Summary
Freedom of expression in Israeli law, as Lahav presents its foundation in Simon Agranat’s Kol ha-Am opinion (16 October 1953): a right pronounced the cornerstone of Israeli democracy, grounded not in a constitution (Israel had none) but in a theory of democracy as self-rule, in the Declaration of Independence as an interpretive norm, and in American First Amendment doctrine transplanted into Israeli law (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1309-1384).
Details
- Agranat’s theory: open deliberation is not merely a private interest but part of the public interest itself — it builds the consensus distinguishing democracy from a regime of the “power of the fist”, serves the search for truth, and lets the individual give full expression to his attributes so that “life will be worthwhile for him” (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1345-1365).
- National security was accepted in a broad conception, but as an interest easily abused by governments under stress; preserving free speech is itself a “collective interest” no less crucial than security to the state as a moral polity (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1355-1375).
- The doctrines transplanted included the Blackstonian rule against prior restraint, rejection of seditious libel and the bad-tendency test, the clear-and-present-danger test and its “gravity of the evil discounted by its improbability” form, and balancing; the operative limit on the Interior Minister’s Press Ordinance discretion was a “probable danger to the public peace”, substantively reviewable by the Court (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1330-1384).
- Agranat’s Kol ha-Am was in part an answer to Justice Douglas’s 1949 challenge over Terminiello v. Chicago — “We can afford it… can you?” — a message to Israelis that “we, too, can afford a meaningful protection of speech” (Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, lines 1295-1308).
Related pages
Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century, Kol Ha’am Case, Simon Agranat, Israeli Declaration of Independence