The Unintended Consequences of Prohibiting Advocacy of Hatred and Regulating Campaign-Finance: The Weakening Status of Freedom of Speech in Israel

20 Pages Posted: 21 Sep 2017 Last revised: 30 Sep 2018

See all articles by Barak Medina

Barak Medina

Hebrew University of Jerusalem - Faculty of Law

Date Written: September 20, 2017

Abstract

A central dilemma in human rights law is how to reconcile the government’s duty to respect freedom with its obligation to protect individuals that might be harmed by the exercise of said freedom. Intolerance toward the dissemination of certain illiberal positions may have adverse social and political unintended results. One central concern is that such a policy would create a common culture that does not appreciate the critical importance of a vibrant public discourse. As such, it might enable governments, in terms of popular legitimacy, to curtail speech beyond the limits of justifiable infringements. Recent developments in Israel illustrate this concern. In recent years, normatively legitimate anti-racism legislation was unjustifiably expanded by imposing sanctions on expressions that were deemed harmful to national sentiments or questioning the legitimacy of Israel’s Constitutional Identity as a Jewish state. Similarly, laws against the support of terrorism were followed by prohibitions on advocating boycotts against Israel. This Article proposes to halt the sociological slippery-slope trend of curtailing speech far and beyond the permissible scope of such a policy, by implementing rules-based legal doctrines that may foster a stronger public pressure on the government to protect free speech; restricting the scope of “harm-in-one-step” approach; and providing a clearer definition of the requirement of state neutrality in the context of regulating speech.

Keywords: Israel, constitutional law, freedom of speech, human rights, judicial review, campaign-finance, hate speech

Suggested Citation

Medina, Barak, The Unintended Consequences of Prohibiting Advocacy of Hatred and Regulating Campaign-Finance: The Weakening Status of Freedom of Speech in Israel (September 20, 2017). Hebrew University of Jerusalem Legal Research Paper No. 17-42, Available at SSRN: https://ssrn.com/abstract=3039940 or http://dx.doi.org/10.2139/ssrn.3039940

Barak Medina (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

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