There has been significant controversy recently over whether people can demonstrate outside the private residence of Attorney-General Avichai Mandelblit.
Has Israel recently moved from being a protest-friendly country to one that discourages the free speech principles underlying the freedom to protest?
Or on the flip side, if in other democratic countries protests are confined to being in front of public offices and not private residences, why do Israelis feel protesting outside public officials’ private residences is legitimate?
The issue is on the public agenda because, after nearly six months of protests outside Mandelblit’s private residence every Saturday evening, from November 2016-April 2017, the High Court of Justice ruled that protesters must move back some hundreds of meters from the residence.
Next, the storyline gets a bit more convoluted with the police possibly restricting protesters further, going beyond the constraints set down by the High Court.
Protests like those against Mandelblit (in this case the demonstrators want him to indict Prime Minister Benjamin Netanyahu) at his private residence are not unusual in Israel.
Various groups have in the past demonstrated outside the residences of top IDF officials, especially those responsible for enforcing laws on Jewish settlers.
They have also protested outside the residences of judges, including Supreme Court President Miriam Naor, and outside the private residences of politicians such as Yair Lapid and Gideon Sa’ar (incidentally, the prime minister’s Balfour Street residence is not considered “private”).
So why has the High Court stepped in and pushed protesters back in the Mandelblit case? Essentially, the court adopted what is known in the US and some other countries as the “captive audience doctrine” – the idea that protesting outside a public official’s public office should be essentially unlimited, but that protest outside those officials’ private residences should be very limited.
The well-known US Supreme Court case in this regard was Frisby v. Schultz in 1988, which decided that targeted picketing the quiet enjoyment of the home could have a devastating effect that went beyond free speech, and deterring such conduct was a legitimate government interest.
In its April 27 decision, the Israeli High Court also did not mince words.
“A protest... next to the private residence of a public servant, in a situation in which there would be an effective alternative (such as his office), establishes a presumption that at least the primary purpose… is not to exercise the right to free speech and to demonstrate,” the High Court wrote.
Rather, the court wrote, such a protest “is an attempt to illegitimately influence the public servant’s performance of his job by creating pressure on him and on his family.”
In that light, the justices decided that to prevent “problematic pressure on public officials by virtue of harassment of them in their private residences... there are grounds... to prohibit protests... at private residences.”
The idea of the captive audience doctrine is that, unlike a public area from which someone can leave to avoid protesters’ message or for which society values protesters’ getting to state their message, it is unfair to make people captives in their own homes to messages that disturb their private time.
According to Hebrew University Prof. Barak Medina, prior to this High Court decision, Israeli law and certainly practice regarding protests near private residences were unusually friendly.
If the law and culture in the US and other Western countries often had a rule against protests near private residences of public officials and in favor of protests in front of those officials’ public offices, Israel often allowed such intrusive protests.
Medina said there had always been a balancing of priorities test of the right of protesters versus the privacy rights of the individual being protested against.
Israeli courts would balance these issues “on a case by case basis,” asking questions such as “How many protesters were involved, how long and continuous were the protests expected to run, was the site of the protest the most effective option available?” he said.
US and other Western courts in theory also might use a balancing test.
But the vast majority of the time, they have a much stronger rule against protests at private residences or, for example, protests that are too close to medical clinics that performed abortions.
Also, culturally there was less of a pattern of protesters desiring to protest outside private residences, even if it was something that did sometimes occur.
But Medina said that the High Court’s recent ruling flipped the model of Israel being more protest-friendly on its head.
By presuming that protests at private residences were inherently problematic, the High Court tossed aside the balancing of priorities that other democracies were still engaging in, even if they usually came down against protests at private residences, he said.
For example, the US Supreme Court in Snyder v. Phelps in 2011 permitted a protest near the burial of a US soldier to express various public policy criticisms of the Iraq War, even as the messages were deeply hurtful to the family of the soldier in its time of mourning.
The impact of the recent Israeli High Court ruling was exacerbated by the police arresting some demonstrators (though the police said this was only done when protesters started to march toward Mandelblit’s residence in violation of the court’s order) and releasing them on condition that they not protest anywhere in the attorney-general’s home city of Petah Tikva.
Last week, a lower court and the deputy attorney-general corrected the police’s actions, clarifying that protesters must be continued to be allowed to demonstrate at the intersection nearby Mandelblit’s residence.
Yet there is still a feeling among free speech activists that Israel has turned the corner of its treatment of certain protests. The change is real.
A decade ago, then-attorney- general Menachem Mazuz tried to institute similar stronger limits on protests by issuing directives. Directives having limited power meant that, at the time, the police ignored him and were more permissive.
But in April, Mazuz sat on the three-justice High Court panel the making the final call on the issue of protests. This time his view took the form of binding law.
None of this means that the right to protest has been squelched. In fact, if the Mandelblit protesters were either fewer than 50 in number, or pledged to only quietly picket and not to chant, they could still protest outside his home and without requiring a police permit.
At the same time, Israel has become far less friendly to at least certain kinds of protests, and the implications of that change could go far beyond whenever demonstrations against Mandelblit naturally die down.
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