More on incitement (column 43)

With God’s help

I haven't calmed down yet. In the previous column I touched on the question of incitement, and especially the excessive use of this practice and its distortions, and attributed it to the postmodern culture that sees in words the true reality (which it itself does not recognize). In the discussions that arose following the column, several fundamental misunderstandings (in my opinion) appeared regarding the issue of incitement, and therefore I decided to try to broaden the scope a bit regarding the question of freedom of expression and its relationship to the prohibition of incitement.

Incitement versus freedom of expression

As mentioned, the discussion on these issues usually focuses on the question of whether or not there is incitement in the words. Part of the discussion in the talkbacks to the previous column also revolved around this axis. The implicit assumption is that if there is incitement in the words, then they should certainly be banned, and therefore the discussion in the case of the Bezalel student also focused on the question of whether or not there was incitement in her work. Here I would like to continue and ask what if we agree for the sake of the discussion that there was indeed a dimension of incitement. In such a case, should it necessarily be banned and she be held responsible?

My argument is that it is not, and this on two levels, one above the other: 1. A ban on incitement in itself has no legal justification. 2. Imposing such a ban violates freedom of expression.

On incitement in Halacha

To discuss the first level, we must first examine the concept of incitement. It is not for nothing that the halakha prohibits incitement to commit a crime (except for idolatry). The rule that the Gemara uses to explain this is "The words of the rabbi and the words of the student, who listens?!" This rule originally serves to explain why there is no messenger to commit a crime, that is, why someone who sent another person to commit a crime is not punished (and perhaps did not even commit the crime he intended).[1]Simply put, the argument is that the messenger is a wise man and should have weighed the order of the messenger against the divine order of the Torah. If he decided to obey his messenger and not God, the responsibility lies with him. According to most opinions, the fact that the responsibility lies with him removes all responsibility from the messenger (certainly regarding the punishment. Although, as stated, there is disagreement regarding the offense).

The Gemara in Tractate Sanhedrin 29a expands this rule regarding incitement to a crime in general, and thus it writes:

And there is no need to incite, for whom does he hate to incite? Rabbi Hama bar Hanina of Pirkia, Rabbi Hiyya bar Abba, heard me say that I am an inciter. Drachman said, "You shall not have mercy on him, nor shall you cover him up." Rabbi Shmuel bar Nachman said, "Rabbi Yonatan said, "From where does it come that there is no need to incite, from the ancient prophet, who said, "Rabbi, full of many arguments, had the prophet to argue and did not argue. And why did the Holy One, blessed be He, not argue with him? Since he did not argue, why did he have to argue with me? The words of the rabbi and the words of a disciple? The words of those who listen to the words of the rabbi listen to the words of the rabbi."

This gemara should be discussed at length (some of the early scholars imply that incitement is prohibited in all offenses, even though this is not accepted by halakhah). But again, there is one fundamental argument here: with the exception of incitement to a crime (the snake is considered there for some reason as incitement to a crime), the instigator should not be held responsible because the instigator is a person of sound mind and it is his judgment that is responsible for what happened. His responsibility removes the burden of responsibility from the instigator. Incidentally, even with regard to incitement to a crime, the accepted halakhic view is that the instigator is not guilty of the crime itself (in this, only the worker is guilty, as in the remote city where they were incited and she is severely punished), but rather that incitement to a crime is itself an offense. Therefore, it can be said that in halakhah, the instigator has no halakhic responsibility for the result.

About incitement in general

This explanation is not a purely halakhic explanation. It seems that in any legal or moral context, when Reuven incites Shimon to commit a crime (such as theft or murder), the instigator cannot be held criminally or morally responsible. Shimon made the decision to murder even though he knew and understood that it was forbidden (according to the rabbi, i.e., morality or the law), and therefore the responsibility lies with him. It is likely that the instigator does not deserve a tsalsh from the President of the State, nor does he pardon Yona in the Old Testament, but he is not criminally responsible.

It is important to understand that this removal of responsibility does not stem from freedom of expression. The argument on the first floor that we are dealing with here is that incitement, by its very nature, does not impose responsibility on the instigator, nor does it relieve the instigator of responsibility. Although the law generally prohibits incitement, it is important to understand first of all that there is a non-trivial consideration here. Ostensibly, we would be supposed to exempt the instigator entirely from the "words of the rabbi and the words of the student" explanation. After all, we would all agree that the instigator cannot hold the instigator responsible for his own crimes. He is a man of conscience, and as such, he and only he are responsible for his actions. For example, if Reuven beat me, stole from me, or hurt me, and I now accuse him (in person or in court), I certainly would not accept from him the excuse that Shimon incited him to do so. None of us would absolve the person who hurt him because of such excuses. We might have come to Shimon with claims, but the criminal responsibility certainly lies with the person who actually did the deed, that is, Reuven. So what is the justification for holding an instigator accountable?

Causal effect: legal-criminal causation and physical causation

What we have seen so far has not dealt with the question of causal causation. There is no claim here that the instigator has no causal role in the result. On the contrary, it is reasonable to assume that he causally has a share in responsibility. Suppose Reuven incites a thousand times, there is certainly some chance that one of the instigators will commit the act. To clarify matters, think of a controlled experiment: taking a group of a thousand incited people and a control group of a thousand other people, I suppose that there is a higher chance that one in a thousand instigators will commit the act than one in a thousand people in a normal situation. In other words, it is difficult to deny that the instigator has some share in causal responsibility for the result. And yet, it seems that on a legal level it is not reasonable to impose criminal liability on him. Not only because the result of the incitement is uncertain, but mainly because the perpetrator of the action was aware that he was legally responsible for his actions. The conclusion is that even if there is physical causation, that is, that the incitement has a contributory fault in the result, this still does not mean that legal liability will also be attributed to it. Physical causation does not necessarily mean legal causation.[2] Let's now look at some examples that clarify this consideration.

Examples: Reference to provocations

The question of how to deal with provocations is very similar to the question of incitement. Jews want to ascend the Temple Mount, but the Arabs threaten to riot and respond with violence. They see this as a provocation (without going into the question of whether or not they are right). The police and the government generally do not want noise, so they restrict the ascend and prohibit Jews from praying on the Mount. There is no doubt that this is a terrible injustice (even if we accept the assumption that the ascendants are doing this for the sake of provocation). There is no justification for restricting the freedom and right of Jews to pray on the Mount simply because of threats of riots by the Arabs.

Consider a parallel case of women who walk provocatively and are sexually assaulted. In that context, there is broad agreement that they should not be blamed for acts of sexual assault and harassment (these are the immortal complaints about blaming the victim). What is the difference between the two cases? I see no such difference. In both cases, even if there is provocation, there is no justification for restricting the provocateur as long as he acts within the framework of his rights. The other person must swallow his pride and restrain himself. For some reason, in many cases the same people and groups who revolt against the "provocations" on the Temple Mount revolt against the accusation of the victim of sexual assault and harassment (cf. Zehava Galon). There are other examples, such as the Women of the Western Wall or Pride marches that provoke Haredi violence. There too, public opinion sides with the victim and does not condemn his provocations (cf. Shira Banki). It certainly does not hold him responsible for this provocation. As long as the victim does things that he has the right to do, he cannot be held responsible for the outcome. The one who did it is the one who is responsible for it.

Indeed, it is very reasonable in my opinion that the victim should not be blamed in these cases (in all of them, including the Temple Mount). He may have "incited" the attacker (by provocation, or what the attacker perceived as provocation), but it is his right to go as he sees fit (in whatever clothing he sees fit, or to go up to pray in a public place), and if the other person is dragged into violence, the entire responsibility lies with the one who perpetrated the violence.

This is exactly the same consideration as we saw above regarding the responsibility of the instigator. When the person who commits the offense is a reasonable and criminally responsible person, the responsibility in fact lies entirely with him. The claim that he was provoked or incited does not protect him (perhaps it contains arguments for reducing the punishment, but not for the actual responsibility and guilt). Thus, a person who grew up in a difficult environment does not get rid of his responsibility for crimes such as theft or violence. The environment is at most a mitigating circumstance but certainly does not relieve him of responsibility. But if the responsibility lies with the criminal and the violent, there is no reason to also place responsibility on the other person (the instigator or provocateur). What do you mean, if we demand restraint and control from him, then he is the only one to blame for not doing so. These are two sides of the same coin: the guilt of the aggressor removes responsibility from the instigator and provocateur. As mentioned, the physical cause is common to both, but the criminal-halakhic-moral responsibility lies solely with the perpetrator.

The role of freedom of expression in the incitement equation

Our conclusion so far is that incitement does not exempt the instigator from responsibility. But there is still room for the argument that it is nevertheless worthwhile to limit the instigator in order to prevent the consequences of incitement. We have seen that incitement has a contributory fault in relation to the result. It is part of the "physical" cause of it. So if incitement is indeed liable to kill (as that infantile proverb is often uttered by all "killing words"), why not hold the instigator liable even if there is no legal justification for this? Why ignore physical causality in the legal consideration? We should prohibit the instigator from inciting and the provocateur from doing his actions in order to prevent the dire consequences that could result in human life. Even if there is no causation and responsibility here on the legal-criminal level, why not do so from a consequential consideration? In essence, this argument calls for the physical causation to be confused with and taken into account in the normative sphere (legal, halakhic, or moral).

Here, and only here, does the second level of discussion come into play, freedom of expression. The freedom of expression of a person (the instigator or provocateur) should not be limited due to fear of the consequences of the instigator's actions. The instigator's actions are his own responsibility, and the instigator is exempt despite his causal role in the result. If so, freedom of expression is the reason why the instigator should not be restricted even though he has causal responsibility. The argument is that once such a restriction is not a neutral act, but an act that violates values (freedom of expression), it is not done without a real moral justification. Therefore, it is not right to allow consequential considerations to constitute justification for prohibiting or restricting incitement and imposing liability on the instigator.

Interim summary

So far we have seen a two-tiered consideration: In tier one, I argued that from a purely legal and moral point of view, the instigator should not be held liable if the instigator is a reasonable person. Of course, against this, one can raise the consequential consideration: incitement plays a part in causing the causal effect and therefore must be prohibited. Here comes tier two, that such a prohibition is an infringement of freedom of expression. Indeed, freedom of expression is a human and civil right, and with all due respect to rights, however important they may be (and I am not sure that the right to express oneself is one of the most important rights, even though the press, as the standard bearer of this right, of course elevates it to the top of its list), it is clear that considerations of protecting life take precedence over them, don't they? Here we must return to tier one and see that there is no real justification for prohibiting incitement or holding the instigator liable. Therefore, there is no justification for restricting the freedom of expression and rights of one person just because there is another person who is not acting as he or she should. As long as the perpetrator is a sane person, the responsibility not to commit a crime rests with him, and if he does not do so, he should be punished severely and the rights and freedom of others should not be restricted.

So why is it still common to prohibit incitement? I think these are mainly exceptional cases, some of which I will now describe.

Exceptions

What unites all the exceptional cases is first of all the condition that there must be a near certainty of a problematic outcome. As mentioned, the justification for prohibiting incitement is only because of the causal causation of the instigator, and when faced with the right to free expression, we come to the conclusion that if at all an instigator can be held liable, it is only when there is a near certainty of a problematic outcome. In what cases is there such a near certainty?

The first case is when the instigator has extraordinary authority or influence over the inciter. If he is his teacher, his teacher, his manager at work, a commander in the army, and so on. In these cases, incitement has a dimension of exploiting his connection to the inciter to bring about the result. In these cases, it is not an expression of opinions but rather an incitement to action, and therefore there is less consideration of freedom of expression and rights and also more power for causal causation. In such a case, incitement can perhaps be seen as a degree of causation on the legal level as well.

Another case is when the incitement is directed at an entire public and not at a single person or individuals. Why does it matter? Because if the probability of causality is, say, one in a thousand, then when I incite a thousand people, it is likely that one of them will actually act. Incitement directed at a public greatly increases the near certainty of harm, and therefore there is more room for it to be prohibited. An example of this can be found in the article by Hanan Ariel’s students, Public Transportation – A Halachic and Moral Obligation, Noon 15. He cites a case of an officer who came to Rabbi Mordechai Eliyahu and asked him whether he was permitted to light a flashlight on Shabbat in order to unload his soldiers' weapons. According to the IDF directive, weapons may only be unloaded at night by an officer with a flashlight on. The chance of a malfunction (a bullet being discharged) in his specific case is completely negligible, and certainly normal considerations of personal safety would not permit desecration of Shabbat in such a situation. But since this is an instruction to many, any small chance should be multiplied by the number of people who receive the instruction, and therefore there is a near certainty of harm. In such a case, each of the officers should be permitted to light a flashlight on Shabbat despite the low chance of harm in each specific case of each of them. From the same consideration, the strength of the physical harm in incitement to many is multiplied by the number of instigators. This still does not change the right of the instigator (unlike the previous case), but the consideration of near certainty is greatly intensified.

In exceptional cases, does the tax liability decrease?

In the exceptional cases I mentioned, it is customary to hold the instigator responsible (although I am not sure that I personally agree with this, at least in the second case), but it is clear that this does not remove the responsibility of the instigator. The considerations we saw above that incitement does not relieve a reasonable person of responsibility who has committed an offense remain the same in these cases as well. For example, when a person incites many, or incites his subordinate, he can be held responsible for what happens, but this still does not relieve the instigator of his responsibility.

Let's take another example. Many hold the government responsible for road accidents because it does not combat them (through advocacy, enforcement, or infrastructure repair and improvement). Again, it is clear that in any case there is responsibility for the driver who drove negligently, and yet since it is a responsibility towards a broad public of drivers, there is room to hold the government responsible. Here, of course, the case is different from incitement or provocation, since it is the government's job to do so, and if it does not do so, then it is responsible because it is acting in its role. This example is not intended to show that there is responsibility on the government, but to show that even the responsibility that is placed on the government does not remove responsibility from the driver.

Consequences

Above I gave some examples in which one can see the joint responsibility of two factors for the offense. This is the case with the instigator and the instigator, and the same is true with the provocateur, or someone perceived as such, and someone who uses violence against him. We saw this with regard to the ascent to the Temple Mount, sexual provocations, the Women of the Western Wall prayer, Pride parades, and the like. In all these cases, even if there is a near certainty and therefore there may be room to limit the victim as well, this certainly does not reduce the responsibility of the aggressor.

In all these cases, the most desirable solution is not to prohibit and restrict freedom of expression and action, but to use law enforcement agencies to protect against violence and severely punish those who use it. Only when there is no choice, when there is a likelihood that these measures will not succeed, is there a place to restrict the freedom of the victims, and even then to the minimum extent possible.

In light of the picture described here, if we return to that Bezalel student (the subject of the previous column), her invitation to a police investigation seems to me hysterical to the point of absurdity. There was certainly no near certainty, and even if there had been, she acted within the framework of freedom of expression, and probably without any criminal intent. In any case, the burden of proof is on the accusers, not her. The reversal of events that is taking place these days is more dangerous than the incitements themselves.

Tangential Questions: Consequential Considerations

We have seen that the starting point should be that freedom of expression should not be restricted even in cases of incitement. Imposing a ban on incitement and holding instigators accountable can only be justified in very exceptional cases. In essence, it is imposing a ban on a permissible action because of a consequential consideration.

There is a whole series of tangential questions that concern consequential considerations in various contexts. For example: Column 21 I dealt with holy lies (Shk.k). The Shk.k's consideration says that it is appropriate to disseminate an incorrect or partial Mishnah, or to prohibit exposure to materials that raise real and thought-provoking difficulties, and in essence to create a policy of simplistic and biased education and worship of God, all to prevent people from making mistakes (this is the problematic result). In the religious world (and also here on the site. See for example here andhere) There are many to whom such a policy seems obvious. For my part, I strongly object to it, at least as a starting point. Even if we assume that this is a problematic outcome (and I am not even sure of that), truth is still a fundamental value, and harming it is justified only if there is a near certainty of significant harm that is worth the deviation from the truth. Consequential considerations are always second-order considerations, and they should only be invoked when there is a near certainty of consequential harm that will be greater than the harm that actually exists in their application (the deviation from the truth).

[1] The early ones disagreed on this. See, for example, in Tod "Damer," B.M. 10:2, and many others. The disagreement is of course only when it comes to a consequential offense, when a priest sends a Jew to consecrate a divorced woman for him (the offense is that the priest is married to a divorced woman). If a person incites to an act of sin, such as eating pork, then it is clear that he does not have a pork offense (at most, an offense "before a blind man," and even that only in certain cases).

[2] On this matter, see my discussion of the issue of its beginning in crime and its end in rape (in my books Two carts Illumination 32 on page 525, and also in my books Freedom Sciences p. 169, fourth intermezzo), where I distinguish between legal and physical causation.