"Dignitizing" free speech in Israel: the impact of the constitutional revolution on free speech protection.
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.
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 an 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 fax 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-a-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
Israelis 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 ff 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 with in 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 hot 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-a-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.
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 hot 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.
(1) 5752-1992, 1391 LSI 150 (1991-92) (Isr), as amended by Basic Law: Human Dignity and Liberty--Amendment, 1994, SH 90, online: <www.knesset.gov.il/main/eng/home.asp>.
(2) Guy E Carmi, "Dignity versus Liberty: The Two Western Cultures of Free Speech" (2008) 26:2 BU Int'l LJ 277 [Carmi, "Dignity versus Liberty"].
(3) See "The Constitution", online: The Knesset <http://www.knesset.gov.il/description/eng/ eng_mimshal_hoka.htm#4>.
(4) 5718-1958, 12 LSI 85 (1957-58) (Isr).
(5) 2001, SH 158, online: <www.knesset.gov.il/main/eng/home.asp>.
(6) 5744-1984, 38 LSI 101 (1983-84) (Isr).
(7) The only exception was a limited recognition that article 4 of Basic Law: The Knesset, which deals with the principle of equal elections and requires a special majority vote for infringement of this principle, enabled courts to strike down statures that did not withstand that demand. See HCJ 98/69 Bergman v Minister of Finance and State Comptroller,  IsrSC 23(1), online: <http://elyon1.court.gov.il/eng/home/index.html>; Itzhak Zamir, "Judicial Review of Statutes" (1993) 1:2 Mishpat Umimshal 395 at 396.
(8) See HCJ 73/53 Kol Ha'am v Minister of Interior (1953), online: <http://elyon1.court.gov. il/eng/home/index.html> [Kol Ha'am].
(9) See e.g. HCJ 606/93 Kidum Entrepreneurship and Publishing Ltd v The Broadcasting Authority,  IsrSC 48(2) 1 at 9 [Kidum]: "Needless to say that 'freedom of expression stands at the top of the liberties upon which our democratic regime is founded"' [translated by author, emphasis added].
(10) See Kol Ha'am, supra note 8; HCJ 680/88 Schnitzer v The Chief Military Censor (1989), online: <http://elyon1.court.gov.il/eng/home/index.html> [Schnitzer].
(11) Kol Ha'am (supra note 8) is probably the most prominent landmark ruling of the Israeli Supreme Court and is the most cited Supreme Court decision of all time: see Yoram Shahar, Ron Harris & Myrron Gross, "Reliance Customs of the Supreme Court--Quantitative Analysis" (1996) 26 Mishpatim 763 (in Hebrew).
(12) For more information on free speech protection in the 1950s-1970s see Daphne Barak-Erez, "The Law of Historical Films: In the Aftermath of Jenin, Jenin" (2007) 16:3 S Cal Interdis LJ 495.
(13) Apparently the landmark decision Kol Ha'am (supra note 8) had an "intermediate stage", and its effects only started to fully take hold in the late 1970s and early 1980s. It seems that the seeds Chief Justice Agranat had planted in that decision did not bloom until several years later. For example, only several months prior to Kol Ha'am, the Supreme Court had rejected a very similar petition by the same newspaper, which had been closed for a few days by the decree of the executive (HCJ 25/53 Kol Ha'am LTD v Minister of the Interior,  IsrSC 7 165--the "first" Kol Ha'am case). This less well-known case ended with an opposite result, upholding a temporary closing order of the same newspaper as a sanction for content that criticized the government. It seems that the "first" Kol Ha'am case served as the rule, during the transitional time of the 1950s--1970s, while the "second" Kol Ha'am case served as the exception.
(14) First traces of the fortification of free speech in the Supreme Court's rulings can be seen in CA 723/74 Ha'aretz v Israel Electric Corporation (1977), Shamgar J, online: <http:// elyon1.court.gov.il/eng/home/index.html>. This decision was overturned by CFH 9/77 The Israel Electric Corporation v Ha'aretz (1978), online: <http://elyon1.court.gov.il/ eng/home/index.html> [Ha'aretz]; HCJ 1/81 Shiarn v Broadcasting Authority,  IsrSC 35(3) 365, Shamgar J, concurring.
(15) For elaboration upon the free speech rulings of the Shamgar Court and of Chief Justice Meir Shamgar see Zeev Segal, "Freedom of Speech in the Light of Meir Shamgar", in Aharon Barak, Mishael Chesnin & Meir Shamgar, eds, Sefer Shamgar, vol 3 (Tel Aviv: Israeli Bar Association, 2003) 111 at 111 (in Hebrew).
(16) See e.g. CA 214/89 Avneri v Shapira,  IsrSC 43(3) 840 (giving precedence to free speech when balancing it with the right to reputation in the context of injunctions) [Avneri]; HCJ 399/85 Cahana v Broadcasting Authority,  IsrSC 41(3) 255 [Cahana] (protecting racist speech from prior restraint); HCJ 298/86 Sitrin v Israel Bar Association,  IsrSC 41(2) 337 [Sitrin] (creating a common law journalist privilege); Schnitzer, supra note 10 (elevating the burden for prior restraint imposed by the military censorship). Schnitzer is considered by many to be the peak of the Supreme Court's free speech protection. See Ilana Dayan-Orbach, "The Democratic Model of Free Speech" (1996) 20:2 Tel Aviv University Law Review 377 at 389 (referring to the "Schnitzer-ian paradigm") (in Hebrew).
(17) See rulings mentioned in previous footnote. See also Justice Shamgar's dissent in Ha'aretz, supra note 14.
(18) The most prominent strict scrutiny test is the "near certainty test" from Kol Ha'am (supra note 8 at section G), which was utilized in most cases that involved infringement of freedom of expression. One of the only examples of a different standard that was applied by the courts in the 1960s (and which was amended in 2002 by the Knesset to include the near certainty test) was the criminal offence of sub judice (see CrimA 126/62 Dissenchick v Attorney-General (1963), online: <http://elyon1.court.gov.il/eng/home/index.html>; The Courts Act, 1984, SH 198, art 71, online: <www.knesset.gov.il/main/ eng/home.asp> [Courts Act]). See also Mordechai Kremnitzer & Liat Levanon, "Freedom of Expression in Aharon Barak's Rulings" in Eyal Zamir, Barak Medina & Siliya Pesberg, eds, Barak Book (Jerusalem: The Hebrew University of Jerusalem, 2009) 159 at 178-80 (criticizing the application of the near certainty test in the free speech rulings of former Chief Justice Barak).
(19) Compare HCJ 6126/94 Szenes v The Broadcasting Authority (1999) at para 18, Barak CJ, online: <http://elyonl.court.gov.il/eng/home/index.html> [Szenes]; EA 92/03 Shaul Mofaz v Chairman of the Central Elections Committee,  IsrSC 57(3) 793, at para 17, online: <http://elyon1.court.gov.il/eng/home/index.html> [Mofaz]. These rulings have added the "limitations clause test" (article 8, of Basic Law: Human Dignity and Liberty) in cases of infringement of freedom of expression, at least to some extent. See e.g. Guy E Carmi, Dignity and Liberty: Differing Approaches to Free Speech in Germany, the United States and Israel (SJD Dissertation, University of Virginia School of Law, 2010) at 220-32 [unpublished][Carmi, Dignity and Liberty] (criticizing the introduction of proportionality and balancing to the free speech constitutional standards of review).
(20) See e.g. Dayan-Orbach, supra note 16 at 391 (referring to the common law protection of free speech by the Supreme Court as "impressing").
(21) See e.g. Kol Ha'am, supra note 8; Schnitzer, supra note 10 at paras 8-9.
(22) See e.g. HCJ 5432/03 SHIN v Council for Cable TV and Satellite Broadcasting (2004), online: <http://elyon1.court.gov.il/eng/home/index.html> [SHIN] (upholding a statute that forbids transmitting pornographic channels on licensed cable networks).
(23) Kidum, supra note 9 at 9 [translated by author, emphasis added].
(24) See CA 105/92 Reem Engineers Ltd v The Municipality of Nazrath Ilit,  IsrSC 47(5) 189 at 201-202 [Reem].
(25) The term "Constitutional Revolution" was coined by the Minister of Justice Dan Meridor, and frequently adopted by Chief Justice Aharon Barak. See e.g. Aharon Barak, "The Constitutional Revolution: Protected Human Rights" (1992) 1:1 Mishpat Umimshal 9 at 12-13 (quoting Minister of Justice Meridor as referring to this process as a "constitutional revolution") [Barak, "Protected Human Rights"] (in Hebrew). It appears that the term is not related to the US constitutional revolution of 1937: see e.g. William E Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York: Oxford University Press, 1995).
(26) Supra note 1.
(27) 1994, SH 90, online: <www.knesset.gov.il/main/eng/home.asp>.
(28) Barak, "Protected Human Rights", supra note 25.
(29) The two basic laws combine to produce the following list of rights: life, dignity, liberty, property, freedom of movement, privacy, and freedom of occupation.
(30) For example, basic rights such as freedom of expression or freedom of religious observance are not explicitly listed.
(31) See Draft Bill Basic Law: Freedom of Expression and Association, 1994, HH, 325; Judith Karp, "Basic Law: Human Dignity and Liberty--A Biography of Power Struggles" (1993) 1:2 Mishpat Umimshal 323 at 340 (in Hebrew).
(32) Ibid at 325.
(33) See CA 6821/93 Bank Mizrahi v Migdal Cooperative Village  2 Israel Law Reports 1, Shamgar J, online: <http://elyon1.court.gov.il/eng/home/index.html> [Mizrahi]. The term "cripple constitution" has been used many times by Chief Justice Barak when describing the status of the basic laws. See e.g. Aharon Barak, "The American Constitution and The Israeli Law", in Arnon Gutfield, ed, American Democracy: The Real, The Imagined and the False (Israel: Ganei-Aviv, 2002) 81 at 82 [Barak, "The American Constitution"] (in Hebrew).
(34) See Guy E Carmi, "A Constitutional Court in the Absence of a Formal Constitution? On the Ramifications of Appointing the Israeli Supreme Court as the Only Tribunal for Judicial Review" (2005) 21:1 Conn J Int'l L 67 at 74-75 [Carmi, "Constitutional Court"].
(35) See e.g. HCJ 213/03 Herut v Chairman of the Central Elections Committee (2003), online: <http://elyon1.court.gov.il/eng/home/index.html> [Herut]; Mofaz, supra note 19. For more on the entrenchment and scope-widening of the Constitutional Revolution see Ariel L Bendor, "Four Constitutional Revolutions?" (2003) 6:2 Mishpat Umimshal 305 (in Hebrew).
(36) In Mizrahi (supra note 33 at 351-52), the Court substantiated its ability to strike down laws of the Knesset on the limitations clause within the two new basic laws: Basic Law: Human Dignity and Liberty supra note 1, art 8; Basic Law: Freedom of Occupation, supra note 27, art 4.
(37) In Herut, the Court broadened the rationale for judicial review
from its Mizrahi ruling, by claiming that all the basic laws are higher norms than ordinary legislation, and therefore, in case of a conflict between a statute and a provision of a one of the basic laws, the higher norm (i.e., the basic law) should prevail (supra note 35 at para 4).
(38) C.f. Leon Sheleff, "Two Models of Human Rights Guarantee: An American Model Versus a Possible Israeli Model" in Yedidia Z Stern & Yaffa Zilbershats, eds, Law in Israel--A Prospective Approach (Ramat-Gan: Bar-Ilan University Press, 2003) 199 at 222-23 (in Hebrew). Sheleff views Basic Law: Human Dignity and Liberty as "focusing on the two meta-values of Dignity and Liberty" (ibid at 222 [translated by author]). Sheleff also sees the basic laws, and in particular Basic Law: Human Dignity and Liberty, as setting a broad constitutional framework through which the Court can develop the constitutional law. He sees no need for elaboration of further rights and believes it is sufficient to mention the values.
(39) See e.g. HCJ 6055/95 Zemach v Minister of Defense,  IsrSC 53(5) 241 [Zemach]; HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (2009) at paras 20-33, Beinisch CJ, online: <http://elyon1.court.gov.il/eng/home/index.html> [Academic Center]. See also the elaborated discussion in Part III, below (regarding the possible development of a robust liberty clause jurisprudence).
(40) Compare note 54 and accompanying text, infra (stating the language of the Israeli human dignity clauses) with the robust language of article 1 of the German basic law, stating that the dignity of man is inviolable, and that to respect it and protect it is the duty of all state authority (Basic Law for the Federal Public of Germany, 1949). See Carmi, "Dignity versus Liberty", supra note 2 at 324.
(41) See e.g. Orit Kamir, Israeli Honor and Dignity: Social Norms, Gender Politics and the Law (Jerusalem: Carmel Publishing House, 2004) at 131 (citing discussions in the Knesset prior to the enactment of the basic law in which Knesset members from religious parties viewed the basic law as containing "values from the Torah") (in Hebrew).
(42) See HCJ 4541/94 Miller v Minister of Defense (1995), online: <http://elyon1.court.gov.il/ eng/home/index.html> [Miller].
(43) See e.g. HCJ 366/03 Commitment to Peace and Social Justice v Minister of Finance (2005), online: <http://elyon1.court.gov.il/eng/home/index.html>; Daphne Barak-Erez & Aeyal M Gross, "Social Citizenship: The Neglected Aspect of Israeli Constitutional Law" in Daphne Barak-Erez & Aeyal M Gross, eds, Exploring Social Rights: Between Theory and Practice (Oxford: Hart Publishing, 2007) 243; HCJ 10662/04 Hassan v Social Security Service,  Tak-Al 2012(1) 5203.
(44) See HCJ 2557/05 Majority Camp v Israel Police (2006), online: <http://elyon1.court.gov. il/eng/home/index.html> [Majority Camp].
(45) See e.g. Kamir, supra note 41 at 147 (citing Justices Zamir and Cheshin, who expressed in several rulings their fear that an exaggerated and overbroad use of human dignity may erode it and empty it of substantive content).
(46) See generally William H Rehnquist, "The Notion of a Living Constitution" (1976) 54:4 Tex L Rev 693.
(47) See Robert C Post, Constitutional Domains: Democracy, Community, Management (Cambridge, Mass: Harvard University Press, 1995) at 13.
(48) C.f. Sheleff, supra note 38 at 222-23.
(49) Menachem Mautner, The Decline of Formalism and the Rise of Values in Israeli Law (Tel-Aviv: Ma'agalay Da'at Publishing House, 1993) at 125 [translated by author, emphasis in original] (in Hebrew). See also Menachem Mautner, Law and the Culture of Israel (Oxford: Oxford University Press, 2011).
(50) See e.g. Carmi, "Constitutional Court", supra note 34 at 82-83.
(51) See Carmi, Dignity and Liberty, supra note 19 at 253-66 (regarding the possibilities for enumeration of free speech within the Israeli constitutional documents).
(52) This is a substantial risk due to managerial reasons and the application of stare decisis: see Post, supra note 47 at 17. The Court may continue sticking to doctrines that were formulated in the transitional period even if the constitutional basis of the right to freedom of expression changes in the interim.
(53) Accord Risa L Goluboff, The Lost Promise of Civil Rights (Cambridge, Mass: Harvard University Press, 2007) at 5 (referring to the decade and a half prior to Brown as a period in which "the world of civil rights was conceptually, doctrinally, and constitutionally up for grabs"). See also Aharon Barak, "The Supreme Court as a Constitutional Court" (2003) 6:2 Mishpat Umimshal 315 at 326-27 [translated by author, emphasis added] (in Hebrew).
(54) The distinction between articles 2 and 4 is usually construed in a way that views article 4 as rendering a positive commitment by the state to protect life. For the distinction between positive and negative rights, see Carmi, "Dignity versus Liberty", supra note 2 at 292-306 (discussing liberty and Berlin's "Two Concepts of Liberty").
(55) See Donald P Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, 2d ed (Durham: Duke University Press, 1997) at 298. See also the discussion in Carmi, "Dignity versus Liberty", supra note 2 at 324-26 (regarding the primacy of human dignity in Germany).
(56) See Karp, supra note 31 at 331-32. Article 8 of the basic law, known as the "general limitation clause", offers a uniform test that is applied when rights are infringed upon. In comparison with the American system, one could say that this is a single tier of scrutiny. Sec further discussion in Carmi, Dignity and Liberty supra note 19 at 220-32 (discussing balancing in Israeli constitutional law and criticizing the single-tier system).
(57) See more on the "horizontal balancing" in ibid at 220-32, nn 285, 1004.
(58) For more on the limitations clause tests see ibid at 220-32, 258-62 (discussing balancing and proportionality and critiquing the single-tier system).
(59) See Carmi, "Dignity versus Liberty", supra note 2 at 355-61 (discussing the incorporation hypothetical).
(60) See Mark F Brzezinski & Leszek Garlicki, "Judicial Review in Post-Communist Poland: The Emergence of a Rechtsstaat?" (1995) 31:1 Stan J Int'l L 13 at 35-42.
(61) Shortly after the enactment of the basic laws, a draft bill, which did hot pass, was proposed to include freedom of expression as part of the enumerated rights: see e.g. Draft Bill Basic Law: Freedom of Expression and Association, supra note 31.
(62) See Karp, supra note 31 at 326-32.
(63) See Aharon Barak, Constitutional Interpretation (Jerusalem: Nevo, 1992) at 412 [Barak, Constitutional Interpretation] (in Hebrew).
(64) See e.g. Eliyahu Winograd, Injunctions, General Part (Ramat Hasharon: Halachot, 1993) at 40 (in Hebrew). Compare with CA 6871/99 Rinat v Rom,  IsrSC 56(4) 72 at 89-91 [Rinat]; CA 4534/02 Shoken Network Ltd v Herzikowitz,  IsrSC 58(3) 558 at 571-73 [Herzikowitz]. See also Carmi, Dignity and Liberty, supra note 19 at 172-75 (discussing the narrow approach).
(65) See Barak, Constitutional Interpretation, supra note 63 at 414-16.
(66) Examples of this approach include PPA 4463/94 Golan v Prisons Service (1996) at para 14, Mazza J, online: <http://elyon1.court.gov.il> [Golan]; Reem, supra note 24 at 201. See also Carmi, Dignity and Liberty, supra note 19 at 172-75 (discussing the broad model of full incorporation).
(67) See Golan, supra note 66 at para 3, Dorner J; Majority Camp, supra note 44 at paras 12-13, Barak CJ.
(68) See e.g. Miller, supra note 42; HCJ 453/94 Israel Women's Network v Government of Israel (1994), online: <http://elyon1.court.gov.il>.
(69) In HCJ 6427/02 The Movement for Quality of Government v The Knesset,  Tak-Al 2006(2) 1559, online: <http://www.court.gov.il/heb/home.htm> [Movement for Quality] (in Hebrew), the Supreme Court clarified that the protection of equality through the intermediate model is the correct interpretation, but that there is no requirement for degradation. The court left vague the exact contours of the right to equality which is incorporated via the human dignity clause and put the emphasis on the elements of equality that express recognition in the autonomy of private will, freedom of choice, and the freedom of a person as a free being. See ibid at para 41, Barak CJ, concurring.
(70) See e.g. Carmi, "Constitutional Court", supra note 34 at 80.
(71) This is a positivistic managerial concern: see discussion in Carmi, Dignity and Liberty, supra note 19 at 250-53.
(72) For a full list of the enumerated rights within the two new basic laws of 1992, see supra note 29.
(73) Since in Hebrew, honour and dignity are synonyms, the right to human dignity in Basic Law: Human Dignity Liberty was perceived from the beginning as including the right to reputation, and the protection of the right to reputation. See e.g. Rinat, supra note 64 at 90, Rivlin J; CA 3641/97 Dan Avi Itzhak, Esq v Israeli News Corp Ltd,  IsrSC 53(1) 26 at 50; Barak, Constitutional Interpretation, supra note 63 at 427. For the different meanings of the word "kavod" in Hebrew as including honour, dignity, glory, and respect, see Kamir, supra note 41 at 19-42.
(74) See e.g. CC (TA) 942/93 Termokir-Horashim v Hamagen Corp,  IsrDC 1994 177 at 185, Pilpel J [Hamagen] (expressing the opinion that following the enactment of Basic Law: Human Dignity and Liberty, free speech should receive lesser protection than the right to reputation, and calling for a reversal of the Avneri precedent).
(75) See e.g. Winograd, supra note 64 at 40.
(76) See Szenes, supra note 19 at paras 29-30, 37, Cheshin J, dissenting, (giving preference to the right of reputation over freedom of expression in reliance on Basic Law: Human Dignity and Liberty).
(77) Aharon Barak, "Protected Human Rights: Scope and Limitations" (1993) 1:2 Mishpat Umimshal 253 at 261 [Barak, "Protected"] (supporting full incorporation) (in Hebrew); Barak, Constitutional Interpretation, supra note 63 at 427-28. Barak was a prolific writer and a former law professor and dean of the Hebrew University Law School. He expressed these views in non-binding scholarly articles. Barak is probably the most influential jurist in the Israeli system.
(78) See e.g. Reem, supra note 24 at 201, Barak CJ, concurring; HCJ 4804/94 Station Film v The Film Review Board (1997), Barak CJ, online: <http://elyon1.court.gov.il/eng/home/index.html> [Station Film].
(79) See e.g. HCJ 2888/97 Novic v Second Broadcasting Autority,  IsrSC 51(5) 193; HCJ 8507/86 Theodore Oreen, Esq v The State of Israel,  IsrSC 51(1) 269; HCJ 5118/95 Maio Simon Advertising Ltd v Second Broadcasting Autority,  IsrSC 49(5) 751.
(80) See Golan, supra note 66 at paras 14-15, 19, Mazza J.
(81) See Carmi, "Constitutional Court", supra note 34 at 70-75.
(82) See Guy E Carmi, "Dignity--The Enemy from Within: A Theoretical and Comparative Analysis of Human Dignity as a Free Speech Justification" (2007) 9:4 U Pa J Const L 957 at 986-96 [Carmi, "Dignity--The Enemy from Within"] (discussing the affects of communitarian traits, audience focus, and positive rights' focus on the perception of free speech justifications in the West). For examples in the Israeli context, see HCJ 4466/95 Klinberg v Parole Board,  Tak-Al 96(1) 192 at 197: "It is true that human dignity is a superior value among the values of the State of Israel. But it is the dignity of man as a member of a community, and the community itself is entitled to be upheld and existence secured. This is the only way that the human dignity of all her sons and daughters can be maintained. Therefore, human dignity can be infringed upon in order to maintain a social structure that safeguards human dignity" [translated by author, emphasis added]; David Kretzmer, "Human Dignity in Israeli Jurisprudence" in David Kretzmer & Eckart Klein, eds, The Concept of Human Dignity in Human Rights Discourse (The Hague: Kluwer Law International, 2002) 161 at 170-71.
(83) See elaborated discussion in Part III, below.
(84) For elaboration on the intermediate model of protection of rights see Barak, Constitutional Interpretation, supra note 63 at 419.
(85) See Golan, supra note 66, at paras 8-9, Dorner J.
(86) See ibid. This construction ironically gives higher protection to artistic speech, since it is more essential for individual self-realization, than to political speech, which is central to democratic self-government. For elaboration on the "basic model" of free speech see e.g. Steven J Heyman, "Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression" (1998) 78:5 BUL Rev 1275 at 1315; Carmi, "Dignity--The Enemy from Within", supra note 85 at 969-74 (presenting the "classical model" for free speech).
(87) See Miller, supra note 42 at 132-33; Dalia Dorner, "The Constitutional Protection of Human Dignity" in Alouph Hareven & Chen Bram, eds, Human Dignity or Humiliation? The Tension of Human Dignity in Israel (Jerusalem: Hakibbutz Hammeuchad Publishing House, 2000) 16 (offering the same construction for the incorporation of equality and free speech via the human dignity clause based on preventing denigration); D Schultziner & I Rabinovici, "Human Dignity, Self-Worth, and Humiliation: A Comparative Legal-Psychological Approach" (2012) 18:1 Psychology, Public Policy, and Law 105 at 132-34.
(88) See Carmi, "Dignity--The Enemy from Within", supra note 85 at 982 (in text accompanying notes 118-22).
(89) Kretzmer, supra note 85 at 174; Golan, supra note 66 at paras 8-9, Dorner J. Even under First Amendment doctrines, commercial speech is considered to be low-value speech that is subjected to heightened regulation. See e.g. William W Van Alstyne, The American First Amendment in the Twenty-First Century: Cases and Materials, 4th ed (New York: Foundation Press, 2011) at 845.
(90) Kretzmer, supra note 85 at 174 (citing Justice Dorner's holding in Golan, supra note 66 at paras 8-9: "When denying freedom of speech humiliates the individual and violates his dignity as a human being, there is no reasonable way of interpreting the right of dignity prescribed in the Basic Law so that this humiliation is not deemed to violate it").
(91) See Daniel Statman, "Two Concepts of Dignity" (2001) 24 Iunay Mishpat 541 at 577 (arguing that using dignity to protect the vilified seems more natural than applying it to the vilifier). C.f. Giovanni Bognetti, "The Concept of Human Dignity in European and US Constitutionalism" in Georg Nolte, ed, European and US Constitutionalism (Cambridge: Cambridge University Press, 2005) 85 at 91 ("[i]n contrast, in private law the appeal to the dignity of the individual is frequently made in order to justify restrictions of the private rights of others").
(92) See Rinat, supra note 64 at 90, Rivlin J: "Only when safeguarding free speech can the speaker and the listener bring self-fulfillment. But infringing upon the reputation of a person can set obstacles in his path to self-fulfillment. This is the source of the determination that 'reputation and free speech are derived from the same 'mother'-right--human dignity" [translated by author, emphasis added]. See also Elad Peled, "A Critical View on the Constitutional Anchoring of Free Speech by the Court" (2010) 26 Mechkarei Mishpat 283 at 303-08 (criticizing the scope of protection free speech receives via the right to human dignity, especially the inaptness of human dignity to duly cover political speech) (in Hebrew).
(93) See Carmi, "Dignity--The Enemy from Within", supra note 85 at 972-74 (discussing the argument from autonomy).
(94) See Carmi, Dignity and Liberty, supra note 19 at 172-75 (discussing the broad model of full incorporation).
(95) Kretzmer, supra note 85 at 174 (claiming that the regulation of commercial speech "can hardly be seen as violations of the human dignity of the commercial enterprise").
(96) Chief Justice Barak rendered his final ruling and withdrew from the bench three days later, after an almost twenty-nine year tenure on the Israeli Supreme Court, as he reached the mandatory retirement age of seventy.
(97) Majority Camp, supra note 44 at para 13, Barak CJ [emphasis added, citations omitted]. Compare Movement for Quality, supra note 71 at para 41, Barak CJ, concurring (setting similarly vague contours of constitutional defense of the right to equity).
(98) See Van Alstyne, supra note 93 at 637 (claiming that political advocacy lies at the core of free speech protection).
(99) See elaboration in Carmi, "Dignity--The Enemy from Within", supra note 85 at 971-72 (discussing the argument from democracy); Peled, supra note 96 at 289 (putting an emphasis on the significance of the argument from democracy in the Israeli Supreme Court free speech jurisprudence).
(100) See Majority Camp, supra note 44 at para 13, Barak J.
(101) See Carmi, "Dignity--The Enemy from Within", supra note 85 at 974-82 (criticizing the use of human dignity as a free speech justification).
(102) See e.g. CrimA 2831/95 Elba v State of Israel,  IsrSC 50(5) 221 at 296, Barak CJ, concurring; CA 10520/03 Ben Gvir v Dankner Tak-Al 2006(4) 1410 (2006) at para 11, Rivlin J, concurring [Ben Gvir].
(103) See ibid.
(104) See Carmi, "Dignity versus Liberty", supra note 2 at 348-52 (discussing obscenity in the US system).
(105) See Frederick Schauer, "The Exceptional First Amendment" in Michael Ignatieff, ed, American Exceptionalism and Human Rights (Princeton: Princeton University Press, 2005) 29 at 53-56 (discussing "methodological exceptionalism" and distinguishing between a one-step and two-step process in the adjudication of free speech).
(106) See Kol Ha'am's near certainty test (supra note 8), and discussion in Carmi, Dignity and Liberty (supra note 19 at 220-32).
(107) See Szenes, supra note 19 at para 18, Barak CJ; Mofaz, supra note 19 at para 17; Hillel Sommer, "The Unenumerated Rights: On the Scope of the Constitutional Revolution" (1997) 28 Mishpatim 257 at 320 [Sommer, "Unenumerated Rights"].
(108) HCJ 10203/03 HaMifkad HaLeumi Ltd v Attorney General et Al,  Tak-Al 2008(3) 3172 [HaMifkad HaLeumi]. The case involved a petition against the ban on political commercials on public television and radio.
(109) Ibid at para 22-26, Naor J, concurring. See also Peled, supra note 96 at 299 (criticizing Justice Naor's reasoning).
(110) HaMifkad HaLeumi, supra note 112 at paras 22-26, Naor J, concurring (referencing Movement for Quality, supra note 71 at paras 35-41, Barak CJ, concurring).
(111) HaMifkad HaLeumi, supra note 112 at para 26, Naor J, concurring.
(113) Ibid. See also Peled, supra note 96 at 299 (criticizing Justice Naor's reasoning).
(114) See generally Carmi, "Dignity versus Liberty", supra note 2 (presenting the dignity-liberty model).
(115) Canadian rulings demonstrate statistical significance (a < 0.05), while German rulings are not statistically significant but are sufficiently close to be considered as significant. Also, the lack of significance for US rulings supports the claim that American rulings lose their priority in Israeli free speech rulings.
(116) See Kamir, supra note 41 at 110-11 (noting that "human dignity" was mentioned only rive times by the Israeli Supreme Court in its rulings in 1948-1978 while it has been mentioned nearly 300 times in the period 1992-1998). See also Kretzmer, supra note 85 at 163-65; HCJ 355/79 Katalan v Detention Services,  IsrSC 34(3) 294 at 298.
(117) Kretzmer, supra note 85 at 165.
(118) See Carmi, Dignity and Liberty, supra note 19 at 304-30 (Appendix I).
(119) See Ha'aretz (supra note 14), where Justice Landau mentions human dignity, primarily in part of a draft bill of rights that eventually did hot pass. It is part of his reasoning in rejecting the New York Times v. Sullivan balancing in libel cases (376 US 254, 84 S Ct 710 (1964)). See also CrimA 677/83 Borochov v Yefet  IscSC 39(3) 205 [Borochov].
(120) See discussion in text accompanying note 69, supra (explaining that the right to reputation was derived from human dignity because in Hebrew the word "kavod" means both dignity and respect. Therefore, as part of the right to respect, human dignity is considered to encompass the right to reputation, and is therefore relevant in libel cases, where free speech struggles with the right to reputation).
(121) See HCJ 153/83 Levi v Police Commissioner Southern District,  IsrSC 38(2) 393, Barak J, online: <http://elyon1.court.gov.il> [Levi] (human dignity as a factor for balancing the right of assembly). Justice Barak also mentions protection of life and bodily integrity in the same sentence, and only mentions human dignity once. In HCJ 14/86 Laor v Review Board ( IsrSC 41(1) 421 at 433-34 [Laor]), a landmark ruling that led to the abolishment of the Theatrical Review Board, Justice Barak mentioned human dignity again, while referring to Levi, where he mentioned human dignity only once, as part of the rationale to keep the interest of "public peace". Human dignity was not mentioned as a right, and freedom of expression normally trumps it in the Court's reasoning. Chief Justice Shamgar also mentions human dignity once in his landmark Sitrin decision, which established journalist privilege (Sitrin, supra note 16 at 358-60), yet he also only mentions it once as an interest.
(122) See e.g. Cahana, supra note 16.
(124) See Carmi, Dignity and Liberty, supra note 19 at 304-30 (Appendix I).
(125) Ibid at 331-32 (Appendix III).
(126) The diagram is based upon the data gathered and presented in ibid at 304-30 (Appendix I).
(127) See e.g. Station Film, supra note 80; SHIN, supra note 22.
(128) See e.g. Golan, supra note 66; Majority Camp, supra note 44.
(129) See e.g. HCJ 2194/06 Shinui Party v Chair of Electoral Board Committee,  Tak-Al 2006(2) 4500 [Shinui].
(130) See generally Carmi, "Dignity--The Enemy from Within", supra note 85.
(131) See e.g. Szenes (supra note 19 at paras 29-30, 149, Cheshin J, dissenting) and discussion in Carmi, Dignity and Liberty, supra note 19 at 250-53 (regarding the false managerial positivistic effect that affords human dignity greater importance than before).
(132) See e.g. Mayo Moran, "Talking About Hate Speech: A Rhetorical Analysis of American and Canadian Approaches to the Regulation of Hate Speech"  6 Wis L Rev 1425 at 1426-27 ("So each of us must struggle to revivify our language, to adapt it to the changing nuances of out communal life. In so doing, we not only come to better understand our world, we also help to remake it").
(133) See ibid.
(134) Ibid at 1435.
(135) See Mordechai A Rabello & Pablo Lerner, "On the Place of Comparative Law in Israel" (2004) 21 Mechkarie Mishpat 89 at 114 (in Hebrew); George P Fletcher, "Comparative Law as a Subversive Discipline" (1998) 46:4 Am J Comp L 683 at 691 n 35 ("I should think that the most comparatively-minded countries are probably Israel and Japan"). See also Carmi, "Dignity versus Liberty", supra note 2 at 338-46 (discussing American exceptionalism and the American recoil from referring to comparative law).
(136) Rabello & Lerner, supra note 144 at 113-14. See also ibid at 116: "Israel has a language proficiency problem .... [S]ince most Israeli scholars are proficient only ha English, it is hard to expect that they will possess understanding of French or Italian law" [translated by author].
(137) See Aharon Barak, "The Israeli Legal System--Tradition and Culture" (1992) 40:2 Hapraklit 197 at 206-207 [Barak, "Tradition and Culture"] (in Hebrew).
(138) See e.g. Daniel Friedman, "Infusion of the Common Law into the Legs] System of Israel" (1975) 10 Isr L Rev 324.
(139) Up until 1980, Israeli law used the common law and British precedent in order to fill in lacunae as part of Israeli statutory law (see section 46 of the King's seal--the Palestine Order-in-Council, 1922-1947). This was changed in 1980 with the enactment of the Foundations of Law Act, 1980, SH 163: <www.knesset.gov.il/main/eng/home.asp>.
(140) See Barak, "Tradition and Culture", supra note 146 at 206-07 (claiming that Israel is shifting from a British law centre of gravity to an American law centre of gravity, yet still characterizing the Israeli legal system as a mixed legal system). See also Table I, below (demonstrating a decrease (with minor exceptions) in the number of British rulings referenced in free speech cases, simultaneously with a constant increase in references to US rulings during the period 1975-1995).
(141) The diagram is based upon the data gathered and presented in Carmi, Dignity and Liberty, supra note 19 at 304-30 (Appendix I).
(142) The statistical data on the use of US rulings by the Israeli Supreme Court is inconclusive. The lack of statistical significance (a = 0.083918) stems from the clear change in the tendency to refer to these rulings by the Court starting in the mid-1990s, following the Constitutional Revolution.
(143) The number of references to American rulings peaked in the years 1991-1995 with 113 Supreme Court free speech rulings that mentioned US cases. But the number of referenced American cases nonetheless remains high: 66 cases in 1996-2000, 98 cases in 2001-2005, and 44 cases in 2006-2008. See Diagram II.
(144) See discussion in Carmi, Dignity and Liberty, supra note 19 at 240-50 (examining whether Israel is undergoing a de-Americanization process).
(145) See Rabello & Lerner, supra note 144 at 116 [translated by author].
(146) See ibid at 117 (criticizing the "American hegemony" in the Israeli use of comparative law).
(147) See e.g. Amnon Reichman, "The Voice of America in Hebrew? The References of the Israeli Court to American Law in Free Speech Issues" in Michael D Birnhack, ed, Be Quiet, Someone is Speaking! (Tel Aviv: Tel Aviv University Press, 2006) 185; Barak, "The American Constitution", supra note 33 at 85-89.
(148) See Yoram Shachar, "The Sources of The Israeli Supreme Court 1950-2004" (2008) 50 Hapraklit 29 at 30, 65.
(149) See ibid at 65-66.
(150) Pnina Lahav, "American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?" (2009) 10:2 Theoretical Inquiries in Law 653 at 692: "A direct cause-and-effect relationship between these trends [globalization and Americanization] and American influence on Israeli legal education is hard to document, but there does seem to be a correlation."
(151) See e.g. ibid at 695: "Europe, particularly Germany, has become more attractive to Israeli scholars and educators. The meaning of this shift, if indeed it is one, is not yet clear, as it appears to be in its initial stage. Some opined that German scholarship today, or European Community scholarship, is more interesting and relevant to Israel." Lahav further remarks that another trend worth noting is the growing Israeli interest in Asia (ibid).
(152) Ibid at 696 [emphasis added].
(153) See discussion on the "constitutional cognitive dissonance" in text accompanying notes 165-66, infra.
(154) See Shachar, supra note 157 at 65.
(155) C.f. Atkins v Virginia, 536 US 304, 122 S Ct 2242 (2002) (referring to the legitimacy of the use of international and comparative law for the interpretation of the constitution regarding the constitutionality of executions of the mentally retarded); Roper v Simmons, 543 US 551, 125 S Ct 1183 (2005) (referring to the legitimacy of the use of international and comparative law for the interpretation of the constitution regarding the constitutionality of juvenile executions); Michael Ignatieff, "Introduction: American Exceptionalism and Human Rights" in Ignatieff, supra note 109, 1 at 8-9 (reviewing differ-aspects of American exceptionalism); Judith Resnik, "Law's Migration: American Exceptionalism, Silent Dialogues, and Federalism's Multiple Ports of Entry" (2006) 115:7 Yale LJ 1564.
(156) Barak, "The American Constitution", supra note 33 at 88-89: "Indeed, now, after more than forty years after Kol Ha'Am we can speak of an Israeli free speech tradition. It is fed by the American tradition. It is close to it yet different from it. It is the tradition of a people in its country.... We have examples of controlled inspiration from overseas. The American ideas go through the Israeli sifter, and in the end of the process we remain with the good and beneficial, which reflects the common [between Israel and the United States]" [translated by author].
(157) The diagram is based upon the data gathered and presented in Carmi, Dignity and Liberty, supra note 19 at 304-30 (Appendix I).
(158) For more statistical analysis see Carmi, Dignity and Liberty, supra note 19 at 331-32 (Appendix III).
(159) The table is based upon the data gathered and presented in ibid at 304-30 (Appendix I).
(160) See Leon Festinger, A Theory of Cognitive Dissonance (Stanford: Stanford University Press, 1968) at 21-24 (referring to the addition of new sources that fit the perceptions as a means to reduce cognitive dissonance).
(161) See ibid at 19-21 (referring to changes in behavioural cognitive elements and changes in environmental cognitive elements as a means to reduce cognitive dissonance).
(162) See further discussion in Carmi, Dignity and Liberty, supra note 19 at 240-50 (examining whether Israel is undergoing a de-Americanization process).
(163) CA 751/10 Dr Ilana Dayan-Orbach v Captain R (2012) [Ilana Dayan].
(164) Ibid at paras 6-15, Vogelman J, concurring.
(166) Ibid at para 19 [translated by author]. See also ibid at para 23: "As previously mentioned, British defamation laws resemble in their essence Israeli law and are considered 'plaintiff friendly' especially vis-a-vis the American law, which sanctifies freedom of speech and freedom of the press" [translated by author]. See also Tamar Gidron, "World Map of Libel Tourism and Defamation Law in Israel" (2011) 15 Hamishpat 385.
(167) See Frederick Schauer, "Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture" in Nolte, supra note 95 at 44-78 [Schauer, "Freedom of Expression Adjudication"] (relating to a growing number of Western free speech rulings in the past three decades).
(168) Ibid. There are also indications that the US Constitution has lost some of its influence worldwide. See e.g. David S Law & Mila Versteeg, "The Declining Influence of the United States Constitution" (2012) 87:3 NYU L Rev 762.
(169) See Tom Segev, The Seventh Million: The Israelis and the Holocaust, translated by Haim Watzman (New York: Hill and Wang, 1993) at 187-252 (referring to the Israeli recoil from Germany). See also Eli Zalzberger & Fania Oz-Zalzberger, "The Tradition of Freedom of Speech in Israel" in Birnhack, supra note 156, 27 at 46 (claiming that the recoil from referring to German precedent slowly faded away during the 1970s, but that in free speech rulings there is no substantial reliance on German precedent).
(170) I borrow the term cognitive dissonance from psychology. In brief, the theory of cognitive dissonance holds that contradicting cognitions serve as a driving force that compels the human mind to acquire or invent new thoughts or beliefs, or to modify existing beliefs, so as to minimize the amount of dissonance (conflict) between cognitions. See Festinger, supra note 171 at 1-27.
(171) That is true from both directions: The Israeli Supreme Court would refer to the American system to a lesser extent the more the dissimilarities among the systems increase, and will refer to other, more similar, systems to a greater extent. At the same time, the relative lack of comparative constitutional law in the American system in general, and in the field of free expression in particular, may also be explained through this prism. American exceptionalism in the field of freedom of expression makes it perfectly sensible to avoid confronting foreign conceptions of free speech that are patently incompatible with the American formulation. In these cases, the comparison with other ideas will not lead to a change and would only decrease the dissonance regarding the orthodoxy. Therefore, from a practical viewpoint, the use of comparative constitutional law in the field of US free expression is inefficient and even sometimes superfluous, due to the constitutional cognitive dissonance.
(172) See e.g. SHIN, supra note 22 at para 18, Dorner J (citing Canadian rulings); Herzikovitz, supra note 64 (ciging German rulings); Rinat, supra note 64 (same). C.f. David Fontana, "Refined Comparativism in Constitutional Law" (2001) 49:2 UCLA L Rev 539 at 618-22 (relating to the importance of language for the accessibility to comparative materials, and the concern that it would result in an "[a]nglophile refined comparativism" in the American legal setting). This fear in the American context is also backed up by the history of use of comparative sources from looking to the "canons of decency and fairness which express the notions of justice of English-speaking peoples" (ibid at 587 n 240). See also Rabello & Lerner, supra note 144.
(173) See e.g. Lee C Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (Oxford: Oxford University Press, 1986) at 76-103 (discussing the fortress model).
(174) See Schauer, "Freedom of Expression Adjudication", supra note 178 at 47, 58 n 21: "The modern era of free-speech adjudication in the Supreme Court is commonly taken to begin with a series of important 1919 cases, including Schenck v United States, ... Frohwerk v United States, ... Debs v United States, ... [and] Abrams v United States" [citations omitted]. In Israel, see Kol Ha'am, supra note 8.
(175) See Defense Regulations (Times of Crisis), IR 1442, 855, 2nd Addendum (1945); Schnitzer, supra note 10; CA 9185/03 Esther Tennenbaum v Ha'aretz Publishing Ltd,  IsrSC 58(1) 359 [Tennenbaum].
(176) See Press Ordinance, 1933, 2 LSI 1191 (Isr); Kol Ha'am, supra note 8.
(177) See Cinematography Ordinance, 1927, 1 LSI 135 (Isr); Barak-Erez, supra note 12.
(178) See Courts Act, supra note 18, art 71.
(179) See Election Act (Manners of Propaganda) 5719-1959, SH 138, online: <www.knesset.gov.il/main/eng/home.asp>; Shinui, supra note 135.
(180) See e.g. Cahana, supra note 16; Schnitzer, supra note 10.
(181) See HCJ 644/81 Omar Int'l Inc (New York) v Minister of Interior,  IsrSC 47(1) 829 [Omar Int'l] (requiring substantial danger). But see HCJ 316/03 Bakri v Israel Film Council (2003), online: <http://elyonl.court.gov.il> [Bakri] (requiring substantial harm to public sentiment).
(182) See Barak, "The American Constitution", supra note 33 at 87.
(183) See Mordechay Kremnitzer, "The Elba Case: The Law of Incitement to Racism" (1999) 30 Mishpatim 105 at 106-07; Kremnitzer & Levanon, supra note 18 at 178-80 (criticizing the application of the near certainty test in the free speech rulings of former Chief Justice Barak).
(184) See Ze'ev Segal, Free Speech: Between Myth and Reality (Tel Aviv: Papyrus, 1996) at 72 (suggesting adding the immanency requirement to the near certainty test so as to closely resemble the clear and present danger test) (in Hebrew); Avner Barak, "The Near Certainty Test in Constitutional Law" (1989) 14 Iunei Mishpat 371 (expressing a similar view for buttressing the near certainty test's requirements) (in Hebrew).
(185) The near certainty test and the Kol Ha'am case seemed to have been so entrenched in the early 1980s that Justice Dov Levin commented that "the strong and enriching words [of Justice Agranat in Kol Ha'am] have become a cornerstone in our legal system, and the principles embodied in it are acceptable among all to an extent that they should not be questioned" (HCJ 243/82 Zichroni v Broadcasting Authority,  IsrSC 37(1) 757 at 765 [translated by author]). It seems that the peak Kol Ha'am had enjoyed in the 1980s was reversed in recent years, as the analysis of Shinui (supra note 135) and Tennenbaum (supra note 186) below aptly demonstrates.
(186) Shinui, supra note 135. See also Guy Carmi, "Herut's Freedom of Expression" Editorial, Haaretz (9 March 2006) online: Haaretz <http://www.haaretz.com> (regarding a similar ruling by the Electoral Board Committee chair, Justice Beinisch, that occurred in the same week).
(187) Shinui, supra note 135 at para 13, Barak CJ, concurring [translated by author].
(188) Ibid [translated by author].
(189) Ibid at para 14, Barak CJ, concurring.
(190) See e.g. Laor, supra note 127; Omar Int'l, supra note 192; Schnitzer supra note 10.
(191) Barak could have qualified his ruling by limiting it to elections' infomercials, by referring to the Propaganda Act (supra note 190), which authorizes the Electoral Board Committee Chair to regulate political broadcasting in the period preceding an election. Yet, Barak refrained from expressly qualifying his ruling.
(192) See e.g. Schnitzer, supra note 10 at para 15; Omar Int'l, supra note 192; Bakri, supra note 192.
(193) Justice Eliezer Rivlin "Hate Speech Sui Generis?" (Speech delivered at Ono College Conference on Free Speech, 27 May 2008) [unpublished].
(194) But compare with CA 8345/08 Ben Natan v Bakri,  Tak-Al 2011(3) 1779 (denying group libel as a cause under the Defamation Act, 1965, SH 240, online: <www.knesset.gov.il/main/eng/home.asp>).
(195) The disqualification of the infomercial was done by Justice Beinisch presiding as chair of the Electoral Board Committee, which has the authority to preview elections infomercials and disqualify them as part of the Elections Act (supra note 190). The Court could have limited the ruling to that statute, but refrained from doing so.
(196) The media committed not to disclose certain information, including information regarding the private life of the abductee or details regarding his military service (Tennenbaum served as a colonel in the Israeli Defense Forces in reserve duty). The media promised to focus its coverage on the abduction's details. Therefore, there was no factual basis for the claim that such publication might endanger Tennenbaum, since the details of the abduction were already known to his abductors. See Tennenbaum, supra note 186 at 364.
(197) See ibid at 336, Or J, concurring: "We accept the lower court's position that there is no need to prove to a level of 'near certainty' the risk to Tennenbaum's life and bodily integrity, in order for the Petitioners to receive remedy [i.e., prior restraint]. We believe that due to the strength of the protected right [i.e., right to life and bodily integrity] it is sufficient that there is reasonable likelihood for infringement, in order for the Court to protect this right" [translated by author, emphasis added].
(199) But see Brandenburg v Ohio, 395 US 444, 89 S Ct 1827 (1969) (the US system has no equivalent exception for the clear and present danger requirement).
(200) See Final Report: The Governmental Investigations Committee for the 2006 Lebanon Military Campaign, Eliyahu Winograd, Chairperson (Jerusalem: The Committee, 2008) at 439-40.
(201) See e.g. Ilana Dayan, supra note 174; CrimA 5493/06 Emanuel Peled v Israeli Prison Service,  Tak-Al 2010(4) 331 [Peled].
(202) Ilana Dayan, supra note 174 at para 78, Rivlin J, concurring.
(203) Supra note 80.
(204) Chief Justice Barak referred specifically to R v Butler,  1 SCR 452, 89 DLR (4th) 449.
(205) Station Film, supra note 80.
(206) Ibid at para 11, Cheshin J, dissenting.
(207) Supra note 22. In that case, the Supreme Court upheld legislation (Amendment # 25 to the Communications Act) that prohibits the transmission of hard-core pornographic channels via cable, while interpreting the act as enabling the transmission of the Playboy Channel. For the connection between the restriction of pornography and community norms see Post, supra note 47 at 9 and passim.
(208) Communications Act, supra note 218, art 6.25(2a).
(209) See also Barak CJ's dicta in Station Film, supra note 80.
(210) See Orit Kamir, "On Pornography and Human Dignity: The Ruling Not Taken" in Birnhack, supra note 156 (in Hebrew).
(211) See American Booksellers Ass'n, Inc v Hudnut, 771 F (2d) 323 (7th Cir 1985), aff'd 475 US 1001, 106 S Ct 1172 (1986).
(212) Peled, supra note 212.
(213) Ibid at para 10 Beinisch CJ, concurring. This conclusion stands at odds with Station Film, supra note 80. It is unclear whether the standard set in Peled is applicable to the regulation of pornography in general or to its regulation in prisons in particular.
(214) Peled, supra note 212 (applies the near certainty test to limiting pornography).
(215) Ibid at para 14, Beinisch CJ, concurring.
(216) Station Film, supra note 80 at para 10, Beinisch CJ, concurring. Thus, while citing Chief Justice Barak in Station Film regarding the fact that no constitutional arrangement grants protection to obscenity, she applies the standards of the limitations clause tests on both pornography and obscenity, without differentiating the two.
(217) Peled, supra note 212 at para 11, Beinisch CJ, concurring.
(218) Ibid at para 13, Beinisch CJ, concurring [translated by author].
(219) Ibid at para 16, Beinisch CJ, concurring. C.f. Miller, supra note 42 (establishing a duty on the Israel Defense Forces to allocate resources for adapting the facilities in the air force pilot's course for women, and rejecting budgetary arguments).
(220) Ibid at para 17, Beinisch CJ, concurring.
(221) Ibid at para 2, Meltzer J, concurring.
(222) Ibid at para 5, Rubinstein J, concurring [translated by author].
(223) See supra notes 75 & 126 and accompanying text, for the different meanings of the word "kavod" in Hebrew.
(224) Ben Gvir, supra note 102.
(225) But see CA 2572/04 Fridge v Kol Hazman,  Tak-Al 2008(2) 3675 (qualifying Ben Gvir by determining that Nazi-related epithets are not automatically considered libellous).
(226) See e.g. CA 1184/06 (Nazareth District Court) Plaut v Gordon, Tak-Mach 2008(1) 11886 (2008) (plaintiff awarded 80,000 Israeli shekels plus expenses by the Magistrate Court for being called a "Judenrat wannabe"--a nickname for Jews who collaborated with the Nazis. The Nazareth Appeals Chamber reduced the compensation to 10,000 Israeli shekels, but upheld the result relying on Ben Gvir); CC 32986/03 (Tel-Aviv Magistrate Court) Boshmitz v Rephuaa Aharonovitz Anat, (2008), Almagor J (the plaintiff was awarded 100,000 Israeli shekels for being called Auschwitz-Boshmitz--a play on words that analogized him the notorious Nazi death camp).
(227) Compare Cohen v California, 403 US 15 at 25, 91 S Ct 1780 (1971), Harlan J ("one man's vulgarity is another's lyric") with [section]185 of the German Criminal Code (proscribing criminal insults).
(228) Criminal libel cases are subjected to the discretion of the attorney general, and a private criminal complaint also requires the attorney general's permission. See Prohibition of Defamation Act, supra note 205, arts 6, 8 (setting a criminal libel offence and permitting for private criminal complaint. Such complaints require the authorization of the attorney general).
(229) See private bill P/18/3642 Draft Bill Ban on Use of Nazi Insignia and Epithets (2011); private bill P/17/2656 Draft Bill Ban on Use of Nazi Insignia and Epithets (2007).
(230) See Carmi, "Dignity versus Liberty", supra note 2 at 329-38 (discussing German enforcement of civility norms). See also Guy Carmi, "Don't Call me Nazi", Opinion, Ynet News (18 November 2007) online: Ynet News <http://www.ynetnews.com> (critiquing MK Avital's draft bill as harming free speech).
(231) See ibid.
(232) Avneri, supra note 16.
(233) Ibid at 850. See also Sommer, "Unenumerated Rights", supra note 111 at 335 (quoting Avneri).
(234) See Barak, Constitutional Interpretation, supra note 63 at 427; Szenes, supra note 19 at para 29, Cheshin J, dissenting.
(235) See e.g. Ariel L Bendor, "Freedom of Defamation" (1991) 20:2-3 Mishpatim 549 at 570-73 (in Hebrew); Winograd, supra note 64 at 40.
(236) See e.g. Hamagen, supra note 76 at 185, Pilpel, J (expressing the opinion that following the enactment of Basic Law: Human Dignity and Liberty, free speech should receive lesser protection than the right to reputation, and calling for a reversal of the Avneri precedent).
(237) See e.g. Szenes, supra note 19 at 35, Cheshin J, dissenting ("[The Avneri case] warrants renewed examination for since then the Basic Law: Human Dignity and Liberty has been enacted") [translated by author]; HCJ 2316/95 Ganimat v State of Israel, IsrSC 49(4) 589, Barak CJ, concurring ("The new standing of the right to reputation (as part of the right to human dignity) may justify reexamination of judicial discretion in awarding (temporary) restraining orders that are allegedly defamatory (cf. Avneri)") [translated by author].
(238) For a recent example see Ilana Dayan, supra note 174 at para 4, Amit J, concurring (remarking that he believes that Avneri remains good law after the Constitutional Revolution). Justice Amit expressed the same opinion even before his appointment to the Supreme Court (see CC 2481/96 (Acre Magistrate Court) Suaed v Nimer Hasin, TakShal 98(3) 3408 at 3409, Amit J (same); Ori Shenhar, Defamation Law (Tel Aviv: Nevo, 1997) at 51-52 (in Hebrew) (same)).
(239) See CA 10771/04 Reshet Communications and Productions v Etinger,  IsrSC 59(3) 308 at para 11, Benish J [Etinger].
(240) Etinger (supra note 250) is a good example for how managerial arguments prevented overturning Avneri. See Carmi, Dignity and Liberty, supra note 19 at 250-53 (discussing managerial arguments).
(241) See Parts II.A-B, above; Statman, supra note 95 at 559-60, 593 (claiming that human dignity puts the emphasis on the rights of the victims and not on those of the perpetrators).
(242) Part II.C, above.
(243) See e.g. Hillel Sommer, "From Childhood to Maturity: Outstanding Issues in Implementation of the Constitutional Revolution" (2004) 1 Law and Business 60; Ahron Barak, "The Constitutional Revolution--12th Anniversary" (2004) I Law and Business 3 (both reviewing central aspects of the Constitutional Revolution for its twelfth anniversary and demonstrating how the constitutional doctrines are evolving); Ahron Barak, "The Constitutionalization of the Legal System Following the Basic Laws and its Impact on Criminal Law (Substantive and Procedural)" (1996) 13 Mechkarai Mishpat 5 (expecting a development of a "tier system" in Israeli constitutional doctrines following the Constitutional Revolution).
(244) For example, substantive due process originally protected contractual freedom and property rights (see e.g. Lochner v New York, 198 US 45, 25 S Ct 539 (1905)) and later protected rights such as privacy under modern substantive due process (see e.g. Roe v Wade, 410 US 113, 93 S Ct 705 (1973)). Similarly, the privileges and immunities clause within the Fourteenth Amendment has remained virtually dormant since Slaughter-House Cases, 83 US 36, 1872 US LEXIS 1139 (1872). Nonetheless, this clause occasionally reappeared in Supreme Court rulings (see e.g. Saenz v Roe, 526 US 489, 119 S Ct 1518 (1999)). Some scholars believe that it may be rediscovered by the Court as an additional incorporation clause. See e.g. John C Eastman, "Re-evaluating the Privileges or Immunities Clause" (2003) 6:1 Chapman L Rev 123.
(245) See also Goluboff, supra note 53 at 43-50 (referring to the "[u]ncertainties in the legal doctrine of civil rights" in the United States in the 1940s and their manner of crystallization). Much like American constitutional law in the 1940s, Israeli constitutional law is also undergoing a slow paradigm shift from doctrines that evolved via common law rulings to constitutional-documents-based doctrines that rely on the new basic laws of the 1992 Constitutional Revolution.
(246) See Majority Camp, supra note 44 and elaborated discussion in Part II.A.2, above (discussing the limits of partial incorporation).
(247) See e.g. HCJ 5688/92 Vikselbaum v Minister of Defense,  IsrSC 47(2) 812; CA 294/91 Kastenbaum v Havre Kadisha,  IsrSC 46(2) 463.
(248) See e.g. Golan, supra note 66; Majority Camp, supra note 44; Part II.A.1, above. See also Sommer, "Unenumerated Rights", supra note 111 at 377 (offering similar motives for the Court's strategy).
(249) The official English translation of the basic law contains 524 words, and the original Hebrew version contains 328 words.
(250) See Sommer, "Unenumerated Rights", supra note 111 at 291 (relating to references to the term "human dignity and liberty" as not sufficiently distinguishable from the terms "human dignity" and "liberty").
(251) See Sheleff, supra note 38 and accompanying text (referring to Leon Sheleffs view that human dignity and liberty are the two meta-values that stand at the foundation of the basic law).
(252) Basic Law: Human Dignity and Liberty, supra note 1, art 1 [emphasis added]. In a similar fashion, the basic principles clause (article 1A) implicitly refers to values linked with human dignity (the value of the human being and the sanctity of human life) and liberty (the principle that all persons are free).
(253) The distinction between articles 2 and 4 is usually construed in a way that views article 4 as rendering a positive commitment by the state to protect life. The title of article 2 is "Preservation of life, body and dignity" and the title of article 4 is "Protection of life, body and dignity."
(254) For the distinction between positive and negative rights, see Carmi, "Dignity versus Liberty", supra note 2 at 292-306 (discussing liberty and Berlin's "Two Concepts of Liberty").
(255) See Sommer, "Unenumerated Rights", supra note 111 at 309 (relating to claims that the double reference to human dignity, in articles 2 and 4 of the basic law, affords greater protection to human dignity than other rights).
(256) Basic Law: Human Dignity and Liberty, supra note 1, art 5 [translated by author, emphasis added]. The official translation is: "There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise." I have translated the ending differently to "by any other means" since I believe it is a more accurate translation.
(257) In fact, the first right to be incorporated via the due process clause in the United States was freedom of expression and not criminal due process rights: see Carmi, "Dignity versus Liberty", supra note 2 at 355-61 (discussing the incorporation hypothetical). This fact supports my claim that free speech is closely affiliated with due process, and that due process should not be confined to the criminal setting.
(258) Sommer, "Unenumerated Rights", supra note 111 at n 161.
(259) See ibid at 312-14.
(260) C.f. ibid at 294 (preferring a narrow reading of the liberty clause so that such a narrow reading could be inferred upon the human dignity clause, which he believes should be construed narrowly). My reply to Sommer would be that since the Israeli Court is reading the human dignity clause expansively, as is shown throughout this paper, a narrow reading approach to the liberty clause Would hot remedy the broad interpretation human dignity receives. On the contrary, a broad interpretation of the liberty clause can serve as a remedy by counterbalancing the rampant use (and abuse) of the human dignity clause.
(261) See ibid at 294 (calling for a symmetrical, yet narrow, interpretation to the human dignity clause and the liberty clause).
(262) See e.g. HCJ 1255/94 Bezeq v Minister of Communications,  IsrSC 49(3) 661 (holding that the interpretation of the basic laws are not subjected to the Interpretation Act, 1981, SH 302, online: <www.knesset.gov.il/main/eng/home.asp>); McCulloch v Maryland, 17 US 316 at 407, 1819 US LEXIS 320 (1819), Marshall CJ, concurring: "we must never forget that it is a constitution we are expounding" [emphasis in original].
(263) See Rehnquist, supra note 46 and accompanying text.
(264) See Basic Law: Human Dignity and Liberty, supra note 1, art 5-7. Also see e.g. Privacy Protection Act, 1981, SH 128, online: <www.knesset.gov.il/main/eng/home.asp>; Criminal Procedure Act (Enforcement Authorities--Arrests), 1996, SH 338, online: <www. knesset.gov.il/main/eng/home.asp>; Criminal Procedure Act (Enforcement Authorities-Search in the Body of a Suspect), 1996, SH 136, online: <www.knesset.gov.il/main/eng/ home.asp>. The latter two acts were passed shortly after the enactment of Basic Law: Human Dignity and Liberty (supra note 1) and were tailored to conform with its provisions.
(265) See Geoffrey R Stone et al, Constitutional Law, 4th ed (New York: Aspen, 2001) at 598-99; Frontiero v Richardson, 411 US 677 at 687, 93 S Ct 1764 (1973), Brennan J (discussing the impact of title VII of the 1964 Civil Rights Act on employment discrimination litigation based on gender).
(266) See e.g. Zemach, supra note 39; Academic Center, supra note 39.
(267) For a different view see Sommer, "Unenumerated Rights", supra note 111 at 293, n 161 (calling for a narrow interpretation of article 5's ending).
(268) Article 5 of the Basic Law: Human Dignity and Liberty, titled "Personal Liberty" deems that "[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or by any other way" (supra note 1 [translated by author, emphasis added]). Compare this with the human dignity clause phrasing, supra note 53 and accompanying text. When the two clauses are compared one against the other, the liberty clause seems to offer more fertile ground for the incorporation of unenumerated rights than the human dignity clause.
(269) See elaborate discussion in Carmi, "Dignity versus Liberty", supra note 2 at 355-61 (discussing the incorporation hypothetical).
(270) See ibid.
(271) See ibid at 341, n 447 and accompanying text.
(272) CrimA 9818/01 Bitton v Sultan,  IsrSC 59(6) 554 [Bitton].
(273) Borochov, supra note 125.
(274) 1965, SH 240, online: <www.knesset.gov.il/main/eng/home.asp>.
(275) Bitton, supra note 284 at para 11, Cheshin J, dissenting.
(276) Ibid at para 13.
(277) See ibid at para 2, Rivlin J, concurring.
(278) Ibid at paras 2-4.
(279) Ibid at para 3.
(280) Ibid at para 4 [translated by author, citations omitted].
(281) Ilana Dayan, supra note 174.
(282) See CC (Jer) 8206/06 Captain R v Dr Ilana Dayan-Orbach (2009), Solberg, J.
(283) Ibid at para 65, Rivlin J, concurring (quoting Whitney v California, 274 US 357 at 375-76 (1927), Brandeis J, concurring).
(284) Ilana Dayn, supra note 174 at para 76, Rivlin J, concurring.
(285) In Justice Rivlin's words: "[I]ndeed, free expression is a part of a person's dignity, but it is also a part of liberty, the liberty to express what is in one's heart (for a thorough and comprehensive essay on the source of the right to free speech in the value of liberty in Basic Law: Human Dignity and Liberty, see Guy E Carmi, Dignity versus Liberty: The Two Western Cultures of Free Speech 26 BU Int'l I.J 277 (2008))" (ibid at para 76) [translated by author, emphasis in original].
(286) Justice Rivlin, who is presiding as Vice-Chief Justice on the Supreme Court received his LLM from Temple University Law School in 1986. Justice Rivlin's CV is available at the Supreme Court's website: http://elyonl.court.gov.il/heb/cv/fe_html_out/judges/ k_hayim/17393234.htm.
(287) See Barak, "Protected", supra note 73 ("[l]inguistically 'human dignity and liberty' spreads upon a vast array of activities. Every action that infringes upon life, body or reputation of a person infringes 'human dignity' and every action that deprives free will infringes 'liberty'" at 259) [translated by the author]; Sommer, "Unenumerated Rights", supra note 111 at 292 (referring to Barak).
(288) See CA 2781/93 Ali Daka v Carmel Hospital,  IsrSC 53(4) 526 (incorporating autonomy via the human dignity clause); Majority Camp, supra note 44 (partially incorporating free speech via the human dignity clause).
(289) See e.g. Khalid Ghanayim, Mordechai Kremnitzer & Boaz Shnoor, Libel Law (Jerusalem: The Israel Democracy Institute, 2005) at 64-68.
(290) See ibid at 66 (claiming that free speech is included within human dignity and therefore protected by it).
(291) Under the Israeli balancing doctrine, a horizontal balancing between free speech and other protected rights is possible when the two contending rights are in conflict. The proposal to anchor the near certainty test into the future free speech clause would enable free speech to trump other rights in most conflicts. See also Carmi, "Dignity versus Liberty", supra note 2 at 264-66 (referring to the proper framing of the free speech clause), 366-71 (discussing "Balancing" in Western constitutional adjudication).
(292) See Carmi, "Dignity--The Enemy from Within", supra note 85 at 959-60 (claiming that human dignity and freedom of speech should be viewed as contending rather than harmonious values).
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.
Table I: References to Foreign Rulings in the Israeli Supreme Court Free Speech Rulings (159) Years US Australian Canadian British German Rulings Rulings Rulings Rulings Rulings Cited Cited Cited Cited Cited 1976-1978 22 0 20 0 1 1979-1981 2 0 0 0 2 1982-1984 18 0 15 0 0 1985-1987 22 0 14 3 5 1988-1990 31 0 24 3 2 1991-1993 10 0 8 2 0 1994-1996 29 6 9 10 1 1997-1999 14 3 4 6 0 2000-2002 24 0 13 9 2 2003-2005 35 4 16 10 4 2006-2008 44 0 12 12 1 Years Total Non-US Foreign Rulings Cited 1976-1978 12 1979-1981 3 1982-1984 41 1985-1987 62 1988-1990 22 1991-1993 22 1994-1996 90 1997-1999 49 2000-2002 42 2003-2005 61 2006-2008 69
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|Title Annotation:||II. Present - the Israeli Shift to Dignity-Based Free Speech Doctrine C. The Dignitization of Free Speech - Substantive Analysis through Conclusion, with footnotes, p. 829-856; Symposium: Mixed Jurisdictions|
|Author:||Carmi, Guy E.|
|Publication:||McGill Law Journal|
|Date:||Jun 1, 2012|
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