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.

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.

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.