A bill that would expand Israel’s anti-racism statutes to include incitement against the haredim (ultra-Orthodox) was approved last week by the Ministerial Committee for Legislation, and will likely become law. The proposed legislation is bad in every way. It is bad for freedom of speech. It is bad for the right to engage in substantive debate. It is bad for the ultra-Orthodox themselves.
The culture of silencing, which has many unfortunate implications, including for protests against the government, will, if this goes ahead, be enshrined in legislation. And as experience shows, the result may prove far worse than acrimonious public debate.
An increasing amount of criticism against the ultra-Orthodox community
In recent years, and even more distinctly in the past few weeks, a barrage of criticism has been directed at haredi social and political conduct. Criticism of the ultra-Orthodox is nothing new, and the special status they enjoy with regard to the military draft and other issues has been met with harsh rebuke by the broader Israeli public.
But it seems that the haredi community’s demographic growth, along with the behavior of many of its members during the corona crisis, has sharpened the criticism. This intensified even further with the haredi support for the judicial overhaul initiative and the community’s recent budgetary demands, amounting to billions of shekels which reinforce the community’s insularity, rather than encouraging its integration into Israeli society.
Given the circumstances, haredi distress is understandable. Many haredim feel that they are being judged harshly, giving way to hatred in some cases – a situation which they find uncomfortable, to say the least. Because of this, three United Torah Judaism Knesset members sponsored a bill that would include incitement against the haredi public in the Israeli penal code under “incitement to racism.”
The bill’s explanatory notes state that we are “witnessing a phenomenon… of racist incitement against the Haredi population. The incitement is (also) being perpetrated by public officials.” In other words, say the leaders of the ultra-Orthodox sector, the admonishment against us is too brutal. Even public figures are denouncing us, for goodness’ sake; so let’s have the law stipulate that such tough criticism is a criminal offense.
This is a particularly bad idea for several reasons. The offense of “incitement to racism” is too vague, and its enforcement policy is less than clear. Despite several Supreme Court rulings – including the ruling upholding the conviction of Rabbi Elba for incitement to racism based on his article, “Examination of the Rules Concerning the Murder of non-Jews,” – the scope of the offense and how it should be legally interpreted is too ambiguous. However, the fact that there are few examples of the attorney-general bringing charges for incitement diminishes the risk associated with the proposed legislation.
Nevertheless, the risk does still exist. Due to the anti-incitement statute’s ambiguity, it is hard to anticipate when the line would be crossed between legitimate criticism and incitement against the haredi public. Thus, the very fact of defining criticism of haredim as a criminal offense could “criminalize” Israeli public discourse.
THE PROPOSED law is expected to start a race to the bottom, at the end of which criticism of any group could become “incitement to racism.” The crime of incitement to racism – already controversial in its current form – was enacted to prevent harm to groups that are by nature ethnic or religious minorities, often weak and subjected to speech that could result in grievous violence. Extending this to groups and sectors that are criticized for their conduct could prove dangerous.
We live in a reality where every group in Israeli society feels that it is a minority. The secular feel this way, as do the National Religious, the settlers of Judea and Samaria, and other subgroups. If criticism of the ultra-Orthodox is determined to be a criminal offense, then why not criticism of the settlers, who have been repeatedly dosed with poison? And what about “leftists” who, according to certain leaders of the Israeli right, have “traitor” as their middle name?
This bill, whether enacted or shelved, is also bad for the ultra-Orthodox themselves. For a variety of reasons, some ideological and some utilitarian, the haredi leadership consistently adheres to a policy in which the State of Israel and its non-haredi citizens don’t “count.” In the face of this conduct, along with the political power at their disposal, the haredim have been met with opprobrium.
Dangers of silencing criticism
With the proposal of this new legislation, it’s hard to shake the feeling that the haredim want to do with Israel whatever they wish and, accordingly, silence criticism directed their way by wielding yet more political power. A possible, perhaps probable, result is that this criticism will become even more incendiary, rather than softened or silenced entirely.
Today’s Israel is a “state of all its minorities” – divided into different groups and communities – and the tone that characterizes the current political and public discourse is more strident than ever. And yet, precisely because of these divisions, the silencing of criticism via criminal law would both undermine freedom of expression and threaten our ability to engage in debate – with raised voices but not with violence.
I hope that public discourse here will become more substantive and much less saturated with mutual animosity. But the way to get there is not by criminalizing criticism.
The writer is vice president of the Jewish People Policy Institute and a lecturer in law at the Peres Academic Center. His book Being a Nation-State in the Twenty-First Century: Between State and Synagogue in Modern Israel has just been published by Academic Studies Press.