Freedom of speech should not be freedom to vilify
IN a legal first, Australia's most notorious Holocaust denier, Fredrik Toben, has been jailed for three months following the failure of his appeal this week for contempt of court arising from breaches of Australia's anti-vilification laws.
The sentence follows seven years of Toben repeatedly ignoring court orders requiring him to remove racist material from his Adelaide Institute website.
.. in 2002 ...the Federal Court found Toben's website breached the racial-hatred provisions of the Racial Discrimination Act ...material on the site suggested
- the Holocaust did not occur,
- that there were no gas chambers at Auschwitz,
- that Jewish people who believed in the Holocaust were of limited intelligence and
- that they have exaggerated the number of Jews killed during World War II to profit from what he described as "a Holocaust myth".
But it's not these claims, no matter how offensive they may be, that have landed Toben with a prison term. There are no criminal sanctions under the [Racial Discrimination] act.
Toben is going to jail for contempt of court. He was ordered to remove the offending material and he didn't. ...
...Like all freedoms, the proper limits of free speech are exceeded when it is about causing harm....
Whether it's Jews, Muslims, homosexuals or women, the public vilification of entire groups of people can only undermine, and ultimately destroy, their sense of security, the birthright of every Australian. ...vilification is the invariable precursor to violence against members of the targeted group.
The Racial Discrimination Act protects innocent people from this sort of harm.
But the harm has to be proved in court according to objective criteria. The act makes it clear that it is not unlawful to publish material in good faith as part of a genuine academic, artistic or scientific debate, whether anyone takes offence or not. What's clear in the Toben case, and what the court found, was that his material is not part of a genuine debate about history or politics, as he claimed. The real thrust of his material is to use the internet to stoke up hatred against Jews as a group.
Some argue that if Toben had been left alone to spruik from his Adelaide-based hate website he would have remained an obscure failed school teacher talking to like-minded nutters. Not so. Toben is a determined publicity hound. In 1999 he travelled to his native Germany and was convicted in Mannheim of incitement to racial hatred and Holocaust denial. In Germany, for obvious reasons, trying to whitewash the Nazis' crimes is a criminal offence. Toben spent seven months in jail.
In 2006, Toben went to Tehran for an anti-Semitic hatefest, hobnobbing in the media limelight with a cavalcade of some of the world's most notorious racists including Iranian President Ahmadinejad and US Ku Klux Klansman David Duke.
...For reasons that defy conventional analysis, Toben has spent most of his adult life vainly working to rehabilitate the universally disgraced reputation of Nazi Germany. And for Toben, "the Jews" are the principal obstacle.
If Toben and his patsies confined their activities to ranting among themselves in private, few would care. But using our cherished freedoms and easy access to the mass media as a way of striking at the security of an entire group of people on racial grounds tears at the fabric of our community and ultimately threatens those very freedoms....
*Steven Lewis and Peter Wertheim are lawyers with Slater and Gordon who ran the racial vilification and contempt cases against Fredrick Toben.