Protest and Punishment

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If Israeli performing artists consider the establishment of settlements in Judea and Samaria to be immoral, why is it wrong for them to refuse to perform there? In this article, which was originally published in Hebrew in the Haaretz daily newspaper on September 8, 2010, IDI Vice President Prof. Mordechai Kremnitzer argues that while it is legitimate to disagree with the position of the artists and the course of action that they have chosen, it must be recognized that they are exercising their right to free speech and protest. For a contrasting view, read Professor Yedidia Stern's A Boycott on Both Your Houses.

The recent statements by Israeli performing artists and intellectuals who are not willing to appear in venues that are located over the Green Line [the line that separates Israel from the territories conquered in the 1967 Six Day War] has elicited a variety of counter-arguments and threats. At the outset, let it be clear: There is no similarity between the cherem ban imposed by traditional Jewish communities and the assertion "we will not perform in Ariel" that has been voiced by Israeli performing artists and intellectuals. The cherem ban of the Diaspora was a social death sentence that was imposed on an individual by an entire Jewish community. In this case, we are talking about a situation in which individuals are protesting against a policy of the Israeli government, and the damage done to the residents of Ariel is minimal.

It must be pointed out that the current action by the artists and intellectuals is clearly within the law. There is no law that requires Israeli citizens to leave the sovereign territory of the State of Israel or to engage in activities that contribute to the eradication of the Green Line.

In addition, the claim that Ariel is a settlement that was established legally is questionable. International law, which is binding on the State of Israel, prohibits countries from settling residents in territory that is under their military control. The claim that the decision to establish Ariel was a democratic decision is also questionable. What connection can there be between democracy and the authority that Israel exercises over Palestinians who live outside of its domain, who have no control over their fate and who are denied their basic rights?

The statements of the artists are within the realm of protected freedom of speech. One of the fundamental components of this freedom is the right to organize and protest as a group. And clearly, there is no area more vital to the exercise of free speech than the ability to criticize the government. This is the very heart of the freedom protected by law.

Freedom of speech entitles people to choose the means by which they wish to express their protest, as long as it is legal. Choosing a means that involves harm to others—even if that harm is limited—is a harsh step, but its harshness does not negate its legality or its moral legitimacy, as long as there is a reasonable ratio between the method used and the intended objective. Given the enormous effort made by the government and the public to eradicate the Green Line, which has continued over years, refraining from performing beyond this line seems to be a reasonable way in which to return this boundary to public awareness, if nothing else.

The true test of commitment to freedom of speech is to be found precisely in the way that the legal system and society respond to types of expression that are provocative and offensive. It is also clear that the authority to determine what type of protest is acceptable should not be entrusted to the government, since conferring such authority on government is a gross interference with freedom of speech.

It has been argued that the government may withhold funding from individuals or institutions in response to such protests. This claim is unfounded. When people exercise their legal rights—for example, their right to freedom of expression—the government may not harm them because of their actions. Only in totalitarian regimes are citizens required to identify with government policies beyond the requirements of the law; only in such regimes are artist and intellectuals regarded as civil servants. The attitude of "he who pays has the say," in this context, constitutes a suppression of artistic and academic freedom.

This is an especially severe distortion of justice given the government's biased treatment of the Right and the Left in Israel. The Right is entitled to break the law (as evidenced, for example, by the amnesty law that removed the criminal records of individuals convicted of crimes committed while protesting the disengagement from the Gaza Strip and that stopped legal proceedings against such protesters); in contrast, however, when the Left engages in legitimate protest, it is accused of hostility to the State and is threatened with the suspension of government funding.

It has been argued that the artists and intellectuals who refuse to appear in Ariel are providing ammunition to those who call for boycotts against the State of Israel. This is a fallacious argument. There is no similarity between the expressions of opinion of the artists who do not want to appear in Ariel and the boycotting of the State of Israel. Anyone who draws a straight line between these two points is engaging in demonization, and will eventually advocate stifling any type of criticism of Israeli government policy lest the criticism be used by enemies of the State.

As a matter of fact, what has been providing Israel's enemies with lethal weapons is organizations and individuals who have been trying to silence the expression of positions that are not to their liking.  And what is really ensuring the intensification of the boycott efforts against the State of Israel is the continuation of the settlement enterprise. The artists and intellectuals who have come out against performing in Ariel are motivated by the desire to save Israel as a Jewish and democratic state, to return Israel to the family of nations, and to create a chance for peace between Israel and the Palestinians. It is possible to take issue with their opinion and the path that they have chosen, but they must be regarded as free people, and their expressions of conscience and protest must be treated with respect. 

Professor Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute and a professor of criminal law at the Hebrew University of Jerusalem.

This article was originally published in Hebrew on September 8, 2010 in Haaretz and has been translated and reprinted with permission.