A new “silencing bill” (a series of laws issued by Netanyahu’s governmental majority seeking to limit the rights of the press, the Supreme Court and the Arab minority in Israel) was to be raised for discussion Wednesday, May 30 in the Knesset Constitution, Law and Justice Committee. There are in fact four different bills submitted by Knesset members from Kadima, Ha'ihud Ha'Leumi (the National Union, an alliance of nationalist parties) and Ha'Bayit Ha'Yehudi (the Jewish Home, a new right-wing national religious Zionist party). All these bills, although variously formulated, propose that under various conditions, the use of Nazi or Holocaust-related symbols be deemed a criminal offense entailing imprisonment. In addition, some of the proposals seek to ban the use of the term "Nazi," defined as the word "Nazi," including all its inflections, as well as any term related to Nazism, the Third Reich regime in Germany or any of its leaders or any word sounding similarly to the word "Nazi," used because of such similarity. Under the proposed bills, any use of the term "Nazi" or of Nazi symbols as mentioned above shall be banned unless it is made in the framework of historical documentation, educational activity or truthful statement of the facts.
The new parliamentary coalition is promoting four bills banning the use of Nazi symbols and terms. Mordechai Kremnitzer and Amir Fuchs claim that despite the sensitivity of this issue in Israeli society, such a bill will defy the basic right of freedom of expression and obscure the lessons derived from the Holocaust.
Silencing Or Muzzling?
Pr. Mordechai Kremnitzer and Amir Fuchs
May 30, 2012
June 3 2012
It is not the first time in the tenure of the present Knesset that its members seem to forget that the freedom of speech is not "my freedom to say whatever I consider appropriate," but rather the freedom of their fellows to say whatever they considers appropriate — even when and especially when what he says may be outrageous or cause offense.
The freedom of speech is the heart and essence of democracy. There are good reasons to limit the freedom of speech under the criminal law, such as when national security, human life, the reputation of people or the like are at stake. The legislative rationale of the lawmaker concerns primarily the feelings of the public and the reputation and dignity of people. As to people's reputation and dignity (if someone is insulted and called “Nazi”), the proposed bill is completely unnecessary, since such cases are covered by the law already in force. If the person hurt is serving in public office (for instance, in the military), then the criminal offense of insulting a public official may be invoked — and there is no disputing that the term under discussion is offensive, possibly even the most abusive term one can think of. Both public servants and private citizens may resort to libel suit in case they are insulted in public.
We are left then with the sole rationale that the use of the term "Nazi" or of Nazi symbols may hurt the feelings of the public, primarily the feelings of Holocaust survivors. This is no doubt a serious consideration. However, on the other side there is a basic human right that is the cornerstone of democracy — the freedom of speech. Given that the proposed bills would unduly restrict the freedom of protest against racial or violent practices and obviate labeling such practices as "Nazi" or "Nazi-like," these bills clearly miss the target. After all, would labeling as "Nazis" those voicing racial views and inciting to violence against minorities really hurt the feelings of Holocaust survivors? (The substantial-truth doctrine, according to which a statement cannot be held to be slanderous or libelous if it is true, cannot be invoked in this case since the term "Nazi" is used as a factual statement.) Wouldn't they be hurt even more were the law to preclude denouncing such positions and practices for no other reason than the fear of hurting their feelings?
Over the last week, a whole range of writers, bloggers, public officials and concerned common citizens likened the statements made by MKs Miri Regev and Danny Danon against illegal African migrants (at the rally in south Tel Aviv Wednesday night, May 23) to the incitement against Jews in Nazi Germany and worse than that, to the horrors the Jews had to face there in those dark days. Even if the comparison is taking it a bit too far, we are of the opinion that categorically banning such censorious comments would be not only inappropriate, but definitely out of place. Wouldn’t it be ironic indeed if we of all peoples, having undergone and survived the Holocaust, now delegitimize learning its lessons? If we rule out as illegal ringing the alarm bells? The Knesset members who have submitted the motions in question fail to distinguish between an improper statement, which may be criticized and condemned in the public arena, and an intolerable, utterly unacceptable statement that should be outlawed as a criminal offense. If the bills proposed are eventually ratified, the amended law will be yet another one in the ongoing legislation that infringes on the right to freedom of speech in Israel. Hence, the Knesset had better summarily dismiss these motions.