What is the difference between a possibility that is “tangible” and a possibility that is “reasonable”? If Israel’s attorney general, Emmanuel Mazuz has his way, it might be the difference between going and not going to jail for incitement to murder Prime Minister Sharon.
In the wake of the increasingly strident agitation against Sharon that has been emanating from extreme nationalist and religious circles in response to his “Gaza disengagement” plan, Mazuz has proposed changing the wording of Israel’s present anti-incitement law. As it stands, the law forbids any “call to commit an act of violence or terror,” as well as any public expression of “sympathy” or “support” for or “identification” with such a call, provided there is a “tangible possibility’ (efsharut mamashit) of this call’s leading to criminal deeds. Israel’s Ministry of Justice, however, worried about a repetition of the 1995 Rabin assassination, has complained that “tangibility” is too high a bar to obtaining convictions in court. The standard should be lowered, the ministry has proposed, from the “tangible” to the merely “reasonable” (efsharut s’vira) — a proposal that the attorney general has adopted.
Is there really any difference between a “tangible” and a “reasonable” possibility? Respected legal commentator Ze’ev Segal thinks there is. Whereas the first of these, he writes, represents a “sensible balance between the need to defend the freedom of expression and the need to prevent incitement to violence,” the second is “dangerous for Israeli democracy” because it can be used to shut down the ‘free marketplace” of ideas. What Israel needs, Segal says, is not a new law but simply the determination to enforce the old one, which is quite sufficient.
One certainly can agree that the determination to prosecute inciters of intra-Jewish violence has been lacking in Israel until now. Indeed, state prosecutors in Israel have almost never indicted anyone under the existing law, the legal adequacy of which remains unproved. Yet would the law be more easily enforceable if it were changed? Would a judge who felt compelled to acquit a defendant for saying something potentially incendiary about, say, Ariel Sharon under the present law choose to convict under the proposed new law?
Permit me to doubt it. In fact, unlike Segal, I don’t get the distinction between “tangible” and “reasonable” at all. Both of these terms are vague and imprecise and offer much leeway for subjective interpretation. Although both tell you that there is a certain realistic likelihood of A leading to B, neither indicates how great this likelihood is. Neither can be quantified so as to be compared with the other. You can’t say, “If a possibility is ‘tangible,’ there’s a 40% chance of its happening and if it’s ‘reasonable,’ there’s only a 20% chance.” You can’t even argue with someone who says that, as far as he is concerned, a “reasonable” possibility is greater than a “tangible” one.
Let’s take a specific case. Two weeks ago, Rabbi Ovadia Yosef, spiritual head of the religious Shas Party — a man with a long history of putting his foot in his mouth and a shorter one of being angry at Ariel Sharon — said of the prime minister in a talk to his followers, “He should be hit over the head [she’yekabel makka] and die.” Is there a “tangible” possibility that this remark could encourage one of the rabbi’s followers to implement it? And if there isn’t, is there a “reasonable” possibility? These are unanswerable questions, not only because there is no way of pinning down just what “tangible” or “reasonable” means in such a case, but also because even if there were a way, it would still be impossible to calculate the odds of anyone being sufficiently inspired by Yosef’s pronouncement to seek to act on it.
In fact, it seems to me, neither “tangible possibility” nor “reasonable possibility” is a useful concept in this context. Israel’s anti-incitement laws would best be framed differently, not in terms of the effect a given utterance might have but solely in terms of its intent. Was Yosef’s remark a “call to commit an act of violence or terror?” (He himself claimed afterward in his defense that he was invoking God, not human beings, to punish the prime minister.) If it was, it would be justifiable to prosecute him for it regardless of whether or not there was a possibility — “tangible,” “reasonable” or any other — of its being acted on. If it wasn’t, its putative effects should make no difference.
After all, if I were to call Ariel Sharon a tyrant or a fool, someone conceivably might interpret this, too, to mean that the prime minister is a misfortune for his people and needs to be eliminated, yet no democratically formulated system of justice would hold me responsible for that. The minute the legality of our utterances is determined ex post facto — not by what the courts think we meant by them, but by what they think other people might think we meant by them, the “free marketplace” of ideas is indeed in grave danger. The different between “reasonable” and “tangible,” whatever it might be, cannot possibly be great enough to merit being the difference between liberty and imprisonment.
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