What to do when a person running for high political office expresses views that strike most people as not only vile but fundamentally opposed to the essence of democracy?
The question, contemplated these days by many Americans observing the rise of Donald Trump, was one Israelis had entertained three decades ago when confronted with the seemingly unstoppable political ascent of Meir Kahane. As odious and discriminatory ideas continue to percolate in the American presidential race, the story of the Israeli rabbi’s fall from grace has become increasingly relevant.
Having first achieved notoriety with the violent Jewish Defense League, terrorizing Soviet emissaries to protest the persecution of Jews in the USSR, the Brooklyn-born Kahane emigrated to Israel in 1971 and immediately launched his political career. He called his movement Kach, or “this way,” an allusion to the famous slogan used by the Irgun, the pre-state paramilitary group whose flag featured a fist holding a rifle juxtaposed over a map of greater Israel, with the slogan Rak Kach, “only this way.” Kahane borrowed the iconic visual, too, and made the fist his instantly recognizable calling card. Soon it was spray painted on walls and bus stops around Israel by his hot-headed, young fans. As Israelis went to the ballot box in 1973, they gave Kahane nearly enough votes to become a member of Knesset: With 0.8 percent, he was just a touch below the 1 percent cut-off point. He tried again in 1977 and in 1981, but didn’t get very far amid the politically tumultuous period dominated by the historic fall of the Labor party and the election of Likud’s Menachem Begin as prime minister. But as 1984’s election campaign started heating up, so did Kahane’s rhetoric.
His new slogan had the elegant simplicity required of all true demagogues. “Give me the power,” it declared, “and I’ll take care of them.” One hardly needed to ask who they were, or what sort of care-taking was required: At every speech, Kahane repeated his core ideas, which included the forceful deportation of Israel’s non-Jewish citizens and the replacement of Israeli democracy with a theocracy based on halakhah. In town after town, thousands wearing Kach’s yellow-and-black T-shirts greeted the rabbi by chanting his name and calling for the death of all Arabs.
Terrified, Israel’s Central Elections Committee decided to disqualify Kach from running for office. “This party holds racist and anti-democratic ideas,” read the committee’s reasoning, “which stand in contradiction to Israel’s Declaration of Independence, openly supports terrorist acts, tries to incite hate and violence among parts of the Israeli population, aims to hurt the feelings and religious convictions of some of the state’s citizens, and negates the core tenets of Israeli democracy.” The Supreme Court, however, disagreed; Kach, the court found, wasn’t opposed to the state’s existence and merely wished to alter its system of government, which was to be tolerated in democracies. Kahane was allowed to run. This time, he was successful: On Aug. 13, 1984, he was sworn in as a member of the Knesset.
This was too much for his fellow parliamentarians, who, with very few exceptions, made a point of leaving the room whenever he rose to deliver a speech. Tickled by the contempt of his colleagues, Kahane goaded them further by calling them Hellenists, a derogatory term in religious circles that connotes a Jew who had abandoned his faith and culture for the wishy-washy universalism of the goyim. He proposed outrageous bills, including some criminalizing marriage between Jews and Arabs or denying Israel’s non-Jews their citizenship. Alarmed, Kahane’s fellow Knesset members changed the parliament’s bylaws to make it easier for them to reject his racist laws.
With so much resistance from within the legislature, Kahane decided to focus his considerable energy on agitating from without. Shortly after he took his oath of office, he decided to visit the large Israeli Arab town of Umm al-Fahm, hoping, he said, to convince its residents to leave Israel and move to the Arab country of their choice. To protest the rabbi’s provocation, 30,000 Jews and Arabs flocked to the town to rally for coexistence, and soon clashed with Kahane’s supporters. The same thing happened a short while later in Givatayim, then in Jerusalem, and elsewhere—everywhere Kahane went, violence followed.
Israel’s then Attorney General Yitzhak Zamir took note and wrote to the Knesset asking that it revoke several of Kahane’s privileges in order to make it harder for him to preach hate. The Knesset took a vote, with a majority supporting stripping Kahane of his immunity, making it possible for the police to arrest him should he again incite riots. Thankful, the police took advantage of Kahane’s altered status, and repeatedly barred him from appearing in public. The press, too, joined in, with the Israel Broadcasting Authority—then the sole body supervising Israel’s exclusively state-run broadcast media outlets—resolving to substantially limit its coverage of the rabbi and his opinions. Kahane appealed to the Supreme Court, and the court once again agreed: Freedom of speech, wrote justice Aharon Barak, protected even racist and infuriating utterances.
Sensing a need for drastic measures, the Knesset voted to amend Section 7 of Basic Law: The Knesset, the main law governing the parliament’s proceedings. The new amendment, 7A, read as follows: “A political party will not partake in elections for the Knesset, nor shall any individual serve as a candidate for the Knesset, if the goals or actions of the party or the actions of the individual, respectively, explicitly or implicitly, constitute: 1) Negating the existence of the State of Israel as a Jewish and democratic state; 2) Incitement to racism; 3) Support for an armed struggle, launched by an enemy state or a terrorist organization against the State of Israel.”
When Kahane ran for the Knesset again in 1988, he was immediately disbarred based on amendment 7A. He appealed, but this time the Supreme Court ruled against him. Kach’s goals and actions, wrote Chief Justice Meir Shamgar, “are clearly racist: Systematic incitement based on a national-ethnic element that creates animosity and quarrels that deepen the chasm, a call for violently denying rights, for systemic and deliberate humiliation of well-defined portions of the population, on an ethnic and national basis, a humiliation that is horrifically similar to the worst of the ordeals that had befallen the Jewish people.” That being the case, Shamgar wrote, the Knesset’s decision stood. Kahane was out. Two years later, he was felled by the bullet of an Egyptian-American assassin linked to the same radical Islamic forces that would soon become al-Qaida.
Ever since the passage of amendment 7A, numerous attempts have been made to use the new law to bar various parties from participating in Knesset elections, said Aviad Hacohen, a noted Israeli lawyer and professor of law. “Every time these attempts reached the Supreme Court,” Hacohen added, “the court narrowly interpreted the law and ruled that mere statements weren’t reason enough for disqualification, but instead one needed to demonstrate the existence of concrete actions to realize racist goals and a high evidentiary bar.”
For now, of course, Trump is all talk. But can his statements get him in legal trouble? While several European countries passed laws after WWII designed to curtail the rise of Fascism, America has taken a different path. “We don’t have limits on what ideas can be expressed in the public square,” said Noah Feldman, Harvard law professor and constitutional law expert. “We’re an outlier on this front.”
The most memorable instance of using the law against a political candidate due to his views was the arrest of Eugene V. Debs, the popular Socialist Party presidential hopeful. On June 16, 1918, Debs gave a speech in Ohio calling on his supporters to resist the draft and refuse to serve in WWI. He was arrested two weeks later, charged with 10 counts of sedition, and, after a short trial, sentenced to 10 years in prison and a lifetime revocation of his right to vote. From his cell in the Federal Penitentiary in Atlanta, he again ran for president, receiving the votes of just under 1 million Americans. “Now,” said Feldman, “we consider Debs’ arrest to be a dark moment in the history of American democracy.”
And so, while Israel took robust measures to defend itself against those wishing to uproot its democratic system of government, the United States, Feldman said, has no recourse—save for amending the Constitution—but to allow anyone born in the United States and older than 35 to run for office and trust that the free exchange of ideas will eventually lead to the desired outcome. “That’s the American principle,” he added. “You have to rely on the common sense of the people.”
But just how free is free speech, really? “Free speech is already not unlimited,” argued Thane Rosenbaum, a senior fellow and the director of the Forum on Law, Culture & Society at New York University and the author of the upcoming book The High Cost of Free Speech: Rethinking the First Amendment. “Whether it is shouting fire in a crowded theater, libel and slander, ‘fighting words’ and the incitement of imminent lawlessness, and obscenity, already constitute proscribed categories, where no such First Amendment protection is granted. So, it’s not like the United States absolutely couldn’t take on the European or Israeli model. Apart from amending the Constitution, another proscribed category could simply be carved out” to identify boundaries that must never be crossed, the way the swastika, for example, cannot legally be displayed in Germany or Austria or the anti-Semitic antics of shock comic Dieudonné are outlawed in France.
Speech that is “designed to inflict harm and cause pain,” Rosenbaum said, “should not necessarily and presumptively receive any First Amendment protection.” There is a marketplace of ideas, he concluded, and “there is a marketplace of assholes, and we should not confuse the two.”
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