Miss Manners takes Rav Ovadia to the woodshed
by Jonathan Rosenblum
March 31, 2000
Words kill. That is the great lesson of the Rabin assassination. Or so the mantra goes. As a consequence, our enlightened brethren tell us, Israel cannot afford too much freedom of speech – at least not too much by the wrong kind of people.
Not a shred of evidence exists, however, that Yigal Amir was influenced by anyone other than GSS agent provocateur Avishai Raviv in private conversations. Yet Attorney-General Elyakim Rubenstein has not shown the slightest interest (to say the least) in prosecuting Raviv for incitement, despite the fact that in Raviv’s case the causal nexus between words and deeds is not merely hypothetical.
A far more plausible case could be made for the proposition that too little freedom of speech, not too much, made assassination thinkable. The free marketplace of ideas ceases to exist when the media are fully mobilized on one side of a fateful public debate and the political echelons act to ensure the continued monopoly of those voices sympathetic to them. Roiling anger among those shut out of participation in the marketplace of ideas is the result. And when those shut out of the debate are dissed as "propellors,’’ whose opinions are unworthy of note, temperatures rise even further.
Finally, when representative democracy itself is subverted by the purchase, with government ministries, of the votes of two right-wing MKs in order to pass Oslo II, a crisis of democratic legitimacy ensues.
Elyakim Rubinstein’s decision this week to open an investigation against Rabbi Ovadia Yosef demonstrates that the wrong lessons continue to be learned from the past and doom us to repeat past mistakes.
Rubinstein ordered an investigation of Rabbi Yosef on three grounds: encouraging violent acts that could lead to death or injury (under a statute leftover from the British Mandatory period, when it was used against the Jewish civilian population); insulting a public figure, and slander. That investigation will have a chilling effect on the freedom of political expression that is a necessary condition of democratic government.
Laws against insulting elected officials, who knowingly make themselves targets of the public’s vituperation, are a civil libertarian’s nightmare. Such statutes will inevitably be employed discriminatorily, and they can be used to shield elected officials from public scrutiny, an essential element of democratic government. Moreover, the ability to criticize one’s elected representatives protects democracy by allowing citizens to blow off steam until they can throw the rascals out in the next elections.
The application of slander and libel laws to statements of opinion about public officials is fraught with the same potential for discrimination and stifling public debate. So the United States Supreme Court recognized over thirty years ago when it limited their application to statements of fact made with a reckless and malicious disregard for the truth.
Characterizations like "self-hating Jew’’ or "worse than Pharoah’’ are matters of opinion that inevitably depend on one’s definitions. For that reason, they cannot serve as the basis of criminal prosecution, especially when directed at public officials – or at least they could not until Rubinstein’s ruling.
Tellingly, the only journalist ever socked with a civil libel judgment for such characterizations was Rabbi Yisroel Eichler for calling Shulamit Aloni an "anti-Semite.’’ (Meanwhile Aloni gets the Israel Prize for comparing religious Jews to Nazis and describing Binyamin Netanyahu as a "good student of Goebbels.’’) Rabbis crying "Haman’’ and "Pharoah’’ merit criminal investigation, while those chanting "murderer’’ at Menachem Begin and Ariel Sharon do not. (Neither should.)
The most serious charge against Rabbi Yosef, of course, is that of inciting others to physically harm Yossi Sarid. Yet nothing he said could be reasonably be construed as a call to violence against Sarid. For more than thirty years, Rabbi Yosef has been famed (and sometimes defamed) for elevating the preservation of Jewish life over every other Torah value – a fact known to all his followers. And he twice stated explicitly and unambigously in public, after his Moetzaei Shabbat attack on Sarid, that the Torah does not countenance violence against Sarid.
True, he still does not wish Sarid well. That may not be nice -- traditionally we pray for the return of the sinner not his demise -- but it is not a crime. Rabbi Yosef spoke only of G-d exacting vengeance on Sarid. That is no small point. Religious Jews, as Rubinstein should know, regularly leave to G-d that which they have no right to do themselves – including, for instance, the punishment of most criminal behavior where the strict evidentiary requirements are not met.
Those who smell racism -- albeit unconscious – in the decision to investigate Rabbi Yosef are on solid grounds. Such investigations never ensue when Yonaton Geffen calls for a "secular intifada,’’ or Amnon Denkner expresses the wish to set aflame the beards of those "weird Shas rabbis,’’ or Uri Avineri savors the thought of machine-gunnning chareidim in Meah Shearim, or Yigal Tumarkin begins to understand the Nazis whenever he sees large chareidi families. Everybody knows that they, and their friends, are "elevated spirits’’ and their remarks are not to be understood literally.
Yet when Rabbi Yosef hurls imprecations and calls for Divine wrath, that is incitement. Why? Because "everyone knows’’ that his followers are primitive, violence-prone thugs, who cannot distinguish themselves from God.
Rubinstein’s repeated citations of previous insults aimed by Rabbi Yosef at Supreme Court justices demonstrate how weak his case is and how little he apprehends his role. Comments about the sexual practices of justices may be "offensive’’ and they may not add lustre to the stature of the speaker (as the Supreme Court said), but they do not advocate any action nor create a clear and immediate danger of such action.
Rubinstein has become the national scold. But he is not Miss Manners whose task it is to teach Rabbi Yosef etiquette. He is the Attorney-General charged with determining legality.
Were he to spend less time burnishing his credentials as a philosophe – he should stop worrying, he’s a shoo-in for the Supreme Court -- he might have done a better job of the latter, and in the process avoided triggering the latest polarization of Israeli society.
Related Topics: Israeli Supreme Court
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