by Mary W Maxwell, LLB
Ursula Haverbeck, age 89, lost her appeal last week and is expecting to be jailed for her demand that Germans be provided with specific information about the 1940s Holocaust. Germany, France, and other nations have a law forbidding citizens to “miminize” the Holocaust – as it insults the dead and/or incites racial violence.
In 2009, Adelaide’s Dr Fredrick Toben was held in contempt of court for refusing to delete offensive things from his website. I submitted an amicus curiae brief. It was rejected by the judge on the grounds that Toben’s counsel could have said the same things. I print it here as “public domain” in case anyone wants to use it in a similar case.
My brief has nothing to do with Auschwitz and does not mention the content of the case against Toben. I was speaking for “other parties,” namely, the Australian public.
In the Federal Court of Australia, South Australia district registry, in the appeal from the decision of JUSTICE BRUCE LANDER in Fredrick Toben v Jeremy Jones
AMICUS CURIAE BRIEF, SUBMITTED IN THE PUBLIC INTEREST
BY MARY MAXWELL, Ph.D., widow
The issues to be dealt with, in two parts of the amicus brief, are as follows: … Part One — the need, for schools and universities to continue to impart students the traditional rules governing scientific and historical research, and Part Two — the way in which a jail sentence for a scholar will chill free expression in Australia, mainly by engendering self-censorship.
PART ONE: STANDARDS FOR SCIENTISTS AND HISTORIANS
It Is Valuable to a Society To Have a Consensus As to What Constitutes ‘Science.’
It is well established that scientific research is a particular endeavor requiring disciplined thought. One is expected to ‘follow the rules of science.’ The acceptance of the results of a scientist’s research is dependent, in the first instance, on a showing that she, for example, used a properly selected a control group for comparison with the subjects of her experiment, or that she made scrupulously careful measurements.
It is also undisputed that a person can start with any theory about the world, marshal facts and arguments in support of it, and draw a conclusion as to whether he has proved his point. Others will then agree or disagree with his methods or his conclusion; they may offer an alternative theory to explain the same set of empirical facts.
The integrity of the existing body of science, and the validity of yet-to- be-produced scientific work, are protected by a culture within the scientific community that jumps at sloppiness of research and erroneous conclusions, and praises careful work.
Young students need to be made aware of how science works. In a famous case in Louisiana, United States, concerning so-called Creation Science, 72 Nobel laureates (31 in physics, 13 in chemistry, and 28 in physiology and medicine) submitted an amici curiae whose key paragraph is as follows:
This case is crucial to the future of scientific education in this nation. As researchers in many different branches of advanced science, amici share a concern for the basic scientific education of this nation’s public- school students. Scientific education should accurately portray the current state of substantive scientific knowledge. Even more importantly, scientific education should accurately portray the premises and processes of science. Teaching religious ideas mislabeled as science is detrimental to scientific education: It sets up a false conflict between science and religion, misleads our youth about the nature of scientific inquiry, and thereby compromises our ability to respond to the problems of an increasingly technological world….. [emphasis added] — Don Aguillard v Edwin Edwards, No. 85-1513, 1986 US Court of Appeals for the Fifth Circuit
A Welcoming Environment for New Scientific Ideas Has Helped Australia
Today, Australia is among the leaders in many fields of science and technology.
Looking back a century and a half we can see that ‘a people’s science,’ as historian Ann Moyal calls it, was the source of much new work. She writes, in her 1986 book, A Bright and Savage Land, ‘By the mid-1850s several colonies boasted a scientific museum of their own. Men, women, and children flocked to these repositories of natural science…. During the 1830s and 40s the egalitarian Mechanics Institutes sprang up in the eastern colonies [including] in such country towns as Goulburn in New South Wales and Ipswich in Queensland…. The Sydney School of Arts and Mechanics Institute was founded…by a group which included a saddler, John Reilly, a bootmaker, William Hipkiss, a builder, David Taylor and J.R. Fenwick, a boy.’ P.82-3.
‘In South Australia,’ Moyal notes, ‘the Chief Justice, Richard Hanson, gave the most explicit and cogent contemporary examination of the Darwinian thesis in Four Papers read before the Philosophical Society of Adelaide in 1864.’ P. 143.
As there is no reason to assume that scientific discovery has now ended, it is vital for Australia that citizens feel that their ideas will be listened to. Very few individuals have the self-confidence to insist on an insight that has been declared heretical or taboo. Students need to be told that the ‘popularity’ of an idea is not what really counts.
The Discipline of History, Too, Has Rules, and Is Permanently Open to Revision
Historiography, the writing of history, has its own rules. Academic historians guard their field, as scientists do, by teaching students to follow certain protocols of research and writing.
A person who publishes a history, of any period or place, is expected to justify her writing by presenting the sources on which she relied. She is explicitly not allowed to make something up, nor is she allowed to take a wild guess. Even an ‘educated guess’ will be greeted with plenty of criticism by colleagues.
Thus ‘good history’ is cautious. It states as historical fact only that for which there is substantial evidence. Typically, colleagues – who are competitors, actually – publish criticism of history books, pointing to errors or to inferences that cannot be supported.
Moreover, as every political scientist knows, the rulers of a society prefer that their version of history be the one learned by the people, so that people will not gain power over them via, say, anger. Often a government denies having done something that it shouldn’t have done. For example, for many years South Australians were assured that no one was harmed by the nuclear explosion conducted by the British at Maralinga. Later it was admitted that that assurance was incorrect.
Both because new historical material is always turning up, and because there are revisionists with an explicit mission to correct wrongly-told history, it is important that the public know that there are standards by which various histories can be judged.
To believe otherwise is disruptive of rationality in general. It would be a throwback to the days of prejudice, and could be expected to impinge on fairness.
Conclusion to Part One of This Amicus Brief: Relevance of the Toben Case to the Standards of Science and Historiography
The public hears only bits and pieces of the Toben case. Australians are likely to get the mistaken impression that Dr Toben is being punished for something he said or wrote and that we all had better start biting our tongue. ….
The mainstream media in Australia is deliberately attempting to create the impression that ‘denying’ the holocaust is a crime. The anchorwoman of Channel 7 News, on May 13, 2009, opened the segment about the case with the words ‘Adelaide’s notorious holocaust denier Fredrick Toben…’ in the way one might say ‘Infamous rapist So-and So’ or Notorious embezzler So-and-So.’ The audience could hardly fail to form an impression that a person who denies the holocaust could thereby become ‘notorious’ – something no one wants to be.
Similarly, a headline in the Adelaide Advertiser – and at www.news.com.au – on May 13, 2009, said HOLOCAUST DENIER FREDRICK TOBEN JAILED. Many people read only the headlines, and from that headline they may unconsciously ‘learn’ that you can go to jail in Australia if you deny the holocaust.
This case could therefore become the launching pad for a revolutionary view that racial discrimination laws can obviate proper science and proper historical research.
Hence, this amicus calls the Court’s attention to the fact that one consequence of a jail term for Toben will almost certainly be a reluctance on the part of history and science teachers to handle any question from students as to how the World War II gas chambers functioned, or how the number of civilian deaths was arrived at.
Such reluctance would deprive students of being reminded that long- standing rules of science and of historiography are still current and in need of respect.
PART TWO: FREE SPEECH AS ESSENTIAL TO AUSTRALIAN POLITICS
Australia Takes for Granted That Citizens Should Be Able To Speak Freely
The right of every person to think freely and speak freely is a modern idea. No mention of such a right appears in the otherwise very prescient Magna Carta of 1215, as people in those days understood ‘tradition’ to be their guide. Only after Martin Luther started the protest-ant reformation of the Church in Germany did the public debating of accepted truths become (relatively) commonplace.
Still, by the time of the English Bill of Rights of 1689, the only ‘talk’ that was guaranteed to the subjects was talk to the monarch. ‘And thereupon the said Lords Spiritual and Temporal and Commons…do… for the vindicating and asserting their ancient rights and liberties declare…That it is the right of the subjects to petition the king, and any commitments or prosecutions for such petitioning are illegal.’
By 1791, the First Amendment to the Constitution of the United States provided ‘Congress shall make no law…abridging the freedom of speech, or of the press….’
The International Federation of Library Associations and Institutions calls upon libraries and library staff, today, ‘to adhere to the principles of intellectual freedom, uninhibited access to information and freedom of expression….’ www.ifla.org/faife
Australia follows common law to protect freedom of speech. Also, the High Court has ruled that a right to freedom of political communication is implied by the sections of the Constitution that guarantee representative and responsible government, and that those sections ‘preclude the curtailment of the protected freedom by the exercise of legislative or executive power.’ – Australian Capital Television v Commonwealth (1992) 177 CLR.
Enforced silence about the doings of the powerful is quite foreign to Australia.
There Is a New Chill in the Air
Since 2001, and usually with reference to the terrorist incident of September 11th, the governments of various countries have legislated to restrict free speech.
In the United States, Bob Barr, a Libertarian, notes the difference between going to a protest rally in the period of the 1968 to 1988 – when you could wear a Nixon mask and actually have fun, and the period under Pres. George W. Bush when you are made to feel like a criminal. He writes in ‘The FBI’s Pre-emptive Interrogations of ‘Possible Demonstrators: Chilling Political Speech’ (www.Findlaw.com, August 25, 2004):
Now, things are very different. ….For example, people with T-shirts that hint at disagreement are not allowed anywhere near the events, nor even on the route traveled by the presidential motorcade. …E]vidence has been mounting that special agents are showing up at the homes and offices of potential protesters – casting suspicion upon them in front of bosses, colleagues, family, friends and neighbors….
Worldwide, citizens appear to be losing their civil liberties more and more every year.
In Australia, the Anti-Terrorism Act came into effect in December 2005. It provides up to 7 years jail for anyone who urges ‘disaffection against the Government or Constitution of the Commonwealth….’ This opens the door to the controlling of free speech.
Conclusion to Part Two of This Amicus Brief: The Relevance of the Toben Case to the Chilling of Free Speech
Toben v Jones is a unique case. The defendant was initially not charged with a crime. Certainly there is no law in Australia against denying the holocaust. Rather, the plaintiff brought a civil action against Toben, as is provided for in the Racial Discrimination Act, claiming that Toben published things on his website that offended an ethnic group. In failing to clean up his website, Toben then committed the quasi-crime of contempt. He will be jailed for undermining the court’s authority, not for offending an ethnic group.
The problem is that very few people understand that distinction, and so the jailing of Toben will have a more chilling effect on free speech than is actually warranted.
The media are contributing to this problem in a manner that looks well-planned. For example, journalist Selma Milovanovic in The Age, May 29, 2009, states that Justice Bruce Lander ‘rebuked’ Dr. Toben for adding material to the website on the morning of the sentencing hearing (April 28, 2009). That is simply false. Although at one point Justice Lander quite justifiably told the defendant to stop lecturing and just answer the questions, he did no rebuking – His Honour was meticulously tolerant of both parties.
Also, J-Wire, an internet magazine, stated, on May 28, 2009, that the plaintiffs in Jones v Toben ‘have also requested that action be taken against [Adelaide Institute’s] current director, Peter Hartung.’ The implication is that the plaintiffs can ask the court to prosecute, but in fact the plaintiffs attorney merely said he might bring an action himself.
Part One of this amicus pointed out, concerning the standards of science and historiography, that the media is playing an active role by insinuating that holocaust denial is the kind of thing that ‘notorious’ persons do, rather than the sort of thing that is quite ordinary among scientists and historians. Here in Part Two it is said that media are trying to increase, rather than decrease, the chilling effect of the Toben case on free speech.
It is beyond this amicus to reflect on the media’s motive in trying to chill free speech.
In the past, if any scholar were to be punished for statements, no matter how offensive, it would be met with an uproar from academia. Yet today, at Adelaide’s three universities, we see evidence that self-censorship is already taking hold: silence reigns.
For example, a Google search for ‘adelaide university, fredrick toben’ conducted on 2 June, 2009 (Exhibit A) and a yahoo search for ‘‘university of Adelaide,’ Toben’ conducted on 3 June, 2009 (Exhibit B) failed to bring up, on their first page, any reports of local discussions of free-speech issues related to Toben.
Very likely each person says to himself ‘It is not worth jail, or loss of a job, or getting smeared by the media, or possibly risking one’s health or that of his loved ones, to help a man who could easily avoid jail just by shutting up.’ Anyone can read, at 13.1 of Toben’s May 25, 2009 affidavit, the allegation that his local Internet provider has received death threats – and that no police investigation appears to have resulted from that.
The chilling of free expression in Australia also encompasses consideration of what may happen when one travels outside Australia. After all, Dr. Toben, who is Australian, was taken off a plane at Heathrow in 2008 while he was transiting from United States to Dubai. He was kept in a London jail, with threat of extradition by the European Union Arrest Warrant. No mention was made in the press of any intervention by the Australian government.
Also, anyone can see, at www.rense.com, the complaint to the United Nations Human Rights Committee that was filed by solicitor Barbara Kulaszka on behalf of Ernst Zündel stating that he was kept in solitary confinement in Toronto for 2 years, with no charges presented, other than ‘national security’ charges conducted in secret. Earlier, Zündel had been cleared of charges for publishing a book by Robert Harwood, Did Six Million Really Die? questioning the number of holocaust deaths.
Then, according to Kulaszka, Canada deported Zündel to Germany, despite the fact that he had lived in Canada since 1958. In 2007, a German court convicted Zündel of the crime of holocaust denial, and sentenced him to five years in prison. Canada’s legal system being comparable to Australia’s, it is not unreasonable for people in this country to panic, rightly or wrongly, about the portent of the Toben case.
In conclusion, this amicus draws attention to the fact that Toben v Jones has implications for persons that are not parties to the case. Those persons can be liberally identified as all Australian children and all Australian adults.
Respectfully submitted by Mary Maxwell, Ph.D. *****
Toben adds, in regard to his original case which was at the Human Rights and Equal Opportunity Commission: “I had over 20 witnesses and [Director} McEvoy ruled nearly all of them as irrelevant, as she ruled irrelevant my presenting matters of fact. For example, both Professor Arthur Butz’s The Hoax of the 20th Century and the Hayward thesis were silently swept under the carpet.”
For the record: Fredrick Toben does not deny the Holocaust.
–Mary W Maxwell is currently an accepted-by-the-court amicus curiae in the appeal of Dzhokhar Tsarnaev’s conviction, in United States court, 1st Circuit.