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

• Author: Carmi, Guy E.
• Position: II. Present - the Israeli Shift to Dignity-Based Free Speech Doctrine C. The Dignitization of Free Speech - Substantive Analysis through Conclusion, with footnotes, p. 829-856 - Symposium: Mixed Jurisdictions

3. The Dignitization of Free Speech--Substantive Analysis

   1. Prior Restraint

      Perhaps the most interesting area of free speech into which the concept of human dignity has penetrated is prior restraint. This field is at the heart of free speech protection and normally receives the most robust protection. (173) Early free speech rulings and doctrines developed within this field, (174) and the distrust of governmental censorship is among key explanations for the recoil from censorship.

      Israel has several statutes that enable prior restraint through military censorship, (175) newspaper licensing, (176) a public film review board, (177) sub judice, (178) and an electoral board committee in cases of political advertisement in times of elections, (179) to name a few examples. In the 1980s, the Supreme Court's tendency was to give a narrow interpretation to these statutes so as to enable prior restraint only in extreme cases, (180) through the use of a judicially constructed rigid scrutiny test--"the near certainty test". Under this test, only speech that has great potential (almost with certainty) to cause substantial danger may be censored in advance. (181) This constitutional test was borrowed from the US "clear and present danger test" by Justice Agranat in Kol Ha'am. (182) It resembles the US test, although the Israeli approach is a somewhat weakened version, as it lacks the requirement of imminence as a prerequisite for prior restraint.

      Another vague part in this constitutional test concerns the definition and scope of "near to certain danger". Some Israeli scholars, such as Mordehai Kremnitzer, claim that the required degree of certainty should diminish as risks become more substantial. (183) Others construe the probability required by the test as being substantially higher. (184) But if there is one thing certain about the near certainty test, it is that within the Israeli constitutional law framework, this standard of review is the most stringent, comparable to the strict scrutiny standard in the United States.

      Yet, the tendency to buttress the rigid standard for prior restraint seems to have halted and even reversed in recent years. (185) Human dignity is the competing consideration that diminishes the pre-Constitutional Revolution tendency to place free speech above countervailing rights associated with human dignity. Instead, human dignity seems to have taken the lead. The following examples demonstrate the slow, almost imperceptible, shift toward a new, dignity-based approach to free speech.

      In Shinui, (186) the Supreme Court upheld a decision by the then Justice Beinisch, who presided over the case as chair of the Electoral Board Committee, which disqualified an election infomercial that depicted Orthodox Jews as parasites. The infomercial was perceived as offensive to Orthodox Jews, portraying a figure of an Orthodox Jew who was latching onto a secular Jew's foot. Once the secular Jew put a vote for Shinui in the ballot, the Orthodox Jew vanished in black smoke. This political satire was meant to protest against the taxpayers' funding of Orthodox Jews and religious parties. Yet the depiction of the religious Jew as a parasite and the manner in which he vanished aroused, in some, connotations of the Holocaust and to Nazi propaganda. The decision of the Electoral Board Committee's chair was appealed to the Supreme Court presiding as the High Court of Justice, which upheld the decision to ban the infomercial.

      Although the speech involved in this case was purely political and intended to advance the platform and agenda of a legal party, the Court preferred banning the speech because of its offensive nature. The main rationale for the Court's ruling was that the protection of public sentiment and of human dignity supersedes, in this case, the protection of freedom of expression. Chief Justice Barak said that "the protection of public sentiment may be also warranted in pursuit of the protection of the value of human dignity. This is especially true in cases in which the insult to public sentiment amounts to denigration, humiliation, and a harsh insult to human dignity." (187) Barak seemingly qualified the limitation of free speech by saying that in a pluralistic society, the exchange of hurtful views is desirable. Yet, he said, "a democratic society is also founded upon the value of human dignity. Therefore, the protection of free speech does not grant an unlimited freedom to denigrate a person and to harshly hurt his dignity as a human being." (188) Chief Justice Barak therefore enforces civility by saying that all messages may be expressed, but not in a manner that is patently offensive and degrading. (189)

      As previously mentioned, Kol Ha'am represents the peak of the common law protection of free speech formed in the pre-Constitutional Revolution era. Its highlight is the near certainty test--the Israeli equivalent to the clear and present danger test for prior restraint. Over the years, and especially in the 1980s, the Court further developed and buttressed this ruling. (190) Chief Justice Barak mentioned Kol Ha'am, and the near certainty test, yet failed to utilize it on the facts of the specific case. The ruling is perplexing since it is unclear whether Shinui implicitly overturned Kol Ha'am or simply narrowed the Kol Ha'am ruling due to human dignity concerns. (191) The latter possibility means that Barak broadened the exception of the near certainty test, which permits the restriction of speech where there is fear of a near to certain breach of public peace, so as to include human dignity. This broad understanding of breach of public peace stands at odds with the previous rulings that tended to narrow, not broaden, its meaning. (192) In retrospect, Justice Eliezer Rivlin, who concurred with Chief Justice Barak in Shinui, has publicly admitted that the ruling is too speech restrictive and that he would have decided the case differently today. (193)

      Following Shinui, prior restraint is also possible in cases of infringement of human dignity and situations where certain groups would be offended. (194) Justice Barak did not limit his ruling to the specific context of political campaigns, although he could have. (195) Shinui represents a paradigm shift toward the further limitation of speech due to human dignity concerns in the area of free speech that traditionally receives the highest protection--the prior restraint of political speech.

      Kol Ha'am's near certainty test suffered another blow in Tennenbaum. In this case, the family of Elhanan Tenenbaum, who was then held captive by Hezbollah, petitioned for a media ban on the details of the abduction. The family feared that the details might endanger the abductee's life. Although the Court rejected the petition and allowed publication, (196) it applied a mild proportionality test instead of the near certainty test. (197) The Court used a lower scrutiny standard for prior restraint in this case because it balanced the right to life against freedom of expression. (198) The right to life, which is enumerated in the same articles in Basic Law: Human Dignity and Liberty that enumerate human dignity, received greater importance and altered the level of scrutiny the Court used.

      Following Tennenbaum, the near certainty test, which requires a high level of scrutiny for prior restraint, was replaced by a preponderance of evidence test of reasonable likelihood in cases that involve a fear for the life or bodily integrity of the petitioner. (199) This exception that was carved out of the formerly uniform stringent standard for prior restraint is also a direct result of the Constitutional Revolution and the dignitization process that free speech is undergoing in Israel.

      A final example of the legal atmosphere in Israel that wishes to replace the near certainty test with a more speech-restrictive standard of review can be seen in the recommendations of the official inquiry committee for the Second Lebanon War, headed by former judge Eliyahu Vinograd. The committee, comprised of several leading jurists, recommended overturning the Shnitzer ruling that fixed the near certainty test for military censorship with a preponderance of evidence test of reasonable likelihood. This would enable military censorship on a whim. (200) The committee claimed that under the current strict standard, national security is compromised.

      In sum, the post-Constitutional Revolution prior restraint rulings show a tendency to ease constitutional standards to achieve speech-curtailing results due to human dignity concerns. The current public and legal atmosphere in Israel seems to not value free speech to the same extent as in the 1980s, and other issues, such as national security, public sentiment, and preserving the human dignity of minorities receive greater importance than before.

   2. Pornography

      Another area of free speech that was affected by the Constitutional Revolution is the treatment of pornography. The rulings from the past two decades have classified pornography as speech with low social value, which impinges upon the dignity of women and therefore deserves weakened protection. (201) As Justice Rivlin recently noted: "Not an speech is born equal, and the level of protection freedom of speech is afforded is influenced by, inter alia, the type of speech and its characteristics." (202) The following rulings exemplify how pornography is a stepchild in the family of protected speech, and how it is easily curtailed by human dignity concerns that were introduced into pornographic speech restriction.

      In Station Film, (203) the Court considered the decision of the Film Review Board to omit several sections from Nagisa Oshima's film In the Realm of the Senses, which were regarded as degrading to women. The Court reversed the Film Review Board's decision to censor the film, using the near certainty test standard. In its essence, this ruling is speech-protective. But this ruling also...