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Symposium: Mixed JurisdictionsSymposium : juridictions mixtes

“Dignitizing” Free Speech in Israel: The Impact of the Constitutional Revolution on Free Speech Protection

  • Guy E. Carmi

Adjunct Lecturer, The Hebrew University of Jerusalem, Israel & Attorney-at-Law, Lipa Meir & Co, Advocates. SJD & LLM, University of Virginia School of Law. I received valuable help on this paper from many, including Robert O’Neil, A.E. Dick Howard, Risa Goluboff, Daphne Barak-Erez, Ronald Roth, Doron Shultziner, Reuven (Ruvi) Ziegler, Eyal Peleg, Andrew George and Bell Shpivak. I thank all of them for their helpful comments on earlier drafts of this article. All errors and omissions remain mine alone.

Citation: (2012) 57:4 McGill LJ 791

Référence : (2012) 57 : 4 RD McGill 791

Cover of Volume 57, Number 4, June 2012, pp. 645-1029, McGill Law Journal

Article body

Introduction

This article presents the “dignitization process” of free speech in Israel in several ways. It demonstrates Israel's gradual shift from a liberty-based influence in the 1980s to a more dignity-based paradigm in the past two decades, as evidenced in Israeli free speech rulings. In addition, it describes the growing tendency to evaluate freedom of expression in human dignity terms.

First, the history of free speech development in the Israeli legal system is explored, and the background of Israeli constitutional law and the lack of a formal constitution are explained, in order to provide readers who are unfamiliar with Israel the necessary background to understand the processes Israel has been undergoing in recent years. This article demonstrates how the Israeli Supreme Court extended constitutional protection to the unenumerated right of free speech via the human dignity clause beginning in late 2006. The nexus between human dignity and free speech is tenuous, and the Court did not provide sufficient grounds to fully and satisfactorily incorporate free speech into the constitutional documents. In fact, the current method of incorporation, which uses human dignity as the incorporation channel, inherently weakens freedom of expression. This article makes two proposals to strengthen freedom of speech: by incorporating it into the constitution via the liberty clause, or by including it among the enumerated rights.

Second, this article demonstrates the growing shift from the American liberty-based influence in the 1980s to a more Western, non-US dignity-based influence following the adoption of the partial bill of rights in the 1990s. The slow shift of paradigms, which has caused a constant, yet almost unnoticeable, decline in the standing of free speech in Israel, is demonstrated both by a statistical analysis of the Israeli Supreme Court free speech rulings in the past thirty years, and by a substantive analysis of recent rulings in the areas of prior restraint, pornography, and libel.

The statistical findings clearly demonstrate that while human dignity rarely played a role in free speech rulings in the past, it plays a significant role today. This trend is labelled the dignitization process of free speech. Another indication of the dignitization process lies in the reference to foreign rulings. Although US rulings remain a popular source for citation in the Israeli Supreme Court’s free speech rulings, the number of references to these rulings is on the decrease. Simultaneously, German and Canadian rulings are cited in growing numbers. These tendencies further indicate that Israeli free speech law is increasingly inclining toward the dignity-based approach to free speech through its slow disengagement from the American influence toward a more Western, non-US approach.

Moreover, a substantive examination of the Israeli Supreme Court’s free speech rulings from the last decade reveals the dignitization process both in rhetoric and outcomes. Three areas of free speech law are explored. Human dignity is acknowledged as a reason for invoking prior restraint under some conditions. It is recognized as a reason for limiting pornography. It has also become the principal rationale in libel cases, which have slowly begun to resemble European insult laws. These substantive examples, combined with the statistical tendencies, give a clear picture of the dignitization process Israeli free speech law is undergoing and unfold the paradigm shift that is not evident to the naked eye, since the transition is in process.

For free speech to be adequately protected, it needs to be explicitly enumerated within the constitutional documents in a manner that buttresses its standing and grants it the protection it deserves. In the interim, this article offers the use of an alternative channel to incorporate free speech into the existing Israeli constitutional documents. Instead of the current use of the human dignity clause within Basic Law: Human Dignity and Liberty[1] the use of the liberty clause within the same basic law is suggested. Because liberty does not carry speech-restrictive features as does human dignity, some of the current speech-restrictive features that stem from the forced and artificial juxtaposition of free speech and human dignity may be alleviated.

Israel serves as a test case to explore the dignity-liberty model presented elsewhere, [2] and this article utilizes it for an in-depth analysis of rights in a specific legal system. Israel is uniquely positioned to reflect contemporary trends in Western constitutionalism, since it combines influences from both sides of the Atlantic, and it is in a transitional stage in forming its constitutional law in general, and its free speech law in particular. This article also illustrates the process that the Israeli legal system has undergone in the past two decades and which has not received much attention to date. The analysis conducted herein, backed by statistical data and the insights of comparing the dignity- and liberty-based models, unveils an almost unnoticed decline of free speech in Israel and explains its motives.

This article coins the term “dignitization process” to describe the growing tendency to evaluate freedom of expression in human dignity terms. This phenomenon is an important aspect of free speech in Western democracies. The articulation of free speech in terms of human dignity, however, is inherently problematic, and this article warns of the undesirable consequences of this process.

The dignitization process is demonstrated in the Israeli setting by illustrating the growing use of human dignity-related terminology to analyze free speech. This illustration is made both through a statistical analysis of references to human dignity in free speech rulings in the Israeli context and through substantive analysis of Israeli Supreme Court rulings. Thus, this article establishes the intricate nexus between human dignity and freedom of expression in the Israeli setting. This phenomenon should receive the careful attention of other scholars worldwide and cause them to examine this nexus in greater depth as well as its implications for other legal systems.

The discussion of the possible uses of the liberty clause within Basic Law: Human Dignity and Liberty reveals undiscovered paths in Israeli constitutionalism. Israel’s relatively young age and its lack of experience in constitutional developments mean that Israeli constitutional law is still in its formative stages. Currently, the existence of a single constitutional clause through which unenumerated rights are read into the constitution limits the ability to read such rights into the existing constitutional text. The proposal to read free speech into the liberty clause is innovative, since, to date, the human dignity clause has served as the exclusive channel for incorporating unenumerated rights. Thus, this article calls for new strategic ways to read and interpret the Israeli constitutional text.

I. Past—Background: Israeli Constitutional Law and Free Speech Protection

A. The Lack of a Formal Constitution

Attempts to enact a formal constitution in the early years following the establishment of the state of Israel were not successful. A constituent assembly that was established according to the Declaration of Independence reached a deadlock and was unable to produce an agreeable constitutional document. This resulted in a compromise, known as the Harari Decision. [3] Pursuant to this parliamentary decision, basic laws would be enacted in stages as chapters of the constitution-to-be. Basic laws were indeed enacted, and between 1958 and 1992 ten basic laws dealing primarily with structural issues (e.g., Basic Law: The Knesset[4] Basic Law: The Government, [5] Basic Law: The Judiciary[6] etc.) were passed by the Knesset (the Israeli Parliament) but, at that time, were not considered to have special standing. [7] Fundamental rights were not mentioned in these basic laws; their protection was implemented by the courts, in particular by the Supreme Court presiding as the High Court of Justice.

While protection of free speech has been one of the main pillars of Israeli constitutional law since the early days of Israeli democracy, [8] there is no constitutional provision that deals with freedom of expression and prohibits its infringement. Supreme Court rulings have created common law protection of fundamental rights, placing freedom of expression at the top of the protected freedoms. [9] In addition, the Supreme Court has found creative ways to circumvent its lack of power to disqualify acts that infringe upon freedom of expression. This was done primarily through interpretation that implemented high democratic standards, and through doctrines that the Israeli Court imported, either in full or in part, principally from the American system. [10]

The landmark Kol Ha’am case in 1953 is perhaps the most important free speech ruling in the history of the Israeli Supreme Court. [11] But the 1950s-1970s were not characterized by a robust protection of free speech. [12] In fact, free speech received only moderate and partial protection during this period in which the Court resorted primarily to British precedent. [13]

A shift in the development of freedom of expression rulings by the Israeli Supreme Court took place from the late 1970s to the early 1990s. [14] This period can be described as the golden age of freedom of expression. During this period, the Supreme Court, led by Chief Justice Shamgar, fortified and strengthened freedom of expression’s position to the peak of its protection. [15] In a series of rulings, the Supreme Court buttressed freedom of speech vis-à-vis other fundamental rights, and the rhetoric behind the protection of this right was at its peak. [16] The Kol Ha’am precedent was rediscovered after several decades of dormancy, marking a change from the speech-restricting rulings of the early years of the establishment of Israel. Most of these rulings, written by Chief Justice Meir Shamgar and subsequently by Justice Ahron Barak, were based primarily upon US precedents. [17] This period can be characterized as structuring the right of freedom of expression as one of the most powerful rights, if not the most powerful one. It provided for the almost exclusive application of relatively strict scrutiny tests [18] in cases of infringement of the right of freedom of expression. [19]

The right of freedom of expression was constructed and shaped by the Supreme Court in a relatively robust manner, especially vis-à-vis other rights, taking into consideration that there was no textual constitutional anchor for this construction. [20] The Israeli Supreme Court found detours and created doctrines that enabled it to interpret the draconian British Mandate legislation narrowly since it did not have the elementary constitutional tool of judicial review. [21] This adaptability of the Supreme Court to the lack of both judicial review and a constitutional anchor for the right of freedom of expression is remarkable, yet imperfect. The scale and scope of the protection of freedom of expression was reduced, and the Court was ill-equipped to handle legislation that directly infringes freedom of expression. [22]

The positioning of freedom of expression at the top of the pyramid of rights as an integral part of the golden age rulings is exemplified by the following quote from a Supreme Court ruling: “Freedom of expression stands at the top of the liberties upon which our democratic regime is founded.” [23] Although freedom of expression has never been considered an absolute right, the Court clearly positioned it at the top of the array of protected rights.

Thus, the golden age period implicitly gave hierarchal priority to freedom of expression vis-à-vis other rights, despite (or maybe because of) the lack of a formal constitution. This common law development of freedom of expression doctrines was not constitutionally anchored and was partially concealed due to the manner of its formation. While it has become an integral part of the Israeli legal ethos, [24] it was created solely by the Supreme Court’s rulings.

B. The Constitutional Revolution

During the 1990s, the Israeli constitutional law arena changed dramatically as a result of a process known as the Constitutional Revolution. [25] This term generally refers to the process that started with the enactment of two basic laws in 1992. Basic Law: Human Dignity and Liberty [26] and Basic Law: Freedom of Occupation [27] were the first (and so far the only) basic laws that dealt with substantial rights. [28] This partial bill of rights lists only a handful of fundamental rights, [29] and not necessarily the most important ones. [30] Attempts to include freedom of expression among the enumerated rights in the basic laws did not bear fruit, primarily as a result of political considerations. [31] The two basic laws did not introduce new rights and, at the time of their enactment, there was not the celebration that one might expect for a historical moment of such magnitude. The reason for this was that the legislature did not fully understand the future implications of the enactment of these two basic laws. [32] Three years after their enactment, the Supreme Court proclaimed these as the starting point of the Constitutional Revolution, acknowledging their constitutional nature and referring to them as a constitution, or at least a “cripple constitution.” [33]

The Constitutional Revolution was not solely encompassed by the Mizrahi case, although it is clearly the landmark ruling and is considered to be the Israeli equivalent of Marbury v. Madison[34] The Constitutional Revolution has been further entrenched by the Supreme Court, and its scope has been broadened. [35] For example, in Mizrahi, judicial review was limited to the two new basic laws that protected fundamental rights. [36] In the subsequent Herut ruling, the Court ruled that although there is no written constitution, judicial review can be deployed when an act of the legislature conflicts with a provision of any of the twelve basic laws. [37]

Basic Law: Human Dignity and Liberty was the centrepiece of the Constitutional Revolution. Even its name echoed the basic values behind it: seemingly human dignity and liberty stand at its base. [38] The Court’s interpretive powers and wide discretion, however, could have resulted in fostering one of these values at the expense of the other. It seems that the Israeli Supreme Court has fostered human dignity as the leading value, since the value of liberty and the liberty clause in article 5 of the basic law were rarely litigated and poorly developed. [39] Human dignity is not necessarily superior to other values; rather, it is prominent due to the robust manner in which the human dignity clause is perceived. [40] It is not a controversial value, since it alludes to Jewish traditions and heritages, such that using human dignity rhetoric may disarm the conservative parties or the religious parties of some of their potential criticisms. [41] It is also perceived as encompassing almost anything, from the right to equality, [42] to social rights, [43] and, to a certain extent, freedom of expression. [44] This over-inclusiveness may be convenient for the Court, but it may have detrimental effects on some of the rights that may be read into this clause. [45] Reading freedom of expression into the human dignity clause would subject this right to the burden of preserving human dignity. Speech that conflicts with this obligation may as a consequence become less protected.

Constitutional terminologies are vague in nature. This trait enables courts to develop a living constitution. It is what gives the power to courts to attach different understandings to the constitution in different times, so these documents can endure different periods. [46] Each legal system has its own terminologies, which are a result of historically specific social arrangements. [47] In the Israeli context, human dignity and liberty capture the substance of the principal constitutional values. [48] The two-prong set of ideals that are parallel to human dignity and liberty may be traced back to the 1970s. As Mautner describes things, “it appears that from the seventies, two principal cultural values exist in the Israeli society which are fundamentally in opposition: a set of values that is founded on the principles of collectivism and a set of values that is founded on the principles individualism.” [49] These sets of values are analogous to the dignity and liberty values that are apparent in current Israeli constitutional law.

C. The Current Constitutional Deadlock—A Transitional Period

It seems that the Constitutional Revolution has reached a certain deadlock that manifests itself through the halt of the enactment of additional basic laws. This is a result of a backlash of the Knesset, which has seen the Court’s activism affiliated with the basic laws as a threat to its parliamentary supremacy. [50] The legislature fears that additional constitutional legislation would further shift power from it to the judiciary, and since the enactment of the two aforementioned basic laws, the Knesset has refrained from enacting new basic laws that deal with fundamental rights. It is unclear when and if the Knesset will decide to pass further basic law legislation consisting of newly enumerated rights or, alternatively, present them in a full-blown constitution. [51]

The Israeli legal system is in a transitional period, and the steps currently taken have long-term effects upon rights. The lack of a written constitution that anchors freedom of expression might lead to an erosion of the right. This erosion could take place even if freedom of expression eventually and explicitly receives its proper place in a constitutional document (whether in a formal constitution or in a basic law), and even if such protection is framed to resemble the First Amendment. [52] In this sense, Israeli constitutional law and doctrine are “up for grabs”. [53]

The courts are limited, however, in their capacity to initiate heightened common law protection of freedom of expression under the current status quo since the partial bill of rights within Basic Law: Human Dignity and Liberty does not even enumerate this right. If in the past, when there was no formal anchoring of any right, the court had some leeway as to the structuring of rights, then it would be fair to say the Court’s hands are tied, and its latitude confined, in the present.

II. Present—The Israeli Shift to Dignity-Based Free Speech Doctrine

A. The Development of Constitutional Protection of Free Speech in the Constitutional Revolution Era

The human dignity clause is located in article 2 of the basic law and guarantees that: “There shall be no violation of the life, body or dignity of any person as such.” Article 4 further stipulates that: “All persons are entitled to protection of their life, body and dignity.” [54] One should note, however, that under the current basic law, the clause therein referring to human dignity and the right to life is not framed in a manner similar to its German counterpart, where human dignity and personhood are elevated vis-à-vis other fundamental rights. [55] All rights under the current basic laws, pursuant to the Canadian model, [56] are framed without a distinct hierarchy between the different rights and are subject to horizontal balancing. [57] The current constitutional framework offers a single-tier test for the infringement of all rights known as the general limitations clause, which is located in article 8 of Basic Law: Human Dignity and Liberty[58]

Similar to the due process and equal protection clauses in the American Fourteenth Amendment [59] and to the rechtsstaat clause in the post-communist Polish constitution, [60] the human dignity clause is the main (and so far the only) incorporation clause for the Court to utilize in the development of unenumerated rights. The debate on the possible incorporation of free speech into the basic law has taken place solely through this clause.

1. Three Approaches to the Incorporation of Unenumerated Rights

The Knesset has deliberately decided to omit freedom of expression and equality from the list of enumerated rights. [61] The reasons for this omission vary, but in principle they relate to fears that the security status quo might be harmed. [62] The Court is in a difficult position: how can it protect these unenumerated rights without expressly defying the relatively recently stated will of the Knesset? There are three approaches to the incorporation of unenumerated rights dilemma. [63] The narrow approach gives deference to the Knesset’s decision not to enumerate certain rights, and abstains from incorporation of such rights. Under this approach, free speech receives no constitutional protection within the framework of the basic laws. [64] In contrast to the narrow approach, the wide approach views the Knesset’s omission of certain rights from the bill of rights within the basic laws as irrelevant for the question of whether these rights should be read into the basic laws, and gives great deference to the judiciary to read rights into the basic laws, even contrary to the Knesset’s will. [65] Under this approach, free speech may be fully incorporated into the basic laws despite the Knesset’s willful omission. [66] The third, intermediate approach takes into account the Knesset’s decision not to enumerate certain rights, and avoids a blunt defiance of this will. [67] Yet, the intermediate approach also takes into account the need to protect fundamental human rights, at least to a certain extent. The compromise the intermediate approach offers affords constitutional protection to unenumerated rights only to the extent that there is a convergence between the unenumerated right and the enumerated right, for example, between human dignity and equality or between human dignity and freedom of speech.

The Supreme Court dealt with the possible connections between human dignity and equality shortly after the Constitutional Revolution commenced in a number of cases that involved equality. [68] One should bear in mind that in Western constitutionalism, human dignity and equality are strongly linked and often used as synonyms. When the Supreme Court ruled on whether equality receives protection under the new basic laws via the human dignity clause, it initially chose to interpret the overlap between the two rights as avoiding denigration. Subsequently, however, the Court expanded the constitutional protection of equality by using the intermediate model to partially incorporate the right to equality without limiting the protection of infringement of equality only to cases that entail degrading a person per se. [69]

The judiciary may find the intermediate model to be appealing for several reasons. By abstaining from a blunt defiance of the Knesset’s will, the Court stays away from controversy and maintains its legitimacy. [70] Also, the Court is aware of the importance of safeguarding core fundamental rights, and manages to offer at least some protection to these rights. This compromise may seem politically savvy, but it lacks jurisprudential value in the absence of further theoretical support: it remains unclear how the unenumerated rights are incorporated.

The three approaches demonstrated above impact the different incorporation options available to the justices on the Supreme Court with respect to the enumeration of the right to free speech.

In the early 1990s, as Basic Law: Human Dignity and Liberty was enacted, the new constitutional array of rights was unclear. In particular, the rights that received enumeration within the Constitutional Revolution of 1992 were initially perceived as having been awarded more importance than before. [71] Among these rights are the right to privacy [72] and, of special interest to our discussion, the right to reputation. [73] The right to reputation was considered as included within the right to dignity, and calls were made to change the balance in libel cases in order to afford greater weight to this right vis-à-vis the unenumerated right to free speech. These statements were primarily pronounced by lower courts in dicta[74] but also in legal literature, [75] and by dissenting opinions within the Supreme Court. [76]

Another option for incorporation that many scholars [77] and some Supreme Court justices have toyed with in dicta [78] is the alternative of full incorporation. Perhaps the most visible proponent of full incorporation was Justice Mazza, who was one of the more liberal justices on the Supreme Court’s bench during his tenure with regard to free speech. [79] In Golan, Justice Mazza held in dicta that freedom of expression is included within human dignity in the human dignity clause, and that the basic law has anchored the recognition of past rulings into the legal standard of free speech. [80] Mazza’s reasoning is consistent with content-neutral protection of free speech, since the constitutional protection of any speech will not depend on its type or content (i.e., hate speech, pornography, etc).

Full incorporation under the human dignity clause seems to raise difficulties, both politically and doctrinally. Politically, full incorporation may increase tensions between the Supreme Court and the Knesset, and the Court may be accused of rampant activism for incorporating a right that the Knesset deliberately omitted from the basic laws. [81] Doctrinally, too, there is difficulty because the manner in which human dignity is perceived in Israeli law has communitarian traits and does not focus solely on the speakers. [82]

Despite the fact that full incorporation would be the strategy that best serves the protection of free speech, it is not a silver bullet. The Constitutional Revolution jurisprudence still balances rights against one another; protected speech would therefore still be weighed against human dignity. [83] Thus, full incorporation would not yield results similar to the First Amendment protection of free speech. But it is the least of all evils for those who cherish free speech. It would provide (limited) constitutional protection to all speech, and fortify the image of free speech protection in Israel.

2. Partial Incorporation and Its Limits

Eventually, the Israeli Court opted for partial incorporation. The first to suggest this was Justice Dorner in Golan. Although her reference to the issue of incorporation was made in dicta, and the later Majority Camp ruling developed the issue as an integral part of the Court’s judgment, it is important to review her thinking.

In the intermediate model proposed by Justice Dorner in her Golan dicta, [84] freedom of expression is not a part of Basic Law: Human Dignity and Liberty. Nonetheless, when the infringement of freedom of expression impacts a person’s human dignity, then the person’s right should be protected through the basic law. [85] The possible situations where such infringement may occur, according to Dorner, are expressions in which the principal rationale behind them is the autonomy of the individual. [86] Dorner’s approach is to examine the content of each expression under consideration. Only if the primary justification for the speech at hand involves self-fulfillment, and limiting it would hurt the speaker’s autonomy, then Dorner would afford that speech constitutional protection.

In fact, Justice Dorner tried to apply to freedom of expression the same reasoning that she used when incorporating equality into Basic Law: Human Dignity and Liberty via the human dignity clause. In Miller, Justice Dorner offered the exact same logic that she offered in Golan[87] But Dorner’s attempt to transplant a model that may be fit for the incorporation of equality into the realm of free speech raises difficulties.

Not every limitation on freedom of expression causes harm to human dignity. [88] Thus, regulation of commercial speech, for example, “can hardly be seen as violations of the human dignity of the commercial enterprise.” [89] But when a free speech limitation “relates to the essence of the individual’s rights to express ... herself, it involves degrading treatment that violates human dignity.” [90] But in cases that involve degradation of group members, such as hate speech or pornography, this conception of human dignity serves as a reason to curtail free speech—not to defend it. In applying these conceptions to hate speech, it may seem more appropriate to apply human dignity’s protection to the victims of the speech rather than the racist speakers. [91] This is especially true in the Israeli context, where the rights of the speaker and the listener are balanced one against the other. [92]

Under the liberty-based paradigm, [93] freedom of expression would have received full incorporation under the human dignity clause. [94] Under this approach, limiting any kind of speech infringes upon the liberty of the speaker, regardless of its potential effects on the audience. This understanding leads to a content-neutral approach that would afford all speech the same protection.

But the Israeli approach is similar to the dignity-based paradigm. Free speech is not viewed as content-neutral and is primarily perceived as linked to certain kinds of speech that are closely affiliated with expressing the personality of the speaker. Thus, while artistic speech that purports to symbolize elements of the personality of the speaker, and thus is protected under human dignity rationales, commercial speech is probably not protected under human dignity. [95]

Justice Dorner’s model for partial incorporation encompasses my fears of the negative ramifications of reading freedom of expression into the human dignity clause. It shows the inadequacy of the attempt to confine freedom of expression within human dignity. Her possible model for incorporation was made in dicta and was later replaced by Chief Justice Barak’s ruling in Majority Camp. But the potential for Dorner’s interpretation to determine the contours of free speech protection under the human dignity clause remains, since this protection is in many respects shapeless.

Chief Justice Barak adopted the partial incorporation approach in a decision rendered during his last days on the bench. [96] It seems he wanted to end speculation on the issue of whether or not freedom of expression is incorporated into the Basic Law: Human Dignity and Liberty. He took advantage of a petition regarding the licensing of demonstrations (an issue similar to the public forum doctrine) to briefly determine that free speech is protected as part of the basic law. His reference to the issue of incorporation occupied only one paragraph of his judgment, and it leaves some issues unresolved. Because of the importance of the analysis of his judgment, the following is a translation of paragraph 13 of his ruling:

[N]ot all the aspects of the right of freedom of speech are included in the constitutional right to human dignity, but only those aspects that are derived from human dignity and are closely related to “those rights and values that lie at the heart of human dignity as expressing a recognition of the autonomy of the individual will, the freedom of choice and the freedom of action of the individual as a free agent”, or those aspects that are “found in the heart of the right to human dignity”. Indeed, “one should not ‘read’ into the right to dignity more than it can support. Not all rights can be derived from an interpretation of the Basic Law: Human Dignity and Liberty ... when deriving rights that are not mentioned expressly in the Basic Laws dealing with human rights but are included in the concept of human dignity, it is not always possible to incorporate the whole scope that the ‘derived’ rights would have had if they had been included separately as ‘named rights’.” Determining the scope of the right to freedom of speech as a constitutional right derived from human dignity should be done in accordance with the meaning that should be given to the concept of human dignity. We do not need, in this case, to discuss in detail the aspects of the right of freedom of speech that are included in the concept of human dignity. It seems to me that a demonstration that has a political or social background is an expression of the autonomy of the individual will, freedom of choice and freedom of action that are included within the scope of human dignity as a constitutional right. [97]

Chief Justice Barak’s ruling in Majority Camp was cautious enough to avoid specifying the exact meaning, scale, and scope of the expression protected under this rationale. Yet his determination that political speech is undoubtedly within this sphere is inadequately explained and requires further analysis.

What Barak wanted to do is to ensure the protection of political speech, which is perceived as the core of speech to which democracies afford protection. [98] This is a worthy cause, but Barak failed to explain exactly how political speech is linked to human dignity, while at the same time assuming that not all speech receives such protection. Political speech normally falls under a different category—the argument from democracy. [99] Barak’s ruling in Majority Camp presupposes that the argument from democracy is fully covered by human dignity. This might be true under the American content-neutral perception, since the limiting of all speech, including political speech, infringes upon the autonomy or dignity of the speaker. However, this perception was implicitly rejected by Barak, since he did not wish to grant protection to all speech within the framework of the human dignity clause. [100] From a theoretical standpoint, Barak’s reasoning is too brief and requires further support.

Barak, in Majority Camp, tried to square the old focus on the argument from democracy with the fear from governmental censorship on the newly emerging paradigm that focuses on human dignity. Barak’s ruling in Majority Camp makes better sense after understanding the Court’s approach to free speech justifications prior to the Constitutional Revolution. But the difficulty with Barak’s reasoning is that he avoids explaining the nexus between the argument from democracy and his quasi-argument from dignity. [101] Perhaps he preferred avoiding such discussion because he did not have a sound theoretical basis for the logical leap in his reasoning in paragraph 13 of his judgment. The weak link Barak made between his quasi-argument from dignity and the argument from democracy represents a transitional period from the pre-Constitutional Revolution free speech rulings to the new dignity-based paradigm. But as the new paradigm becomes more established, and the link between the old and new paradigms remains unsubstantiated, political speech is expected to receive less protection than before.

Barak’s approach in Majority Camp of partial incorporation also stands at odds with his previous approach to the scope of protection provided to free speech. In a number of cases involving hate speech, Barak made it clear that all speech receives protection. [102] While it is true that Barak viewed protected speech not as an absolute, but as subject to balancing, he nonetheless afforded constitutional protection to all speech. [103] Under the current constitutional framework, even speech that is covered by the human dignity clause is subject to balancing, due to existing proportionality requirements. If only some speech is covered by the human dignity clause, however, then the speech that is excluded from such protection would receive even less constitutional protection. It is the equivalent of categorizing hate speech as non-speech, similar to the perception of obscenity under First Amendment jurisprudence. [104]

Under Barak’s new approach, hate speech and other kinds of speech that might infringe upon a person’s dignity, such as pornography and libel, could be more easily curtailed. Formerly, all speech received constitutional protection. While it is true that this protection was not absolute, there was only one “sifter” through which speech could be limited. Now there are two “sifters”. [105] Speech that infringes upon human dignity might not receive any constitutional protection due to the partial incorporation approach the Court adopted in Majority Camp. Nonetheless, the former balancing test that enabled limiting free speech remains intact. Thus, under current doctrine, speech needs to satisfy both restrictions in order to receive constitutional protection. Now, only speech that does not confront human dignity, and that was balanced vis-à-vis other constitutional rights, is sheltered under the basic law. Furthermore, the fact that human dignity is transformed into an internal limitation on free speech, due to the incorporation of free speech through the human dignity clause, results in a potentially more alarming limitation on free speech than under the former status quo that existed prior to the Constitutional Revolution. [106]

Although the proponents of partial incorporation have good intentions, and they mean to buttress freedom of expression’s standing by its incorporation into the basic law, the effect of such incorporation may have the opposite consequences. The intuition that a right that is protected by a constitutional document is in fact stronger may be somewhat misleading. Under current constitutional doctrines, freedom of expression already receives the same standard of review as enumerated rights under the general limitations clause test. [107] Therefore, reading freedom of expression into the basic law would not substantially change the scope of protection the right currently receives. Furthermore, if freedom of expression is confined to the human dignity clause’s boundaries, it may well be weakened, as the analysis above clearly shows.

The attempt to tailor human dignity as a constitutional source for the protection of free speech is still undergoing a refinement process. The Israeli Supreme Court has been experimenting with this idea for several years now but it has not yielded satisfactory results. The awkwardness of the formulated models is concealed by terse argumentation, and a speech-protective rhetoric that emanates from the pre-Constitutional Revolution era. That speech-protective rhetoric, however, is slowly disappearing as human dignity ascends. Whether it is Justice Dorner’s proposed model in Golan or Chief Justice Barak’s model in Majority Camp, the approaches the Supreme Court experiments with are prone to curtailing speech when it conflicts with human dignity.

The issue of the protection of political speech via the human dignity clause was raised in HaMifkad HaLeumi[108] Justice Naor argued that since political speech is at the core of the right to free speech, it is covered by the constitutional protection of human dignity. [109] According to her reasoning, because political speech was recognized to be at the core of the right to freedom of expression, then, similarly to the protection of the right to equality via the human dignity clause, [110] political speech, which is at the core of the protected unenumerated right of freedom of expression, deserves protection. [111] Since human dignity protects the autonomy of free will, freedom of choice, and freedom of action of a person as a free being, the constitutional protection of political speech can be derived from the constitutional right to human dignity. [112]

Justice Naor further noted that “the freedom of political speech is an essential component of human dignity”, and left the constitutional protection of commercial speech undecided. [113] The nexus Justice Naor has drawn between political speech and human dignity is tenuous and considers neither the possibility that certain political speech may impinge upon human dignity (e.g., hate speech), nor what would happen in such a case. It also omitted to consider other kinds of speech that may be important, but are not political per se. Furthermore, it left unsettled the kinds of speech that are covered by the constitutional protection of human dignity, and those which lack such protection.

These attempts of the Supreme Court only prove the inherent weakness of human dignity to serve as a source for the protection of free speech. Human dignity is not an appropriate source of protection for speech because it tends to undermine the classical justifications for such protection. Israel provides a sobering example for why human dignity should not be a justification for free speech.

B. The “Dignitization” of Free Speech: An Overview

Elsewhere, I have presented a comparative model to assess freedom of expression. [114] It offers two contending views for the conceptualization of free speech. The liberty-based approach focuses on classic liberal concepts of liberty. Under this approach, freedom of expression is viewed as a negative right, one that is content neutral, individual, and speaker oriented. This approach is embodied in the First Amendment as interpreted by the US Supreme Court. The contending dignity-based approach views freedom of expression from a different perspective. Under this approach, freedom of speech is considered to be part of the general constitutional scheme of rights, often as derived from human dignity or similar concepts. This approach balances free speech vis-à-vis other rights and treats free speech through a communitarian and audience-oriented focus. Like other rights, the right to free speech is recognized as a positive right, and the legal system enables restricting free speech when it conflicts with other cherished rights and values—predominantly human dignity. The prominent example of a legal system that applies this approach is Germany. Yet many Western democracies share similar concepts and approaches to the dignity-based approach. All legal systems lie on the dignity-liberty continuum, but most Western democracies, with the exception of the United States, are closer to the dignity pole.

The purpose of the following presentation is to demonstrate how Israel’s position on the dignity-liberty continuum is slowly drifting toward the dignity pole as a by-product of the 1992 Constitutional Revolution.

1. The Proliferation of Human Dignity in Numbers

The human dignity discourse that appears throughout Israeli constitutional law has even permeated the Supreme Court’s free speech rulings with increasing frequency. The proliferation of human dignity in the constitutional jargon surrounding speech is clearly visible, while the increasing influence of non-American legal sources in this field is evident, but is not as evident as the rise of human dignity. [115]

Prior to the Constitutional Revolution, human dignity was seldom mentioned by the Supreme Court in its rulings, and when it was mentioned, it was primarily in the context of prisoners’ rights. [116] The idea behind the concept of human dignity during those years was that it protected vulnerable individuals against derogatory or inhumane treatment. [117]

In the years prior to the Constitutional Revolution, human dignity was not conceived as being related to free speech and was seldom mentioned in Supreme Court free speech rulings. Thus, in 1975–1980, human dignity was mentioned only once in free speech rulings, twice in 1980–1985, and four times in 1985–1990. [118]

When examining the contents of the pre- Constitutional Revolution free speech rulings that mention human dignity, it becomes evident that human dignity did not play a role in the manner in which the Court perceived the right to free speech. Usually, the rare mention of dignity was in the specific context of libel cases, [119] in which the relationship between free speech and dignity is relatively obvious. [120] In the mid-1980s, human dignity started gradually to emerge as a fundamental value that ought to be balanced vis-à-vis freedom of expression, but even then in a limited scope and in a handful of cases. [121] The constitutional discourse that preceded the Constitutional Revolution classified human dignity as just one weak interest among others when weighed against the right to free speech. [122] In addition, the references to human dignity in these rulings were not treated as part of free speech theory per se or as an integral part of the manner in which the Court perceived the right to free speech. Therefore, all the judicial discourse surrounding human dignity and freedom of expression prior to the Constitutional Revolution may be fairly characterized as incidental and marginal at best.

Starting the early 1990s there was a dramatic increase in the appearance of human dignity in Supreme Court free speech rulings. The number of Supreme Court free speech rulings that mention human dignity has been constantly on the rise: in 1991-1995 dignity and human dignity were mentioned nine times, in 1996-2000 seventeen times, and in 2001-2005 twenty-four times. [123] In recent years this tendency has continued, as twenty-one free speech rulings in 2006-2008 mentioned dignity and human dignity. [124] This visible increase is further supported by statistical significance that reaffirms the claim that human dignity clearly plays a role in the Court’s free speech rulings. [125]

Diagram I

Number of Supreme Court Rulings that Mention Human Dignity [126]

Number of Supreme Court Rulings that Mention Human Dignity126

-> See the list of figures

The proliferation of the references to human dignity in the Supreme Court’s rulings, a proliferation that coincides with the Constitutional Revolution, represents a shift in the manner in which the Court perceives the role of human dignity in its free speech jurisprudence. It demonstrates a new discourse that pervades Israeli constitutional law in general (and Israeli free speech discourse in particular), in which human dignity is a prominent constitutional concept. Furthermore, human dignity is mentioned in virtually all areas of free speech rulings. It is no longer limited to libel cases; it is also applied to issues such as the regulation of pornography, [127] the scope of the constitutional guarantees afforded to free speech, [128] and even prior restraint. [129]

I refer to this phenomenon as the “dignitizing” of speech, that is, conceptualizing free speech in terms of human dignity. Under this perception, free speech under Israeli law is increasingly becoming linked to human dignity and is derived from the right to dignity. This link is a result of the Constitutional Revolution of 1992 and is not reflected in the free speech jurisprudence that predates it. Undoubtedly, the concept of human dignity, which appears throughout the general constitutional discourse in Israel as a result of the Constitutional Revolution, has caused the dignitization of speech. This process has not been greeted by any skepticism regarding whether the validity or theoretical soundness of the link between free speech and human dignity is warranted or theoretically sound.

The dignitization of speech raises many difficulties. First and foremost, the right to free speech has an independent and well-developed theoretical basis that has little or no correlation to human dignity. [130] Second, the manner in which human dignity is perceived under Israeli constitutional jurisprudence stands at odds with the protection of many kinds of speech, including hate speech, pornography, and libel. Third, even areas of speech that were traditionally afforded robust protection, such as prior restraint, are more prone to limitation under the dignity-focused legal regime. Fourth, dignitizing free speech turns human dignity into an internal constraint on free speech and reduces the protected sphere of expression. Dignity-harming speech may well be categorized as “non-speech”, similar to the American treatment of obscenity, and the newly formed constitutional standards are expected to yield more speech-restrictive results. Fifth, the dignitization of Israeli constitutional law has caused the right to human dignity to receive more weight than before. [131] Because the human dignity discourse has found its way into Israeli constitutional law in general and free speech doctrine in particular, there is an implicit new hierarchy that places human dignity on the top, at the expense of free speech.

The prevalent use of human dignity in the Supreme Court’s free speech rulings is equivalent to introducing new vocabulary into free speech theory. Such introduction may even affect some of our most basic assumptions regarding free speech. [132] Mayo Moran’s observation that the choice of certain terminology influences outcomes should not be taken lightly, since such influence may be far-reaching. [133] As she astutely notes, “once the issue is situated in a particular way, certain understandings appear far more plausible than others. Certain facts immediately become relevant and thus susceptible to being found, while others appear irrelevant, and thus are more easily lost.” [134] As the Israeli example clearly shows, acknowledging the rhetoric of human dignity in freedom of expression contexts may prove to be harmful.

All these aspects raise serious concerns as to the appropriateness of affiliating free speech and human dignity and show why a skeptical approach is warranted. It is not too late to separate human dignity and free speech, both theoretically and doctrinally. But in order to do so, there is a need to demonstrate the negative impact that the current trends pose and to offer a viable alternative.

2. The Use of Comparative Law in Free Speech Cases

Another interesting aspect of the Constitutional Revolution is its effect on references to foreign rulings in the Supreme Court’s free speech opinions. The use of comparative law by Israeli courts (and especially by the Supreme Court) is vast even when compared to other Western legal systems (including those of Europe, and especially that of the United States). [135] The Anglo-American system seems most popular among Israeli judges. The primary reason for this lies in language and accessibility to materials. Most judges and legal clerks are not fluent in materials written in other European languages, and it is therefore expected that they use English or American sources. [136] Although Israel is considered to be a mixed legal system, [137] it rests more closely with the common law influence, which has greater impact on Israeli law than does continental law. After all, the state of Israel was preceded by a British rule with a common law legacy, and this affected the formation of Israeli law. [138] The resemblance of Israeli law to the common law has been expressed through reliance on British precedent, [139] but in the 1970s and 1980s, the British influence diminished and Israeli law began embracing an American influence. [140]

Diagram II

References to US Rulings in Israeli Supreme Court’s Free Speech Rulings [141]

References to US Rulings in Israeli Supreme Court’s Free Speech Rulings141

-> See the list of figures

Following the Constitutional Revolution, the references to US precedent has declined, but it still remains the most cited legal system in the Supreme Court’s rulings. The increased tendency to resort to US rulings prior to the Constitutional Revolution changed as the Constitutional Revolution became more established. [142] The renewed rise in the number of references in recent years still lags behind the significant reliance on US rulings in the early and mid-1990s. [143] While it is too early to eulogize American influence on Israeli free speech law, it is clear that its golden age has passed. [144]

Analyzing the Americanization or de-Americanization processes of Israeli law is a challenging task, since evaluating the effects that American law has had on the Israeli legal system varies from one context to another and because the common perceptions regarding the actual effects of American law on Israeli law are sometimes inaccurate. The centrality of American law in Israel may seem, to some, well entrenched. As Rabello and Lerner observe, “most Israeli scholars almost completely ignore the European Continental legal tradition. In fact, American Law is becoming an integral part of the legal thinking of a large number of Israeli scholars.” [145] It is the American hegemony in many fields of law that impedes the utilization of comparative law. [146] The reason for this hegemony is that a large part of Israeli law is fed almost exclusively from American legal literature. [147]

In contrast to Rabello and Lerner, Yoram Shachar claims that there is a tendency to overestimate American influence on Israeli law, and that the actual reliance and references to American law by the Supreme Court is far less significant than commonly thought. [148] The following is an attempt to characterize the American influence on Israeli free speech laws in light of similar trends in other fields of law. There are strong indications that, in the past decade, the American influence on Israeli law has been on the decline on most legal fronts. [149]

For example, Lahav examines the American influence on the teaching of law in Israel. [150] In her study, she demonstrates how Israeli law schools came to resemble elite American law schools in a gradual process that peaked in the 1990s, but that this similarity is currently on the decline. She identifies Germany as the primary alternative source of influence. [151] Lahav correctly observes that “[t]he turn of de-Americanization, if a turn it is, is something to observe and follow before any solid conclusions may be drawn.” [152]

Furthermore, Israel is gaining maturity and independence. This is expressed in greater self-reliance and less dependence on external sources as a growing body of Israeli law is at hand for judges and scholars who wish to develop Israeli free speech law. According to Shachar, the tendency to rely on domestic sources is on the rise, and reliance on foreign sources is on the decline, especially in the area of public law (which is particularly relevant to free speech).

Contrary to the views described above, Shachar has made interesting findings regarding the references by the Supreme Court to American sources. While in areas of criminal and civil law, the rate of American influence has been uneven, in the area of public law, the rate has been steady when compared to other common law sources. Shachar claims that when the Israeli justices sought sources for constitutional inspiration, it was only natural that they looked to the United States. But these findings are not consistent with the observation that American influence on free speech, which is a subcategory of public law, has waned in recent years. The most reasonable explanation for this disparity is that while the United States remained influential in the area of public law, in the area of free speech, the dissonance between First Amendment doctrine and the newly emerging dignity-based paradigm led to less reliance on US sources. [153]

In particular, Shachar claims that the Israeli Supreme Court relies primarily upon its own precedents and that comparative law plays a small part in the Court’s reasoning. [154] He further claims that the Supreme Court’s tendency to rely on domestic precedent has only increased in recent years. This tendency is greatest in the field of public law, which is highly related to freedom of speech. Therefore, Israel may feel a greater need to structure its public law independently, as compared to other fields of law, and this may also account for the decrease in references to American sources. [155]

Lahav also recognizes the maturity and independence of the Israeli legal community as one of the sources of the de-Americanization process. Thus, despite Israel’s affection for the United States and its general tendency to emulate American phenomena, free speech remains an area that receives restrained enthusiasm. It is a source for study and comparison but not for mindless duplication. [156]

The number of references to US rulings does not capture the full ambit of changes that the Israeli legal system has been undergoing since 1992. At the same time that the Supreme Court was reducing its reliance on authority from the United States, it was broadening its outlook and considering alternative sources for inspiration. References to other Western legal systems’ rulings have been increasing in the past years.

Diagram III

References to German and Canadian Rulings in Israeli Supreme Court’s Free Speech Rulings [157]

References to German and Canadian Rulings in Israeli Supreme Court’s Free Speech Rulings157

-> See the list of figures

In particular, Canadian rulings have been increasingly cited by the Supreme Court in its post-Constitutional Revolution rulings. Also, German rulings, which were never cited prior to the Constitutional Revolution, are now utilized by the Supreme Court. [158]

Table I

References to Foreign Rulings in the Israeli Supreme Court Free Speech Rulings [159]

References to Foreign Rulings in the Israeli Supreme Court Free Speech Rulings159

-> See the list of tables

The increasing references to Western, non-US sources, [160] coupled with the decrease in citations to US sources, [161] serve as further indication of the slow detachment Israeli free speech law is undergoing from US guidance and the liberty-based paradigm. Instead, the rulings of the Israeli Supreme Court are starting to reflect the dignity-based approach that is common to the other Western, non-US rulings. The paradigm shift is not yet complete, but it is clearly in process. The pendulum is indeed swinging toward the German dignity-based approach and moving away from the American liberty-based approach. [162]

A recent and interesting example can be found in Ilana Dayan v. Captain R[163] Justice Rivlin resorted primarily to US precedent in a very speech-protective ruling. However, Justice Vogelman, who wrote a concurring opinion, resorted primarily to case law from the United Kingdom and other Western jurisdictions (such as Australia, New Zealand, and Canada). [164] In Justice Vogelman’s opinion, British rulings were more relevant to the interpretation of the Israeli Defamation Act than US rulings, because the act bears greater resemblance to British law than to US law. [165] Justice Vogelman further noted that although in recent decades there is a tendency to prefer free speech to reputation, “it is not the adoption of a monolithic approach like in the American system.” [166]

There are several possible explanations for the rise in the use of non-American authorities in Israeli comparative law. One explanation is that, in the past three decades, there has been a general increase in the number of free speech rulings in the Western world. [167] As Western democracies started to develop free speech doctrines over the past thirty years, there has been a growing number of rulings and approaches. The monopoly that the United States had several decades ago, as virtually the only democracy with an evolved free speech system, is gone. [168] Furthermore, technological improvements in the flow of data, such as the Internet and legal databases, have made foreign materials more accessible than before.

Another explanation, which relates in particular to the increasing number of references to German rulings, may have to do with the Holocaust. Israeli courts in the past may have felt deterred from citing German rulings due to the ambivalent sentiment of Israeli society towards Germany. [169] Over the years, this reluctance is slowly fading away. The Supreme Court has employed several German law clerks as part of its foreign clerks program. The output of these clerks found its way into the Supreme Court rulings in a fashion similar to the work of American clerks.

Probably the most compelling explanation for the rise in willingness to rely upon Western, non-US legal systems is that, from the late 1990s to date, Israel has been slowly drifting away from the strong American influence that existed in the 1980s to a more European approach. I refer to this side effect as constitutional cognitive dissonance[170] The greater the disparity between two legal systems, the less one will refer to the other. [171] The more the Israeli and US free speech doctrines are alike, the easier it is to import American First Amendment doctrines into Israeli law without much alteration or adaptation. But as the disparities between these two legal systems grow, so too does the dissonance between the American First Amendment doctrines and their Israeli counterparts.

The practical consequence of such a dissonance is that the future importation of American doctrines into Israeli law is questionable and would require greater adaptation. Furthermore, it may lead to forsaking the American system as the main source of inspiration in freedom of expression issues and replacing it with other systems that are more compatible with Israeli doctrines, such as those from Canada and Germany. Among those legal systems, Canada would probably serve as a principal source due to the greater familiarity of Israeli jurists with the English language. [172]

The statistical data explored above gives us the big picture, but how does the dignitization of speech come into expression in free speech doctrine itself? The next section offers a substantive analysis of the effects of human dignity on Israeli free speech doctrines in three major areas of free speech laws.

C. The Dignitization of Free Speech—Substantive Analysis

1. Prior Restraint

Perhaps the most interesting area of free speech into which the concept of human dignity has penetrated is prior restraint. This field is at the heart of free speech protection and normally receives the most robust protection. [173] Early free speech rulings and doctrines developed within this field, [174] and the distrust of governmental censorship is among key explanations for the recoil from censorship.

Israel has several statutes that enable prior restraint through military censorship, [175] newspaper licensing, [176] a public film review board, [177] sub judice[178] and an electoral board committee in cases of political advertisement in times of elections, [179] to name a few examples. In the 1980s, the Supreme Court’s tendency was to give a narrow interpretation to these statutes so as to enable prior restraint only in extreme cases, [180] through the use of a judicially constructed rigid scrutiny test—“the near certainty test”. Under this test, only speech that has great potential (almost with certainty) to cause substantial danger may be censored in advance. [181] This constitutional test was borrowed from the US “clear and present danger test” by Justice Agranat in Kol Ha’am[182] It resembles the US test, although the Israeli approach is a somewhat weakened version, as it lacks the requirement of imminence as a prerequisite for prior restraint.

Another vague part in this constitutional test concerns the definition and scope of “near to certain danger”. Some Israeli scholars, such as Mordehai Kremnitzer, claim that the required degree of certainty should diminish as risks become more substantial. [183] Others construe the probability required by the test as being substantially higher. [184] But if there is one thing certain about the near certainty test, it is that within the Israeli constitutional law framework, this standard of review is the most stringent, comparable to the strict scrutiny standard in the United States.

Yet, the tendency to buttress the rigid standard for prior restraint seems to have halted and even reversed in recent years. [185] Human dignity is the competing consideration that diminishes the pre-Constitutional Revolution tendency to place free speech above countervailing rights associated with human dignity. Instead, human dignity seems to have taken the lead. The following examples demonstrate the slow, almost imperceptible, shift toward a new, dignity-based approach to free speech.

In Shinui[186] the Supreme Court upheld a decision by the then Justice Beinisch, who presided over the case as chair of the Electoral Board Committee, which disqualified an election infomercial that depicted Orthodox Jews as parasites. The infomercial was perceived as offensive to Orthodox Jews, portraying a figure of an Orthodox Jew who was latching onto a secular Jew’s foot. Once the secular Jew put a vote for Shinui in the ballot, the Orthodox Jew vanished in black smoke. This political satire was meant to protest against the taxpayers’ funding of Orthodox Jews and religious parties. Yet the depiction of the religious Jew as a parasite and the manner in which he vanished aroused, in some, connotations of the Holocaust and to Nazi propaganda. The decision of the Electoral Board Committee’s chair was appealed to the Supreme Court presiding as the High Court of Justice, which upheld the decision to ban the infomercial.

Although the speech involved in this case was purely political and intended to advance the platform and agenda of a legal party, the Court preferred banning the speech because of its offensive nature. The main rationale for the Court’s ruling was that the protection of public sentiment and of human dignity supersedes, in this case, the protection of freedom of expression. Chief Justice Barak said that “the protection of public sentiment may be also warranted in pursuit of the protection of the value of human dignity. This is especially true in cases in which the insult to public sentiment amounts to denigration, humiliation, and a harsh insult to human dignity.” [187] Barak seemingly qualified the limitation of free speech by saying that in a pluralistic society, the exchange of hurtful views is desirable. Yet, he said, “a democratic society is also founded upon the value of human dignity. Therefore, the protection of free speech does not grant an unlimited freedom to denigrate a person and to harshly hurt his dignity as a human being.” [188] Chief Justice Barak therefore enforces civility by saying that all messages may be expressed, but not in a manner that is patently offensive and degrading. [189]

As previously mentioned, Kol Ha’am represents the peak of the common law protection of free speech formed in the pre-Constitutional Revolution era. Its highlight is the near certainty test—the Israeli equivalent to the clear and present danger test for prior restraint. Over the years, and especially in the 1980s, the Court further developed and buttressed this ruling. [190] Chief Justice Barak mentioned Kol Ha’am, and the near certainty test, yet failed to utilize it on the facts of the specific case. The ruling is perplexing since it is unclear whether Shinui implicitly overturned Kol Ha’am or simply narrowed the Kol Ha’am ruling due to human dignity concerns. [191] The latter possibility means that Barak broadened the exception of the near certainty test, which permits the restriction of speech where there is fear of a near to certain breach of public peace, so as to include human dignity. This broad understanding of breach of public peace stands at odds with the previous rulings that tended to narrow, not broaden, its meaning. [192] In retrospect, Justice Eliezer Rivlin, who concurred with Chief Justice Barak in Shinui, has publicly admitted that the ruling is too speech restrictive and that he would have decided the case differently today. [193]

Following Shinui, prior restraint is also possible in cases of infringement of human dignity and situations where certain groups would be offended. [194] Justice Barak did not limit his ruling to the specific context of political campaigns, although he could have. [195] Shinui represents a paradigm shift toward the further limitation of speech due to human dignity concerns in the area of free speech that traditionally receives the highest protection—the prior restraint of political speech.

Kol Ha’am’s near certainty test suffered another blow in Tennenbaum. In this case, the family of Elhanan Tenenbaum, who was then held captive by Hezbollah, petitioned for a media ban on the details of the abduction. The family feared that the details might endanger the abductee’s life. Although the Court rejected the petition and allowed publication, [196] it applied a mild proportionality test instead of the near certainty test. [197] The Court used a lower scrutiny standard for prior restraint in this case because it balanced the right to life against freedom of expression. [198] The right to life, which is enumerated in the same articles in Basic Law: Human Dignity and Liberty that enumerate human dignity, received greater importance and altered the level of scrutiny the Court used.

Following Tennenbaum, the near certainty test, which requires a high level of scrutiny for prior restraint, was replaced by a preponderance of evidence test of reasonable likelihood in cases that involve a fear for the life or bodily integrity of the petitioner. [199] This exception that was carved out of the formerly uniform stringent standard for prior restraint is also a direct result of the Constitutional Revolution and the dignitization process that free speech is undergoing in Israel.

A final example of the legal atmosphere in Israel that wishes to replace the near certainty test with a more speech-restrictive standard of review can be seen in the recommendations of the official inquiry committee for the Second Lebanon War, headed by former judge Eliyahu Vinograd. The committee, comprised of several leading jurists, recommended overturning the Shnitzer ruling that fixed the near certainty test for military censorship with a preponderance of evidence test of reasonable likelihood. This would enable military censorship on a whim. [200] The committee claimed that under the current strict standard, national security is compromised.

In sum, the post-Constitutional Revolution prior restraint rulings show a tendency to ease constitutional standards to achieve speech-curtailing results due to human dignity concerns. The current public and legal atmosphere in Israel seems to not value free speech to the same extent as in the 1980s, and other issues, such as national security, public sentiment, and preserving the human dignity of minorities receive greater importance than before.

2. Pornography

Another area of free speech that was affected by the Constitutional Revolution is the treatment of pornography. The rulings from the past two decades have classified pornography as speech with low social value, which impinges upon the dignity of women and therefore deserves weakened protection. [201] As Justice Rivlin recently noted: “Not all speech is born equal, and the level of protection freedom of speech is afforded is influenced by, inter alia, the type of speech and its characteristics.” [202] The following rulings exemplify how pornography is a stepchild in the family of protected speech, and how it is easily curtailed by human dignity concerns that were introduced into pornographic speech restriction.

In Station Film[203] the Court considered the decision of the Film Review Board to omit several sections from Nagisa Oshima’s film In the Realm of the Senses, which were regarded as degrading to women. The Court reversed the Film Review Board’s decision to censor the film, using the near certainty test standard. In its essence, this ruling is speech-protective. But this ruling also contains problematic rhetoric. Chief Justice Barak, referring also to Canadian precedents, [204] claimed that

offensiveness may justify restricting freedom of expression if it exceeds the standard of social tolerance. ... Such harm can justify restricting pornographic expression to the extent that it is capable of degrading a woman, thereby causing both direct and indirect harm to the equal status of women in our society and encouraging violence, particularly towards women. [205]

Justice Cheshin also mentioned that the grounds for restricting pornography may also be linked to the degradation of human dignity, and especially “women’s dignity”. [206]

Another good example for community and human dignity as part of freedom of expression can be found in the SHIN case. [207] In that decision, the Court dealt with an amendment to the Communications Act by the Knesset that forbade the transmission of channels by cable and satellite providers that “depict women as a handy object for sexual use.” [208] The Court supported an interpretation that allowed the broadcasting of the Playboy Channel, and upheld an interpretation that included a ban on hard-core sex channels on cable. The Court referred to arguments of protection of public feelings and “women’s dignity” as integral parts of its reasoning. [209] The recognition of the feminist discourse for the regulation of pornography is a distinct element in dignity-related rationales, as explained above.

The decision was criticized by feminists as a non-feminist ruling that permits pornography at the expense of the human dignity of women. [210] But, in fact, no protest was heard that the government is denying access to sex channels that exist in the United States, such as Hustler or like channels, that are not classified as obscene, and that are protected under US law. [211]

In Peled v. Israeli Prison Service, [212] a prisoner petitioned against the prison service to allow him to bring pornographic materials into the jail, and claimed that the strict ban on pornographic materials impinged upon his right to free speech. The district court denied Peled’s petition and found the regulations banning pornography to be reasonable and within the prisoner authority’s jurisdiction. Peled appealed to the Supreme Court, and was represented by the Public Defender’s Office.

Chief Justice Beinisch upheld the regulations and rejected the appeal. Although Peled argued that the relevant constitutional standard for infringement of his right to be subjected to pornography is the near certainty test, the Court rejected that position, claiming that the near certainty test is applicable only to the prior restraint of political speech. [213] Instead of using a different probability test (e.g., the reasonable likelihood test, which was applied in Tennenbaum), the Court implemented the limitations clause test. This choice is odd, since the application of probability tests in prior restraint is the norm, [214] and there was precedent that enabled lax application of such standards, especially in the setting of a prison. [215]

Chief Justice Beinisch mixed pornography and obscenity in her reasoning, treating them as synonyms. [216] Furthermore, the application of the limitations clause tests was done in a manner that was less rigorous than when applied in other settings, due to “the level of protection given to pornographic speech in our legal regime.” [217] The due purpose requirement of the limitations clause tests was met by “the advancement of social values, such as the equality between the sexes and the dignity of women.” [218]

As part of the proportionality requirements of the limitations clause tests, Peled argued that a strict ban on pornography is unconstitutional, since it is over-inclusive. Moreover, the prisoner authority would need to allocate resources to examine which pornographic materials are suitable for prisoners and which are not. [219] The Court rejected this claim, and found this position to be too burdensome on the prison authority. The Court left wide discretion to the prisoner authority, according it a high level of deference. The Court noted that had the prisoner authority decided to allow pornography in prisons, such a decision would probably be upheld. [220]

Justice Meltzer, in a short concurring opinion, emphasized the margin of appreciation doctrine as the rationale for rejecting the solutions other legal systems offer for the question of restricting pornography in prisons. [221] The fact that this issue has a vast array of solutions among Western democracies, many of which ban pornography, does not necessitate the adoption of solutions which allow pornography in prisons. Therefore, Justice Meltzer found the Israeli ban on pornography in prisons to be permissible, appropriate for the idiosyncratic needs and characteristics of the Israeli legal system.

Justice Rubinstein, who is a religious person, questioned whether there is a right to pornography, especially from a Jewish-moral standpoint. He remarked that, according to precedent, pornography is “an inferior kind of speech which is not at the core of freedom of expression,” [222] and joined the Court in rejecting the appeal.

These examples, briefly explored above, illustrate the emphasis placed on the human dignity of women in rulings that relate to pornography. Here human dignity serves as a reason to protect not the speaker, but the audience, relying mainly on Canadian precedent. The devaluation of the protection pornography receives under Israeli law is strongly linked to the dignitization process, as demonstrated above.

3. Defamation and Libel

Defamation and libel cases usually involve infringement of a person’s honour. Since in Hebrew honour is one of the possible meanings of “human dignity,” [223] the same human dignity clause would have contradicting influences: protecting free speech on the one hand and protecting the reputation of the defamed person on the other.

Libel cases raise two noteworthy aspects regarding the influence of human dignity on free speech. The first is the broadening of categories of speech that are virtually automatically libellous, thus turning libel laws into a heavy-handed enforcement mechanism for maintaining a civil and respectable public discourse. The second is the slow shift in the equilibrium between free speech and human dignity, as exemplified in the context of temporary restraining orders.

In Dankner v. Ben-Gvir[224] the Supreme Court held that the mere use of Holocaust-era epithets, namely, calling someone a Nazi, constitutes defamation. [225] During a heated television debate on a political talk show, the journalist Amnon Dankner used the epithet “filthy Nazi” when arguing with Itamar Ben-Gvir, a right-wing activist. Ben-Gvir sued for defamation. The three justices presiding over the case were divided. Justice Rivlin, in dissent, argued that using harsh epithets to refer to someone should not automatically constitute libel. He believed that in the circumstances of the case, which involved two Jews who were not using these epithets in a racially motivated manner, but as a profanity, the use of the term Nazi was not defamatory per se. The plaintiff himself used Nazi-era terminology on several occasions, and the defamation suit seemed somewhat opportunistic and politically motivated. The two other justices in the majority believed that any use of the term “Nazi” against another person is defamatory; yet, Justice Prokatia thought monetary compensation was appropriate, while Justice Arbel thought that symbolic compensation was in order. The Court finally awarded the plaintiff symbolic compensation of one Israeli shekel. Since then, lower courts have repeatedly held that the use of such epithets is libellous, and have awarded actual compensation for the use of Holocaust-era epithets. [226]

The Court afforded a civil remedy for insults and turned the Prevention of Defamation Act into a de facto mechanism for enforcing civil and respectable public discourse. [227] Although the primary means of redress under the Prevention of Defamation Act is a civil law suit, the act also contains criminal libel provisions. Thus, Dankner v. Ben Gvir indirectly enables criminal prosecution for insults, though to a limited extent. [228]

The use of Holocaust related terminology has bothered the Knesset as well. Some Knesset members proposed draft bills to criminalize the use of Nazi and related terminology with a sentence of up to three years imprisonment. [229] This initiative was endorsed by the government, which decided to advance the private draft bill of MK Ariel who called for these actions. At the moment of writing, the proposed legislation has not yet passed, but if the Knesset does turns the bill into law, Israel will shift to the German model of criminal insult and enforcement of civility. [230] Such a move would require delicate deliberation since it would detract from the Anglo-American path on which Israeli free speech doctrine is established. [231]

Another area of libel law affected by the Constitutional Revolution is the standard for injunctions curtailing the publication of libellous materials. The leading precedent regarding injunctions (temporary restraining orders) in libel cases is the Avneri case. [232] This prominent precedent from 1989 predates the Constitutional Revolution by several years. Justice Barak recognized these injunctions as a conflict between the right to free speech and the right to reputation. In his attempt to balance the two, he argued that since none of these rights are enumerated, freedom of expression should hold the upper hand. [233] A problem with this reasoning arose when, a few years later, the legal foundation behind this reasoning changed. After the enactment of Basic Law: Human Dignity and Liberty in 1992 there was a consensus that one’s reputation is included in the right to human dignity, [234] whereas the right to freedom of expression is unenumerated and, until recently, was also unincorporated.

Several leading jurists, [235] judges, [236] and Supreme Court justices (in dicta) called for a reversal of the Avneri precedent, so as to allow pre-publication restraining orders with greater ease. [237] The common explanation for the need to reverse the ruling was that following the enactment of Basic Law: Human Dignity and Liberty, the right to reputation received greater weight vis-à-vis freedom of expression. Although some believe that Avneri remains good law following the Constitutional Revolution, [238] and Avneri was not officially overturned, [239] the voices calling for preserving it are few and hardly heard. Many judicial references to Avneri remain reserved and, under current trends, Avneri might get overturned. [240]

***

As demonstrated above, human dignity serves as a channel to incorporate community norms into the constitutional arena. Whether by enforcing the majority’s morals when it comes to the harming of public sentiments or the potential harm to women by pornography, human dignity serves as a legal argument that takes these issues into consideration. [241] At the more individualistic level, human dignity also serves as a counterbalance to liberal norms, and may lead to restrictions on speech that offends a person’s honour, such as in libel cases. [242]

III. Future—A Possible Solution? Divorcing Free Speech and Human Dignity

A. Some Perspective on the Evolution of Constitutional Interpretation

Israel is a relatively young country. In the sixty years since its establishment, the Supreme Court has developed a rich body of constitutional law. The 1992 Constitutional Revolution has had a significant impact on Israeli constitutional law. In terms of constitutional history, Israeli law in general, and Israeli constitutional law in particular, are in the formative stages. It is appropriate to speak of the Constitutional Revolution in the present tense, and to understand that the development of Israeli constitutional law is currently undergoing substantial change. [243] It is too early to tell if existing doctrines will mature into reliable precedents in the future. When looking at American constitutional history, it took dozens of years for existing doctrines to evolve. [244] Israeli constitutional law is still in the developmental stage and is expected to yield substantial changes in the coming years. [245]

The freezing effect of the basic law legislation has led to a concern that the status quo will remain for many years or even permanently. Since the enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation in the early 1990s, all suggestions to further enact basic laws that enumerate additional rights have been rejected by the Knesset. Even if free speech eventually is enumerated, the jurisprudence that would evolve prior to such mooring may have a detrimental long-term effect that weakens free speech’s stand. Therefore, there is a need to offer an interim solution in order to avoid the weakening of free speech rights. This solution is offered in the form of separating free speech and human dignity, as the link between the two leads to speech restriction.

The current interim solution, in the form of partial incorporation of free speech via the human dignity clause, is inadequate. [246] Once the Constitutional Revolution flooded the constitutional discourse with human dignity, and once it collided with freedom of expression, [247] the Supreme Court justices made a tactical decision to align freedom of expression with human dignity so that it would not lose its powers in direct confrontation with enumerated rights. [248] Yet this tactical decision is wrong from a strategic viewpoint, and the short-run considerations that led to the use of this approach are harmful in the long run. The justices who supported incorporating freedom of expression through the human dignity clause in order to buttress it actually weakened it. Perhaps if the justices would have been aware of the negative implications of this tactic or would have been constitutionally creative, they would have chosen another path that better served the purpose of buttressing freedom of expression. The proposal herein to incorporate freedom of expression through the liberty clause is an alternative strategic solution that is meant to replace that tactical anchoring of freedom of expression via the human dignity clause.

B. On the Undiscovered Liberty Clause

Basic Law: Human Dignity and Liberty is quite a short constitutional text. [249] A textual analysis of the basic law reveals an interesting picture. Human dignity and liberty appear in pairs within the text, with the exception of the specific clauses that enumerate human dignity and liberty. [250] The title of the basic law itself references human dignity and liberty. [251] Similarly, article 1 of the basic law, known as the purpose clause, declares, “[T]he purpose of this basic law is to protect human dignity and liberty, in order to establish in a basic law the values of the state of Israel as a Jewish and democratic state.” [252]

The human dignity clause is located in article 2 of the basic law and guarantees that “[t]here shall be no violation of the life, body or dignity of any person as such.” Article 4 further stipulates that “[a]ll persons are entitled to protection of their life, body and dignity.” [253] Unlike the right to human dignity, which has both negative and positive aspects, the right to liberty has only negative aspects. [254] The right to liberty is intrinsically a negative right. Accordingly, while there is sense in protecting both the negative and positive aspects of the right to human dignity, this rationale does not apply to the right to liberty. Therefore, the only asymmetry within the constitutional text of the basic law that enumerates human dignity twice and liberty only once should not be misconstrued as affording greater importance or protection to human dignity over liberty. [255]

Article 5 of the basic law, titled “Personal Liberty”, stipulates that “[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or by any other means.” [256] While it is true that the article lists examples from the criminal justice setting (i.e., imprisonment, arrest, and extradition), the text does not limit the deprivation of liberty to the criminal setting. [257] The text of article 5 is much broader than the text of articles 2 and 4, especially when considering the ending of the article. The textual infrastructure of the liberty clause is much more accommodating as an incorporation channel than the human dignity clause.

Hillel Sommer claims that the interpretation of the ending of article 5 should be narrow, and include only criminal justice issues that deny the liberty of a person. [258] Sommer’s narrow approach is inadequate for two primary reasons. First, Sommer is consistent with his call to give a narrow interpretation to human dignity as well as to liberty, since he believes that it is not the role of the Court to incorporate rights that were deliberately omitted by the Knesset only several years ago. [259] This claim is strong, but it disregards the Court’s constitutional jurisprudence that rampantly widened the protection of unenumerated rights via the human dignity clause.  [260] To be fair, most of this extension of the scope of the Basic Law has been done after Sommer’s article was published. At the time he wrote the article, his advocacy for a narrow interpretation of the enumerated rights made more sense. Currently, the scope of the human dignity clause is wide. Under these circumstances, Sommer might have perhaps agreed that the liberty clause and the human dignity clause should be treated symmetrically. [261]

Second, Sommer gives an interpretation argument that rests on the analysis of ordinary statutes rather than on constitutional interpretation. [262] Constitutional interpretation requires a different approach, one that allows for a living constitution to evolve through the years. [263] The great potential of the liberty clause as an incorporation clause would be lost under such an approach.

Another possible explanation for the centrality of human dignity vis-à-vis liberty is that most issues covered by the liberal due process provisions of the basic law (e.g., privacy, personal liberty) are also covered by specific statutes. [264] Thus, similarly to title VII, which covered much of the litigation of women’s rights in the United States instead of the equal protection clause, these issues are litigated under specific statutes rather than the more general framework of the basic law. [265] These laws enable the court to neglect the constitutional interpretation and development of the liberty clause. Article 5 of Basic Law: Human Dignity and Liberty, which is the Israeli equivalent to the due process clause, was only applied in cases that revolved around criminal procedure issues, such as arrests, and for the aforementioned reasons, to a limited extent. [266] It is true that the clause’s language suggests that it applies primarily to criminal due process issues, but its language does not block a possible wider understanding of the article’s scope. [267] Surely, when comparing it to the language of the human dignity clause, this broader reading does not seem far-fetched and is especially true with regard to the very broad ending of this clause. [268]

Nothing in the constitutional text itself suggests that human dignity is a more suitable incorporation clause than the liberty clause. But so far, the Court has used the human dignity clause as the sole incorporation channel. The US experience teaches us that there is merit in having more than one incorporation channel within the constitution, and that the interpretation of these clauses changes along the years. Therefore, as a matter of sound constitutional policy, there is room to add the liberty clause as an alternative incorporation clause, thus enabling the incorporation of other rights into the Israeli constitutional documents. The liberty clause can serve as an adequate tool for the incorporation of other unenumerated rights, such as autonomy, into the basic laws.

When comparing the human dignity clause and the liberty clause to the US Constitution, the best analogies are the due process clause and the equal protection clause. Although there are some differences between the clauses, this analogy serves to demonstrate the plain logic of incorporating free speech via the equivalent of the due process clause. [269] The link between free speech and due process is self-evident and natural. Furthermore, the characteristics of equal protection that are applicable to free speech protection, such as content neutrality, are inapplicable to the human dignity clause, due to the different perceptions of equality in the United States and Europe. [270] Since Israel shares the European concepts of human dignity and equality, the human dignity clause has speech curtailing potential, which makes it a problematic incorporation vehicle.

If the US experience can teach us something, it is that at least intuitively, free speech is affiliated with due process. In fact, free speech was the first right to be incorporated by the US Supreme Court via the Fourteenth Amendment, even before all the criminal due process rights. [271] The due process clause covers most fundamental rights, and free speech is at the core of the protected rights, alongside criminal due process rights. Therefore, the Israeli intuition to associate free speech with human dignity, rather than with due process, should be reassessed. For the Israeli reader, the link between free speech and due process may not be obvious. Similarly, American readers are likely to find difficulties in the link between free speech and human dignity. The benefits of this comparative perspective is to expose Israeli jurists and judges to the long-standing US approach to the incorporation dilemma, and to borrow from the US experience to the extent that it is relevant and appropriate.

Hopefully the discussion herein will promote the awareness of the importance of such a doctrinal development. As a matter of principle, it would be much more preferable to read the unenumerated right of freedom of expression through the liberty clause rather than its human dignity counterpart. There is no reason why the liberty clause should not be discovered.

C. On the Merits of Incorporating Free Speech via the Liberty Clause

Although the Supreme Court never seriously discussed the incorporation of free speech via the liberty clause, one of its closest approaches to discussing the link between the two occurred in Bitton v. Sultan[272] which therefore deserves close attention. In that case, the Court convened in an enlarged panel of nine justices (instead of the regular panel of three) in order to re-examine the 1985 Borochov precedent. [273] According to Borochov, the mens rea requirement in criminal libel cases did not include a predictability requirement that entails a presumption of intent. Article 6 of the Prevention of Defamation Act requires an “intent to harm”. [274]

Two primary reasons led the Court to grant certiorari in three petitions to appeal on private criminal libel complaints. First, the Israeli criminal code had undergone a substantial amendment process that affected the mens rea requirement of many criminal offences. Some of the justices believed that following this amendment, the mens rea requirement for criminal libel should be changed to include a presumption of intent. Second, the Borochov precedent was decided before the Constitutional Revolution. In Borochov, the Court recognized four competing interests and values that are at stake in criminal libel cases: free speech and personal liberty on the one hand, and human dignity and public peace on the other hand. The Borochov Court preferred the former to the latter. But some justices believed that following the Constitutional Revolution the balance was tilted in favour of human dignity and therefore justifies imposing the presumption of intent.

Chief Justice Barak, who wrote a concurring opinion in Borochov, wrote the leading majority opinion in Bitton. Barak explained that although more than twenty years had passed, and some legal changes had occurred that may affect Borochov and justify overturning it, he believed Borochov was still good law. Chief Justice Barak claimed that two relevant changes had occurred in the four values and interests that were at stake in criminal libel cases since Borochov was decided. First, human dignity received greater importance following its enumeration in Basic Law: Human Dignity and Liberty. Second, the same basic law had also enumerated the right to personal liberty in article 5. Because the case involved criminal libel, and a conviction in such an offence may deprive personal freedom, this consideration also received greater weight. Therefore, these two changes balance one another, and Borochov still represents a valid balancing of the competing interests and values.

Justice Cheshin in dissent believed that the balancing of interests in Borochov was obsolete and remained loyal to his position that libel standards should be more speech restrictive following the Constitutional Revolution. [275] Justice Cheshin further claimed that the resort to personal freedom, via the interest of public peace, is begging the obvious. [276] To a certain extent, Justice Cheshin was right in his remark that the link between the personal freedom guarantee in article 5 of the basic law and protecting free speech in criminal libel cases was relatively weak and unsubstantiated. In the way it was argued by Chief Justice Barak, it could have been applied to any criminal offence, but this constitutional discourse did not characterize criminal adjudication.

Justice Rivlin dedicated a large portion of his concurring opinion to replying to Justice Cheshin and explaining the link between personal liberty and criminal libel. Justice Rivlin’s opinion deserves attention. He focused on the criminal sanction that may cause deprivation of freedom as the link between free speech and the liberty clause. [277] He criticized the use of criminal (rather than civil) sanctions for libel and demonstrated how current trends among Western democracies aim at limiting, or even eliminating, criminal libel. [278]

Justice Rivlin confronted Justice Cheshin’s dissenting opinion and criticized Cheshin’s claim that the link between public peace and criminal libel is begging the obvious. Justice Rivlin emphasized that the criminal proceedings and sanctions are state actions, which require prudence and are prone to abuse. [279] Rivlin further noted that

[p]ersonal liberty is within the array of balancing that stands at the base of the criminal libel offence, which enjoys a constitutional stand. In practice, freedom of expression is closer to personal freedom, as far as the criminal sanction within Article 6 [of the defamation Act] goes, and opposing them is the right to reputation. Therefore, the balancing point [between free speech and defamation] is drawn to the accumulating mass of freedom. [280]

The limits of Justice Rivlin’s reasoning in Bitton are obvious, since the protection of free speech via personal liberty is confined to a criminal setting. Under this rationale, personal liberty is irrelevant to free speech in the absence of a criminal prohibition. It seems that Justice Rivlin went in the right direction but stopped short of the desirable goal. Just one step further in his reasoning is the linking of free speech directly to the liberty clause, without resorting to criminal prohibitions. As the discussion above shows, such a link is not only feasible but sensible and warranted. The US experience and the incorporation hypothetical demonstrate the soundness of this connection. Justice Rivlin’s opinion in Bitton may serve as a fertile ground to fully incorporate free speech via the liberty clause, whether the speech concerns criminal or civil libel.

Very recently, Justice Rivlin went one step further toward the incorporation of free speech via the liberty clause. In Ilana Dayan v. Captain R., the Supreme Court focused on the link between free speech and liberty in a civil libel case. [281] The case involved a libel claim of Captain R., a company commander in the Israel Defense Forces, who was charged with the killing of a twelve-year-old girl as part of a military operation, when the task force he headed thought they were being ambushed by terrorists. According to some newspaper accounts, Captain R. emptied a rifle magazine on the girl to verify her killing. A reporter aired a story attributing responsibility to Captain R., while also showing him to be indifferent to the girl’s death. The district court of Jerusalem found the reporter and the television company guilty of libel, and imposed on them a heavy fine of 300,000 shekels. [282]

The Supreme Court overturned the district court’s ruling, and found that the reporter had not committed libel (however, the television station remained guilty of libel for the promos it aired, but its fine was reduced to 100,000 shekels). Justice Rivlin’s opinion is of special importance, since it relates to the nexus between freedom of speech and liberty.

Justice Rivlin referred to the theoretical nexus between freedom of speech and the general concepts of liberty. [283] He then returned to the conventional wisdom concerning the foundations of constitutional protection of free speech via the human dignity clause, and, in particular, the balancing of free speech and reputation, both of which derive from human dignity. [284] But this time, Justice Rivlin recognized free speech as a part of liberty and did not confine the rationale of liberty to the criminal aspects of libel (as in Bitton). This time, liberty appeared as a source for free speech protection, and not just theoretical concept of “liberty”, but specifically the liberty values within Basic Law: Human Dignity and Liberty[285]

This path should be further developed, and a free speech jurisprudence that relies on liberty in general, and on the liberty clause within Basic Law: Human Dignity and Liberty in particular, should be further explored. The seeds to do sow have been sown. But now that Justice Rivlin, the most speech-friendly member of the Supreme Court, who received his higher legal education in the United States, [286] is retiring from the bench, who will continue his legacy? Hopefully, the baton of free speech protection will be passed and carried forward.

Very few voices have called for the incorporation of free speech via the liberty clause. Those voices that have advocated for this change have done so with very limited argumentation or development. None of these voices have explained why this incorporation strategy is preferable to the prevalent option of the human dignity clause. Thus, Chief Justice Barak’s early writings that mentioned the liberty clause as an incorporation channel for free speech and autonomy were left undeveloped. [287] Eventually, the Supreme Court implicitly rejected these ideas, when it decided to incorporate autonomy and free speech via the human dignity clause. [288] Chief Justice Barak himself abandoned these ideas when he chose partial incorporation of free speech via the human dignity clause in Majority Camp.

A few voices have called to consider free speech as a manifestation of personal liberty. [289] These voices are not loud enough and are underdeveloped. They lack a compelling explanation for the disadvantages of the current incorporation strategy, and they are not calling for the separation of free speech from human dignity. [290] Nonetheless, these are important voices that may signal the problems of the current approach and the need for a viable alternative. The analysis conducted herein explains the difficulties in the current incorporation strategy, stresses the link between free speech and due process by examining the US experience, and offers a coherent explanation for the need to replace the current incorporation strategy with a more suitable one.

The separation of free speech and human dignity through the use of the liberty clause as an alternative incorporation channel has several distinct advantages. First, all speech would to receive protection under this incorporation strategy. As shown above, not all speech conforms with human dignity, but all speech receives protection as part of the protection of liberty. Majority Camp’s partial incorporation via the human dignity clause would be replaced by full incorporation through the liberty clause. Although this shift would still not afford free speech as robust of a protection as the First Amendment affords due to the balancing mechanisms Israeli constitutional law employs, it would give free speech stronger protection than it currently receives. [291] Second, the artificial link between human dignity and free speech, which was produced largely due to the current incorporation strategy, is expected to fade away. The interrelationships between free speech and human dignity are inherently problematic, and the two should be viewed as contending, rather than harmonious, concepts. [292] Third, Israeli constitutional law will gain from the existence of two distinct incorporation channels in its constitutional documents. The Israeli constitutional evolution requires such a doctrinal development, and the current status quo where the human dignity clause is the only incorporation clause, when only a handful of rights are enumerated, is inadequate. Lastly, freedom of expression deserves a place of honour in the Israeli constitution. But until this shift happens, the closest thing would be reshaping free speech in terms of due process and incorporating it via the liberty clause. Only this strategy would restore freedom of expression’s heightened standing before the Constitutional Revolution.

Conclusion

This article pointed out the intricate relationship between human dignity and freedom of expression. It demonstrated how human dignity expands at the expense of freedom of expression. It warned that juxtaposing the two results in the limitation of free speech and called for the analytical separation of the two.

Israel is perhaps the best laboratory for examining the dynamic interrelationships between human dignity and free speech. The Israeli constitutional arena is undergoing a transition period following the 1992 Constitutional Revolution. As explained above, the emphasis on human dignity that stems from the constitutional text of Basic Law: Human Dignity and Liberty led to the evaluation of free speech in human dignity terms. This dignitization of speech is detrimental, and has long-term effects on the array of rights in Israeli constitutional law that have not been fully understood or discussed.

This article outlined the necessary background regarding the history of free speech protection in Israel and the constitutional development of the young Israeli democracy. In particular, the 1992 Constitutional Revolution, which introduced a partial bill of rights, was presented, as well as the fact that freedom of expression, which enjoyed heightened status in the common law rights’ protection that preceded the Constitutional Revolution, did not receive enumeration. Among the rights that were enumerated was human dignity. Israeli constitutional law has been increasingly relying on human dignity in its rulings, and this concept has also found its way into free speech jurisprudence. This background facilitates a better understanding of the changes that Israeli constitutional law in general, and free speech doctrines in particular, have undergone in recent years, even to a reader who is not closely familiar with Israeli law.

This article demonstrated Israel’s shift from the liberty-based paradigm toward the dignity-based paradigm following the 1992 Constitutional Revolution, and the growing emphasis human dignity has received in Israeli constitutional jurisprudence ever since. The “dignitization” process that Israeli free speech laws are undergoing was demonstrated in several ways.

First, this article explored the different approaches to the incorporation of freedom of expression into Basic Law: Human Dignity and Liberty, as well as the manner in which the Supreme Court grappled with the issue of incorporation up until the 2006 Majority Camp decision, which seemingly resolved the matter. The limits of partial incorporation were explored as well as the weaknesses and unresolved issues of the laconic ruling of Chief Justice Barak in Majority Camp, opting for partial incorporation. The Israeli approach to the incorporation dilemma and the use of the human dignity clause as the incorporation channel for free speech have led to the weakening of free speech due to the juxtaposition of free speech and human dignity.

Second, the statistical analysis of the Supreme Court’s free speech rulings in the past three decades showed that as years have gone by, human dignity has increasingly been referenced more and more in free speech rulings. This shift toward human dignity has occurred even in areas of free speech where it was not previously mentioned, such as prior restraint. The empirical data gathered for the purpose of this article demonstrated that human dignity is increasingly used in free speech rulings. If two decades ago human dignity seldom appeared in free speech rulings, today it appears in nearly all these rulings. Prior to the Constitutional Revolution, free speech was not generally perceived as a human dignity issue. Currently, free speech is assessed through the human dignity lens, with this area of constitutional law becoming increasingly dignitized.

Furthermore, the statistical analysis showed that while the Supreme Court increasingly relied on US rulings in the 1980s and early 1990s, it has decreased the number of references to those rulings in recent years. Concurrently, it increasingly referred to other Western sources, such as Canadian and German rulings. Although the United States remains the primary cited source, the attitude toward American rulings has changed, and Israel is getting closer in results and substance to the European model for free speech. The references to foreign rulings thus revealed the growing gap between Israel and the United States in free speech doctrines, and the growing resemblance between Israeli and European approaches to free speech. This is yet another indicator that Israel is slowly shifting from the liberty-based approach to free speech to the dignity-based approach.

Third, the statistical trends were also backed by substantive decisions of the Supreme Court in several areas of free speech. Thus, the dignitization process is exemplified in the areas of prior restraint, pornography, and libel. The analysis of prominent rulings from recent years shows how the near certainty test for prior restraint that was buttressed during the 1980s has been weakened by the court due to human dignity concerns, or even replaced in certain contexts by a more speech-restrictive standard. In the area of pornography, the court has recognized the “dignity of women” as a reason for curtailing free speech, and the court upheld these rationales when it allowed a ban on hard-core sex channels on cable. The restriction of pornography by administrative acts is upheld using lax constitutional standards. In the area of defamation and libel, the court has turned the Prevention of Defamation Act into a de facto mechanism for enforcing civility. The use of Nazi-related epithets is almost automatically libellous, and legislative initiatives even seek to criminally prohibit such use. Other areas of libel laws, such as temporary restraining orders, are also undergoing changes, as explored above. These substantive examples show how the dignitization of free speech is slowly weakening freedom of expression’s standing in Israel.

The last part of the article offered strategic ways to fortify the status of freedom of expression. Unfortunately, the inclusion of free speech in a constitutional document may take many years, and perhaps it may never even occur. Therefore, in the interim, an alternative incorporation strategy was suggested that does not carry the same side effects as the current incorporation strategy. Instead of incorporating free speech via the human dignity clause within Basic Law: Human Dignity and Liberty, the liberty clause within the same basic law was offered as a more suitable incorporation channel. Some of the speech restrictive features that lead to partial incorporation of free speech through the current strategy would be amended by this proposal, and free speech would receive full incorporation, so that all speech would be constitutionally protected.

The liberty clause within article 5 of Basic Law: Human Dignity and Liberty serves as an appropriate vessel for the incorporation of freedom of expression into the Israeli constitutional documents. This approach would require a broader appreciation of the liberty clause’s scope, as it has, so far, been primarily construed as protecting criminal due process. Nonetheless, such an interpretation makes sense, especially when looking at the US experience with the incorporation of free speech on the states via the Fourteenth Amendment, as well as the developmental history of incorporation channels within the US Constitution through the years. The nascent Israeli constitutional experience and its transition period features suggest that incorporation channels may be discovered and their content may change. Therefore, reading freedom of expression into the Israeli constitutional documents via the liberty clause should be given serious consideration.

***

In recent years there has been a growing tendency among the Israeli Supreme Court justices to prefer human dignity at the expense of freedom of expression. The widespread appearance of the human dignity discourse in freedom of expression cases characterizes all fields of free speech doctrine, such as prior restraint, pornography, and libel.

The Court’s free speech limitation trend stems from the Constitutional Revolution and from the legal discourse that emanates from it. The Court is seeking an “identity of interests” between free speech and human dignity. According to the Court, both stem from one source—human dignity.

This reduced significance that the Court has attached to free speech is inherently problematic. Human dignity cannot stand for everything. Giving a systematic preference to human dignity over free speech when the two are in conflict will eventually lead to a situation where very few expressions receive protection.

The Court offers an inadequate legal discourse, with a limited vocabulary. The attempt to force freedom of expression into the human dignity mould is inappropriate, and will eventually lead to severe limitations on free speech in Israel. Many kinds of expressions may stand at odds with human dignity. However, numerous expressions are important for the public discourse in Israel and deserve protection. Protecting only speech that does not conflict with human dignity will dilute the public discourse and have a chilling effect. Speakers will think twice before expressing their views, and some may decide not to speak at all.

Thus, paradoxically, the Constitutional Revolution has weakened freedom of expression, and in recent years, there has been a slow devaluation in the prominence of free speech in Israel. The Supreme Court would have been wise to not artificially find the similarities between free speech and human dignity, but to recognize the inherent tension between the two and confront it. The current discourse leads to the subordination of free speech to human dignity, and to the reduction of a fundamental right that has received protection in Israel from the late 1970s through the early 1990s. This situation is neither a necessary nor desirable outcome of the Constitutional Revolution. The Supreme Court should recognize the intricacy of the interrelationship between freedom of speech and human dignity, and avoid the oversimplification that characterizes its recent rulings. This article offered tools to do so.

For a liberty-based jurisprudence to take root it should be structured from within the Israeli jurisprudence, and it cannot simply emulate the United States. Israel has passed the stage of imitation. It needs to process, in domestic terms, the important wisdom that the United States has to offer. As part of this process, it is important to distinguish free speech from other rights, as a right that deserves heightened protection. This change is possible thanks to the existing infrastructure in which the United States has a great share, but the liberty-based paradigm needs to become naturalized and integrated into Israeli law. Therefore, Israel needs to establish its own “First Amendment”. It should resemble that of the United States, but it should also reflect the necessary adaptations to the Israeli setting.

Human dignity can only carry the right to free speech so far. One cannot seriously commit to both, and a legal system must decide which of the two it favours. In the United States and Germany, this decision seems to be clear. Israel should decide which model it chooses to embrace. Following the 1992 Constitutional Revolution, it seems that the dignity-based model has gained strength, but no clear preference between the two models has been made. The introduction of human dignity into the realm of free speech may render this battle lost before it has even begun.

Israel stands at a crossroads. It is slowly abandoning American influence in the field of free speech, and trading it for a human dignity emphasis. Thus, as a by-product of the 1992 Constitutional Revolution, Israel risks losing the relatively high protection it afforded to free speech without serious debate and deliberation. This direction may well prove to be a mistake. My scholarship aims to expose these tendencies and cautions against their possible consequences. As shown, Israel is experiencing a paradigm shift. It may not be too late to halt and ponder the outcome of the current trends. If Israel wishes to abandon its former free speech jurisprudence, at least it should do so consciously.

Appendices