“Your right to swing your arms ends just where the other man’s nose begins,” wrote the American judicial philosopher and strong advocate for free speech, Zechariah Chafee. Chafee and many others who made similar statements were explaining that everything is permitted unless it impacts or injures another.
The approval by the Ministerial Committee for Legislation for a law I co-wrote earlier in the month that would proscribe the use of Nazi and neo-Nazi symbols and slogans has garnered an interesting and welcome debate on what should and should not be permissible under law in a free democratic society.
Firstly, it should be understood that, just as any other freedom, there is no such thing as absolute freedom of speech in any society. As Chafee and all senior jurists have made clear at one time or another, there are necessary infringements on every freedom because a full freedom for one may cause harm or injury on another, and a society which does not protect against such acts could have the capacity to descend into dangerous anarchy, where everybody acts as they please regardless of the consequences.
This law has a particular goal in mind, ending the increasing trivialization, belittling and transference of the Holocaust and Nazi atrocity. Unfortunately, the use of the term “Nazi” in Israel’s political discourse is not new. Around four decades ago, Professor Yeshayahu Leibowitz used the term “Judeo-Nazis” against those who he disagreed with, including Israeli judges and IDF soldiers.
The term and imagery has since been used by those from across the ideological spectrum, from those demonstrating against Yitzhak Rabin, the Disengagement and more recently, the creation of a law for equalizing the national burden.
The last two demonstrations had a small minority who manipulated the use of children wearing yellow stars as if to argue that their opponents are reminiscent of those who systematically liquidated six million Jews seven decades ago.
Interestingly, in the aftermath of the haredi demonstration which utilized the yellow star, a similar law to mine was introduced by many of my current detractors, who appear to suffer from amnesia even while the Knesset maintains an eternal record of their approval for the law.
Every society has its symbols and slogans, both for good and those that offend in a way that it is not easy for outsiders to fully comprehend. Many societies struggle with the idea of proscribing against the use of imagery which offends in a particularistic way.
In 2009, the Polish Government, as well as banning the use of Nazi symbols, which are also banned in many other nations, also proscribed the use or ownership of communist symbols. Those who break this law could spend up to two years in jail.
In 2007, the New York City Council voted unanimously to criminalize the use of the word “nigger”.
In 2011, in the wake of the shooting of the United States House Representative Gabrielle Giffords, fellow Democratic Rep. Bob Brady tried to push a bill that would ban symbols or language that threaten “a congressman, senator or federal judge.” In pushing the bill, Rep. Brady referred to a map published the year before by Sarah Palin in which House Democrats were targeted for electoral defeat with crosshairs over their districts. One of Palin’s targets was Rep. Giffords.
There are countless other examples from around the world of proscribing specific symbols, slogans or words.
What each of the many examples have in common is that they are an attempt to proscribe certain symbols or the use of certain words because of the great offense they hold in a particular location, either because of an abhorrent historical correlation or because they are perceived to be akin to incitement.
In Israel, there is no more abhorrent word, no greater embodiment of absolute evil and no greater incitement than the use of the term Nazi.
Millions of Israelis and Jews around the world suffered or lost loved ones at the hands of those who sought to end Jewish existence.
Many of the elderly that we meet or pass by on a daily basis are still massively traumatized by what was perpetrated against them and their families during the “Final Solution”.
It is thus no surprise that survivors of the Holocaust are so pained by the use of the term. When a similar bill to mine was discussed two years ago, the Center of Organizations of Holocaust Survivors in Israel lent their full and unequivocal support claiming that any and all use of Nazi or Holocaust symbols should be outlawed.
In a press release sent out during the debate, a lawyer representing the organization said: “Freedom of expression is of great value, but it is not the ultimate sacred value.”
And that is the root of the law, as legislators it is our job to balance competing needs. Some will approve, some will not, but that should not prevent us from accomplishing our elected responsibility to protect the freedoms of citizens of the State of Israel.
On the one hand we have those who feel that the use of the world “Nazi” should not be criminalized, even though most are in agreement that it should play no role in political debate. On the other hand, we have seen that the term has incited to violence and is meant to debase another to the point that they become a legitimate target, and furthermore it is a term that deeply offends Holocaust survivors, a population whose sensitivities should be paramount.
This is the crux of the debate on this and similar laws. As legislators, we should always bear Chafee’s words in mind. We should always be mindful of the freedom of citizens to act as they please. However, we should be motivated to act at the point where the arm lands on the nose of another, then we should work towards the protection of those who are the victims of the proverbial flailing arms.