Benzi Gopstein: Can the Ethiopian change his skin, or the leopard his spots?

Background

In early June 2024, the District Court of Jerusalem, sitting as a Court of Criminal Appeals, delivered its verdict in the case of Benzi Gopstein.

According to the ruling, the chairman of the "Lehava – The Prevention of Assimilation in the Holy Land" was convicted of racial incitement. At the same time, he was acquitted of four charges: terrorism and violence incitement.

Gopstein responded on his X page: "That's it! According to the Israeli court, I am not a racist."

The New Statement

On February 25, 2025, Gopstein published the following statement online: "Everyone is now talking about revenge, to eliminate, to destroy… Enough talk, it's time for action."

To ensure the context remains clear, it should be noted that the very next day, Gopstein shared a post by his associate, Otzma Yehudit party member Yitzhak Kreuzer (son of Rabbi Yehuda Kreuzer, who has headed the Yeshiva of the Jewish Idea, named after Rabbi Kahane, since its founding in 1987). Kreuzer the younger quoted: "But if you do not drive out the inhabitants of the land, those you allow to remain will become barbs in your eyes and thorns in your sides. They will give you trouble in the land where you will live. (Numbers 33:55). This verse is one of the most closely associated with Rabbi Meir Kahane.

Analysis According to the Auxiliary Tests

It's worth asking: what "auxiliary tests" might the court apply in evaluating Gopstein's latest statement?

The District Court had outlined these auxiliary tests in its earlier decision on the Gopstein case.

Regarding the test for the content of the words, the phrasing here is unequivocal: "it's time for action."

As for the test asking whether the content includes a real call to violent action, the message is again quite clear: "to eliminate, to destroy."

It is difficult in this case to argue that the speaker "did not call for a violation of the law or an act of terrorism." At the very least, the call appears to violate the Law of War, which fall under International Humanitarian Law (and have been, to some degree, incorporated into Israeli law, even though Israeli legislation does not explicitly outlaw War Crimes).

Regarding the test of who may be affected by the action, unlike in prior charges brought before the District Court, there is no reservation in Gopstein's words – no qualification that limits the harm to "uninvolved."

The Final Test

As for the test concerning the probability element – whether there is a real possibility the declaration will lead to violent acts – the matter becomes more complex.

Nonetheless, the District Court previously emphasized the importance of the "public atmosphere," which is notably more volatile now than ever before. For instance, in mid-February 2025, Gopstein responded to a statement by U.S. President Donald Trump with the words: "All Hell Breaks Loose Now."

Moreover, in evaluating probability, the public status of the speaker must be factored in. Gopstein's influence – particularly over certain substantial segments of the public – is clear. This is bolstered by the fact that he heads a relatively popular extremist political movement, serves at the headquarters of the Otzma Yehudit party, and effectively acts as a senior advisor to Minister of National Security Itamar Ben-Gvir.

The auxiliary test concerning the scope of publication and intended audience also aligns with the probabilistic element. As of late March 2025, Gopstein's page on X had 356 users on the Watch List and 2,603 Followers.

Gopstein's statement did not go unnoticed – it sparked numerous responses. One responder offered a cynical response, suggesting the call to action would run into political resistance: "Bibi is not made of the stuff needed to carry out real revenge on the enemy (Nakba). If Ben-Gvir and Smotrich allow Bibi to rule, there will be no revenge on the enemy" (In mid-February 2025, Gopstein himself posted: "Bibi does not have the courage to accept Trump's plan, and he will continue to release terrorists.")

These broader public statements also correspond with an additional auxiliary test – "responsibility for publication." Unlike in cases where it could be claimed that the speaker had no control over the platform, here the statements were made directly on Gopstein’s own page X. (Arguments like those made by Baruch Marzel in his disqualification hearing before the High Court, that he is unfamiliar with the Internet and that others manage the page on his behalf, appear unconvincing in this context).

A Principled Position

My approach to reviewing "incitement" is generally consistent with that presented over the years by the late Justice Eliahu Mazza. Thus, for example, in the case of Edo Alba v. The State of Israel, September 24, 1996 [in which a ruling was given, for the first time in Israel, for violating the law prohibiting the publication of incitement to racism, and in which the High Court of Justice determined that the article published by the rabbi on "Laws of Killing a Gentile" expressed a clear and unambiguous message of incitement to racism, and that it contained a significant concern for the public's safety, and as a result of which Rabbi Alba was sentenced to two years in prison], Justice Mazza held that: "From the reference to Section 144B(b) of the law, it can be learned that this is a purely behavioral offense. Not only does the definition of the offense not include any consequential element, but the wording of the negative requires that the exclusion of the offense is not also conditional on the existence of a probability of the result. An advertisement that includes incitement to racism may constitute an offense of incitement to racism, even if it does not entail any apparent risk. This is a behavioral offense. In retrospect, the question of whether the advertisement incites racism or not is not important. In retrospect, awareness of the possibility of harm to the public against whom the advertisement incites should not be required. The protected social value is the prevention of the incitement itself. In offenses of the type in question, the definition of which does not include a consequential risk, there is no room for the application of a probability test. Its inclusion by way of case law would narrow the scope of the criminal prohibition."

Judge Mazza clarified that: "The inclusion of probability at the level of 'real possibility' among the elements of the offense of incitement imposes an unbearably heavy obligation on the prosecution. Applying the probability test to offenses of this type ties the hands of the prosecution and deters it from taking criminal action against those who abuse freedom of expression to publish things that incite violence and terrorism."

In a personal conversation I had with former Judge Mazza (mid-February 2017), he reminded me of his remarks in the additional criminal hearing in the Binyamin Kahane case (2000), in which he referred to "the stability of the regime and the strength of democracy." He then stated that: "Israeli democracy is stronger today than it was when the state was founded. Democratic values, which had received only scant protection, have become established and strengthened. For decades, the trend of establishing the democratic framework of the state, of strengthening it and expanding it continued."

In contemporary observation, at the time of our conversation, the former judge was no longer sure that he was right in this statement, and pointed to a mortal danger to Israeli democracy, and even the possibility of a fascist [or, in my opinion, authoritarian populist] takeover.

Irreversibility

The term "irreversibility" is contrast to "reversibility" – "a series of reversals that return the situation to its original state."

However, in Gopstein's case, "the situation in its original state" is actually the root of the problem [for example, in the book of Amos, 2:9 it says: "Yet, I destroyed his fruit from above, and his roots from beneath.]

Suffice it to mention that the extended panel of nine justices, headed by the President of the Supreme Court in Israel, Esther Hayut, decided at the time to disqualify Gopstein from running for the Knesset of Israel. The Supreme Court of Israel, sitting as The High Court of Justice, ruled that Gopstein's statements over the years were as a whole "a new low point in racist discourse, the likes of which we have never known before." In their ruling, they noted that Gopstein "systematically incites racism against the Arab public, in a manner that is far beyond the forbidden zone of incitement to racism."