Welcome to 'democratic' Israel, where speaking your mind can land you in jail --- especially if you are religious

By Jonathan Rosenblum, from the Jewish World Review


People of faith are always telling the ACLU "where to go." Perhaps, it should be to a place that's a tad less hot --- Israel.


WORDS KILL. That is the great lesson of the Rabin assassination. Or so the mantra goes. As a consequence, our enlightened brethren tell us, Israel cannot afford too much freedom of speech --- at least not too much by the wrong kind of people.

Not a shred of evidence exists (as former attorney-general Michael Ben-Yair found), however, that Yigal Amir was influenced by anyone other than GSS agent provocateur Avishai Raviv. Yet Attorney General Elyakim Rubinstein has not shown the slightest interest in prosecuting Raviv for incitement, despite the fact that in Raviv's case the link between words and deeds is not merely hypothetical.

A far more plausible case could be made for the proposition that too little freedom of speech, not too much, is what made assassination thinkable.

The free marketplace of ideas ceases to exist when the media are fully mobilized on one side of a fateful public debate, and the political echelons act to ensure the continued monopoly of those voices sympathetic to them. Roiling anger among those shut out of participation in the marketplace is the result. And when those shut out of the debate are dissed as "propellers" whose opinions are unworthy of note, temperatures rise even further.

Finally, when representative democracy itself is subverted by the purchase, with government ministries, of the votes of two right-wing MKs to pass Oslo II, a crisis of democratic legitimacy ensues.

Rubinstein's decision last week to open an investigation against Rabbi Ovadia Yosef demonstrates that the wrong lessons continue to be learned from the past.

Rubinstein ordered an investigation of Yosef on three grounds: encouraging violent acts that could lead to death or injury (under a statute leftover from the British Mandatory period, when it was used against Jewish civilians) against Education Minister Yossi Sarid; insulting a public figure, and slander. That investigation will have a chilling effect on the freedom of political expression that is a necessary condition of democratic government.

Laws prohibiting insulting elected officials who knowingly make themselves targets of the public's vituperation are a civil libertarian's nightmare. Such statutes will inevitably be employed discriminatorily, and can be used to shield elected officials from public scrutiny, an essential element of democratic government. Moreover, the ability to criticize one's elected representatives protects democracy by allowing citizens to let off steam until they can throw the rascals out in the next elections.

The application of slander and libel laws to statements of opinion about public officials is fraught with potential for discrimination and stifling public debate. So the US Supreme Court recognized over 30 years ago, when it limited its application to statements of fact made with a reckless and malicious disregard for the truth.

Characterizations like "self-hating Jew" or "worse than Pharaoh" are matters of opinion that inevitably depend on one's definitions. For that reason, they cannot serve as the basis for criminal prosecution, especially when directed at public officials --- or at least they could not until Rubinstein's ruling.

Tellingly, the only journalist ever socked with a civil libel judgment for such characterizations was Rabbi Yisroel Eichler, for calling Shulamit Aloni an "anti-Semite." (Meanwhile, Aloni gets the Israel Prize although she compared fervently Orthodox Jews to Nazis and described Binyamin Netanyahu as "a good student of Goebbels.")

Rabbis crying "the vengeance that was done on Haman, so will vengeance be done on [Sarid]" merit criminal investigation; those chanting "murderer" at Menachem Begin and Ariel Sharon do not. (Nor should they.)

The most serious charge against Yosef, of course, is that of inciting others to physically harm Sarid. Yet nothing he said could be construed as a call to violence. For more than 30 years, Yosef has been famed (and sometimes defamed) for elevating the preservation of Jewish life over every other Torah value. And he twice stated explicitly and unambiguously in public, after his attack on Sarid, that the Torah does not countenance violence against Sarid.

True, he does not wish Sarid well. That may not be nice -- traditionally we pray for the return of the sinner, not his demise -- but it is not a crime. Yosef spoke only of G-d exacting vengeance.

That is no small point. Religious Jews, as Rubinstein should know, regularly leave to G-d that which they have no right to do themselves --- including, for instance, the punishment of criminal behavior where the strict evidentiary requirements are not met.

Those who smell racism -- albeit unconscious -- in the decision to investigate Yosef are on solid ground. Such investigations never ensue when Yonatan Geffen calls for a "secular intifada" or Amnon Dankner expresses the wish to set aflame the beards of those "weird Shas rabbis" or Uri Avinery savors the thought of machine-gunning fervently Orthodox Jews in Me'a Shearim, or Yigal Tumarkin begins to understand the Nazis whenever he sees large haredi families. Everybody knows that they, and their friends, are "elevated spirits" and so their remarks are not to be understood literally.

Yet when Yosef hurls imprecations and calls for Divine wrath, that is incitement. Why? Because "everyone knows" that his followers are primitive, violence-prone thugs who cannot distinguish themselves from G-d.

Rubinstein has become the national scold. But he is not Miss Manners, whose task it is to teach Yosef etiquette. He is the attorney-general, charged with determining legality.

Were he to spend less time burnishing his credentials as a philosophe - he should stop worrying, he's a shoo-in for the Supreme Court - he might have avoided triggering the latest polarization of Israeli society.

c o p y r i g h t   ( c )   1 9 9 9 -2004 Karl Ericson Enterprises.  All rights reserved

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