Since the assassination of Prime Minister Yitzhak Rabin, Israeli
society has been inundated with the inflated use of the term
"public incitement". Whenever a sharp political or public statement
is expressed, someone will react: "That is incitement." In the
bilateral relations between Israel and the Palestinian Authority as
well, the term "incitement" is frequently used, usually in the
context of accusing the other party, without clarifying the meaning
of this concept. My aim is to shed light on this concept and to
delineate the scope for a legitimate struggle against public
incitement within a democratic regime. I will restrict myself to
the issue of public incitement to violence. It should be noted that
according to international standards, it is also permissible, even
obligatory, to criminalize racial incitement, which I will not deal
with here.
Definition
Public incitement to violence is the public solicitation of a large
group or groups, neither specific nor defined, to commit violence.
In the Israeli-Palestinian context, clarification is required as to
the definition of "violence". I hope nobody contests the
proposition that violence towards civilians is forbidden, unless it
falls under the heading of self-defense. As for violence against
soldiers, it could be a measure of last resort, judged on the
grounds of prospective efficiency and exhaustion of all other
alternatives, justified by balancing the aim of the violence with
the resultant cost of human life (soldiers are also human). In my
view, in the last burst of violence during the second Intifada,
this was not the case. It was not a justified act of last resort
and, therefore, acts of violence against Israeli soldiers are
illegal and unjustified violence.
Instigation
The starting point for dealing with public incitement to violence
is the way in which specific (non-public) solicitation, usually
termed "instigation" is being treated in most legal systems. The
instigator who succeeds in convincing another specific individual
to commit an act of violence is punishable as an accomplice to the
crime committed. In the case of a failed effort to convince a
specific individual to act violently, the perpetrator is guilty of
attempted instigation.
There are substantive differences between instigation and public
incitement. Instigation is characterized by the influence of the
instigator on the instigatee and the effectiveness of the act of
instigation on the instigatee. It is generally based upon the
instigators familiarity with, or knowledge of, the instigatee (i.e.
his weak points), in addition to personal contact and surveillance,
which allows the instigator to adapt the solicitation to the
instigatee in a protracted manner, adjusting it according to the
latter's responses and the ensuing interpersonal dynamic that
develops between them. The decision to commit an offense is an
essential condition to its execution. The critically significant
contribution of the instigator to the formation of the decision
makes him an actor, in addition to the main perpetrator, upon whom
both the commission of the offense and the harm to the protected
social value depend. The main harm dealt with by the
criminalization of instigation is the actual performance of the
crime by the instigatee.
Public Solicitation
The situation is different, however, in the case of public
solicitation, where the solicitation is directed towards an
audience of unspecified individuals. The potential harm and
anti-social damage of public solicitation to commit a specific
potential offense are less than those posed by solicitation of an
individual. The impact of a solicitor on a crowd is less than it
would be on an individual. This is due to the absence of a personal
relationship between the solicitor and the solicitee that
characterizes instigation, and to the opportunity for opposing
responses from the audience that may neutralize the effect of the
solicitation. Moreover, a public forum is not limited exclusively
to those present; public figures and the media can respond in a
manner that may counterbalance the potential harm of the public
solicitation.
Furthermore, in the case of public solicitation, government
authorities and law enforcement agencies may be aware of the
potential threat and could act to protect those endangered. This
possibility does not exist in the case of solicitation carried out
secretly between the two individuals, far removed from the public
eye. Additionally, in cases of public solicitation, the solicitor
generally does not have protracted influence over his audience, nor
can he easily monitor their responses and activities. His influence
upon an unspecified audience is, therefore, limited, and it is thus
more difficult to characterize him as the "spiritual father" of an
offense, even if the offense is committed in the wake of the
solicitor's remarks - which is extremely rare. Acknowledgement of
this limitation is found in the absence of any retraction clause in
criminal codes defining public solicitation, given that in such
cases, practically speaking, there is generally no possibility of
effective retraction.
However, opposing considerations exist with respect to the special
danger posed by public solicitation. The danger posed by
inflammatory speech in a frenzied and excited crowd is obvious.
Moreover, as stated, the public sector is powerless to monitor the
potential impact of his words on impressionable individuals. Having
thrown a stone in the water, he is powerless to stop the
ripples.
Furthermore, the dangerous effect of public incitement cannot be
assessed exclusively on the basis of a single act. Rather the
danger lies in the potential that a series of statements and
publications may create an overall environment conducive to a crime
and violence and to an atmosphere that threatens the rule of law
and the democratic order. The longer a solicitor's contact with his
audience, the longer he has special influence over them and the
less they are exposed to other influences, the greater the
effectiveness of the solicitation and the greater the potential for
a criminal act to be committed in its wake.
The Rule of Law and an Atmosphere of Violence
The main harm caused by public solicitation does not lie in the
actual performance of the crime. The main harm is in challenging
the social order and the rule of law, undermining public confidence
in their validity. On the one hand, the public fears realization of
the crime encouraged by the solicitor, while on the other hand, its
confidence in the values subverted by the solicitation is
weakened.
In addition, public solicitation disrupts the lives of its
potential victims and violates their right to security and peace.
They are forced to live in fear that the calls to harm them or
their values may actually be acted upon and they have to adopt
precautionary measures against potential assaults. When the objects
of solicitation are less clearly defined, large elements of the
public are exposed to panic and the ability to protect them is
limited.
The secondary harm is the contribution to an atmosphere conducing
violence. It may not have a direct causal link to acts of violence
but it has an encouraging effect on violent behavior.
Prohibiting Public Incitement
According to the "harms" described and the supreme value of life
and bodily integrity, it is permissible to prohibit public
incitement in the following cases:
1. A public call to commit an act or acts of violence (e.g. "Go and
kill X.");
2. A public statement legitimizing, legally or morally, acts of
violence (e.g. "The Prime Minister is endangering our future and
should therefore be considered as a person attacking us
physically.")
3. A public statement expressing praise for, identification with or
support for a crime of violence that has been committed (e.g.
Baruch Goldstein or a suicide bomber should be blessed for his
deed.") There is no need to add additional requirements to these,
such as probability of a violent outcome or a specific purpose of
the inciter. The advantages of such a formulation are that:
a. Its specificity gives fair warning as to the nature of those
types of speech that are forbidden: this fulfils an essential
requirement of the Principle of Legality.
b. Its scope is narrow, outlawing only certain kinds of speech with
three attributes: Those i) that defy the values of life and bodily
integrity; ii) that encourage violence and c) that have no
redeeming social value. On the other hand, the scope is not too
narrow (as would be the case if the prohibition were restricted to
i.e. "go and kill") and covers the main forms of public incitement
used in daily life. If, nevertheless, this seems too narrow a
scope, the lawgiver can add a fourth case:
4. A public statement encouraging violence may have redeeming
social value - for instance, its truth ("unfortunately an oppressed
population can achieve justice in most cases only through the use
of some violence."), thus it is necessary to limit the prohibition
only to cases where it was the inciter's purpose to bring about
violence.
The criterion adopted in the US in the Brandenburg case is
imminence:
"The constitutional guarantees of free speech and free press do not
permit a state to forbid or proscribe advocacy of the use of force
or of law violation except where such advocacy is directed to
producing imminent lawless action and is likely to incite or
produce such action."
With all due respect, I beg to differ. To require imminent action
means, in reality, restricting prohibition to near nullity. Such
restriction gives freedom of speech an almost absolute priority
over human life. It also ignores the cumulative effect of
statements of incitement, which is their main effect.
The Israeli Knesset recently dealt with the issue of public
incitement to violence. I find this new law defective on both
counts: It is, on the one hand, too narrow - requiring proof of
probability of impact and violent action when not necessary - as
well as too broad in penalizing encouragement of violence without
limiting it to cases where such encouragement is accompanied by the
purpose to bring about violence.