Not from the Philadelphia I Know

by Rabbi Michael J. Broyde

[Editor’s Note: I did sign the Declaration. My expectations were a good deal less ambitious, so I was more inclined to look away from any flaws or overreach. The Declaration seemed to me to be a statement of support for those who have maintained a sense of decency and perspective. Americans ought to hear that such people still exist. Still, there is no question that Rabbi Broyde raises some very important issues for us as Jews. His piece ought to stimulate fruitful discussion]

It is beyond question that the tone and tenor of public discourse has gotten ugly. Swift, strident criticism has supplanted civil disagreement. Social media platforms (Facebook, Twitter, etc.) have magnified the impact of those shouting down their opponents. Today’s “cancel culture” has pushed aside not just bad actors but even those who espouse unpopular ideas—including pro-Israel journalists and campus advocates. To many observers, the trend is alarming.

With some fanfare, a group of academics, public intellectuals and faith leaders recently released the Philadelphia Statement on Civil Discourse and the Strengthening of Liberal Democracy (“Philadelphia Statement”) and are encouraging the public to add their names online (more than ten thousand at the time of this writing). As appealing as this document seems at first blush, I believe it is deeply flawed both substantively and as a matter of policy. Accordingly, it would be unwise for members of the American Jewish community to sign it.

The Philadelphia Statement is wrong for three reasons.

First, it is historically and legally wrong. The statement’s core claim, that “[a] society that lacks comity and allows people to be shamed or intimidated into self-censorship of their ideas and considered judgments will not survive for long,” has never really been true. We as a society have always imposed — through shaming, intimidation and even legal sanction — limitations on what ideas civilized people may comfortably advocate in public, and we as a society have prospered with these limitations. Whether it is support for Germany in World War II, or support for Trofim Lysenko’s pseudoscientific theory of evolution, society often circumscribes the range of ideas that can be advanced in public by respectable people. Even when free speech rights attach (quite expansively in America; narrower in every other Western nation, including Israel), social restrictions have always been more exacting.

Second, it is wrong because it does not carve out a place for private property. The Philadelphia Statement does not recognize the fundamental distinction between public and private forums. The right to not allow some ideas — even reasonable ideas that many people espouse — in my private space is central to ordered liberty. My house is my castle, and I have the right to exclude discourse I disfavor from taking place in my living room. A synagogue need not let every voice be heard in its pews, and neither must a corporation. (Maybe neither should Facebook, itself a private company.) People ought to remain free to decide which legally permitted ideas they want their children or family or community or customers to encounter. Public discourse frequently takes place in private space and nearly always may be curtailed by the owner of that space.[1]

Third, it confuses morality and law. Of course, the Philadelphia Statement nods to legal limits on speech by noting, “our free speech tradition is not absolutist. It does not embrace certain, limited categories of speech, such as defamation, obscenity, intimidation and threats, and incitement to violence.” But it goes on to assert that “hate speech” ought not to be restricted – legally or morally – since “we must favor openness, to allow ideas and beliefs the chance to be assessed on their own merits.” This cannot be correct. Even when “hate speech” is legally protected (it certainly is sometimes, but not always), it is important to be able to condemn such abhorrent expression as odious and evil. Anyone who promotes speech that delegitimizes another person or group should be morally condemned even as their rights are legally defended.

Let me give an example: I have little doubt that the statement “the world would be a better place if the South had won the American Civil War and slavery as an institution had continued” is protected right now as “Free Speech” under the First Amendment. But it is morally gross, ethically repugnant and worthy of condemnation, rather than being defended in the name of “openness.” Ideas can be legally protected yet their advocates shamed and condemned morally. It may well be that the promulgators of the Philadelphia Statement do not really mean there should no moral criticism of anyone’s position; rather, they wish to convey that the open expression of ideas is a very important social value, is currently under threat, and merits greater protection. But perhaps because the statement is designed to oppose the vocal protestations dominating contemporary discourse (and aside from the inherent shortcomings of a document drafted by committee) its sweeping assertions are not expressly counterbalanced by the possibility of harsh condemnation of immoral ideas. Thus the reader does not sense any limits to the free exchange of ideas other than the law. Most of us do not want to live in a society where no ideas are outside the pale and there is no moral odiousness to any discourse. This nuance is lacking from the Philadelphia Statement.

This statement is also bad Jewish public policy for two reasons. First, we in the Jewish community know all too well that unrestrained discourse sometimes leads to public anti-Semitism. One of the great triumphs in America in the last 60+ years has been the Jewish community’s ability to make anti-Semitism socially unacceptable even when it is legally protected. The Philadelphia Statement moves in the wrong direction and would allow all sorts of demons out into the public sphere. What we as a Jewish community need is not more openness to every vile idea nor a policy welcoming such conversations. As a historically persecuted minority community, we need to be exceeding wary of opening the public forum to anyone, “since all ideas are worth listening to.” As is widely noted, Hitler won his first election fairly. Unvarnished public discourse is not always helpful to the Jewish community. Limitations – both legal and social – are valuable to us as a community.

Secondly, on a Jewish theological level it is important to recognize that our community’s drive to promote and proudly live by Jewish values in the deeper meaning of that term has never meant that we ought to freely seek to graft vibrant Jewish values onto secular society. Torah values are not designed for a secular society unmoored from the Jewish people. Even core values in the Jewish tradition, like whether euthanasia is murder, do not readily translate into public policy in any direct way. It is, in short, important to recognize that one cannot analyze a statement like this from a Jewish value view and decide based on that calculus whether to sign it.[2] Our secular politics should follow neither our theology nor our law in a direct way and sense, but instead should follow our sense of what is best for our community as a whole.

I am somewhat sympathetic to the issues raised by the Philadelphia Statement and the critique of cancel culture. The social media phenomenon raises important and complex problems with various types of “bad” speech and the harms they can cause. But “hate speech” and misinformation or deceptive speech (a la Q-Anon) are different types of problems.  Maybe more public regulation of social media overall might be needed to prevent election manipulation. Speech on college campuses is yet a different problem.  I have deep concerns that the majority of stakeholders on many campuses are skewed toward a particular political and cultural agenda to the extent that universities are not doing a sufficiently good job of protecting students’ ability to comfortably express unpopular viewpoints.  The concerns abound but no nuance is found in this statement.

The current situation is far from perfect and needs fixing. I suspect that the solution involves moving the guardrails to different points from where they are now, narrower in some areas and wider in others. (I, for one, would prefer more regulation of hate speech, and I see value in the European and Israeli model regulating such speech.) This expansion and contraction ought to take place both in law and in culture. Real discourse on when and where we ought to be more open and when and where we need to be less open requires a political environment of compromise and consensus, something we are sorely lacking now. That might very well be the real problem.

Of course, none of this addresses the difficult question of what should be the Torah values in a situation like this, if we had a society that did adhere – or wished to adhere — to Jewish Law. At least five questions would need to be well addressed to well ponder this idea. First, how would we view people who have egregious flaws, but who nonetheless made valuable contributions? Second, how much heretical ideas and ideals (or even ‘considered heretical’) should a Jewish society allow to be in the marketplace of ideas? Third, what is the role of coercive religious authority in such an idealized Jewish society? Fourth, how are religious authorities selected in such an idealized society? Finally, is this only a theory question for a messianic society or is their something here of value in a pre-messianic Jewish community. These questions, if well answered, allow us to ponder these questions in our own community, but do little to validate or invalidate the Philadelphia Statement.


The Philadelphia Statement as drafted is too vague to be useful and too sweeping to be logically sound. Furthermore, it is lacking any concrete proposals. Without nuance, complexity and care, the medicine it proposes — unbridled support of open discourse with only First Amendment limitations on speech even in private settings — is likely to make a bad situation worse.

  1. The jurisprudence of federal and state free speech rights on private property is beyond the scope of this piece; see, e.g., Marsh v. Alabama, 326 U.S. 501 (1946), Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).

  2. For more on this general point, see my article Jewish Law and American Public Policy: A Principled Jewish View and Some Practical Jewish Observations in Formulating Responses in an Egalitarian Age: Proceedings of the 13th Orthodox Forum of Yeshiva University, Marc D. Stern, ed., from Formulating Responses in an Egalitarian Age: Proceedings of the 13th Orthodox Forum of Yeshiva University, (2001), Lanham, Md.: Rowman & Littlefield (2005), 109–29. For the specific example of euthanasia see Iggrot Moshe YD 2:174, CM 2:73(3) and CM 2:74, where – in each of these teshuvot – Rabbi Feinstein speculates that euthanasia is not prohibited for Gentiles and yet is certain it is murder for Jews.

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24 Responses

  1. Steve Brizel says:

    R Dr Broyde Aside from my reservations about your overly nuanced and restricted view of freedom of speech what is your perspective on the idea that all speech and ideas except that which is a clear and present danger public order should be determined by the marketplace of discussion?

  2. Steve Brizel says:

    Let’s be more specific:

    1) can one teach history according to the views of most historians or in accordance with the views of Zinn
    2) are some civil libertaries to be limited in order to protect other goals of a society as per Marcuse or protected as constitutionally protected
    3)Anti Semitism went underground as a result of the Holocaust It has now emerged as s key element of the intersectional left which far too many communal affairs professionals and agencies refuse to acknowledge its impact in academia culture and politics
    4) one can argue very clearly that most of the pre Civil War South did not own slaves .,that the true foundings of the US were in 1620 at Plymouth Rock and in 1776 not 1619 and that the US is not systemically racist but rather has made great strides in alleviating racism Yet the legitimacy of that statement is rejected academia politics and culture where we see instead a total breakdown of law and order suppression of the right to think on ones own politicizing science mathematics and culture and a continued lack of appreciation for those who fought dnd died to make this country and world a better place for all
    5)I think that the Israeli definition of incitement is a pretext at suppressing and discriminating against valid opposing political perspectives especially that of the RZ and Charedi sectors
    6) Halacha dictates first and foremost how we as Am Yisrael should act R Daniel Feldman has written a superb book on Halacha and social media That bring said it is clear that social media today is a lynch mob that advocates one view and seeks to suppress all others

    That being said the Philadelphia Statement which I signed is not perfect but it’s an excellent beginning for a call against cancel culture and its consequences in academia culture and politics

  3. Bob Miller says:

    The statement seems to be symbolic pushback against the aggressive leftist anti-knowledge offensive. It doesn’t have any legal force. The offenders doing this offensive won’t care a bit about the statement. But, now and then, the truly virtuous should send out a signal to balance off all the destructive nonsense floating around.

  4. Dovid Kasten says:

    Thank you Rabbi Broyde! Beautifully written article. Crystal clear, to the point, and without added “fluff”.
    While many Orthodox, but not-(yet-)Torah Jews, push the American “rights” as the truth and as symbols of morality, we know that this is not entirely so. As you write, fully actualizing our American rights, but within the Torah framework, is in reality, the only right way.

    • Bob Miller says:

      Where do you draw the line between your two groups of Jews? Keep in mind that we Jews need to preserve our own freedom of thought and action, and communal autonomy, in an increasingly hostile diaspora environment. We can’t legislate for everybody else, but we can try to get them off our back. Many otherwise sympathetic, politically conservative non-Jews hold the overwhelming American Jewish support of leftist overreach against us.

  5. A reply to one post:
    Steve Brizel asked “Aside from my reservations about your overly nuanced and restricted view of freedom of speech what is your perspective on the idea that all speech and ideas except that which is a clear and present danger public order should be determined by the marketplace of discussion?”
    I am not sure what is the exact balance and I am sure it evolves over time, depending on the situation. But I think “clear and present danger to public order” is not enough of a test for entry into the “open discussion” and the “marketplace of discussion”. Some ideas are repugnant and deserve to be shouted at, and shut down when the owners of private property feel that these ideas are unworthy of voicing. These ideas should not be treated respectfully. “Hitler did not complete the task of killing all the Jews and the world would be a better place if he had” is certainly “protected speech” as a matter of First Amendment law – look the Nazi’s can march in America and since this statement does not call for violence is not a clear and present danger under American law. But I do not want these ideas as part of the marketplace of discussion that reasonable people discuss openly and with respect. I want the owners of private property – who are not governed by the First Amendment at all — to force such conversations out of their property and onto a public street.

    • Steve Brizel says:

      R Broyde shows IMO what is an unfortunate defense of sppech codes or RL worse as follows:
      “Some ideas are repugnant and deserve to be shouted at, and shut down when the owners of private property feel that these ideas are unworthy of voicing. These ideas should not be treated respectfully”
      Who determines which ideas are “unworthy of voicing” and which “ideas are “unworthy of voicing”. So far, the evidence on the ground is that only conservative ideas are subjected or in danger of being subjected to such would be classifications with no let up in sight. Noone who has seen the targets of the pillaging and riots all over the US which have included none less than the King James Bible should think that teaching large portions of the Torah or TSBP will not RL be subjected to such classification by the Jacobins of today’s left and we should fight as strongly to prevent the same anywhere and everywhere possible .by whatever legal, cultural and communal means as possible. I strongly suspect that since R and C are strongly committed to SJ as their definition of Judaism and being SJWs that RL more than a few of their teens and college age students who have never seen a real Shabbos or opened any real Jewish text are unfortunately sympathetic to and participating in the riots this summer

  6. YEA says:

    I have head the argument that the Nazi party could have been kept at bay if only there had been hate speech laws in Germany before they came to power. The problem is that there *were* strict hate speech laws prohibiting hate speech against Jews in the Weimar Republic in the years before Hilter came to power, and the Nazi party was found guilty of violating those laws on numerous occasions.
    Is Rabbi Broyde arguing that hate speech laws are good for the Jews? There seems to be some pretty strong historical precedent for the idea that hate speech laws don’t do the Jews any good and perhaps even do harm.

    “In fact, there was there were hate speech
    laws in the Weimar Republic,
    which is Germany where Hitler rose to
    power, and the hate speech laws were very
    similar to the ones that exist in
    Germany and other countries today. They
    were very strictly enforced. Nazis were
    prosecuted and convicted repeatedly. And
    guess what? They loved it.
    It was a huge propaganda opportunity for
    them. They gained attention and support
    that they otherwise never would have had.” — Nadine Strossen, president of the ACLU from February 1991 to October 2008

  7. I would like to add a comment about Rabbi Adlerstein’s opening note which says “The Declaration seemed to me to be a statement of support for those who have maintained a sense of decency and perspective. Americans ought to hear that such people still exist.” I completely agree with the idea that we should support decency and perspective. I simply do not think that calls for openness to every idea – decent, or indecent, in every forum, public or private – is what has made America decent. What I sense has made America the unique and descent place it is derives from two somewhat competing values. The first is much less governmental interference in the public marketplace of ideas and ideals including religious ideas and ideals. The second is much less governmental interference in the rights of private individuals to only validate the ideas and ideals that they agree with. The interplay of these two freedoms has always driven America and made it the unique and decent place it is. I did not see this balance in this statement at all.

  8. dr. bill says:

    The danger to public discourse that has recently accelerated is far greater than even needed refinements to imprecisely worded statements.

    1. Yes, societies have often impugned truly objectionable discourse, and should. Does that have a precise definition? Like pornography, you know it when you see it. Opposing either BDS or the name change to Harvard’s Semitics museum are not examples of repugnant speech. To the contrary, Harvard’s motivation to change the name deserves reflection and scorn.
    2. The need to carve out a private place exemption is both unnecessary and itself complex. We all recognize that private institutions are private and as such deserve more latitude in what can be expressed in the confines of their own space. Again, the precise, but clearly extended boundary, with an increased level of latitude is perhaps even more difficult to delineate.
    3. Ah yes morally. Certainly, there may be legal occurrences that are morally repugnant. But who gets to decide?

    We have reached a crisis stage, at least in my view. To refine a statement of opposition is an admirable but not necessarily obtainable goal. Choosing between the Philadelphia Statement and current goings-on particularly on college campuses is not that hard. In real life, roughly right is a good alternative to wholly objectionable.

    As a famous surgeon said concerning surgery alternatives for a close relative – We should never let the perfect be an enemy of the good.

    • Bob Miller says:

      People who object to statements like this in principle, but won’t admit to that, divert us to side issues.

      • dr. bill says:

        I do not have sufficient knowledge about Prof. Broyde to even engage in such speculation, in any case, it is not productive.

        Having worked for 25 years in corporate America and have been a consultant primarily focused on investment banking and technology executives, I have learned the wisdom of the last phrase I quoted from a famous surgeon. When faced with an ugly situation a good way out ought not to be abandoned waiting for perfection.

    • Steven Brizel says:

      Dr. Bill we agree ! The threat to free minds and public discourse should unite anyone who thinks about such issues despite their disagreements on particular issues

    • Yossi says:

      Well said, as usual.

  9. I want to respond to Dr. Bill’s comments. I very strongly object to his statement 2 “The need to carve out a private place exemption is both unnecessary and itself complex.” I do not agree with that at all. The absence of the distinction is central and deeply problematic. Your and my right to exclude even reasonable ideas from our private property [like my home or my synagogue or my Yeshiva] is central to the personal freedom that we all have. Most of us do not want to live in a place where robust free speech applies even in private locations. This idea is neither unnecessary nor complex, but is central.
    Of course, the problem is that we have lots of legally private locations which function as somewhat public places, and this is part of the balance discussed above.

    • Bob Miller says:

      In our Jewish schools (for example), we choose to limit speech and discussion in line with Torah thought and the institutions’ own particular outlooks. Our ability to apply our own limits there, as opposed to outsiders’ limits, and express our own ideas, is under threat. When powerful outsiders apply enormous pressure on us as communities, institutions, and individuals to sell our souls to socialism and moral madness, do we sit there and take it? Don’t we publicly make common cause with others in the same boat? I’m sure all members of such a defensive coalition have their own special takes on these issues, so not every nuance in a joint statement can conform to all opinions. There’s still enough common ground to make it worthwhile.

    • dr. bill says:

      Interesting that you picked 2), where we partially agree. My next sentence said private institutions (not homes) where another unclear boundary exists. many/most private institutions operate in the public domain as well. the issues the non-RIETS affiliated part of YU, a private institution in normal discourse, faces illustrate the complexity.

      • Mycroft says:

        Agreed. Especially where you point out that private institutions that operate in the public domain and I would add especially those private institutions that receive government funding

      • Steve Brizel says:

        I am opposed to any legislative enactment or case law decision that would place limitations on speech by engage by in a meaningless attempt to define public and private speech based on the locale of the speech and retrospectively determing and defining the locale and purported intent of the speech in question That is a classical instance of a prior restraint on freedom of speech which traditionally requires a very heavy legal burden of proof to be sustained Speech codes are IMO the first step to tryranny

    • Steve Brizel says:

      R D Broyde wrote in relevant part:
      “Your and my right to exclude even reasonable ideas from our private property [like my home or my synagogue or my Yeshiva] is central to the personal freedom that we all have. Most of us do not want to live in a place where robust free speech applies even in private locations…Of course, the problem is that we have lots of legally private locations which function as somewhat public places, and this is part of the balance discussed above.”

      I would think any hope that some sort kind of statutory definition or judicially created such definition of a “legally private locations which function as somewhat public places,: should be viewed with anathema and constitutionally suspect who believes in freedom of speech and free exercise of religion.

  10. Raymond says:

    The problem with the notion of Hate Speech is that it can and has led to one side of the political aisle (in this case, the Radical Left) calling anything they disagree with to be Hate Speech. I experienced that personally just a day or two ago when a Leftist who claimed to be against censorship, called my preference for Capitalism over Socialism to be Hate Speech. She felt very offended by it and ended what i had thought was a friendly conversation. I was once fired from a job that ironically claimed to be against fascism, when I pointed out to somebody in response to his open celebration of male homosexuality, that the Torah opposes such behavior. They accused me and the source I quoted, to be fascist, and got rid of me.

    Even the notion of not allowing lies to be printed, can be a problem. These days, the social media constantly censors anybody who promotes even the possibility that hydroxychloroquine can and has saved countless lives. Also being censored is even the possibility that George Floyd may have died not from asphyxiation, but rather from an overdose of mind-altering drugs. Surely part of being an open and free society is the free exchange of ideas.

    The one place where I do think that speech should be curtailed, is when it stops others from expressing their right to free speech. I am thinking here of college campuses, where any speaker who comes there to express politically conservative views, are shouted down by angry mobs, or not allowed on college campuses altogether. I suppose when one has no good arguments to make, one can always resort to censorship.

    I realize of course that there are dangers to unlimited free speech, but I would rather err on the side of personal freedom than on oppression and censorship. I want America to stay America, not become the latest version of the old Soviet Union.

  11. I wish to respond here to Mycroft’s comment “Especially where you point out that private institutions that operate in the public domain and I would add especially those private institutions that receive government funding” which I do not agree with. Even private institutions that receive government funding — like almost every Jewish school (and even some synagogues, during the pandemic) are entitled to not allow certain ideas into their institutions. The proposal by Mycroft — that any institution that receives any government money — has to be fully open like a public institution — would be the death of every Jewish school.

    The absence of “private property” as a category in the statement really is very problematic.

  12. Michael Broyde says:

    Let me give you a concrete example to think about. Please read this link and tell me whether you think the bartenders conduct — throwing out Nazis from his punk bar when they are disturbing no one and just want a beet — is supported or condemned by the Philadelphia Statement.

  13. Steve Brizel says:

    I wrote the following e-mail to the author of the following linked piece who is a dear and old friend whose views and knowledge of what works in Kiruv especially in NCSY are essential for anyone interested not just in how NCSY developed in the 1960s but also how NCSY functions today( and its mission remains crucially important mission today as we see the results of a totally radicalized and secularized public school system which indoctrinates the next generation in hating America, anything associated with the traditional family and Israel and engaged in riots across America ) and whose Chesed and Hachnosas Orchim together with his Eshes Chayil have always set a high mark not just for NCSYers but for the Torah observant world in general. We agree to disagree on politics, including many of the contentions and arguments set forth therein but we have always been there for each others’ simchas and smachos.

    Far too many of us regardless of our views on politics have to learn the difference between Kasha and Teiku which always imply a possible solution exists and Tiyuvta which means that an argument is completely rejected .

    In that spirit as well of my view that freedom of speech should be robust and open as opposed to subject to curtailment for snowflakes etc we should be able to read all views and accept or reject in part and in while any views without denigrating the messenger On the other hand freedom of speech is not an immunity from a measured critique

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