FREEDOM OF EXPRESSION: THE LIMITS OF TOLERANCE DEBATED HERE


Owen Fiss of Yale made an emotional plea for Israel not to do an about-face on its freedom of speech guidelines because of Prime Minister Yitzhak Rabin’s assassination. Frederick Schauer of Harvard said there was a price to pay for free speech and noted that there was more security at the commemoration session, at which Mrs. Leah Rabin and former Prime Minister MK Shimon Peres were present, than there would have been two years ago. Harvey Chisick of the University’s Dept. of General History, Arnon Gutfeld of Tel-Aviv University, and Mordechai Kremnitzer of the Hebrew University all expressed pessimism over the future of the country, which they see deteriorating into civil war.

These were five of more than thirty speakers who contended with historical, philosophical, political, legal, and media perspectives of the theme of “Ethics, Law, and Communication in an Era of Political Violence and Extremism,” a far-reaching international conference sponsored by the Department of Communication at the close of January. The speakers’ mandate during the four full days of the conclave was to examine the boundaries of liberty and tolerance in liberal democracies.

The evening session of the conference opening was devoted to a commemoration of assassinated Prime Minister Yitzhak Rabin, whom Schauer, the keynoter of the evening, described as “a hero of the free speech tradition.” Guests of honor at this emotionally charged session were Mrs. Leah Rabin, who said her husband had never believed that incitement against him was so powerful-- “‘I’m among my people,’” she said he would say when warned of possible danger--and former Prime Minister Shimon Peres, who thought more “soul searching” was needed to complete the process of investigating the assassination and called for an oath of allegiance for journalists to assure accountability and end character assassination in the media.

Keynoter Schauer’s statement that “the cost of the proliferation of free speech is borne by its victims” served, perhaps, as the informing theme of the evening and in a sense of the conference as a whole. Indeed, Mrs. Rabin announced in her talk that she was not celebrating, despite the fact that the Hebron agreement, part of the overall peace agreement with the Palestinians to which Yitzhak Rabin aspired, had just been signed. Members of the diplomatic corps of six countries, Jordan among them, attended the commemoration.

The sessions themselves raised questions that produced answers without consensus. Are forms of religious extremism actually incitement? Should incitement be reported by the media? What about the reporting of terrorism? Is the context or the consequence of speech more important, and does its proximity to a violent event matter? Were lessons learned from the Rabin assassination?

Mini-Course for Austrian Students
Among those present at all the sessions was a group of 13 sociology students, along with their professor and his wife, from the University of Linz, Austria. Though the English-language conclave at times proved taxing to the German speakers, who had learned about the event from both the Internet and circulars, Prof. Josef Gunz and his students found the debates, which continued at the dinner table, fascinating and informative. The subject matter bore directly on their seminar topic (communication, ethics, and liberalism), and the students were to receive academic credit for their participation in the Israeli event.

Fiss, who is Sterling Professor of Law at Yale University and considered one of the foremost authorities on the subject of free speech, spoke with “emotional erudition,” as one participant described his colleague’s talk, in pleading with Israeli law-makers and courts not to restrict freedom of expression in the wake of the Rabin assassination.
Calling that event a “deep wound for everyone who cares for Israel,” he nevertheless urged, “Beware of your response. Don’t make the converse...to be too stringent in restricting speech.”

“The task,” he continued, is not to smother radical criticism, which every democracy needs. The task is not simply to survive, but to survive as a democracy.”
Fiss criticized a 1969 U.S. Supreme Court decision (Brandenberg v. Ohio) as “an excess” and “indulgent” for its latitude on free speech. In grappling with this constitutional issue, the Supreme Court had distinguished between the general advocacy of violence, which to its mind should still be protected, and incitement, which required a temporal proximity. He himself rejects the notion that there is a “pragmatic justification” for the protection of speech as implied by general advocacy. “To say that the [U.S.] Constitution protects advocates of violence to effect change renders it meaningless law,” he said.

In the view of the Yale legal scholar, the principal challenge was to suppress the advocacy of violence, but not in a way to stifle radical speech. He also recognizes the “need to be sensitive to the danger to the richness of public debate with the intervention of the state.” He urged, therefore, cautionary guidelines for law enforcement in place of legal rules. For Fiss, however, the “first line of defense” was not to be silent--there should be more speech by opponents of the advocates of violence.

He attributed the indulgent ruling of the 1969 case to the Ohio context in which the events took place, but reminded the audience that the U.S. had experienced little political violence. Despite the radical talk of the KKK and the Communists, he said, in no instance was the democratic nature of the state threatened. Israel, though, was only 50 years old, not 200, and political violence was a recurring quality here. Still, he pleaded with the people to beware of their response.
In light of the presentations of three of the speakers, the American’s plea was not exaggerated. Harvey Chisick, an Associate Professor in the University’s General History Department, argued that Israel faced a precarious situation of “liberal indifference and non-consensual violence,” which he believes has brought the country to the verge of civil war or at best has “seriously compromised its cohesiveness.”

Echoing Schauer, Chisick says that Israel has already paid a high price for having adopted liberal values. He cites “a powerful minority movement grounded in religious fundamentalism and lacking respect for constitutionalism” that has exploited these values to make its power felt. Pointing to the monument-grave of the Cave of the Patriarchs mass murderer as a site for pilgrimage, he observed that it is located in an army graveyard “and could not have constructed, and could not be maintained, without the consent of the Israeli army.” Contrary to usual assessments of political murders, Chisick feels that the assassination of Prime Minister Rabin was “one of the most effective assassinations in modern history.”

Politics, this kippah-wearing historian believes, has been devalued because the liberal tenet has effectively separated it from the broader values of both religious and civic ideologies that guide less liberal societies. The result is “radically personalized ethics and a politics of partial interests.” With most citizens indifferent to a sense of community and civic responsibilities, he warns of the danger to Israeli society posed by the minority he mentioned. It is comprised, he said, of “small and fanatically dedicated groups” that use the established system when this suits their needs, but opt for extra-constitutional methods, including violence, when this seems more effective to achieve goals.

The Hebrew University’s Mordechai Kremnitzer likens the tense situation in present-day Israel to Germany’s pre-World War II Weimar society and faults the Jewish state for not having a clear law about the taking of human life. Taking issue with Fiss, the Jerusalem legal scholar finds no valid distinction between instigation to violence in private and public incitement. He contends that the likelihood test is a bad one for Israeli society. Here, he commented, an acquittal means legitimizing what has been expressed.

“Content provides clarity,” he said, stressing the influence of the words themselves. He feels that nothing more is needed to prosecute than to prove that the speaker wanted to bring about the killing. “I do not accept that free speech is more valuable than the right to life,” he asserted.
He would also prosecute an authority figure, “like a guru or rabbi,” whose words, meant to intimidate, send signals pressuring followers to take action.
Arnon Gutfeld, calling himself an Israeli who studies American history, argues that Israelis do not understand what happened here and do not see the severity of the problem--a real threat of civil war--facing Israeli society.
The problem, he said, are not this country’s laws, which can deal with crisis situations, but with law enforcement. For this reason and given the Israeli reality, he would be against enactment here of a U.S. First Amendment-type right. Although many Israelis in fact look upon the U.S. Constitution as a panacea, he pointed out that they usually found it difficult to believe that America had faced blatant violations of human rights during prolonged times of crisis.

The most extreme example, the Tel-Aviv historian said, was the post-World War I Red Scare. The language of the various acts passed was not frightening, he remarked; it was the way in which they were carried out. He called the period “an American reign of terror.” Laws, he concluded, were no protection in times of crisis. Their enforcement, he admitted, was a problem common to all democracies.
The conference organizer, Dr. Raphael Cohen-Almagor of the Department of Communication, plans to publish the full papers of the proceedings, which will make compelling reading for anyone concerned with the ramifications of freedom of expression.
The following excerpts from two of the talks will demonstrate the range of interests and issues covered by the presentations.

Meaning of Free Speech in the U. S.
by Prof. Lee Bolinger, who took up the office of President of the University of Michigan a month after the conference; he was formerly Provost of Dartmouth College and, earlier, Dean of the University of Michigan School of Law.
The United States has taken freedom of speech farther than any other liberal democracy, but not quite as far as there is a tendency to say. There are cases that offer a rationale for restricting speech, and they have not been overruled. Free speech is not just about protection, but also about dealing with bad responses to free speech, like censorship.

Instilling skepticism is the remedy to combat a mentality of intolerance and the human desire to believe one is infallible. Freedom of speech is one piece of a broader social concern that is central to this century--which helps explain why it is taken to an extreme. Free speech is a kind of wilderness area, which provides an opportunity for people to be more risk-taking, in this case in American social life.

Free-speech proponents ought to recognize that it is but one project, that it addresses one side of the human character, that it puts at risk the development of certain characteristics, and therefore it is useful for some but not other contexts.
It is difficult to sustain free speech in a time of war, as it produces self-doubt and diminishes a capacity to act such that a society may not to be taken into war. Oliver Wendell Holmes thought a society could have it both ways, self-doubt and undiminished capacity, but he was mistaken.

It is a good idea for free speech to recognize its past usefulness to society and to look to other institutions to inculcate values; universities and museums, for instance, encourage extreme self-reflection.
The power in the American approach is in fostering a sense of national pride so that there is self-restriction toward bad acts. The thread of meaning within free speech is incorporated into the American character.

Jewish v. Western Traditions
by Prof. Sam Lehman-Wilzig of the Department of Political Science, Bar-Ilan University.
Three major levels of political oppositionism in the Western tradition: public protest, civil disobedience, and violent revolt/revolution. The Jewish tradition not only accepts and legitimizes public protest in many situations, it can be said to have institutionalized the practice, as can be seen in the institution of the Prophets. One could possibly make the case that modern liberal thought on this issue is actually heavily based on the Biblical tradition.

Civil disobedience in Jewish tradition is viewed positively only when the transgression is a cardinal one involving one of the three central sins (murder, idol worship, incest). There can be no transgression of a ruler’s law that does not demand the breaking of a cardinal religious commandment.

In Western tradition, the citizen’s philosophical leeway for civil disobedience is far greater than that of the Jew. Revolution is permissible in certain circumstances even against a legitimately constituted government, and certainly against an “illegitimate” government not based on the people’s prior consent.

In Jewish tradition, the covenant between man and God is eternal and immutable, meaning that the Torah and its Commandments are not something that can be abrogated by either side. From a political standpoint, those rules include the obligation for moral protest but also the prohibition against actual revolt. Maimonides shied away from legitimizing political revolution even in extremis--his bottom line suggestion was to pray hard to be rid of the tyrant, but not to do the deed itself.

A simplistic summing up of Western tradition: Revolution is legitimate if it leads to democracy or national liberation; otherwise, it is illegitimate. Political revolt, in this tradition, is instrumental, with certain ends justifying the means. Judaism’s approach is far more principled--a resounding No to political revolution.

The State of Israel is caught between the hammer of the formal constitutional framework and laws of the Western tradition and the anvil of the cultural/psychological ethos of the Jewish political heritage. When an Israeli religious Jew after the Rabin assassination led a civil disobedience movement against the peace process by blocking traffic and other forms, the Attorney General charged him with sedition. Both sides argued essentially the reverse of the position they should have been taking: the religious Jew should have understood that Jewish law sees little distinction between disobedience and revolt while the attorney general upholding Israeli secular positive law should have been able to make the distinction between disobedience and revolt.

In an historical irony, when the Western or Liberal tradition was trying to find its way, it turned to what was perceived then as a coherent source (Biblical tradition); today, the shoe is on the other foot, with Orthodox Judaism in Israel trying to develop its own core of political-philosophical beliefs, such as civil disobedience, and finding relevant ideas in the Western tradition.

Israel is in the continuing throes of a struggle to define the theological-philosophical “soul” of the state.

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