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Freedom of Speech May Depend on Just What You Have to Say
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. 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 Israel's Supreme Court in setting national norms has been the conflation of what is right, proper or moral with what is legal.
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.
For example, right-wing activist Nadia Matar is currently on trial on charges of "insulting a public official." This is a case in point of selective enforcement.
No doubt Yonatan Bassi, the official in charge of dealing with the Jewish settlers in Gaza who were expelled from their communities last year, was insulted by a letter from Matar likening the Disengagement Authority to a modern day "Judenrat."
Doubtless, Israel Defense Force Chief of Staff Gen. Dan Halutz also took umbrage at signs carried by Prime Minister Ehud Olmert's daughter Dana and her fellow left-wing demonstrators labeling him a "murderer," at a demonstration protesting the deaths of seven Palestinians on a Gaza beach on June 9.
Matar and Olmert were both making a political point, and as with much political speech, they chose the sharpest possible imagery to do so. Olmert's charge can be objectively refuted as the IDF bore no responsibility for the Gaza explosion. The only other difference between them is that there is absolutely no chance that 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 in the 1964 case New York Times vs. Sullivan 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." But his pieces are always well-documented, so 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 Naddaf, was forwarding 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 not to enter Arafat's Ramallah compound, where he was photographed holding hands with him.
Finally, in a piece titled "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 "Nazi" policies.
That any of this could be actionable boggles the mind. Many others have reached the same conclusion as Plaut about Gordon's antics.
But until the day comes when all Israelis recognize that "death and life are in the power of the tongue" (Proverbs 18:21), we're 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."
Jonathan Rosenblum is a columnist for The Jerusalem Post.