Yisrael Beytenu activists reading Charlie Hebdo with their mouths taped shut in front of Independence Hall in Tel Aviv.
(photo credit: Lahav Harkov)
The High Court of Justice voted 2-1 on Wednesday to let Yisrael Beytenu give away copies of the Charlie Hebdo magazine that caricature the prophet Muhammad.
Justices Noam Sohlberg and Esther Hayot outvoted Supreme Court President Miriam Naor, and reversed the decision of their colleague Justice Salim Joubran, who as head of the Central Elections Committee had ruled the magazine’s distribution an illegal preelection gift.
It was the first major decision since Naor became president of the court on January 15 where she was in the minority.
Yisrael Beytenu chairman Liberman congratulated the court for making “the right decision,” which “sends an important message that Israel remains a Jewish and democratic state and does not give in to threats of violence by Arab MKs who are trying to turn Israel into the Islamic State.”
The controversy started when Yisrael Beytenu planned to give away 2,000 copies of the French satirical newspaper Charlie Hebdo’s “survivors’ issue,” after the Steimatzky bookstore chain backtracked from its intention to sell the issue in stores, and decided to do so only online.
The bookstore chain’s decision came after MK Masud Gnaim (UAL) said “the country and the [Steimatzky] chain will be responsible for the results” of selling Charlie Hebdo, and that doing so would be cross a redline as far as Israeli Arabs and their leadership were concerned.
The Central Elections Committee’s ruling barring the handout came in response to a petition by MK Ahmed Tibi (Ta’al), who wrote that distributing the newspaper would violate the law against giving gifts as part of an election campaign, and that doing so would likely disturb the peace, because it offends Muslims by mocking their religious symbols.
Yisrael Beytenu at Charlie Hebdo freedom of speech protest.
Joubran accepted the first claim as reason enough to ban Yisrael Beytenu from acting as it planned, adding that it would be better if political parties worked to bring Jews and Muslims closer and not take advantage of the tension between them.
Tibi said he is disappointed by the High Court’s verdict, but he is not surprised, because of the judges dealing with the case, especially Sohlberg.
At the February 17 High Court hearing on the issue, compromise seemed in the air, with Naor suggesting a compromise in which Yisrael Beytenu handing out the front page only.
Naor explained that if the central disagreement is about the value of giving out the whole magazine as being an illegal preelection gift, that giving out only the first page would resolve the issue.
While Yisrael Beytenu’s lawyer did not formally agree to the offer, he was clearly not opposed, presumably as handing out page one with the caricature of Muhammad would essentially achieve the party‘ s goal of a political statement.
His main argument in the hearing was that the act of handing out the magazine was protected free speech, with the content of the magazine being largely irrelevant, and that prohibiting the handout was an overly strict interpretation of the prohibition on preelection gifts.
The petitioners, representing MK Ahmed Tibi (Ta’al) and much of Israeli- Arab public opinion, were dead-set against the compromise.
They argued that even though the Central Elections Committee had banned free handouts of the magazine on the grounds that it would be an illegal preelection gift, that the newspaper also violated advertising laws because it could ignite violence among Israeli Arabs.
The court did not appear favorable to the petitioners’ arguments that handing out any part of the paper could lead to a violent reaction, noting that it did not appear to have jurisdiction to block free speech and campaigning based on such an amorphous claim.
A lawyer for the Elections Committee opposed Naor’s proposal, saying the committee “had considered and rejected” such a compromise, and that “any free handout,” however limited, was prohibited.
The petitioner’s attorney agreed on this point, saying that handing out the front page would be giving out for free the essence of the magazine, making it problematic.
The committee added that the court is not supposed to intervene in the committee’s decisions except in rare cases and that permitting the free handout “would be a slippery slope” to more expensive gifts in future elections.