The Nazi salute has been compared to hailing a taxi or raising a hand in a classroom by lawyers for the first person charged after it was outlawed in Victoria.
Jacob Hersant, 25, is accused of performing the salute in public six days after it became a criminal offence in Victoria.
He is contesting the charge and entered a plea of not guilty on Monday as his hearing began in Melbourne Magistrates Court.
A video played to the court that day showed Hersant allegedly performing the salute in front of news crews outside Melbourne's County Court in October 2023, before saying: "Nearly did it - it's illegal now."
But Hersant claims he did not perform the salute and even if he did, the charge is constitutionally invalid as the gesture was a legitimate form of political expression.
His barrister Timothy Smartt compared the Nazi salute to hailing a taxi as he made submissions on Tuesday.
"Obviously, people raise their right arm for many innocent contexts," Mr Smartt told the court.
"You hail a taxi by raising your right arm. School children raise their hand to answer questions ... you have to find a way of confining the offence to the purpose."
Responding to the defence's claim, prosecution lawyer Daniel Gurvich said Mr Smartt's comparison was a false equivalency.
"The context is critical, and it is not possible to disaggregate or divorce the words used from the action displayed," he said.
Mr Smartt also questioned the experience of Monday's witness - political science expert Professor Katharine Gelber - who told the court the salute was a form of hate speech that had harmful effects on all minority groups.
"She’s not an actual scientist, she’s a social scientist," the defence barrister said.
"Being offended, and being hurt is just an occupational hazard of being in society, and to limit speech because of that, we say, is not legitimate."
The hearing before Magistrate Brett Sonnet continues.
