More on Incitement (Column 43)

With God's help

I still haven't calmed down. In the previous column I touched on the question of incitement, and especially on the excessive use of this verb and its various inflections, and I attributed it to postmodern culture, which sees words as the real reality (a reality whose existence it otherwise denies). In the reactions the column elicited, several basic misunderstandings appeared (in my view) regarding the issue of incitement, and I therefore decided to try to broaden the discussion a bit on freedom of expression and its relation to the prohibition of incitement.

Incitement versus Freedom of Expression

As stated, discussion of these topics usually focuses on the question whether the statements in question constitute incitement or not. Part of the discussion in the comments on the previous column also revolved around this axis. The tacit assumption is that if there is incitement in the statements, then of course they should be prohibited, and therefore the discussion in the case of the Bezalel student also focused on the question whether her work contained incitement or not. Here I want to continue and ask: even if, for the sake of discussion, we agree that there was indeed an element of incitement there, does it necessarily follow that it should be prohibited and that responsibility should be imposed on her?

My claim is that it does not, and this on two levels, one above the other: 1. A prohibition of incitement as such has no legal justification. 2. Imposing such a prohibition infringes freedom of expression.

On Incitement in Jewish Law

To discuss the first level, we must first examine the concept of incitement. It is no accident that in Jewish law there is no prohibition against incitement to transgression (except in the case of idolatry). The rule the Talmud uses to explain this is "The words of the master and the words of the student—which does one obey?!" ("When the words of the Master and the words of the disciple conflict, to whose words does one listen?!"). In its original context, this rule serves to explain why agency does not apply to a transgression, that is, why someone who sends another person to commit a transgression is not punished (and perhaps also did not himself violate the offense he intended)[1]. Put simply, the claim is that the agent is a person of sound judgment, and he should have weighed the sender's command against the divine command of the Torah. If he decided to obey his sender and not the Holy One, blessed be He, the responsibility is his. According to most opinions, the fact that responsibility is his removes all responsibility from the sender (certainly with regard to punishment, although, as noted, there is a dispute about the transgression itself).

The Talmud in tractate Sanhedrin 29a extends this rule to incitement to transgression in general, and this is what it says:

And we do not advance arguments on behalf of an enticer. What is different about an enticer? Rabbi Hama bar Hanina said: I heard it from the lecture of Rabbi Hiyya bar Abba: An enticer is different, for the Merciful One said: “You shall not spare him, nor shall you conceal him.” Rabbi Shmuel bar Nahman said in the name of Rabbi Yonatan: From where do we know that we do not advance arguments on behalf of an enticer? From the primordial serpent. For Rabbi Simlai said: The serpent had many arguments it could have made, yet it made none. And why did the Holy One, blessed be He, not advance them on its behalf? Because it did not make them itself. What could it have said? “The words of the master and the words of the student—which does one obey? One obeys the words of the master.”

Much could be discussed about this Talmudic passage (some of the medieval authorities (Rishonim) there imply that there is a prohibition of incitement for all transgressions, although this is not the accepted practical ruling). But again, there is one substantive claim here: aside from incitement to idolatry (the primordial serpent is considered there, for some reason, to be incitement to idolatry), responsibility is not imposed on the inciter, because the person incited is one of sound judgment, and it is his own judgment that is responsible for what happened. His responsibility removes the burden of responsibility from the inciter. Incidentally, even with respect to incitement to idolatry, the accepted halakhic view is that the inciter is not guilty of the idolatry itself (of that, only the worshipper is guilty, as in the case of the condemned city that was incited and is punished severely), but in idolatry incitement is itself an offense. Therefore one may say that in Jewish law the inciter bears no halakhic responsibility whatsoever for the outcome.

On Incitement in General

This reasoning is not a purely halakhic one. It seems that in any legal or moral context, when Reuven incites Shimon to commit an offense (such as theft or murder), no criminal or moral responsibility should be imposed on the inciter. Shimon made a decision to murder even though he knew and understood that it was forbidden (by the words of the Master, that is, morality or the law), and therefore the responsibility is his. Presumably the inciter does not deserve a medal from the President of the State, nor the honor of the Jonah haftarah on Yom Kippur, but he bears no criminal responsibility.

It is important to understand that this removal of responsibility does not derive from freedom of expression. The argument on the first level with which we are dealing here is that incitement, by virtue of being incitement, does not itself impose responsibility on the inciter, nor does it remove responsibility from the person incited. Admittedly, the law generally prohibits incitement, but it is important first to understand that a nontrivial consideration is involved here. Prima facie, we should completely exempt the inciter on the basis of the reasoning of "The words of the master and the words of the student". After all, we would all agree that the person incited cannot shift responsibility for his own crimes onto the inciter. He is a person of sound judgment, and as such he, and only he, is responsible for his actions. For example, if Reuven assaulted me, stole from me, or harmed me, and I now accuse him (personally or in court), he certainly will not be able to excuse himself by saying that Shimon incited him to do so. None of us would exonerate someone who harmed us because of such excuses. We might also have claims against Shimon, but criminal responsibility is certainly borne by the one who actually did the deed, namely Reuven. So what is the justification for imposing responsibility on an inciter?

Causal Influence: Legal-Criminal Causality and Physical Causality

What we have seen up to this point did not concern the question of causal contribution. There is no claim here that the inciter has no causal part in the result. On the contrary, it is reasonable to assume that causally he does bear some share of responsibility. Suppose Reuven incites a thousand times; surely there is some chance that one of those incited will carry out the act. To sharpen the point, think of a controlled experiment: let us take a group of a thousand incited people and a control group of a thousand other people. I would assume that there is a greater chance that one of the thousand incited people will carry out the act than one of a thousand people in an ordinary situation. In other words, it is hard to deny that the inciter has some share in the causal responsibility for the result. And yet it still seems that on the legal level it is unreasonable to impose criminal responsibility on him. Not only because the outcome of incitement is not certain, but mainly because the person who carried out the act was a person of sound judgment who is legally responsible for his actions. The conclusion is that even if there is physical causality, that is, even if the incitement is a contributing cause of the result, this still does not mean that we should attribute legal responsibility to it as well. Physical causality does not necessarily mean legal causality.[2] Let us now look at a few examples that clarify this consideration.

Examples: How to Relate to Provocations

The question of how to relate to provocations is very similar to the question of incitement. Jews want to go up to the Temple Mount, but the Arabs threaten to riot and respond violently. They see this as a provocation (without entering into the question whether rightly or not). The police and the government usually do not want trouble, and so they restrict the ascent and forbid Jews to pray on the Mount. There is no doubt that this is a crying injustice (even if one accepts the assumption that those ascending do so for the sake of provocation). There is no justification for restricting the freedom and right of Jews to pray on the Mount merely because of Arab threats of rioting.

Think of a parallel case of women who dress in a provocative way and are sexually assaulted. In that context there is broad agreement that they are not to be blamed for acts of sexual assault and harassment against them (the perennial protests against blaming the victim). What is the difference between the two cases? I do not see such a difference. In both cases, even if there is provocation, there is no justification for restricting the provocateur so long as he or she acts within his or her rights. The other side has to swallow its saliva and restrain itself. For some reason, in many cases the very same people and groups who protest the "provocations" on the Temple Mount protest victim-blaming in cases of sexual assault and harassment (cf. Zehava Galon). There are additional examples, such as the Women of the Wall or pride parades that provoke Haredi violence. There too, public opinion sides with the victim and does not condemn the victim's provocations (cf. Shira Banki). It certainly does not impose responsibility on the victim because of that provocation. As long as the victim is doing things that he or she has a right to do, the victim should not be seen as responsible for the result. The one who did it is the one responsible for it.

And indeed, it seems very reasonable to me not to blame the victim in these cases (in all of them, including the Temple Mount). The victim did indeed "incite" the attacker (through provocation, or through what was perceived by the attacker as provocation), but it is his right to conduct himself as he sees fit (in clothing that seems appropriate to him, or to go up and pray in a public place), and if the other is drawn into violence, all the responsibility lies with the one who uses violence.

This is exactly the same consideration we saw above regarding the responsibility of the inciter. When the person who commits the offense is a person of sound judgment and criminally responsible, responsibility for the act is entirely his. The claim that he was provoked or incited does not protect him (perhaps it may provide grounds for mitigating punishment, but not with regard to responsibility and guilt as such). Thus a person who grew up in a difficult environment is not exempted from responsibility for crimes such as theft or violence. The environment is at most a mitigating circumstance, but it certainly does not remove responsibility from him. But if responsibility lies with the criminal and violent person, there is no reason to impose responsibility on the other party as well (the inciter or the provocateur). After all, if we demand restraint and self-control from him, then he is the only one to blame for not exercising them. These are two sides of the same coin: the aggressor's guilt removes responsibility from the inciter and the provocateur. As stated, the physical causation is shared by both, but the criminal-halakhic-moral responsibility lies with the offender alone.

The Role of Freedom of Expression in the Equation of Incitement

Our conclusion so far is that incitement does not exempt the person incited from responsibility. But there is still room for the claim that it is nevertheless worthwhile to restrict the inciter in order to prevent the results of the incitement. We have seen that incitement bears contributory blame with respect to the result. It is part of the "physical" cause of it. So if incitement really can kill (as in that infantile slogan on everyone's lips, "words kill"), why not impose responsibility on the inciter even if there is no legal justification for doing so? Why ignore physical causality in legal reasoning? Let us prohibit the inciter from inciting, and the provocateur from engaging in his acts, in order to prevent the grave consequences that may cost human life. Even if there is no causation and responsibility on the legal-criminal plane, why not do so on consequentialist grounds? In essence, this argument seeks to bring physical causation into the normative sphere as well, and to take it into account there (whether legal, halakhic, or moral).

Here, and only here, does the second level of the discussion enter the picture: freedom of expression. A person's freedom of expression (whether the inciter or the provocateur) ought not to be restricted because of concern over the consequences of the actions of the person incited. The actions of the person incited are his own responsibility, and the inciter is exempt despite his causal share in the result. If so, freedom of expression is the reason not to restrict the inciter even though he bears causal responsibility. The argument is that once such a restriction is not a neutral act, but an act that harms values (freedom of expression), one should not take it without substantial value-based justification. Therefore it is wrong to allow consequentialist considerations to serve as justification for prohibiting or restricting incitement and for imposing responsibility on the inciter.

Interim Summary

So far we have seen a two-tiered consideration: on tier A I argued that from a purely legal and moral standpoint, no responsibility should be imposed on the inciter if the person incited is one of sound judgment. True, against this one can raise the consequentialist consideration: incitement takes part in the causal production of the result, and therefore it should be prohibited. Here comes tier B: such a prohibition infringes freedom of expression. Admittedly, freedom of expression is a human and civil right, and with all due respect to rights, important as they may be (and I am not sure that the right to express oneself is one of the more important rights, although the press, as the standard-bearer of this right, naturally gives it pride of place), surely considerations of saving life take precedence over them, do they not? Here we must return to tier A and see that there is no real justification for prohibiting incitement or imposing responsibility on the inciter. Therefore there is no justification for restricting the freedom of expression and rights of one person merely because there is another person who does not act as he should. As long as the offender is a person of sound judgment, the responsibility not to commit a crime rests on him, and if he fails to do so, he should be punished severely rather than restricting the rights and freedom of the other person.

So why is it nevertheless customary to prohibit incitement? It seems to me that this concerns 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 result. As stated, the justification for prohibiting incitement is only the inciter's causal contribution, and when the right to free expression stands opposite it, one reaches the conclusion that if responsibility can be imposed on an inciter at all, it is only when there is a near certainty of a problematic result. In what cases is there such a near certainty?

The first case is when the inciter has unusual authority or influence over the person incited: if he is his rabbi, his teacher, his manager at work, a commander in the army, and the like. In these cases the incitement contains an element of exploiting his bond with the person incited in order to bring about the result. In these cases we are not dealing with the expression of opinions but with motivating action, and therefore there is also less of the consideration of freedom of expression and rights, while the force of causal contribution is greater. In such a case one may perhaps see in the incitement some degree of causation even on the legal level.

Another case is when the incitement is directed at an entire public and not at a single person or a few individuals. Why does that matter? Because if the probability of the causal contribution is, say, one in a thousand, then once I have incited a thousand people it is likely that one of them will in fact act. Incitement directed at a public greatly increases the near certainty of harm, and therefore there is more room to prohibit it. An example may be brought from an article by my student Hanan Ariel, Public Transportation – A Halakhic and Moral Obligation, Tzohar 15. He cites there a case of an officer who came to Rabbi Mordechai Eliyahu and asked him whether he was permitted to turn on a flashlight on the Sabbath in order to unload his soldiers' weapons. According to IDF regulations, weapons may be unloaded at night only by an officer with a lit flashlight. The chance that a mishap (an accidental discharge) would occur in his specific case is utterly negligible, and ordinary considerations of danger to life certainly would not permit Sabbath desecration in such a situation. But because this is an instruction for many people, every small probability has to be multiplied by the number of people who receive the instruction, and therefore there is a near certainty of harm. In such a case one should permit each of the officers to turn on a flashlight on the Sabbath despite the low probability of harm in each specific case. By the same consideration, the force of physical causation in incitement of the public is multiplied by the number of people incited. This still does not change anything regarding the inciter's right (unlike the previous case), but the consideration of near certainty becomes much stronger.

Does Responsibility Diminish for the Person Incited in the Exceptional Cases?

In the exceptional cases I have cited, it is customary to impose responsibility on the inciter (though I am not sure that I myself agree with this, at least in the second case), but it is clear that this does nothing to remove the responsibility of the person incited. The considerations we saw above, that incitement does not remove responsibility from a person of sound judgment who committed a transgression, remain fully in force even in these cases. Thus, for example, when a person incites the many, or incites his subordinate, responsibility can be imposed on him for what happens, but this still does not exempt the person incited from his own responsibility.

Let us take another example. Many attribute responsibility to the government for traffic accidents because it does not fight them (through public education, enforcement, or repairing and improving infrastructure). Again, it is clear that in every case responsibility lies with the driver who drove negligently, and yet because this is responsibility toward a broad public of drivers there is room to impose responsibility on the government. Here, of course, the case differs from incitement or provocation, since this is the government's role, and if it does not do so then responsibility falls upon it because it has failed in its task. This example is not meant to show that the government bears responsibility, but to show that even the responsibility imposed on the government does not remove the responsibility from the driver.

Implications

Above I brought several examples in which one can identify shared responsibility of two agents for an offense. So it is regarding inciter and person incited, and so too regarding a provocateur, or someone perceived as such, and the person who uses violence against him. We saw this with regard to going up to the Temple Mount, sexual provocations, the prayer of the Women of the Wall, pride parades, and the like. In all these cases, even if there is a near certainty and therefore perhaps some room to restrict the victim as well, this certainly does not diminish the responsibility of the attacker.

In all these cases, the most desirable solution is not to prohibit and restrict freedom of expression and action, but to deploy the authorities of law and enforcement in order to protect against the violence and punish severely those who use it. Only when there is no alternative, and when it is likely that these steps are not expected to succeed, is there room to restrict the freedom of the victims, and even then only to the minimal extent possible.

In light of the picture described here, if we return to that Bezalel student (the subject of the previous column), summoning her for police questioning seems to me hysterical to the point of absurdity. There was certainly no near certainty here, and even if there had been, she acted within freedom of expression, and apparently without any criminal intent. In any case, the burden of proof lies on the accusers, not on her. The inversion now taking place is more dangerous than the incitements themselves.

Adjacent Questions: Consequentialist Considerations

We have seen that the starting point should be that one may not restrict freedom of expression even in cases of incitement. Imposing a prohibition on incitement and responsibility on inciters can be justified only in very exceptional cases. In essence, this is the imposition of a prohibition on an otherwise permitted act because of a consequentialist consideration.

There is a whole series of adjacent questions that touch on consequentialist considerations in different contexts. Thus, for example, in Column 21 I dealt with holy lies. The consideration of holy lies says that it is proper to disseminate an erroneous or partial teaching, or to forbid exposure to materials that raise real difficulties and provoke thought, in effect creating a policy of simplistic and tendentious religious education and worship of God, all this in order to prevent people from going astray (that being the problematic result). In the religious world (and here too on the site. See, for example, here and here) there are many for whom such a policy seems self-evident. Personally, I am very skeptical of it, at least as a starting point. Even if we assume that there is a problematic result at stake (and I am not at all sure even of that), truth is still a foundational value, and violating it is justified only if there is a near certainty of significant harm that is worth the deviation from the truth. Consequentialist considerations are always second-order considerations, and they should be employed only when there is a near certainty of consequentialist harm that will be greater than the harm inherent in employing them (the deviation from the truth).

[1] The medieval authorities (Rishonim) were divided on this. See, for example, Tosafot, s.v. 'for he said', Bava Metzia 10b, and much else. The dispute is of course only when the offense is outcome-based, as when a priest sends a non-priest Jew to betroth a divorcee on his behalf (the offense is that the priest is married to a divorcee). If a person incites another to an offense of action, such as eating pork, then it is clear that he does not incur the offense of eating pork (at most the offense of "do not place a stumbling block" ("do not place a stumbling block"), and even that only in certain cases).

[2] On this matter, see my discussion of the issue of a case that begins in negligence and ends under duress (in my book Shtei Agalot (Two Carts), note 32 on p. 525, and also in my book Mada'ei HaHerut (The Science of Freedom), p. 169, Fourth Intermezzo), where I distinguish between legal and physical causality.