On December 12th, 2023, attorney Riham Nasra arrived at the Spiritual Center in Neve Shalom~Wahat Al-Salam to provide us with practical training on legal rights around freedom of speech. The training session, conducted for the residents of Neve Shalom~Wahat Al-Salam and for the School for Peace alumni, was meant to address the need of communities to navigate the current situation, and to offer valuable insights on how to cope with and adapt to the challenges of these times.

As part of her work at the Human Rights Defenders Fund, Riham represents Palestinians from the West Bank, Palestinian citizens of Israel and Jewish activists. Prior to October 7th, the training was tailored specifically to activists, but since then, and following the onslaught of persecutions and arrests, the training has become relevant not only to those who consider themselves activists, but to anyone who wishes to express their critical views. The purpose of this newly tailored training is to raise awareness among citizens of their legal right to freedom of speech, its criminal limits, as well as legally acceptable and unacceptable speech, so that they can make conscious and informed decisions around what they wish to say, and how and when they wish to express themselves.

Riham started the training with an important note – the legal situation and circumstances have been incredibly dynamic since October 7th. A state of emergency has been declared, and the unprecedented public support for drastic measures has increased following the traumatic events of October 7th. This means that citing “security reasons” can make it easier to change laws with little resistance or question. It can also be said that the judicial system currently considers the protection of the state a core aspect of its duty, which can compromise its duty in protecting human rights. Indeed, these days, we are witnessing the courts providing far-reaching interpretations of security considerations at the expense of freedom of speech.

Riham also emphasized that the purpose of the training is to provide knowledge about the law, so that people are aware of their legal rights so they can make an informed choice regarding what they wish to say publicly. We bore witness to widespread arrests for social media posts published on October 7th by Palestinians citizens of Israel. Out of about 300 such arrests, about 80 resulted in an indictment. This shows that despite the high number of indictments, there was still a high number of false arrests under inadmissible claims. However, when one is arrested, even if one avoids indictment, their arrest is not without cost. For example, a singer who was arrested for a post on Facebook and released by the judges, still today faces protests outside her house alongside daily harassment. As another example, an actress who was arrested for an Instagram story she posted was publicly shamed and humiliated as a photo of her in handcuffs against the backdrop of the Israeli flag was published and circulated.

Under “normal” circumstances, the violation of fundamental rights is prohibited by Israeli law. Only through a legislative process in the Knesset, and only in proportional measures, is such a violation permitted under Israeli law. When a state of emergency is declared, the government is given the liberty to violate fundamental rights without going through the normal legislative process. (As an example of this, one might recall the severe movement restrictions imposed on citizens by the government during the COVID-19 period)

The right to freedom of speech is a constitutional right, inherently given to every person regardless of who they are. However, the right to freedom of speech is not anchored in Israeli law. Rather, it is derived from the Basic Law^[1]: Human Dignity and Liberty according to the 1953 high court ruling by Judge Agranat in the case of Kol Ha-Am (Voice of the People) v. the Interior Ministry. In his ruling, Judge Arganat established freedom of speech as a cardinal right in Israeli constitutional law, and instituted “The test of near certainty,” according to which in any case when freedom of speech conflicts with another protected interest (for example, security), freedom of speech can only be withdrawn when there is near certainty of actual and serious harm to this other interest.

 

When Can Freedom of Speech be Limited?

Contrary to rumors and interpretations following recent statements made by the Commissioner of Police, there are no new instructions regarding the right to demonstrate. The right to demonstrate falls under the cardinal right to freedom of speech which claims that by default, one can say anything, unless it is prohibited by law. The right to demonstrate is thus similar – by default, demonstrations are permitted, and only in certain cases should a permit be requested. Following are the cases in which a permit must be requested from the police for a demonstration:

1. A lecture or speech on a political topic, with 50 people or more in attendance, in an open and public area
2. A march with 50 people or more people in an open and public area

 

In any other condition, one does not require a permit for a demonstration. Further, the police must guarantee and secure the right to demonstrate. For example, if there is information of a counter-demonstration being planned – the police’s duty is to guarantee every group’s right to demonstrate.

In the first weeks of the war, the two local branches of Hadash – the Democratic Front for Peace and Equality – in the towns of Sakhnin and Umm al-Faham, requested a permit to demonstrate and surprisingly and unusually, were not granted permission. The police cited two claims in their refusal to permit the demonstration: first, that the towns are located in the northern district where current combat is taking place, and second, that police had intel that the demonstrations would lead to riots. Since the two towns are not physically located in the northern combat zones, and since the claim of intel was characteristically false, Hadash objected and petitioned the Supreme Court. Alongside some important statements made by the court regarding the right to demonstrate, it unfortunately ruled against freedom of speech in this case. The court’s important claims included:

1. The right to demonstrate remains the same even and especially during times of war
2. Not everyone who demonstrates against war identifies with terrorist organizations
3. Personnel considerations are not a legitimate cause to harming the right to protest

 

However, the court accepted the police’s claims – mainly that the location in a war zone limits the police’s manpower as well as the claim that the police’s intel is legitimate – and chose not to interfere with the police’s prohibition of the demonstrations.

Another disturbing case involved the High Follow-Up Committee for Arab Citizens of Israel, who had planned a demonstration in Nazareth. The type of demonstration organized does not require a permit, yet the police thwarted the demonstration by arresting five Arab elected officials who were on their way to attend. Four of the five detainees were released under conditions of house arrest and removal from Nazareth, on the grounds of violation of the public order (or civil disorder).

 

Offenses that Criminalize Freedom of Speech

The usual tendency of the courts is to narrowly interpret offenses in a manner that favors expanding freedom of speech. In illegal demonstrations and protests, for example, the police have an obligation to declare that the demonstration is illegal and allow the protesters to disperse on their own. The rationale being that every participant should know if and when a demonstration becomes illegal.

October 19 saw the first demonstration in Israel against the killing of innocent civilians in Gaza. The protest was held in Umm al-Fahm. During this demonstration, ten demonstrators were arrested. The police justified the arrests by arguing that the demonstration was illegal, and later claimed that slogans chanted at the demonstration constituted incitement. All those arrested were immediately released except for two who are detained to this day – a lawyer and a journalist, who were documented chanting slogans at the demonstration. These slogans decry the harming of people in Gaza – they are known by many, and have been chanted several times in the past. In their decision to uphold the arrest of these two demonstrators, the court stated that following October 7th, these same slogans now constitute support for, and identification with, a terrorist organization and activities. This is an unusual and far-reaching interpretation, which greatly reduces freedom of speech.

 

Waving the Palestinian Flag

The law in Israel states that it is forbidden to wave the flag of an enemy country or of a terrorist organization. Since the Oslo accords, and following the agreements with the PLO, there is a directive from the Attorney General of Israel not to prosecute those who wave the Palestinian flag, unless there is a near certainty the same individual is breaching or violating public peace.

About a year ago, an activist in Sheikh Jarrah, who waved a Palestinian flag, was arrested on grounds of violating the public peace, and his flag was taken from him. The activist refused to sign the conditions of release (which included his removal from the city) and went to court. The court accepted the activist’s claims that indeed there was no evidence of a breach of public peace and that there is no offense under Israeli law that prohibits the waving of the Palestinian flag. The court ordered the activist be released, without conditions.

 

Incitement Offenses

Fundamentally, the police are the body tasked with monitoring acts of incitement. Over time, however, right-wing organizations and even independent citizens took it upon themselves to monitor people and report suspected incitement, even in cases completely devoid of incitement. One such case involved a university lecturer who was falsely reported by students as having circulated a video which claims Israeli soldiers are murderers. In reality, there was no evidence that the video was actually published, nor any indication that the video exists at all.

Currently, there are about 80 indictments out of about 300 cases of arrests. Once these cases move to court, and evidence must be presented, we will be able to learn how far the courts will go in shrinking the space of freedom of speech in favor of expanding the criminal norm.

 

What is Prohibited by Law?

Under the Israeli penal code, there are two things that are prohibited by law:

1. Incitement to racism. In this case, one does not need to prove that actions followed from statements. Rather, the mere statement is the offense.
2. incitement to violence. In this case, which is a conduct offense, one needs to establish there is a tangible likelihood of a resulting action (and not necessarily a tangible result).

Everything related to incitement to terrorism is considered a security matter and falls under the 2016 law on Combating Terrorism. Through this law, it is possible to violate procedural rights and grant more severe punishments.

 

Identifying with a Terrorist Organization and Inciting Terrorism

Publicly calling to commit an act of terrorism or publishing words of encouragement or support for an act or an organization defined as a terrorist organization (whether in the words published or by publishing the anthem, video, or symbols of a terrorist organization) can be considered an act of supporting a terrorist cause.

Most of the cases opened against Palestinian citizens of Israel involve the publication of photos from the morning events of October 7th (for example, a military jeep with children in Gaza or photos of people being kidnapped). The approach of the police and the prosecutor’s office has been that these publications are supposedly sufficient in connecting the act of advertising to the act of supporting Hamas or its actions – even if there is no direct reference in the posts themselves. Regarding the consequences for “liking” a post on social media, the current position of the state attorney’s office is to not prosecute based on a “likes” alone (at least not at this point). Generally, in crimes of terrorism incitement – one requires the state attorney’s approval to open an investigation and the prosecutor’s approval to file an indictment.

 

What Can One Say under these Conditions?

Since supporting terrorism or inciting terrorism is an offense defined in positive terms (what does one actively support), one has the freedom to express themselves in negative terms, and proclaim what one opposes and does not support. For example, one can proclaim “I am against harming innocent civilians.” It is important to carefully consider one’s words.

 

The Police Seizing Cell Phones

A question that came up during the training, had to do with cases whereby police seize a person’s phone. Riham emphasized that according to the law, the police are only allowed to seize a phone with cause – for example, if a crime has been committed using the device itself, or if there is suspicion that the phone contains evidence that proves the committing of a crime. The police cannot simply search a person’s phone unless 1) police explain the purpose of the search and receive explicit and free consent from its owner, or 2) police present a court order allowing a search of the device. Not any police officer can carry out such a search – the only person authorized to carry it out is an expert investigator.

 

An Important Reminder in Conclusion

A question that came up again and again during the course of the training had to do with Riham’s important opening remarks, which are worth repeating. Faced with all the examples of arrests since October 7th, training participants repeatedly asked about, and referred to, a feeling of insecurity around freedom of speech. They wondered – to what extent is this right to freedom of speech truly granted to us? How much protection can we rely on, if at all, when hoping to express ourselves freely? So, we deem it crucial to reiterate that, even though there are laws, we are unfortunately not completely protected from arrest or persecution. The information shared over the course of the training does not constitute a recommendation or a suggestion as to whether or not one can or should speak out. Nor does it constitute a promise that if we behave in a certain way, we will not be arrested, or fired, or expelled from our academic institutions. However, as activists, as people who believe in the right to express ourselves and express criticism, as citizens in this country, it is important we know our legal rights and prohibitions. It is important we know what to veer away from, and what is supposedly protected. This so that we can legally defend ourselves if necessary and understand that the state of emergency begets a grey area whereby even when certain acts are protected by law, and even if judges eventually allow it under freedom of speech, sometimes the police will make decisions in the moment that reduce freedom of speech and we may pay the price.

The event was a collaboration of the Spiritual Center and the School for Peace

 

^[1] A quasi-constitutional law in the Israeli legal system