Banning the Nazi Swastika and Its Implications on Free Speech

File photo of a municipal worker cleaning Nazi swastikas from public buildings. (Kirill Kudryavtsev/AFP/Getty Images)

Commentary

Victoria is the first Australian State to introduce legislation in its Parliament to ban the public display of the Nazi Swastika. The Summary Offences Amendment (Nazi Symbol Prohibition) Bill has bipartisan support and, hence, will sail through the Parliament unopposed.

Following a recommendation by a parliamentary inquiry, New South Wales is also planning to adopt similar legislation. There are, however, Hindu and Buddhist religious versions of the emblem, the use of which will remain legal.

There is no doubt that the Nazi regime that ruled Germany from 1933 to 1945 was evil. Based on a racist ideology, it waged an aggressive war, which resulted in the persecution and murder of around six million Jews, known as the “Holocaust.”

Although it is undisputed that the Swastika, as a Nazi symbol, portrays evil, it is still appropriate to consider the impact of the proposed ban on free speech in Australia.

Many countries have not banned the public display of the Swastika. In this context, it is interesting to note that the use of Nazi symbols is legal in Israel. In that country, legislation for banning the Swastika was initiated in 2012, but thus far no Israeli law has been passed.

Usually, the banning of Nazi symbols is accompanied by prohibiting the propagation of revisionist history, which seeks to deny the existence of the Holocaust.

As is expected, the use of Nazi symbols is banned in Germany. In accordance with Article 9 of the Basic Law of 1949 “Associations whose aims or activities contravene the criminal laws or that are directed against the constitutional order ... shall be prohibited.” This article makes the former National Socialist (Nazi) organisation an illegal and unconstitutional organisation.

The German Criminal Code prohibits the domestic dissemination, production, public use, production, stock, import, and export of propaganda material of unconstitutional organisations, specifically material intended to further the aims of a former NAZI organisation. There are exemptions from prosecution for educational and artistic purposes. Such exemptions will also be incorporated in the Victorian legislation.

A swastika is seen graffitied on the front of the Victorian State Parliament, in Melbourne, Australia, on Oct. 1, 2012 (AAP Image/David Crosling)

The compatibility of the banning of the Swastika with free speech has been tested in the European Court of Human Rights in Nix v Germany, decided on March 13, 2018. Nix’s appeal to the Court was based on Article 10 of the European Convention on Human Rights, which provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities.”

However, the right to free speech is subject to restrictions prescribed by law and necessary in a democratic society. Nix argued that Article 86a of the German Criminal Code constituted an unnecessary interference with freedom of expression in a democratic society.

However, the Court rejected Nix’s contention and found that the interference with his freedom of expression was a legitimate restriction, proportionate to the aim of defeating racial hatred and, hence, did not contravene Article 10 of the Convention.

People may well disagree with the judgment of the European Court of Human Rights and the proposed Victorian legislation. Such disagreement is based on the idea that a society that stifles debate on controversial issues is inherently a weak society.

Consistent with this view, people deserve to live in a society where discussion of sensitive and controversial issues is not lethal, and well-meaning citizens do not lose their jobs when they express a view that is incompatible with the views of society’s policymakers, trendsetters, and woke politicians.

Bad laws, recently adopted by the Victorian Parliament exemplify that Australia is on the way to attuning people to a totalitarian mindset that is uncritically supportive of the suppression of free speech. For example, Victoria adopted the Change or Suppression (Conversion) Practices Prohibition Act 2021, which prohibits any advocacy of conversion practices, or encourages teenagers to reverse their gender alteration treatments.

The state’s proposed banning of the Swastika (and other Nazi paraphernalia) will have unfortunate consequences because its display will simply go underground where it will fester and infect—an unhealthy situation.

All ideas, good or bad, should be allowed to be discussed in “the marketplace of ideas.” This is because the truth will emerge from the competition of ideas in free, transparent public discourse.

The “marketplace of ideas” is a phrase prominently promoted by the American Supreme Court in the 1950s and 60s—a major achievement of the First Amendment, which guarantees the right to free speech.

A statue of Themis, the Greek God of Justice stands outside the Supreme Court in Brisbane, Australia, on Oct. 20, 2016. (AAP Image/Dave Hunt)

The federal election campaign 2022, now unfolding in Australia, has already revealed the existence of a policy of intolerance towards unpopular or unwanted ideas.

For example, the Liberal candidate for Warringah, Katherine Deves, was severely criticised for stating that allowing or encouraging teenagers to change their gender amounts to “surgical mutilation.”

There are many “bad laws” in the Australian statute books. These laws seek to criminalise, rather than promote, free speech. It could be argued that Australia would become a more harmonious society if fewer laws that oppress free speech, were adopted.

Until a few decades ago, students studying at university celebrated the free speech achievements of Western Civilisation and read the Great Books, most of which are now banned because of their assumed racist or sexist content.

It is unlikely that these students would have heard anything at all about gender fluidity, euthanasia, affirmative action, same-sex marriage, wokeism, and they would not have witnessed the destruction of “racist” monuments and statues.

Now every aspect of our civilisation is under threat, from cradle to grave: it regulates the way in which people are born, to the way in which they marry and die. It is a changing society.

Now, we are no longer allowed to disagree with the prevailing orthodoxy. If Australians (and Americans) submit to this trend, which is still reversible, their freedoms, once taken for granted, will be irretrievably restricted and regulated.

In this context, a Florida-based journalist, Ashley Sadler, rhetorically asks why “our luxurious modern society appears to be marching toward the demonization and ostracization (or worse) of those opposed to the dominant regime?”

It will inevitably be difficult to recapture the right to free speech which, however, is necessary to return Australia (and the free world) to the stable, free, egalitarian, prosperous country it once was.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.