Right: German soldiers in World War 2 had a choice of salutes: the military version used by most of the world's armies, or the raised right arm, which denoted loyalty to Adolf Hitler, rather than Germany. This changed after the assassination attempt on Hitler by a group of army officers. From that time until the end of the war, the "loyalty" salute was compulsory for German soldiers.
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Arguments against outlawing the Nazi salute
1. Any law prohibiting the Nazi salute would be very difficult to enforce
Some of those who argue that the Nazi salute should not be made illegal claim that such a law would be almost impossible to implement.The primary difficulty of enforcing such a law would be proving that an accused person had knowingly given a Nazi salute. He or she could claim to have simply raised an arm or given a wave. Extremism expert Dr Josh Roose from Deakin University has stated, 'The challenge with making the Hitler salute illegal, as much as potentially desirable, is...[the] level of ambiguity... An individual could say they were putting their hand up in the air, and you've misinterpreted the burden of proof, which is actually quite difficult [to establish].
From a legal perspective, you'd have to look to contexts, and put a lot of time and effort and resources into prosecuting.' Dr Roose has noted that the same difficulty also exists with other hand gestures that alt-right and far-right groups now use such as the 'okay symbol'. The okay symbol is made with the connection of the thumb and index finger, which can be interpreted to reflect a W and P, standing for white power; however, as Dr Roose has observed, subjects can 'just say they are making an okay symbol' if questioned.
A recent incident demonstrating the ambiguity to which Dr Roose refers occurred on April 11, 2022, when Artem Severiukhin, a 15-year-old Russian racer, made a disputed gesture while on the podium following the FIA Karting European Championship in Portugal. Members of the crowd were outraged, believing he had offered a Nazi salute. In a video released on social media two days later, Severiukhin claimed he was simply giving thanks to some of his supporters in the crowd with his chest taps and arm wave. He stated, 'Standing on the podium, I made a gesture that many perceived as a Nazi salute. It's not true. I have never supported Nazism and consider it one of the worst crimes against humanity...Please believe that there was no intention in my actions. There was no support for Nazism or fascism.'
The difficulty of establishing malicious and racist intent was also shown in a 2019 case in the United States where a West Virginia government review of a class photo showing trainees for Department of Corrections jobs making 'Nazi salutes' concluded that most did so out of ignorance. The introduction to the report's findings states, 'The investigation to this point reflects that, with some possible exceptions, participation in the conduct was largely based on ignorance, along with a remarkable and appalling lack of judgment.' The salute is alleged to have begun with one student who claimed to have started it as a joke. The posed group shot depicted most class members making the salute with outstretched arms and an open, out-facing hand often associated with Nazis. In the group's defence, however, it was noted that some class members were making a closed fist salute.
Similar concerns have been raised in other parts of the world. Dieudonné M'bala M'bala is a French comedian, actor, and political activist. Convicted for hate speech and slander in Belgium, France, and Switzerland, Dieudonné is best known as the inventor of la quenelle - a hand gesture that resembles a chest-level version of the Nazi salute, which has become a symbol for growing anti-Semitism in France. Dieudonné has insisted that he means the quenelle to be a generic anti-establishment gesture. According to his lawyer, Mr. Verdier, the quenelle is in fact an 'anti-system, anti-establishment, anti-left, anti-right symbol meant to provoke the indignation of the politically correct.' Courts have accepted different interpretations of the gesture.
Similar differences of interpretation have arisen with other performers. In 2005, criticisms were made of a Justin Bieber performance in which he appeared to goosestep and raise his arm in a Nazi salute. The move, called a 'stomp,' is part of an apparent in-joke between the singer and his fans. A representative of Nidar Oz Communications, the company which manages Bieber's productions, has stated, 'These are dance moves...Dance moves are meant to entertain. Not everything has to do with the Jewish people...'
2. The law would be a potential infringement of freedom of speech
Some of those who oppose the outlawing of the Nazi salute argue that it should be protected as part of freedom of expression.One of the defences of the Nazi salute is that it can be used by people who are opposing oppression. In these circumstances the argument is put that the sign is being used ironically as an accusation that those being hailed are dictators, as Hitler was. This defence was offered in the United States in September 2021 when two parents were accused of making a Nazi salute at a school board meeting in Worthington, Ohio. The parents' action was cited as an example of aggressive and intimidating behaviour when the United States Justice Department started an investigation into the rise of violence against teachers.
Republican Senator for Texas, Ted Cruz, defended the parents' use of the Nazi salute, stating that this was a 'free speech' issue. Cruz claimed, 'My God! A parent did a Nazi salute at a school board because they thought the policies were oppressive.' Cruz went on to condemn a memo sent to the Federal Burau of Investigation (FBI), urging them to 'go investigate parents as domestic terrorists' and claimed that the parents 'doing a Nazi salute at an elected official, is...protected by the First Amendment.'
(The First Amendment to the Constitution of the United States guarantees American citizens freedom of speech.) Three years earlier a similar point had been made when students at Baraboo High School in Wisconsin, who appeared in a photo seemingly giving a Nazi salute, were declared by the school superintendent to be protected by free-speech rights. The photographer claimed that the salute was misinterpreted. In other jurisdictions, giving a Nazis salute is defended as a freedom of speech issue even when the gesture is made knowingly. In Switzerland, for example, making a Nazi salute is only considered illegal when it is done as a propaganda gesture intended to spread Nazi ideology and foment racial hatred. If the gesture is used to express a conviction or a point of view 'among like minded people' then it is allowed under Swiss law.
This distinction was made in a Swiss Supreme Court ruling brought down in 2013. Some Swiss legal authorities claim that a sweeping ban on the salute would be punishing the offenders' attitudes or belief systems rather than the act itself which is not physically harmful. The Federal Tribunal's ruling, entitled 'Hitler salute in public not always punishable,' stated that the gesture is a crime only if someone is using it to try to spread racist ideology to others, not simply declaring one's own belief. The situation is similar in many other parts of the world. In Canada and most of Europe (including the Czech Republic, France, the Netherlands, Sweden, Switzerland, the United Kingdom, Ukraine, and Russia), displaying the salute is not in itself a criminal offence, but constitutes hate speech if used for propagating the Nazi ideology. Civil rights concerns over banning Nasi symbols and salutes have also been expressed in Australia. On May 2, 2022, Legal Aid New South Wales made a submission to the New South Wales Parliament in response to a bill intended to ban the display of Nazis symbols. The submission stated, 'We note that the proposed offence may unintentionally curtail freedom of expression. While freedom of expression is not an absolute right, any restrictions of this freedom must be necessary to protect national security, public order, or public health and morals...We are concerned that the proposed offence...is too broad and risks criminalising behaviour that is not intended to cause harm.' The legal aid body noted that it was important that any accused could be proved to have displayed a symbol or made a salute knowing their connection with Nazism. They also argue that it was necessary that the accused be proven to have intended harm. Without these assurances, the legal aid group believe citizens' freedom of expression would be being unreasonably restricted.
3. A ban on the Nazis salute could make Nazi supporters more dangerous by encouraging them to hide their activities
Some of those who oppose banning the Nazi salute argue that actions such as banning Nazis symbols, denying them access to online platforms and prohibiting their organisation may be counterproductive. They claim that such actions may force the groups underground where they are potentially more dangerous.A number of those who work to control the actions of all forms of terrorist groups argue that these groups are more dangerous when hidden. Referring to the far-right groups which sometimes use Nazi salutes, Mike Burgess, the Director-General of the Australian Security Intelligence Organisation, has stated, 'People often think we're talking about skinheads with swastika tattoos and jackboots roaming the backstreets like extras from [movie] Romper Stomper, but it's no longer that obvious.'
A 2022 Parliamentary briefing paper written in 2022 by Caitlin Grant, from Foreign Affairs, Defence and Security, also noted that right wing extremism can be difficult to identify. The report stated, 'It is important to note that right-wing extremism does not always involve violent extremist movements. Groups exist in small pockets and echo chambers that internalise hateful messaging and may promote violence. The New Zealand Royal Commission into the Christchurch attack noted that there are often "fluid boundaries" between hate crimes and right-wing terrorism.' It has been claimed that laws which seek to prohibit these groups tend to drive them underground where they are more difficult to monitor and track. Dr Kristy Campion, senior lecturer in Terrorism Studies at Charles Sturt University and author of 'Chasing Shadows, the Untold Deadly Story of Terrorism in Australia' promotes the 'sunlight theory'. This principle argues that so far as possible it is better to keep far-right groups operating in the open where their plans to take extreme action can be more easily detected.
This point has also been made by Dr Josh Roose, Senior Research Fellow in Politics and Religion at the Institute for Citizenship and Globalisation at Deakin University. Dr Roose has argued that banning certain groups might also make them more difficult to track. He suggests, 'They could reform under different names, dissipate, spread, or pop up in new places.' Counter-terrorism analyst Professor Clive Williams has also stated, 'Once you ban...[right-wig groups] it drives them underground and makes them much more cautious about their communication...The threat really from right-wing groups can be monitored fairly well because at the moment they are not particularly security conscience and they are relatively easy to infiltrate.' It has also been argued that in addition to making ultra-right groups more difficult to monitor, driving them underground makes them more difficult to reform. Political opinion writer, Julian Adorney, has noted, 'Even when hate speech laws actually target genuine hatred, they don't eliminate it; they just drive bigots underground. This actually makes it harder to root out bigotry and to confront prejudiced people with the ideas necessary to help them move past their prejudice.' Adorney goes on to give an example of extremists having their views changed through the intervention of someone with an opposing view. Adorney explains, 'Daryl Davis is a black jazz musician who befriends KKK members and convinces them to disavow their racist beliefs. He finds them, talks to them in earnest, listens to their hatred...and changes their minds. To date, he's convinced more than 200 KKK members to hang up their robes, including an Imperial Wizard (the highest-ranking member of the Klan).'
Adorney concludes, 'In a world where white supremacists weren't free to utter their noxious beliefs, Davis's work would be impossible. He wouldn't know who to target... If bigots don't air their ideas in public, they're less likely to be exposed to a solid refutation of those ideas... In a world where their hateful ideas are banned, these men and women will only feel free to express their thoughts to people who already agree with them. That creates echo chambers.'
4. Banning the Nazi salute could add to its appeal for some people
Some of those who oppose the banning of the Nazi salute are concerned that a ban will intensify the appeal of the salute and the impact of its message.It has been suggested that banning the Nazi salute and other symbols adopted by right-wing groups can increase these groups' anger and their hostility to the societies that prohibit them. As instances of this, Nazi swastikas were found painted in Melbourne's east and southeastern suburbs, a week before the ban on the symbols was enforced in Victoria. Two swastikas were discovered at the Central Gardens in Hawthorn and on a fence in Brighton, while an anti-Semitic phrase was found painted on a Cheltenham garage.
Then, the day after the Victorian government made it a crime to publicly display a swastika within the state, a giant swastika was painted onto a Mornington Peninsula road. The symbol was painted overnight on Dundas Street at Rye near a group of shops.
It has been noted that for some extremist groups bans only incite protest action.Some critics have also claimed that seeking to prohibit Nazis slogans, symbols and salutes allows ultra-rightists to present themselves as the victims of government oppression. In a comment published on June 29, 2022, in Green Left, Jacob Andrewartha stated, 'Banning Nazi symbols...allows the far right to portray themselves as victims of repression.'
Sociologist Mitchell Berbrier has similarly claimed that a belief in their own victimhood is a powerful psychological mechanism used by far-right groups for recruiting members, galvanizing around a cause, and forming what is essentially a support group.
Recent psycho-social studies have claimed that a shared sense of grievance is a strong motivator for many extremist groups. Sophie Kaldor writing for the International Centre for Counter-Terrorism at The Hague has stated, 'A notion of unmet grievances, which are held on to and nursed until the...[subject] derives a masochistic pleasure from his own victimhood...[are] an important precipitant of individual radicalisation and terrorist group formation.' Professor Pam Nilan, a sociologist at the University of Newcastle, New South Wales, has studied the ways in which young people are attracted into ultra-right extremist groups. She states, 'Far Right recruitment sets out to activate the emotions and feelings of young people using persuasive discourses like white victimhood, anti-elitism, and invasion. That rhetoric - offline and online - offers them the opportunity to step up to an apparently heroic cause that will change the world.'
Groups that have had their salutes, slogans and symbols banned are in a position to present themselves as the targets of government tyranny and to call on new members to join the fight against this oppression. Some commentators warn that when governments act to prevent Nazi slogans being used to attract support, they need to be careful to weigh the benefits against the potential harms. It is possible that in banning swastikas and Nazi salutes they are unintentionally giving far right groups a new recruitment tool.It has also been suggested that banning Nazi salutes, symbols and groups has heightened the appeal of these talismans and gestures. It has given them the attraction of the forbidden. It is suggested that their prohibited nature gives them a power and a significance that some people find attractive. Writing for Vox in an article published in 2017, Tara Isabella Burton has argued, 'If anything, the sheer taboo nature of Nazi imagery - how thoroughly outside the window of acceptable discourse it is - has, to its supporters, only added to its appeal. Its very transgressive nature has made it easy for propagandists to market it as "sexy" and "forbidden."'
Social commentators have warned that young people are particularly attracted to the forbidden. Health psychologist Gema Sánchez Cuevas has noted the particular appeal that the taboo has for adolescents. She writes, 'In adolescence, young people need self-affirmation of who they are while at the same time they are getting to know and discover themselves. To do this, it is necessary during this juvenile stage to differentiate themselves from parental patterns by highlighting their own ideas and defining their own path... At this stage, seeking after that which is forbidden is often a way for them to differentiate themselves from the ideals ingrained since childhood, which now are not useful.'
Again, commentators warn that governments need to be careful not to make far right activity attractive to young people by the act of banning it.5. It is more important to educate people about the evils of Nazism than to ban its symbols
Many of those who oppose the imposition of a ban on the Nazi salute argue that educating about the horrors of Nazism is a better means of discouraging its reemergence than enforcing bans.It has been claimed that the best means to prevent a recurrence of the dreadful crimes and abuses that occurred in Nazi Germany is to remember what was done and build values of tolerance and respect that will help to ensure that these events are not repeated. This is the position that has been adopted within modern Germany. German high-school students are required to take classes on 20th-century German history, including the Nazi era and the Holocaust. Many schools are also part of a nationwide program called 'Schools Without Racism,' whose more than 2,800 participating institutions pledge to offer additional study for students on such issues. Though visiting the site of a concentration camp is not compulsory, many students choose a special course that offers this experience. Visiting the memorial concentration camps has become increasingly popular with visitors from around the world. In 2018, 2.2 million people visited Auschwitz; five years prior, the number was 1.5 million.
Similar programs are now taught in Victoria in response to the growing problem of increasing right-wing extremism. On February 26, 2020, then Education Minister James Merlino required all government secondary schools to teach the Holocaust and to address the broader issues of racism and prejudice. Mr Merlino also announced new and refreshed teaching and learning resources for Holocaust education would be developed in partnership with the Victorian Jewish community. Mr Merlino stated, 'It is vital that each generation understands the horror of the Holocaust to ensure it can never be repeated and to educate the community on the damage caused by anti-Semitism, racism and prejudice.
This is about using this terrible historical event to talk to students and educate them about the broader issues of racism and prejudice in our society.'
It was also announced that not-for-profit organisation Courage to Care, which uses the Holocaust to teach students about bystander behaviour, would receive Victorian government funding to establish an ethnic or religious vilification hotline for schools, students, and parents. The organisation would also establish a new student advisory group to look at what can be done to make schools more inclusive. Jewish Holocaust Centre director Jayne Josem said lessons from the Holocaust were 'frighteningly relevant today.' Ms Josem further stated, 'Learning more about the Holocaust and equipping teachers to face this challenging subject gets students to reflect on the world they live in today.'.
Similar programs are being introduced in other countries, also in response to the growing problem of anti-Semitism and neo-Nazism. On November 9, 2022, Stephen Lecce, Minister of Education in Ontario, Canada, announced a series of reforms across the state, including the introduction of mandatory Holocaust learning for the first time in elementary schools. The Education Minister stated, 'We are taking action to counter antisemitism and hate, because those that fail to learn from history are doomed to repeat it.' Currently, mandatory learning about the Holocaust and other acts of genocide are included in the Grade 10 Canadian History Since World War I course. The revised Grade 6 Social Studies curriculum, which is part of Ontario's continued modernisation of the curriculum, will be implemented in September 2023. Ontario is also investing in community partnerships to help students learn about historical and present-day discrimination and how to identify and address hate.
Both Germany and Victoria have adopted a mixed approach, combining education about the Holocaust and the need for racial tolerance with laws that prohibit hate speech and Nazi symbols. Some commentators suggest that the educative role is more important as it helps to prevent citizens unwittingly slipping into racist attitudes as the result of using racist symbols or gestures. Authorities like Dr Kristy Campion, senior lecturer in Terrorism Studies at Charles Sturt University and author of 'Chasing Shadows, the Untold Deadly Story of Terrorism in Australia' argue that responses to terrorism should not mean 'over-reacting' by restricting freedom and limiting open societies.