Free Speech and its Limitations
Even free speech absolutists will not deny that unfettered speech can be lethal. Using no tool other than words, it is possible to poison the minds of impressionable young (usually) men, and turn them into killing machines.
The four suicide bombers who blew themselves up in London on July 7 are a case in point. While we will never know all the words to which they were exposed in the last months of their lives, it is clear that they underwent very dramatic transformations over a relatively short period of time. Typical cricket-playing, soccer-following British lads of Pakistani descent became Islamist fanatics bent on killing as many of the kufars (deniers) as possible.
Such cases have been almost entirely the province of Islamists in recent years, but not completely. Eden Natan-Zada, the 19-year-old AWOL Israeli soldier who killed four Israeli Arabs earlier this month also underwent a similarly rapid transformation after drawing close to a cell associated with the banned Kach movement in the West Bank settlement of Tapuach.
The question now facing all Western countries is: Can the poisoning of the minds be prevented without placing intolerable restrictions on freedom of speech? Let us sharpen the question. Remember that those doing the poisoning are rarely involved in the planning of specific crimes. They do not often issue clear suggestions like, “Go blow yourself up on the Waterloo line.” If they did, they would be subject to prosecution as participants in a criminal conspiracy, even though their participation was limited to words and even though no crime was ultimately committed.
Only rarely will a particular statement of the mind-poisoners rise to the level of crying “Fire” in a crowded theater. In other words, it is usually impossible to foresee in advance particular statements leading to specific actions. Does that, then, place those statements beyond the reach of the law if freedom of speech is to be valued?
The question is most easily answered with respect to those who do not hold citizenship, and are resident only by the grace of the sovereign. British Prime Minister Tony Blair rightly decided that the first response to the 7/7 London terrorist attacks would focus on curtailing Britain’s hitherto suicidal policy of admitting all and sundry jihadists from around the globe and letting them preach whatever they wished. The second step was to get rid of those asylum-seekers and even naturalized citizens already in Britain, whose presence could only spell trouble, though precisely when, where, and how would be hard to know in advance. Other European countries, including France and Italy, also chucked out a number of Islamist preachers.
The late Dayan Yechezkel Abramsky, zt”l, provided the intellectual basis for this differentiation between citizens and non-citizens, in an entirely different context. He was once asked by an English judge how Judaism could refuse to accept as converts all those who refuse to take on the mitzvos when so many of those born Jewish do not observe mitzvos. Dayan Abramsky replied by asking the judge whether England did not number among its citizenry a multitude of pickpockets and other sorts of larcenists, grand and small. Assured that that was indeed the case, Dayan Abramsky asked whether Britain would nevertheless grant citizenship to known criminals. Of course not, the judge replied. Dayan Abramsky needed say no more.
For too long, however, Britain and other European countries have doing just that – granting easy entry and handsome welfare stipends to those who take advantage of their host country’s hospitality to seek its destruction.
The day after 7/7, Dr. Hani al-Sibai proclaimed the attacks a great victory for Al Qaeda, which had “rubbed the noses of the world’s eight most powerful countries in the mud.” Needless to say, the Egyptian-born scholar broadcast those views on Al Jazeera from his office in London. Syrian-born Omar Bakri Mohammed continued to live happily on the British dole – 19 years all total — even after publicly promising Britain a 9/11 day after day. (He has now been told not to bother returning to England from a visit to Lebanon.) And Abu Hamza al-Masri was granted British citizenship even as the Finsbury Park mosque produced under his tutelage such illustrious devotees as shoe-bomber Richard Reid, the 20th member of the 9/11 team, Zacarias Moussaoui, and the two suicide bombers who blew themselves up at Mike’s Place in Tel Aviv in 2003.
The recently announced British policy to ban from entry and to deport those who “foment, justify or glorify terrorist violence,” is just the first step towards rational self-defense, especially if combined with close surveillance of what is being preached in Moslem mosques and disseminated in Islamist bookstores and on their websites.
But preventing entry and deporting jihadist imans is not enough. The poison is already being spread by native-born British citizens. The Times of London recently infiltrated a Moslem reporter into the Saviour Sect headed by Omar Bakri Mohammed, whose professed goals include “flying the Islamic flag over 10 Downing Street.”
Mohammed’s taped bon mots included referring to the 7/7 suicide bombers as the “fabulous four” and telling his followers that immediately after 7/7 he “was very happy.” Other preachers in the group told those listening that it was the duty of Moslems “to instill terror into the hearts of the kuffar.” One was quoted saying, “I’m a terrorist. As a Muslim, of course, I am a terrorist. Mohammed was the prophet of slaughter, not peace.”
The statements quoted certainly glorify violence and terror. On the other hand, they do not explicitly advocate a particular crime. Nor can it be said with assurance that they will lead to any specific acts of terror. Can such statements nevertheless be criminalized, as opposed to serving as grounds to deny residence to foreign nationals?
In a previous essay published in HaModia, I ridiculed the prosecution for incitement of the anonymous nobody who told Israel Radio after the Rabin assassination that he was happy about it. Yet didn’t that statement also glorify violence? What, if anything, distinguishes Omar Bakri’s “happiness?”
First, Prime Minister Rabin was the specific target of Yigal Amir. Once killed, he could not be killed again. So the statement to Israel Radio had no implications for the future. By contrast, any victims would have served the purposes of the 7/7 London suicide bombers, and so rejoicing about those already killed was also a celebration of future killings as well. Second, there was no reason why any listener to Radio Israel should be influenced by the opinion of a previously unheard of man in the street sounding off to a reporter. But Omar Bakri is an authority figure to those who attend Saviour Sect meetings. They come to hear his opinions. In many cases, there is a personal relationship between Bakri and his followers. All these factors make it far more likely that his glorification of terrorism and violence will be heeded and acted upon.
In the end, there is no getting around a careful, commonsensical weighing of the context of particular statements to judge the likelihood of their being heeded and the magnitude of the potential damage if they are. If, for instance, a Torah Jew were to point out that the Torah penalty for a wide variety of actions – e.g., deliberate chilul Shabbos – is death, would that be tantamount to advocating killing Shabbos violators?
Obviously not. Both the speaker and anyone remotely likely to be influenced by him are well aware that no procedures exist today for the imposition of the death penalty according to the Torah, and that even when the Great Sanhedrin still sat in Jerusalem imposition of the death penalty was subject to such procedural requirements that is was rarely, if ever, executed. The proof lies in the fact that no one can recall a single instance of a Torah Jew killing another Jew for offenses subject to a judicial death penalty.
Statements by Islamist imans describing the duty of every Muslim to instill terror in non-believers are not purely theoretical, since acts of terrorism are individual, not judicially imposed. Recent history proves all too well that the constant repetition of such statements has influenced others to kill large numbers of their fellow human beings.
Shouting “Fire” in a crowded theater only describes the clearest case for banning certain words because of their likelihood of causing immediate threats to life and limb. Given, however, the proliferation of would-be terrorists today and the proven willingness of many to act upon calls for mass mayhem, we have to do with something less than that degree of crystal-clarity if democracy is not to become a suicide pact.
 Following this analysis, the description of someone as a rodef by a rabbinical authority might, in fact, constitute incitement in certain circumstances, since the duty to stop a rodef falls on individuals not a beis din. Though the halachic authority might have been speaking only metaphorically, and would have been understood to be doing so by most listeners, here is a case where the injunction, “Chachamim, be careful with your words,” would certainly apply.
This article originally appeared in HaModia, Sept. 1.