3^rd March 2014
by Peter Wertheim
Contrary to the asser­tions of Professor James Allan, (‘These elitist hate-speech laws erode democracy’, Sydney Morning Herald, March 3), there was no equi­val­ent of section 18C of the Racial Dis­crim­in­a­tion Act in the Weimar Germany. The only laws against hate speech were criminal offences, not civil remedies. Weimar Germany had nothing equi­val­ent to the framework which currently exists under the Racial Dis­crim­in­a­tion Act within which com­plaints of racial vili­fic­a­tion have, in the vast majority of cases, been suc­cess­fully con­cili­ated through the Aus­trali­an Human Rights Com­mis­sion or resolved by direct nego­ti­ations between the parties.
This framework, which has proven to be an inex­pens­ive, just and efficient way of resolving com­plaints, would be lost if section 18C was repealed as Allan recom­mends. The anti-hate laws of Europe, past and present, bear no com­par­is­on to section 18C.
In Weimar Germany, the absence of civil remedies was made worse by the fact that the relevant criminal offences were hon­ey­combed with immunit­ies for members of the Reichstag, the German Par­lia­ment. Nazi members of Par­lia­ment became the nominal pub­lish­ers of single or multiple antisemitic pub­lic­a­tions. This facade meant that no one could be pro­sec­uted for the hate crimes per­pet­rated by the pub­lic­a­tions. The Reichstag could waive immunity for its members, but did so rarely.
The anti-hate law was further emas­cu­lated by the light sentences imposed when somebody was convicted. Most of the con­vic­tions led only to fines. Karl Holz, editor of the rabidly antisemitic ‘Der Sturmer’, was sentenced in 1931 to one year in prison for the offence of racial insult, the maximum for that offence. However, it was his sixteenth con­vic­tion. Joseph Goebbels was sentenced to prison twice, once to three weeks and once to six weeks. Julius Streicher was sentenced to prison once for two months. Theodor Fritsch was sentenced to prison on one occasion for four months after a criminal libel action (not a hate crime pro­sec­u­tion) that went on for years. Those sentenced for destruc­tion of Jewish tomb­stones or painting swastikas on syn­agogues and in cemeter­ies typically received light jail sentences if they received jail sentences at all. These con­vic­tions in effect merely became the cost of doing business for hate groups. It is generally true that an offence will not be an effective deterrent if there are no mean­ing­ful penalties attached to con­vic­tion.
Article 118 of the Weimar con­sti­tu­tion forbade cen­sor­ship with the text “No cen­sor­ship will take place”. This is very similar in substance to the US First Amendment, so beloved of the free speech abso­lut­ists as a cure-all for racism, but it too was com­pletely inef­fec­tu­al in pre­vent­ing Germany from des­cend­ing into a total­it­ari­an dic­tat­or­ship under the Nazis. Unlike the US and Australia, Weimar was an immature democracy with no real exper­i­ence in balancing competing freedoms and competing rights. Ulti­mately, it was the Great Depres­sion and its dev­ast­at­ing impact on the lives of millions of people, not Weimar’s legal regime, that fostered the rise of Nazi tyranny.
There can be no doubt, however, that it was the relent­less Nazi campaign of racial vili­fic­a­tion against Jews and other minority groups that desens­it­ised the wider community to the humanity, dignity and rights of the groups who were targeted, and thereby prepared the way for the escal­a­tion from dis­crim­in­a­tion to per­se­cu­tion to genocide that was to follow. If Allan had his way, such groups would once again have no legal means to defend them­selves.
Peter Wertheim, AM, is the Executive Director
of the Executive Council of Aus­trali­an Jewry.