Terra Incognita: Free speech and managed democracy
A more level-headed policy would include clear rules on what constitutes incitement to racism and should be stricken from election materials.
Eldad and Ben Ari introduce Strong Israel party Photo: Marc Israel Sellem/ The Jerusalem Post
In All the Laws But One, former chief justice of the US Supreme Court William
Rehnquist writes about how the US government has frequently curtailed civil
liberties during times of war. Among the freedoms harmed in these periods of
crisis was that of speech. “If freedom of speech is to be meaningful, strong
criticism of government policy must be permitted in wartime,” writes the
In Israel this is equally true, but with regard to
elections, rather than war.
ISRAEL’S ELECTION period is heavily regulated
by law, with the result being more of a “managed democracy” rather than a total
open playing field. For instance, each party receives a amount of air time on
television proportional to its strength in the current Knesset. During the days
prior to the election certain electoral activities may not appear on television,
although the media is free to comment, probe and feature certain parties as much
as it likes.
Each political party’s television ad spots must be approved
by an electoral committee that acts as an official censor. On January 14,
Central Elections Committee (CEC) chairman Elyakim Rubinstein disqualified part
of a Reform Party ad, offering the following explanation: “Part of the ad is
vulgar and in bad taste, as well running [sic] the risk of hurting the public’s
In another ruling a week before he had disqualified ads by
Balad and Strong Israel. In the former case he noted that the ad parodied the
national anthem in a “twisted and ridiculous manner” and that “disgracing the
symbols of the state, a Jewish and democratic state, is unacceptable to
Note the words “to me.”
Indeed, Justice Rubinstein’s rulings
seemed to reflect his personal artistic sensibilities, rather than any clearly
defined policy regarding what is acceptable and what is not. This is because
historically the CEC does not operate based on clear criteria and its head is
encouraged to make up policy as he goes along.
THE COMMITTEE consists of
representative MKs from several parties and is headed by a Supreme Court
justice. However the head of the committee has unusual latitude, in fact
unchecked power to do as he or she pleases.
This year has seen an
increase in heavyhanded meddling on the part of committee head Justice
Rubinstein. It began with his banning of a billboard campaign by Strong Israel.
The billboards, placed mostly on public transport, bore Arabic words with
translations into Hebrew and the statement, “Because without obligations, there
are no rights.”
Rubinstein decided that the ad targeted the Arab
community in a negative manner and banned the billboards.
for Civil Rights in Israel’s chief legal counsel, Dan Yakir, objected, saying,
“To begin with, it [the decision] was taken without the necessary authority, as
the law does not grant the chairperson of the Central Elections Committee
authority to interfere with the content of billboards.”
That was only the
beginning. Rubinstein slapped Bayit Yehudi with a large fine for “violating
election codes” by showing soldiers in advertising and ordered Shas to blur the
face of a teenage girl. According to another report he ruled that “parties are
forbidden to exploit educational institutions in their ads, including yeshivas
that send some of their students to the army.”
In another instance he
banned a Bayit Yehudi poster that depicts party leader Naftali Bennett and Prime
Minister Binyamin Netanyahu because it was “misleading,” apparently giving the
impression that Netanyahu supported the party.
United Torah Judaism was
told to “remove from campaign material references to blessings that will be
bestowed on its voters.”
Then, on January 20, he forbade Netanyahu to
hold a press conference announcing the appointment of Moshe Kahlon to head the
Israel Lands Authority.
On January 21 he banned the broadcasting of any
portion of a Labor party press conference on television.
In contrast to
the 2003 CEC head, Justice Mishael Cheshin, who once stopped a press conference
of Ariel Sharon’s in mid-broadcast, Rubinstein acted to place prior restraint on
the media, forbidding it to show politicians speaking during the two days before
THE ACTIONS of the CEC have also been politicized to an
unusual degree. For instance, the decision to ban the Strong Israel ads was made
after an appeal by numerous people, including former MK Mossi Raz of Meretz. A
decision against Bayit Yehudi was ostensibly made due to an appeal by Peace Now
head Yariv Oppenheimer, who just happens to be running at the 27th spot on the
Labor list (he therefore has no realistic chance of getting into the next
A member of the Yesh Atid party tried to get Shas and United
Torah Judaism banned from elections. After a tape of Bayit Yehudi’s Jeremy
Gimpel giving a talk in Florida in 2011 was discovered, in which he appears to
mock the destruction of the Dome of the Rock, an MK from Kadima attempted to get
And all this is on top of the banning of Balad’s Haneen Zoabi
by the CEC. The Zoabi ban, like the banning of portions of the Strong Israel and
Balad television spots, was overturned upon appeal to the Supreme Court. But the
entire trend of banning and interfering in the democratic election process is
On the face of it there appears to be no check on the
power of the CEC. Although bans can be overturned, when there are only two weeks
during which campaign ads are aired on television, the banning of an ad and the
need to wait for the Supreme Court to hear the appeal can seriously impair the
ability of a party to get its message out.
Why does one man hold such
power to meddle in the elections? Why are there no clear guidelines on what is
legal and what is not in the election season? The result of fuzzy and vague
rules regarding what types of ads constitute incitement results in the power to
decide being concentrated in the hands of just a few men, with all the potential
harm that that can result in. Moreover, the process by which ads are banned is
tainted by the involvement of competing parties attempting to ban their
The power-hungry censors have even attempted to extend
their seemingly soviet- inspired culture of banning things they don’t like to
the Internet, demanding that Facebook remove anonymous political ads and
disclose who funded them.
This “managed democracy” phenomenon receives
almost no attention in Israel because the political culture here long ago
accustomed itself to a socialist top-tobottom approach in which judges and
politicians decide what types of freedoms are and aren’t allowed. That ACRI
protested the bans is a positive sign, but that so few Israelis noticed them is
deeply troubling. A society doesn’t succeed by banning what it
A more level-headed policy would include clear rules on what
constitutes incitement to racism and should be stricken from election materials.
Nebulous justifications such as campaign fliers being “misleading” or “in bad
taste” should never be a reason to ban items.
Furthermore, the powers of
the judge who heads the Elections Committee must be curtailed and whittled down
so that he only has power over prescribed campaign materials in various media
formats, not over-arching, pope-like power to decide on a canon of restricted