The Holocaust started with silence

2013-04-24 04.49.50 am

 

 

NICK CATER

Published in The Australian, April 15, 2014

 

HATS off to Bob Carr. Within days of publication, Diary of a Foreign Minister has pushed holocaust denial off the Adelaide Institute’s home page, an accomplishment that has eluded human rights lawyers for years.

Carr’s claims about the power of “the Lobby” and its puppets in the falafel faction of the parliamentary Labor Party is the kind of story that goes down well with Frederick Toben and his chums on the Fuhrer-fawning fringe. No fewer than five stories about Carr had been posted by last night, shoving hardcore historical revisionism, like The Jewish Gas Chamber Hoax, on to the next screen alongside David Irvine’s rants, an article questioning the efficacy of Zyklon B gas, and a report from Iran claiming that Balfour declaration was ‘a crime against humanity’.

If section 18C of the Racial Discrimination Act was working as its advocates intended, this objectionable material would have been taken down years ago. After all it is almost 18 years since the Executive Council of Australian Jewry lodged a complaint to the Human Rights and Equal Opportunities Commission about Toben’s “malicious anti-Jewish propaganda”. HREOC upheld the complaint lodged by the council’s Jeremy Jones that the publication was highly offensive to the Jewish community. When Toben failed to comply with an order from the federal court to remove it and publish an apology, he was found guilty of contempt and sentenced to three months in jail.

Jones is a tireless, public-spirited worker on behalf of the Jewish community and the wider cause of Israel, yet the protracted Toben saga has had disturbing consequences. Toben’s notoriety has ensured years of publicity for his worthless institution. He has become a martyr within the cancerous community of crackpots who regard him as a serious historian. The attempt to shut him down has reinforced their belief in an internationally sanctioned conspiracy. As Alan Dershowitz wrote in The Australian earlier this month that “by turning those who express racist ideas into criminals, we give their bigoted voice a megaphone.”

It would be nice, therefore, if we could ignore this ignominious pretender in discussing the amendments to the Act contemplated by Tony Abbott’s government. Yet we cannot, particularly since advocates of the status quo have reduced the whole debate to a an argument about Andrew Bolt, when clearly it is not.Bolt’s case is easily defended. The illiberal interpretation of the law that Justice Mordecai Bromberg adopted in his finding against Bolt must never be used again. Toben is an altogether more ugly beast, yet he too must be defended since the right to free speech applies just as much to anti-Semitic cranks as it does to everyone else.

Justice Louis Brandeis’s landmark1927 judgment in the case of Whitney v. California remains pertinent: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Holocaust denial is undoubtedly offensive, insulting and humiliating yet it does in itself fall into the narrow category of things that can be reasonably suppressed. In Brandeis’s opinion, the law should confine itself to incitement, the “clear and present danger… that immediate serious violence was to be expected or was advocated.”

Among the more misleading claims made by opponents of change is that they will “open the door” to holocaust denial. It was an argument put most recently by barrister Arthur Morris. Yet Morris would be well aware, Australia is not one of the 17 countries where holocaust denial is implicitly or explicitly illegal. If he wants to argue that it should be then let us have an honest debate, for Hansard makes clear that parliamentarians never intended the vilification amendments to operate as a de-facto ban on holocaust denial when they were passed in 1994. Indeed the door is already well and truly open. Denialist arguments are prosecuted daily on the Adelaide Institute’s website, proving the truth of Benedict de Spinoza’s 350-year-old dictum that “every man is by indefeasible natural right the master of his own thoughts.”

That there was little public outcry in 2009 when Toben was sentenced to jail is a measure of the natural opprobrium that falls upon those who seek to explain away history’s most heinous crime. Yet some farsighted liberal thinkers did speak out in defence of free speech, among them The Australian’s Janet Albrechtsen and the British commentator Melanie Phillips. They were right to do so, for when it comes to crimes against humanity, too much discussion is barely enough.

If the revisionists force us to examine yet again the banality of Hitler’s final solution, to re-examine for example the blueprints for the factories of mass slaughter built at Auschwitz in 1943, and imagine what might have been going on the heads of architects Walter Dejaco and Fritz Ertl, we are drawn irresistibly to Hannah Arendt’s conclusion: “The sad truth is that most evil is done by people who never make up their minds to be either good or evil.” If Toben’s grotesque distortions oblige us to re-read the testimony of witnesses like Primo Levi then he is doing us a favour.  Levi had the measure of these close-minded con men. He declared: “Those who deny Auschwitz would be ready to remake it.”

The attempt by Ron Merkel to link Bolt by association to holocaust denial was perhaps the most grievous mistake he made as prosecutor in the cast of Bolt v Eatock. “The holocaust in the 1940s started with words and finished with violence,” he told the court. No Mr Merkel. It is not speech, but totalitarian suppression, that makes atrocities possible. The holocaust started in silence and continued in silence.