Article Volume 57:4

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

Table of Contents

McGill Law Journal ~ Revue de droit de McGill

DIGNITIZING FREE SPEECH IN ISRAEL: THE

IMPACT OF THE CONSTITUTIONAL REVOLUTION ON

FREE SPEECH PROTECTION

Guy E. Carmi *

This article examines the changes in the ap-
proach to the analysis of free speech rights in Isra-
el. It demonstrates the growing shift from the
American liberty-based influence in the 1980s to a
more dignity-based, and principally Canadian- and
German-inspired, model following the adoption of
the partial bill of rights in the 1990s. This is
demonstrated both by a statistical analysis of the
Israeli Supreme Court free speech rulings in the
past thirty years and by a substantive analysis of
recent rulings in the areas of prior restraint, por-
nography, and libel.

The statistical findings demonstrate that
while human dignity rarely played a role in free
speech rulings in the past, it plays a significant
role today. Another indication of the dignitization
process lies in the reference to foreign rulings.
Moreover, a substantive examination of the Israeli
Supreme Courts free speech rulings from the last
decade reveals the dignitization process both in
rhetoric and outcomes.

This article offers a means of strengthening
the protection that free speech receives in Israel by
divorcing the constitutional protection of free
speech from the concept of human dignity, and by
focusing on the value of liberty. This can be
achieved by the incorporation of the unenumerated
right to free speech via the liberty clause within
Basic Law: Human Dignity and Liberty.

Cet article examine les changements dans
lanalyse du droit la libert dexpression en
Isral. Il dmontre quun changement dinfluence
est en train de soprer, en passant dune approche
amricaine base sur la libert vers une approche
canadienne et allemande base sur la dignit, suite
ladoption partielle de la dclaration des droits
dans les annes 1990. Ceci est dmontr par une
analyse statistique des dcisions des trente der-
nires annes de la Cour suprme dIsral, ainsi
que par une analyse substantive des dcisions r-
centes dans les domaines de la restriction pra-
lable, de la pornographie et de la diffamation.

Les rsultats statistiques dmontrent que si
la dignit ne jouait auparavant quun rle trs li-
mit dans les dcisions, le concept joue un rle im-
portant aujourdhui. Le fait de rfrer des dci-
sions trangres est galement un indice de
ce processus de dignification . De plus, une ana-
lyse substantive des dcisions de la Cour suprme
dIsral de la dernire dcennie en matire de li-
bert dexpression permet dillustrer ce processus
de dignification, tant dans la rhtorique que dans
les rsultats.

Cet article offre un moyen de renforcer la pro-
tection de la libert dexpression en Isral, en spa-
rant la protection constitutionnelle de la libert
dexpression de celle de la dignit humaine, et en
se concentrant sur la valeur de la libert. Ceci peut
tre ralis en incorporant le droit non-crit la li-
bert dexpression par le biais de la disposition sur
la libert de la Loi fondamentale : Dignit et libert
humaines.

* 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 ONeil, A.E. Dick Howard, Ri-
sa Goluboff, Daphne Barak-Erez, Ronald Roth, Doron Shultziner, Reuven (Ruvi) Zieg-
ler, Eyal Peleg, Andrew George and Bell Shpivak. I thank all of them for their helpful
comments on earlier drafts of this article. All errors and omissions remain mine alone.

Citation: (2012) 57:4 McGill LJ 791 ~ Rfrence : (2012) 57 : 4 RD McGill 791

Guy E. Carmi 2012

792 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Introduction

I.

PastBackground: Israeli Constitutional Law and
Free Speech Protection
A. The Lack of a Formal Constitution
B. The Constitutional Revolution
C. The Current Constitutional DeadlockA Transitional

Period

II. PresentThe Israeli Shift to Dignity-Based Free

Speech Doctrine
A. The Development of Constitutional Protection of Free

Speech in the Constitutional Revolution Era
1. Three Approaches to the Incorporation of Unenumerated

Rights

2. Partial Incorporation and Its Limits

B. The Dignitization of Free SpeechAn Overview
1. The Proliferation of Human Dignity in Numbers

2. The Use of Comparative Law in Free Speech Cases

C. The Dignitization of Free SpeechSubstantive Analysis

1. Prior Restraint
2. Pornography
3. Defamation and Libel

III. FutureA Possible Solution? Divorcing Free Speech

and Human Dignity
A. Some Perspective on the Evolution of Constitutional

Interpretation

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

Clause

Conclusion

793

795
795
799

803

804

804

805
808
816
816
820
829
829
834
838

841

841
843

847

852

DIGNITIZING FREE SPEECH IN ISRAEL 793

Introduction
This article presents the dignitization process of free speech in Israel

in several ways. It demonstrates Israel’s gradual shift from a liberty-
based influence in the 1980s to a more dignity-based paradigm in the past
two decades, as evidenced in Israeli free speech rulings. In addition, it de-
scribes the growing tendency to evaluate freedom of expression in human
dignity terms.

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

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

The statistical findings clearly demonstrate that while human dignity
rarely played a role in free speech rulings in the past, it plays a significant
role today. This trend is labelled the dignitization process of free speech.
Another indication of the dignitization process lies in the reference to for-
eign rulings. Although US rulings remain a popular source for citation in
the Israeli Supreme Courts free speech rulings, the number of references
to these rulings is on the decrease. Simultaneously, German and Canadi-
an rulings are cited in growing numbers. These tendencies further indi-
cate that Israeli free speech law is increasingly inclining toward the digni-
ty-based approach to free speech through its slow disengagement from the
American influence toward a more Western, non-US approach.
Moreover, a substantive examination of the Israeli Supreme Courts
free speech rulings from the last decade reveals the dignitization process

794 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

both in rhetoric and outcomes. Three areas of free speech law are ex-
plored. Human dignity is acknowledged as a reason for invoking prior re-
straint under some conditions. It is recognized as a reason for limiting
pornography. It has also become the principal rationale in libel cases,
which have slowly begun to resemble European insult laws. These sub-
stantive examples, combined with the statistical tendencies, give a clear
picture of the dignitization process Israeli free speech law is undergoing
and unfold the paradigm shift that is not evident to the naked eye, since
the transition is in process.

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

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

This article coins the term dignitization process to describe the grow-
ing tendency to evaluate freedom of expression in human dignity terms.
This phenomenon is an important aspect of free speech in Western de-
mocracies. The articulation of free speech in terms of human dignity,

1 5752-1992, 1391 LSI 150 (1991-92) (Isr), as amended by Basic Law: Human Dignity
and Liberty – Amendment, 1994, SH 90, online: .

2 Guy E Carmi, Dignity versus Liberty: The Two Western Cultures of Free Speech

(2008) 26:2 BU Intl LJ 277 [Carmi, Dignity versus Liberty].

DIGNITIZING FREE SPEECH IN ISRAEL 795

however, is inherently problematic, and this article warns of the undesir-
able consequences of this process.

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

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

I. PastBackground: Israeli Constitutional Law and Free Speech

Protection

A. The Lack of a Formal Constitution

Attempts to enact a formal constitution in the early years following
the establishment of the state of Israel were not successful. A constituent
assembly that was established according to the Declaration of Independ-
ence reached a deadlock and was unable to produce an agreeable constitu-
tional document. This resulted in a compromise, known as the Harari De-
cision.3 Pursuant to this parliamentary decision, basic laws would be en-
acted in stages as chapters of the constitution-to-be. Basic laws were in-
deed enacted, and between 1958 and 1992 ten basic laws dealing primari-
ly with structural issues (e.g., Basic Law: The Knesset,4 Basic Law: The

3 See The Constitution, online: The Knesset .

4 5718-1958, 12 LSI 85 (1957-58) (Isr).

796 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Government,5 Basic Law: The Judiciary,6 etc.) were passed by the Knesset
(the Israeli Parliament) but, at that time, were not considered to have
special standing.7 Fundamental rights were not mentioned in these basic
laws; their protection was implemented by the courts, in particular by the
Supreme Court presiding as the High Court of Justice.
While protection of free speech has been one of the main pillars of Is-
raeli constitutional law since the early days of Israeli democracy,8 there is
no constitutional provision that deals with freedom of expression and pro-
hibits its infringement. Supreme Court rulings have created common law
protection of fundamental rights, placing freedom of expression at the top
of the protected freedoms.9 In addition, the Supreme Court has found cre-
ative ways to circumvent its lack of power to disqualify acts that infringe
upon freedom of expression. This was done primarily through interpreta-
tion that implemented high democratic standards, and through doctrines
that the Israeli Court imported, either in full or in part, principally from
the American system.10

The landmark Kol Haam case in 1953 is perhaps the most important
free speech ruling in the history of the Israeli Supreme Court.11 But the
1950s-1970s were not characterized by a robust protection of free speech.12

5 2001, SH 158, online: .
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 statutes that did not with-
stand that demand. See HCJ 98/69 Bergman v Minister of Finance and State Comptrol-
ler,
; Itzhak Zamir, Judicial Review of Statutes (1993) 1:2 Mishpat Umimshal 395
at 396.

online:

23(1),

[1969]

IsrSC

8 See HCJ 73/53 Kol Haam v Minister of Interior (1953), online: [Kol Haam].

9 See e.g. HCJ 606/93 Kidum Entrepreneurship and Publishing Ltd v The Broadcasting
Authority, [1994] IsrSC 48(2) 1 at 9 [Kidum]: Needless to say that freedom of expres-
sion stands at the top of the liberties upon which our democratic regime is founded
[translated by author, emphasis added].

10 See Kol Haam, supra note 8; HCJ 680/88 Schnitzer v The Chief Military Censor (1989),

online: [Schnitzer].

11 Kol Haam (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 1950s1970s see Daphne Barak-
Erez, The Law of Historical Films: In the Aftermath of Jenin, Jenin (2007) 16:3 S Cal
Interdis LJ 495.

DIGNITIZING FREE SPEECH IN ISRAEL 797

In fact, free speech received only moderate and partial protection during
this period in which the Court resorted primarily to British precedent.13
A shift in the development of freedom of expression rulings by the Is-
raeli Supreme Court took place from the late 1970s to the early 1990s.14
This period can be described as the golden age of freedom of expression.
During this period, the Supreme Court, led by Chief Justice Shamgar, for-
tified and strengthened freedom of expressions position to the peak of its
protection.15 In a series of rulings, the Supreme Court buttressed freedom
of speech vis–vis other fundamental rights, and the rhetoric behind the
protection of this right was at its peak.16 The Kol Haam precedent was
rediscovered after several decades of dormancy, marking a change from
the speech-restricting rulings of the early years of the establishment of Is-
rael. Most of these rulings, written by Chief Justice Meir Shamgar and
subsequently by Justice Ahron Barak, were based primarily upon US

13 Apparently the landmark decision Kol Haam (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 Haam, the Su-
preme 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 Haam LTD v
Minister of the Interior, [1953] IsrSC 7 165the first Kol Haam 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 Haam case served as the rule, during the transitional time of the 1950s
1970s, while the second Kol Haam case served as the exception.

14 First traces of the fortification of free speech in the Supreme Courts rulings can be seen
in CA 723/74 Haaretz v Israel Electric Corporation (1977), Shamgar J, online: . This decision was overturned by CFH 9/77
The Israel Electric Corporation v Haaretz (1978), online: [Haaretz]; HCJ 1/81 Shiarn v Broadcasting Authority, [1981]
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, [1989] 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, [1987] IsrSC 41(3) 255 [Ca-
hana] (protecting racist speech from prior restraint); HCJ 298/86 Sitrin v Israel Bar As-
sociation, [1987] IsrSC 41(2) 337 [Sitrin] (creating a common law journalist privilege);
Schnitzer, supra note 10 (elevating the burden for prior restraint imposed by the mili-
tary censorship). Schnitzer is considered by many to be the peak of the Supreme Courts
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).

798 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

precedents.17 This period can be characterized as structuring the right of
freedom of expression as one of the most powerful rights, if not the most
powerful one. It provided for the almost exclusive application of relatively
strict scrutiny tests18 in cases of infringement of the right of freedom of
expression.19
The right of freedom of expression was constructed and shaped by the

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

17 See rulings mentioned in previous footnote. See also Justice Shamgars dissent in

Haaretz, supra note 14.

18 The most prominent strict scrutiny test is the near certainty test from Kol Haam (su-
pra 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 ap-
plied by the courts in the 1960s (and which was amended in 2002 by the Knesset to in-
clude the near certainty test) was the criminal offence of sub judice (see CrimA 126/62
Dissenchick v Attorney-General (1963), online: ; The Courts Act, 1984, SH 198, art 71, online: [Courts Act]). See also Mordechai Kremnitzer & Liat Levanon, Free-
dom of Expression in Aharon Baraks 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: [Szenes]; EA 92/03 Shaul
Mofaz v Chairman of the Central Elections Committee, [2003] IsrSC 57(3) 793, at para
17, online: [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 Unit-
ed States and Israel (SJD Dissertation, University of Virginia School of Law, 2010) at
220-32 [unpublished][Carmi, Dignity and Liberty] (criticizing the introduction of pro-
portionality 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 Haam, supra note 8; Schnitzer, supra note 10 at paras 8-9.

DIGNITIZING FREE SPEECH IN ISRAEL 799

ill-equipped to handle legislation that directly infringes freedom of ex-
pression.22

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

Thus, the golden age period implicitly gave hierarchal priority to free-
dom of expression vis–vis other rights, despite (or maybe because of) the
lack of a formal constitution. This common law development of freedom of
expression doctrines was not constitutionally anchored and was partially
concealed due to the manner of its formation. While it has become an in-
tegral part of the Israeli legal ethos,24 it was created solely by the Su-
preme Courts rulings.

B. The Constitutional Revolution

During the 1990s, the Israeli constitutional law arena changed dra-
matically as a result of a process known as the Constitutional Revolu-
tion.25 This term generally refers to the process that started with the en-
actment of two basic laws in 1992. Basic Law: Human Dignity and Liber-
ty26 and Basic Law: Freedom of Occupation27 were the first (and so far the
only) basic laws that dealt with substantial rights.28 This partial bill of

22 See e.g. HCJ 5432/03 SHIN v Council for Cable TV and Satellite Broadcasting (2004),
online: [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, [1993] IsrSC

47(5) 189 at 201-202 [Reem].

25 The term Constitutional Revolution was coined by the Minister of Justice Dan Meri-
dor, 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 ap-
pears 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: .
28 Barak, Protected Human Rights, supra note 25.

800 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

rights lists only a handful of fundamental rights,29 and not necessarily the
most important ones.30 Attempts to include freedom of expression among
the enumerated rights in the basic laws did not bear fruit, primarily as a
result of political considerations.31 The two basic laws did not introduce
new rights and, at the time of their enactment, there was not the celebra-
tion that one might expect for a historical moment of such magnitude. The
reason for this was that the legislature did not fully understand the fu-
ture implications of the enactment of these two basic laws.32 Three years
after their enactment, the Supreme Court proclaimed these as the start-
ing point of the Constitutional Revolution, acknowledging their constitu-
tional nature and referring to them as a constitution, or at least a cripple
constitution.33

The Constitutional Revolution was not solely encompassed by the
Mizrahi case, although it is clearly the landmark ruling and is considered
to be the Israeli equivalent of Marbury v. Madison.34 The Constitutional
Revolution has been further entrenched by the Supreme Court, and its
scope has been broadened.35 For example, in Mizrahi, judicial review was
limited to the two new basic laws that protected fundamental rights.36 In

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 ob-

servance are not explicitly listed.

31 See Draft Bill Basic Law: Freedom of Expression and Association, 1994, HH, 325; Ju-
dith Karp, Basic Law: Human Dignity and LibertyA 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 [1995] 2 Israel Law Re-
ports 1, Shamgar J, online: [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 Constitu-
tion 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 Con-
stitution] (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 Ju-
dicial Review (2005) 21:1 Conn J Intl 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: [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, su-
pra note 27, art 4.

DIGNITIZING FREE SPEECH IN ISRAEL 801

the subsequent Herut ruling, the Court ruled that although there is no
written constitution, judicial review can be deployed when an act of the
legislature conflicts with a provision of any of the twelve basic laws.37
Basic Law: Human Dignity and Liberty was the centrepiece of the
Constitutional Revolution. Even its name echoed the basic values behind
it: seemingly human dignity and liberty stand at its base.38 The Courts in-
terpretive powers and wide discretion, however, could have resulted in
fostering one of these values at the expense of the other. It seems that the
Israeli Supreme Court has fostered human dignity as the leading value,
since the value of liberty and the liberty clause in article 5 of the basic law
were rarely litigated and poorly developed.39 Human dignity is not neces-
sarily superior to other values; rather, it is prominent due to the robust
manner in which the human dignity clause is perceived.40 It is not a con-
troversial value, since it alludes to Jewish traditions and heritages, such
that using human dignity rhetoric may disarm the conservative parties or
the religious parties of some of their potential criticisms.41 It is also per-
ceived as encompassing almost anything, from the right to equality,42 to

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 Ver-
sus a Possible Israeli Model in Yedidia Z Stern & Yaffa Zilbershats, eds, Law in Isra-
elA Prospective Approach (Ramat-Gan: Bar-llan 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 con-
stitutional law. He sees no need for elaboration of further rights and believes it is suffi-
cient to mention the values.

39 See e.g. HCJ 6055/95 Zemach v Minister of Defense, [1999] IsrSC 53(5) 241 [Zemach];
HCJ 2605/05 Academic Center of Law and Business v Minister of Finance (2009) at pa-
ras 20-33, Beinisch CJ, online: [Aca-
demic Center]. See also the elaborated discussion in Part III, below (regarding the pos-
sible development of a robust liberty clause jurisprudence).

40 Compare note 54 and accompanying text, infra (stating the language of the Israeli hu-
man dignity clauses) with the robust language of article 1 of the German basic law, stat-
ing 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 reli-
gious 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: [Miller].

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social rights,43 and, to a certain extent, freedom of expression.44 This over-
inclusiveness may be convenient for the Court, but it may have detri-
mental effects on some of the rights that may be read into this clause.45
Reading freedom of expression into the human dignity clause would sub-
ject this right to the burden of preserving human dignity. Speech that con-
flicts with this obligation may as a consequence become less protected.
Constitutional terminologies are vague in nature. This trait enables
courts to develop a living constitution. It is what gives the power to courts
to attach different understandings to the constitution in different times,
so these documents can endure different periods.46 Each legal system has
its own terminologies, which are a result of historically specific social ar-
rangements.47 In the Israeli context, human dignity and liberty capture
the substance of the principal constitutional values.48 The two-prong set of
ideals that are parallel to human dignity and liberty may be traced back
to the 1970s. As Mautner describes things, it appears that from the sev-
enties, two principal cultural values exist in the Israeli society which are
fundamentally in opposition: a set of values that is founded on the princi-
ples of collectivism and a set of values that is founded on the principles
individualism.49 These sets of values are analogous to the dignity and
liberty values that are apparent in current Israeli constitutional law.

43 See e.g. HCJ 366/03 Commitment to Peace and Social Justice v Minister of Finance
(2005), online: ; 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 Secu-
rity Service, [2012] Tak-Al 2012(1) 5203.

44 See HCJ 2557/05 Majority Camp v Israel Police (2006), online: [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: Maagalay Daat Publishing House, 1993) at 125 [translated by author, em-
phasis in original] (in Hebrew). See also Menachem Mautner, Law and the Culture of
Israel (Oxford: Oxford University Press, 2011).

DIGNITIZING FREE SPEECH IN ISRAEL 803

C. The Current Constitutional DeadlockA Transitional Period
It seems that the Constitutional Revolution has reached a certain

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

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

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

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 free-
dom 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 peri-
od 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).

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II. PresentThe Israeli Shift to Dignity-Based Free Speech Doctrine

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

Constitutional Revolution Era

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

Similar to the due process and equal protection clauses in the Ameri-
can Fourteenth Amendment59 and to the rechtsstaat clause in the post-
communist Polish constitution,60 the human dignity clause is the main
(and so far the only) incorporation clause for the Court to utilize in the
development of unenumerated rights. The debate on the possible incorpo-

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 be-
tween positive and negative rights, see Carmi, Dignity versus Liberty, supra note 2 at
292-306 (discussing liberty and Berlins 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 lim-
itation 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 scruti-
ny. See further discussion in Carmi, Dignity and Liberty supra note 19 at 220-32 (dis-
cussing 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 incorpora-

tion hypothetical).

60 See Mark F Brzezinski & Leszek Garlicki, Judicial Review in Post-Communist Poland:

The Emergence of a Rechtsstaat? (1995) 31:1 Stan J Intl L 13 at 35-42.

DIGNITIZING FREE SPEECH IN ISRAEL 805

ration of free speech into the basic law has taken place solely through this
clause.

1. Three Approaches to the Incorporation of Unenumerated Rights

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

61 Shortly after the enactment of the basic laws, a draft bill, which did not pass, was pro-
posed 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 [Bar-

ak, 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, [2002] IsrSC 56(4) 72
at 89-91 [Rinat]; CA 4534/02 Shoken Network Ltd v Herzikowitz, [2004] 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: [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.

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fers affords constitutional protection to unenumerated rights only to the
extent that there is a convergence between the unenumerated right and
the enumerated right, for example, between human dignity and equality
or between human dignity and freedom of speech.

The Supreme Court dealt with the possible connections between hu-
man dignity and equality shortly after the Constitutional Revolution
commenced in a number of cases that involved equality.68 One should bear
in mind that in Western constitutionalism, human dignity and equality
are strongly linked and often used as synonyms. When the Supreme
Court ruled on whether equality receives protection under the new basic
laws via the human dignity clause, it initially chose to interpret the over-
lap between the two rights as avoiding denigration. Subsequently, howev-
er, the Court expanded the constitutional protection of equality by using
the intermediate model to partially incorporate the right to equality with-
out limiting the protection of infringement of equality only to cases that
entail degrading a person per se.69

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

The three approaches demonstrated above impact the different incor-
poration options available to the justices on the Supreme Court with re-
spect to the enumeration of the right to free speech.
In the early 1990s, as Basic Law: Human Dignity and Liberty was en-

acted, the new constitutional array of rights was unclear. In particular,
the rights that received enumeration within the Constitutional Revolution
of 1992 were initially perceived as having been awarded more importance

68 See e.g. Miller, supra note 42; HCJ 453/94 Israel Womens Network v Government of Is-

rael (1994), online: .

69 In HCJ 6427/02 The Movement for Quality of Government v The Knesset, [2006] Tak-Al
2006(2) 1559, online: [Movement for Quality]
(in Hebrew), the Supreme Court clarified that the protection of equality through the in-
termediate model is the correct interpretation, but that there is no requirement for deg-
radation. The court left vague the exact contours of the right to equality which is incor-
porated 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.

DIGNITIZING FREE SPEECH IN ISRAEL 807

than before.71 Among these rights are the right to privacy72 and, of special
interest to our discussion, the right to reputation.73 The right to reputa-
tion was considered as included within the right to dignity, and calls were
made to change the balance in libel cases in order to afford greater weight
to this right vis–vis the unenumerated right to free speech. These
statements were primarily pronounced by lower courts in dicta,74 but also
in legal literature,75 and by dissenting opinions within the Supreme
Court.76
Another option for incorporation that many scholars77 and some Su-
preme Court justices have toyed with in dicta78 is the alternative of full
incorporation. Perhaps the most visible proponent of full incorporation
was Justice Mazza, who was one of the more liberal justices on the Su-
preme Courts bench during his tenure with regard to free speech.79 In Go-
lan, Justice Mazza held in dicta that freedom of expression is included

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, [1998] IsrSC
53(1) 26 at 50; Barak, Constitutional Interpretation, supra note 63 at 427. For the dif-
ferent 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, [1993] 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 in-
fluential 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: [Station Film].

79 See e.g. HCJ 2888/97 Novic v Second Broadcasting Autority, [1997] IsrSC 51(5) 193;
HCJ 8507/86 Theodore Oreen, Esq v The State of Israel, [1997] IsrSC 51(1) 269; HCJ
5118/95 Maio Simon Advertising Ltd v Second Broadcasting Autority, [1996] IsrSC
49(5) 751.

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within human dignity in the human dignity clause, and that the basic law
has anchored the recognition of past rulings into the legal standard of free
speech.80 Mazzas reasoning is consistent with content-neutral protection
of free speech, since the constitutional protection of any speech will not
depend on its type or content (i.e., hate speech, pornography, etc).
Full incorporation under the human dignity clause seems to raise dif-

ficulties, both politically and doctrinally. Politically, full incorporation
may increase tensions between the Supreme Court and the Knesset, and
the Court may be accused of rampant activism for incorporating a right
that the Knesset deliberately omitted from the basic laws.81 Doctrinally,
too, there is difficulty because the manner in which human dignity is per-
ceived in Israeli law has communitarian traits and does not focus solely
on the speakers.82
Despite the fact that full incorporation would be the strategy that best
serves the protection of free speech, it is not a silver bullet. The Constitu-
tional Revolution jurisprudence still balances rights against one another;
protected speech would therefore still be weighed against human digni-
ty.83 Thus, full incorporation would not yield results similar to the First
Amendment protection of free speech. But it is the least of all evils for
those who cherish free speech. It would provide (limited) constitutional
protection to all speech, and fortify the image of free speech protection in
Israel.

2. Partial Incorporation and Its Limits

Eventually, the Israeli Court opted for partial incorporation. The first
to suggest this was Justice Dorner in Golan. Although her reference to the

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, DignityThe 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, DignityThe 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, [1996] 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 ex-
istence secured. This is the only way that the human dignity of all her sons and daugh-
ters can be maintained. Therefore, human dignity can be infringed upon in order to
maintain a social structure that safeguards human dignity [translated by author, em-
phasis added]; David Kretzmer, Human Dignity in Israeli Jurisprudence in David
Kretzmer & Eckart Klein, eds, The Concept of Human Dignity in Human Rights Dis-
course (The Hague: Kluwer Law International, 2002) 161 at 170-71.

83 See elaborated discussion in Part III, below.

DIGNITIZING FREE SPEECH IN ISRAEL 809

issue of incorporation was made in dicta, and the later Majority Camp rul-
ing developed the issue as an integral part of the Courts judgment, it is
important to review her thinking.

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

In fact, Justice Dorner tried to apply to freedom of expression the
same reasoning that she used when incorporating equality into Basic
Law: Human Dignity and Liberty via the human dignity clause. In Miller,
Justice Dorner offered the exact same logic that she offered in Golan.87
But Dorners attempt to transplant a model that may be fit for the incor-
poration of equality into the realm of free speech raises difficulties.
Not every limitation on freedom of expression causes harm to human
dignity.88 Thus, regulation of commercial speech, for example, can hardly

84 For elaboration on the intermediate model of protection of rights see Barak, Constitu-

tional 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 Humilia-
tion? 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 denigra-
tion); 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, DignityThe Enemy from Within, supra note 85 at 982 (in text accompa-

nying notes 118-22).

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be seen as violations of the human dignity of the commercial enterprise.89
But when a free speech limitation relates to the essence of the individu-
als rights to express … herself, it involves degrading treatment that vio-
lates human dignity.90 But in cases that involve degradation of group
members, such as hate speech or pornography, this conception of human
dignity serves as a reason to curtail free speechnot to defend it. In ap-
plying these conceptions to hate speech, it may seem more appropriate to
apply human dignitys protection to the victims of the speech rather than
the racist speakers.91 This is especially true in the Israeli context, where
the rights of the speaker and the listener are balanced one against the
other.92
Under the liberty-based paradigm,93 freedom of expression would have
received full incorporation under the human dignity clause.94 Under this
approach, limiting any kind of speech infringes upon the liberty of the
speaker, regardless of its potential effects on the audience. This under-

89 Kretzmer, supra note 85 at 174; Golan, supra note 66 at paras 8-9, Dorner J. Even un-
der 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 Ameri-
can 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 Dorners 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 (Cam-
bridge: 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 determi-
nation that reputation and free speech are derived from the same mother-righthuman
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, DignityThe 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).

DIGNITIZING FREE SPEECH IN ISRAEL 811

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

Justice Dorners model for partial incorporation encompasses my fears
of the negative ramifications of reading freedom of expression into the
human dignity clause. It shows the inadequacy of the attempt to confine
freedom of expression within human dignity. Her possible model for in-
corporation was made in dicta and was later replaced by Chief Justice
Baraks ruling in Majority Camp. But the potential for Dorners interpre-
tation to determine the contours of free speech protection under the hu-
man dignity clause remains, since this protection is in many respects
shapeless.
Chief Justice Barak adopted the partial incorporation approach in a
decision rendered during his last days on the bench.96 It seems he wanted
to end speculation on the issue of whether or not freedom of expression is
incorporated into the Basic Law: Human Dignity and Liberty. He took ad-
vantage of a petition regarding the licensing of demonstrations (an issue
similar to the public forum doctrine) to briefly determine that free speech
is protected as part of the basic law. His reference to the issue of incorpo-
ration occupied only one paragraph of his judgment, and it leaves some is-
sues unresolved. Because of the importance of the analysis of his judg-
ment, the following is a translation of paragraph 13 of his ruling:
[N]ot all the aspects of the right of freedom of speech are included in
the constitutional right to human dignity, but only those aspects
that are derived from human dignity and are closely related to
those rights and values that lie at the heart of human dignity as
expressing a recognition of the autonomy of the individual will, the
freedom of choice and the freedom of action of the individual as a
free agent, or those aspects that are found in the heart of the right
to human dignity. Indeed, one should not read into the right to
dignity more than it can support. Not all rights can be derived from

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.

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an interpretation of the Basic Law: Human Dignity and Liberty …
when deriving rights that are not mentioned expressly in the Basic
Laws dealing with human rights but are included in the concept of
human dignity, it is not always possible to incorporate the whole
scope that the derived rights would have had if they had been in-
cluded separately as named rights. Determining the scope of the
right to freedom of speech as a constitutional right derived from hu-
man dignity should be done in accordance with the meaning that
should be given to the concept of human dignity. We do not need, in
this case, to discuss in detail the aspects of the right of freedom of
speech that are included in the concept of human dignity. It seems to
me that a demonstration that has a political or social background is
an expression of the autonomy of the individual will, freedom of
choice and freedom of action that are included within the scope of
human dignity as a constitutional right.97

Chief Justice Baraks ruling in Majority Camp was cautious enough to
avoid specifying the exact meaning, scale, and scope of the expression pro-
tected under this rationale. Yet his determination that political speech is
undoubtedly within this sphere is inadequately explained and requires
further analysis.
What Barak wanted to do is to ensure the protection of political
speech, which is perceived as the core of speech to which democracies af-
ford protection.98 This is a worthy cause, but Barak failed to explain exact-
ly how political speech is linked to human dignity, while at the same time
assuming that not all speech receives such protection. Political speech
normally falls under a different categorythe argument from democra-
cy.99 Baraks ruling in Majority Camp presupposes that the argument
from democracy is fully covered by human dignity. This might be true un-
der the American content-neutral perception, since the limiting of all
speech, including political speech, infringes upon the autonomy or dignity
of the speaker. However, this perception was implicitly rejected by Barak,
since he did not wish to grant protection to all speech within the frame-
work of the human dignity clause.100 From a theoretical standpoint, Bar-
aks reasoning is too brief and requires further support.

97 Majority Camp, supra note 44 at para 13, Barak CJ [emphasis added, citations omit-
ted]. Compare Movement for Quality, supra note 71 at para 41, Barak CJ, concurring
(setting similarly vague contours of constitutional defense of the right to equality).

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, DignityThe Enemy from Within, supra note 85 at 971-72
(discussing the argument from democracy); Peled, supra note 96 at 289 (putting an em-
phasis 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.

DIGNITIZING FREE SPEECH IN ISRAEL 813

Barak, in Majority Camp, tried to square the old focus on the argu-
ment from democracy with the fear from governmental censorship on the
newly emerging paradigm that focuses on human dignity. Baraks ruling
in Majority Camp makes better sense after understanding the Courts ap-
proach to free speech justifications prior to the Constitutional Revolution.
But the difficulty with Baraks reasoning is that he avoids explaining the
nexus between the argument from democracy and his quasi-argument
from dignity.101 Perhaps he preferred avoiding such discussion because he
did not have a sound theoretical basis for the logical leap in his reasoning
in paragraph 13 of his judgment. The weak link Barak made between his
quasi-argument from dignity and the argument from democracy repre-
sents a transitional period from the pre-Constitutional Revolution free
speech rulings to the new dignity-based paradigm. But as the new para-
digm becomes more established, and the link between the old and new
paradigms remains unsubstantiated, political speech is expected to re-
ceive less protection than before.
Baraks approach in Majority Camp of partial incorporation also
stands at odds with his previous approach to the scope of protection pro-
vided to free speech. In a number of cases involving hate speech, Barak
made it clear that all speech receives protection.102 While it is true that
Barak viewed protected speech not as an absolute, but as subject to bal-
ancing, he nonetheless afforded constitutional protection to all speech.103
Under the current constitutional framework, even speech that is covered
by the human dignity clause is subject to balancing, due to existing pro-
portionality requirements. If only some speech is covered by the human
dignity clause, however, then the speech that is excluded from such pro-
tection would receive even less constitutional protection. It is the equiva-
lent of categorizing hate speech as non-speech, similar to the perception of
obscenity under First Amendment jurisprudence.104
Under Baraks new approach, hate speech and other kinds of speech
that might infringe upon a persons dignity, such as pornography and li-
bel, could be more easily curtailed. Formerly, all speech received constitu-
tional protection. While it is true that this protection was not absolute,
there was only one sifter through which speech could be limited. Now

101 See Carmi, DignityThe 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, [1996] 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).

814 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

there are two sifters.105 Speech that infringes upon human dignity might
not receive any constitutional protection due to the partial incorporation
approach the Court adopted in Majority Camp. Nonetheless, the former
balancing test that enabled limiting free speech remains intact. Thus, un-
der current doctrine, speech needs to satisfy both restrictions in order to
receive constitutional protection. Now, only speech that does not confront
human dignity, and that was balanced vis–vis other constitutional
rights, is sheltered under the basic law. Furthermore, the fact that human
dignity is transformed into an internal limitation on free speech, due to
the incorporation of free speech through the human dignity clause, results
in a potentially more alarming limitation on free speech than under the
former status quo that existed prior to the Constitutional Revolution.106
Although the proponents of partial incorporation have good intentions,
and they mean to buttress freedom of expressions standing by its incorpo-
ration into the basic law, the effect of such incorporation may have the
opposite consequences. The intuition that a right that is protected by a
constitutional document is in fact stronger may be somewhat misleading.
Under current constitutional doctrines, freedom of expression already re-
ceives the same standard of review as enumerated rights under the gen-
eral limitations clause test.107 Therefore, reading freedom of expression in-
to the basic law would not substantially change the scope of protection the
right currently receives. Furthermore, if freedom of expression is confined
to the human dignity clauses boundaries, it may well be weakened, as the
analysis above clearly shows.
The attempt to tailor human dignity as a constitutional source for the

protection of free speech is still undergoing a refinement process. The Is-
raeli Supreme Court has been experimenting with this idea for several
years now but it has not yielded satisfactory results. The awkwardness of
the formulated models is concealed by terse argumentation, and a speech-
protective rhetoric that emanates from the pre-Constitutional Revolution
era. That speech-protective rhetoric, however, is slowly disappearing as
human dignity ascends. Whether it is Justice Dorners proposed model in
Golan or Chief Justice Baraks model in Majority Camp, the approaches

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 be-
tween a one-step and two-step process in the adjudication of free speech).

106 See Kol Haams 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].

DIGNITIZING FREE SPEECH IN ISRAEL 815

the Supreme Court experiments with are prone to curtailing speech when
it conflicts with human dignity.

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

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

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

108 HCJ 10203/03 HaMifkad HaLeumi Ltd v Attorney General et Al, [2008] 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 Naors 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.
112 Ibid.
113 Ibid. See also Peled, supra note 96 at 299 (criticizing Justice Naors reasoning).

816 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

B. The Dignitization of Free Speech: An Overview

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

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

1. The Proliferation of Human Dignity in Numbers

The human dignity discourse that appears throughout Israeli consti-
tutional law has even permeated the Supreme Courts free speech rulings
with increasing frequency. The proliferation of human dignity in the con-
stitutional jargon surrounding speech is clearly visible, while the increas-
ing influence of non-American legal sources in this field is evident, but is
not as evident as the rise of human dignity.115

Prior to the Constitutional Revolution, human dignity was seldom
mentioned by the Supreme Court in its rulings, and when it was men-

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. DIGNITIZING FREE SPEECH IN ISRAEL 817 tioned, it was primarily in the context of prisoners rights.116 The idea be- hind the concept of human dignity during those years was that it protect- ed vulnerable individuals against derogatory or inhumane treatment.117 In the years prior to the Constitutional Revolution, human dignity was not conceived as being related to free speech and was seldom men- tioned in Supreme Court free speech rulings. Thus, in 19751980, human dignity was mentioned only once in free speech rulings, twice in 1980 1985, and four times in 19851990.118 When examining the contents of the pre- Constitutional Revolution free speech rulings that mention human dignity, it becomes evident that human dignity did not play a role in the manner in which the Court per- ceived the right to free speech. Usually, the rare mention of dignity was in the specific context of libel cases,119 in which the relationship between free speech and dignity is relatively obvious.120 In the mid-1980s, human dig- nity started gradually to emerge as a fundamental value that ought to be balanced vis--vis freedom of expression, but even then in a limited scope and in a handful of cases.121 The constitutional discourse that preceded the Constitutional Revolution classified human dignity as just one weak 116 See Kamir, supra note 41 at 110-11 (noting that human dignity was mentioned only five times by the Israeli Supreme Court in its rulings in 19481978 while it has been mentioned nearly 300 times in the period 19921998). See also Kretzmer, supra note 85 at 163-65; HCJ 355/79 Katalan v Detention Services, [1980] 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 Haaretz (supra note 14), where Justice Landau mentions human dignity, primarily in part of a draft bill of rights that eventually did not 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 [1985] IscSC 39(3) 205 [Borochov]. 120 See discussion in text accompanying note 69, supra (explaining that the right to reputa- tion 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 consid- ered 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, [1984] IsrSC 38(2) 393, Barak J, online: [Levi] (human dignity as a factor for balanc-
ing the right of assembly). Justice Barak also mentions protection of life and bodily in-
tegrity in the same sentence, and only mentions human dignity once. In HCJ 14/86
Laor v Review Board ([1986] IsrSC 41(1) 421 at 433-34 [Laor]), a landmark ruling that
led to the abolishment of the Theatrical Review Board, Justice Barak mentioned hu-
man 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 Courts
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.

818 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

interest among others when weighed against the right to free speech.122 In
addition, the references to human dignity in these rulings were not treat-
ed as part of free speech theory per se or as an integral part of the manner
in which the Court perceived the right to free speech. Therefore, all the
judicial discourse surrounding human dignity and freedom of expression
prior to the Constitutional Revolution may be fairly characterized as inci-
dental and marginal at best.

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

Diagram I: Number of Supreme Court Rulings that Mention Human Dignity126

25

20

15

10

5

0
6 – 1

7

9

8

7

9

9 – 1

7

9

1

8

9

2 – 1

8

9

4

8

9

5 – 1

8

9

7

8

9

8 – 1

8

9

0

9

9

9

9

9

1 – 1

3

9

9

1

9

4 – 1

9

6

9

9

1

9

7 – 1

9

9

9

0

2

0 – 2

0

2

0

0

3 – 2

0

0

5

0

0

6 – 2

0

0

8

0

0

2

2

1

1

1

1

1
1

122 See e.g. Cahana, supra note 16.
123 Ibid.
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 (Appen-

dix I).

DIGNITIZING FREE SPEECH IN ISRAEL 819

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

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

The dignitization of speech raises many difficulties. First and fore-
most, the right to free speech has an independent and well-developed the-
oretical basis that has little or no correlation to human dignity.130 Second,
the manner in which human dignity is perceived under Israeli constitu-
tional jurisprudence stands at odds with the protection of many kinds of
speech, including hate speech, pornography, and libel. Third, even areas
of speech that were traditionally afforded robust protection, such as prior
restraint, are more prone to limitation under the dignity-focused legal re-
gime. Fourth, dignitizing free speech turns human dignity into an inter-
nal constraint on free speech and reduces the protected sphere of expres-
sion. Dignity-harming speech may well be categorized as non-speech,
similar to the American treatment of obscenity, and the newly formed
constitutional standards are expected to yield more speech-restrictive re-
sults. Fifth, the dignitization of Israeli constitutional law has caused the

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, [2006] Tak-Al

2006(2) 4500 [Shinui].

130 See generally Carmi, DignityThe Enemy from Within, supra note 85.

820 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

right to human dignity to receive more weight than before.131 Because the
human dignity discourse has found its way into Israeli constitutional law
in general and free speech doctrine in particular, there is an implicit new
hierarchy that places human dignity on the top, at the expense of free
speech.
The prevalent use of human dignity in the Supreme Courts free

speech rulings is equivalent to introducing new vocabulary into free
speech theory. Such introduction may even affect some of our most basic
assumptions regarding free speech.132 Mayo Morans observation that the
choice of certain terminology influences outcomes should not be taken
lightly, since such influence may be far-reaching.133 As she astutely notes,
once the issue is situated in a particular way, certain understandings ap-
pear far more plausible than others. Certain facts immediately become
relevant and thus susceptible to being found, while others appear irrele-
vant, and thus are more easily lost.134 As the Israeli example clearly
shows, acknowledging the rhetoric of human dignity in freedom of expres-
sion contexts may prove to be harmful.
All these aspects raise serious concerns as to the appropriateness of
affiliating free speech and human dignity and show why a skeptical ap-
proach is warranted. It is not too late to separate human dignity and free
speech, both theoretically and doctrinally. But in order to do so, there is a
need to demonstrate the negative impact that the current trends pose and
to offer a viable alternative.

2. The Use of Comparative Law in Free Speech Cases

Another interesting aspect of the Constitutional Revolution is its effect
on references to foreign rulings in the Supreme Courts free speech opin-
ions. The use of comparative law by Israeli courts (and especially by the
Supreme Court) is vast even when compared to other Western legal sys-
tems (including those of Europe, and especially that of the United

131 See e.g. Szenes (supra note 19 at paras 29-30, 149, Cheshin J, dissenting) and discus-
sion in Carmi, Dignity and Liberty, supra note 19 at 250-53 (regarding the false mana-
gerial 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 [1994] 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 our communal life. In so doing, we not only come to better under-
stand our world, we also help to remake it).

133 See ibid.
134 Ibid at 1435.

DIGNITIZING FREE SPEECH IN ISRAEL 821

States).135 The Anglo-American system seems most popular among Israeli
judges. The primary reason for this lies in language and accessibility to
materials. Most judges and legal clerks are not fluent in materials written
in other European languages, and it is therefore expected that they use
English or American sources.136 Although Israel is considered to be a
mixed legal system,137 it rests more closely with the common law influ-
ence, which has greater impact on Israeli law than does continental law.
After all, the state of Israel was preceded by a British rule with a common
law legacy, and this affected the formation of Israeli law.138 The resem-
blance of Israeli law to the common law has been expressed through reli-
ance on British precedent,139 but in the 1970s and 1980s, the British influ-
ence diminished and Israeli law began embracing an American influ-
ence.140

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 in English, it is
hard to expect that they will possess understanding of French or Italian law [translat-
ed by author].

137 See Aharon Barak, The Israeli Legal SystemTradition 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 Legal System of Isra-

el (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 Kings sealthe Palestine
Order-in-Council, 1922-1947). This was changed in 1980 with the enactment of the
Foundations of Law Act, 1980, SH 163: .

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 rul-
ings referenced in free speech cases, simultaneously with a constant increase in refer-
ences to US rulings during the period 19751995).

822 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Diagram II: References to US Rulings in Israeli Supreme Courts Free Speech
Rulings141

100

90

80

70

60

50

40

30

20

10

0
6 – 1

7

9

1

9

8

9

7

1

9

9 – 1

7

1

9

8

1

9

2 – 1

8

4

9

8

1

9

5 – 1

8

7

9

8

1

9

8 – 1

8

0

9

9

1

9

1 – 1

9

3

9

9

1

9

4 – 1

9

6

9

9

1

9

7 – 1

9

9

0

9

2

0

0 – 2

0

2

0

0

2

0

3 – 2

0

5

0

0

2

8

0

0

6 – 2

0

Following the Constitutional Revolution, the references to US prece-
dent has declined, but it still remains the most cited legal system in the
Supreme Courts rulings. The increased tendency to resort to US rulings
prior to the Constitutional Revolution changed as the Constitutional Rev-
olution became more established.142 The renewed rise in the number of
references in recent years still lags behind the significant reliance on US
rulings in the early and mid-1990s.143 While it is too early to eulogize
American influence on Israeli free speech law, it is clear that its golden
age has passed.144
Analyzing the Americanization or de-Americanization processes of Is-
raeli law is a challenging task, since evaluating the effects that American

141 The diagram is based upon the data gathered and presented in Carmi, Dignity and Lib-

erty, supra note 19 at 304-30 (Appendix I).

142 The statistical data on the use of US rulings by the Israeli Supreme Court is inconclu-
sive. 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 19911995 with 113
Supreme Court free speech rulings that mentioned US cases. But the number of refer-
enced American cases nonetheless remains high: 66 cases in 19962000, 98 cases in
20012005, 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).

DIGNITIZING FREE SPEECH IN ISRAEL 823

law has had on the Israeli legal system varies from one context to another
and because the common perceptions regarding the actual effects of Amer-
ican law on Israeli law are sometimes inaccurate. The centrality of Ameri-
can law in Israel may seem, to some, well entrenched. As Rabello and
Lerner observe, most Israeli scholars almost completely ignore the Europe-
an Continental legal tradition. In fact, American Law is becoming an inte-
gral part of the legal thinking of a large number of Israeli scholars.145 It is
the American hegemony in many fields of law that impedes the utilization of
comparative law.146 The reason for this hegemony is that a large part of Is-
raeli law is fed almost exclusively from American legal literature.147

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

For example, Lahav examines the American influence on the teaching
of law in Israel.150 In her study, she demonstrates how Israeli law schools
came to resemble elite American law schools in a gradual process that
peaked in the 1990s, but that this similarity is currently on the decline.
She identifies Germany as the primary alternative source of influence.151

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 Is-
raeli Court to American Law in Free Speech Issues in Michael D Birnhack, ed, Be Qui-
et, 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 doc-
ument, but there does seem to be a correlation.

151 See e.g. ibid at 695: Europe, particularly Germany, has become more attractive to Is-
raeli 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 to-
day, 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).

824 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Lahav correctly observes that [t]he turn of de-Americanization, if a turn
it is, is something to observe and follow before any solid conclusions may
be drawn.152

Furthermore, Israel is gaining maturity and independence. This is ex-
pressed in greater self-reliance and less dependence on external sources
as a growing body of Israeli law is at hand for judges and scholars who
wish to develop Israeli free speech law. According to Shachar, the tenden-
cy to rely on domestic sources is on the rise, and reliance on foreign
sources is on the decline, especially in the area of public law (which is par-
ticularly relevant to free speech).
Contrary to the views described above, Shachar has made interesting
findings regarding the references by the Supreme Court to American
sources. While in areas of criminal and civil law, the rate of American in-
fluence has been uneven, in the area of public law, the rate has been
steady when compared to other common law sources. Shachar claims that
when the Israeli justices sought sources for constitutional inspiration, it
was only natural that they looked to the United States. But these findings
are not consistent with the observation that American influence on free
speech, which is a subcategory of public law, has waned in recent years.
The most reasonable explanation for this disparity is that while the Unit-
ed States remained influential in the area of public law, in the area of free
speech, the dissonance between First Amendment doctrine and the newly
emerging dignity-based paradigm led to less reliance on US sources.153

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

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 Sim-
mons, 543 US 551, 125 S Ct 1183 (2005) (referring to the legitimacy of the use of inter-
national and comparative law for the interpretation of the constitution regarding the
constitutionality of juvenile executions); Michael Ignatieff, Introduction: American Ex-
ceptionalism and Human Rights in Ignatieff, supra note 109, 1 at 8-9 (reviewing differ-

DIGNITIZING FREE SPEECH IN ISRAEL 825

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

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

Diagram III: References to German and Canadian Rulings in Israeli Supreme Courts
Free Speech Rulings157

14

12

10

8

6

4

2

CanadianRulings
GermanRulings

0
6 – 1

7

9

1

7

8

7

9

9

1

9 – 1

1

8

8

9

9

1

2 – 1

1

9

9

8

4

8

5 – 1

8

7

8

9

9

1

8 – 1

0

9

9

9

9

1

1 – 1

9

3

9

9

9

1

4 – 1

9

6

9

9

9

1

7 – 1

9

9

0

9

0

2

0 – 2

2

0

0

0

0

2

3 – 2

0

5

0

0

0

2

6 – 2

8

0

0

ent aspects of American exceptionalism); Judith Resnik, Laws Migration: American
Exceptionalism, Silent Dialogues, and Federalisms 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 HaAm 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 Lib-

erty, supra note 19 at 304-30 (Appendix I).

826 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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

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

Years

US

Rulings
Cited

Australian
Rulings
Cited

Canadian
Rulings
Cited

British
Rulings
Cited

German
Rulings
Cited

Total Non-

US

Foreign
Rulings
Cited

1976-1978
1979-1981
1982-1984
1985-1987
1988-1990
1991-1993
1994-1996
1997-1999
2000-2002
2003-2005
2006-2008

22
2
18
22
31
10
29
14
24
35
44

0
0
0
0
0
0
6
3
0
4
0

20
0
15
14
24
8
9
4
13
16
12

0
0
0
3
3
2
10
6
9
10
12

1
2
0
5
2
0
1
0
2
4
1

12
3
41
62
22
22
90
49
42
61
69

The increasing references to Western, non-US sources,160 coupled with
the decrease in citations to US sources,161 serve as further indication of
the slow detachment Israeli free speech law is undergoing from US guid-
ance and the liberty-based paradigm. Instead, the rulings of the Israeli
Supreme Court are starting to reflect the dignity-based approach that is

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).

DIGNITIZING FREE SPEECH IN ISRAEL 827

common to the other Western, non-US rulings. The paradigm shift is not
yet complete, but it is clearly in process. The pendulum is indeed swinging
toward the German dignity-based approach and moving away from the
American liberty-based approach.162
A recent and interesting example can be found in Ilana Dayan v. Cap-
tain R.163 Justice Rivlin resorted primarily to US precedent in a very
speech-protective ruling. However, Justice Vogelman, who wrote a con-
curring opinion, resorted primarily to case law from the United Kingdom
and other Western jurisdictions (such as Australia, New Zealand, and
Canada).164 In Justice Vogelmans opinion, British rulings were more rele-
vant to the interpretation of the Israeli Defamation Act than US rulings,
because the act bears greater resemblance to British law than to US
law.165 Justice Vogelman further noted that although in recent decades
there is a tendency to prefer free speech to reputation, it is not the adop-
tion of a monolithic approach like in the American system.166

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

162 See further discussion in Carmi, Dignity and Liberty, supra note 19 at 240-50 (examin-

ing 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.
165 Ibid.
166 Ibid at para 19 [translated by author]. See also ibid at para 23: As previously men-
tioned, British defamation laws resemble in their essence Israeli law and are consid-
ered plaintiff friendly especially vis–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 Unit-
ed States Constitution (2012) 87:3 NYU L Rev 762.

828 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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

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

portation of American doctrines into Israeli law is questionable and would

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 Ameri-
can 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 sensi-
ble to avoid confronting foreign conceptions of free speech that are patently incompati-
ble 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.

DIGNITIZING FREE SPEECH IN ISRAEL 829

require greater adaptation. Furthermore, it may lead to forsaking the
American system as the main source of inspiration in freedom of expres-
sion issues and replacing it with other systems that are more compatible
with Israeli doctrines, such as those from Canada and Germany. Among
those legal systems, Canada would probably serve as a principal source
due to the greater familiarity of Israeli jurists with the English lan-
guage.172

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

C. The Dignitization of Free SpeechSubstantive Analysis

1. Prior Restraint

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

172 See e.g. SHIN, supra note 22 at para 18, Dorner J (citing Canadian rulings); Her-
zikovitz, supra note 64 (citing 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 compara-
tivism 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 [ci-
tations omitted]. In Israel, see Kol Haam, supra note 8.

830 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

Israel has several statutes that enable prior restraint through military
censorship,175 newspaper licensing,176 a public film review board,177 sub ju-
dice,178 and an electoral board committee in cases of political advertise-
ment in times of elections,179 to name a few examples. In the 1980s, the
Supreme Courts 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 testthe 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 Haam.182 It resembles the US test, alt-
hough 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 proba-
bility 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 strin-
gent, comparable to the strict scrutiny standard in the United States.

175 See Defense Regulations (Times of Crisis), IR 1442, 855, 2nd Addendum (1945);
Schnitzer, supra note 10; CA 9185/03 Esther Tennenbaum v Haaretz Publishing Ltd,
[2003] IsrSC 58(1) 359 [Tennenbaum].

176 See Press Ordinance, 1933, 2 LSI 1191 (Isr); Kol Haam, 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: ; Shinui, supra note 135.

180 See e.g. Cahana, supra note 16; Schnitzer, supra note 10.
181 See HCJ 644/81 Omar Intl Inc (New York) v Minister of Interior, [1981] IsrSC 47(1) 829
[Omar Intl] (requiring substantial danger). But see HCJ 316/03 Bakri v Israel Film
Council (2003), online: [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 (criticiz-
ing the application of the near certainty test in the free speech rulings of former Chief
Justice Barak).

184 See Zeev 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 close-
ly 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 simi-
lar view for buttressing the near certainty tests requirements) (in Hebrew).

DIGNITIZING FREE SPEECH IN ISRAEL 831

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 asso-
ciated with human dignity. Instead, human dignity seems to have taken
the lead. The following examples demonstrate the slow, almost impercep-
tible, 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 Or-
thodox 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 Jews 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 Committees chair was appealed to the Supreme Court presiding as
the High Court of Justice, which upheld the decision to ban the infomer-
cial.
Although the speech involved in this case was purely political and in-
tended to advance the platform and agenda of a legal party, the Court pre-
ferred banning the speech because of its offensive nature. The main ra-
tionale for the Courts 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 senti-
ment 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 pub-
lic sentiment amounts to denigration, humiliation, and a harsh insult to

185 The near certainty test and the Kol Haam 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 Haam] 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, [1983] IsrSC 37(1)
757 at 765 [translated by author]). It seems that the peak Kol Haam had enjoyed in the
1980s was reversed in recent years, as the analysis of Shinui (supra note 135) and Ten-
nenbaum (supra note 186) below aptly demonstrates.

186 Shinui, supra note 135. See also Guy Carmi, Heruts Freedom of Expression Editorial,
Haaretz (9 March 2006) online: Haaretz (regarding a similar
ruling by the Electoral Board Committee chair, Justice Beinisch, that occurred in the
same week).

832 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

human dignity.187 Barak seemingly qualified the limitation of free speech
by saying that in a pluralistic society, the exchange of hurtful views is de-
sirable. 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 digni-
ty 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 Haam represents the peak of the com-
mon law protection of free speech formed in the pre-Constitutional Revo-
lution era. Its highlight is the near certainty testthe 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 Haam, 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 over-
turned Kol Haam or simply narrowed the Kol Haam ruling due to hu-
man dignity concerns.191 The latter possibility means that Barak broad-
ened the exception of the near certainty test, which permits the re-
striction 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 tend-
ed 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 infringe-
ment of human dignity and situations where certain groups would be of-

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 Intl, supra note 192; Schnitzer supra note 10.
191 Barak could have qualified his ruling by limiting it to elections infomercials, by refer-
ring 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 Intl, 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].

DIGNITIZING FREE SPEECH IN ISRAEL 833

fended.194 Justice Barak did not limit his ruling to the specific context of
political campaigns, although he could have.195 Shinui represents a para-
digm shift toward the further limitation of speech due to human dignity
concerns in the area of free speech that traditionally receives the highest
protectionthe prior restraint of political speech.
Kol Haams near certainty test suffered another blow in Tennenbaum.
In this case, the family of Elhanan Tenenbaum, who was then held cap-
tive by Hezbollah, petitioned for a media ban on the details of the abduc-
tion. The family feared that the details might endanger the abductees
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: Hu-
man 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

194 But compare with CA 8345/08 Ben Natan v Bakri, [2011] Tak-Al 2011(3) 1779 (denying
group libel as a cause under the Defamation Act, 1965, SH 240, online: ).

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 info-
mercials 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 regard-
ing the private life of the abductee or details regarding his military service (Tennen-
baum served as a colonel in the Israeli Defense Forces in reserve duty). The media
promised to focus its coverage on the abductions details. Therefore, there was no factu-
al basis for the claim that such publication might endanger Tennenbaum, since the de-
tails 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 courts position that there is no
need to prove to a level of near certainty the risk to Tennenbaums life and bodily in-
tegrity, 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].

198 Ibid.
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).

834 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

direct result of the Constitutional Revolution and the dignitization pro-
cess that free speech is undergoing in Israel.
A final example of the legal atmosphere in Israel that wishes to re-
place the near certainty test with a more speech-restrictive standard of
review can be seen in the recommendations of the official inquiry commit-
tee for the Second Lebanon War, headed by former judge Eliyahu
Vinograd. The committee, comprised of several leading jurists, recom-
mended overturning the Shnitzer ruling that fixed the near certainty test
for military censorship with a preponderance of evidence test of reasona-
ble likelihood. This would enable military censorship on a whim.200 The
committee claimed that under the current strict standard, national secu-
rity 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 ex-
tent as in the 1980s, and other issues, such as national security, public
sentiment, and preserving the human dignity of minorities receive greater
importance than before.

2. Pornography

Another area of free speech that was affected by the Constitutional
Revolution is the treatment of pornography. The rulings from the past
two decades have classified pornography as speech with low social value,
which impinges upon the dignity of women and therefore deserves weak-
ened protection.201 As Justice Rivlin recently noted: Not all speech is born
equal, and the level of protection freedom of speech is afforded is influ-
enced by, inter alia, the type of speech and its characteristics.202 The fol-
lowing 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 Re-
view Board to omit several sections from Nagisa Oshimas film In the

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, [2010] Tak-Al 2010(4) 331 [Peled].

202 Ilana Dayan, supra note 174 at para 78, Rivlin J, concurring.
203 Supra note 80.

DIGNITIZING FREE SPEECH IN ISRAEL 835

Realm of the Senses, which were regarded as degrading to women. The
Court reversed the Film Review Boards 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 Jus-
tice Barak, referring also to Canadian precedents,204 claimed that
offensiveness may justify restricting freedom of expression if it ex-
ceeds the standard of social tolerance. … Such harm can justify re-
stricting 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 vio-
lence, particularly towards women.205

Justice Cheshin also mentioned that the grounds for restricting pornogra-
phy may also be linked to the degradation of human dignity, and especial-
ly womens 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 pro-
tection of public feelings and womens 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 ex-
plained 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

204 Chief Justice Barak referred specifically to R v Butler, [1992] 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 Play-
boy Channel. For the connection between the restriction of pornography and communi-
ty norms see Post, supra note 47 at 9 and passim.
208 Communications Act, supra note 218, art 6.25(2a).
209 See also Barak CJs 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).

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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 Peleds petition and
found the regulations banning pornography to be reasonable and within
the prisoner authoritys jurisdiction. Peled appealed to the Supreme
Court, and was represented by the Public Defenders Office.
Chief Justice Beinisch upheld the regulations and rejected the appeal.
Although Peled argued that the relevant constitutional standard for in-
fringement of his right to be subjected to pornography is the near certain-
ty 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 limita-
tions clause test. This choice is odd, since the application of probability
tests in prior restraint is the norm,214 and there was precedent that ena-
bled lax application of such standards, especially in the setting of a pris-
on.215
Chief Justice Beinisch mixed pornography and obscenity in her rea-
soning, 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

211 See American Booksellers Assn, Inc v Hudnut, 771 F (2d) 323 (7th Cir 1985), affd 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 arrange-
ment 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.

DIGNITIZING FREE SPEECH IN ISRAEL 837

of the limitations clause tests was met by the advancement of social val-
ues, 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 al-
locate 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 pornogra-
phy 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 pris-
ons.221 The fact that this issue has a vast array of solutions among West-
ern 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 stand-
point. He remarked that, according to precedent, pornography is an infe-
rior 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.

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 pilots 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].

838 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

3. Defamation and Libel

Defamation and libel cases usually involve infringement of a persons
honour. Since in Hebrew honour is one of the possible meanings of hu-
man dignity,223 the same human dignity clause would have contradicting
influences: protecting free speech on the one hand and protecting the rep-
utation 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 equilibri-
um 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 argu-
ing with Itamar Ben-Gvir, a right-wing activist. Ben-Gvir sued for defa-
mation. 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 circum-
stances of the case, which involved two Jews who were not using these ep-
ithets 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 some-
what 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

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, [2008] Tak-Al 2008(2) 3675 (qualifying Ben
Gvir by determining that Nazi-related epithets are not automatically considered libel-
lous).

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

DIGNITIZING FREE SPEECH IN ISRAEL 839

The Court afforded a civil remedy for insults and turned the Preven-
tion 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 con-
tains criminal libel provisions. Thus, Dankner v. Ben Gvir indirectly ena-
bles 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 imprison-
ment.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 del-
icate 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 li-
bel 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

for being called a Judenrat wannabea 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-Boshmitza 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
mans vulgarity is anothers lyric) with 185 of the German Criminal Code (proscribing
criminal insults).

228 Criminal libel cases are subjected to the discretion of the attorney general, and a pri-
vate criminal complaint also requires the attorney generals permission. See Prohibition
of Defamation Act, supra note 205, arts 6, 8 (setting a criminal libel offence and permit-
ting for private criminal complaint. Such complaints require the authorization of the at-
torney 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 en-
forcement of civility norms). See also Guy Carmi, Dont Call me Nazi, Opinion, Ynet
News (18 November 2007) online: Ynet News (critiquing
MK Avitals draft bill as harming free speech).

231 See ibid.
232 Avneri, supra note 16.

840 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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 ones reputa-
tion 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–vis freedom of expression. Although some believe that Avneri remains
good law following the Constitutional Revolution,238 and Avneri was not offi-
cially 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

233 Ibid at 860. 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 award-
ing (temporary) restraining orders that are allegedly defamatory (cf. Avneri)) [translat-
ed 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 Rev-
olution). 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, Tak-
Shal 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, [2004] 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 (discuss-
ing managerial arguments).

DIGNITIZING FREE SPEECH IN ISRAEL 841

***

As demonstrated above, human dignity serves as a channel to incorpo-
rate community norms into the constitutional arena. Whether by enforc-
ing the majoritys morals when it comes to the harming of public senti-
ments 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 counter-
balance to liberal norms, and may lead to restrictions on speech that of-
fends a persons honour, such as in libel cases.242

III. FutureA Possible Solution? Divorcing Free Speech and Human

Dignity

A. Some Perspective on the Evolution of Constitutional Interpretation

Israel is a relatively young country. In the sixty years since its estab-
lishment, 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 constitu-
tional law is currently undergoing substantial change.243 It is too early to
tell if existing doctrines will mature into reliable precedents in the future.
When looking at American constitutional history, it took dozens of years
for existing doctrines to evolve.244 Israeli constitutional law is still in the

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 perpetra-
tors).

242 Part II.C, above.
243 See e.g. Hillel Sommer, From Childhood to Maturity: Outstanding Issues in Imple-
mentation of the Constitutional Revolution (2004) 1 Law and Business 60; Ahron Bar-
ak, The Constitutional Revolution12th Anniversary (2004) 1 Law and Business 3
(both reviewing central aspects of the Constitutional Revolution for its twelfth anniver-
sary and demonstrating how the constitutional doctrines are evolving); Ahron Barak,
The Constitutionalization of the Legal System Following the Basic Laws and its Im-
pact 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-

842 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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 speechs 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 Con-
stitutional 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 stra-
tegic viewpoint, and the short-run considerations that led to the use of
this approach are harmful in the long run. The justices who supported in-
corporating 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

House Cases, 83 US 36, 1872 US LEXIS 1139 (1872). Nonetheless, this clause occasion-
ally 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 addi-
tional 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 crystalli-
zation). 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 (dis-

cussing the limits of partial incorporation).

247 See e.g. HCJ 5688/92 Vikselbaum v Minister of Defense, [1993] IsrSC 47(2) 812; CA

294/91 Kastenbaum v Havre Kadisha, [1992] IsrSC 46(2) 463.

248 See e.g. Golan, supra note 66; Majority Camp, supra note 44; Part II.A.1, above. See al-
so Sommer, Unenumerated Rights, supra note 111 at 377 (offering similar motives for
the Courts strategy).

DIGNITIZING FREE SPEECH IN ISRAEL 843

better served the purpose of buttressing freedom of expression. The pro-
posal 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 ex-
ception of the specific clauses that enumerate human dignity and liber-
ty.250 The title of the basic law itself references human dignity and liber-
ty.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 en-
titled 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-

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 sim-
ilar 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 Berlins Two Concepts of Lib-
erty).

844 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

in the constitutional text of the basic law that enumerates human dignity
twice and liberty only once should not be misconstrued as affording great-
er 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 depri-
vation 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 Sommers narrow approach is inadequate for two
primary reasons. First, Sommer is consistent with his call to give a nar-
row interpretation to human dignity as well as to liberty, since he believes
that it is not the role of the Court to incorporate rights that were deliber-
ately omitted by the Knesset only several years ago.259 This claim is
strong, but it disregards the Courts 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

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, em-
phasis 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 trans-
lated 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 ver-
sus 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 read-
ing the human dignity clause expansively, as is shown throughout this paper, a narrow
reading approach to the liberty clause would not remedy the broad interpretation hu-
man dignity receives. On the contrary, a broad interpretation of the liberty clause can

DIGNITIZING FREE SPEECH IN ISRAEL 845

Basic Law has been done after Sommers 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 interpreta-
tion.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–
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 litiga-
tion of womens 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

serve as a remedy by counterbalancing the rampant use (and abuse) of the human dig-
nity clause.

261 See ibid at 294 (calling for a symmetrical, yet narrow, interpretation to the human dig-

nity clause and the liberty clause).

262 See e.g. HCJ 1255/94 Bezeq v Minister of Communications, [1994] IsrSC 49(3) 661
(holding that the interpretation of the basic laws are not subjected to the Interpretation
Act, 1981, SH 302, online: ); 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: ; Crimi-
nal Procedure Act (Enforcement Authorities Arrests), 1996, SH 338, online: ; Criminal Procedure Act (Enforcement Authorities
Search in the Body of a Suspect), 1996, SH 136, online: . 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 provi-
sions.

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 (dis-
cussing the impact of title VII of the 1964 Civil Rights Act on employment discrimina-
tion litigation based on gender).

846 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

revolved around criminal procedure issues, such as arrests, and for the
aforementioned reasons, to a limited extent.266 It is true that the clauses
language suggests that it applies primarily to criminal due process issues,
but its language does not block a possible wider understanding of the arti-
cles scope.267 Surely, when comparing it to the language of the human
dignity clause, this broader reading does not seem far-fetched and is espe-
cially 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 in-
terpretation 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 incorpora-
tion of other rights into the Israeli constitutional documents. The liberty
clause can serve as an adequate tool for the incorporation of other un-
enumerated 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 incorporat-
ing free speech via the equivalent of the due process clause.269 The link be-
tween free speech and due process is self-evident and natural. Further-
more, the characteristics of equal protection that are applicable to free
speech protection, such as content neutrality, are inapplicable to the hu-
man 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 curtail-
ing potential, which makes it a problematic incorporation vehicle.

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 5s 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 impris-
onment, 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.

DIGNITIZING FREE SPEECH IN ISRAEL 847

If the US experience can teach us something, it is that at least intui-
tively, 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 Four-
teenth 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 digni-
ty, 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 be-
tween 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 expe-
rience to the extent that it is relevant and appropriate.
Hopefully the discussion herein will promote the awareness of the im-
portance of such a doctrinal development. As a matter of principle, it
would be much more preferable to read the unenumerated right of free-
dom of expression through the liberty clause rather than its human digni-
ty 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 incorpora-
tion 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 peti-

tions to appeal on private criminal libel complaints. First, the Israeli crim-
inal 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

271 See ibid at 341, n 447 and accompanying text.
272 CrimA 9818/01 Bitton v Sultan, [2005] IsrSC 59(6) 554 [Bitton].
273 Borochov, supra note 125.
274 1965, SH 240, online: .

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criminal libel should be changed to include a presumption of intent. Se-
cond, the Borochov precedent was decided before the Constitutional Revo-
lution. 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 alt-
hough 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 rele-
vant 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 in-
volved criminal libel, and a conviction in such an offence may deprive per-
sonal 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 stand-
ards should be more speech restrictive following the Constitutional Revo-
lution.275 Justice Cheshin further claimed that the resort to personal free-
dom, via the interest of public peace, is begging the obvious.276 To a cer-
tain extent, Justice Cheshin was right in his remark that the link be-
tween the personal freedom guarantee in article 5 of the basic law and
protecting free speech in criminal libel cases was relatively weak and un-
substantiated. In the way it was argued by Chief Justice Barak, it could
have been applied to any criminal offence, but this constitutional dis-
course 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 lib-
erty and criminal libel. Justice Rivlins opinion deserves attention. He fo-
cused on the criminal sanction that may cause deprivation of freedom as

275 Bitton, supra note 284 at para 11, Cheshin J, dissenting.
276 Ibid at para 13.

DIGNITIZING FREE SPEECH IN ISRAEL 849

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 Cheshins dissenting opinion and
criticized Cheshins 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 free-
dom, as far as the criminal sanction within Article 6 [of the defama-
tion Act] goes, and opposing them is the right to reputation. There-
fore, the balancing point [between free speech and defamation] is
drawn to the accumulating mass of freedom.280

The limits of Justice Rivlins reasoning in Bitton are obvious, since the
protection of free speech via personal liberty is confined to a criminal set-
ting. 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 Rivlins 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 incor-
poration 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 com-
pany 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. Ac-
cording to some newspaper accounts, Captain R. emptied a rifle magazine

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.

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on the girl to verify her killing. A reporter aired a story attributing re-
sponsibility to Captain R., while also showing him to be indifferent to the
girls 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 courts 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 Rivlins 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 con-
ventional wisdom concerning the foundations of constitutional protection
of free speech via the human dignity clause, and, in particular, the balanc-
ing of free speech and reputation, both of which derive from human digni-
ty.284 But this time, Justice Rivlin recognized free speech as a part of liber-
ty and did not confine the rationale of liberty to the criminal aspects of li-
bel (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 jurispru-
dence 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 Ri-
vlin, the most speech-friendly member of the Supreme Court, who re-
ceived 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.

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 Rivlins words: [I]ndeed, free expression is a part of a persons dignity, but it
is also a part of liberty, the liberty to express what is in ones 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 Intl LJ 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 Rivlins CV is available at
the Supreme Courts website: http://elyon1.court.gov.il/heb/cv/fe_html_out/judges/
k_hayim/17393234.htm.

DIGNITIZING FREE SPEECH IN ISRAEL 851

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 preva-
lent option of the human dignity clause. Thus, Chief Justice Baraks early
writings that mentioned the liberty clause as an incorporation channel for
free speech and autonomy were left undeveloped.287 Eventually, the Su-
preme Court implicitly rejected these ideas, when it decided to incorpo-
rate autonomy and free speech via the human dignity clause.288 Chief Jus-
tice Barak himself abandoned these ideas when he chose partial incorpo-
ration 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 underdevel-
oped. 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 diffi-
culties 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 dis-
tinct advantages. First, all speech would to receive protection under this
incorporation strategy. As shown above, not all speech conforms with hu-
man dignity, but all speech receives protection as part of the protection of
liberty. Majority Camps 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 protec-
tion as the First Amendment affords due to the balancing mechanisms Is-

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, [1999] IsrSC 53(4) 526 (incorporating au-
tonomy via the human dignity clause); Majority Camp, supra note 44 (partially incorpo-
rating free speech via the human dignity clause).

289 See e.g. Khalid Ghanayim, Mordechai Kremnitzer & Boaz Shnoor, Libel Law (Jerusa-

lem: The Israel Democracy Institute, 2005) at 64-68.

290 See ibid at 66 (claiming that free speech is included within human dignity and there-

fore protected by it).

852 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

raeli constitutional law employs, it would give free speech stronger protec-
tion than it currently receives.291 Second, the artificial link between hu-
man dignity and free speech, which was produced largely due to the cur-
rent incorporation strategy, is expected to fade away. The interrelation-
ships 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 in-
corporation clause, when only a handful of rights are enumerated, is in-
adequate. 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 expres-
sions heightened standing before the Constitutional Revolution.

Conclusion

This article pointed out the intricate relationship between human dig-
nity and freedom of expression. It demonstrated how human dignity ex-
pands at the expense of freedom of expression. It warned that juxtaposing
the two results in the limitation of free speech and called for the analyti-
cal separation of the two.

Israel is perhaps the best laboratory for examining the dynamic inter-
relationships between human dignity and free speech. The Israeli consti-
tutional arena is undergoing a transition period following the 1992 Con-
stitutional Revolution. As explained above, the emphasis on human digni-
ty 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.

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 ena-
ble 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, DignityThe Enemy from Within, supra note 85 at 959-60 (claiming that
human dignity and freedom of speech should be viewed as contending rather than har-
monious values).

DIGNITIZING FREE SPEECH IN ISRAEL 853

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 Revo-
lution, 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 Revo-
lution, did not receive enumeration. Among the rights that were enumer-
ated 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 bet-
ter understanding of the changes that Israeli constitutional law in gen-
eral, 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 Israels shift from the liberty-based para-
digm toward the dignity-based paradigm following the 1992 Constitution-
al 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 incorpora-
tion of freedom of expression into Basic Law: Human Dignity and Liberty,
as well as the manner in which the Supreme Court grappled with the is-
sue 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 incor-
poration. 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 Courts free speech rul-
ings 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 re-
straint. The empirical data gathered for the purpose of this article demon-
strated 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.

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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 mod-
el for free speech. The references to foreign rulings thus revealed the
growing gap between Israel and the United States in free speech doc-
trines, and the growing resemblance between Israeli and European ap-
proaches 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 dignitiza-
tion 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 wom-
en as a reason for curtailing free speech, and the court upheld these ra-
tionales when it allowed a ban on hard-core sex channels on cable. The re-
striction of pornography by administrative acts is upheld using lax consti-
tutional standards. In the area of defamation and libel, the court has
turned the Prevention of Defamation Act into a de facto mechanism for en-
forcing 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
expressions 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 strate-
gy was suggested that does not carry the same side effects as the current
incorporation strategy. Instead of incorporating free speech via the hu-
man 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 incorpora-
tion, so that all speech would be constitutionally protected.

DIGNITIZING FREE SPEECH IN ISRAEL 855

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 clauses scope, as it has, so
far, been primarily construed as protecting criminal due process. None-
theless, 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 in-
corporation 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 doc-
trine, such as prior restraint, pornography, and libel.

The Courts 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 digni-
ty. According to the Court, both stem from one sourcehuman dignity.

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

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

freedom of expression, and in recent years, there has been a slow devalua-
tion in the prominence of free speech in Israel. The Supreme Court would
have been wise to not artificially find the similarities between free speech

856 (2012) 57:4 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL

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 intri-
cacy of the interrelationship between freedom of speech and human digni-
ty, 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 pro-
cess, 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 can-
not 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. Follow-
ing the 1992 Constitutional Revolution, it seems that the dignity-based
model has gained strength, but no clear preference between the two mod-
els 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 influ-
ence in the field of free speech, and trading it for a human dignity empha-
sis. Thus, as a by-product of the 1992 Constitutional Revolution, Israel
risks losing the relatively high protection it afforded to free speech with-
out 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 ju-
risprudence, at least it should do so consciously.

Israel as a Mixed Jurisdiction in this issue L’abus de droit : l’anténorme — Partie I

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