specifically prohibiting Holocaust denial include Austria, Belgium, France, Germany, Israel, and Switzerland.

166. Canadian Charter of Rights and Freedoms, 1 S.C. V (1982).

167. Criminal Code, R.S.C., ch. C-46, § 319 (1985) (Can.).

168. Canadian Human Rights Act, R.S.C., ch. H-6 (1985) (Can.).

169. Broadcasting Act, R.S.C., ch. B-9, § 3 (1985) (Can.).

170. Customs Act, R.S.C., ch. 1, § 181 (1985) (Can.).

171. 343 U.S. 250 (1952) (holding that defamation of groups may be treated the same way as libel of individuals);see R. v. Keegstra [1990] S.C.R. 697, 707, 739–41 (“Credible arguments have been made that later Supreme Court cases do not necessarily erode [Beauharnais’] legitimacy (see, for example, K. Lasson, Racial Defamation As Free Speech: Abusing the First Amendment, 17 COLUM. HUM. RTS. L. REV. 11(1985)).

172. R. v. Zundel [1987] 7 W.C.B.2d 26, aff’d, [1990] 9 W.C.B.2d 238, rev’d, [1992] 17 W.C.B.2d 106.See supra note 70 and accompanying text.

173. See R. v. Keegstra [1990] 3 S.C.R. 697.

174. Ibid. See alsoCanadian Human Rights Comm’n v. Taylor [1990] 3 S.C.R. 892 (denying protection to a group prosecuted for operating a telephone service which played prerecorded messages denigrating the Jewish race and religion); R. v. Andrews [1990] 3 S.C.R. 870 (refusing to extend constitutional protection to leaders of a white supremacist group prosecuted for publishing a newspaper that expressed anti-Semitic beliefs, including the proposition that the Holocaust was a Zionist hoax). A Canadian group also proposed that Ahmadinejad be indicted for advocacy of genocide. See “Cotler Speech to Target Iran for Genocidal Policy,” CTV Television, Inc., Jan. 23, 2007.

175. Public Order Act, 1936, 1 Edw. 8 & 1 Geo. 6, ch. 6 (Eng.).

176. Public Order Act, 1963, ch. 52 (Eng.).

177. Race Relations Act, 1965, ch. 73 (Eng.);see generally Kenneth Lasson, Racism in Great Britain: Drawing the Line on Free Speech, 7 B.C. THIRD WORLD L.J. 161 (1987).

178. Seesupra notes 73–74 and accompanying text.

179. See “Comeuppance for a Bigot,” TIME, Apr. 1, 1991, at 50. It was not until 1995 that France publicly admitted responsibility for deporting almost 70,000 Jews to Nazi death camps—only 2,800 of whom returned. See Gail Russell Chaddock,Cleric’s Comments Ignite the Fury of French Media, CHRISTIAN SCI. MONITOR, July 25, 1996, at 5.

180. See Donald P. Kommers, The Jurisprudence of Free Speech in the United States and the Federal Republic of Germany, 53 S. Cal. L. Rev. 657, 693 (1980).

181. Stein,supra note 79 at 322 (translating Art. 130 StGB) (punishing attack on human dignity by incitement to hate). The new law was prompted by a sharp increase in neo-Nazi activities in the 1980s. Ibid. at 305.

182. Ibid. (translating Art. 130 StGB). The law against insult (§ 185), which punishes offenses against personal honor, has been part of Germany’s Criminal Code since its inception in 1871. From that year until the end of World War II, although the German Supreme Court regularly utilized this article to protect Germans living in Prussian provinces, large landowners, all Christian clerics, and German military officers, it consistently refused to apply the same law to insults against the Jewish people.Id. at 286. That failure is in striking contrast to the current application of the law, which singles out Jews as a group for special protection.

183. Ibid.

184. See supra note 171 and accompanying text.

185. See Stein,supra note 79 at 312–13.

186. BGH Gr. Sen. Z. 75, 160 (161). To the extent they have considered the constitutional question at all, the lower tribunals have taken essentially the same view. See Stein,supra note 79 at 288.

187. Stein,supra note 79 at 289–99.

188. Ibid.

189. The decision banned a meeting at which British Holocaust-denier David Irving was to speak. The ruling also ordered regional courts in Germany to consider specifically whether defendants had insulted the dignity of Jews by propagating the Auschwitz lie. See “Holocaust Denial Not Covered by Free Speech,” Reuters World Service, April 26, 1994, available in Lexis News Library, REUWLD File.

190. The defendant, Bela Ewald Althans, has garnered considerable press attention as he seeks to build links between neo-fascist groups across Germany and around the world. Today there are approximately 40,000 neo-Nazis among Germany’s population of 80 million. See Rick Atkinson, Denial of Nazi Holocaust Brings 3 1/2-Year Sentence,Washington Post, Aug. 30, 1995 at A18.

191. IG 2:12–2:14.

192. Penal Code ch. 16, § 8 (1972).See generally Lasson,supra note 118, at 87–88.

193. Mermelstein v. Institute for Historical Review, No. C356 542 (Cal. Super. Ct. July 22, 1985). The case was settled when the Institute agreed to pay the $50,000, plus $100,000 for Mermelstein’s pain and suffering caused by the revoked offer. See also “Lawsuit Over Proof of Holocaust Ends with Payment to a Survivor,”New York Times, July 25, 1985, at A12.

194. 141 Cong. Rec. S16853 (daily ed. Nov. 9, 1995) (statement of Sen. Hatch) (quoting Dr. Walter Reich, Executive Director, United States Holocaust Memorial Museum).

195. Robbins,supra note 31.

196. As Justice Felix Frankfurter put it, “Courts ought not to enter this political thicket.”Colegrove v. Green, 328 U.S. 549, 556 (1946). Even more to the point is Alan Dershowitz: “I am categorically opposed to any court, any school board, any governmental agent taking judicial notice about any historical event, even one that I know to the absolute core of my being occurred, like the Holocaust. I don’t want the government to tell me that it occurred because I don’t want any government ever to tell me that it didn’t occur.” Debate,supra note 2 at 566.

197. See Douglas,supra note 119 at 453. Douglas also notes that by translating evidence of unprecedented atrocity into crimes of war, the Nuremberg prosecution was able to create a coherent and judicially manageable narrative of criminality that seemed to defy rational and juridical explanation. Ibid. at 454.

198. See Steiner, G. (1966).Language and Silence 118, 123 (1966). If Auschwitz is unique, denying other violent and arbitrary dominance should be outside the purview of punishment.See supra note 243 and accompanying text.

199. The poll was by Roper. See Jeroff, supra note 84. A poll by the same company in 2000 found that as many as eight percent of Americans may be deniers. Michael Berenbaum, The Growing Assault on the Truth of Absolute Evil,Los Angeles Times, Jan. 28, 2000 at p. B7.

200. David McLoughlin, Understanding the Holocaust, The Dominion Post (Wellington, New Zealand), April 16, 2005 at p. 13.See also Alan Crawford, ‘Look to Germany to Learn Lessons of Holocaust,’The Sunday Herald, Jan. 23, 2005 at p. 11.

201. “The Night of Broken Glass,” Nov. 20, 1938, called by many the beginning of the Holocaust. See 141 Cong. Rec. S16853 (daily ed. Nov. 9, 1995). Every year the author asks his Civil Liberties students (all of whom are upperclassmen) if they have ever heard of Krystallnacht. Few answer in the affirmative.

202. This responsibility was recognized at the 2007 Silberman Seminar for Law Faculty, The Impact and Legacy of the Holocaust on the Law, sponsored by the Center for Advanced Holocaust Studies of the United States Holocaust Memorial Museum, June 4–15, 2007, in Washington, D.C.See also Bruce Levine, An Education in Law—For What Purpose?, 34 Washburn L.J. 516 (1995).

203. Robert Trussell, Couple Brings Reality of Holocaust Home to Younger Viewers with ‘Anne Frank,’Kansas City Star, Mar. 15, 1996, at Preview 18 (quoting Mark Weitzman, Simon Wiesenthal Center).

204. See Allison Sommer, Free Speech Advocates and Opponents Move Their Battle to the Net,Jerusalem Post, Feb. 9, 1996 at 7.

205. Beck,supra note 44 at A1.

206. See Carlos Alcala, Internet Warrior Takes on Holocaust Revisionists, Sacramento Bee, Dec. 16, 1994, at A1;see also Daniel Akst, Postcard from Cyberspace, L.A. Times, May 17, 1995, at D4; Sommer,supra note 249 at 7.

207. See Judith Miller, Erasing the Past: Europe’s Amnesia about the Holocaust,New York Times, Nov. 16, 1986, § 6 (Magazine) at 30.

208. See Lipstadt,supra note 10 at 5–6; David A. Nacht, Book Note, 90Mich. L. Rev. 1802, 1808 (1992) (reviewing Dershowitz, A. (1991).Chutzpah.; William F. Buckley, Jr., In Search of Anti-Semitism, Nat’l Rev., Dec. 30, 1991, at 20; Report of the Anti-defamation League on Pat Buchanan,L.A. Jewish J., Sept. 28, 1991; Jacob Weisberg, The Heresies of Pat Buchanan,New Republic, Oct. 22, 1990, at 26–27.

209. See supra note 58 and accompanying text. In France the highly respected cleric Abbe Pierre recently lent credence to author Roger Garaudy’s book,The founding myths of Israeli politics, which sought to trivialize the Holocaust.See supra notes 46–47 and accompanying text.

210. See Dershowitz, Holocaust Video,supra note 42 at A6.

211. Historian Hugh Trevor-Roper, commenting on Hilberg’s work.

212. Robbins,supra note 31.

213. Ibid.

214. Ibid.

215. Falk, A. (1996)A psychoanalytic history of the Jews 643.

216. See Avner Falk, Collective Psychological Processes in Anti-Semitism,Jewish Political Studies Review 18:1–2 (Spring 2006) (citing Matthias Küüntzel, National Socialism and Anti-Semitism in the Arab World, Jewish Political Studies Review, Vol. 17, Nos. 1–2 (Spring 2005), pp. 99–118).

217. Robbins,supra note 31.

218. See Falk, supra note 261 (citing Ostow, M. (1995). Myth and madness: the psychodynamics of antisemitism; Duckett, J. (1992).Psychology and prejudice: an historical analysis and integrated framework, American Psychologist, Vol. 27, No. 10 (1992) at pp.1182–1193; and Volkan, V.K.D. (2004).Blind trust: Large groups and their leaders in times of crisis and terror.

219. David Terman, Anti-Semitism: A Study in Group Vulnerability and the Vicissitudes of Group Ideals,Psychohistory Review, Vol. 12, No. 4 (1984), pp. 18–24, at p. 20.

220. Stein, H. (1987).Developmental time, cultural space: studies in psychogeography.

221. Shoham, S. (1995).Walhalla, golgotha, auschwitz: über die interdependenz von deutschen und juden, trans. Michael Levi (Vienna: Edition S.) (German).

222. Sapriel, G. (2004).La permanence antiséémite: Une éétude psychanalytique: La trace mnéésique irrééductible, Pardèès: Etudes et culture juive, No. 37, Psychanalyse de l’antiséémitisme contemporain (French). Nevertheless, Sapriel found the continued existence of the Jewish people after the Shoah a great riddle. Id. at 20.

223. Falk,supra note 261 (citing Isaac, J. (1956).Genèèse de l’antiséémitisme: essai historique (paris: calmann-léévy, 1956); new ed. (Paris: Calmann-Léévy, 1985); repr. (Paris: Editions 10/18, 1998), pp. 10–18 (French) and Bééla Grunberger and Pierre Dessuant, Narcissisme, christianisme, antiséémitisme: éétude psychanalytique (Arles: Actes sud., 1997) (French). In this analysis Christians viewed Jews as symbols of evil, unredeemable because of their rejection of Jesus as the Christ and of Christian baptism. Grunberger and Dessuant concluded that “Christian narcissism” was what led to the apocalypse, the Shoah. The anti-Semite, in confrontation with reality that subverts his narcissistic illusion of omnipotence, “pours out” his narcissistic rage on the Jews rather than face the pain of his own broken dreams. Avner suggests that these psychoanalysts, like many others before them, seem to have confused individual psychological processes with group processes. Id. at.

224. Falk,supra note 261 (citing Calimani, R.Ebrei e pregiudizio: introduzione alla dinamica dell’odio (Italian).

225. Ibid. The modern German scholar Nicolaus Sombart, analyzing the German Catholic intellectual Carl Schmitt (1888–1985)—a racist anti-Semite with close ties to the Nazi Party—concluded that Jews became the archenemy of the German people when they continued to fight for the ideals of the Emancipation after the Germans had abandoned them; for these German anti-Semites, the Jewish enemy unconsciously represented a bad part of their selves that they sought to destroy. Ibid.

226. Ibid. (citing British psychoanalyst Donald Woods Winnicott and German scholar Eberhard Groener). Jean-Pierre Winter, a French-Jewish psychoanalyst, considers anti-Semitism a perversion rather than a phobia. Those who fabricated the “proof” of the false accusation of treason against the French Jewish officer Alfred Dreyfus in the late nineteenth century, he writes, knew very well their evidence was false; if they really believed there was a Jewish conspiracy to take over the world, they were psychotically delusional. Ibid. Olivier Nicolle, another French psychoanalyst, calls the modern discourse of anti-Semitism a “collective psychic formation” that subconsciously defends anti-Semitic groups from the anxiety of their inner conflicts. He sees contemporary anti-Semitic slogans as the product of collective fantasy scenes. These slogans range from the most eloquent (such as the anti-Semitic speech of then Malaysian premier Mahathir Mohammed in 2003) to the most laconic (as in an equation sign between the Star of David and the swastika); from the most inciting, as in “One Jew–one bullet,” to the most allusive, as in “No to communautarisme,” a French word that alludes to the Jews’ “crime” of organizing themselves into communities and betraying their pact with the French Republic. Once proclaimed, such slogans as “Bush=Sharon=murderer” acquire legitimacy as “public opinion.” Ibid.

227. Josef Joffe, Nations We Love to Hate: Israel, America and the New Antisemitism, Posen Papers in Contemporary Antisemitism, No. 1 (Vidal Sassoon International Center for the Study of Antisemitism, Hebrew University of Jerusalem, 2005), pp. 1–16, at pp. 2–3.

228. This theory helps explain why so many Palestinians accept unquestioningly the alleged Israeli Jewish responsibility for the death of the Palestinian Arab boy Muhammad al-Dura on September 30, 2000, even though there is considerable doubt about who killed him. Georges Gachnochi, De l’antiséémitisme traditionnel àà l’islamo-gauchisme: Facteurs inconscients du passage, Pardèès: Etudes et culture juive, no. 37, Psychanalyse de l’antiséémitisme contemporain, 2004, pp. 21–33, at p. 23 (French).See also James Fallows, Who Shot Mohammad al-Dura?,The Atlantic, June 2003.

229. Falk,supra note 261 (citing Nicolle).

230. Falk,supra note 261.See also Douglas Martin, Raul Hilberg, The Historian Who Wrote of the Holocaust as a Bureaucracy, Dies,New York Times, Aug. 7, 2007 at p.C11 (quoting historian Hugh Trevor-Roper, describing Hilberg’s landmark book The Destruction of the European Jews as a work which “reveals, methodically, fully and clearly, the development of both the technical and psychological process; the machinery and mentality whereby one whole society sought to isolate and destroy another, which, for centuries, had lived in its midst.”).

231. See supra note 148 and accompanying text.

232. See generally Levine,supra note 247.

233. See Lasson,supra note 140 at 123–29.

234. See supra note 75 and accompanying text.

235. See generally Jean Stefancic & Richard Delgado, A Shifting Balance: Freedom of Expression and Hate-speech Restriction, 78Iowa L. Rev. 737 (1993). But Stefancic and Delgado find themselves in the same unresolved conflict as Prof. Abzug,supra note 8 and accompanying text, as illustrated by their not-very-conclusive concluding advice: “Readers should distrust the facile urgings of both those who would dismiss the community and equal protection values at stake in the controversy over campus anti-racism rules as well as those who give little weight to the vitally important, historically rooted values of free expression and free speech.” Ibid. at 23.See alsoStriking a balance: hate speech, freedom of expression and non-discrimination (Sandra Coliver et al. eds., 1992).

236. See generally Leon E. Trakman, Transforming Free Speech: Rights and Responsibilities, 56Ohio St. L.J. 899 (1995).

237. See Miller,supra note 252 at 30.

238. Peter Simple, Denial,London Daily Telegraph, Apr. 12, 1996 at A1.

239. The commission on freedom of the press, a free and responsible press: A general report on mass communications (Univ. of Chicago Press 1947). The Commission on Freedom of the Press was chaired by Robert Maynard Hutchins.

240. See supra note 138 and accompanying text.

241. Freedom of the Press,supra note 284 at 131.

242. See Bollinger, L. (1991).Images of a free press.

243. Rodney A. Smolla, Report of the Coalition for a New America: Platform Section on Communications Policy, 1993U. Chi. Legal F. 149, 155–56.

244. Freedom of the Press, supra note 284 at 1, 20–21, 131.

245. Smolla,supra note 288 at 184.

246. Lawrence Krauss, Opinion, Equal Time for Nonsense,New York Times, July 29, 1996, at A19. Krauss is chairman of the physics department at Case Western Reserve University. He goes on to cite favorably the advice passed on by Arthur Hays Sulzberger (publisher of theNew York Times from 1935–61): “I believe in an open mind, but not so open that your brains fall out.” Ibid.

247. See Federal Rules of Evidence 201;see also Debate,supra note 2 at 577–78.

248. See supra note 238 and accompanying text.

249. See Debate, supra note 2 at 567–71.

Authors and Affiliations

1. University of Baltimore School of Law, 1420 N. Charles Street, Baltimore, MD, 21201, USA

   Kenneth Lasson

Corresponding author

Correspondence toKenneth Lasson.

Earlier analyses of this topic appeared in part in theBaltimore Jewish Times (April 13, 2007) and in 6Geo. Mason L. Rev. 35 (1997).

Reprints and permissions