The firebombing in Duma was a revenge attack.

Photographer: Jaafar Ashtiyeh/AFP/Getty Images

Prosecuting Hate Speech Isn't Easy

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In the U.S., we tend to say that the cure for hate speech is more speech: If you don’t like what Donald Trump has to say about Muslims, speak out, or vote against him. Other democracies do it differently, and many make it a crime to incite racism and violence. This approach sometimes seems appealing -- but it’s also difficult to apply, as the Israeli Supreme Court showed this week when it declined to order the prosecution of the authors of a Jewish law book that arguably constitutes religious hate speech.

The case, so far only available in Hebrew, is politically important because it involves a book, “The Law of the King” (“Torat ha-Melekh”), that seems to have inspired the attack in July in the Palestinian village of Duma that killed three members of the Dawabsheh family. But it’s more broadly significant as an example of the challenges of legally regulating speech that is morally repugnant and potentially dangerous.

The posture of the case before the Israeli court was different from any case facing American justices. It’s not just that Israeli law criminalizes incitement to racism and incitement to violence. Under Israeli law, if the attorney general decides not to bring a prosecution, the court can review that decision and direct the prosecution to go forward if the decision was “irrational in the extreme.” That can’t happen under the U.S. Constitution, which places the decision to prosecute solely under the auspices of the executive branch.

I described “The Law of the King” at length in a previous article on Jewish messianic violence in Israel. The work justifies differential treatment of Jews and non-Jews when it comes to acts of killing in wartime, and makes the argument that it’s justifiable to kill the enemy’s innocent children as a matter of revenge.

After the book was published in 2009, its authors were called in for questioning by the police. They exercised their right to remain silent throughout their brief questioning sessions. They did, however, write a letter to their lawyers in which they explained that their work was a “theoretical” exposition of Jewish law that didn’t amount to the specification of practical legal guidance. Responding to the charge of racism, the authors said the work never specifically refers to Arabs -- instead it speaks of non-Jews living enmeshed in wartime conditions with Jews.

The attorney general decided not to bring charges, reasoning that there was insufficient evidence to convict on incitement to violence or racism.

A split panel of the Israeli Supreme Court upheld the attorney general's decision, 2-1. In theory, the court’s panels are chosen at random, but often, it seems, cases end up with the most directly relevant justices being involved. That was so here. The majority opinion was written by Justice Elyakim Rubinstein, himself a former attorney general who identifies with the strand of Israeli Judaism known as “national religious,” meaning that its members follow Orthodox Jewish law while simultaneously expressing a commitment to Zionism and the State of Israel. Rubinstein has the training to understand the Talmudic reasoning of the book and the sociological perspective to understand the more radically nationalist and more radically religious milieu from which the book's authors come.

Rubinstein’s decision is a remarkable document, part legal opinion and part scholarly engagement with the most extreme arguments of the book. I can't think of another supreme court opinion from any country that spends several pages on the inner spiritual struggles of a 17th century thinker like Rabbi Judah Loew of Prague, a figure cited by the book’s authors for one of their more shocking positions.

Justice Rubinstein depicted his decision in starkly personal terms. Expressing an internal spiritual struggle of his own, he wrote that his head and his heart were at odds, and that “every fiber in me rebels against the views and imaginings of the authors.”

He went out of his way to repudiate the content of the book, which he said was “wearing Jewish garb but is in truth anti-Jewish in that it puts Judaism in a bad light.”

But after comparing the case to an earlier precedent in which the court upheld the conviction of Rabbi Ido Elba for incitement to racism, Rubinstein concluded that there was insufficient evidence of specific incitement to overturn the attorney general's decision.

Rubinstein also pointed to the interest in free speech at issue in the case. To my surprise, he quoted a passage in my Bloomberg View essay in which, discussing the possibility of criminal prosecution of the authors, I said that “the line between inciting violence and endorsing it abstractly is razor-thin,” and noted that prosecution might even be counterproductive. Rubinstein added that the perpetrators of revenge violence against Palestinians, “whose ideological teacher might be ‘The Law of the King’ and all that stands behind it, will be judged for their crimes as is appropriate for them.”

The dissent, by Justice Salim Joubran, the only Israeli Arab on the court, was also noteworthy and important. Joubran is a careful and cautious judge, and for him to take a stand in this case was an indication of his serious concerns about the rise of racism on the Israeli right.

Joubran wanted the attorney general to reopen the investigation. He argued that legal standard for prosecutions for incitement to racism is too high and should be lowered. Too exacting a standard, he argued, was liable to render the crime a “dead letter in the Israeli law books.”

In particular, Joubran criticized the notion that incitement to violence should only be a crime if it in fact leads to imminent acts of hate. In his view, hate speech inherently degrades the moral values of the society.

Joubran pointed out, accurately, that in context and through specific examples, the book is clearly directed at Palestinians, rather than non-Jews in general, as Rubinstein maintained.

In a show of erudition, Joubran, who has studied Jewish law seriously, convincingly challenged Rubinstein’s conclusion that the book’s authors think that Israel isn’t at war with all Palestinians and that the book’s teachings apply only to soldiers, not private individuals.

Joubran’s unique role as an Arab on the high court of the Jewish state makes him the court’s conscience when it comes to Palestinian interests. Rubinstein and the majority were almost certainly correct in this instance. But Joubran’s message shouldn’t be ignored by Israeli prosecutors. If Israel wants to remain a liberal democracy, it may have to change where it draws the line protecting non-Jews from illiberal racism and violence.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net