Free Speech for Me, But Not for Thee

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The Torah contains many prohibitions against speaking derogatorily of others. When it comes to the laws of lashon hara – bad mouthing – even truth is not a defense, except in certainly 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 reading – was to create a false reality about the Land that God had promised the Jewish people.

Last week someone with whom I maintain an e-mail correspondence published what I considered an over-the-top attack on the entire haredi 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,” editorial, June 12). No doubt Yonatan Bassi was insulted by a letter from Matar likening the Disengagement Authority to a modern day “Judenrat.”

But I suspect that Supreme Court President Aharon Barak was no less hurt to read his colleague Mishael Cheshin’s characterization of his legal position on the citizenship law in Haaretz: “Justice Aharon Barak is ready for 30, 50 people to be blown up, but we will have human rights.”

And doubtless IDF Chief of General Staff Lt.-Gen. 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 Palestinian civilians on Gaza Beach last Friday afternoon.

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 University of Haifa economics professor Stephen Plaut. Nazareth Magistrate Reem Naddaf fined Plaut NIS 80,000 and assessed him NIS 15,000 in legal costs for comments about Ben-Gurion University lecturer Neve Gordon.

The United States Supreme Court recognized as long ago as 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 Plaut’s 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 Muhammad Deif. 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 “Haaretz promotes ‘Jews for Hitler,'” Plaut attacked Haaretz 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.
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 Web sites.” Gordon’s review of Finkelstein’s book was posted on the Web site 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 adviser 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.”

Originally published in the June 15 Jerusalem Post.

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7 Responses

  1. YM says:

    My gemora shiur is learning the ninth perek in Bava Kamma, where we are discussing the mechanism by which the beis din outside of Israel can deliver justice. My rebbe said that conflict and dispute, handled according to halacha with the goal of searching out truth, it the main reason why we are all here. Whether the conflict is with our spouses or is in the realm of public life and politics, pursuing our opinions in an effective and proper manner is essential to fulfilling our life purpose. This is apropos here and also in the post about the Presbytarian convention.

  2. Lawrence M. Reisman says:

    You could have quoted Justice Holme’s dissenting opinion from Schwimmer v. US about protection for the thought we hate. All in all, I’m glad to live in the US, where speech is protected. I still remember when Groucho Marx (shtusav yagein aleinu) said on national TV that the best thing for the country would be Nixon’s assasination. When the justice department threatened to prosecute him, the entire media in the US rose to his defense.

  3. Nachum Lamm says:

    While I agree with the column (although MS took the words out of my mouth), if we’re going to talk about things winding up on anti-Semitic websites, it should be pointed out that R’ Hutner’s essay on Zionist history from the Jewish Observer (e.g., the Mufti only attacked Jews because of Zionism) is quite popular on the anti-Jewish internet as well.

  4. MS says:

    J. Rosenblum writes: “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.”

    As usual, I agree with his conclusions, but as with my kid’s math homework, it’s not the answer per-se that counts; rather, you have to “show your work.” So, while I agree with R. Rosenblum’s critique of the Israeli Supreme Court — yet again — I am still left wondering about his rationale: does he really care about free speech or does he not like the particular RESULT in the cases he discusses.

    I again propose the following thought experiment: if the Supreme Court were controlled not by (radical?) leftists, but by rightwing Charedi jurists instead, would R. Rosenblum condemn decisions that were anti-free speech but which might conform with his view of halacha? For example, imagine: (1) a law that forbade teaching the scientific theory of evolution in public schools; (2)someone published a book explaining how evolution and traditional Jewish thought are consistent; and (3) a Supreme Court order, based on the aforementioned hypothetical law, that the book cannot be used in public schools. In such a situation, what would R. Rosenblum say about the Supreme Court ruling? What would he say about a Supreme Court ruling upholding the decision to outlaw certain Disney animated films or certain types of music or philosophical publications? Perhaps I’m wrong, but if the Charedi Right controlled the Government and the Court — which admittedly is a far-fetched possibility — I don’t believe R. Rosenblum would be so quick to condemn the results based on “First Amendment”-type considerations.

  5. David Gerstman says:

    When did the IDF kill Mohammed Deif? I thought he was still in hiding or being protected.

  6. Ori Pomerantz says:

    True and well said. May I add that I think the root of the problem is the modern belief that the state can and should fix everything, and therefore the immoral should be illegal?

    We need to popularize in western culture the concept of “Naval biRshut haTorah” – a villain who operates within the law.

  7. Steve Brizel says:

    Kudos for standing up to the Post Zionist academics and their allies in the Israeli intellectual and cultural elites. Their views have segued from mere attacks on Israel’s policies in the territories to support for Arafat , the PA and their European apologists to minimization and almost denial of the Holocaust. Read Hazony’s book “The Jewish State” for a complete analyis of how the Post Zionists have caused grave damage to Israel’s image abroad and to the next generation of Israelis.