Arthur Topham’s Political Beliefs May Just Be Illegal
The Extraordinary Trial of Arthur Topham: Part 3
by Eve Mykytyn / November 29th, 2015

On November 12, 2015 Arthur Topham was convicted of inciting hatred against a racial group, the Jewish people. Mr. Topham maintains a website, RadicalPress.com, in which he publishes and comments upon various documents. These documents include The Protocols of the Elders of Zion, various anti-Zionist texts, and a tract entitled Germany Must Perish!, first published in 1941 and then satirized by Mr. Topham as Israel Must Perish!.

Mr. Topham’s defense rested primarily on the theory that his writing was not directed at Jews as a race or religion, but rather at the politics espoused by a number of Jewish people. The best discussion of this topic is by Gilad Atzmon, contained in his book, The Wandering Who?. The basic take away for considering the implications of Mr. Topham’s criminal conviction is that some people conflate Judaism as a religion, an ethnic heritage AND with a political view, not always consistent, that generally favors Israel’s perceived benefit.

Canada has a lobby entitled Center for Israel and Jewish Affairs (CIJA) that lobbies the Canadian government on behalf of Israel. Mr. Rudner, who had lodged various complaints about Mr. Topham in the past and was the Crown’s expert in Mr. Topham’s case, has worked for CIJA or its predecessor for 15 years. So the Crown relied upon the testimony of a man who lobbies for Israel (clearly a political entity) for proof of anti Semitic content and potential harm to Jewish people. His appearance in tiny Quesnel is testimony to the political importance that his organization places on silencing Mr. Topham. (The original witness scheduled to testify, Mr. Farber was a former colleague of Rudner’s, and apparently the two are close enough that Mr. Rudner’s written testimony was an exact duplicate of Mr. Farber’s original.)

Since Mr. Topham was accused of anti-Semitism, let’s look at the term. The quote below is from the Holocaust Encyclopedia, published and maintained by the United States Holocaust Museum so it is probably safe to assume that this is a standard definition.

“The word antisemitism means prejudice against or hatred of Jews. The Holocaust, the state-sponsored persecution and murder of European Jews by Nazi Germany and its collaborators between 1933 and 1945, is history’s most extreme example of antisemitism. In 1879, German journalist Wilhelm Marr originated the term antisemitism, denoting the hatred of Jews, and also hatred of various liberal, cosmopolitan, and international political trends of the eighteenth and nineteenth centuries often associated with Jews. The trends under attack included equal civil rights, constitutional democracy, free trade, socialism, finance capitalism, and pacifism.”

Interesting that, in the first paragraph of its section on anti-Semitism, the encyclopedia blends together the concepts of ‘hatred of the Jews’ with opposition to various political and social movements generally associated with Jews. This is puzzling. Is it anti-Semitism to oppose socialism or is it anti-Semitic to oppose finance capitalism? While one could oppose both, it would be impossible to espouse either view without rejecting the other. I assume the author did not intend to imply that opposition to socialism, for instance, was it anti-Semitic even if such opposition was from a fellow Jew.

I bring this up because this is precisely what I believe happened in Mr. Topham’s case. Mr. Topham was charged with two counts of inciting hatred over different periods of time. The jury found him guilty on the first count and not guilty on the second. Of course there are many possible explanations for a split verdict (none of which the jury is allowed to discuss even after trial without committing what the judge termed a ‘criminal’ offense). The observers, including myself, tended to believe that the discrepancy in the verdicts was a result of the text Germany Must Perish! and its satirization by Mr. Topham in Israel Must Perish!, a text that appeared on his website during the period for which Mr. Topham was found guilty.

The original text of Germany Must Perish! was written in 1941 by Theodore Kaufman, an American Jewish man. The text was originally self-published, but was apparently advertised and reviewed by the New York Times, the Wall Street Journal, and Time magazine. In any case, the publication was well known enough to have been read in Germany and was cited by Hitler and Goebbels as evidence of the bad intention of the Jews. The book is horrendous. Its semi-literate ravings are a ridiculous indictment of the German people and their warlike nature. Kaufman advocates sterilization of the Germans as the only possible remedy. At best, the author is confusing all Germans with Nazis, but that is not what the book says. Mr. Topham’s satire in which he substitutes the words ‘Israel’ for Germany and ‘Zionists’ for Germans helps to make the original text comprehensible. The satire hopefully provides some insight into how these words might have been viewed by Germans in 1941. The proof that the works were effective but the satire was not understood, is that Mr. Topham faced criminal charges for aping Kaufman’s words.

In its case, the Crown made the point that Israel Must Perish! was a horrible text. The Crown argued that the fact that the words were originally written by a Jewish man to indict the Germans did not kosher the text. “Jews,” the Crown said, “could write anti-Semitic things too.” Presumably her next case will be against a Jew for inciting hatred against the Jewish people. Mr. Topham was making a political point. I believe he was trying to convey the idea that Israel and Zionists could seem very much like Germans and Nazism in 1941. It is not necessary to agree with Mr. Topham’s point to understand it.

If I am right and it was this text that caused Mr. Topham’s conviction, then that is an important indictment against Canada’s admirable attempts to limit ‘hate’ speech while allowing freedom of political speech. Mr. Topham’s criminal conviction may well have been the result of a misunderstanding that Mr. Topham was criticizing Israel and Zionism and not Jews as a race. Germany and Israel are political constructs, Germans may not be, but Zionists, or those who support establishment of the state of Israel are, by definition, espousing a political cause. So, Mr. Topham criticized the political cause of the Zionists. Is there a way in which Canada’s laws would allow Mr. Topham’s political views to find an outlet? Perhaps Canada ought to make criticism of Israel legally off limits so that Canadians may adjust their behavior accordingly.

Read Part 1 and 2.
Eve Mykytyn graduated from Boston University School of Law and was admitted to bar of the state of New York. Read other articles by Eve.