IN 2006, when David Irving, a British writer, was given a three-year jail term in Austria for questioning the truth of Hitler's genocidal crimes, The Economist was clear in its response. As a colleague wrote at the time:

Laws against Holocaust denial...were never a good idea. The best defence against neo-Nazis is reason and ridicule, not the criminal law. But at a time when the western world is battling to defend free speech against religious zealotry, they look particularly indefensible. It is punishment enough for Mr Irving that he has lost his professional credibility. He should not lose his liberty too.

Nothing has happened since then to weaken the case for using "reason and ridicule" rather than handcuffs to cut deniers down to size. But the European Union commissioner for justice, one of 28 minister-level executives, strongly thinks otherwise. "I find it disgraceful that Holocaust denial is a criminal offence in only 13 [of the EU's 28] member states," declared Vera Jourova in a speech this month, wrapping up a colloquium on the "fundamental rights" of which the EU has become, at least in certain carefully defined ways, a guardian.

Almost equally troubling was another of her assertions: "If freedom of expression is one of the building blocks of a democratic society, hate speech on the other hand is a blatant violation of that freedom. It must be severely punished." That is muddled reasoning. Hate speech may be a foolish or even wicked abuse of freedom of expression, but that is not the same as a violation. And there is no sign that the commissioner is at all troubled by the fact that in many EU countries, statements that would be protected under America's constitution (for example, strongly asserting the truth of one religion and denying the truth of another) have been denounced and prosecuted as hate speech.

As the Danish free-speech campaigner Jacob Mchangama pointed out recently in testimony to a panel of the Organisation on Security and Co-operation in Europe, one of his compatriots has been jailed on "glorifying terrorism" charges, in part merely for disseminating verses from the Koran over the internet. That is surely a bad precedent. The fight against the forces of terror will be badly compromised unless a clear distinction is made between between violence and incitement to violence on one hand, and strongly-held metaphysical ideas on the other. For a free-speech advocate, the right to quote verses from the Koran is as sacrosanct as the right to call Islam a "religion spawned in hell", a turn of phrase for which an elderly Northern Irish preacher faces criminal prosecution.

Ms Jourova calls quite properly for vigilance against hate crime and in the same breath for a severe crackdown on hate speech, as though the definitions of both were set. But they have not been clearly established by judges, law-makers or public opinion. That makes it extra important to qualify any reference to "hate speech" with a robust commitment to the need to shore up freedom of expression instead of demanding curbs on that liberty.

In Mr Mchangama's view, Ms Jourova's approach "takes the EU away from its founding values" because "one cannot foster tolerance through repression and censorship". On the contrary, he says, "racism and bigotry call for opposition from social movements and an engaged civil society, and that requires freedom of expression."

In fairness, Ms Jourova acknowledged that promoting tolerance and co-existence in Europe was not the responsibility of the European Commission alone. Well, thank goodness for that. Whatever their flaws, there are other organisations, such as the Council of Europe and the OSCE, with far greater legitimacy as upholders of intangible things like European values. And at a time when xenophobic, euro-sceptic parties are gaining ground all over the continent, over-reach by a zealous Brussels bureaucracy could be counter-productive to put it mildly.

To state the obvious, Europe faces a historic challenge in coping with the migrants who are now flowing in from Syria, Iraq, Afghanistan and other benighted places. It either will or won't rise to that challenge successfully. But as a matter of practical politics, threats of "severe punishment" from an unelected bureaucrat for ill-defined offences will probably not improve the chances.