Australian Civil Liberties Union

A big hammer for such a little nut
Terry Lane, PERSPECTIVE, The Sunday Age, October 15, 2000


The human rights and equal opportunity commission has ordered an Adelaide man, Dr Fredrick Toben, to change the contents of his website, or else.

Dr Toben is sceptical about the use of gas chambers by Nazis for the mass extermination of Jews. He says that it didn’t happen, or is grossly exaggerated. And if that is what he sincerely believes, as offensive as some people may find it, how can he be forced to pretend that he doesn’t believe it?

Are we to take it that the human rights commissioner is going to order every outspoken person who offends some group or other to desist and apologise? Will Philip Ruddock be forced to declare that Aborigines did event the wheel? Or will Bill Hayden be compelled to retract his assertion that some Aboriginal children were better off separated from their parents?

Toben is saying on his website that he doesn’t believe that the Nazis used gas chambers to murder Jews. He is making a claim of fact that can be proven or disproved by evidence. It does not need to be censored in advance of the argument.

However, we know all that. Some of us believe in the principle of free speech, even though it means that we must from time to time defend the rights of individuals whose speech is morally repulsive or even fantastic and mendacious. And some of us want to prohibit speech that offends or hurts, on pain of penalty for the persistent speaker.

As one who believes in the right of the citizen to be wrong and offensive, I am interested to know how the speech prohibitionists intend to stop the mouths of those they don't like. Can it be done in a free society? To what low level of thought control are we prepared to go?

In totalitarian nations where total control on ideas has been tried they have come up with novel mechanisms. In the old Soviet Union, you had to get a government licence to own a duplicating machine. But neither the Soviets nor the Chinese thought to impose proper controls on the fax, which led to things getting out of hand in the late 1980s.

Now we have the Internet, and Dr Toben’s Adelaide Institute website appears to be located on an American server.

The human rights commissioner will get short shrift if she appeals to the American administration to close down a website. They don't do that sort of thing in the USA because they believe that the good order of society is not threatened by a few people who choose to hold and disseminate improper opinions.

But suppose that the commissioner, Ms McEvoy, could persuade the Americans to revoke the first amendment to their constitution, she would not be able to leave it there. She would have to effect a total ban on Dr Toben speaking in public, or even having private conversations. He would have to be a banned person in the old South African sense of the term.

His mail would have to be censored, his telephone cut off, his computer and fax confiscated and all his friends, who might republish his ideas, locked up in solitary. Anyone holding similar opinions would have to be banned. Has she thought this thing through?

Some zealots who believe in free speech might think that, in the service of their convictions, they should re-publish the Toben website, not because we agree with it but because of the principle at stake.

German-born Dr Toben may be trying to clear his people's name. If a Japanese-Australian were to publish a revisionist history of WWII in which the Japanese Imperial Army is a bunch of softies, totally committed to prison reform, would the human rights commissioner ban it because the RSL petitioned her to? I think not.

If Toben is telling the truth, nothing will stop it. If he is a malicious fantasist, then he will be ignored. We should test his assertions, not silence them.



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