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

Abstract

“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 burningExcept 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.