Human Rights Brief
A Legal Resource for the International Human Rights CommunityWinter 1996
POINT/COUNTERPOINT
by Natan Lerner
Gabriel Eckstein
Zeev Segal
Point/Counterpoint is a regular feature of The Human Rights Brief. The purpose of the section is to encourage meaningful, intellectual discussion on contemporary issues in human rights and humanitarian law through the presentation of two diverse, though not necessarily opposing, opinions on the subject at hand. Commentaries for the Point/Counterpoint section are generally solicited by The Brief, however, the Board of Editors welcomes all submissions, comments, and suggestions. The newsletter does not facilitate the exchange of the authors’ compositions prior to publication. The views expressed in the Point/Counterpoint section are those of the authors and do not necessarily reflect those of The Human Rights Brief, the Center for Human Rights and Humanitarian Law, or their Directors or staff.
Protected Speech or Unlawful Incitement: An Israeli Perspective
by Gabriel Eckstein
Freedom of speech and expression are arguably two of the most guarded liberties globally. They often are touted as fundamental to any democratic society that is based on pluralism and respect for human dignity. Yet, states worldwide have devised varying rationales for imposing limitations on the enjoyment of such rights. U.S. jurisprudence, for example, formulated the concept of fighting words, while Germany places restrictions on statements considered to promote a belief in racial superiority.
Recently, the extent to which the freedoms of speech and expression should be protected has come to the fore of Israeli debate in light of the recent assassination of Israeli Prime Minister Yitzhak Rabin by a right wing extremist. Many Israelis, including the Prime Minster's widow, accuse the right wing Likud political party of inciting extremists to go beyond the bounds of civil disobedience (i.e., to engage in violence). One parliament member recently demanded that the Israeli media refuse to report on extremists' views and demonstrations. In addition, the Knesset (parliament) has been considering several bills that could modify the scope of the right to free speech and a free press in Israel.
In this issue's Point/Counterpoint, the authors consider whether or not international human rights law should permit governments to impose limitations on certain speech, in the context of the ongoing debate in Israel following Rabin's assassination.
Point: Is There a Right to Hate Speech?
Natan Lerner is Professor of Law at Tel-Aviv University, where he teaches international law,
and a lecturer at the Interdisciplinary Center for the Study of Business, Law and Technology. His
most recent book is Group Rights and Discrimination in International
Law<.
Counterpoint: Limiting the Limitations on Political Speech
Zeev Segal also is Professor of Law at Tel-Aviv University and a legal commentator for the
Israeli newspaper Ha'aretz. He specializes in administrative, constitutional, and media
law. He recently published Israel Ushers in a Constitutional Revolution: The Israeli Experience,
The Canadian Impact in Constitutional Forum.
Is There a Right to Hate Speech?
by Natan Lerner
I have been asked to discuss whether international human rights law does or should permit limits on "inflammatory political speech" in the context of the debate that followed the assassination of Prime Minister Rabin. Leaving aside the question of the precise legal meaning of the words "inflammatory" and "political speech," I would like to point out that the debate in Israel regarding measures against the abuse of freedom of speech and association in order to incite against others, because of racial, religious or political motives, is not new. This debate does not differ from the worldwide controversy on how to strike a balance between those freedoms, in a democratic and pluralistic society, and the principles of coexistence, tolerance and respect for the human rights of all.
Sandra Coliver's Striking a Balance: Hate Speech, Freedom of Expression and Non- Discrimination defines hate speech as: "an expression which is abusive, insulting, intimidating, harassing and/or which incites to violence, hatred or discrimination." Hate speech laws are those which prohibit any of the three types of hate speech: group libel, harassment, and incitement. These categories seem to cover the concept of "inflammatory political speech" and it is in this sense that I use the phrase in this article.
The decision taken by the Government of Israel, on November 19, 1995, to declare illegal extremist, violent, and racist organizations, does not imply a departure from former norms, nor the addition of new limitations on freedom of speech or association. Israel has ratified the 1965 Convention on the Elimination of All Forms of Racial Discrimination Convention (Convention), without reservation, and the 1966 Covenant on Civil and Political Rights (Covenant), with some reservations not related to the issue of incitement. Israel is therefore bound by universal human rights law regarding hate speech and incitement, as provided by Article 4 of the Convention and Article 20 of the Covenant. It should be noted that unlike the United States, Israel did not introduced any reservation to the above mentioned Article 4 of the Covenant.
At its December 1994 session, the UN General Assembly adopted two significant resolutions. The first deals with "contemporary forms of racism, racial discrimination, xenophobia and related intolerance." The second expresses alarm at "the acts of violence, of intolerance and of discrimination on the grounds of religion and belief, and condemns "all instances of hatred, intolerance and acts of violence, intimidation and coercion motivated by religious extremism and intolerance."
A year earlier, the Committee on the Elimination of Racial Discrimination (CERD), after receiving "evidence of organized violence based on ethnic origin and the political exploitation of ethnic difference, reaffirmed that the provisions of Article 4 are mandatory and States Parties to the Convention must " not only . . . enact appropriate legislation but also . . . ensure that it is effectively enforced." The Committee reiterated that the prohibition on the dissemination of ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression, as embodied in Article 19 of the Universal Declaration of Human Rights. It also drew attention to Article 20 of the Covenant, which restricts advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. In 1983, the Human Rights Committee, the implementing body of the Covenant, had already declared the prohibitions incorporated in Article 20 as "fully compatible with the right to freedom of expression contained in Article 19."
This interpretation of the provisions of the principal human rights treaties, which have similar counterparts in regional instruments, is the correct one. It is in this spirit that the Secretary- General of the United Nations, after analyzing legislation of 42 countries, drafted a Model Law Against Racial Discrimination which states that the freedoms of opinion, expression, and peaceful assembly should be subject to some restrictions, among them the following: (1) it shall be an offence to threaten, insult, ridicule or otherwise abuse a person or group of persons with words or behavior which may be interpreted as an attempt to cause racial discrimination or racial hatred; (2) it shall be an offence to defame an individual or group of individuals on racial grounds. Organizations which violate these restrictions should be declared illegal and prohibited.
Following this interpretation, many countries adopted measures to fight racial, religious, and political incitement. The list of states having such a legislation is a long one. Recently, the 1993 Italian law, the 1993 Human Rights Act in New Zealand, the new Russian Constitution of 1993, the South African Constitution of 1993, and the new Croatian Penal Code in preparation, each incorporated such measures. In addition, last November, Spain modified its Penal Code to declare illegal organizations promoting hatred or violence based on religion or race. The Code encompasses offenses against religious beliefs and threats against ethnic or other groups. Anti- Semitism is specifically mentioned among the motives for the promotion of hatred or violence and the advocacy of genocide is equally punished.
In the United States, where freedom of speech is so sacred, the Supreme Court declared in the well-known 1993 decision Wisconsin v. Mitchell that state legislation permitting tougher sentencing for offense motivated by racial or religious hatred are constitutional. A recent amendment to Israel's new penal law similarly justifies the strengthening of penalties for offenses grounded in racist motivation.
Against this background, it is impossible to continue to argue that freedom of speech is the paramount value in a democratic and liberal society. This freedom is very important, but it is not absolute. And it cannot be invoked to undermine basic freedoms, violate the law, praise crime, or hurt others physically or emotionally.
Nobody in Israel is advocating restrictions on the expression of views, opinions, or philosophies that may have a place in the free market of ideas. There is, however, a difference between opinion and incitement or instigation. It is clear that incitement to commit a crime or use violence should be restricted. The remaining discussion encompasses the more difficult issue of the dissemination of ideas repudiated by society on the whole because of their negative character, such as racism.
Should society wait until these views become a real and present danger to public peace? Is content enough to put into operation restrictions on free speech and association? In 1987, the Israeli High Court of Justice was asked to decide whether or not the Israeli Broadcasting Authority was entitled to refuse to broadcast utterances containing clear racist incitements by the Kahane gang. The question of "clear and present danger," as well as administrative considerations, played a role in the decision limiting the powers of the Authority. Justice Bach stated that when clear racism is present, it is sufficient to justify restrictions, even when there is no "near certainty" of harm to the social order. With the tragic and traumatic background of the Jewish people, Bach said, there was no need in Israel to emphasize "the utterly destructive influence of incitement to racial hatred."
There seems to be little doubt that the climate of incitement created by the extreme right in Israel -- combining racism, religious radicalism, and political themes -- was an essential factor leading to the assassination of the Prime Minister. The profile of the murderer and his friends and supporters, like in the case of Baruch Goldstein, is a profile of a typical bigot whose threats should not be tolerated even before they translate themselves into criminal acts.
Democracy must protect itself before it becomes too late. This is the basis of the argument of those who accept the need to restrict the freedoms of speech and association in those extreme cases when democracy, the rights or the good names of others, and public order are threatened by irresponsible individuals who could not care less about the rule of law and basic freedoms.
Limiting the Limitations on Political Speech
by Zeev Segal
The assassination of the late Israeli Prime Minister, Yitzhak Rabin, was not just the killing of a nation's political leader. The assassination brought an end to a firm belief that hate speech and hate propaganda could never lead to such an act of violence by one Jewish person against another. Nonetheless, Yegal Amir currently stands trial in Tel-Aviv for the assassination.
The probable connection between hate statements which were made by religious leaders who viewed the prime minister's policy destructive of all Jewish values, and the assassination has sharpened the debate over free political speech versus the right of democracy to defend itself.
Israel is deeply committed to fundamental human liberties, even in the absence of a comprehensive written constitution and an entrenched Bill of Rights. In the landmark decision Kol Ha'am in the 1950s, as justification for limiting speech, the Israeli Supreme Court introduced into the legal system standards for freedom of speech similar to the American standard "clear and present danger". In the 1989 Schnizer case, Justice Aharon Barak adopted the American "near certainty" test to annul a military censor's decision to prevent publication of an article that dealt with the functioning of the Israeli Mossad, the Israeli intelligence agency. The "near certainty" test, which prevailed in the United States in the 1950s, requires that there be a probable, material harm that flows from the speech. The degree of probability required is high, even if the serious danger expected should not necessarily be immediate.
Following such Israeli Supreme Court decisions, the "free market of ideas," which in the language of Justice Holmes is essential to democracy, continues to flourish in Israel. The opportunity for free and open debate exists in spite of valid legislation hostile to freedom of speech. The policy adopted for many years by the State's prosecution refrained from instituting legal criminal proceedings when speech was involved. Such a policy reflected tolerance toward intolerance. It enabled inflammatory speech to become part and parcel of our daily public life. Publications -- in newspapers, demonstrations, etc. -- even when containing incitement to racism, were met with little law enforcement.
Israel's deep respect for freedom of speech concurs with the European Convention on Human Rights. Article 10 of the Convention allows limitations on freedom of expression only where they are prescribed by law and are "necessary in a democratic society," inter alia for "national security" or "public safety" or "the protection of morals . . . or the rights of others."
In the 1994 case of Jersild v. Denmark, the European Court of Human Rights for the first time addressed the difficult questions of whether and how far free expression should be limited when the content of the political expression is of a racist nature. The Jersild case arose following the broadcast of a television program by the applicant, a journalist. It consisted of an interview with three youth who made extremely abusive and derogatory remarks about ethnic groups in Denmark including the assertion that blacks and other immigrants were not human beings. Following the broadcast, the applicant was convicted of having aided in the dissemination of racist remarks.
The Court of Human Rights ruled that the Danish law restricting freedom of speech in order to protect groups of people from racist speech was enacted for a legitimate purpose. The Court, however, also considered the question whether the applicant's conviction was "necessary" in a democratic society.
In the Court's view, news reporting is one of the most important means by which the press plays its "watchdog" role. To punish a journalist for assisting in the dissemination of statements made by another person in an interview would seriously inhibit the role of the press in discussing matters of public interest. Thus, by a majority of 12 votes to 7, the Court held that the means used were disproportionate to the aim of protecting the rights of others, and concluded that there had been a breach of Article 10 of the European Convention on Human Rights.
It is my submission that the majority view in the Jersild decision strikes a proper balance between freedom of expression, racism, and incitement. Although incitement to racism should not be ignored by the legal machinery we do not have to kill the messenger, i.e. the media, to combat the message.
The Israeli criminal law, which is based in this respect on ex-Mandatory (British) provisions, defines the offense of seditious publications in very broad terms. It is an offense to promote feelings of ill-will and hostility between different classes of people. According to the law, promotion of hostility directed at the state shall be deemed seditious publication unless it aims to show that the government was wrong in its actions or omissions, or to convince the citizenry to change the political reality by lawful means.
In 1986, the Israeli parliament enacted a new criminal offense: incitement to racism. The law states that incitement to racism constitutes a criminal offense if it is published with the specific intention to incite racism. The obligation to prove specific intent makes the law very hard to implement.
The policy of not applying the law is evidenced by the prosecution's decision in 1993 not to indict the ex-Chief Rabbi Shlomo Goren, who called on Israeli Defense Force soldiers not to obey orders to evacuate Jewish settlements in Judea, Samaria and the Gaza Strip. The policy, which was based, inter alia, on deep respect for freedom of speech, was challenged before the Israeli Supreme Court. The Court, however, did not find the policy unreasonable.
The same policy was followed by the Attorney-General in July 1995 in his decision not to institute criminal proceedings against Rabbis who published a statement that soldiers should not obey orders to withdraw from army camps in the territories.
An exception to this policy came with the indictment of Benjamin Kahana, who was charged in 1993 with the offense of seditious publication by spreading hate propaganda against the Arab minority. Although Kahana was acquitted in a lower court the District Court of Jerusalem allowed an appeal by the State. In its decision, rendered in December 1995, the court ruled that incitement to racism is one aspect of seditious publication. The court (Judge David Heshin) paid tribute to the importance of an open political debate, yet found grounds for conviction when it concluded that the publication was likely to promote racism as a natural result of the speech.
One month after Prime Minister Rabin's assassination, the Attorney-General brought criminal proceedings for seditious publication against the organization, "Zo Artzeinu," (This is Our Land). This action led to disturbances of public order. The Attorney-General threatened the press that he would institute legal proceedings against newspapers that conveyed messages of incitement. He later retracted the threat following a petition to the Supreme Court by the Journalists' Association.
The idea of instituting legal proceedings against the media, which often reports on sedition and incitement albeit never with the intention to promote such actions, is a road that should not be taken. Fighting words can be attributed only to those who promote them with a very specific intention, and not to those who make society aware of such ideas.
In a democratic society, discussion should be open to all views and all messages, except in very rare circumstances. Only a serious and real danger to public safety, which is imminent and almost inevitable, may justify limiting freedom of speech.
Moreover, limitations on speech are contrary to democracy. Therefore, limitations on the freedom of speech are justified only when democracy is faced with a genuine and substantial need to defend itself. When such a situation arises and a compelling and pressing public necessity becomes evident, it is the right of the State to act via its criminal code in order to preserve democracy. Then, and only then, does the right to exist come before the citizens' right to speak.
The proper citation for this article in the Human Rights Brief Volume 3, Number 2, beginning at page 10 is: 3 No. 2 Hum. Rts. Brief 10 (1996).
