Judaism and Science

In August, 2022, Rabbi David Wolpe, then senior rabbi of one at the largest congregations in the United States, wrote an essay in Sapir Journal titled “To Err Is Human; to Disagree Jewish.” His point of departure is a story related in the Talmud which tells of how Rabbi Gamliel, at one point the leader of the rabbinic community, publicly shamed another rabbi, Yehoshua, who dared to challenge him on the issue of whether evening prayer was obligatory or optional. The sages were so offended by Rabbi Gamliel’s behavior that they deposed him as Nasi (presiding leader) and elevated another, Rabbi Elazar, who instituted changes that allowed more and fresher perspectives to presented. (See BT Berakhot 27b.) This alone might have been a dayenu moment, but chastened, Rabbi Gamliel apologized for his behavior and was awarded an opportunity to lead the academy again. 

The Talmud, Rabbi Wolpe notes, allows the expression of opposing views because they improve the thought process. “[O]penness to others . . . is also essential for creating a robust and living culture.” And these views are not just tolerated, they are recorded.  “Jewish texts,” Wolpe writes, “preserve minority opinions out of a recognition that circumstances change, and that answers to complicated questions can evolve over time.” (Wolpe, supra, at 24; see also, BT Mishnah Eduyot 1:5.)

The United States Supreme Court takes the same approach, and, from time to time, and dissenting opinions such as Justice John Marshall Harlan’s in the infamous racial segregation case Plessy v. Ferguson (1896) became the law of the land as in Brown v. Board of Education (1954). Similarly, the dissent of the first Jewish Supreme Court Justice, Louis Brandeis, in Olmstead v. United States (1928) regarding a citizen’s expectation of privacy, ultimately prevailed in Katz v. United States (1967). 

Just as the recognition and preservation of different (and dissident) opinions did not originate in the Supreme Court, neither did it begin in the Talmud, as Rabbi Wolpe undoubtedly well knows. There are a number of doublets and contradictions within the Torah we have received that not only underscore Rabbi Wolpe’s point, but also exist as tangible reminders that disagreement with prevailing opinion and advocacy of alternative ideas is not only embedded in our Jewish DNA today, it has been a part of our culture since Jews, or more precisely the ancient Israelites and Judahites, were able to put quill to scroll.  Indeed, as Rabbi Edward Feld  discusses in his new book, The Book of Revolutions (BOR), “opposition of ideas abound in the Torah,” as Exodus, Deuteronomy, and Leviticus sometime “seem like they are in dialogue with each other.” (BOR, at 41, 241.)

Feld is best known for being the primary editor of the Conservative mahzor (prayerbook), Lev Shalem. In his new book, though, he focuses on what he sees as three radical revolutions that generated three different texts that have become part of the Torah we have today.

In Feld’s telling, the first revolution took place in the Northern Kingdom of Israel in the latter part of the Ninth Century BCE, a time of economic growth and urbanization. It was the product of the teachings of the prophets Elijah and Elisha and gave us the Covenant Code found today in Exodus 21-24, just after the Ten Commandments. (See BOR, at 15, 19, 27, 108.)

While covenants or treaties between kings and the local populace or nearby vassals were common, this code identified the Israelite god YHWH as the ruling monarch. And, while many of the laws in the Torah reflect legal traditions found in the ancient Near East, in response and resistance to the then common worship of multiple Philistine or Phoenician gods, this code demanded exclusive worship of YHWH, a deity separate from other heavenly beings and a non-human ruler with a distinctive moral concern. (See BOR, 20-21, 43.) 

Of course, the story of the Northern Kingdom ended badly as it was conquered by the Assyrians in 721 BCE. Many of its people were transported to Assyria or lands controlled by the Assyrians, though some managed to migrate to the Southern Kingdom of Judah.

According to Feld, the second revolution rose out in Judah in the later part of the Seventh Century BCE. It gave us a comprehensive constitutional system, with a monarch educated by a sefer ha-torah, a book of instruction, that ultimately became what we know as Deuteronomy. (See BOR, at 85-96.) Legal matters were left generally to elders, an undefined group. (See, e.g., Deut. 21:18-19, 22:13-22.) Religious rites and rituals to be centered in a place chosen by God and administered by Levitical, not Aaronide, priests, who also acted as judges and teachers. (See, e.g., Deut. 10:8, 12:4-5, 11-14, 17:8-131, 18:1-8, 33:10.)                  

The story of the Southern Kingdom also ended badly. With the death of King Josiah in 609 BCE, not much more than twenty years after the public appearance of a scroll containing the core of the Deuteronomic platform, Judah became governed first by Egyptians and then by Babylonians. The Babylonians first besieged Jerusalem in 597 BCE, carried away the treasures of the Temple and deported to Babylon Judah’s king, the royal family, key military personnel, and notables, among others. In a second campaign about a decade later, the Babylonians reportedly burned down to the ground what remained of the Temple, and set fire to all other houses in Jerusalem as well. (See 2 Book of Kings 24:10-16, 25:1-12.)       

In Rabbi Feld’s understanding, a group of reformers sitting in exile in Babylon tried to figure out “what had gone wrong.” (BOR, at 170.)  In the course of their deliberations, they imagined not only a return to Jerusalem, they envisioned a new social ethos, one different in tone and content from the Kohains’ Covenant Code and the Deuteronomists’ sefer ha-torah. They dreamt of a people who imitated their god in ways which could be described as kadosh, an indefinite term many interpret as “holy.” But, writes Feld, this holiness was not, as Deuteronomy held, about the separate, national status of the people. Instead, it was a “way of life” that reflected “divine qualities.” (See BOR, at 179-80.) 

Like their predecessors, the members of this Holiness School also wrote a code. This code was so inspiring that the compilers and editors of the Torah included it in what was considered prime literary real estate, near the middle of the middle book of the enlarged Torah, flanked physically to the right by the Covenant Code and to the left by Deuteronomy, even though its philosophy was in disagreement with much of that found in those earlier codes. (See BOR, at 228, 232, 236.)

In the Torah we have today, the Holiness Code is located in the book of Leviticus. Parashah Kedoshim starts at chapter 19, verse 1 with the Israelite god YHWH telling Moshe to tell the congregation of Israelites that they should be kadosh, “ki ani kadosh, YHWH elohechem,” that is, because I, YHWH, your god, am kadosh. (Lev. 19:2.)

This announcement is itself novel. Whatever kadosh or holiness is, this code holds that it is not just for the High Priest, or even the priests generally. Neither is it just for the elites. And it most certainly is not to be gained by inheritance. It is, rather, for everyone. (See BOR, at 180-81.)

The conduct ordained is novel, too. As the story comes to us, although the Ten Commandments were only recently proclaimed at Mt. Sinai (see Ex. 20:1-14), the Holiness Code amends them and extends them, too, by introducing new material. For purposes of illustration, consider just these new rules: 

• The Fifth Commandment requires that a person honor his father and mother in order to long endure on the promised land. (See Ex. 20:12.) The Holiness Code, though, requires reverence for one’s mother and father irrespective of location and, moreover, commands that you rise before the aged and show deference to the elderly irrespective of parentage. (See Lev. 19:3, 32.)
• The Sixth Commandment prohibits murder. (See Ex. 20:13.) The Holiness Code teaches that you shall not stand idly by the blood of your neighbor. (Lev. 19:16.)
• The Seventh Commandment prohibits adultery. (See Ex. 20:14.) The Holiness Code states that you shall not let your daughter be a prostitute. (See Lev. 19:29.)
• The Eighth Commandment prohibits stealing. (See Ex. 20:15.) The Holiness Code adds that you shall not deal deceitfully or falsely with one another, or defraud another, or exploit a laborer. (See Lev. 19: 11, 13.) 
• The Ninth Commandment bans false testimony against one’s neighbor. The Holiness Code says that you shall not spread slander or rumors among your people. (See Lev. 19:16.) The code is clear: You shall not do an injustice in judgment.  You shall not be partial to a poor person, nor favor or show deference to a rich person. (See Lev. 19:15.)
• The Tenth Commandment prohibits not conduct, but the mental state of coveting a neighbor’s spouse or possessions. (See Ex.20:17.) The Holiness Code also contains a negative commandment regarding one’s mental state, directing that you shall not hate your brother in your heart. (See Lev. 19:17.)      But it also famously requires in the affirmative that you shall love your neighbor as yourself. (See Lev. 19:18.) And, notably, this love is not just for an Israelite neighbor. This obligation to love must reach to the alien who resides with you in the land. (See Lev. 19:33-34.)  

There are other provisions and modifications in the Holiness Code, and the contrast with earlier codes is stronger in some places than others, to be sure. Bar Ilan Professor Emeritus of Bible, Edward Greenstein reads this intra-biblical exercise as a midrash on the Decalogue. But while we have interpretive commentary, and elaboration, the Holiness Code is more than a riff on language. Overall, there is something new here in the message and the delivery, something elevated, aspirational, almost utopian.

Now, putting additional ethical meat on the bare bones of the Ten Commandments was surely contrary to the injunction in the book of instruction that became Deuteronomy to refrain from adding to or subtracting from that text, which, itself, had restated the Ten Commandments but with only a few minor word changes. (Compare Ex. 20:11 with Deut. 5:15.) But even those arguably brazen expansions were not sufficient for the Holiness School. To try to make sure that the listener or reader got the main point, after the initial command to be holy, the text, with minor variations, repeated the obligation twice more, once in the middle and once at the end of Kedoshim: 

• You shall be holy because I, YHWH, am holy. (See Lev. 20:7-8, 26.)

Clearly, in the Holiness Code, the content and the language shifted from what is found earlier in the Exodus narrative. We are not in holy cow land anymore. (See Ex. 32: 1-6.)  We are not concerned with prohibited practices or required rituals as identified in the Covenant Code. (See Ex. 34:14-26.) Here we have directions not simply for a behaviorally conforming group, or a possibly just society, or an ideally ethical community, but for a holy nation!

As remarkable as the contents of the Holiness Code are, perhaps more amazing is what happened to the Code after King Cyrus, the Persian conqueror of the Babylonians, in an unprecedented and historically unique act, allowed the Judahites to return to and rebuild Jerusalem. A new group of priests, who Feld believes were sitting in exile in Babylon, collected the three legal codes, as well as other traditional stories, some of which came with Northern and Southern variations, and they stitched them together as if they were part of a seamless whole. (See BOR, at 236, 241-45.)

Rather than negotiate what Feld has called the “tricky” “politics of religious rectitude,” Feld argues that the final editors “understood that they were heirs to a multiplicity of traditions.” (BOR, at 237, 242.) So, instead of “favor(ing) one traditional perspective or another,” they sought — in Feld’s view “quite intentional(ly)” — to include and preserve multiple and diverse traditions. (BOR, at 236, 244.)  The result is that “(i)nclusiveness marks the entire Torah” as “different elites and different geographic origins” are represented through their different tribal stories. (See BOR, at 236-37.)  

While this may be frustrating for some who would have preferred if not a particular viewpoint, at least some semblance of internal consistency in the new expanded Torah, it also “ensured that the community of its followers [would] have varied outlooks, varied perspective on critical theological issues, and varied practices.” (BOR, at 248.) As time passed, the wisdom of this approach became obvious, as inclusiveness allowed “for the legitimacy of all of our varied feelings and motives throughout a lifetime of lifetimes.” And, in Feld’s mind, it should also “ultimately impel an underlying acceptance of difference.” (BOR, at 250.)

We would be remiss, though, in a discussion on the value of diversity of thought, and also not consistent with the historic values identified by rabbis Wolpe and Feld, if we did not recognize the exceptions to this record. Rabbi Shaul Magid, Distinguished Fellow in Jewish Studies at Dartmouth, has cautioned that the notion that the Talmud can be a “model for tolerance” or a lesson on inclusiveness has its limits. Here, Rabbi Magid is correct. 

The academy of the sages was not open to all, and advocacy of certain subjects was undoubtedly limited. There was not, for instance, much tolerance for the view that there were multiple true gods, or even one god with multiple distinct personae. Nor will you find recorded advocacy for a belief in a messiah who died for the sins of humanity and was resurrected. 

Similarly, while the Torah contains internal contradictions, there surely were texts that did not make it into the canon. The truth is that we do not know the full scope of what could not be discussed because, simply, it was not discussed. The Torah does not contain a list of banned books or sources, and the Talmud does not contain a list of forbidden topics.  

In more modern times, Jewish censorship for political and cultural, as well as religious, reasons, was also not unknown. Perhaps most (in)famously, at the beginning of the Enlightenment in Europe, Baruch Spinoza, then only 23 years old, was excommunicated by his community.  And, in the past eighty years, The Sabbath Prayerbook edited by Mordecai Kaplan was burned (he was also excommunicated) and three books by Natan Slifkin, containing his considerations of science, cosmology, and evolution, were banned.  In each instance, these activities were undertaken by Jews who apparently missed their tolerance class, although the excommunication of Spinoza, while undoubtedly related to Jewish objections to his revisionist, but not yet published, ideas, may have been as much out of concern for the opinions of the Dutch governors of Amsterdam in which his Portuguese refugee community resided. 

That the record of Jewish tolerance has been neither complete nor unblemished should not surprise us. As one contemporary Talmud scholar, Mark Washofsky, teaches, religious communities need limits in order to define their beliefs and practices and to distinguish themselves from others. Still, the reality of such limits cannot diminish either the fact or the scope of the dominant communal impulse over two and a half millennia. The list of excommunications and book burnings and bannings is, after all, relatively short.

Moreover, religious groups are hardly the only social organizations that draw lines. As Conor Friedersdorf points out in “The Atlantic,” secular societies, even “fair” societies, “(i)nevitably . . . impose social sanctions on some bad behavior,” as well. (Emphasis in the original.) But, because “(t)hey frown on arbitrary or excessive sanctions . . . they reserve the most extreme extralegal punishments, such as public shaming, shunning, or depriving people of their livelihood, for extreme cases.”

Unfortunately, in much of America today, not necessarily in particularly Jewish settings (though they are not immune), but especially and sadly in places which should know better, a worrisome number of individuals and institutions have lost their willingness or ability to tolerate diverse viewpoints on issues of public policy and matters of public interest, and have instead succumb to the cancer of cancel culture, an attitude which, with minor exceptions acknowledged, runs counter to Jewish practice from the creation of the Torah, through the Talmudic period, until now.

Now, cancel culture can mean different things to different people. Some years ago, one of my law professors, Harry Kalven,Jr., coined the term “Heckler’s veto” with respect to a limited action to prevent a person from speaking or performing. Cancel culture, though, is the Heckler’s veto writ large. Hardly restrained or reserved, cancel culture is an arrogant effort to impose intellectual orthodoxy by those who fear or despise heterodoxy.

In “Jews and Cancel Culture,” an essay in the Sapir Journal that accompanied Rabbi Wolpe’s, Bret Stephens, Pulitzer Prize winning commentator and currently writer-at-large for the New York Times, identified five elements of cancel culture:

• Cancel culture emerges from a certain mentality, that of a “cry-bully” who combines “self-pity and vindictiveness.” 

• Cancel culture involves action to deprive a person not just of a chance to speak, but destroys a reputation, a career, and sometimes a life.

• Cancel culture employs social pressure directed not just at the primary target, but widely in order to intimidate.

• Cancel culture depends on capitulation. It “flourishes because coward culture allows it.”

• Cancel culture becomes pervasive, as self-censorship limits what people are willing to say. 

These elements distinguish cancel culture from callout culture. Both approaches, in their most productive form, arguably attempt to secure accountability for some perceived wrong. But callout culture seeks to educate rather than shut down. It allows for t’shuvah, or repentance, rather than demanding resignation or termination of employment. Similarly, these elements distinguish cancel culture from boycotts. The latter encourages third parties to avoid contact or commerce with an alleged transgressor, but does not interfere with the rights of others to access ideas, services, or goods of a purported offender. 

Contemporary cancel culture, though, is a type of tyranny, a phenomenon at odds with the spirit of liberty which has guided our country for over two centuries and far worse than the red-baiting witch hunts of one deranged junior senator from Wisconsin in the 1950s. Cancel culture warriors arrogantly appoint themselves as indictors, prosecutors, evaluators, and punishers of some perceived wrong, and the punishment, generally severe, rarely fits the alleged crime.

Evidence of cancel culture unfortunately abounds, and it does so even, and maybe especially, in circumstances where free speech ought to be encouraged not punished. One survey, by the Foundation for Individual Rights and Expression,  has identified over 500 incidents in which scholars at colleges and universities were targeted between 2015 and early 2022. About two-thirds of the complaints came from the political left of the scholar and just under one-third from the political right of the scholar. The universities with the most incidents were Stanford, Harvard, Georgetown, and UCLA. (See “Scholars Under Fire: 2021 Year in Review.”) We should not be surprised then that another survey, this of almost 1500 professors at colleges and universities across the country, revealed that half are “worried about losing their jobs or reputation because someone misunderstands something they have said or done, takes it out of context, or posts something from their past online.” (See “The Academic Mind in 2022: What Faculty Think About Free Expression and Academic Freedom on Campus.”)

If professors are under pressure, what about students? A survey of college students, released in in 2022 by Heterodox Academy, reveals that almost three of every five students is reluctant to talk about a significant controversial topic for fear of generating negative social reaction or retribution from other students. (See “Understanding Campus Expression Across Higher Ed.”)  

Consequently, when colleges and universities are not welcoming to full and free expression of viewpoints, it is not surprising, though perhaps simultaneously horrifying and depressing, that cancel culture has reared its unenlightened head in what should be the places most dedicated to and accepting of argumentation and the value of the adversary process: law schools. Yet we have seen would-be attorneys so unable to deal calmly and rationally with viewpoints with which they disagree that they take action to silence proponents of those viewpoints.  

In March, 2023, some Stanford law students shouted down United States Appellate Court Judge Stuart Kyle Duncan (5^th Cir.) who was invited to speak by another group of law students. Whether the opposing students disapproved of the president who nominated the judge, the senate that confirmed the nomination, the judge’s viewpoints expressed prior to nomination, any of his decisions, or all of the foregoing is not entirely clear. One student reportedly expressed her thoughts by saying “We hope your daughters get raped,” not exactly a cogent argument for restricting speech. 

The incident led Stanford’s president and the law school dean to issue an apology to the judge for the behavior of the students and, also, to reprimand a Stanford administrator who piled on during the cancelling, but the effort to cancel was successful in that Judge Duncan never did get to talk with the students who invited him. 

Subsequently, it was a liberal commentator, writing from another coast across the country and not a fan of the judge who was attacked, who well understood part of what was lost. Said Ruth Marcus in the Washington Post, the students “lost a chance to learn.” She could have added that because they failed to come to listen, they also failed, presumably, to take advantage of an opportunity to challenge the judge’s opinions and the assumptions and logic underlying them. In short, they also lost a chance to teach and hold the judge accountable for his allegedly erroneous views. The incident at Stanford was, sadly, not an isolated one. For a sample of cancellation activity imperiling free speech at law schools like Georgetown, Yale, BYU, and elsewhere, look here, here, here, and here.

And as bad as it is for Americans generally, because it restricts critical thinking and inventiveness and enterprise, and because it punishes disproportionately, cancel culture may well be worse of Jews, in particular. We are the spiritual descendants of the patriarch Abraham, who tradition portrays while young as a literal iconoclast, a destroyer of crafted idols, and who, as a more mature adult, was also brave enough to debate with a deity he acknowledged over the fate of the cities of Sodom and Gomorrah. (See Gen. 18:16-33.)

We are also a people who thrive in liberal societies where civil rights are protected and opportunity abounds. So, as a people, we serve as the canary in a cultural coal mine. Decades ago, Jews were accused, simultaneously, of being communists and capitalists. Today, in circles that would divide Americans by race or ethnicity, and rank degrees of oppression and victimization, Jews, who historically have been oppressed, are now seen as oppressors, Jews who historically have been wanderers and immigrants, are now seen as colonialists, and Jews who historically have been restricted from engaging in preferred occupations and living in desired neighborhoods are now seen as privileged.

It’s all very Orwellian, this creation and application of Newspeak, but it is, basically, just new speech in service of an ancient prejudice which lives among the closed minded, those who are unwilling to examine facts, test premises, and engage in critical thinking and dialogue, among whom are those who engage in cancel culture. 

These are, then, challenging times, and the challenge is, without exaggeration, an existential one, for it asks us to determine the kind of society in which we would live. In this space, we have tended to focus on how Judaism meets challenges arising from the natural sciences. Cancel culture, though, is a social phenomenon, not fundamentally an exercise based on factual inquiry to ascertain truth, but, rather, an effort to support a preexisting narrative by excluding constant testing and retesting which activities are both valued by the natural sciences and on which they are dependent. Constant, respectful give and take are also markers of a healthy, open society.

The present challenge, therefore, falls within the realm of the social sciences, especially political science and social psychology. Consequently, we can learn from NYU professor of Ethical Leadership Jonathan Haidt who wisely counsels that there are different interests that motivate those who engage in cancel culture. He suggests that students may be acting out of a tenuous concern for “safety” which goes beyond physical and emotional safety to include things that might “offend” them. Here cancel culture may be a means to strengthen a group which seeks to further a political end favored by the student, and may be seen as a means to the strengthen the student as well. As for faculty who facilitate or pile on, rather than doing so for prestige, they may be acting out of “fear that they will be next.” 

If we Jews are, as Stephens describes us, “a people of argument, not excommunication,” we must resist the closed-mindedness of cancel culture. We must do so because we are a people who, by and large, value tolerance, but, truthfully, also a community that needs tolerance in order to be Jewish. Our experience and memory is such that we do not need to be a degreed historian or political or social scientist to recognize what fate awaits us if diversity of thought and expression is curtailed, if minority viewpoints and those who hold them are canceled. 

Defending freedom of thought and expression is not always easy, especially when the thoughts involved may be distasteful or worse, and a mob is howling for censorship. But Judaism teaches us to be better than those who would silence and punish others. In Hillel’s formulation of the golden rule, he urged us to not do to others what is hateful to ourselves. (See BT, Shabbat 31a.) It is an approach that could profitably inform those tempted to engage in cancel culture. It does not preclude disagreement, far from it. But it does require that we disagree without being disagreeable.

We must, therefore, encourage critical thinking, develop skills that promote it, and accompany this with an attitude open to learning on the one hand and repentance on the other. Rather than curse perceived darkness, we need to shed light. Rather than act based on what we feel like, we need to proceed based on what we think about a matter, and then only if we have deliberately and skeptically reviewed the applicable facts, and considered the possibilities of various responses. We need to be slow to anger, and if not compassionate in our responses, at least humble enough to be cognizant of our biases. 

Cancel culture is neither thoughtful, nor humble. It is the culture of the cul de sac, set off, if not closed, to the larger community, admitting no flow except from one direction, and circular in its operation. And it is shortsighted, not just in its vision, but in its urgency to act.

Even when it wins some battles, cancel culture is, ultimately, also both unproductive and counterproductive. As the Religious Freedom Institute recognizes:

Compulsion may result in compliance, for a time, but it always breeds resentment, and that resentment leads to hatred and eventually conflict. Cancel culture warriors would do well to recognize that the punitive social regime they are advancing is ultimately an exercise in raw power that may eventually end with them on the same scaffold on which they have consigned so many others. It is a substantial gamble for them to operate on the assumption that this time, unlike all the others, the revolution won’t devour its own. 

(Emphasis in original.)

We must, then, be better than those who posture in pursuit of punishment, who claim grievance that needs immediate relief while being blind to the needs, claims, and rights of others. We, who are taught in the Holiness Code to remove stumbling blocks before the blind (Lev. 19:14), must also act now to remove impediments to the free and full expression of factual information and ideas based on such information. We must identify and address barriers to critical thinking that are erected by:

• our instincts to find simple reasons for why something has happened and villains, or at least scapegoats, to blame for perceived problems,
• our instinct to adopt simple solutions for those problems, 
• our tendency to divide ourselves into subgroups and then demean the other, 
• our inability to understand or our lack of patience with context and nuance,  
• our reliance on generalizations that may not be warranted, 
• our assumption that the past is prologue, that certain activity will continue to develop or certain innate characteristics will continue to dominate as they have previously, 
• our extrapolation of risks which result in fear or paralysis, 
• our sense that the direction of events or conduct cannot be changed by dialogue and cooperation or ingenuity and creativity but only by force, and
• our instinct to take immediate action rather than consider options.  

(See generally, Rosling, Factfulness (Flatiron Books, 2018.))  

Contrary to what you may have heard, the arc of history does not always bend towards justice because life is not linear. It is messy.  As a result, history oscillates, cycling through better and worse times. If there is any comfort regarding the current incarnation of would-be witch burners, it is the knowledge that their Sixteenth Century predecessors ultimately faded away, as did the anti-Catholic Know Nothings in the Nineteenth Century and the malevolent followers of the anti-Jewish Father Edward Coughlin and the reckless defamer Sen. Joseph McCarthy in the Twentieth Century. 

As the intrepid reporter Edward R. Murrow reminded Americans during the dark days of McCarthyism, “we are not descended from fearful men – not from men who feared to write, to speak, to associate and to defend causes that were, for the moment, unpopular.” Here Murrow was speaking consistent with Justice Brandeis who earlier wrote: 

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.

Whitney v. California, 274 U.S. 357, 375 (1927) (concurring).

There is no doubt that there is plenty of noxious talk being uttered today, some dumb and some divisive, but there is a way to combat such speech other than cancelling the speakers or banning their expressions, however temporarily cathartic for some that may be. Absent a clear, present, dangerous and irremediable emergency, better to follow Justice Brandeis: 

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. . . . If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

 Whitney, supra, at 376-77 (1927)(concurring).

Brandeis’s opinion is recorded as a concurring opinion, in that he joined in the judgment being rendered, but, in reality his was a dissenting opinion, arguing for a broader scope of free expression than the majority was willing to grant. In another demonstration of what Rabbi Wolpe saw as a Talmudic recognition that circumstances change and solutions evolve, Brandeis’s understanding of the importance of extensive protection for free speech triumphed in Brandenburg v. Ohio, 395 U.S. 444 (1969), which overruled Whitney and has remained the standard decades later. In a per curiam decision, the Supreme Court held that speech loses it constitutional protection if (but only if) “1) it is directed at producing imminent lawless action and 2) it is likely to produce such action.” Even advocacy of the use of force or of law violation of law cannot be forbidden “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 395 U.S. at 447.

If this is the scope of permissible speech, speech that cannot be constrained by established governmental units, or their officers or employees, by what authority or right do unelected and unaccountable individuals or groups have to deprive others of their right to hear lawfully protected speech? 

It is fair, of course, to ask whether circumstances have changed again, whether the times are so different from 1927 when Whitney was written or 1969 when Brandenburg was.  Surely, technology has enabled speech to be recorded (or even invented), preserved, and located in unprecedented ways, and then disseminated more broadly and more quickly than in decades long passed. Some might be concerned that if false statements or hateful comments cannot be shut down, they will spread too fast and gain credence and support too quickly and widely to be countered effectively. Some might think that the brains of teenagers and younger, which are not fully developed, need protection from what would-be protectors consider dangerous ideas.

We, who are heirs to a tradition of diversity, can share these concerns, and we cannot guarantee that the forces which would close minds will not succeed someday. But, at a minimum, and absent some clear showing of imminent harm, we should not help those forces prevail by limiting today the free flow of ideas and, thereby, making their task easier.   

Tolerance of diversity of thought can regain its historic and rightful place if we have strength and can strengthen each other. (Cf. Josh. 1:9, 2 Sam. 10:12.) If we are strong and resolute, and if we act consistently with our traditional appreciation of well-grounded dissent, gam zeh ya-avor, this current eruption of the small and closed minded shall pass too.