Freedom of Expression in Israel: Origins, Evolution, Revolution and Regression
Oxford Handbook on the Israeli Constitution (Aharon Barak, Barak Medina, Yaniv Roznai, eds.) (Forthcoming)
17 Pages Posted: 8 Jul 2021
Date Written: June 29, 2021
This chapter, written for the Oxford Handbook on the Israeli Constitution, provides an overview and critique of the protection of free expression in Israel. I argue that protection of speech of in Israel has been almost exclusively reserved to the judiciary, particularly the Supreme Court, in the face of suspicion and sometimes hostility to free expression in the legislature and the executive. This duality can be traced to a security-driven colonialist paradigm dominant during Israel's first years, which still maintains its hold on legal consciousness. According to this paradigm, security considerations are paramount and legitimate speech restrictions. Whereas this is the case in many if not all jurisdictions, in Israel security considerations have been understood in an expansive and expanding way, thus serving to increase speech restrictions.
Over the years, the Supreme Court has increasingly resisted the security-based paradigm. Yet even after partly breaking with that paradigm, developments in Israel, underscored by a permanent state of emergency, have all but guaranteed that security-based considerations receive a great deal of deference, even when security is merely a cover for preserving Israel’s constitutional identity and ideological hegemony. Thus the conflicting approaches to free speech generate, on the one hand, a right that commands broad consensus in the abstract, but on the other hand, a right whose standing is still precarious. This chapter thus tells the story both of the protection and the vulnerability of speech protection in Israel, amidst these competing poles.
The chapter provides a brief account of the history of speech protection in the years prior to the establishment of Israel and the legal status at independence. It then describes the early protection of speech, centering on the seminal Kol Ha’am case and the paradigm shift it embodied. It explains how the Court relied on the core of Kol Ha’am to upgrade its protection of speech more generally. This upgrade was further elevated after Israel’s constitutional revolution. Finally, I argue that new restrictions on speech paint a more complex picture of protection, noting how by restricting speech Israel is seeking to preserve its constitutional identity as a Jewish state.
Keywords: Free expression, Israel, judicial review, constitutional identity
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