Free Speech & Jewish Law

From New Jersey Jewish News:

Moderator Andrew Napolitano, a New Jersey Superior Court Judge from 1987 to 1995 and the current senior judicial analyst at Fox News Channel, kicked off a broad discussion of First Amendment controversies with a question to Rabbi Shlomo Yaffe, dean of the Manhattan-based Institute of American and Talmudic Law.

“If there were no First Amendment would we still have the freedom of speech?” Napolitano asked him.

“Absolutely,” said Yaffe. “We know that God had freedom of speech. He spoke and the world came into being…. We have free will and the ability to express ourselves.”

First Amendment attorney Bruce Rosen of Florham Park was asked whether Kentucky’s Rowan County clerk Kim Davis was acting within her religious rights when she refused to issue a marriage license to a gay couple.

“She had no business doing that,” said Rosen, although he questioned whether she should be jailed. “She took an oath — but should judges, when enforcing their decisions, use the most force necessary?”

“They ought to use as little force necessary as possible,” said New York University law professor Jeremy Waldron of Closter. “Of course we have to say, ‘The law must be obeyed.’ But there has to be some way for officials to at least absent themselves” when laws odious to their beliefs are being enforced.

Speaking of how talmudic law might apply in the Davis case, Yaffe said, “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being. There may be other sanctions and punishment” more appropriate.

Shifting the focus to the issue of hate speech, Napolitano showed a video excerpt of a talk by author Salman Rushdie, who defended the right of the French satirical magazine Charlie Hebdo to publish its broad attacks on religion. Rushdie spent years in hiding after his own writing offended Muslim clerics; 11 members of the Charlie Hebdo staff were murdered by Islamist gunmen in January.

Waldron defended the regulation of hate speech, which is stricter in France, Germany, and other Western democracies that have a “fear of intercommunal violence, fear that communities will erupt against each other, and this can be inflamed by a slow-acting poison.”

“What do you do,” asked Napolitano, “when an insular and discrete group — the Jewish people, the Catholics, whatever the case may be — cannot practice their religion because of the hatred generated by the use of free speech by people who don’t want their religious practices? Does that justify interference with their speech?”

“In my view it does,” said Waldron, “but it may be unconstitutional.”

Answering the same question indirectly, Yaffe said “Jewish law prohibits gossip.”

Napolitano reacted with amazement. “You gotta be kidding,” he said.

“The reason is, Jews are good at it,” said the rabbi. Then, as the laughter subsided, he said, “Jewish law and ethics cut across the grain of our discussion here because anything you say should be useful, helpful, and good.”

Asked to present “closing arguments” on their views of free speech, Waldron said, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”

“Freedom of speech is not free,” said Rosen. “There are consequences and blowbacks. The answer to speech that you can’t like or tolerate is more speech.”

“Each one of us should be asking ourselves, ‘What are you doing with this amazing gift of speech?’” said Yaffe. “Are you using it for empty, harmful, inane purposes, or are you using it to educate, to share, to argue, to disagree, to call out, to reveal the banality of misbehavior?

“Are you using your speech for responsible and good purposes, and if you are, Judaism demands that we create a society where the capacity for free speech should not be chilled.”

Marc B. Shapiro blogs:

Someone who read my earlier posts that discussed various punishments ordered by Jewish courts asked me about a quotation from R. Shlomo Yaffe, dean of the Institute of American and Talmudic Law, which offers a different perspective. See here. Before even getting to the particular quotation, let me say that I have real problems with some of what was said (or at least reported to have been said) at the recent conference on Jewish law reported on the link just given. For example, Rabbi Yaffe was asked, “If there were no First Amendment would we still have the freedom of speech?” The only correct answer has to be that without the First Amendment our freedom of speech will be endangered, and it could even become illegal to speak publicly about certain laws in the Torah (e.g., homosexuality), as this could be categorized as “hate speech”. But instead, Rabbi Yaffe replied: “Absolutely . . . We know that God had freedom of speech. He spoke and the world came into being. . . . We have free will and the ability to express ourselves.” How does this bit of darshanut answer a serious question about the importance of the First Amendment?

Professor Jeremy Waldron stated at the conference, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”[27] This is exactly why we need a First Amendment and why free speech must be protected. If it became illegal for some idiot to say, “All Muslims are terrorists,” then the next thing would be punishing people for saying that “Muslims are more likely to support terrorism than adherents of other religions,” and bans on the drawing of Muhammad’s picture and insulting the Prophet would not be far behind because after all, these are viewed by Muslims as defamations of their religion. (Muslims in Europe have already demanded that those insulting Muhammad not be protected by free speech laws.)

In other words, giving an inch in this matter would open up the floodgates and would be the end of free speech in America. As I already mentioned, this would also be a big problem for the traditional Jewish community, since it is only the constitutional guarantee of free speech that prevents “progressive” groups from legislating against “hate speech” found in religious communities. Based on the quote from Waldron, I would assume that he is a supporter of the “speech codes” that at one time were so popular at universities, until people began to realize the stifling effect they actually had on free speech. For those who are having trouble remembering what they learnt so many years ago: The First Amendment was created precisely in order to protect unpopular speech.

The particular quote from Rabbi Yaffe that I was asked about is the following: “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being.” What this means is that incarceration is only designed to protect the innocent, but Jewish law and tradition does not recognize incarceration as a means of punishment. This statement is simply false. Let us remember that incarceration must be seen as an improvement over the physical punishments I have detailed in earlier posts….

Jews always placed people in prison and Jews ran their own prisons. How else were they to punish criminals? Would you prefer corporal punishment or mutilation? Since when do we let the prisoner decide what his punishment should be? Different communities decided on different ways of punishing depending on what they thought would be more effective.

In medieval Spain they didn’t think that lashes were a good enough punishment, so they came up with even harsher physical punishments.

…So we should give lashes to white-collar criminals, including women? People who embezzle should be lashed? Sorry, that is not a sentiment that I share.

>>>Why should what the most appropriate punishments are be determined based on your “sentiments” rather than be based on Hashem’s sentiments?

Because there are no rules in the Torah regarding how to punish white collar criminals. This is for society at large to determine…

The man had no interest in being married to her. Refusing to give her the get was a punishment. This would just lead her to continue to commit adultery and the sin is much greater than if she would be divorced. Great poskim say that in such a situation the husband is obligated to give a get.

…Based on the comments and emails, I think it is fair to say that most people are shocked to see that e.g., dayanim refuse to order a sexual abuser or adulterer to divorce if that is what the wife wants. This is not something they were aware of. This is why the movie Gett made such an impact, since people were generally unaware of how the batei din operated and what was an acceptable ground for divorce…

In rabbinic literature רועה זונות generally means visiting a prostitute for sex, not running a business with harlots (although I did find one reference that used it in this way). The expression comes from Prov. 29:3…

There are loads of teshuvot dealing with a man who is a roeh zonot and it always means visits prostitutes…

I now know of a number of hasidic marriages in which husband and wife relate to each other not very differently than in non-hasidic marriages. They might not have known each other before they got married, but after marriage they have marriages built on trust. I know loads of American haredim and I don’t see any difference between their marriages and the marriages of non-haredim. In all the haredi marriages I know, trust is very important…

Again, it could be that the hasidim I know are themselves more modern (after all, they talk to me, host me in their homes etc. . . .) But I have to say, that the hasidic (non-chabad) marriages I know, and this includes Satmar, appear to me to be loving marriages and not “arrangements”. Of course there are plenty of hasidic marriages where this is not the case, but there are plenty of non-hasidic marriages where this is also not the case.

For those of us who didn’t grow up in that world, it all seems very foreign and would never work for us, but if you grow up in that system, you have different expectations. I think Shulem Deen’s recent memoir is relevant in this regard…

Originally I had an entire paragraph dealing with it which I wrote two months ago. I went on about how the IBD is being attacked while no one is saying a word about how two haredi rabbis have annulled a marriage, doing something much more radical than was ever done by the IBD. I had to delete it because in the last month no one cares anymore about the IBD and we see that many big haredi rabbis are indeed going after Rabbis Greenblatt and Kamenetsky.

As for the substance of the annulment, going only on what I have read (and maybe there is other information not publicly available), it appears to be a complete perversion of all halakhic standards. There is no way one can annul a marriage in this fashion without legitimizing the Rackman beit din. But what can they do now? Tell the woman she has to divorce her new husband? This would be a great personal tragedy for someone who has already suffered a great deal and she only got married because she was told it was OK. Also, think what it will do to emunat hakhamim if the head rabbi of the Agudah has to publicly declare that he made such a terrible mistake.

I have no information other than what I have read in the press. My judgment that this appears to be a terrible error is based on what I have read, and also based on what R. Hershel Schachter has recently said about the case. I hope that this is incorrect and that more information comes out. But if not, all it shows is that even great people (and R. Kamenetsky and R. Greenblatt are both great scholars with decades of good deeds and service to the Jewish people) can also make a serious mistake. It should be enough to point this out without trying to destroy them. Obviously there are troublemakers out there going from rabbi to rabbi getting them to sign documents attacking R. Kamenetsky and R. Greenblatt. Are these people doing this to uphold halakhah or to settle partisan scores?

But we saw this with what they did to R. Goren also. Unfortunately, halakhic disagreements turning into character assassination is nothing new.

See here at 33:30 where R. Schachter states that R. Greenblatt admits that he made a mistake because he didn’t have all the information.

So this should be the end of the matter since the posek admits he was wrong (misled)

About Luke Ford

I've written five books (see My work has been followed by the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (
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