www .press .umich .edu michigan Liberal Democracy and the Limits of Tolerance Liberal Democracy and the Limits of Tolerance Essays in Honor and Memory of Yitzhak Rabin Edited by Raphael Cohen-Almagor Ann Arbor THE liNIvERSITr OF MICHIGAN PREss Copyright © by the University of Michigan 2000 All rights reserved. Published in the United States of America by The University of Michigan Press Manufactured in the United States of America @ Printed on acid-free paper 2003 2002 2001 2000 4 3 2 1 No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, or otherwise, without the written permission of the publisher. A elP catalog record for this book is available from the British Library. Library of Congress Cataloging-in-Publication Data Liberal democracy and the limits of tolerance: essays in honor and memory ofYitzhak Rabin / edited by Raphael Cohen-Almagor. p. cm. Includes bibliographical references and index. ISBN 0-472-11016-0 (acid-free paper) 1. Freedom of speech. 2. Freedom of the press. 3. Toleration. I. Cohen-Almagor, Raphael. II. Rabin, Yitzhak. III. Title. JC591 .L52 2000 323.44'3-dc21 99-050595 ISBN13 978-0-472-11016-2 (cloth) ISBN13 978-0-472-02391-2 (electronic) Contents Acknowledgments .......................................... vii Introduction Raphael Cohen-Almagor .................................... 1 The Legacy of Yitzhak Rabin Mrs. Lea Rabin .......................................... 24 The Cost of Communicative Tolerance Frederick Schauer ........................................ 28 Protest and Tolerance: Legal Values and the Control of Public-Order Policing David Feldman ........................................... 43 Freedom of Speech and Political Violence Owen Fiss ............................................... 70 Boundaries of Freedom of Expression before and after Prime Minister Rabin's Assassination Raphael Cohen-Almagor ................................... 79 The Dual Threat to Modern Citizenship: Liberal Indifference and Nonconsensual Violence Harvey Chisick ........................................... 99 The Paradox of Israeli Civil Disobedience and Political Revolt in Light of the Jewish Tradition Sam Lehman-Wi/zig ...................................... 114 Should Hate Speech Be Free Speech? John Stuart Mill and the Limits of Tolerance L. W Sumner ........................................... 133 vi Contents Holocaust Denial, Equality, and Harm: Boundaries of Liberty and Tolerance in a Liberal Democracy Irwin Cotler ............................................ 151 The Regulation of Racist Expression Richard Moon .......................................... 182 Freedom of the Press and Terrorism Joseph Eliot Magnet ...................................... 200 Reporting on Political Extremists in the United States: The Unabomber, the Ku Klux Klan, and the Militias David E. Boeyink ........................................ 215 Pragmatic Liberalism and the Press in Violent Times Edmund B. Lambeth ...................................... 232 Protecting Wider Purposes: Hate Speech, Communication, and the International Community David Goldberg .......................................... 251 Riding the Electronic Tiger: Censorship in Global, Distributed Networks J. Michael Jaffe ......................................... 275 Contributors ............................................. 295 Index of Court Cases ....................................... 299 Index ................................................... 301 Acknowledgments In early 1996, I began to think of organizing an international conference to tackle the intricate question of how democracies should deal with intoler ance and political extremism. The idea was twofold: to bring together some of the leading scholars in Israel and abroad to reflect together on this issue and to enable them to enrich one another, and the public at large, with their careful consideration and insights. No less importantly, I wanted to cherish Prime Minister Rabin's memory and to dedicate this conference to the very idea that brought about his tragic fate: the promo tion of peace between Israel and its neighbors. I also wanted to emphasize the idea of promoting peace among Israeli citizens themselves. How can we establish peace with our neighbors if we are unable to live peacefully with one another? This book assembles some of the essays that were presented at the international conference that commemorated one year since Prime Minis ter Rabin's assassination. The conference was entitled "Ethics, Law, and Communication in an Era of Political Violence and Extremism: An Exam ination of the Boundaries of Liberty and Tolerance in Liberal Democra cies." It was held at the University of Haifa on 28-31 January 1997. I wish to thank my colleagues at the University of Haifa who shared the same concerns and welcomed the initiative. The Dean of Social Sci ences, Professor Baruch Nevo, and the Rector of the University, Professor Mordechai Shechter, not only encouraged me but actively supported this enterprise. Vice-President for Development Ms. Yael Metser and Coordi nator of the University's Israeli Desk Ms. Shulamit Yarkoni both pro vided invaluable help at every stage of the organization of this event. In addition, the Haifa Research Authority, especially Dean Aharon Ben Ze'ev, Secretary of the Social Sciences Faculty Ms. Shoshi Landman, and my loyal personal assistants, Dafna Gold-Malchior and Keren Eyal, pro vided valuable support after the conference. Without their goodwill, advice, and service, this volume could never have been"assembled. Finally, I am most grateful to the editors of the University of Michi gan Press for their hard and skillful work. Introduction Raphael Cohen-Almagor Preliminaries Democracy in its modern, liberal formation is a young phenomenon. It was crystallized only after the Second World War. The idea that govern ments would be elected through popular vote alarmed and frightened the nineteenth-century decision makers. Now we are so accustomed to the idea of democracy that we tend to forget how young and fragile it is. One of the problems of any political system is that the principles that underlie and characterize it might also, through their application, endan ger it and bring about its destruction. Democracy, in its liberal form, is no exception. Moreover, because democracy is a relatively young phenome non, it lacks experience in dealing with pitfalls involved in the working of the system. This is what I call the "catch" of democracy. Some explanation is required to clarify the meaning of "the catch of democracy." Any political system-theocratic, liberal, Marxist, Leninist, Maoist, etc.-is based on a given set of principles. The working of these principles is designed to promote values that those systems hold dear. However, these same principles might endanger the very foundations of the political systems. The case is clear when authoritarian systems are pon dered. People want to free themselves and break the coercive bonds. But the same risk is also involved in the working of liberal-democratic princi ples.1 Like every young phenomenon, democracy needs to develop gradu ally, with great caution and care. Since democracies lack experience, they are uncertain with regard to the appropriate means to be utilized in order to fight down explicit antidemocratic and illiberal practices. Quite surpris ingly, literature about how democracies should cope with violence and political extremism is scarce. Abundant literature exists about the pros of democracy, the value ofliberty, the virtue oftolerance.2 Much less in com parison is devoted to the intricate issue of the appropriate boundaries of liberty and tolerance.