"Dignitizing" free speech in Israel: the impact of the constitutional revolution on free speech protection.

AuthorCarmi, Guy E.
PositionIntroduction through II. Present - the Israeli Shift to Dignity-Based Free Speech Doctrine B. The Dignitization of Free Speech - an Overview, p. 791-829 - Symposium: Mixed Jurisdictions

This article examines the changes in the approach to the analysis of free speech rights in Israel. It demonstrates the growing shift from the American liberty-based influence in the 1980s to a more dignity-based, and principally Canadian- and German-inspired, model following the adoption of the partial bill of rights in the 1990s. This is demonstrated both by a statistical analysis of the Israeli Supreme Court free speech rulings in the past thirty years and by a substantive analysis of recent rulings in the areas of prior restraint, pornography, and libel.

The statistical findings demonstrate that while human dignity rarely played a role in free speech rulings in the past, it plays a significant role today. Another indication of the "dignitization process" lies in the reference to foreign rulings. Moreover, a substantive examination of the Israeli Supreme Court's free speech rulings from the last decade reveals the dignitization process both in rhetoric and outcomes.

This article offers a means of strengthening the protection that free speech receives in Israel by divorcing the constitutional protection of free speech from the concept of human dignity, and by focusing on the value of liberty. This can be achieved by the incorporation of the unenumerated right to free speech via the liberty clause within Basic Law: Human Dignity and Liberty.

Cet article examine les changements dans l'analyse du droit a la liberte d'expression en Israel. Il demontre qu'un changement d'influence est en train de s'operer, en passant d'une approche americaine basee sur la liberte vers une approche canadienne et allemande basee sur la dignite, suite a l'adoption partielle de la declaration des droits dans les annees 1990. Ceci est demontre par une analyse statistique des decisions des trente dernieres annees de la Cour supreme d'Israel, ainsi que par une analyse substantive des decisions recentes dans les domaines de la restriction prealable, de la pornographie et de la diffamation.

Les resultats statistiques demontrent que si la dignite ne jouait auparavant qu'un role tres limite dans les decisions, le concept joue un role important aujourd'hui. Le fait de referer a des decisions etrangeres est egalement un indice de ce >. De plus, une analyse substantive des decisions de la Cour supreme d'Israel de la derniere decennie en matiere de liberte d'expression permet d'illustrer ce processus de dignification, tant dans la rhetorique que dans les resultats.

Cet article offre un moyen de renforcer la protection de la liberte d'expression en Israel, en separant la protection constitutionnelle de la liberte d'expression de celle de la dignite humaine, et en se concentrant sur la valeur de la liberte. Ceci peut etre realise en incorporant le droit non-ecrit a la liberte d'expression par le biais de la disposition sur la liberte de la Loi fondamentale : Dignite et liberte humaines.

Introduction I. Past--Background: Israeli Constitutional Law and Free Speech Protection A. The Lack of a Formal Constitution B. The "Constitutional Revolution" C. The Current Constitutional Deadlock--A Transitional Period II. Present--The Israeli Shift to Dignity-Based Free Speech Doctrine A. The Development of Constitutional Protection of Free Speech in the Constitutional Revolution Era 1. Three Approaches to file Incorporation of Unenumerated Rights 2. Partial Incorporation and Its Limits B. The Dignitization of Free Speech--An Overview 1. The Proliferation of Human Dignity in Numbers 2. The Use of Comparative Law in Free Speech Cases C. The Dignitization of Free Speech--Substantive Analysis 1. Prior Restraint 2. Pornography 3. Defamation raid Libel III. Future--A Possible Solution? Divorcing Free Speech and Human Dignity A. Some Perspective on the Evolution of Constitutional Interpretation B. On the Undiscovered Liberty Clause C. On the Merits of Incorporating Free Speech via the Liberty Clause Conclusion Introduction

This article presents the "dignitization process" of free speech in Israel in several ways. It demonstrates Israel's gradual shift from a liberty-based influence in the 1980s to a more dignity-based paradigm in the past two decades, as evidenced in Israeli free speech rulings. In addition, it describes the growing tendency to evaluate freedom of expression in human dignity terms.

First, the history of free speech development in the Israeli legal system is explored, and the background of Israeli constitutional law and the lack of a formal constitution are explained, in order to provide readers who are unfamiliar with Israel the necessary background to understand the processes Israel has been undergoing in recent years. This article demonstrates how the Israeli Supreme Court extended constitutional protection to the unenumerated right of free speech via the human dignity clause beginning in late 2006. The nexus between human dignity and free speech is tenuous, and the Court did not provide sufficient grounds to fully and satisfactorily incorporate free speech into the constitutional documents. In fact, the current method of incorporation, which uses human dignity as the incorporation channel, inherently weakens freedom of expression. This article makes two proposals to strengthen freedom of speech: by incorporating it into the constitution via the liberty clause, or by including it among the enumerated rights.

Second, this article demonstrates the growing shift from the American liberty-based influence in the 1980s to a more Western, non-US dignity-based influence following the adoption of the partial bill of rights in the 1990s. The slow shift of paradigms, which has caused a constant, yet almost unnoticeable, decline in the standing of free speech in Israel, is demonstrated both by a statistical analysis of the Israeli Supreme Court free speech rulings in the past thirty years, and by a substantive analysis of recent rulings in the areas of prior restraint, pornography, and libel.

The statistical findings clearly demonstrate that while human dignity rarely played a role in free speech rulings in the past, it plays a significant role today. This trend is labelled the dignitization process of free speech. Another indication of the dignitization process lies in the reference to foreign rulings. Although US rulings remain a popular source for citation in the Israeli Supreme Court's free speech rulings, the number of references to these rulings is on the decrease. Simultaneously, German and Canadian rulings are cited in growing numbers. These tendencies further indicate that Israeli free speech law is increasingly inclining toward the dignity-based approach to free speech through its slow disengagement from the American influence toward a more Western, non-US approach.

Moreover, a substantive examination of the Israeli Supreme Court's free speech rulings from the last decade reveals the dignitization process both in rhetoric and outcomes. Three areas of free speech law are explored. Human dignity is acknowledged as a reason for invoking prior restraint under some conditions. It is recognized as a reason for limiting pornography. It has also become the principal rationale in libel cases, which have slowly begun to resemble European insult laws. These substantive examples, combined with the statistical tendencies, give a clear picture of the dignitization process Israeli free speech law is undergoing and unfold the paradigm shift that is not evident to the naked eye, since the transition is in process.

For free speech to be adequately protected, it needs to be explicitly enumerated within the constitutional documents in a manner that buttresses its standing and grants it the protection it deserves. In the interim, this article offers the use of an alternative channel to incorporate free speech into the existing Israeli constitutional documents. Instead of the current use of the human dignity clause within Basic Law: Human Dignity and Liberty, (1) the use of the liberty clause within the same basic law is suggested. Because liberty does not carry speech-restrictive features as does human dignity, some of the current speech-restrictive features that stem from the forced and artificial juxtaposition of free speech and human dignity may be alleviated.

Israel serves as a test case to explore the dignity-liberty model presented elsewhere, (2) and this article utilizes it for an in-depth analysis of rights in a specific legal system. Israel is uniquely positioned to reflect contemporary trends in Western constitutionalism, since it combines influences from both sides of the Atlantic, and it is in a transitional stage in forming its constitutional law in general, and its free speech law in particular. This article also illustrates the process that the Israeli legal system has undergone in the past two decades and which has not received much attention to date. The analysis conducted herein, backed by statistical data and the insights of comparing the dignity- and liberty-based models, unveils an almost unnoticed decline of free speech in Israel and explains its motives.

This article coins the term "dignitization process" to describe the growing tendency to evaluate freedom of expression in human dignity terms. This phenomenon is an important aspect of free speech in Western democracies. The articulation of free speech in terms of human dignity, however, is inherently problematic, and this article warns of the undesirable consequences of this process.

The dignitization process is demonstrated in the Israeli setting by illustrating the growing use of human dignity-related terminology to analyze free speech. This illustration is made both through a statistical analysis of references to human dignity in free speech rulings in the Israeli context and through substantive analysis of Israeli Supreme Court rulings. Thus, this article establishes the intricate nexus between human dignity and freedom of expression in the Israeli setting. This phenomenon...

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