Is the term ‘anti-Semitic’ defamatory? Sharri Markson’s about to find out BY MYRIAM ROBIN
Calling critics of the Israeli government “anti-Semites” might prompt a call to the lawyers, pending the outcome of a defamation case brought against Australian journalist Sharri Markson and her employer.
The case revolves around a column Markson wrote in the midst of the (somewhat successful) push by some within NSW Labor to force those going on educational trips to Israel to also spend an equivalent amount of time in Palestinian territory. Under the headline “ALP’s anti-Semitic views behind push for trip ban”, she strongly criticised NSW’s first Muslim MP, Labor’s Shaoquett Moselmane, for broadcasting “anti-Semitic sentiment” when he used terms like “cancerous and malicious” to describe the Australian Israeli lobby in a speech made in Parliament in 2013. Moselmane is suing for defamation.
Rick Mitry of Mitry Lawyers, who is acting for the MP, told Crikey this morning that the criticisms of his client were dishonest and unfair.
“If you look at original speech in Parliament, it didn’t say anything about Jews or the Semitic race. He criticised Israeli government policies.
“That’s why he began these proceedings. [News Corp] didn’t retract — if they had we might have withdrawn. But now that they’re insisting that [the column] wasn’t in any way dishonest or defamatory of him, we have to pursue. First to recover damages to his character, but also, so it does become a test case.”
Mitry says his client would be open to a settlement, ”if they withdraw [the accusation in Markson’s column], which is false, and apologise, and pay appropriate damages”.
There isn’t an “abundance of cases” dealing with this kind of thing in Australia, Mitry says.
Sydney University defamation expert David Rolph could only name a handful of defamation cases involving a charge of racism. And there were fewer, if any, involving charges of anti-Semitism. “They’re relatively rare. And it does create some difficulty for judges sitting alone or for juries,” he said.
“In many of these cases, the defence that might arise is honest opinion or fair context. But it depends on the context in which the allegation is made. If you’re raising a range of facts, it might be defensible as comment. But if you’re baldly asserting somebody is a racist, defamation law might treat [that] as an assertion of fact. Which throws up the difficult issue of how many instances of dubious actions or iterations prove someone is a racist?”
Mitry says his client didn’t say anything against the Jewish people. “He only said something against the Israeli parliament. Often when you say something against Israeli policy, the race card gets played. Which is rubbish.”
Markson has levelled charges of anti-Semitism towards critics of Israeli policy before (though she is hardly alone in how she uses the term). For example, after then-Fairfax columnist Mike Carlton left The Sydney Morning Herald in explosive circumstances, she wrote that his abuse of readers on Twitter was “anti-Semitic”. Going by the tweets used to illustrate the article, it appears that the claim revolved around Carlton’s use of terms such as ”Likudniks” (a reference to Israel’s conservative Likud party) and “Jewish bigot” towards detractors.
Carlton told Crikey this morning he never considered suing Markson over calling his conduct anti-Semitic, though he says the claim is ”utterly untrue”. He added that the charge of anti-Semitism was hurled to counter the “slightest criticism of Israel”.
“And it’s very effective. It’s a very hard charge to rebut. Once you’re smeared with that tag, it’s got you. It terrified Fairfax all the way up to the board.”
It’s a criticism seconded by Peter Slezak, a Jewish-Australian philosophy academic who is a vocal critic of both Israeli groups in Australia and the Israeli government. He says the charge has a chilling effect on discussion of Israeli policy and detracts from incidences of real anti-Semitism.
“The charge [of anti-Semitism] is used against anyone who raises their voice against the crimes of the state of Israel,” he told Crikey. “They should be called on it.”
The annual report on anti-Semitism of the Executive Council of Australian Jewry (ECAJ) gives an example of how anti-Semitism is tracked by Jewish groups, and how the term is used with relative ease in an Australian context. The ECAJ’s 2015 report distinguishes between anti-Semitic discourse and anti-Semitic incidents, and notes that “antisemitism will never disappear or be destroyed”. While it says criticism of Israeli policy isn’t of itself anti-Semitic, it says one source of anti-Semitism in Australia is “political antisemitism disguised as anti-Zionism and the denial of Jewish peoplehood, history and rights”. In other words, criticism of Israeli policy can act as a smokescreen for anti-Semitic sentiment, both through the use of symbols or caricature or more explicit sentiments.
This was the argument made about a Glen Le Lievre cartoon accompanying the column that led to Carlton parting ways with Fairfax — while Le Lievre’s cartoon was clearly about Israeli military tactics, the fact that the Jew in the cartoon was depicted with a Star of David and a stereotypical Jewish nose, in a manner said to be reminiscent of anti-Semitic imagery, brought the charge of anti-Semitism by some Australian Jewish groups.
The ECAJ’s report initially emphasises anti-Semitic incidents such as harassment or physical assaults of Jewish people (of which it tracked 190 in 2015). But it argues such behaviour does not exist in a vacuum: it is legitimised through anti-Semitism in the mainstream media and society. Much of the Australian media is, in the report, accused of publishing anti-Semitic content. This includes Crikey, which is criticised both for some of the claims in articles published in 2014 and for the reader comments allowed under the articles.