Rabbi Drorah Setel

       Our service tonight began with Kol Nidre, an acknowledgment of the power of our words. “Blessed is the One who spoke and the world came into being,” says the prayerbook. From a Jewish perspective, words literally create the world.

       No wonder then that our tradition instructs us to be careful with our words. Leviticus 19:16 tells us, “You shall not go around as a tale bearer among your people and you shall not profit by the blood of your neighbor.” This verse can also be read as “You shall not go around as a tale bearer among your people, so that you shall not profit by the blood of your neighbor.” Such a connection between malicious speech and murder is present in a talmudic discussion of the damage done by verbal abuse, “Anyone who humiliates another in public, it is as though that person were spilling blood [Bava Metzia 58b].” Proverbs 18:21 bluntly says, “Life and death are in the power of the tongue.” Later commentators and scholars articulated the specifics of refraining from “lashon hara,” literally, “evil tongue,” arguing that there should be no discussion of others whatsoever, except in court or to prevent harm. Our Yom Kippur liturgy includes numerous references to the power of speech. In the Al Chet, the long confession, we reflect on the transgressions we have committed both “be-si’ach siftoteinu,” “the conversation of our lips” and “birchilut,” by slander or gossip. In the Chassidic tradition of storytelling, the great difficulty of making amends for slander is presented in a tale some of you may be familiar with:

A man went about the community telling malicious lies about the rabbi. Later, he realized the wrong he had done, and began to feel remorse. He went to the rabbi and begged forgiveness, saying he would do anything he could to make amends. The rabbi told the man, “Take a feather pillow, cut it open, and scatter the feathers to the winds.” The man thought this was a strange request, but it was a simple enough task, and he did it gladly. When he returned to tell the rabbi that he had done it, the rabbi said, “Now, go and gather the feathers. Because you can no more make amends for the damage your words have done than you can bring back all the feathers.”^[1]

       The profound damage that can be done through speech was one of the clearest lessons of the Shoah. Growing up, I learned that language and images dehumanizing Jews was essential to the Nazi enterprise.

Propaganda was one of the most important tools the Nazis used to shape the beliefs and attitudes of the German public. The Nazis’ distribution of antisemitic films, newspaper cartoons, and even children’s books aroused centuries-old prejudices against Jews and also presented new ideas about the racial impurity of Jews.^[2]

       On a personal level, all of us have felt the pain of being hurt by speech. As a child, I was bullied by a next-door neighbor a year or two older than I was. At some point, an adult in my life taught me the mantra, “Sticks and stones may break my bones but words can never hurt me” because I remember standing in my backyard after the neighbor inflicted some verbal injury, repeating it to myself as tears ran down my cheeks. It’s hard to forget unkind words, even if we know they were said unintentionally.

       I’m sure little or any of this is new to you. Judaism teaches us to respect that words have power and to take care not to hurt others with our speech. What I would like to consider tonight is how this relates to the contemporary United States and our historical reliance on the First Amendment’s guarantee of free speech to uphold democracy. There is a real tension between our Jewish beliefs and experience and our American ones with regard to this issue and I think it is critically important for us to address the problem.

       My own thinking about this has changed significantly. In addition to that ineffectual ditty about sticks and stones, I was also raised to believe that “the answer to bad speech is more speech.” This is actually a shorthand version of something written by Justice Louis Brandeis in a Supreme Court decision:

If there be time to expose through discussion, the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.^[3]

The concept that bad speech can be countered by good speech came to be known as the counterspeech doctrine and continues to be a basis for Supreme Court decisions. For example, in 2001 the Court struck down a Massachusetts law restricting tobacco advertising. In his opinion on the case, Justice Clarence Thomas argued

…that if the state of Massachusetts’ “concern is that tobacco advertising communicates a message with which it disagrees, it could seek to counteract that message with ‘more speech, not enforced silence.’”^[4]

This case raises one of the key problems with the counterspeech doctrine. Responding to the message of the tobacco companies’ advertising would require economic resources equal to or greater than those of the tobacco industry. Groups with less power in society—think of those Jews in Hitler’s Germany—do not have the same access to forums in which they can make their counter arguments.

       On a personal level I learned about the limitations of the counterspeech doctrine when I lived in Buffalo and was active in an interfaith organization, the Network of Religious Communities. The Network included the full range of religious groups in the area and one of its purposes was to resolve intergroup conflicts. About fifteen years ago I was asked to a meeting with members of the local Muslim and Jewish communities. As part of an annual lecture series, the Jewish Federation had invited Daniel Pipes, who argued, among other disparaging points, that Muslim immigration posed a threat to the United States. Local Muslim leaders were extremely distressed that such a person would be given a platform by the Federation. From the perspective of the Jewish people at the table, this was a matter of presenting different points of view. For the Muslims, it felt like a threat to the safety of their children. In a post 9/11 climate of fear and hostility toward Muslims in America, they lived with verbal and physical aggression based on misinformation. To them, Pipes’ presentation would only add fuel to the fire.

       You might be surprised to hear this, but at first I wasn’t sympathetic. Jewish members of the group pointed out that local Muslims had invited anti-Zionist speakers whose message they believed to be equally harmful. The result was a much longer process of conversations in which the Network developed guidelines for member organizations. The basic principle behind them was a simple question: will this event bring members of our community closer together or work to further polarize them? What I learned from this experience was that while free speech might be possible, it isn’t always preferable. I also saw firsthand the impact speech had in a way that could not be addressed by counterspeech.

       My faith in counterspeech was further questioned by young people I knew who argued that hateful ideas, the kind of demeaning and dehumanizing beliefs that played such an important part in the Shoah, should not be seen as just another point of view. Students at Middlebury College and UC Berkeley were portrayed as coddled “snowflakes” (a term which, by the way, comes from the alt-right) for preventing invited speakers from presenting their ideas. The media generally gave the impression that they wanted to silence these voices because they offended or upset them. But I think that does an injustice to the concern which motivated the students. What if the Jews in Germany had been in a position to fight the early Nazi movement? What if, whenever antisemitic speakers tried to give a presentation, they were shouted down? Obviously, the parallels aren’t perfect but the idea is that hate speech is not free—it has direct consequences.

       Which brings us to our current situation, where the internet and social media have created a separate world of white supremacist and anti-democratic belief. Andrew Marantz is a New Yorker staff writer who documents the alt-right. He points out that in another age, a 60 year-old racist he met “might have been relegated to muttering on his front porch,” but now is a public figure “with 25,000 YouTube subscribers.”^[5] Marantz asserts,

Having spent the past few years embedding as a reporter with the trolls and bigots and propagandists who are experts at converting fanatical memes into national policy, I no longer have any doubt that the brutality that germinates on the internet can leap into the world of flesh and blood.^[6]

And it has—in Pittsburgh, Christchurch, and elsewhere, mass murder has been the result.

       As American Jews we have skin in this game and cannot afford to sit on the sidelines thinking it won’t impact us. It already has. We can be, as Marantz puts it, free speech advocates without being free speech absolutists.^[7] He notes, “Speech should be protected, all things being equal. But what about speech that’s designed to drive a woman out of her workplace or to bully a teenager into suicide or to drive a democracy toward totalitarianism?”^[8]

       John A. Powell, a law professor at UC Berkeley, points out that protecting free speech does not negate a responsibility to protect those upon whom the speech has an impact:

We need to protect the rights of speakers…but what about protecting everyone else? It’s simpler to think only about the First Amendment and to ignore, say, the 14th Amendment, which guarantees full citizenship and equal protection to all Americans, including those who are harmed by hate speech…It’s simpler, but it’s also wrong.^[9]

       There are already legal limits to speech in this country. Most of us are familiar with some version of Oliver Wendell Holmes’ 1919 opinion arguing,

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. […] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.^[10]

You might be surprised to know that the case Holmes was deciding had nothing to do with anything like fires or theaters but concerned the arrest of a young woman for handing our anti-draft flyers during World War I. The Supreme Court unanimously agreed that this censorship of free speech passed the “clear and present danger” test. Today, as Maranz points out, we prohibit “[l]ibel, incitement of violence and child pornography” which “are all forms of speech. Yet…no one calls it the death knell of the Enlightenment.”^[11] Canada and many European countries have hate speech legislation related to the International Covenant on Civil and Political Rights declaration that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”^[12] None of these regulations have prevented those countries from remaining robustly democratic.

       Bringing our Jewish values into this American conversation can happen in numerous ways. One is by refusing to give a platform to malicious speech in our personal lives. Whether in private conversation or on social media we must object when hateful ideas are expressed.

       Conversely, we should support individuals and organizations working to raise the level of discourse. We can show up locally for speakers, films, and other programs concerning this issue and donate to the organizations that sponsor them. Nationally, as well, we can join and contribute to institutions such as the Reform movement’s Religious Action Center, the Anti-Defamation League, the Southern Poverty Law Center, and the ACLU, which are representing all of us in their work against hate.

       We also have a responsibility to learn more about legal remedies to prevent harmful speech. If you don’t think this is about you, your family, and our community, just spend some time on the internet searching Jewish topics. Inevitably, the search engine will turn up websites full of hateful and violent language about Jews and Judaism. Reading them is truly frightening.

        This does not have to happen. Private companies are not subject to First Amendment protection. As Andrew Maranz notes, “Even the most creative reader of the Constitution will not find a provision guaranteeing Richard Spencer a Twitter account.”^[13] What has allowed social media to avoid accountability is a section of the 1996 Communications Decency Act legislating that, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”^[14] In other words, FaceBook, YouTube, etc. bear no legal responsibility for what is published on their platforms. To be fair, in 1996 it was unlikely anyone imagined the growth and impact of social media. But we know better now and can work to have that section of the law repealed. We can also make the argument that, regardless of their legal obligations, these enormously influential platforms have an ethical responsibility to hire enough staff so that hateful postings can be monitored and deleted.

       Words matter. Words create the world. On Yom Kippur, we reflect on the actions we must take to re-create ourselves and our world for justice, compassion, and wellbeing, on how we may use our human powers of consciousness and choice for good. In every worship service, the central prayer, the Amidah, closes with a private meditation which begins, “My God, keep my tongue from doing harm, and my lips from lies and deceit.” Let us all work to make that a reality for ourselves and for our country and may the power of our words create a better world.