In ruling last week that MK Azmi Bishara's parliamentary immunity is broad enough to shield him from prosecution for speeches effusively praising Hizbullah (one of them delivered in Damascus), the Israeli Supreme Court reaffirmed a crucial aspect of its freespeech jurisprudence: free-speech protection for Arab citizens is absolute; only Jews may ever be found guilty of crimes involving speech.
The Court first implicitly enunciated this principle in 2001 in two cases decided the same day. In the first case, the Court overturned the conviction of Israeli Arab journalist Muhammad Jabarin under a statute forbidding "publicizing words of identification with or praise for acts of violence capable of causing death or injury to a person." Jabarin wrote how he found his identity and sense of self-worth when throwing Molotov cocktails.
Jabarin's celebration of throwing Molotov cocktails was clearly within the statutory language. So Justice Theodore Or, writing for the Court, rewrote the statute to refer only to praise for acts of violence by specific terrorist organizations. To justify his far-fetched reading of the statute, Or cited the principle that statutes impinging on free speech should be construed narrowly.
In a second decision the same day, the Court reversed its own previous acquittal of Binyamin Kahane of the crime of "arous[ing] strife and hatred between different groups of the population," a description arguably applicable to half the political speech in Israel.
Again Or wrote the decision of the Court. But he seemed oblivious to his own earlier opinion. He made no effort to limit the scope of the broad statutory language, despite its obvious chilling effect on the exercise of free speech. Indeed he gave an expansive reading of the statute in finding that Kahane was punishable for having called on the IDF to wipe out the "vipers' nest in Umm el-Fahm."
Only the different ethnic identities of the two defendants can explain the shift in methodologies employed and opposite results reached by the Court.
LAST WEEK Court President Aharon Barak employed the methodology of the Jabarin case to spare Bishara from criminal prosecution. Justice Barak assumed, in passing, that Bishara was guilty of the crime of supporting a terrorist organization. But, he wrote, Bishara's parliamentary immunity shielded him from prosecution for everything apart from explicit support for the armed struggle of terrorist organizations. A fine distinction indeed.
In any event, Bishara didextol terrorist acts, as well as their sponsors. In a speech in Umm el-Fahm, after the Israeli withdrawal from Lebanon, he celebrated Hizbullah's "victory" and offered it as a model from which to draw the "necessary conclusions for success and victory."
And what were those lessons? That the morale of the people of Israel "cracked in light of the losses it absorbed from Hizbullah." Those losses were not caused by Hizbullah's rhetoric or social programs, but by its warfare against Israel.
In a speech in Damascus, on the first anniversary of the death of Hafez Assad,
Bishara, flanked by Hizbullah leader Sheikh Nasrallah and heads of the most militant Palestinian terror organizations, lauded Hizbullah as a model of heroic Islamic resistance that should be expanded to end the Israeli occupation. That speech came long after Hizbullah had kidnapped and killed three Israeli soldiers, and launched hundreds of Katyushas at Israel. Yet Court President Barak found that Bishara's illegal trip to Damascus to praise Hizbullah as a model of emulation was within the legitimate scope of his parliamentary duties.
IN TRUTH, the phenomenon of applying a different set of rules to speech by or about certain favored minorities or "disadvantaged" groups is by no means confined to the Israeli Supreme Court. It is pervasive throughout the West.
Today many Western European and American papers are full of solicitude for the sensitivities of Muslims offended by the publication of cartoons of Muhammad in a Danish paper. But some of those same papers praised a federal judge who ordered New York City not to withhold funding from the Brooklyn Museum of Art for displaying a Christian icon splattered with elephant dung.
To some extent the different responses are purely craven. In Jenin: Massacring the Truth, filmmaker Martin Himmel elicits from the head of the British Cartoon Society an explanation of why there are no cartoons of Jewish children killed in suicide bombings to parallel the prizewinning cartoon of a naked Ariel Sharon eating Palestinian babies: "Jews don't issue fatwasagainst journalists."
Secure that his academic freedom will protect his descent into Lamarckian genetics, Hamid Debashi, chairman of Columbia's Department of Middle Eastern and Asian Languages and Cultures, is able to write: "Half a century of systematic maiming and murdering of another people has left... deep marks on the faces of Israeli Jews, the way they talk, walk, the way they greet each other... There is a vulgarity of character that is bone-deep and structural to the skeletal vertebrae..."
But imagine that a professor, even a tenured one, had written outrageously that inner city African Americans are characterized by distended earlobes from prolonged exposure to boom boxes and wide lips from eating too many watermelons. His career, and perhaps his life, would be over.
Last year, a University of Las Vegas economics professor was forced to forgo a pay increase and endure sensitivity training for observing that homosexuals, who tend to have few children, show lower rates of savings. Truth is no defense when feelings of certain groups are hurt.
Academic huckster Ward Churchill suggests that some of those killed on 9/11 were Eichmann-like technocrats and that millions more Americans might have to die to atone for the native Americans killed by white invaders. In his academic work, he claims that American settlers gave Indians blankets infected with smallpox, even though the mechanism by which smallpox is transmitted was not known for another hundred years. Yet despite his professional incompetence, false claim that he is an Indian, and contempt for American lives, his academic position is secure because he speaks on behalf of native Americans.
Meanwhile Harvard's tenured faculty tried to ride Harvard President Lawrence Summers out of town on a rail for suggesting that men and women might not be identical in every respect, though a considerable body of scientific research on innate differences between men and women supports that suggestion. Neither academic freedom nor freedom of speech served in Summers's defense once he had offended women.
Not just in Israel are neutral principles hard to come by.