Terra Incognita: Free speech and managed democracy

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 conservative judge.

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 feelings.”

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 me.”

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.

The Association 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 election.

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 Knesset).

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 him banned.

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 highly problematic.

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 opponents’ ads.

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 dislikes.

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 expression.