Noxious speech

Incitement to violence and "insulting a public servant" are as different as murder and manslaughter.

soldier disengagement298 (photo credit: AP [file])
soldier disengagement298
(photo credit: AP [file])
Right-wing agitator Nadia Matar goes on trial this week on charges of "insulting a public servant," based on a letter she faxed to Yonatan Bassi, then head of the Disengagement Authority, in September 2004. The letter, which she made public, castigated Bassi for being "a modern version of the Judenrat... today nobody stands with a gun to your head and forces you to collaborate." She added that she was aware "there is a difference between then and now. The goal of the Nazi monster - that also annihilated most of my family - was the physical annihilation of the Jewish people." In disengagement "the goal is the annihilation of settlement in Judea, Samaria and Gaza." The use of Holocaust imagery in debates among the Jewish people is reprehensible. When non-Jews do this, we call it anti-Semitism, and rightly so. But Matar is not being tried on charges pertaining to bad taste or manners. She is being prosecuted according to Clause 288 of the 1977 Penal Code against verbal abuse toward public officials. The law was formulated to protect civil servants who find themselves maligned yet denied, by virtue of their position, the option of rebuttal. But how should such a law, with its obvious implications for freedom of speech and of the press, be applied? Though even prominent public figures deserve some sympathy when they come under particularly extreme and personal forms of abuse, it is hard to argue that Bassi required the legal protection that may be warranted for anonymous, mid-level officials who cannot respond for themselves. Bassi was under greater constraints than his critics, but he could and did publicly defend himself and the government's policies. Matar's analogy between events preceding the Holocaust and current events was odious. Unfortunately such analogies, however, are not unusual in our public discourse. Major figures like David Ben-Gurion, Yeshayahu Leibowitz and Shulamit Aloni resorted to "Nazi" appellations to score points. Maj.-Gen. (res.) Shlomo Gazit likened crocheted kippot to Nazi insignia. Most recently Haifa Mayor Yona Yahav compared Arab refugees to Jewish asylum-seekers during the Holocaust. During Operation Defensive Shield in 2002, singer Yaffa Yarkoni called IDF soldiers "Nazis." These soldiers couldn't defend themselves, yet she was not indicted. If she, or any of these other public persona had been prosecuted for their statements, this newspaper, and we expect most others, would have strenuously opposed it. The law must not be applied piecemeal. The repugnant and entirely inappropriate use of Nazi imagery is prevalent throughout the entire political spectrum. It is difficult to escape the conclusion that the prosecution of Matar for doing what others do with impunity constitutes a rather selective application of the law. Our judiciary must strive to avoid even the appearance of bias, as the harm it would cause could be great. If justice is even suspected of not being blind, then respect for law diminishes and the rule of law is impaired. Another problematic aspect of this case is that it seems that the charge of "insulting a public servant" is being employed as a lesser substitute for the crime the prosecution really has in mind, incitement. Just as murder charges are sometimes reduced to manslaughter, so it seems the state was reluctant to invoke the more serious charge in this case. But just as murder and manslaughter are qualitatively and morally different (the latter lacks premeditation and intention to kill), so are incitement to violence and "insulting a public servant." In cases of incitement, it is difficult enough to define where the line between protecting the public and permitting free speech should be drawn. But this difficulty cannot be escaped by avoiding the incitement charge altogether and filing charges under the almost unheard of category of "insulting a public servant." While lower-level officials are less commonly subject to public attack, the media is replete with "insults" of all kinds, against all levels of officialdom. The idea that "insulting a public servant" is a crime at all would seem to be less a province of democracies than of regimes that actively stifle free speech. If our legal system is reluctant to take legal sanction against seemingly egregious instances of incitement to violence, how much more careful must it be in criminalizing insults? We fervently wish that Matar and others would express themselves differently. The law, however, is a blunt tool, and is no substitute for social and political constraints against engaging in noxious speech.