Adv. Ariel Erlich

The timeline paints an embarrassing picture: One day the Attorney General is fighting to convict someone for publishing criticism of a senior officer, and the next day he appears in a Knesset Committee as a knight in shining armor to defend free political speech. Free political speech – the freedom to express an opinion, criticism or protest against government officials and political issues – is at the heart of the freedom of expression principle. Its absence is the hallmark of totalitarian states.

And in Israel?

Two recent notable events raise questions about the policy of the AG, the government agent responsible for enforcing the law.

The first story, spanning nearly a decade, is the Elitzur Segal case. In 2004, Segal published an online article saying terrible things about a senior civil servant. He attacked then-Chief Rabbi of the IDF, Rabbi Yisrael Weiss, for not acting as Segal thought he should. According to Segal, the Rabbi should have ruled against obeying rules of engagement that, to his mind, put IDF soldiers lives at risk; to publicly announce that male and female soldiers should not serve together; to order disobedience to orders that involve desecrating the Sabbath; and to rule that soldiers must not participate in carrying out the Disengagement Plan. Segal wrote that as the Rabbi did not do all the above, he was an accomplice to murder, adultery and Sabbath desecration, all punishable by death according to the Torah. No less. Extremely harsh and rude language, especially toward a Rabbi and soldier.

The AG’s office took note of Segal’s writing and decided that he must be silenced. Rabbi Weiss might be extremely offended by such things; it might even impair his ability to do his job. The means chosen was a musty provision from the Israeli Penal Law, left over from the days of the British Mandate: insulting a public servant. (MK Galon recently tried to abolish this problematic provision and was inevitably met with opposition from the Justice Ministry; her proposal was rejected). The Jerusalem Magistrate Court convicted Segal, and he appealed to the Regional Court. The Association for Civil Rights in Israel joined his appeal, which was rejected a few weeks ago.

In their argument, the AG’s Office relied on a recent Supreme Court ruling that rejected an appeal by one Yosef Ungerfeld from Hadera. This is his story in brief: Angry at the policeman who questioned him, he wrote a sign calling him a “rotten apple”, and a “criminal cooperator” and sat with them for a week in the police station’s yard. The Supreme Court ruled that so long as the offense of insulting a public servant exists as law, it must be enforced, but it must be balanced against freedom of speech: a person may be convicted of this crime when the speech is so severe as to be an insult to “the core of dignity” and to “the moral-values nucleus from which the public servant draws his authority”, and on condition that there is “near certainty” that the speech will harm public service. Ungerfeld’s conviction was upheld.

The AG staff loved this ruling, and passionately persuaded two jurisdictions that Segal too was a dangerous speech-criminal who must be punished. After all, if readers of Segal’s rant would be convinced by him, Rabbi Weiss’ service would be impaired. They failed to recognize the not-so-fine difference between hurling personal insults at a policeman and publishing an opinion piece in the media. They also failed to notice that the criticism was directed at a powerful and influential personality within the civil service, something democracy should encourage.

And here is the second story: Right after defeating Segal’s appeal, the AG gave his opinion on the proposal to amend the Defamation Law and allow IDF soldiers to sue anyone publishing libels about the IDF’s operational activities. At the Knesset committee meeting, the AG objected to the amendment, as one that would have “a serious chilling effect on speech”, particularly against IDF activity which is “at the center of the state’s exercise of power”, so that its restriction is “a disproportionate infringement on political freedom of speech, which of all speech enjoys the highest constitutional protection”.

Did you notice the similarities? The same freedom of political speech, the same IDF, the same AG, the same criticism of soldiers. Or perhaps the criticism is different? Perhaps the AG thinks that publishing false libels against IDF soldiers is tolerable while pointed criticism from the religious right-wing sector in Israel against a senior officer should be silenced?

The legal amendment is indeed problematic; it’s a result of the impotence against the lies hurled at the IDF in the movie “Jenin Jenin”. Legislation tailored to a specific case rather than addressing a broad principle will always be unsatisfactory. However, we should not forget that the potential for restricting speech through a civil defamation suit is far far less than through the criminal offense of “insulting a public servant”. Defendants in defamation cases have a fair shot at a good defense, such as proving the truth of their publication or their good faith.

It’s great that the AG has remembered the importance of political free speech. It would be even better if he granted it equally to all critics of the IDF, from both sides of the political spectrum, and not forget it even when someone, Heaven forfend, hurts the tender feelings of a public servant .

First published (Hebrew) in Makor Rishon