When it comes to the law, words do matter

Be careful what you wish for, is the lesson that should be — but no doubt isn’t — resonating right now for the Australian Jewish Association (AJA) and Sky News.

It was their choice to publish video footage of a pro-Palestinian protest at Sydney Opera House last October, with captions claiming that some in the crowd were chanting “Gas the Jews”. This triggered immediate controversy, because that wasn’t what it sounded like to many people’s ears.

NSW Police took several months to conclude and announce there was “no evidence” that anyone at the protest had called out the impugned words. That of course doesn’t mean it didn’t happen or that evidence might yet emerge, but for now there’s no basis for the allegation.

The police’s conclusion, after exhaustive forensic analysis, was one of “overwhelming certainty” that the chant was actually “Where’s the Jews?”. Organisers of the rally had much earlier confirmed that some had also been calling “Fuck the Jews”. Minority as they were, any such verbal targeting of Jewish people was reprehensible and revolting.

However, when it comes to the law, there is a quantum difference between the words the AJA has claimed were said in its footage and what the police have concluded was almost certainly said. While the language used, according to the police, could constitute unlawful racial vilification under either state or federal legislation, a call to “Gas the Jews” would be a serious crime.

The NSW Crimes Act includes an offence of publicly threatening or inciting violence against others on the basis of their race (or other identifying characteristics such as sexual orientation); it carries severe penalties including up to three years in prison.

Crimes require proof of facts and intention beyond reasonable doubt, whereas a complaint of unlawful racial vilification can be established on the balance of probabilities.

The law, in turn, reflects the limits of our tolerance: we properly decry racist hate speech in any context, as an exception from the general principle that speech should be free. But we also recognise that being racist in public is not the same as openly calling for racial violence. The expression “Gas the Jews” is of course both: a direct incitement to violence and an insidious referencing of the Holocaust to invoke fearful dread in Jewish people.

All the more reason to not say it, and all the more reason to not recklessly allege that it has been said. Both the original making of the allegation and the insistence on maintaining it in the face of clear contrary evidence were either intentional or reckless. The caption wasn’t a typo.

So here’s a question: what was the consequence when Donald Trump persistently claimed — entirely falsely — that on September 11, 2001, large numbers of American Muslims in New York openly cheered the fall of the Twin Towers?

The consequence was that larger numbers of Americans came to harbour, or harden, deeply negative feelings towards their Muslim compatriots, because of what Trump had publicly said.

That was a classic of a specific genre of incitement: the false flag. Placing words or acts in the mouths and hands of your enemies — converting the victim to the aggressor — is an easy and effective means of inciting a mob already motivated to want to believe it. Just ask Emmett Till.

The desired end need not be violence; it may be the configuring of public opinion in a fraught time of high emotional charge. That was the context of the pro-Palestine rally, two days after the horror of the Hamas attacks against Israeli citizens on October 7 had emerged.

Under the NSW Anti-Discrimination Act, racial vilification is declared unlawful. It is defined as, by a public act, inciting hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of their race.

There are important exceptions, including for acts done reasonably and in good faith for purposes in the public interest — including “discussion or debate about and expositions of any act or matter”. That is designed to, and does, leave broad scope for free speech on issues of contention.

The federal Racial Discrimination Act, in its famous section 18C, provides in similar terms and also offers wide exceptions.

There is no reason in principle to distinguish between an expression of racial hatred and a false flag; that is, there is no difference in effect between a literal call that “Jews are bad people” and a false claim that “Jews did bad things”. Either will be likely to incite ill-feeling towards them, because each targets the identical racist impulse.

So, falsely claiming that Muslims called “Gas the Jews” was always going to have the effect that it did: to cause a lot of people to think badly of Australian Muslims.

The keys are incitement, bad faith and absence of legitimate public interest. If these boxes can be ticked on a public false flag claim, then it’s unlawful.

This isn’t a call for anyone to be held legally accountable for the claim that was made and maintained without evidence to support it (to the extent that Crikey, whose correspondents Antoinette Lattouf and Cam Wilson had first reported the doubts, was condemned for even daring to question it). Frankly, that would only give more oxygen to a blaze that has already done too much harm.

However, we have laws for good reasons, and they cut both ways. False allegations can do as much damage as intentional acts. We all share responsibility for lowering the temperature, not throwing fuel on the fire.