Terra incognita: Bad justice, free speech in Israel

Courts don’t do the public any favors by placing themselves as arbiters of taste; telling us which political views are acceptable.

By SETH J. FRANTZMAN
High Court of Justice 370 (photo credit: yonah jeremy bob)
High Court of Justice 370
(photo credit: yonah jeremy bob)
One of best scenes in the film The People vs. Larry Flint occurs when Alan Isaacman gives oral testimony before the US Supreme Court to defend Hustler magazine publisher Flint, arguing that “one of the most cherished ideas that we hold in this country is that there should be uninhibited public debate and freedom of speech.”
Flint was accused of libel and causing emotional distress for ridiculing preacher Jerry Falwell, who was awarded $150,000 in a suit.
At the Supreme Court, Justice Antonin Scalia took issue with the idea that every public figure should be open to extremely offensive criticism. Isaacman responded: “you’re talking about a matter of taste, not law.”
The court agreed in a unanimous decision in 1988 that, “The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions.”
In Israel freedom of speech is understood differently – if it is understood at all. To put it simply freedom of speech is not an essential value in Israel; it is not sufficiently celebrated and neither is it defended. This was made obvious by a recent case at the Jerusalem District Court. A group called Im Tirtzu had sued five left-wing activists who maintained a Facebook page called “Im Tirtzu is a fascist movement.” Judge Rafael Yaacobi threw out the case to much applause from the Israeli Left.
Haaretz editorialized that this decision would “deter the silencers.” They highlighted that the judge had supported free speech.
“In my opinion,” Judge Yaacobi said in his decision, “debate stemming from extreme disagreements involving values and politics between the plaintiffs and the defendants should have no boundaries... this debate should not be accompanied by lawsuits.”
But the court’s ruling in fact constitutes a grave danger to freedom of speech; the judge didn’t throw out the case based solely on free speech grounds, the way the US court found in favor of Flint. Instead, the judge noted that there were indeed similarities between Im Tirtzu and fascist groups.
Journalist Avi Shilon notes that “the court adopted the clearest, most salient definition of fascism – favoring the national over the universal.” In short, Im Tirtzu was wrong to file the case because it was actually a fascist movement, and therefore calling it fascist could not be libelous.
This turns on its head the US case. In that case Flint’s publication had asserted that Falwell fornicated with his mother in an outhouse.
To meet the standard set down in the Jerusalem court, Flint would have had to prove that Falwell had in fact done that.
The Israeli court’s abuse of freedom of speech is similar to the infamous David Irving v. Penguin Books and Deborah Lipstadt case in 2000 in the UK.
Lipstadt had claimed in her book Denying the Holocaust that revisionist historian David Irving was a Holocaust denier. Irving sued the publisher and author for libel, arguing that he could not be a denier – because there was no Holocaust to deny. The burden of proof was on the defendant who then had to prove that the Holocaust had happened and that there had been gas chambers. The judge found that “Irving has for his own ideological reasons persistently and deliberately misrepresented and manipulated historical evidence; that for the same reasons he has portrayed Hitler in an unwarrantedly favourable light.” In short, the Holocaust had actually happened and the defense had proved it.
This was similar to the Israeli case, where the defendants had to prove that Im Tirtzu had similarities to a fascist movement.
The Left’s rejoicing that the “silencers” are being deterred completely misinterprets the ruling. What the Left has now been handed by the judicial system is simply carte blanche to slander anything on the Right as “fascist,” because the judicial system has concluded that anything Zionist, i.e. anything that favors the national interest over the universal, is “fascist.” However the ruling shields the Left from similar accusations, unless it can be proved that a left-wing organization is favoring one group over another.
The judge’s ruling of “Zionism equals fascism” to deride those on the right has a respectable pedigree. In the 1930s David Ben-Gurion called Ze’ev Jabotinsky “Vladimir Hitler.” In 1948 a letter signed by Albert Einstein and Hannah Arendt in The New York Times referred to the ancestor of today’s Likud party as “a political party closely akin in its organization, methods, political philosophy and social appeal to the Nazi and fascist parties.”
Prof. Yeshayahu Leibowitz claimed parts of Israel were a “Judeo-nazi” state. Prof. Moshe Zimmerman has said “there is an entire sector of the Jewish public which I unhesitatingly define as a copy of the German Nazis.”
Rarely a week goes by in Israel without something on the Right being derided as “fascism,” from Bradley Burston’s, “Israel’s boycott law, the quiet sound of going fascist,” to Yossi Sarid saying “fascism is already here.”
Crying “fascism” is part of the soul of Israeli Left; it has few other descriptive words for its political enemies and has not altered or matured in its dialectic since the 1930s. The recent court ruling has only enshrined it in law.
Can Israel embrace a free speech agenda? The prospects do not seem good, because both the Right and Left in Israel have anti free speech tendencies. Instead, what is embraced is free speech for one’s own group. Thus there are professors who advocate free speech but then sue those who critique them. When Im Tirtzu first appeared on the scene several years ago, a department dean said: “find a way to sue them” in order to stop their activities.
Courts don’t do the public any favors, since they prefer to hear libel cases rather than throw them out. The courts thus enshrine, time and again, that one must prove one’s accusations, whether it is “libeling” someone by calling them a Holocaust denier as in the UK, or calling someone fascist, the courts want to adjudicate our speech. They want to place themselves as arbiters of taste and tell us which political views are acceptable. This was precisely the danger Justice Scalia warned of, “just as there is no use arguing about taste, there is no use litigating it,” he had said in Pope v. Illinois in 1987. Whether something is “fascist” is a matter of taste, for courts to adjudicate what is “fascist” is as harmful to free speech as for courts to presume to know who may and may not be called “ugly.”