We have just observed Tisha B’Av- the ninth day of the Hebrew month of Av. One of the least understood of the Jewish holy days, Tisha B’Av commemorates the destruction of the First and Second Temples in Jerusalem, the release of the edict of the expulsion from Spain in 1492, and other terrible events in Jewish history. Jewish tradition asks: Why was the second temple destroyed? The rabbinic answer? Sinat chinam— baseless hatred. The rabbis believed that hateful speech can destroy a temple, can destroy a community, can destroy a nation.
I remember when I first was studying the amendments to the United States constitution in 7th grade. Our teacher, Mr. Buncis, taught us a profound lesson one day: that even our most dearly held rights have limits. When we challenged him on that statement with regards to the 1st amendment’s guarantee of freedom of speech, asserting, as 7th graders are wont to do, that freedom of speech is absolute, he said, “not according to Oliver Wendell Holmes.”
At that time, we didn’t know who Oliver Wendell Holmes was, and, Mr. Buncis being who he was, wasn’t about to make it easy on us. He cancelled class, sent us to the library, and told us to not come back until we knew whom Oliver Wendell Holmes was, and why Mr. Buncis would reference him in this context.
So off we went to the library, unaccompanied. Off we went to look at actual books. If we had only had Wikipedia back in those dark and hormone-filled days, we would have been back in a flash. But we had to wade through actual tomes, card catalogues, biographies. I made my way to the World Book Encyclopedia, selected the volume for the letter “H,” and began to read what you may already know.
Oliver Wendell Holmes, Jr. was an associate justice of the Supreme Court from 1902 to 1932. As I began to read about him, someone else from my class, from deep in the recesses of the stacks of the Brookwood Intermediate School library, shouted out “clear and present danger!” I didn’t know what that meant, so I went back to reading about Holmes. There is so much to say about him; he was a veteran of the American Civil War. Among other things during his long tenure on the Supreme Court, he advocated broad freedom of speech under the First Amendment. Reading this, I wondered why Mr. Buncis pointed us in his direction? Wouldn’t Holmes have agreed with us 7th graders– that there should be no limits on freedom of speech?
It might seem that way, but it turns out that even Oliver Wendell Holmes, champion of free speech in America, understood that there were limits.
In 1919, Holmes wrote for the majority in the Supreme Court in a case called Shenk v. United States. In the opinion he writes, quote:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. […] The question in every case, [Holmes writes] 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.
Shouting fire in a theater– I’d heard that phrase before, but didn’t know where it came from. Clear and present danger– I loved that movie, but I didn’t know that Oliver Wendell Holmes had coined the phrase.
So it turns out that our right to free speech isn’t unfettered; when our speech is designed to cause panic, when it seeks to incite evil, we are not free to utter those words, and more, we must be held accountable for our language, lest the walls of our temple coming tumbling down.
There are moments when words bother me, when a person says something I simply abhor, but I choose not to pick that fight, because I know that the person has the right to speak their mind, even if I think they’re wrong. It’s the First Amendment at work, just like Oliver Wendell Holmes would have suggested.
And then there are other moments- times when I can’t stay silent, when, I believe, people of faith and conscience can’t stay silent, because what is going on in society is so seismic, so utterly inconsistent with our values, that silence becomes consent. There are moments when someone is shouting fire in a theater, and we have to recognize it for what it is– intentionally panic inducing, evil inciting, creating a clear and present danger.
This is such a moment. This is a moment when I wonder what I would tell my children if they later asked me why I said nothing.
Let’s be clear. There are deep differences in political philosophy in this congregation and in this country. There are those who believe that government should be minimally involved in the lives of American citizens, and those who believe that government has a larger role. I respect those differences; they stem back to the founding of our great nation, to the room where it happened.
As a rabbi, I want to foster healthy, respectful dialogue about these political differences; I intend to help my community be perhaps one of the few places in our modern lives where we can disagree without being disagreeable. I intend, too, for the community I lead to be proudly political without being partisan: I believe that Judaism demands both things of us. What I am addressing here is not about partisanship. It is about about is how we should treat, approach, respond to a person– any person, of any political persuasion, who falsely shouts fire in a theater to cause panic, to incite evil.
There’s a long and inglorious history of American politicians saying things that are vile and reprehensible. But even against that, the current political climate is extreme.
With which shouts shall we start? There is a candidate for President who implied that gun rights fanatics might consider taking the law into their own hands should the wrong presidential candidate be elected or the wrong judge be appointed. That any presidential candidate of any political party might speak in such a way that leaves it open to interpretation and the debate of talking heads whether or not he meant to advocate for the assassination of his political opponent is morally, spiritually, ethically, and religiously irresponsible at best, and criminal at worst. I condemn this furor-whipping, and I look forward to seeing the condemnation of his words by peoples of all faiths and no faith, by people from every political persuasion. The first amendment right to free speech is limited in certain ways, and this rhetoric steps way over the line.
Yes, the first amendment gives anyone the right to say vile, reprehensible things– denigrating women, mocking people with disabilities, berating war heroes and their families. That is their first amendment right, as hard as that is to believe, as much as it makes me angry as a Jew, as a human being.
But when a presidential candidate uses his or her pulpit to expound racial hatred over and over again; when they consistently vow to ban an entire group of people from entering this country based on their religion; when a person proudly proclaims they can shoot people on the streets of New York with impunity; and when they imply that violence against someone they disagree with might be warranted, such a person has gone beyond the realm of politics and political party. They have gone beyond what our founders meant when they crafted the 1st Amendment. Mr. Buncis taught me that. Oliver Wendell Holmes taught me that. And our vast Jewish experience teaches us this lesson as well.
When a candidate for the most powerful elected office in the world speaks in this way, they are falsely shouting fire in a theater. They seek not to convince us of their perspective, but rather, they intend to incite panic and fear. They seek to sow seeds of anger. They seek to fan the flames of hatred. When they do this, they are not even pretending to expound a particular political philosophy; they skip right over that legitimate endeavor to incite mistrust, to dehumanize races and classes and genders and ethnicities. Sinat chinam— baseless hatred– is such a person’s stock in trade when they use this language. And, as we see over and over in videos from rallies this election cycle, these strategies work. People who are fed angry, hateful messages are whipped into an angry, hateful frenzy.
I urge you to take time now to consider the sinat chinam, the baseless hatred, that is being spewed in our nation today. Consider well whether you will be silent, for fear of being accused of violating the right to free speech, or whether you will speak out. The walls of the temple of American democracy are trembling.
Rabbi Joel Mosbacher serves Temple Shaaray Tefila in New York City.