Towards a coherent doctrine of free speech- Part I

Western democracies torn between home-grown terrorism and modern political correctness are struggling to redefine the contours of free speech. On the evidence so far, they are doing a bad job. On the one hand, a good deal of speech that should be protected in the free marketplace of ideas is either banned or limited; on the other hand, a good deal of genuinely dangerous speech is protected.

A too great concern with the sensitivities of groups thought to be in need of special protection, for instance, often prevents an open discussion of some of the most pressing public issues. One such issue is the threat of Islam to the West.

Thus a judge in the Australian state of Victoria has ordered two Christian clergymen to apologize or face large fines for stating that the Koran promotes violence, killing and looting – all of which statements were found to violate the Racial and Religious Tolerance Act. At their trial, the judge forbade the Pakistan-born pastors from reading passages of the Koran itself, on the grounds that reading the Islam's holy book is itself an impermissible act of vilification. Thus the sensitivity of Muslims to criticism of their religion is held to trump legitimate inquiry into the nature of that religion and its teachings. Yet the nature of Islam is hardly a trivial issue today, and has many public policy ramifications.

In a similar fashion, the speech codes in force at many American universities might be used to prevent Orthodox Jewish students from criticizing a whole range of social behaviors on the basis of explicit verses in the Torah. In such cases, the sensitivity of particular minorities is held to trump the religious rights of other students to present and promulgate their own religious views. Once again certain views on issues of how government should regulate particular behaviors are being excluded from the democratic discourse.

A recent decision of the Jerusalem Magistrates Court provides a particularly silly example of the hyper-sensitization of the law to unkind speech comes from Judge Yitzchak Shimoni ordered Tommy Lapid to pay 50,000 shekels for the pain and suffering and court costs of an astrologer invited to appear on the same TV show as Lapid. Lapid called the astrologer a "charlatan" before leaving the studio.

One need not suspect that the repugnance shown by Lapid for soothsayers reflects a new found quest for holiness on his part (see Leviticus 20:26-7), or be an admirer of Lapid, to find that decision faintly ridiculous. Lapid did not damage the "professional standing" of the astrologer in question by singling him out for special ridicule or claiming that he was any more or less likely to predict the future than any other astrologer. Rather he made clear that he considers all astrologers to be charlatans and had no wish to be on a television show that pretends to take them seriously. Perhaps Mr. Kadoshi's feelings were hurt, but that is the price frequently paid for robust free speech, and the risk taken by those who hold themselves out to the public (e.g., columnists).

As Torah Jews bound by the laws of lashon hara and rechilus, we might wish that the law were more sensitive to the feelings of those spoken about unkindly or disparagingly. But as long as we live in a secular society, and those applying the law are not talmidei chachamim but secularly trained judges, our interests are generally better served by a regime that allows both the free expression of opinions and the freedom to criticize and refute those opinions. Absent a heavy presumption in favor of allowing derogatory speech, we will find ourselves in a situation in which Lapid's deprecatory remarks against astrologers are actionable, but his far more offensive derision of Torah scholars is not, and in which Torah Jews are prosecuted for pointing out all the various forms of modern behavior that the Torah deems abhorrent. In short, I want Tommy Lapid to be able to call astrologers charlatans so that I can continue to call him one as well.

THE JUDGE WHO FINED LAPID wrote that "freedom of speech is not freedom to degrade, and certainly not freedom to incite." Issues of incitement are hardy perennials in Israeli political debate, especially since the assassination of Prime Minister Yitzchak Rabin. And last week Attorney-General Mani Mazuz added fuel to the already raging fire. Mazuz testified in the Knesset that no evidence links the Rabin assassination to incitement. The only proximate cause that can be said with any degree of certainty to the assassination, said Mazuz, was the breakdown of the security protection around the prime minister.

As a factual matter, Mazuz was surely right. The assassin, Yigal Amir, was more a leader than a follower, more likely to call for the murder of Rabin than to be influenced by the wall posters of the time showing Rabin dressed in Yasir Arafat's kefiyah. Amir was quite bright enough to form his own twisted analysis of why the objective situation at the time required killing the prime minister.

In the wake of the assassination, charges for incitement were filed against a host of people, most of them quite unknown, like the guy who told a Kol Yisrael interviewer that he was happy about the assassination. How one could incite to murder someone who was already dead was never explained. Nor was it explained how anyone would be influenced by hearing the rantings of someone totally unknown to him on the radio.

In his Knesset testimony, Mazuz pointed out that few of the indictments had resulted in convictions, and they had done nothing to change the tenor of public debate in the next election campaign. As a consequence, he opposed the use of incitement prosecutions as a means to change the atmosphere of public life.

There is another powerful reason not to prosecute those who called Prime Minister Rabin a traitor, or those who speak similarly about Prime Minister Sharon today. Stifling their speech may very well make violence more likely, not less. To the extent that those opposed to government policies feel themselves unable to even express themselves freely about those policies and their initiators, they are more likely to feel that the entire system is rigged against them and their point of view, and that they are therefore justified in acting outside the normal democratic framework in illegal ways.

Peace Now immediately accused Mazuz of "paving the way for the next political assassination in Israel." That accusation typifies one of the enduring ironies in Israel: Those on the Left, who style themselves as the defenders of civil liberties, are the most prone to call for curtailing freedom of speech. When Peace Now demonstrators carried signs "Sharon is a murderer," after the Sabra and Shatilla massacres, no one dreamed of prosecuting them for incitement. Similarly, when a former far-left Knesset member said that the greatest service he could render the state would be to take an Uzi and mow down people in Meah Shearim, or when a left-wing columnist called for launching an intifida against the chareidim and offered to throw the first stone. But as Ha'aretz's Gideon Levy, one of Israel's most far-left columnists admitted this week, let someone compare the Gaza disengagement to the actions of the Gestapo or call for refusing army orders and the Left grows frantic and demands prosecutions.

Because incitement so often lies in the eyes of the beholder, it is a given that any deviations from a broad interpretation of freedom of speech in Israel today will only be employed to muzzle those on the Right and the religious.

Yet to be credible any defense of a broad interpretation of freedom of speech today must answer a challenge: Is the West helpless to do anything about those in its midst who advocate the destruction of Western society and the imposition of a reign of Islamic law? Are those who poisoned the minds of the young July 7 suicide bombers in London, or, for that matter, those who did the same to Eden Natan-Zada beyond the reach of the law? Can Britain do nothing to prevent London from becoming Londonistan?

That challenge is not merely intellectual, but fundamental. And the answer given has immense implications for the future of Western society. It is the subject of our next column.