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For a short while today I happened to listen to talk radio. Mentioned was the ‘Supreme’ Court decision in the Brandenburg v. Ohio case, which involved a KKK leader in Ohio who was charged under Ohio statutes (1969). The lower court decision was overturned by the Supremes and appears to legitimize and enshrine Talmudic halacha in American law.
[Remember, the KKK was either started or subsequently infiltrated and then mostly run, by the intelligence services for a variety of purposes, including, among many things, entrapment and incitement to violence.]
From Cornell’s Legal Information Institute (LII), Chicago-Kent College of Law and Justia.com. https://www.oyez.org/cases/1968/492
Facts of the Case
“Brandenburg, a leader in the Ku Klux Klan, made a speech at a Klan rally and was later convicted under an Ohio criminal syndicalism law. The law made illegal advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling “with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
Question
“Did Ohio’s criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg’s right to free speech as protected by the First and Fourteenth Amendments?”
Opinion
“The Court’s Per Curiam opinion held that the Ohio law violated Brandenburg’s right to free speech. The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.” The criminal syndicalism act made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action. The failure to make this distinction rendered the law overly broad and in violation of the Constitution.”
So the Supremes hung their hats on free speech. The Supremes ‘held’:
Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. FREEDOMS OF SPEECH AND PRESS DO NOT PERMIT A STATE TO FORBID ADVOCACY OF THE USE OF FORCE OR OF LAW VIOLATION EXCEPT WHERE SUCH ADVOCACY IS DIRECTED TO INCITING OR PRODUCING IMMINENT LAWLESS ACTION AND IS LIKELY TO INCITE OR PRODUCE SUCH ACTION.
I’d be curious to see how this indictment against Elitzur is ‘ruled’ by the Sanhedrin….I mean, the Israeli judiciary. But, I think we may safely presume (see paragraph below) that Elitzur will serve no prison time. The decision will state he exercised “poor judgment” by failing, in a timely manner, to remove his inflammatory articles from the website after receiving too many approving comments from his followers. Of course, the fact that he was inciting violence is precisely what his cult members understood him to be doing and they obeyed his suggestions, since he is, after all, their ‘teacher’ or ‘rav’. Who knows? Elitzur may even be deemed a “tzadik”, which according to Maimonides is “one whose merit surpasses [his/her] iniquity.”
“The indictment against Elitzur, a senior rabbi of Yitzhar’s Od Yosef Chai Yeshiva, said he should have removed the content when both articles received considerable feedback from supporters of such attacks. However, Elitzur failed to do so, the court documents said.”
So, it appears “a senior rabbi of Yitzhar’s Od Yosef Chai Yeshiva” has already given his ruling. It’s a matter of making it ‘legal’ in the secular world. If you’re going to incite people to violence, and you’re a rabbi, you need to do it in such a way as to ensure plausible deniability.