Incitement and freedom of expression – a reassessment

Freedom of expression is a basic constitutional right in Israel and every attempt to limit this freedom must be opposed by the upholders of democracy.

By REUVEN BEN-SHALOM
Thousands rally at the memorial for slain premier Yitzhak Rabin in Tel Aviv (photo credit: BEN HARTMAN)
Thousands rally at the memorial for slain premier Yitzhak Rabin in Tel Aviv
(photo credit: BEN HARTMAN)
This month’s anniversary of the assassination of prime minister Yitzhak Rabin marks a sad new level of division in our society, with two separate memorial gatherings being held.
Instead of uniting in commemoration of this great leader’s accomplishments and contributions, the “followers of his legacy” have directed their energies to denunciating what they perceive as the rival camp.
A political rally was held, insensitively hijacking the trademark “Main Memorial” and leaving the real main memorial, attended by the president, to be called the “Central Memorial.”
Before the “main” memorial, MK Zehava Gal-On, chairwoman of Meretz, wrote an outrageous Facebook post, expressing twisted views on the composition of Israeli society.
“Since Rabin’s assassination, there is a struggle between two ideological camps,” she explained. “An enlightened, modern, secular, liberal, democratic Israel, living in peace and harmony with its Palestinian neighbors,” and on the other hand, “a fanatical, nationalistic, religious, fascist, racist, ethnocratic Israel, isolated from its environment.”
I was flabbergasted to see this coming from someone claiming to stand for democracy and liberalism.
Gal-On reiterated the usual accusations – that it was incitement that led to Rabin’s delegitimization and ultimately to his assassination in 1995. She strongly condemned Benjamin Netanyahu for leading a “violent and ugly” demonstration of incitement at the famous rally at the capital’s Zion Square back then.
She stressed the need to define this year’s memorial assembly as political, without the right-wing camp, because joining together with them would “free those responsible from accountability.” In other words, Gal- On wanted to differentiate between the good guys, and the bad, who “cope with political dispute through the sights of a gun.”
She might just as well have said that Netanyahu pulled the trigger.
Much of the current left-wing agenda, as expressed by Gal-On and then throughout the memorial rally, is not built on analyzing the complexities of the strategic environment though a different prism and countering the government’s policies with a viable alternative, but on slamming, slandering, vilifying and demonizing Netanyahu personally.
Besides talking of peace (which is certainly a nationwide consensus) and repeated chants of “Bibi go home! Bibi go home!” a recurring theme was the portrayal of Netanyahu as irresponsible and delusional, and as having in mind not the country’s best interests, but his own personal and political gains. Horrible allegations were made, as if seditious Netanyahu deliberately provokes wars and instills despair and fear in order to rally support and remain in power.
It was the type of language they would decry as “incitement” if directed from Right to Left.
But they could say all that because we live in a democracy. I think it insults our intelligence and insults our prime minister, but I don’t think there’s anything illegal about it.
After Rabin’s assassination in 1995, a shocked and confused Israel began to reexamine the limits of free expression.
“Words can kill,” became a common educational theme.
It wasn’t all factual, but an agenda-driven portrayal of events, such as spreading the lie that the coffin carried during the rally at Zion Square signified burying Rabin, when in fact it was inscribed with the words: “Rabin is burying Zionism.”
As we always do after traumatic events, we over-corrected and implemented hasty measures which were contrary to the basic values of democracy. Even harmless political campaigns led to headlines: “Incitement!” There was a surge in prosecuting Israelis on incitement charges in a way which dangerously limited freedom of speech. It now seems that the legal system has retreated to a balanced policy, but public discourse remains confused and polarized.
We live in extreme dissonance, where on the one hand our culture of debate remains vigorous and outspoken, and on the other hand, we attach overpowering influence to words of criticism.
Double standards and hypocrisy are obvious.
Right-wing criticism is quickly labeled incitement, while left-wing politicians and media get away with the most hateful and insulting criticism, which can make your toes curl.
According to Zehava Gal-On, saying “Oslo criminals to justice" is outrageous incitement, but when she says that Netanyahu is “good for Hamas” and that settlers are “moonstruck nutcases,” or when Haaretz calls air force pilots “murderers” – this is a wonderful democratic exchange of ideas.
Yitzhak Rabin was as outspoken as any Israeli, using harsh tones and terms when addressing his political rivals, sometimes leading to insults and alienation. Like any man, Rabin was no saint – but since the assassination, there seems to be a tendency to idealize Rabin, and delegitimize those who opposed him.
An extremely complicated issue, which I am not sure has been fully investigated, is the role some rabbis played, by leading their followers to believe that Rabin was punishable by death according to Jewish law. Even if not explicitly articulated, this type of insinuation and religious zeal could be seen as incitement to violence.
Religious leaders must be extremely careful, and held accountable for their utterances which may be taken at face-value by their followers.
So what is incitement? Israeli law defines incitement as the expression of ideas which may lead others to commit a crime, such as incitement to evade military service, incitement of racism, and incitement of violence and terrorism.
“Incitement of violence” is defined as conveying ideas which, in “near certain probability,” may lead to violence. Israeli law lacks the American “clear and imminent danger” test, which better protects freedom of expression.
I believe that most of what we call incitement in Israel does not fall under this category.
We have culturally adopted a broad context, in which derogatory or critical rhetoric may be labeled incitement even if no direct offence is being promoted.
Freedom of expression is a basic constitutional right in Israel (although we lack a constitution, and freedom of expression is not part of any basic law), and every attempt to limit this freedom must be opposed by the upholders of democracy.
Therefore, I strongly object to Justice Minister Tzipi Livni’s initiative to broaden the scope of cases prosecutable as incitement.
Her intentions to improve our society are good, but this course of action is undemocratic.
In emphasizing the legal aspect of incitement, I will even go so far as claiming that the portrayal of Rabin in Nazi uniform was within the boundaries of free expression.
Sickening and outrageous – but legal.
The same goes for the recent picture of President Reuven Rivlin wearing a keffiyeh – an Arab headdress. Here in The Jerusalem Post it was described as a “campaign of incitement against Rivlin.” I disagree. You may not like it, but this does not lead to a direct threat to Rivlin, and therefore is not incitement.
No terms or words should be disallowed by law – only the grouping of words into ideas which directly promote a crime.
The recent initiative to outlaw the very utterance of all Holocaust-related terms is unconstitutional and totally absurd. What is next – banning profanity?
Two clarifications should be made.
First, my criticism on current left-wing politics does not make me right-wing. I hold many views and values which I consider left wing, and it is important for me to see a strong, opinionated left-wing agenda being promoted, in order to contrast and balance our political debate. Zehava Gal- On does not represent, in my opinion, the classic Left, but an extreme agenda, no less dangerous than any other fundamentalism.
Second, my call for limiting restrictions on freedom of expression does not mean that I approve of our culture of debate. On the contrary. I regard our discourse as crude and rude, and am appalled and ashamed, as I have written in past columns. A distinction should be made between applying legal restrictions, and developing our cultural DNA.
For example, the criticism leveled by the Right against Rabin, although not prohibited by law, should have been expressed in a less crude manner.
In a powerful speech at the commencement of the parliamentary winter session of the Knesset on October 27, President Rivlin spoke of our “contaminated discourse,” and described the horrible insults hurled at him on Facebook as “poisonous and venomous arrows.”
It was a wakeup call for us all – that we must rethink the way we communicate with one another, and bridge our vast ideological gaps with respectful discourse.
Israel is a young country, home to a multicultural, diverse society, still shaping its principles of rights and freedoms. We should invest more in understanding the foundations of democracy, and cast them into our basic laws and future constitution.
Here’s a good starting point – according to section 288 of the Israeli Penal Law, if MK Gal-On dislikes this column, I could be charged for “insulting a civil servant.” Not very democratic, is it?
The writer is a former pilot in the IAF and founder of Cross-Cultural Strategies Ltd.
www.ccst.co.il