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Defining the Unspeakable: Incitement in HALAKHAH and Anglo-American Jurisprudence

Published online by Cambridge University Press:  25 September 2015

Jonathan K. Crane
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“What constitutes evil speech? Rabbah said: As when one says,

There is a fire burning in [the oven of] So-and-So's house.

Abbaye asked: But what harm does he do? He merely provides information.

Nevertheless, [said Rabbah,] such information may be uttered with intent to slander,

As though he were saying: where else would such a fire be burning

Except in the house of So-and-So, who has plenty of meat and fish?”

(BT ‘Arakhin 15b)

One significant challenge confronting any state legal system is defining what speech should be permitted, or, more precisely, what speech should and should not enjoy protection from governmental interference. While the parameters of freedom of speech have been shaped and reshaped over several centuries, Anglo-American jurisprudence has not yet fully defined one of the several categories of speech that is not—and should not be—protected from interference. This is the category of incitement. Jewish law (halakhah), too, has long wrestled with this category of speech and has yet to define its contours clearly. This paper explores how these two legal systems define this category of speech, whether their approaches are commensurable, and how each can benefit from nuances found in the other.

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Journal of Law and Religion , Volume 25 , Issue 2 , 2009 , pp. 329 - 356
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Copyright © Center for the Study of Law and Religion at Emory University 2009

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References

1. Another broad and embattled category is that of the obscene. See, e.g., Sumner, Lawrence W., The Hateful and the Obscene: Studies in the Limits of Free Expression (Univ. Toronto Press 2004)CrossRefGoogle Scholar.

2. On speech-acts, see infra notes 63-64, for discussion of Austin, John L., How To Do Things With Words (Harv. Univ. Press 1962)Google Scholar. Motivational speech by itself is not criminal; indeed, it is often revered, as, for example, the oration by preachers that provokes rapture. Obviously within tolerant liberal democracies of the past 100 or 150 years, such speech is protected from governmental interference. This provisional definition can include expressions promoting and motivating others to commit genocide. See Bantekas, Ilias, Principles of Direct and Superior Responsibility in International Humanitarian law (Manchester Univ. Press 2002)Google Scholar. There are some speeches that encourage lawful lethal activity, such as morale-boosting and motivational words from commanding officers to troops during wartime. Certainly such speeches should not be considered incitement or criminal as long as the lethal activity they encourage does not constitute war crimes or crimes against humanity. As will be seen below, context is critical.

3. The purpose of hate speech is, generally, to recruit and reinforce morale within hate-filled groups. See Sumner, Lawrence W., Should Hate Speech be Free Speech? John Stuart Mill and the Limits of Tolerance, in Liberal Democracy and the Limits of Tolerance: Essays in Honor and Memory of Yitzhak Rabin 133–50 (Cohen-Almagor, Raphael ed., Univ. Mich. Press 2000)Google Scholar; Strossen, Nadine, Incitement to Hatred: Should There Be a Limit?, 25 S. Ill. U.L.J. 243 (Univ. Mich. Press 2001)Google Scholar. Some scholars conflate hate speech, incitement, and racial discriminatory speech; see Nash, David & Bakalis, Chara, Incitement to Religious Hatred and the ‘Symbolic’: How Will the Racial and Religious Hatred Act 2006 Work?, 28 Liverpool L. Rev. 349 (2007)CrossRefGoogle Scholar.

4. Fighting words are those that “could be expected to cause violence.” Teeter, Dwight L. & Loving, Bill, Law of Mass Communications: Freedom and Control of Print and Broadcast Media 121 (12th ed., West 2008)Google Scholar. This category hearkens back to Chaplinsky v. N.H., 315 U.S. 568 (1942). As will be seen below, foreseeability is a critical element for incitement. In Canada, see R. v. Keegstra [1990] 3 S.C.R. 697 (Can.).

5. Discriminatory speech often includes racist speech. See, e.g., Paust, Jordan J., Rereading the First Amendment in Light of Treaties Proscribing Incitement to Racial Discrimination or Hostility, 43 Rutgers L. Rev. 565 (1991)Google Scholar. See discussions of global efforts to curb racist speech in Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (Coliver, Sandra ed., Univ. Essex 1992)Google Scholar. See also Law Reform Commission of Western Australia, Incitement to Racial Hatred (The Commission 1989).

6. Crime-facilitating speech cannot rightfully be considered incitement because it does not persuade or inspire but only gives “people information that helps them commit bad acts—acts that they likely already want to commit.” Volokh, Eugene, Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005)Google Scholar.

7. On inflammatory speech, see Barendt, Eric, Freedom of Speech 295–302 (2d ed., Oxford Univ. Press 2007)CrossRefGoogle Scholar.

8. See, e.g., Va. v. Black, 538 U.S. 343, 358 (2003). That the government cannot criminalize unpopular utterances, see note 23 in Tanenbaum, Robert S., Preaching Terror: Free Speech or Wartime Incitement?, 55 Am. U. L. Rev. 785, 789 (2006)Google Scholar.

9. This modified discourse methodology integrates Aristotle's On Rhetoric with Chaim Perelman & Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation (Wilkinson, John & Weaver, Purcell trans., Univ. Notre Dame Press 1969)Google Scholar, and Habermas, Jurgen, Moral Consciousness and Communicative Action (Lenhardt, Christian & Nicholson, Shierry Weber trans., MIT Press 1990)Google Scholar, among other scholars of rhetoric and discourse. Examples of this kind of methodology include Bucar, Elizabeth M., Speaking of Motherhood: The Epideictic Rhetoric of John Paul II and Ayatollah Khomeini, 26 J. Soc'y Christian Ethics 93–123 (2006)Google Scholar; Benesch, Susan, Vile Crime or Inalienable Right: Defining Incitement to Genocide, 48 Va. J. Int'l L. 485 (2008)Google Scholar; Crane, Jonathan K., Rhetoric of Modern Jewish Ethics (2009) (unpublished Ph.D. dissertation, University of Toronto) (on file with author)Google Scholar.

10. Ezra, Moses Ibn, Shirat Yisrael 12cGoogle Scholar. “When a person refrains from speech, the ideas die, the soul stops, and the senses deteriorate.”

11. When Rabbi Yohanan was asked, “What is evil speech (lashon harah)?” he replied, “What is uttered explicitly as well as what is only hinted at.” JT Peah 1:1/16aGoogle Scholar. See also BT, Baba Metzia 58b, for commentary on Leviticus 25:17 and discussion of how speech can wrong others in ways worse than monetary or physical injuries.

12. BT Baba Metzia 58b-59a, ad loc. The graveness of this teaching derives from the unlawfulness under Jewish law of committing suicide. See BT Baba Kama 91b; MT Rotzeach 2.2-3. Compare with narratives of Saul's suicide (1 Sam 31:4-5) and Samson's (Judg 16:30).

13. The Mishnah was written around 200 CE, and serves as the centerpiece for later rabbinic commentary in the Jerusalem and Babylonian Talmuds.

14. A note about translation: the Hebrew verb yasat means to stir up, to instigate, to cause another to do. The causative form of the verb yasat is the root of the noun mesit. Because of these words' multiple senses, I translate them variously, depending upon context, as to instigate, to entice, to incite, an instigator, an enticer, an inciter, etc.

15. M at BT Sanhedrin 53a. Someone who incites a whole town to idolatry is called a maddiah, and also deserves death. Idolatry remained a capital crime even into the medieval era, cf. MT Avodah Zarah 5.1 and 5.2. See also MT Sanhedrin 15.10 for a recapitulation of this Mishnah.

16. The eleventh-century French commentator R. Solomon b. Isaac (universally known as Rashi) connects this Deuteronomic passage to the mesit at BT Sanhedrin 67a, s.v., hamesit et hahediyot. The Jerusalem Talmud, however, portrays the mesit speaking in a loud voice (bilshon gavoha) and the maddiah speaking quietly (bilshon namuch); and a mesit usually speaks in the Holy Tongue (i.e., Hebrew) (bilshon hakodesh) while a maddiah speaks in the vernacular (bilshon hediyot). If a mesit speaks in the vernacular, he is dealt with as if he were a maddiah, and vice versa. See YT Sanhedrin 7/25d. A maddiah, like a mesit, is stoned and not strangled, according to the M at BT Sanhedrin 53a. For a discussion of the command to kill the inciter, see Levinson, Bernard M., “But You Shall Surely Kill Him!”: The Text-Critical and Neo-Assyrian Evidence for MT Deuteronomy 13:10, in “The Right Chorale”: Studies in Biblical Law and Interpretation 166 (Mohr Siebeck 2008)Google Scholar.

17. Without a capital M, mishnah means the individual law, while Mishnah refers to the corpus as a whole. See supra note 13.

18. The Gemara is rabbinic commentary on the Mishnah. It includes pieces that are as old as the Mishnah but were not incorporated into the Mishnah, as well as later commentary. The Jerusalem Talmud's Gemara came into its final form around 400-500 CE, and the Babylonian Talmud's Gemara around 600-700 CE.

19. Other Biblical instances of the verb for inciting (hesit) offer interesting comparisons. In 1 Samuel 26:19, it is understood that God can incite humans to engage in idolatry. At 1 Kings 21:25-26, Jezebel incites her husband King Achav to idolatry. In Jeremiah 43:3, the people claim that Baruch ben Neriyah incites the prophet Jeremiah to lead the people astray—but not to idolatry per se. And Job 2:3 depicts God complaining to Satan (the angelic adversary) that Satan incited God to do evil to Job (referring to Job 1:9-12). Contrast these with Calev's daughter, Achsah, who impressed (t'sitehu) him for a blessing, specifically for water wells (Josh 15:18).

20. See Spinoza, B., Theological-Political Treatise (2d ed., Hackett 2001)Google Scholar.

21. The Gemara goes on at length about this point, and finally ends with a fascinating assertion that this rule was carried out against a particular famous inciter: the son of Setada in the city of Lod, who was hung on the eve of Passover. This son of Setada, also known as the son of Pandera, was Jesus of Nazareth. BT Sanhedrin 67a. That the rabbis labored to retell Jesus' trial and death according to Jewish—not Roman—law (e.g., BT Sanhedrin 43a) is discussed with great erudition in Schafer, Peter, Jesus in the Talmud (Princeton Univ. Press 2007)Google Scholar. He argues that the Talmud offers a counternarrative to John's version of these events and not a historical account of what happened.

22. The juxtaposition of the call to idolatry and the contravention of superior law has ancient roots. See BT Sanhedrin 88b.

23. M and Gemara at BT Baba Metzia 58b.

24. Deut 17:8-13.

25. See M Sanhedrin 11.2.

26. M Sanhedrin 11.1, 11.4. See also BT Sanhedrin 14b, 16a, 87a-ff.

27. BT Sanhedrin 88b.

28. Maimoides is the twelfth-century Spanish-Egyptian legal scholar and philosopher whose work is universally perceived as most authoritative after the Talmud and before Joseph Karo's sixteenth-century Shulchan Aruch.

29. This may be a nod to the notion that competing rabbinic arguments intended to clarify the will of God are each “words of the living God”—that is, worthy of articulation, consideration, and retention in the textual tradition. Cf, BT Eruvin 13b.

30. MT Mamrim 3.4. See also MT Sanhedrin 5.1, 14.11. Maimonides discusses some rationales for these laws in his Guide of the Perplexed 111:41.

31. MT Mamrim 3.6.

32. See also M Sanhedrin 11.2; BT Sanhedrin 86b. Minority opinions are essential to halakhah and are carefully recorded in legal deliberations. See discussion in Elon, Menachem, Jewish Law: History, Sources, Principles IV:1848ff (Jewish Publ'n Soc'y 1994)Google Scholar.

33. For this reason, this judge's speech is distinct from crime-facilitating speech. The personage of the speaker has a greater bearing in the former than in the latter; that is, perceived and real authority are relevant to incitement but irrelevant to crime-facilitating speech. See Volokh, Crime-Facilitating Speech, supra note 6.

34. Mill, John S., On Liberty 53 (Spitz, David ed., Norton 1975) (1859)Google Scholar.

35. Id. at 91.

36. Gitlow v. N.Y., 268 U.S. 652, 673 (1925) (Holmes, J., dissenting, joined by Brandeis, J.).

37. Schenck v. U.S., 249 U.S. 47, 52 (1919).

38. See also Hess v. Ind., 414 U.S. 105, 108 (1973) (per curiam). See discussions in Anderson, David A., Incitement and Tort Law, 37 Wake Forest L. Rev. 957 (2002)Google Scholar; Barnum, David G., The Clear and Present Danger Test in Anglo-American and European Law, 7 San Diego Int'l L.J. 263 (2006)Google Scholar.

39. Justice Learned Hand disagreed with this approach that leaned so heavily on predictions and causal linkages. For a case about espionage Hand ruled that it would be best to examine an utterance not on a speaker's intention or on possible outcomes of a speech given its context, but rather solely on its content. “[T]o assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government.” Masses Pub. Co. v. Patten, 244 F. 535, 540 (S.D.N.Y. 1917). Later reversed, 246 F. 24 (2d Cir. 1917). Though Hand's focus on “words that counsel the violation of law” fails to identify concrete content that constitutes incitement per se, it does suggest that motivational speech is a critical element of incitement. See Gunther, Gerald, Learned Hand: The Man and the Judge 157–61 (Knopf 1994)Google Scholar.

40. Even advocacy of violation [of the law], however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on…. In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

Whitney v. Cal., 274 U.S. 357, 376 (1927) (Brandeis, J., concurring).

41. Brandenburg v. Ohio, 395 U.S. 444, 448-49 (1969) (per curiam). See also Noto v. U.S., 367 U.S. 290, 297-98 (1961). See discussion in Lidsky, Lyrissa B., Brandenburg and the United States' War on Incitement Abroad: Defending a Double Standard, 37 Wake Forest L. Rev. 1009 (2002)Google Scholar.

42. Must the speaker's desired action come about for a speech to count as incitement? Suppose a speaker emphatically and authoritatively instructs an audience to assault a particular and nearby third party—and yet the audience does nothing. Should that speech be considered incitement, and the principal culpable for a crime?

Two views are possible. The first would hold that if the speaker does not succeed in inciting anyone into the desired action, then the speech is, at most, attempted incitement. In a similar way, Aristotle comments that a speech is persuasive “because there is someone whom it persuades.” Aristotle, , On Rhetoric, Book I, Pt. 2, 1356bGoogle Scholar. Thus, for Aristotle, an argument that falls short of actually persuading anyone falls short of being persuasion; it is, at most, attempted persuasion.

Under the second view, a speaker need not actually succeed in leading an audience into violence for a speech to count as incitement. This view appears to prevail in both the United States and Britain, where the courts have ruled that regardless of a speech's success at rousing an audience to criminal behavior, if the speech intends unlawfulness then it should be considered incitement. In Britain, see The King v. Higgins, 102 Eng. Rep. 269, 274-75 (K.B. 1801) (Grose, J.):

But further, an attempt to commit even a misdemeanor has been shewn [sic] in many cases to be itself a misdemeanor. Then if so, it would be extraordinary indeed if an attempt to incite to a felony were not also a misdemeanor. If a robbery were actually committed, the inciter would be a felon. The incitement, however, is the offence, though differing in its consequences, according as the offence solicited (if it be felony) is committed or not.

And in the United States, the government may “forbid or proscribe advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Hess v. Ind, 414 U.S. at 108 (internal quotation marks omitted) (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)) (emphases modified). It therefore appears that the audience need not actually respond. See also Fiss, Owen, Freedom of Speech and Political Violence, in Liberal Democracy and the Limits of Tolerance, supra note 3, at 71Google Scholar.

43. Schauer, Frederick, Free Speech: A Philosophical Enquiry 192 (Cambridge Univ. Press 1982)Google Scholar. For national and international laws criminalizing incitement to group hatred, see Lerner, Natan, The Crime of Incitement to Group Hatred: A Survey of International and National Legislation (World Jewish Congress 1965)Google Scholar; to genocide, see Wallenstein, Joshua, Punishing Words: An Analysis of the Necessity of the Element of Causation in Prosecutions for Incitement to Genocide, 54 Stan. L. Rev. 351 (2001)CrossRefGoogle Scholar; to racial discrimination, see Lederman, Eliezer & Tabory, Mala, Criminalization of Racial Incitement in Israel, 24 Stan. J. Int'l L. 55 (1987)Google Scholar; and to unlawful violent behavior generally, see Shinar, Adam, Reflections on the Judgments Regarding Jabarin and Kahana—A Conflict Between Freedom of Speech and Incitement and Encouragement of Violent Acts, 35 Israel L. Rev. 153 (2001)CrossRefGoogle Scholar. The last two sources focus on Israel in particular. Some countries, such as Canada, attempt to address multiple forms of incitement simultaneously; see Cotler, Irwin, Holocaust Denial, Equality, and Harm: Boundaries of Liberty and Tolerance in a Liberal Democracy, in Liberal Democracy and the Limits of Tolerance, supra note 3, at 151–81Google Scholar.

44. For this reason, a court did not consider an ambiguously-worded ad an expression of incitement. See Eimann v. Soldier of Fortune Magazine, Inc., 880 F.2d 830 (5th Cir. 1989).

45. A mesit is subject to stoning; a zaken mamre to strangulation.

46. Cf. Cohen-Almagor, Raphael, Boundaries of Freedom of Expression Before and After Prime Minister Rabin's Assassination, in Liberal Democracy and the Limits of Tolerance supra note 3, at 83, 93Google Scholar; Lidsky, supra note 41, at 1018.

47. In Braun v. Soldier of Fortune Magazine, an advertisement for “Gun For Hire” was found sufficiently dangerous to the public and thus a prosecutor charged the magazine with incitement. See Braun v. Soldier of Fortune Magazine, 968 F.2d 1110, 1121 (11th Cir. 1992). See Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal, of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc). See discussion in Teeter & Loving, supra note 4, at 122-24, 131-34. See also discussion by symposium participants in 27 N. K.Y. L. REV. (2000).

48. The literal translation is: there is no (or one may not send out an) emissary for a transgression. Or, there is no agency for wrongdoing. The earliest mention of this principle is in the Gemara. Moreover, it is found only in the Babylonian Talmud and not also in the Jerusalem Talmud. See, e.g., BT Kiddushin Alb; Baba Kama 79a. See also MT Sheluchin v'Shutafin 1:1; Tur, , Choshen Mishpat 182:4Google Scholar.

49. For example, women and slaves who were sent to steal are exempt from paying for this crime, for they cannot personally pay reparations without permission from their husband or master, respectively. See BT Baba Kama 87a.

50. See R. Sama's comment at BT Baba Metzia 10b.

51. There is a contrapositive to this principle: “action by an agent is equivalent to action by the principal” for matters not transgressing the law. Cf., Mekhilta de Rabbi Ishmael. Bo, Tractate De-Pisha § 5 (p. 17). Found at Elon, supra note 32, 1:342. See also SA Choshen Mishpat 182.1.

52. See Lev 5:15-16 about guilt-offerings for trespasses. This crime (me'ilah) applies to all consecrated things, including sacrifices, money and objects donated to the Temple. BT Kiddushin 42b; MT Me'ilah 7.2.

53. See Exod 21:37 about the reimbursement for such wrongdoing. On this crime (t'vichah u'mchirah), see BT Kiddushin 42a.

54. These categories—the cheresh, shoteh and katan, respectively—are frequently cited in halakhah as classes not legally responsible for their actions. They cannot, for example, serve as witnesses in court cases. See BT Gittin 51 b; BT Kettubot 18a; ad loc.

55. MT Me'ilah 5.1. See also R. Isserles' commentary on SA Choshen Mishpat 182:1. The principal should have “known that the agent would carry out the agency inasmuch as the agent would not thereby be committing any wrong himself”—in the opinion of Elon, supra note 32, at 111:1365.

56. The Talmud rules that an individual should rather die than be coerced to engage in idolatry or sexual licentiousness or commit murder. See BT Sanhedrin 72a-74b.

57. MT Rotzeach U'Shmirat Nefesh 2.2. See also BT Kiddushin 43a.

58. Israeli law, by contrast, holds an inciter culpable for offenses an audience perpetrates that “are a probable consequence of carrying out the counsel” of the speaker. See Lederman, Eliezer & Tabory, Mala, Criminalization of Racial Incitement in Israel, in Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination, supra note 5, at 182,186Google Scholar.

59. This discussion of harms draws from Sumner, supra note 3, and Sumner, supra note 1.

60. Cf., Plato's Apology, in which Socrates all but urges the Athenian jurors to convict him and sentence him to death.

61. This is distinct from the scenario of the hostile audience. See Barendt 302ff, supra note 7.

62. Austin, supra note 2, would call these perlocutionary acts.

63. These would be illocutionary acts, according to Austin, supra note 2. See discussion of such harms in R. v. Keegstra [1990] 3 C.S.R. 697 (Can.).

64. Schauer, supra note 43, at 192. On fighting words, see Chaplinsky v. N.H., 315 U.S. 568 (1942).

65. Schauer, supra note 43, at 199.

66. The challenge here is to differentiate this incitement from sedition.

67. “Public provocation” is a critical element for international, European and Australian legal systems. Cf., Saul, Ben, Speaking of Terror: Criminalizing incitement to Terrorism, 28 Univ. N. S. Wales L.J. 868 (2005)Google Scholar. Saul distinguishes indirect incitement (e.g., “Osama is a great man”) from apologie du terrorisme (i.e., speech that praises, condones or justifies terrorism in the abstract). Recklessness, however, may bring about utterances that could be considered indirect incitement or apologie. For this reason, intending actual harm (to government or persons) is critical for prosecution for incitement. Saul (at 884) acknowledges that the United States' “clear and present danger” test generally protects public provocation, indirect incitement and apologie from unnecessary restriction even in times of war.

68. As indicated above, Maimonides (MT Mamrim 3.4) opines that even if a zaken mamre confesses his crime, he may retain a place in the world to come but does not relieve himself of due punishment.

69. M at BT Sanhedrin 67a. Someone who entices another Jew to idolatry is a commoner (hediyot) and the one so seduced is also a hediyot. The Gemara on this mishnah points out that if the mesit were a prophet, he would be strangled and not stoned. See Rashi's comments on this mishnah in this regard. Maimonides disagrees. He rules that prophets should also be stoned. See MT Sanhedrin 5.1. The other forms of execution include decapitation and burning. The rabbis disagree about the levels of severity these modes of execution entail. See M and discussion at BT Sanhedrin 79b and following.

70. The mishnah continues: “If he says, “I will worship it,” [Rashi comments here that if the mesit says any one of the following phrases he incurs guilt:] or “I will go and worship,” or “Let us go and worship,” or “I will sacrifice [to it],” or “I will go and sacrifice,” or “Let us go and sacrifice,” or “I will burn incense,” or “I will go and burn incense,” or “Let us go and burn incense,” or “I will make libations to it,” or “I will go and make libations to it,” or “Let us go and make libations,” or “I will prostrate myself before it,” or “I will go and prostrate myself,” or “Let us go and prostrate ourselves”—[for all these sayings, guilt is incurred].” M at BT Sanhedrin 67a. See this ruling also at MT Avodah Zarah 5.3.

71. On entrapment generally, see Passamaneck, Stephen M., Police Ethics and the Jewish Tradition, 131–32 (C.C. Thomas 2003)Google Scholar.

72. See M Makkot 1.8.

73. MT Avodah Zarah 5.3. Elsewhere, Maimonides rules that if one remains silent or nods his head when warned that he is about to engage in a flogging-worthy or capital crime, this suffices to protect him from those punishments. See MT Sanhedrin 12.2. This holds true even if he repeats the crime and in spite of being warned again. But this does not hold if he does the crime a third time: he is imprisoned for life. See MT Sanhedrin 18.5.

74. A reckless speaker who repeatedly (at least twice) calls for idolatrous worship could be found guilty of a capital crime even though his speeches did not induce anyone to engage in such illegal behavior.

75. See symposium introduction by David Franklyn, J., Media Violence Tort Cases: Problems of Causation and the First Amendment, 27 N. K.Y. L. Rev. iii (2000)Google Scholar.

76. See cases discussed in Teeter & Loving, supra note 4, at 120-34.

77. See BT Yoma 85b; BT Yevamot 90b; MT Mamrim 2.4, 9. Cf., Elon, supra note 32, at 1:519-20, 533-36.

78. MT Mamrim 2.4. See discussion in Sacks, Jonathan, Creativity and Innovation in Halakhah, in Rabbinic Authority and Personal Autonomy 135–39 (Sokol, Moshe Z. ed., J. Aronson 1992)Google Scholar.

79. Schenck v. U.S., 249 U.S. 47, 52 (1919).

80. See Wallenstein, supra note 43.

81. M at BT Sanhedrin 67a.

82. MT Sanhedrin 11.5. Though forewarnings (hor'a'ah) are generally required for capital crimes, the Talmud states that they are unnecessary to condemn a mesit to death. See BT Sanhedrin 88b.

83. This latter permission falls within the din rodef—the laws of pursuit. See M at BT Sanhedrin 73a; BT Sanhedrin 74a; MT Rotzeach U'Shmirat Nefesh 1:6, 1:7, 1:8, 1:13, 1:14; SA, Choshen Mishpat 421:13.

84. See discussion in Crane, Jonathan K., With a Mighty Hand: Judaic Ethics of Exercising Power in Extraordinary Warfare, in Enemy Combatants, Terrorism, and Armed Conflict Law: A Guide to the Issues 184–206 (Linnan, David K. ed., Praeger Security Int'l 2008)Google Scholar.

85. See BT Sanhedrin 88b.

86. MT Mamrim 3.4.

87. The zaken mamre is taken to Jerusalem and executed during one of the three major pilgrimage festivals when masses of Jews would be able to witness it (a minority opinion says he should be executed immediately and not wait until the next holiday). A mesit's execution is to be publicized to the whole of Israel. Cf., M at BT Sanhedrin 89a and Gemara there; MT Mamrim 3.8.

88. See Schauer, supra note 43; Schauer, Fred, The Cost of Communicative Tolerance, in Liberal Democracy and the Limits of Tolerance, supra note 3, at 28–42Google Scholar.

89. Thus the Supreme Court held in the so-called “Pentagon Papers Case” that prior restraints on speech (or the press) are subject to “a heavy burden of showing justification for the imposition of such a restraint.” N.Y. Times Co. v. U.S., 403 U.S. 713, 714 (1971) (per curiam) (internal quotation marks and citation omitted).

90. Other forms of speech, however, may warrant the death penalty, especially during times of national insecurity.

91. The halakhic permission to lethally prevent a mesit from re-articulating his call to idolatry would be difficult if not impossible to translate into Anglo-American law insofar as this would all but deputize citizens to pre-emptively kill one another lest the other speak inciting content. It should be noted, though, that the halakhic permission to use lethal force to prevent a speaker from promoting idolatry is only that: permission. It is not a preference, and certainly not a religious or legal obligation. Furthermore, it could be argued that as capital punishment is only theoretically available to Jewish courts and not actually so, all the more so is this true for individuals acting extrajudiciously: they should not take another's life even though halakhah permits them to. Cf., BT Makkot 7a; MT Shofetim ch. 12.

92. Cf., U.S. Const, art. I, § 9, cl. 3 (“No Bill of Attainder or ex post facto Law shall be passed.”).

93. When determining a sentence, federal courts in America are obliged to “consider the need for the sentence imposed to reflect the seriousness of the offense, [and] to promote respect for the law.” (18 U.S.C. § 3553(a)). Assessing an offense's seriousness is achieved in part by considering it in juxtaposition to other offenses as well as in light of society's values generally.

Alternative sanctions could well serve as expressive measures to condemn the offense. The suggestion of alternative sanctions has been put forward (and later retracted) by Dan M. Kahan, among others. See Kahan, Dan M., What do Alternative Sanctions Mean?, 63 U. Chi. L. Rev. 591 (1996)CrossRefGoogle Scholar. For a critique, see Markel, Dan, Wrong Turns on the Road to Alternative Sanctions: Reflections on the Future of Shaming Punishments and Restorative Justice, 85 Tex. L. Rev. 1385 (05 2007)Google Scholar. See also critique of Martha Nussbaum's reservations of shame as a legitimate form of punishment in Brooks, Thorn, Shame on You, Shame on Me? Nussbaum on Shame and Punishment, 25 J. Applied Philosophy 322–34 (2008)CrossRefGoogle Scholar.