Free Speech for me but not for thee

The Torah contains many prohibitions against speaking derogatorily of others. When it comes to the laws of lashon hara, even truth is not a defense, except in certain narrowly defined circumstances.

Underlying the proscriptions against derogatory speech is the idea that we create our world through our speech. If we continually view others with a jaundiced eye, and fail to judge them favorably, our world becomes a nasty, brutish place. The Sin of the Spies, about which we read in this week’s Torah portion, was to create by their negative report of the Land that G-d had promised a false reality.

Last week someone with whom I maintain an e-mail correspondence published what I considered an over-the-top attack on the entire chareidi community. And I told him so. He replied that if I wanted to have a dialogue with him, I’d have to eschew descriptions like "screed," "bad journalism," and "ignorant." Though each of these descriptions could have been defended, I agreed.

The dialogue was more important to me than scoring points. One of the problems with today’s Israeli society is that there is too little dialogue. Too often conversation is precluded at the outset by one party shooting a verbal arrow across the bow that makes it impossible for the other to listen to anything he or she has to say.

WHILE AS A TORAH JEW, I attempt to maintain a degree of restraint in my own speech, I do not want the secular Israeli state to attempt to impose a regime of restraint through the law.

One of the baleful consequences of the over-involvement of the Supreme Court in setting national norms has been the conflation of what is right, proper or moral with what is legal. The two categories must remain distinct. There is no inconsistency between advocating particular modes of speech, and criticizing those who fail to meet those standards, on the one hand, and supporting a legal regime that places few, if any, restrictions on expressions of opinion.

Experience has shown that legal prohibitions will too often be applied in a highly selective and discriminatory fashion. And the resulting perception that the legal rules are manipulated on behalf of one side of the political or religious spectrum undermines the legitimacy of Israeli democracy in the eyes of the public.

Nadia Matar’s current trial on charges of "insulting a public official" is a case in point of selective enforcement, as this paper pointed out this week ("Noxious Speech," June 11). No doubt Yonatan Bassi was insulted by a letter from Matar likening the Disengagement Authority to a modern day "Judenrat."

But I suspect that Court President Aharon Barak was no less hurt to read his colleague Mishel Cheshin’s characterization of his legal position on the citizenship law in Ha’aretz: "Justice Aharon Barak is ready for 30, 50 people to be blown up, but we will have human rights." And doubtless Chief of Staff Dan Halutz took umbrage at signs carried by Prime Minister Ehud Olmert’s daughter Dana and her fellow Machsom Watch demonstrators labeling him a "murderer," at a demonstration protesting the deaths of seven Palestinians on Gaza Beach last Friday night.

Matar, Cheshin, and Olmert were all making a political point, and as with much political speech, they chose the sharpest possible imagery to do so. (Only Olmert’s charge can be objectively refuted, if, as now appears clear, the IDF bore no responsibility for the explosion that killed six members of one family.) The only difference between them is that there is absolutely no chance that Cheshin or Olmert will ever stand trial.

No less troubling than the Matar prosecution is a libel judgment entered last week against Haifa University economics professor Steven Plaut. Nazareth Magistrate Reem Naddaf fined Plaut 80,000 shekels and assessed him 15,000 shekels in legal costs for comments about Ben-Gurion University lecturer Neve Gordon.

The United States Supreme Court recognized long ago in New York Times vs. Sullivan (1964) that private libel actions can be employed to stifle free speech. Plaut’s conviction is a case in point. Plaut’s rhetorical style can only be described as "take-no-prisoners," which, in my opinion, makes him less effective than his brilliance warrants. But his pieces are always well-documented so that any reader can decide for himself the appropriateness of his characterizations.

Plaut has a running vendetta with post-Zionist academics, like Gordon. Among his libelous acts, according to Magistrate Naddaf, was forwarding (not writing) a sarcastic e-mail of condolence to Gordon and other left-wing academics after the IDF’s targeted killing of Hamas bomb-maker Mohammed Def. Another was a reference to Yasser Arafat as Gordon’s "guru," after Gordon violated IDF orders to enter Arafat’s Ramallah compound, where he was photographed holding hands with him.

Finally, in a piece entitled "Ha’aretz promotes ‘Jews for Hitler,’" Plaut attacked Ha’aretz for publishing Gordon’s laudatory review of Norman Finkelstein’s "The Holocaust Industry," in which the latter claims that the number of those killed in the Holocaust has been "grossly exaggerated," as part of a systematic manipulation by world Jewry to deflect criticism of Israel’s "racist" and "Nazi" treatment of Palestinians. (The "Jews" in Plaut’s title more plausibly referred to Finkelstein than Gordon.)

That any of this could be actionable boggles the mind. Many others have reached the same conclusion as Plaut about Gordon’s antics. Such a modulated voice as Bar-Ilan University’s Gerald Steinberg has described as "anti-Semitic" a group of caricatures of Israeli soldiers "oppressing" innocent-looking Palestinians, published by Physicians for Human Rights, which Gordon formerly headed.

Maariv op-ed editor Ben-Dror Yemini accuses Gordon, along with Ilan Pappe, of "spreading their articles dripping with anti-Zionist poison all over the world, including anti-Semitic websites." Gordon’s review of Finkelstein’s book was posted on the website of Ernst Zundel, recently deported from Canada to stand charges for Holocaust denial in Germany.

Nor has Gordon been restrained in his criticisms of Israeli "fascism." In a widely published article, Gordon labeled Gaza Brigade Commander Gen. Aviv Kochavi a "war criminal" in the title. Kochavi was subsequently advised by the IDF legal advisor not to take up studies at the Royal College of Defense Studies in England, out of fear of "war crimes" prosecutions.

Plaut’s sharp pen is not everyone’s cup of tea – surely not Gordon’s. But until the day comes when all Israelis recognize, that "death and life are in the power of the tongue" (Proverbs 18:21), we are better off ordering our legal regulation of speech according to George Orwell’s dictum: "If liberty means anything at all, it means the right to tell people what they do not want to hear."