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Law forum probes the limits of free speech
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Law forum probes the limits of free speech

Stuart Rabner, chief justice of New Jersey’s Supreme Court, said it took decades for individual states to protect the religious freedom of minorities, even after passage of the First Amendment.     
Stuart Rabner, chief justice of New Jersey’s Supreme Court, said it took decades for individual states to protect the religious freedom of minorities, even after passage of the First Amendment.     

lively discussion of the First Amendment and its relationship to the laws of the Talmud combined controversial issues and comic moments Sept. 21 at the ninth annual Jewish Law Symposium, held at Birchwood Manor in Whippany.

The gathering of 800 attorneys was sponsored by Chabad of SE Morris County (see sidebar) and featured Chief Justice Stuart Rabner of New Jersey’s Supreme Court.

Keynoting the proceedings, Rabner, of West Caldwell, noted that long after passage of the Bill of Rights and its guarantees for free religious exercise, Catholics, Jews, and Quakers were denied public office by many state laws. In New Jersey it took until 1844 to erase such discriminatory language from its constitution.

Moderator Andrew Napolitano, a New Jersey Superior Court Judge from 1987 to 1995 and the current senior judicial analyst at Fox News Channel, kicked off a broad discussion of First Amendment controversies with a question to Rabbi Shlomo Yaffe, dean of the Manhattan-based Institute of American and Talmudic Law.

“If there were no First Amendment would we still have the freedom of speech?” Napolitano asked him.

“Absolutely,” said Yaffe. “We know that God had freedom of speech. He spoke and the world came into being…. We have free will and the ability to express ourselves.”

First Amendment attorney Bruce Rosen of Florham Park was asked whether Kentucky’s Rowan County clerk Kim Davis was acting within her religious rights when she refused to issue a marriage license to a gay couple.

“She had no business doing that,” said Rosen, although he questioned whether she should be jailed. “She took an oath — but should judges, when enforcing their decisions, use the most force necessary?” 

“They ought to use as little force necessary as possible,” said New York University law professor Jeremy Waldron of Closter. “Of course we have to say, ‘The law must be obeyed.’ But there has to be some way for officials to at least absent themselves” when laws odious to their beliefs are being enforced.

Speaking of how talmudic law might apply in the Davis case, Yaffe said, “In general, Jewish law and tradition are extremely opposed to incarceration as fundamentally immoral unless it is to protect someone from inflicting real harm on another human being. There may be other sanctions and punishment” more appropriate.

Shifting the focus to the issue of hate speech, Napolitano showed a video excerpt of a talk by author Salman Rushdie, who defended the right of the French satirical magazine Charlie Hebdo to publish its broad attacks on religion. Rushdie spent years in hiding after his own writing offended Muslim clerics; 11 members of the Charlie Hebdo staff were murdered by Islamist gunmen in January. 

Waldron defended the regulation of hate speech, which is stricter in France, Germany, and other Western democracies that have a “fear of intercommunal violence, fear that communities will erupt against each other, and this can be inflamed by a slow-acting poison.”

“What do you do,” asked Napolitano, “when an insular and discrete group — the Jewish people, the Catholics, whatever the case may be — cannot practice their religion because of the hatred generated by the use of free speech by people who don’t want their religious practices? Does that justify interference with their speech?” 

“In my view it does,” said Waldron, “but it may be unconstitutional.”

Answering the same question indirectly, Yaffe said “Jewish law prohibits gossip.” 

Napolitano reacted with amazement. “You gotta be kidding,” he said.

“The reason is, Jews are good at it,” said the rabbi. Then, as the laughter subsided, he said, “Jewish law and ethics cut across the grain of our discussion here because anything you say should be useful, helpful, and good.”

Asked to present “closing arguments” on their views of free speech, Waldron said, “People have a right to be protected from vicious defamations upon them on account of their religion. So if somebody says, ‘All Muslims are terrorists,’ we believe [Muslims] have a right to be protected against that defamation.”

“Freedom of speech is not free,” said Rosen. “There are consequences and blowbacks. The answer to speech that you can’t like or tolerate is more speech.”

“Each one of us should be asking ourselves, ‘What are you doing with this amazing gift of speech?’” said Yaffe. “Are you using it for empty, harmful, inane purposes, or are you using it to educate, to share, to argue, to disagree, to call out, to reveal the banality of misbehavior? 

“Are you using your speech for responsible and good purposes, and if you are, Judaism demands that we create a society where the capacity for free speech should not be chilled.”

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