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In 2002, former Shin Bet (Israel Security Agency) head Ami Ayalon (subsequently a Labor MK and cabinet minister) and Palestinian academic and former Palestinian Authority representative Sari Nusseibeh drafted an envisioned "final status agreement" for the Israeli-Palestinian dispute. Their belief was that this extra-governmental agreement could attract widespread grassroots support from large numbers of Israelis and Palestinians, and thus convince leaders of the viability of a solution and perhaps pressure them to implement one. The initiative was named Mifkad Leumi, literally "National Referendum," and was given the English name "People's Voice."
In 2003, the People's Voice sought to buy airtime on state-owned television and radio, in order to publicize their initiative. However, after a few advertisements were aired, their request was refused; the Israel Broadcasting Authority (IBA) decided that the advertisement contained "controversial political messages," which was certainly true, and that this fact justified refusing the ad, a position that launched a new controversy.
The People's Voice brought a lawsuit against the IBA and the Second Authority for Television and Radio, demanding that their ads be broadcast and, more broadly, that the rules against political advertising be annulled.
On Wednesday, the High Court of Justice resolved the lawsuit in favor of the IBA and the Second Authority. The justices concluded that banning political advertising serves the interest of creating a balanced public discourse on controversial topics by preventing a monopoly of views backed by monied interests.
I will discuss the technical aspects of the ruling briefly and then turn to the substance of the regulations.
I think the High Court had some good reasons to dismiss the suit, but the reasons they gave were not the good ones. One possible reason, raised but rejected in the decision, is that denying the right to advertise on the highly regulated official broadcast media is not the same as denying freedom of speech, since many other media exist. But I understand why this reason was rejected.
Sadly, Israel does not have a thriving variety of private broadcasters; the state-sponsored stations are dominant, particularly in radio. This is a serious limitation on freedom of speech.
Another reason would be to adopt the main defense suggested by the broadcasters who were the defendants: Ads are meant to be a source of revenue, and they have the right to adopt principles which promote that role. Broadcast stations have the right to decline offensive ads, because they will discourage viewership; by the same token, they may decide that asking viewers to actually think, as the People's Voice ad urged them to do, would be bad for business or for their other sponsors.
However, the court's opinion was that the rules do indeed limit a quasi-constitutional right of freedom of expression (there is actually no such right, nor is there a constitution, but a number of judges have read such a right into the Basic Law: Human Dignity and Freedom), but that it is justified because they serve a higher purpose, namely, creating a balanced public discourse. There are strict rules meant to ensure that the actual programs present a balanced view of controversial topics; allowing commercial purchase of air time would disturb that balance and skew the public discourse.
I find this claim astonishing. The idea that allowing advertising for political topics will actually stifle political discourse is highly counterintuitive, to say the least. Assuming that Israelis with political opinions opposed to those of Ayalon objected to his message, the most likely response would be that they would in turn take out political ads to promote their point of view, and the political discourse would have enriched, not stifled.
In fact, to the best of my knowledge, none of Ayalon's many political rivals objected to giving him the opportunity to present his point of view; it was specifically the official organs of the state, the ultimate monied interest, which denied him this opportunity.
The argument that advertising gives an insuperable advantage to the wealthy is spurious. The cost of advertising on Israeli television is not so great that it is out of the reach of any serious public interest group, even one made up of poor individuals, if they are many and serious.
If for some reason we did conclude that paid advertisements give, or are likely to give, an unfair advantage to monied interests, then a satisfactory alternative would be to provide an equitable forum to opposing interests in programming time. I think most serious political groups are happy to give their opponents their own soapbox; their object is to persuade, not to overwhelm.
Or perhaps the amount of advertising devoted to political topics could be limited to prevent the viewer from being overwhelmed. (In my opinion being bombarded with political messages is more likely to underwhelm, but the stations could at least be prepared.)
The current situation, wherein media bureaucrats are charged with presenting a "balanced" spectrum of views, is far worse. If for some reason my point of view is dismissed by whoever is in charge of balanced programming, I have no recourse whatsoever. My freedom of speech is critically damaged. The only reasonable solution is to allow people who feel their viewpoints are poorly presented in programming a forum in paid advertising.
I am not qualified to evaluate the technical legal arguments regarding the constitutionality of the broadcast regulations, but I am unequivocally convinced that the regulations are wrong-minded. Against the claim of the stations, I am sure that allowing political advertisements would enrich their coffers, by increasing the demand for advertising time. Above all, against the claim of the court, I am convinced that allowing such advertisements would significantly enrich the political discourse in Israel.
Asher Meir is research director at the Business Ethics Center of Jerusalem (www.besr.org), an independent institute in the Jerusalem College of Technology.
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