by Jonathan Rosenblum
January 5, 2001
I was fortunately exposed in my impetuous youth to the Yale Legal Realists. This school taught that judicial opinions can best be understood in light of the judge's educational and class background - "What the judge ate for breakfast," in the words of the Realists' critics - rather than by recourse to neutral legal principles.
I say fortunately, for without the Realists' insights much of the work of the Israeli Supreme Court is unintelligible.
Two recent cases dealing with the proper balance between free speech and public order provide grist for the Realists' mill.
In the first case, Justice Theodore Or, writing for the court, overturned the conviction of Israeli Arab journalist Mohammed Jabarin for having written at the height of the first intifada: "When I throw a Molotov cocktail, I feel I have found my identity and that I am defending that identity. I feel that I am someone worthy of living an honorable life."
That same day, the court reversed its own previous decision acquitting recently murdered Binyamin Kahane for distributing a poster that asked: "Why, when three Arabs from Umm el-Fahm slaughtered three soldiers, did the government bomb Hizbullah in Lebanon instead of the viper's nest in Umm el-Fahm?"
Justice Or again wrote the opinion of the court.
A comparison of the two statements shows that Jabarin's posed a much more immediate threat to public order. A celebration of violence as a way to find one's identity at the height of the intifada was sure to find a responsive audience among his readers. Kahane's statement, by contrast, explicitly called for government, not individual, action and was assured of falling on deaf ears.
More important, the statute under which Jabarin was charged provides much clearer guidelines for what constitutes free speech than does the statute under which Kahane was charged. Jabarin was charged with "publicizing words of identification with or praise for acts of violence capable of causing death or injury to a person."
Kahane, on the other hand, was charged with "arous[ing] strife and hatred between different groups of the population." This statutory language could refer to half the political discourse in Israel. It leaves citizens with no way of knowing what is proscribed, and prosecutors with vast discretionary latitude in determining what speech to prosecute.
In traditional free-speech analysis, the statute, on its face, has a "chilling effect" on the exercise of free speech.
Despite the fact that the threat to free speech was greater in Kahane's than in Jabarin's case and the danger to public order less, the court ruled against Kahane and for Jabarin.
JUSTICE Or employed a diametrically opposed methodology in the two cases. In Jabarin's, he reread the plain language of the statute to refer exclusively to "praise for acts of violence" by terrorist organizations. In doing so, he relied on the history surrounding the enactment of the statute. Or also relied on adjacent paragraphs in the statute that refer explicitly to terrorist organizations.
Such narrow statutory readings are common in free-speech cases, but even Or had to admit that his was a substantial stretch given the clear language of the statute, which referred to praise for certain actions, not to praise for particular perpetrators. Even if the statutory purpose was to combat terrorist organizations, the logical means of doing so is to prohibit praise for the types of actions typically perpetrated by terrorist organizations, and not to require specific reference to the organizations themselves.
That is especially true in a situation, like the intifada, where both individuals and well-organized terrorist groups are engaged in identical actions.
In contrast to the forced and narrow reading of the statute in Jabarin's case, Or gave an extremely expansive reading of the statute in Kahane's, without finding any free-speech infirmity. He did not require, for instance, the traditional showing that the statements in question constituted "a clear and present danger" of leading to violence. It was sufficient that the statement in question could, in conjunction with other such statements, lead to a climate of hatred.
The court did not read the statute in light of the adjacent provisions that explicitly referred to actions undermining the stability of the established government alone, even though the statutory title referred explicitly to "rebellion," i.e., attacks on the government. Or also ignored the statute's history indicating that the statute was aimed solely at threats to the governing authority.
Faced with such judicial inconsistency, we are forced to fall back on the Legal Realists and to conclude that the court's understanding of free speech is almost entirely determined by the identity of the speaker and the target of the offensive speech.
For instance, no Jew or Arab has been, or ever will be, charged with statements arousing hatred towards religious Jews. Professor Uzi Ornan was not charged for advocating that haredim be "hung from lampposts [and] sentenced to death"; or Am Hofshi's Ornan Yekutieli for suggesting, "We should go into Mea She'arim with army vehicles and exterminate them"; or Yonatan Geffen for calling for an "intifada" against the haredim.
Tatiana Susskind was sentenced to two years in jail for an offensive caricature insulting to Islam, but I cannot think of a single instance of a Jew or Arab charged for even the most offensive statements about traditional Judaism.
The court's decisions in the Jabarin and Kahane cases are best viewed as part of a judicial policy designed to show Israeli Arabs that they are more than equal and extremist Jews less than equal.
Free speech that depends on who is speaking and who is attacked is no free speech at all.
Related Topics: Israeli Supreme Court
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