Different Rules for Different Folks

In ruling last week that MK Azmi Bishara’s parliamentary immunity is broad enough to shield him from prosecution for speeches effusively praising Hizbullah (one of them delivered in Damascus), the Israeli Supreme Court reaffirmed a crucial aspect of its free speech jurisprudence: free speech protection for Arab citizens is absolute; only Jews may ever be found guilty of crimes involving speech.

The Court first implicitly enunciated this principle in 2001 in two cases decided the same day. In the first case, the Court overturned the conviction of Israeli Arab journalist Mohammed Jabarin under a statute forbidding “publicizing words of identification with or praise for acts of violence capable of causing death or injury to a person.” Jabarin wrote how he found his identity and sense of self worth when throwing Molotov cocktails.

Jabarin’s celebration of throwing Molotov cocktails was clearly within the statutory language. So Justice Theodore Or, writing for the Court, rewrote the statute to refer only to praise for acts of violence by specific terrorist organizations. To justify his far-fetched reading of the statute, Or cited the principle that statutes impinging on free speech should be construed narrowly.

In a second decision the same day, the Court reversed its own previous acquittal of Binyamin Kahane of the crime of “arous[ing] strife and hatred between different groups of the population,” a description arguably applicable to half the political speech in Israel.

Again Or wrote the decision of the Court. But he seemed oblivious to his own earlier opinion. He made no effort to limit the scope of the broad statutory language, despite its obvious chilling effect on the exercise of free speech. Indeed he gave an expansive reading of the statute in finding the Kahane was punishable for having called on the IDF to wipe out the “vipers’ nest in Umm el-Fahm.”

Only the different ethnic identities of the two defendants can explain the shift in methodologies employed and opposite results reached by the Court.

Last week Court President Barak employed the methodology of the Jabarin case to spare Bishara from criminal prosecution. Justice Barak assumed, in passing, that Bishara was guilty of the crime of supporting a terrorist organization. But, he wrote, Bishara’s parliamentary immunity shielded him from prosecution for everything besides explicit support for the armed struggle of terrorist organizations. A fine distinction indeed.

In any event, Bishara did extol terrorist acts, as well as their sponsors. In a speech in Umm al Fahm, after the Israeli withdrawal from Lebanon, he celebrated Hizbullah’s “victory” and offered it as a model from which to draw the “necessary conclusions for success and victory.” And what were those lessons? That the morale of the people of Israel “cracked in light of the losses it absorbed from Hizbullah.” Those losses were not caused by Hizbullah’s rhetoric or social programs, but by its warfare against Israel.

In a speech in Damascus, on the first anniversary of the death of Hafez Assad, Bishara, flanked by Hizbullah leader Shiekh Nasrallah and heads of the most militant Palestinian terror organizations, lauded Hizbullah as a model of heroic Islamic resistance that should be expanded to end the Israeli occupation. That speech came long after Hizullah had kidnapped and killed three Israeli soldiers, and launched hundreds of katyushas at Israel. Yet Court President Barak found that Bishara’s illegal trip to Damascus to praise Hizbullah as a model worthy of emulation was within the legitimate scope of his parliamentary duties.

IN TRUTH, the phenomenon of applying a different set of rules to speech by or about certain favored minorities or “disadvantaged” groups is by no means confined to the Israeli Supreme Court. It is pervasive throughout the West.

Today many Western European and American papers are full of solicitude for the sensitivities of Moslems offended by the publication of cartoons of Mohammed in a Danish paper. But some of those same papers praised a federal judge who ordered New York City not to withhold funding from the Brooklyn Museum of Art for displaying a Christian icon splattered with elephant dung.

To some extent the different responses are purely craven. In Jenin: Massacring the Truth, filmmaker Martin Himmel elicits from the head of the British Cartoon Society an explanation of why there are no cartoons of Jewish children killed in suicide bombings to parallel the prize-winning cartoon of a naked Ariel Sharon eating Palestinian babies: “Jews don’t issue fatwas against journalists.”

Hamid Debashi, chairman of Columbia’s Department of Middle Eastern and Asian Languages and Cultures, writes, “Half a century of systematic maiming and murdering of another people has left . . . deep marks on the faces of Israeli Jews, the way they talk, walk, the way they greet each other… there is a vulgarity of character that is bone-deep and structural to their skeletal vertebrae,” secure that his academic freedom will protect his descent into Lamarkian genetics.

But imagine that a professor, even a tenured one, had written that the earlobes of ghetto blacks are characterized by distended earlobes from prolonged exposure to boomboxes and wide lips from eating too many watermelons. His career, and perhaps his life, would be over.

Last year, a University of Las Vegas economics professor was forced to forego a pay increase and endure sensitivity training for observing that homosexuals, who tend to have few children, show lower rates of saving. Truth is no defense when feelings of certain groups are hurt.

Academic huckster Ward Churchill proclaims that those killed in 9/11 were “little Eichmanns” and that millions more Americans would have to die to atone for the native Americans killed by white invaders. In his academic work, he claims that American settlers gave Indians blankets infected with smallpox, even though the mechanism by which smallpox is transmitted was not known for another hundred years. Yet despite his professional incompetence, false claim that he is an American Indian, and contempt for American lives, his academic position is secure because he speaks on behalf of native Americans.

Meanwhile Harvard’s tenured faculty tried to ride Harvard President Lawrence Summers out of town on a rail for suggesting that men and women might not be identical in every respect, though a considerable body of scientific research on innate differences between men and women supports that suggestion. Neither academic freedom nor freedom of speech served in Summers’ defense once he had offended women.

Originally published in the Jerusalem Post, February 10, 2006

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11 Responses

  1. Charles B. Hall says:

    Churchill may be a huckster, but in 1763 British/American defenders of the besieged Fort Pitt did try to use smallpox-infected blankets as implements of biological warfare against their native American opponents. Lord Jeffrey Amherst became famous in the 19th century when his advocacy of this became known. He seems to have believed the native Americans to be subhuman and worthy of extermination. Sound familiar?

  2. Nachum says:

    Kol Hakavod. You do understand, though, that you are now a right wing radical. What you have written is tantamount to incitement. Under Israeli law, you now face prosecution and a possible jail sentance.

    I am reminded of the election in Israel when Bibi was elected Prime Minister. A renowned Knesset member from the left was asked his opinion when the TV poll was announced showing that Peres had won the election. He praised Israel for it’s high level of democracy. The election was proof that Israel was indeed a democracy. Later that night the tides changed, and it was apparent that Bibi had actually won, this time based on the actual ballots. The same honorable Knesset member publicly stated that the results showed that there was no democracy in Israel.

    We learn from this, and your article certainly highlights this, if you agree with the left, it is democratic, and you have freedom of speech to say what you want. If you disagree with the left, anything you say is undemocratic, and you are guily of incitement.

    I hope to see more articles of truth on this great blog.

  3. Moshe says:

    Great article. Another Israeli Supreme Court case — relevant to the question of free speech — is the infamous Alba decision. A rabbi was found guilty of incitement because he published a
    halachic treatise.

  4. Bob Miller says:

    Is there any difference between what Jonathan describes and affirmative action in general, as opposed to the more worthy goal of creating a level playing field?

  5. Menachem Petrushka says:


    Every tribe in Israel has its buzzwords.

    If one is with the left, then your for democracy, if not your enemey of democracy

    If one is with the right, then one is an Israeli patriot, if not, one is a traitor.

    If one accepts Charedi leadership, then one is a G-d fearing Jew, if not, one is an apikores.

    Each member of a tribe views events solely through the prism of his tribe. No one is “objective” in a neutral sense.

    Rabbi Rosenbloom sees the world through Charedi glasses. The majority of his articles point out the faults of others. There is nothing wrong with that because every journalist in Israel spends does the same.

    It just gets boring,

  6. HILLEL says:

    Israel is not really a free country. It is ruled by a morally-corrupt secular oligarchy.

  7. Gershon Seif says:

    It’s a pretty sad situation and this isn’t the first article R’ Yonason Rosenblum has written on the subject. Is there no hope of change in the horizon?

  8. mkop says:

    This is a major difference between the US and Israel. In the US, politicians actually care about democracy. In Israel, no one cares about democracy. They care about advancing their own goals. The Chareidim will use democracy to advance Torah values, the leftists will use democracy to advance their leftist liberal values, and the Arabs will use democracy to advance their anti-Israel values.

    The problem is that the judges also have opinions. The court is open-minded to any values that fit within their liberal worldview. This includes the “struggle of the poor Palestinian people”. It doesn’t include anyone’s religious values. Anyone whose views don’t fit into their world view is anti-democratic or is inciting violence.

    The way in which the US is different (at least as far as government is concerned) is that the US govt. has lost sight of any values (including liberal ones) other than democracy. Democracy has become the absolute morality here. This reflects especially in medical ethics, where the principle of “autonomy” is now supreme over all other moral principles. The value of a “living will” is not just that since we can’t decide when the moment of death is, we’ll leave that moral judgment up to each individual patient; rather, the most moral decision is to follow the patient’s wishes. (This is a subtle distinction, but it’s significant. It’s the difference between inability to impose moral views and therefore being forced to revert to the patient’s wishes, vs. the patient’s wishes magically becoming the moral choice.)

    I’m not saying that problems like what Mr. Rosenblum describes don’t happen in America. But they happen much less than in Israel.


  9. Charles B. Hall, PhD says:


    I am not so cynical as you, at least regarding the United States. (I don’t know enough about Israel to comment.) There are plenty in government who want to do good things for society. I am sure George W. Bush is one of them even though I disagree with him on practically every issue. Supreme Court justices here — both liberal and conservative — occasionally speak insightfully about their role; while they are sworn to uphold the Constitution they also consider their own values and the effects of their rulings. And there are many in Congress whose political positions are informed by their religious beliefs, including one Orthodox Jew.

    I also disagree with you regarding the distinction you make on patient autonomy. A diverse society such as the United States can not impose moral views unless they are held by the overwhelming majority of the population — and even then, it typically accommodates the differing views of small minorities. That is really good for us really small minorities like Orthodox Jews. We are much smaller than 1% of the US population but we really don’t have any barriers to us practicing Judaism.

    In addition, it a the government override of autonomy that led to the Tuskeegee and the Nazi medical atrocities. May we never return to those days!

  10. mkop says:

    I did not in any way speak out against autonomy. The use of living wills is something that has been encouraged by many groups, including Agudas Yisrael and the RCA. What I disagreed with is the prevalent moral reasoning behind it today. See http://www.jlaw.com/Articles/MedConsent.html. Also see http://depts.washington.edu/bioethx/tools/princpl.html which has an overview of what are considered the Four Major Principles of Bioethics. Autonomy is seen not as a practicality, but as a morality of its own. That’s what I’m rejecting.

    And I didn’t mean to say that Americans don’t have values. (Though looking over my comment, that certainly is what comes across.) What I meant was that the value of democracy is seen in America to trump other values. (Probably rightfully so in a democratic government. If the will of the people differs from some politician’s view, the will of the people should win.) Here, the talk about democracy is not just empty talk, the way it is in Israel. In Israel no one really believes in democracy the way Americans do.

    Why do Americans go to the polls? Because it’s patriotic, it’s democratic, etc. bla bla bla. Why do Israelis go to the polls? So that their party wins. (Actually, so the other party loses.)

    While on the topic of living wills:
    A man and his wife are sitting in the living room and he says to her:
    “Just so you know, I never want to live in a vegetative state dependent on some machine. If that ever happens, just pull the plug.”

    His wife gets up and unplugs the TV.


  11. mkop says:

    And yes, fine, perhaps I am a cynic. (At least as far as this goes.)


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