Incitement and Free Speech

Introduction

In the 21^st century, we have become used to seeing a consistent pattern following any personal criticism. Those being criticised accuse their critics of incitement and attempt to silence them, and in turn, the critics cite the right to free speech. Often any principled debate is impossible, with two sides simply shouting over each other and no-one listening to anyone else.

Those looking to delegitimise what they call 'hate speech' rightly point out that the darkest regimes of the 20^th century started by using propaganda to promote their destructive agendas. This propaganda had significant effect, and allowed human forces of evil to carry out their plans without meaningful protest. One of the most important global questions of our times is where to draw the line between free speech and incitement.

As we shall see, although we cannot get a full answer to this from the Torah,[1] the Torah does teach us some important fundamentals as to how to approach the question.

Personal Responsibility

The first thing to establish is that by default, no-one can defend their actions with the claim that they were merely following orders from another human, unless they could not have been expected to know better themselves. This is the principle of אין שליח לדבר עבירה (there is no agency regarding transgressions), which Chazal explain is based on the rationale that when faced with a conflict between instructions, a person is expected to follow the instructions of the higher authority (a metaphor for Hashem).[2]

This principle has a secondary function - the one issuing the sinful instruction does not bear equal responsibility to that of the one who implements it. The rishonim explain that one reason for this is because the one giving the instructions doesn't fully expect them to be carried out, being aware that the 'agent' is supposed to listen to Hashem rather than to him.[3]

Based on this rationale, some write that if the instructions are given to someone who is unaware that the action is prohibited, the full responsibility does lie with the principal.[4] However, the overwhelming consensus is that this is not the case, and even under such circumstances, one is not fully liable for the actions of one's agent.[5] Speech does not carry the same weight as an action, even when there is a good chance that speech will cause others to act.

Reckoning in Heaven

This does not mean that one can say what one wants with impunity. The gemara discusses the view of Shamai HaZaken, who says in the name of the prophet Chagai that one who tells his agent to murder is liable for the actions of his agent. There are different view as to whether even Shamai meant this literally, but the gemara takes it for granted that even those who disagree with Shamai agree that one who issues such a command is culpable when it comes to the Heavenly reckoning (i.e. Hashem will punish him appropriately).[6]

While it appears that the gemara's discussion applies only to murder and not to other transgressions, the common-sense assumption that there is something wrong with telling someone to violate a prohibition must be universal.[7]

The 'Inciter'

There are exceptions to the rule of אין שליח לדבר עבירה, but they mostly involve transgressions that are not common occurrences in our generation.[8] However, one extreme case may be instructive.

One who incites others to worship idols is subject to harsher treatment than the standard procedures for capital punishment. One example of this is that whereas with other capital offenders, the court searches for any possible defence before execution, with an inciter this is not the case and it is solely up to the accused to defend himself (אין טוענין למסית). The gemara derives this from the punishment given to the snake in Eden, despite the potential defence that it was Adam and Chava who were at fault and should have listened to Hashem rather than the snake.[9]

Tosfos ask why this line of defence is invalid for any inciter – although we will not make the argument for him, if he makes the claim himself he should be acquitted! Tosfos answer that when the Torah commanded not to incite others, this loophole was closed. In other words, the Torah made an explicit qualification to the rule that the main responsibility lies with the active party.

The simple understanding is that due to the severity of the prohibition, the rule of אין שליח לדבר עבירה does not apply to idol worship. However, the gemara does not explicitly compare the case of the inciter to this rule, other than the mention of the same logic of the responsibility to follow the higher authority (דברי הרב ודברי התלמיד דברי מי שומעים).

R' Moshe Feinstein indeed claims that although only an inciter to idolatry is liable to capital punishment, Hashem does not seek to acquit an inciter to the transgression of any prohibition. He proves this from the case of the snake, who merely incited Chava to eat the forbidden fruit and not to worship idols.[10]

According to this, it appears that the rule of אין שליח לדבר עבירה never meant that giving instructions to do wrong is a lesser transgression than the act itself. The only 'leniency' is that for prohibitions other than idolatry, for technical reasons there is no punishment executed by the earthly Beis Din.

This understanding is not easily reconcilable with the explanation of Tosfos quoted above, that we would accept a defence claim from an inciter were it not for the command of the Torah not to incite. Elsewhere, the gemara discusses where the command not to incite is to be found, and one option is the injunction on mentioning the name of 'other gods.'[11] There does not appear to be any explicit command not to incite to lesser transgressions.

We can see that even regarding direct incitement, incriminating the inciter to transgressions of a lesser severity than idolatry or murder is not at all straightforward (although intentionally inciting is certainly reprehensible).

Care with Words

One who does not give a direct instruction to commit a crime is not an 'inciter,' especially if there was not even an intention to cause the crime. However, this does not absolve us from considering the possible effect of our words. Chazal tell us in Pirkei Avos (1:11):

אבטליון אומר: חכמים הזהרו בדבריכם, שמא תחובו חובת גלות ותגלו למקום מים הרעים וישתו התלמידים הבאים אחריכם וימותו, ונמצא שם שמים מתחלל.

Avtalyon says: Sages, be careful with your words, lest you become liable to exile to a place of 'bad water,' the students who follow you drink and die and the Name of Heaven will be profaned.

The Rambam writes that an example of this happened with Tzadok and Bythus, students of Antigonos of Socho. Elsewhere, Chazal describe that these students heard Antigonos's motto that one should "serve the Master (Hashem) without regard to reward" and taught it to their own students without adequate explanation. Eventually, the students concluded that Antigonos would not have made such a statement had there been any reward in the World to Come, and left the ways of the Torah.[12]

Conclusion

Returning to our original question, it should be clear that those who have the potential to influence others (today including anyone with a following on social media) should certainly take care with the way that they express themselves. The more influence that they have, the more care is required.

On the other hand, the same responsibility lies with those who attempt to silence others, even when the required care has not been taken. We must remember that terms such as 'hate speech' are subjective, and consider the effect of censorship of views that we do not like. The power to censor will ultimately change hands, and it may result in the silencing of those who espouse the values that we hold dearest.

My conclusion is therefore that although it would indeed be better if many public statements had not been made, in a public forum only a direct instruction or request for criminal activity should be forbidden.[13] Any short-term benefit of further censorship is far outweighed by the potential long-term damage.

---

[1] This is actually true about almost any contemporary question, including those that appear to be purely halachic. For example, questions about the use of electricity on Shabbos require extrapolation from principles written before the discovery of electricity.

[2] Kiddushin 42b and other places.

[3] See for example Tosfos Rosh, Bava Metsia 10b (ד"ה הני).

[4] Tosfos, Bava Kama 79a (ד"ה נתנו); Yam Shel Shlomo there.

[5] Ramban Bava Metsia 10b, Shach Choshen Mishpat 348:6, Ktzos HaChoshen there 4 (see however Nesivos HaMishpat, Biurim 4).

[6] Kiddushin 43a. See also Rambam, Hilchos Rotzeach 2:2, who writes that such a person is a murderer and liable to death at the hands of Heaven.

[7] For those who want an explicit written source, this is confirmed by the Taz in Yoreh Deah 160:11. This is independent of the mitzvah of 'Lifnei Iver' (not to lead the unknowing astray), which may not apply here as the agent may not be unknowing and also may not be expected to listen. See The 'laws' of Tznius.

[8] See Kiddushin 42b-43a.

[9] Sanhedrin 29a

[10] Igros Moshe, Orach Chaim 1:99. See also 2:7, where R' Moshe contends with the claim that the snake did in fact incite to idolatry. See also the second chapter of this article (in Hebrew) by R' Zvi Rysman, for further sources supporting this claim.

[11] Sanhedrin 63b. Although the gemara concludes that there is a more explicit source in the last verse of the Torah section about the inciter, the implication is that it was only necessary to find a command not to incite to idolatry.

[12] Avos d'Rabbi Nasan, chapter 5. Incidentally, in my view this passage indicates that Chazal had a tradition regarding the World to Come and did not merely deduce this from Tanach and their own logic (in The Limits of Legitimate Belief I mentioned that some have questioned this).

[13] This does not detract from the ambition for Torah prohibitions to be criminalised, once the majority of society accepts the Torah.