Religious Incitement: A Test Case for Freedom of Speech?

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In the following op-ed, which was originally published in the Hebrew Yedioth Ahronoth daily on February 20, 2011, IDI Vice President Yedidia Z. Stern responds to the proposed "Dov Lior Bill" and decries the possibility that members of the clergy—of any religion—be above the law and immune from prosecution for incitement to violence when their religious teachings may encourage criminal behavior.

Background: Knesset members from the National Union, Shas, and United Torah Judaism have recently submitted a bill that would grant rabbis immunity from criminal prosecution or legal proceedings when they publish any kind of essay on Jewish law, endorse any book, or expound any content that is "related to the Torah of Israel," whether orally or in writing.

Known as the "Dov Lior Bill," the proposed legislation was drafted after the police launched an investigation of Rabbi Dov Lior, following his endorsement of the book Torat Hamelech ("The King's Torah"), which contains religious rulings that permit the killing of non-Jews in contemporary Israel. Rabbi Lior refused to report for questioning when summoned by the authorities, and a warrant for his arrest was subsequently issued. The proponents of the bill see it as intended to preserve the freedom of expression of rabbis and to enable them to present the teaching of their religion as they understand it, without any restrictions. 

Should clergy members be above the law when they express religious opinions? Imagine a Muslim imam in a mosque in New York giving a sermon in which he professes support for terrorism and calls for a jihad against Christians because he believes it to be a religious requirement of Islam. Imagine a priest with extremist views appearing on Austrian television and asserting that since the Jews killed Jesus, they should be murdered in a second Holocaust, right here and now. Is the right of religious leaders to freedom of expression absolute? Or should it be restricted in cases in which it is likely that listeners will act on the violent content of the religious sermon, transforming its message into a bloody reality?

Nine Knesset members from three parties have submitted a bill that would grant Jewish religious leaders immunity from legal action in response to any "expression, verbal or written, that is related to the Torah of the Jewish people." In other words: anyone who is a rabbi will be above the law and will not bear criminal or civil responsibility even if he advocates—as in the examples above—support for terrorism or the murder of non-Jews, if, according to his distorted view, those positions are the teachings of the Torah.

Unfortunately, and to our great shame, the examples of support for terrorism and the murder of non-Jews are not hypothetical possibilities. The book Torat Hamelech ("The King's Torah") instructs its readers to act in similar ways. Authored by Rabbis Yitzhak Shapira and Yosef Elitzur, this book asserts that a non-Jew who weakens the Kingdom of Israel-even if only by speech-deserves death. Thus, for example, Israel's Arab Knesset members or the President of the United States are natural candidates for assassination in the name of religion. The authors of the book are not even moved to compassion in the case of a baby or child. They affirm that "there is a tenable position that it is permissible to harm [non-Jewish] children if it is clear that they will grow up to harm us [Jews]; in such a situation, the injury should be directed specifically at them, rather than inflicted as part of a blow directed at adults."

The vast majority of Israeli rabbis, of course, reject the positions presented in this controversial book. However, they have not been flocking to the town square, coming together to sound a loud and bitter cry against this desecration of the name of God, against this contempt of religion, and against this perversion of Jewish tradition. In the absence of firm rabbinic condemnations, and in light of the "endorsements" that the book received from prominent rabbis (which seem to be symbolic, ceremonial endorsements of the book, rather than actual endorsements of its content), the Israeli law enforcement authorities felt a need to find out whether this type of preaching in the name of religion creates a near certainty that a member of the faith community will act in accordance with the book's dangerous recommendations. For this reason, they launched an investigation of both the authors and the rabbis who endorsed the book. Only then did the rabbis flock to the public square, coming together to defend the freedom of expression of the authors and their endorsers. Had the rabbis been smart, they would have come out against the book in the first place; this would have minimized the danger inherent in the book and an investigation would not have been necessary. Had the rabbis been astute, they would have understood that their top responsibility is to protect religion from contempt and to prevent people from trampling it. But instead, they chose to protect the rabbis who refused to report for questioning when summoned as part of the investigation.

The proposed bill, which would grant immunity to rabbis for words of incitement issued in the name of religion, is unacceptable, in principle, because granting authority without accountability ends in lawlessness. Rabbis are not unusual in this respect. Their freedom of expression and freedom of religion must be safeguarded, but this protection must have its limits. When expressing a religious position creates near certainty that someone is going to be harmed, such expression must be limited. That is true for rabbis, professors, and everyone else.

The proposed bill is also ridiculous. In order for it not to be discriminatory, it must provide immunity not only to rabbis but also to all members of the clergy. The leaders of Israel's radical Islamic Movement will revel in being granted full immunity for statements that incite to violence as a gift from Israel's right-wing National Union party. It should also be noted that the bill requires, as a condition for the granting of immunity, that the position voiced is "related to the Torah of the Jewish People." That means that Shas and United Torah Judaism, religious parties whose rabbinic leaders believe that those who turn to Israel's secular courts are "destined to hell," are asking that very same court system to determine whether the content in question is related to "the Torah of the Jewish People."

Israel's rabbis enjoy a great deal of public trust. They serve as authentic leaders to a large cross-section of Israeli society. Precisely for this reason, they must not be above the law. 

Prof. Yedidia Z. Stern is Vice President of the Israel Democracy Institute and Professor of Law at Bar-Ilan University.

A Hebrew version of this article was published in the Yedioth Ahronoth daily newspaper on February 20, 2011.