The Worst Form of Government

"Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time."

Winston Churchill

Events of the past months and years in Israel have made it easy to understand Churchill's reservations regarding democracy. Some are even questioning whether the 'except' clause is correct, seeing the chaos that democracy can cause and the fact that we may be no closer to a solution than we were after the first set of elections in the last two years. I do not plan to make the practical arguments for or against any form of democratic elections here. Instead, I would like to examine, from a halachic perspective, the main form of government described by the Torah (and the rest of Tanach) – monarchy.

An Ideal or an Improper Request?

The articles I have seen on this topic concentrate on the ancient debate surrounding the statement of the Torah "שום תשים עליך מלך" (you shall appoint a king over you).[1] The Tana'im dispute the nature of this verse – R' Yehuda understands this as a positive commandment, whereas R' Nehorai argues that the idea of appointing a king is only a response to the improper demand in the previous verse, "אשימה עלי מלך ככל הגוים אשר סביבותי" (I shall appoint a king over me, like all the nations around me).[2]

A common narrative here is that R' Yehuda sees monarchy as the ideal, whereas R' Nehorai prefers a limit on the power of any individual leader (e.g. through some form of democracy[3]) or even the absence of leadership (anarchy).[4] However, this understanding of the Tana'ic dispute is questionable.

If we look at the time when the events foretold in the Torah actually take place, when Shaul is appointed as king, we see that Hashem tells Shmuel Hanavi that the demand for a king is not merely a rejection of Shmuel – it is a rejection of Hashem.[5] This statement would seem to imply that the problem was not to do with the specific dangers of monarchy as a system of government. The people were expected to see only Hashem as their leader, with any human representative appointed directly by Hashem. In other words, the better alternative to monarchy is theocracy rather than democracy or anarchy.

R' Yehuda also cannot deny the fact that the demand for a king in the times of Shmuel was severely criticised. According to R' Yehuda, the criticism must have been specific to the circumstances (the timing or manner of the demand), but the problem is similar. The rejection of Shmuel, Hashem's prophet,[6] or the desire to be similar to other nations,[7] was symptomatic of an underlying rebellion against Hashem and theocratic rule.

In an era without prophecy, such that a literal theocracy is not possible, the ramifications of the dispute between the Tana'im are limited. Although according to R' Nehorai there is no command to appoint a king, and it would be permissible to alter the system of government, there is no proof from his words as to whether this would be recommended. Furthermore, after an interruption in the monarchy, even according to R' Yehuda the appointment of a new king requires a prophet.[8]

I therefore conclude that according to either opinion, halacha has very little to say regarding which form of government should be used nowadays. We should look for whichever system works best.

Future Aspirations

The question remains as to whether our end goal, after the restoration of prophecy, should include the restoration of the monarchy. Many will baulk at the idea of the end of democracy (despite the events of recent years) – is their view compatible with the Torah?

The answer is a conditional yes. We have already seen that according to R' Nehorai, there is no mitzvah to appoint a king (or any other government). Although the Rambam rules according to R' Yehuda,[9] there is no guarantee that the Sanhedrin (also required in order to appoint a king[10]) will agree. Ultimately, we will anyway need a prophet to inform us of Hashem's will.

One thing that does seem clear is that the special status of the tribe of Yehuda in general and the Davidic dynasty in particular, is ensured. Ya'akov Avinu assures that "rulership will not depart from Yehuda,"[11] and David is promised by Hashem (through Nasan Hanavi) that his throne and kingdom will be firm (נכון) forever.[12]

These assurances present a challenge to the view of R' Nehorai. If ideally we would never have had a monarchy, why does Hashem promise that the monarchy will stay in the hands of the family of David forever? It does not seem reasonable that one mistake in the time of Shaul resulted in a curse of eternal monarchy.

Abarbanel contends that these assurances can be fulfilled without a monarchy. Yehuda was the leader of his brothers long before there was a Jewish king, and Chazal tells us that the Babylonian Exilarchs also came from the tribe of Yehuda. He even makes the astonishing claim that "Even today, throughout the long exile until France and Spain, there is no doubt that the presidents and officers that the kings appoint over Bnei Yisrael were all from the Davidic dynasty."[13]

There is one major practical ramification to all of this, in our tefilos every day of the week. An entire beracha of our Shemoneh Esrei is devoted to the restoration of the Davidic line (את צמח דוד). We ask this from Hashem three times a day – according to R' Yehuda we should have the monarchy in mind, whereas presumably according to R' Nehorai (based on the Abarbanel's understanding), it is enough to want a stronger representation of the Davidic line in any positions of power.[14]

Checks and Balances

It is important to point out that when deciding on a form of government, we should not allow any form of idealism to negate real practical concerns.[15] Just as it is not possible to make all decisions via referendum, it may sometimes be necessary to compromise on democracy in order to facilitate efficiency.

The flip side is that if we are to restore a monarchy, this would need to be accompanied with measures to ensure that the monarch cannot abuse his power. I already wrote at length in Separation of Powers about the limitations the Torah makes on the power of the king, but practically there would need to be a method of enforcing these limitations.

With some creativity, it may be possible to design a system that would fulfil the mitzvah of appointing a king according to R' Yehuda, while simultaneously using a democratic system as a counterbalance.[16] Perhaps this could restore stability, while maintaining the basic human freedoms to which we have become accustomed.

I believe that if such a system could be designed, it could be an improvement even on the reign of David HaMelech. When David erred, there were prophets who could guide him back to the correct path. His willingness to admit his mistakes allowed his kingdom to flourish, but most of his successors were not as righteous and this eventually led to collapse and exile. One of the lessons that we should have learnt over the past two thousand years is that each one of us must take personal responsibility and not rely on human leaders, as great as they may be.

To conclude, Churchill was probably right that democracy is the worst form of government except for all those other forms that have been tried . However, this should not deter us from striving to achieve an improved form of government, whatever its nature may be.

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[1] Devarim 17:15

[2] See Sanhedrin 20b

[3] This was the position of Abarbanel in his commentary to the Torah. Many have pointed out that his view was influenced by his own experience in the employ of the kings of Portugal and Spain, the expulsion of Jews from these countries, and subsequently seeing systems he viewed as superior in Italy.

[4] See for example this article (in Hebrew) by R' Elchanan Samet.

[5] Shmuel 1, 8:4-9

[6] The Rambam's understanding in Hilchos Melachim 1:2.

[7] Ramban's understanding in his commentary on the Torah.

[8] Sifri, Shoftim 157; Rambam, Hilchos Melachim 1:3. Although the kings of the Chashmonaic dynasty ruled in the post-prophetic era (and according to the Rambam there was no problem with this – see for example Hilchos Megila v'Chanuka 3:1), it would seem that this was not a fulfilment of the mitzvah to appoint a king in its fullest sense. Any form of Jewish rule was something to be celebrated, but this could just as easily have been achieved through an alternative form of government.

[9] Hilchos Melachim 1:1

[10] Tosefta, Sanhedrin chapter 3; Rambam, Hilchos Melachim 1:3

[11] Bereishis 49:10

[12] Shmuel 2, 7:16

[13] Abarbanel, Bereishis 49:8. Although he is primarily referring to the words of Ya'akov Avinu, his several references to David imply that the same applies to the later promise (although it should be noted that this is a stretch, bearing in mind that the promise through Nasan Hanavi specifically mentions David's throne and kingdom).

[14] Some may have reservations whether the special status given to descendants of David is consistent with true democracy. However, the truth is that Abarbanel implies that there is no obligation to check whether a candidate for a position of power is descended from David – this will happen naturally or through Divine intervention.

[15] Although I don't discuss politics here, I will state that we would be in a better situation if politicians from across the spectrum would heed this message.

[16] I do not mean to replicate a UK-style monarchy, where the monarch is a mere figurehead. This would clearly not be a fulfilment of the mitzvah according to R' Yehuda.

Understanding Halacha - Hilchos Shemita

The time has now come to reveal the project promised in the previous post – below is a link to a new English language publication on Hilchos Shemita. The reasons for doing this are explained in the introduction, although regular readers of this blog will be used to the style.

B'ezras Hashem I plan to translate this to Hebrew over the coming weeks and months. I would really appreciate any feedback, and of course if the link could be sent to anyone who may find it useful.

If anyone would find a hard copy beneficial, please let me know.

Understanding Halacha - Hilchos Shemita

Erev Pesach on Shabbos

This is going to be by far my shortest post on this blog so far - I have recently been working on finishing off a project that I hope to publicise here before Pesach. As this project is not Pesach-related, I felt that I had to provide at least something that is.

The motivation for this piece came when reading the recommendation of a certain talmid chacham to avoid eating any chametz this coming Shabbos (using matza ashira[1] for lechem mishne), to ensure that no Chametz crumbs remain in the house for Pesach. As I shall explain, I strongly disagree.

The first thing to point out is that there is clearly no obligation to get rid of all Chametz before Shabbos, nor do Chazal or the rishonim indicate that this is praiseworthy. This is most easily shown by quoting the Rambam:

If the fourteenth (of Nissan) falls on Shabbos, we search for Chametz on Thursday night, the thirteenth. One leaves enough Chametz to eat until four hours in to the day on Shabbos, in a safe place, and destroys the remainder before Shabbos. If any Chametz remains on Shabbos day after four hours, one nullifies it, covers it with a utensil until after first day Yom Tov and then destroys it.[2]

The lack of concern that Chametz may remain is striking. Others do suggest that one should get rid of any remaining Chametz by giving it to a non-Jew or feeding it to animals,[3] but there is nothing remotely close to avoiding Chametz on Shabbos altogether.[4]

Oneg Shabbos

The above is enough to explain why I believe that the suggestion to avoid Chametz this coming Shabbos is unnecessary. I also believe that this suggestion is a bad one – unnecessarily compromising ones enjoyment of Shabbos detracts from the quality of the mitzvah of Oneg Shabbos.

I am aware that there can be some practical difficulties with having Chametz at the table this Shabbos, and the more nervous among us may enjoy their Shabbos more without it. However, this should be a personal choice, and those who feel able to manage the situation with Chametz should certainly not be discouraged from doing so.

Wishing everyone a good and enjoyable Shabbos HaGadol, as well as a Chag Sameach![5]

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[1] Matzah made with liquids other than water (often egg). As this matzah cannot be used for the mitzvah on Seder night, it may be eaten on Erev Pesach (although many Ashkenazim do not eat it once Chametz is forbidden).

[2] Hilchos Chametz u'Matzah 3:3

[3] See Shulchan Aruch, Orach Chaim 444:4-5 and Mishna Berura 11 there.

[4] It should be pointed out that any crumbs that are missed do not pose any halachic problem unless they fall into food during Pesach – see Pesachim 6b.

[5] As the old quip goes, you don't need my bracha for a kosher Pesach as it almost certainly will be (even if you eat Chametz on Shabbos).

Parashas Zachor and Megilas Esther - a Halachic Perspective

Introduction

The readings of Parashas Zachor and the Megila this year pose some unique problems. We will sadly not be able to fill our shuls with people as we would normally, and the command of Esther "Gather all the Jews"[1] will not be relived in a literal sense. Some people will likely be unable even to fulfil the basic obligations safely, and few will have the kind of Purim we are used to.

It is critical to clarify as much as possible what the priorities should be – what is mandatory if possible without endangering life, what is usually meritorious but perhaps not so under the circumstances, and what is on a lower level still.

Remembering Amalek

The one Torah command associated with this period is the mitzvah to remember what Amalek did to us:

זָכוֹר אֵת אֲשֶׁר עָשָׂה לְךָ עֲמָלֵק בַּדֶּרֶךְ בְּצֵאתְכֶם מִמִּצְרָיִם: ... לֹא תִּשְׁכָּח:

דברים כה: יז, יט

Remember what Amalek did to you, on the journey when you left Egypt. … Do not forget.

Devarim 25:17, 19

Chazal explain that whereas 'not forgetting' can be fulfilled in the mind, the additional positive command to remember obligates us to express verbally what Amalek did to us.[2] At first glance, there is no hint of this mitzvah being linked to anything public. Although Chazal did institute the reading of Parashas Zachor the week before Purim, there is no indication of this reading having a higher status than that of the other three special sections read for Maftir at this time of year.[3]

However, Tosfos write in a number of places that the reading of Parashas Zachor is a Biblical mitzvah.[4] The Terumas HaDeshen (R' Yisrael Isserlen, Germany/Austria, 1390-1460) infers from the words of the Rosh[5] that this obligation must be fulfilled in the presence of ten men on a Biblical level.[6]

The Scriptural source for this is at best unclear.[7] It should be no surprise that many rishonim do not share the view of Tosfos and the Rosh. Ramban concludes that the mitzvah is merely to transmit the events of Amalek to our descendants informally.[8] Rambam[9] and the Chinuch[10] also omit any individual obligation to read the passage from the Torah.[11]

Furthermore, according to all views this mitzvah can be fulfilled at other times. In the current circumstances, my position is that those who are unable to attend virtually 100% "Covid-friendly" minyanim, (i.e. outdoors, with not too many people and social distancing), should not make an exception because of Parashas Zachor, even for the five minutes that it takes. The risk may be minimal, but it is better to be stringent regarding public safety rather than with the mitzvah of remembering Amalek.[12]

Megilas Esther

On Purim, each individual certainly does have an obligation to read the Megila (or hear it being read). Doing so safely this year will be a challenge, but if enough readers in possession of a kosher megila are willing to put in the time, it should be possible for most of us. Unlike Torah reading, it is generally assumed that one can fulfil the basic obligation without a minyan.

However, the view of R' Asi in the gemara is that a minyan is required for the reading of the megila as well. Furthermore, the gemara tells us that when it came to action, even Rav, who argued with R' Asi, was particular to gather a minyan for the megila reading out of concern for the stringent view.[13] While the consensus of the majority of rishonim is that the halacha does not require a minyan, this is not unanimous.[14] Under normal circumstances, it is certainly better to read the Megila with a large gathering in shul.[15]

"Not at its Time"

For those of fortunate enough to live in Yerushalayim,[16] this year reading without a minyan is even more questionable. The gemara says further that if the reading is not "at its time," all agree that a minyan is required. An example given by the gemara is when the 14^th of Adar falls on a Shabbos (now impossible due to the fixed calendar), when the Megila is read on Friday, the 13^th of Adar.[17] Rashi gives a further example of small villages who had difficulty arranging reading of the Megila, who were allowed to bring the reading forward to market day on Monday or Thursday.[18]

It would seem logical that the same should apply this year in Yerushalayim, where Purim is on the 15^th of Adar, which falls on a Shabbos. The Megila is read on Friday like everywhere else, but surely this is also not "at its time"! The Ran indeed confirms that this is the case.

The Rambam disagrees, writing that the requirement of a minyan applies to those who read earlier than the 14^th.[19] Some commentaries explain that this is based on the Yerushalmi, which limits the requirement of a minyan to those places that read on market day.[20] A possible rationale would be that the requirement of a minyan is in order to publicise the miracle of Purim; in big cities where several minyanim are taking place, it is ok if some read individually.[21]

The difficulty is that were this to be true, a minyan should also not be necessary when the Megila is read on Friday, the 13^th of Adar. This may indeed be the position of the Yerushalmi, but it is clearly in conflict with the Bavli and with the Rambam himself.

Based on the above, the Pri Chadash (Livorno, 1656 – 1695, Yerushalayim) ruled that one unable to gather a minyan for the reading of the Megila in Yerushalayim in a year like this year, should read without a beracha.[22] This is also the position of the Mishna Berura.[23] Although some contemporary poskim do allow a beracha to be said without a minyan,[24] their reasoning is beyond me.[25]

Conclusion

While following all the regulations, we should make every effort to arrange readings of the Megila with a minyan, especially in Yerushalayim this year. This comes a long way ahead of arranging minyanim for Parashas Zachor.

Wishing everyone a safe and happy Purim, and all of Klal Yisrael and the rest of the world a "month turned from sorrow to joy, and from mourning to Yom Tov."[26]

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[1] Esther 4:16

[2] Megila 18a

[3] See Megila 29a-30b. Parashas Zachor is read before Purim in order to have 'memory before action,' but there is no further elaboration.

[4] For example Berachos 13a. Earlier texts of Tosfos stated that Parashas Para is also a Biblical mitzvah, and the Shulchan Aruch (Orach Chaim 685:7) quotes this. It was removed from our prints of the gemara by the Maharshal, who claimed it was a mistake. However, it also appears in other versions of Tosfos such as Tosfos HaRosh.

[5] Berachos 7:20. The Rosh writes that freeing a slave in order to complete a minyan could facilitate the performance of a Biblical mitzvah if the minyan was for the reading of Parashas Zachor.

[6] Terumas HaDeshen siman 108

[7] After the first battle with Amalek, Moshe was told to write in a scroll "I (Hashem) will blot out the memory (זכר) of Amalek from under Heaven" (Shemos 17:14). The obligation to read the Megila on Purim from a scroll, as opposed to by heart, is derived from this scroll, as the similar language "remembered (נזכרים) and actioned" is used in relation to the days of Purim (Esther 9:28, Megila 18a). However, we do not find any mention of a scroll in relation to our mitzvah of remembering Amalek, either in the Torah or in the gemara.

[8] Commentary to Devarim 25:17

[9] Hilchos Melachim 5:5

[10] Mitzvah 603. See also Minchas Chinuch there, who writes that it is 'obvious' that on a Biblical level it is sufficient for each individual to remember Amalek verbally.

[11] The Shulchan Aruch (Orach Chaim 685:7) also writes just "there are those who say" that we are obligated to read Parashas Zachor on a Biblical level. His continuation that those who live in localities where there is no minyan must travel to places with a minyan for Parashas Zachor is surprising. It is noteworthy that the Levush paraphrases this language but makes a crucial change, stating, "According to the view that the two Parshiyos of Zachor and Para Aduma are Biblical, those who live in localities where there is no minyan must travel to places with a minyan."

[12] The above applies to men and women alike. The Chinuch (Mitzvah 603) famously writes that women are exempt from this mitzvah as they do not generally actively participate in war, and the idea for women to make a special effort to come to shul for Parashas Zachor is a modern day phenomenon. The truth is that this ruling of the Chinuch is his own novel idea not found elsewhere (see Minchas Chinuch), but it is quite possible that the reason that women were not particular to attend shul for Parashas Zachor in the past is because neither men nor women have any special obligation on this Shabbos.

[13] Megila 5a

[14] There are in fact several opinions:

1.       Tosfos and the Rif write that the halacha is in accordance with the lenient view of Rav, despite Rav himself not relying on it, as R' Yochanan on 19b also shares this view. This is also the view of the Rambam (1:7).

2.       The Rosh quotes R' Amram Ga'on as ruling according to R' Asi. The Rosh concurs, but explains that R' Asi agrees that one who cannot find ten people must nevertheless read the megila alone. This is also the view of the Ra'avad (1:7).

3.       Behag, as quoted by Semag and the Tur, rules that a minyan is an absolute requirement.

[15] See Shulchan Aruch, Orach Chaim 690:18 and Mishna Berura 62.

[16] Yerushalayim is currently the only city in the world with a Jewish community, known to have been walled at the time of Yehoshua bin Nun. Other cities such as Tverya, Chevron, Lod and Yafo are questionable.

[17] Although the Mishna on 2a says that in this event, the Megila is read on the Thursday, this view is not the accepted halacha.

[18] This also does not apply nowadays, as there are no such market days (see also the gemara on 2a, which says that this leniency only applies when we have a kingdom).

[19] Hilchos Megila 1:7

[20] Or Sameach, based on Yerushalmi Megila 1:3 (as usual, the Yerushalmi is not conclusive about this).

[21] Korban HaEida on the Yerushalmi there.

[22] Orach Chaim 690. R' Chizkiya da Silva (the author of Pri Chadash) was the Rav of Yerushalayim at the end of his life. However, it is unlikely that any minhag developed based on his ruling, as 15^th Adar did not fall on a Shabbos between 1683 (when he was a student) and 1700 (after his death).

[23] 690:61

[24] See for example Yabia Omer 6, Orach Chaim 46.

[25] The way that these poskim are forced to interpret the gemara (in the name of the questioner in Shu"t Chasan Sofer) is a case of extreme halachic gymnastics, which I fail to see any need for. It should also be noted that although these poskim invoke the Chazon Ish (Orach Chaim 155:2), the Chazon Ish himself only wrote that a beracha can be made if there are ten women (a position I concur with).

[26] Esther 9:22

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.

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[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.