Mary Kostakidis was in federal court in Adelaide on Tuesday defending herself against racial discrimination charges for her reporting and commentary on Gaza, reports Joe Lauria.

Mary Kostakidis, the Australian journalist accused in a civil action by the Zionist Federation of Australia of making antisemitic remarks in her reporting, went before a federal judge in Adelaide on Tuesday arguing for the complaint against her to be dismissed or substantially curtailed.

Kostakidis, who is nationally known from her nearly two decades as a television news presenter on the SBS Network, has been accused by the ZFA of making allegedly offensive remarks in two tweets in January 2024.

The ZFA is charging Kostakidis under Section 18C of Australia’s Racial Discrimination Act, which _“_makes it unlawful for someone to do an act, publicly, that is reasonably likely to offend, insult, humiliate, or intimidate another person or group of people, based on their race, colour, or national or ethnic origin".

Section 18D, however, “provides exemptions that protect freedom of speech in certain circumstances, such as artistic works, scientific debate, and fair comment on matters of public interest".

ZFA’S chief executive Alon Cassuto had filed an initial complaint in July 2024 to the Australian Human Rights Commission about the two Kostakidis retweets, both of which contain video of a speech by the now Israeli-assassinated Hezbollah leader Hasan Nasrallah in which he allegedly called for the ethnic cleansing of Israel.

In Kostakidis’ retweeted video, the late Hezbollah leader says: “Here, you don’t have future, and from the river to the sea, the land of Palestine is for the Palestinian people and for the Palestinian people only … “

Above this Nasrallah quote in one of her retweets, Kostakidis wrote: “Israeli govt getting some of its own medicine. Israel has started something it can’t finish with this genocide.”

Cassuto claims this is antisemitic and wants Kostakidis to apologise, remove the allegedly offensive materials from her X account; promise not to post similar tweets in future and pay his legal costs.

The two sides entered into mediation, but reached an impasse last December, leading to Cassuto filing the civil complaint in April this year.

First appearance in court

In his oral arguments before Justice Stephen Andrew McDonald on Tuesday, Kostakidis’ barrister Stephen Keim contended that “reporting of statements by a well-known spokesperson for a party in a major conflict is an essential part of news reporting. This may involve reporting offensive statements".

As a similar example, he cited reporting of crude remarks about women by then presidential candidate Donald Trump in the infamous Hollywood Access video.

“No ordinary and reasonable person would be offended by such news reports because such [an] ordinary and reasonable person understands the function of news reporting,” Keim argued. “News reporting of such offensive words is not capable of proving bad motives related to the offensive content on the part of the person doing the reporting.”

Kostakidis’ lawyers submitted an 11-page affidavit from one of her solicitors listing the wide array of media around the world, including Australian mainstream outlets, that reported on Nasrallah’s speech, many with commentary. It was an effort to place the veteran journalist’s tweets in the context of the widespread coverage of a newsworthy event.

Kostakidis “was acting in accord with orthodox judgments and actions concerning publication made by editors and journalists around the world on a daily basis”, Keim told the court.

On her way into the courtroom, Kostakidis told the media: “I am a strong believer in freedom of the press and freedom of political expression. I will defend the right… of every Australian to engage in public debate.” Cassuto then told the same reporters his case “is not about free speech, it is about hate speech".

But Keim told the court Cassuto’s complaint failed to say what Kostakidis had done “that would make a reasonable member of the group to be offended. There is a material fact missing".

According to Cassuto’s attorney, the group allegedly offended by Kostakidis’ tweets consists of both Australian Jews and Israelis in Australia, though how to define this group appears to be a contentious issue in this case and was the subject of prolonged discussion on Tuesday.

Antisemitism and criticising Israel

It emerged at the hearing that a central issue in this case will be whether criticising Israel is equal to antisemitic hatred.

Keim pointed to a 1 July judgment in a separate Australian case, Wertheim v. Haddad, in which Justice Angus Stewart  ruled:

“The ordinary reasonable listener would understand that not all Jews are Zionists or support the actions of Israel in Gaza and that disparagement of Zionism constitutes disparagement of a philosophy or ideology and not a race or ethnic group.

“Needless to say, political criticism of Israel, however, inflammatory or adversarial, is not, by its nature, criticism of Jews in general or based on Jewish racial or ethnic identity. and that it is not antisemitic to criticise Israel just as much as to blame Jews for the actions of Israel is antisemitic. …

“The conclusion that it is not antisemitic to criticise Israel is the corollary of the conclusion that to blame Jews for the actions of Israel is antisemitic; the one flows from the other.”

Keim claimed that in this context, Nasrallah’s speech retweeted by Kostakidis, “is directed to Israeli citizens who have Israeli passports and passports from other countries, including the UK and the US. It is a comment on the direction of the conflict. It is not a criticism of Jews or Israelis, generally”.

He said Kostakidis’ remark that Israel “can’t finish this genocide” is clearly directed to the Israeli Government and the state of Israel.

The judge said the relationship between Jews and Israel is different from the relationship between any other country and its people. It is therefore hard for many to separate, he said. But Keim said, you can’t simply prohibit criticism of a country because it could be construed as racism by some.

Keim listed paragraphs that should be removed from the complaint, saying the two “impugned” tweets by Kostakidis are incapable of supporting the claims being made under of the Racial Discrimination Act.

All or part of the pleading by Cassuto does not represent a reasonable cause of action, he argued. To be retained it ought to have a reasonable chance of success.

The purpose of the law is to prevent racial discrimination, he said. Criticising a state’s actions or political ideology has nothing to do with racial discrimination.

The case against Kostakidis, Keim said, “cannot be struck out merely on the basis that it appears to be weak. We … maintain that the pleaded case does not reveal a weak case. It states a case without any prospect of success”.

ZFA responds

Cassuto’s barrister Michael Borsky KC took issue with Justice Stewart’s ruling that criticism of Israel did not constitute antisemitism.

“This is a matter of subtlety and reasonable minds can disagree,” Borsky said, adding that he thought it was a matter to be decided at trial.

“There is a correlation between antisemitism and being anti-Israel,” he said “We accept that to criticise Israel isn’t always antisemitic, but there is complexity.”

Borsky said some acts of criticising Israel may not “inoculate” Kostakidis from violating the anti-discrimination law. He said some statements can be both anti-Israel and antisemitic. “Where that line is drawn is to be determined after evidence is presented,” he said.

Borsky cited more Kostakidis tweets, though he complained that being asked by the defence to reveal them was “telegraphing our cross-examination".

He said she “has a history of posting about Israel and Jews".

Borsky complained to the judge that Kostakidis wrote that Zionism is equivalent to Nazism, that Nazism is “repackaged” as Zionism.

“She says Zionists are today’s Nazis,” Borsky said. “Your honour, you know these statements are notorious,” roping the judge into his point of view.

Nazism was the worst ideology in history, while Zionism is about wanting a home for the Jewish people, he said.

Not a word was uttered in the courtroom about what Israel is doing to the home of the Palestinian people in Gaza.

Everyday now it seems more and more international and even Israeli rights groups are calling it genocide, defying widespread police crackdowns and legal cases, such as Kostakidis’, to suppress criticism of Israel’s mass killings.

Republished from Consortium News, 29 July 2025

The views expressed in this article may or may not reflect those of Pearls and Irritations.