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By Lawrence Solum

Raphael Cohen-Almagor (University of Hull) has posted Regulating Hate and Racial Speech in Israel (Cardozo Journal of International and Comparative Law, Vol. 17, pp. 101-110, 2009) on SSRN. Here is the abstract:

Israel is a Jewish democracy. It is founded on Halacha (Jewish law) and on liberal principles. While some segments of Jewish orthodoxy believe there is no room for freedom because all is dictated by the Almighty, liberal ideology is based on the tenets of freedom. While some segments of Jewish orthodoxy believe that all Jews are in the same boat, and must sink or swim together, liberalism believes in tolerance and in a ?live and let live? attitude. The tension between the two basic foundations of Israel is noticeable and significant.

In this paper, I discuss the question whether the liberal State should prosecute people for preaching hate. After presenting both sides of argument, I argue that the State ought to weigh the costs of allowing hate speech as well as the risks involved, and balance these against the costs and risks to democracy and free speech censorship. Considering Israel?s special circumstances, its legal framework, and recent trends following Israel?s evacuation of the Gaza Strip I argue that in a perfect world we would respond to hate with education, not criminal laws. But our world is not perfect and history shows that hate speech might lead to horrible crimes. Therefore, legal intervention may be warranted to fight down racism and bigotry. At the same time we should insist on satisfying some stringent requirements before we pursue the legal avenue. The law may be appropriate but only in significant rare circumstances.

Full post as published by Legal Theory Blog on July 01, 2009 (boomark / email).