Does prohibiting incitement limit freedom of speech?
Absolutely. Any prohibition against speech jeopardizes our freedom of speech, where freedom of speech is defined as a person’s right to express any idea, opinion, belief or emotion. Moreover, we are talking about expression in the public-political sphere, which is the most protected sphere in a democratic regime.
Yet, with all of its importance, freedom of speech is not an absolute value, not even in the sensitive sphere of political or ideological expression. When faced with another important value that could be severely and irreparably damaged, there is no reason to justify freedom of speech at the expense of another value.
We can differentiate between two types of incitement:
- Incitement to violence.
- Incitement to (non-violent) defiance of the law, for example: incitement of soldiers to refuse to follow orders, incitement to non-payment of taxes.
* Another form is incitement to racism, which will be discussed in the section on racist expression.
These two types of incitement are prohibited under Israeli law (and in other democratic countries).
INCITEMENT TO VIOLENCE
Violence is not a legitimate behavior in organized society. The fundamental principle underlying the “social contract” theory is that people living within a democracy waive their right to use violence, except in cases of self-defense.
Another reason incitement is illegal is that it creates public fear. This atmosphere can disrupt the social order and effect normal life. It jeopardizes citizens' right to peace and security. For this reason the law forbids us from threatening someone, even if we do not intend to carry out the threat.
Incitement to violence for political or ideological reasons may even perpetuate the use of violence as a means for settling political or other disputes. It undermines democracy’s “rules of the game.”
Why is it important to protect the rule of law?
Incitement to either violent or non-violent disobedience is harmful to society, because it challenges the rule of law.
The rule of law is a principle that underlies the very existence of organized society, and organized society is the framework that enables the safe upholding and fulfillment of human rights.
Human beings living in a shared society may have opposing points of view. Civilian populations are large and varied, and thus it is difficult to unite around the values of a particular ethical or religious outlook. But agreement regarding certain essential principles is vital for the existence of a shared social framework. Therefore, it is critical for a country to unite around laws and rules of government
Law is not a purely formal issue. The laws and principles of a government reflect its moral perceptions. Basic moral issues are more or less agreed upon, although some moral questions are subject to controversy. For example, there is broad agreement that murder or theft is an immoral act, but there is a difference of opinion regarding the morality of certain lifestyles and personal choices (such as the abortion debate in America).
Mutual agreement between citizens to act within the law creates the balance within a civil society. The rule of law relies on the principle of equality before the law, and thus everyone is subject to it.
We must differentiate between disobeying the law and incitement to disobedience of the law. Society can absorb isolated cases of disobedience without jeopardizing its continued existence. But incitement to disobeying the law carries with it a special danger because it may create a “critical mass” of people who choose to disobey the law. This would damage the values which that very law is supposed to protect. For example, if there is persuasive indoctrination against military service for moral reasons, the public may not respond to emergency induction orders and this could seriously jeopardize the country’s safety. Similarly, incitement to disobey the law for political or ideological reasons, such as an attempt to defeat a law that promotes a particular political or social policy, is a threat to the democratic way. Any life-loving nation must, alongside its desire to respect as much as possible an individual's freedom of speech and conscience, must ensure the means of its continued existence.
Just as it is possible to limit freedom of speech due to threats to destroy the country from the outside, it is also possible to limit it due to internal threats. This is what the Supreme Court meant when it stated that “the right to life in a society takes precedence over the right to express one’s opinion in that society,” and that:
A democratic regime is prepared to protect freedom of speech so long as such freedom of speech protects democracy. But when freedom of speech becomes a tool that threatens democracy, there is no just reason for democracy to put its head on the chopping block.
This concept is often referred: “defensive democracy.”
CRITERIA FOR IDENTIFYING INCITEMENT TO VIOLENCE
Activity: Legitimate protest or incitement?
Distribute cards among the students in the class with descriptions of various forms of expression, both real and imaginary (see examples below). Some of the expressions shall demonstrate legitimate dissent while others – incitement. The students should be instructed to study each others' cards and choose one card that he/she believes describes incitement. If a student feels that all the cards belonging to the category of incitement have already been chosen, he should join another student already holding such a card. Afterwards, collect all of the cards that were not chosen (if any). The class discussion should focus on the cards that were chosen, in order to formulate criteria for identifying incitement.
To the teacher: Most of the expressions at the center of the discussion will be, naturally, those with radical or vulgar opinions belonging to various political or ideological camps. Our goal is to work with the pupils to formulate criteria for identifying incitement and not to intensify stereotypes. Therefore, it is important to emphasize to the pupils that these expressions do not represent the entire spectrum of political discussion, nor do they necessarily represent the dominant feelings of one sector or another.
Examples of expressions suited for discussion
- In October 2002, Right-wing political activists held a large rally in Zion Square in Jerusalem, and posters included the phrases “Peres is a terrorist” and “Peres and Beilin are worse than Arafat” (one is a former Prime Minister, the other a Minister in the government. Both were in favor of the Oslo accords). In June 1999 Shulamit Aloni (former left-wing Member of the Knesset), said the following in an interview with the Ha’aretz Weekend Supplement: “Netanyahu (former Prime Minister) reminds me of Mussolini, and he was Goebbels’ best student.” (Mussolini was the ruler of Italy during World War II and an ally of Hitler; Goebbels was Hitler’s Minister of Propaganda.)
- Notice boards in Bnei Brak declared (an ultra-religious town bordering with Tel-Aviv), “Any woman wearing a wig instead of a head covering should be stoned.”
- In May 1998 reporter Yehonatan Gefen wrote in Ma’ariv: “If secular Israelis want to continue living here they have no choice but to start an Intifada. In fact, I’m prepared to throw the first stone.”
- Prof. Uzi Ornan (an outspoken homosexual) said on the TV program Popolitika (a popular TV show): “We need to throw all the religious Jews into the sea” (August 30, 1999).
Discussion: The guiding principle is that we must not prohibit expression of ideas, but prohibit indoctrination that creates a genuine danger, as opposed to a slight risk.
In order to assess the level of danger in a particular statement we need to consider two components: the content of the statement and the circumstances under which it is made.
1. Contents of the statement:
We can point to two types of inciteful content:
1) A public call to commit a criminal or violent act: This in not merely an idea, advice or encouragement, but an actual demand. It is a statement that includes an expectation that someone will get up and perform the required action. But not every impassioned or radical statement is incitement. We must also examine whether the call to violence is merely metaphorical (for example, with regard to Yehonatan Gefen, the prosecutor decided that his statement was a metaphor). Foul and irresponsible language is not necessarily criminal.
2) Publicizing praise of a violent or criminal act that was carried out: For example, praising those who carry out terrorist acts is indirect incitement to commit a similar crime. It creates an emotional climate that could give rise to criminal activity. When the act has a political or ideological background, praising or endorsing it becomes an expression of identification with the criminal, and encourages similar acts. Praise for an action reduces its stigma. For example, following Rabin’s assassination, the murderer was described in some circles as a national hero and was admired. Praise for him cheapens the crime of murder, detracts from the public’s obligation to obey the law and undermines the public’s feeling of safety from violence.
2. Circumstances of the statement:
In addition to the content of the statement we must take into consideration the circumstances in which it was published or publicized, in order to examine the real danger it creates. As they say, “There is no law that prohibits someone from walking down the street with a lit match, but he is prohibited from doing so if the street is full of gun powder.” Often, circumstances can “color” an action in a particular way, making it either legal or illegal. In the context of incitement, we must consider the following circumstances: Who is speaking, who is the audience, what is the timing and context of the statement?
Identifying the speaker is particularly important, as some individuals have significant influence over others; such as someone with religious or spiritual authority (a religious priest or cult leader), a military or police officer, or even a political leader. Such people have a special responsibility because they can use their position to influence their listeners. Such authority may compete with civilian authority.
“Scholars, take care with your words for you may be exiled to a place of evil waters [i.e., inhabited by elements who will distort your words to suit their negative purposes]. The disciples who come after you will then drink of these evil waters and be destroyed”
(Pirkei Avot, I, 11)
A person’s legal or moral status can bestow his words with a special power and magnify the danger they embody. Evidence of this kind of risk can be found in the words of murderer Yigal Amir, who claimed that “without a halachic decision or the din rodef ruling issued against Rabin by several rabbis I know about, it would have been difficult for me to kill. This kind of murder has to be supported. If I had had no support and if there weren’t many other people backing me up, I would not have acted.”