How will Israel's judicial reform impact free speech?

Ben-Gvir's ban on Palestinian flags in public could serve as a test case for whether Levin's planned changes to Israel's judiciary will diminish freedom of expression.

Some of the biggest political headlines in Israel this week were about protests and the government’s reaction to them. Coming on the heels of Justice Minister Yariv Levin’s announcement last week of a major judicial reform, the topic raises the question of whether the reforms will better protect freedom of expression in Israel or diminish it.

National Security Minister Itamar Ben-Gvir ordered the police to take down Palestinian flags in public spaces this week after some Palestinian flags were spotted at a protest against the new government in Tel Aviv on Saturday and Israeli Arabs in the village of Ara celebrated the release of the longest-serving Palestinian prisoner, Karim Younis last Thursday.

Ben-Gvir said that waving the flags "incites and encourages terrorism," and that "freedom of expression does not extend to identifying with a terrorist and those who want to harm IDF soldiers."

Let’s set aside the argument that the Palestinian flag is actually the PLO flag, and the PLO is a terrorist organization. The Palestinian flag predates the PLO, but even if it didn’t, it is currently the flag of the Palestinian Authority. Israeli attorneys-general have said repeatedly since the Oslo Accords were signed that Israel does not treat the PA like a terrorist entity or an enemy state.

Still, police have taken down Palestinian flags at many protests and gatherings in which they were viewed as tools of incitement. The funeral of Al Jazeera journalist Shireen Abu Akleh was a recent high-profile example.

In the past, however, the Supreme Court ruled that doing so is unreasonable, that waving the Palestinian flag is a form of political expression, and that freedom of expression should only be limited in cases of certain danger or severe harm to the public order. Then-attorney-general Yehuda Weinstein said in 2014 that a flag can only be removed when "there is a real concern that waving a flag is a crime of identification with a terrorist organization."

It’s hard to argue that last week’s protest of the mostly mainstream Israel left against the new government’s policies was meant to identify with a terrorist organization or posed a certain danger. That’s true even when taking into consideration the likely presence of some protesters affiliated with parties whose Knesset members have said and done things in support of terrorists and their actions (though the High Court has ruled otherwise).

The Supreme Court, in all likelihood, would uphold the right to wave a Palestinian flag at the demonstration in Tel Aviv - unless the case comes before the court after Levin’s judicial reform passes. Then, it’s more of an open question.

This isn’t really about the Palestinian flag. But Ben-Gvir’s order raised another flag, a red one, because it is a free speech issue, and violations of free speech that start with someone you may not like could have broader implications that impact you.

There are a lot of different aspects to Levin’s plan that I’m not going to get into here. In short, the idea behind it is to counter the longstanding, near-monolithic judicial activism on the Supreme Court. Levin hopes to do that by changing the way judges are selected, by making it harder for them to strike down laws, and to allow the Knesset to be able to re-legislate them when that happens, among other ways. Daniel Gordis has a collection of opinions on the reform - hot, cold and lukewarm - on his Substack that you can read if you want a broad view.

I am in favor of regulating the way the courts and the legislature in this country interact to ensure checks and balances between them. I don't reject the reforms or think they’re the end of democracy as we keep hearing from their opponents. But I don’t wholly embrace them, either, and have some concerns.

One of specific concern came to mind in light of the Palestinian flag decision: the plan to abolish “reasonableness” as a legal test for administrative decisions. In other words, when a minister - to use our example, Ben-Gvir - sets a policy that does not require passing a new law - ordering police offers to remove Palestinian flags - and it is brought before the court, the judges can rule that the policy is “extremely unreasonable” and strike it down, even if it does not violate any law on the books. The reasonableness test is not in any law on the books, either, but has been used in the courts for decades - which is how judicial activism works in Israel, in general.

Another law that doesn’t exist in Israel? Free speech. Israel does not have a constitution, and its Basic Laws, which are meant to be the building blocks of an eventual constitution, do not guarantee free speech. Inasmuch as there is de jure free expression in Israel, it is based on precedent in the courts. And while there is de facto freedom of expression in Israel, the approach is a more European one, with legal limits to speech, such as laws empowering the military censor.

The combination of doing away with certain forms of legal precedent and a lack of free speech guarantees seemed to me like it could be dangerous. Free speech is a key right in a democracy and should be protected. But is the potential problem with the courts, the judicial reform, or with the lack of an Israeli First Amendment?

I turned to two experts on different sides of the judicial reform debate to hear their takes on how Levin’s judicial reform will impact free speech.

Eugene Kontorovich, legal scholar and director of the Kohelet Policy Forum pushed back against the idea that the Supreme Court is the defender of free speech in Israel.

“One of the arguments against judicial reform is that we need the High Court to protect free speech - but they don’t protect free speech. They protect ‘good speech,’” he said.

According to Kontorovich, “the biggest issue for free speech in Israel is that the Supreme Court considers it lawful to suppress speech…No wonder democracy doesn’t mean democracy to them.”

Kontorovich pointed to the ban on publishing polls in the days preceding an election as one of the more absurd examples of this approach. That law places speech limits on the press and on private companies when there is no real danger from publishing polls. The idea seems to be that the public is too stupid to not be unduly swayed by polls.

“The Israeli approach to free speech is a fundamentally paternalistic one,” Kontorovich said. “There is no real free speech doctrine, and the Supreme Court is not the likely source for one, because of their paternalistic approach, that they know what is good for us.”

“The concept of free speech sounds nice, but the content is debatable. It’s a judgment call, a policy call.”

One of the aspects of Levin’s judicial reform that could have a positive effect on free speech is changing the way that judges are appointed, Kontorovich said.

Levin plans to change the makeup of the Judicial Selection Committee, such that seven of its 11 members will be part of or appointed by the coalition, and they will be able to select new judges by a simple majority. Currently, the judges and Bar Association representatives make up enough of the committee that they effectively make the decisions whether the elected officials like it or not, and supporters of judicial reform argue that the judges only allow like-minded - usually activist - candidates to be selected.

“Once the judicial reform is in place, there is less of a concern that the High Court reflects one view,” Kontorovich said, though he pointed out that it may be many years before the changes have that effect.

Free speech is somewhat of an amorphous term - American law takes a much broader view of it than most Western countries - and therefore, there is a need for viewpoint diversity on the court to represent the different sides of the debate, Kontorovich explained.

“The concept of free speech sounds nice, but the content is debatable,” he said. “That’s why you need the political appointment of judges. It’s a judgment call, a policy call.”

When it comes to passing a free speech law, Kontorovich was skeptical. First, the court should be reformed so that politicians can trust the way the judges will interpret the law, he said.

Israel Democracy Institute Senior Fellow Dr. Tehilla Shwartz Altshuler, the head of the institute's Democracy in the Information Age Program, pointed to other parts of the planned judicial reform in relation to free speech.

The “override clause,” which would allow the Knesset to reenact laws canceled by the High Court, would be carte blanche for the government to mess with the media however it wants, she argued.

Communications Minister Shlomo Karhi, who seeks to shut down public broadcaster KAN, “can do it without giving any reasons why, or he can decide that all the members of the Second Authority council [regulating commercial radio and TV] will be political appointees, and then that all news sites will be under its jurisdiction,” she said.

The lack of a reasonableness test could limit freedom of assembly and the press, Shwartz Altshuler said, because the court “recognized immunity for journalists from police searches when there is no such law” and “the High Court doesn’t allow police to use facial recognition software against protesters because it’s unreasonable.”

“The decisions whether to permit protests to take place or not…will not have oversight,” Shwartz Altshuler said. “The idea that you can only prohibit demonstrations that seriously disrput the public order is not a law; it’s legal precedent.

“We won’t be able to petition the court about unreasonable decisions by any authority,” she lamented.

Shwartz Altshuler argued that a free speech law is needed.

Basic Law: Human Dignity and Liberty, often cited as the law enshrining individual rights, did not specify free expression, assembly or religion, because the legislators at the time knew they would not be able to enlist enough votes for it.

“We’re missing all of those rights,” Shwartz Altshuler said.

“There are a lot of problems in the relations between the media and politicians, and they are all happening in a country without constitutional crutches for the right of free expression,” she said. “A stronger anchor for free speech is necessary.”

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The answers Kontorovich and Shwartz Altshuler gave are not necessarily contradictory. Israel could have a process of selecting judges that allows for more points of view to be represented, while maintaining the reasonableness test and not legislating an override clause, or having one that is less easily applied.

That may not be the ideal solution, but the fact that one of these experts is in favor of judicial reform and the other isn’t, and yet their solutions to this issue could coexist just shows how nuanced this issue is.

Plus, there are other elements of Israeli law that impact free speech that the judicial reform doesn’t address at all, such as UK-style libel laws that have allowed for petty lawsuits to silence journalists or just anyone criticizing businesses on Facebook, and the courts’ very broad interpretation of standing that allows NGOs to sue without demonstrating a direct connection to the case at hand.

Regardless of how much of Levin’s judicial reform comes to fruition, a serious public discussion of free speech, in the Knesset and the media, is long overdue. Expression in Israel is quite free in practicality, but it’s vulnerable and should be strengthened.