The Unintended Consequences of Prohibiting Advocacy of Hatred and Regulating Campaign-Finance: The Weakening Status of Freedom of Speech in Israel

Abstract

A central dilemma in human rights law is how to reconcile the government’s duty to respect freedom with its obligation to protect individuals that might be harmed by the exercise of said freedom. Intolerance toward the dissemination of certain illiberal positions may have adverse social and political unintended results. One central concern is that such a policy would create a common culture that does not appreciate the critical importance of a vibrant public discourse. As such, it might enable governments, in terms of popular legitimacy, to curtail speech beyond the limits of justifiable infringements. Recent developments in Israel illustrate this concern. In recent years, normatively legitimate anti-racism legislation was unjustifiably expanded by imposing sanctions on expressions that were deemed harmful to national sentiments or questioning the legitimacy of Israel’s Constitutional Identity as a Jewish state. Similarly, laws against the support of terrorism were followed by prohibitions on advocating boycotts against Israel. This Article proposes to halt the sociological slippery-slope trend of curtailing speech far and beyond the permissible scope of such a policy, by implementing rules-based legal doctrines that may foster a stronger public pressure on the government to protect free speech; restricting the scope of “harm-in-one-step” approach; and providing a clearer definition of the requirement of state neutrality in the context of regulating speech.