Content Regulation / Censorship, National Security, Public Order
Bayar v. Turkey
Closed Expands Expression
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The Supreme Court of Israel found that the Government’s suspension of Kol Ha’am newspaper and its Arabic-language sister Al-Ittihad was an unconstitutional restriction on press freedom and free expression. The Government suspended the newspapers under Section 19(2)(a) of the Press Ordinance after they published articles sharply critical of Israeli foreign policy, arguing that the articles posed a danger to the public peace. The judges set aside the Government’s order and established that for a suspension to be constitutional, relevant circumstances must be considered, including intent of the publisher and the likelihood that publication would endanger public peace.
In response to a news article published by Haaretz that criticized the former Soviet Union and signaled the likelihood of Israel supporting the United States militarily in the event of a war, Kol Ha’am newspaper penned an article, which in part said: “Let us increase our struggle against the anti-national policy of the Ben-Gurion Government, which is speculating in the blood of Israel youth.”1 It also defended the then existing Israeli Communist Party by stating that “[d]espite the anti-Soviet incitement, the masses in Israel know that the Soviet Union is faithful to the policy of the brotherhood of peoples and peace.”2
Later, Kol Ha’am’s Arabic-language sister newspaper, Al-Ittihad, published a similar article that said:
“[A]ll forms of surrender by the Ben Gurion Government, and all her demonstrations of faithfulness, will not avail her with her American masters; moreover, her economic, political and state bankruptcy, internal and external, are beginning to be revealed to the masses, who have started to understand whither this Government is dragging them – not only to unemployment, poverty and hunger, but even to death in the service of imperialism, feeding them as fodder to their war machine, whilst those masses do not want that fate and will demonstrate their refusal.”3
In the spring of 1953, Israel’s Minister of the Interior ordered the suspension of Kol Ha’am and AL-Ittihad. The Minister alleged that above-mentioned passages were “likely to endanger the public peace.” The orders were made pursuant to Section 19(2)(a) of the Press Ordinance of 1933, which gives the High Commissioner – later replaced by Interior Minister – the authority to suspend a newspaper “if any matter appearing in the newspaper is, in the opinion of the High Commissioner in Council, likely to endanger the public peace.”4
Consequently, the newspapers petitioned the Supreme Court of Israel sitting as the High Court of Justice, arguing that the orders of suspension were wrongly imposed and should be set aside.
The case was examined and decided by Supreme Court Justices Agranat, Sussman, and Landau.
For justices, the case called upon the Court to define “the relationship that exists between the right to freedom of the press on the one hand, and on the other, the power held by the authorities, by virtue of the said [S]ection 19(2)(a), to place a limit on the use of that right;”1 a freedom that justices described as one that is “closely bound up with the democratic process.”2 They were, however, quick to emphasize that free speech inherently comes with a set of limitations, including the government authority “to prohibit incitement calculated to result in the immediate injury to the life, limb or property of another.”3
But before addressing what may constitute as a proper restriction, justices saw it necessary to first consider the values involved in the right to freedom of expression. The Court consulted scholarly articles as well as U.S. case law in addressing the importance of the right, both as a personal interest and also the collective aim of advancing democratic values. According to the Court, for example, “whatever may be the difference in the value of different statements people make, the supreme value contained in freedom of expression remains permanent and unalterable.”4
It then noted its prior decisions5 to explain the derogable nature of the freedom. Specifically on freedom of press, it said that “just as the right to freedom of action in other fields does not extend to the use of a man’s profession, business or property in a manner injurious to others, so also the right to freedom of speech and the press does not entail the abuse of the power of the tongue or the pen.”6 Indeed, the protection of certain interests justifies reasonable limitations on the press. Those interests, according to justices, include the preservation of outrage to religious feelings; protection of one’s reputation; securing a fair trial; the prohibition of obscene publications; and the most relevant here, state security.7 And whether a limitation is justified, the Court reiterated the necessity of weighing “various competing interests in the balance and, after reflection, select those which, in the circumstances, predominate.”8 But justices admitted that the process of balancing the right to free speech on one hand, and the interests involved in maintaining security on the other becomes “more complicated.” Particularly, in the present case where no standards existed to clearly ascertain whether a publication is “likely to endanger the public peace,” the Court saw it necessary to first interpret the term “likely.”
To interpret the term, the Court placed particular emphasis on using Israel’s Declaration of Independence. As the instrument “expresses the vision of the people and its faith,”9 justices emphasized the obligation “to pay attention to the matters set forth in it when we come to interpret and give meaning to the laws of the State, including the provisions of a law made in the time of the Mandate and adopted by the State after its establishment.”10 In light of the Declaration and foreign case law, the Court construed the term “likely” in the sense of probability, as apposed to “bad tendency” or “indirect accusation.” The principle of probability, according to the Court, echoes the fundamentals of democracy and freedoms in Israel because it lessens the risk of arbitrary suspension of a publication that has a mere tendency of endangering the public peace. It further explained that:
“[C]oncrete and rational principle of ‘probability’ as distinct from the abstract and undefined notion of “bad tendency” is calculated to secure to a great extent (if it be properly understood and resorted to) that, on the one hand, the suppression of the views of others will not occur only by reason of their being opposed to those held by the people in authority, and on the other hand, that the objective of preventing danger to public peace, at which the legislator was aiming, will be achieved.”11
Justices, however, admitted that the standard of probability is a precise formula and therefore, government authorities must take into account the circumstances surrounding the publication upon which a suspension is sought. They include, for example, the circulation of the publication, its offensive language or strong tone, the intention behind it as well as immediate external factors, such as the state of emergency and the length of time likely to pass between the publication and the consequential event. The Court, however, expressly cautioned that “it will not, generally speaking, be right for the Minister of Interior to take into account, among his considerations, the personality or character of those responsible for the improper publications.”12 Lastly, the Court added that if the government concludes that the probability test is stratified, it still must “carefully  consider whether [the publication] is so grave as to justify the use of the drastic power of suspending the newspaper” or less restrictive means are available, such as discussion, denial, and counter-explanation.13
By the applying the probability standard, the Court invalidated the orders of suspension against Kol Ha’am and Al-Ittihad. It found that the articles merely expressed opposition against the government’s “imaginary policy” and advocated struggle for its reversal. It added that the articles’ “strong, emotional and insulting language” without any additional circumstances did not provide sufficient basis to conclude the likelihood of danger to public peace.
Accordingly, the Supreme Court of Israel set aside the Minister of Interior’s orders of suspension.
H.C.J 73/53, Kol Ha’am v. Minister of Interior, p. 5 (1953). ↩
Id. at p. 6. ↩
Id. at p. 8. ↩
See Cr. A. 95, 99/51; Podamski and Others v. Attorney-General (1952); Cr. A. 24/50, Gorali v. Attorney-General (1951). ↩
Kol Ha’am, at p. 8). ↩
Id. at p. 9. ↩
H.C. 10/48, Zeev v. Gubernik, District Commissioner, Urban District of Tell Aviv and Another (1948). ↩
Kol Ha’am, at p. 15. ↩
Id. at p. 19. ↩
Id. at p. 21. ↩
Id. at p. 23. ↩
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision upholds freedom of expression because it finds that this principle is inherent to the Israeli legal framework and that in this case specifically it is not out balanced by other competing government interests.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The decision serves as stare decisis according to Israeli law.
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