Can Freedom of Expression Survive Social Trauma - the Israeli Experience

Abstract

The paper is aimed to examine whether the protection of political speech can, and should, survive social trauma. The United States is struggling these days with the trauma in the wake of the horrible events of September 11th. It is, however, too early to draw conclusions about the impact of the reaction to those events upon civil liberties in the United States. I will rather focus upon two traumatic events in another time and place - in Israel's recent history. The first is the assassination of Israeli Prime Minister Yitzhak Rabin on 4 November 1995, following a rally in support of the peace process. The second event is one that occurred nearly two years earlier when, on 25 February 1994, an Israeli Jew named Baruch Goldstein, murdered twenty-five Moslem worshippers in the Tomb of the Patriarchs in Hebron.

Both acts were perpetrated against a background of deep political divisions and ensuing arguments that often deteriorated to violent speech. The assassination and the massacre were widely taken as proof of the relationship between violent speech and violent acts. Accordingly, the prosecuting authorities expressly deviated from their policy of restraint, and there was a significant rise in the number of defendants charged with offences related to political speech. The background that led to widening the criminal law restrictions upon political speech following the massacre and the assassination will be explored in the first part of the paper. In that context, the distancing from the American model will be emphasized.

Faced with a growing number of decisions imposing criminal law restrictions upon speech, the Israeli Supreme Court ordered a further hearing before an expanded bench in two cases - Jabrin and Kahane, handed down on November 2001. Both cases will be presented in the second part of the paper. Critical evaluation of the cases will be elaborated in the third part.

JEL Classification: K14, K39