Freedom of Expression against Governmental Authorities

The subject of this study is the justification for freedom of expression against the government, governmental authorities (including courts) and government officeholders (including judges) when it may be detrimental to their status in the eyes of the public. Viewed from the opposite angle, the subject of this paper is the justification for limiting freedom of expression against the government, its institutions and employees in order to safeguard the public's trust in them.

The issue of justification of limitations on freedom of expression against the government in order to protect its status or the public's trust in the government, is central to the concept of respect for the individual. Regarding man as an autonomous and rational being implies, among other things, a basic assumption that one should refrain from interfering in the formation of his thoughts and beliefs, particularly his opinions of and trust in the government, by means of restricting expression on these subjects. Embracing the view that the government is just an instrument for advancing the interests of the individual makes the question of justifying protection of the status of the government in the eyes of the public even more acute.

The question of whether there is justification for protecting the public's trust in the government and its institutions by prohibiting criticism of them gains particular poignancy in the context of democratic regimes. The essence of democracies is the acknowledgment of man as an autonomous rational being and the election of government by the public. Challenging the public's trust in the government by criticizing its performance is intrinsic to the democratic method. In essence, a government is judged by its citizens according to the way in which it works for them. In other words, the government is judged on its performance.

At the very least, these concepts raise strong opposition to limitations on freedom of expression in order to protect the public's trust in the government, and they point out the high cost of such restrictions. The main purpose of this book is to examine to what extent limitation on the freedom of expression against the government and its institutions can be reconciled with these concepts, and whether there is justification for such limitation in light of the high cost involved.

The nature of the typical expression, as an action that does not lead directly to tangible harm, enables consideration of the concept of absolute freedom of expression. However, it is doubtful whether there is room for a sweeping approach that grants absolute freedom of expression in all contexts. The reason for this is the existence of expressions which create substantial dangers, on the one hand, and are of little value, on the other hand. The approach that advocates absolute freedom of expression is acceptable in certain contexts in which the reasons for permitting expression are strong and the reasons for restricting it are limited. Specifically, absolute freedom of expression is possible when the value of the expression is great and the likelihood of its causing harm is uncertain or insignificant, or when the harm itself is not considerable. Concerning criticism of the government and its institutions, there can be complete freedom of expression. The reason for this is the high value of expression regarding the performance of government authorities, the problematic and, in any case, limited nature of the concern for the status of governmental authorities and the unsuitability of the law in general, and of criminal law in particular, to achieve the goal of ensuring the public's trust in the government.

Limiting expression as a means of influencing, or preventing others from influencing, the views and beliefs of individuals is problematic for a legitimate government that respects individuals as autonomous beings with the capacity for independent thought. At the very least, such limitation comes at a high cost. True, there is nothing wrong in principle with protecting the public's justified trust in governmental authorities, and a narrowly defined ban on the publication of deliberate factual lies concerning the performance of the government could even be regarded as legitimate for this purpose. However, in the final analysis, we must conclude that the price of even a narrowly defined prohibition such as this is too great. Any more substantial limitation, including the existing ones concerning criticism of government authorities, both in Israel and in other countries, is completely contradictory to every worthy concept of government.

The case for a corresponding restriction on criticism of the courts in particular is, to a certain extent, more forceful. This is due mainly to the special importance of the public's trust in the courts as a means for the efficient performance of their duties. Nevertheless, for similar reasons, the final conclusion, namely that there is no justification for such limitation, applies with respect to courts as well.

Restrictions on criticizing the government and its various branches, including the courts, reflect a wrong and outdated concept of regime that awards prerogatives to governmental status.All attempts to adapt these restrictions to the concept favored today, which regards the individual as sovereign and governmental authorities and government officeholders as public servants, have failed. Close scrutiny reveals that there is no justification for limitations on criticism of the government within the framework of a concept that centers on the individual.

Rescinding restrictions on expressions that are detrimental to the status of the government and its institutions also transmits an important message that has not been sufficiently internalized in Israel: the purpose of the existence of a polity, and the justification for its existence, is the welfare of the individual, and the state is merely a means to protect the interests of the individual and is not an end in itself. The governmental authorities and government officeholders, both elected and appointed, are part of this political instrument. They are the trustees and the servants of the public, and their entire reason for existence is defined by the manner in which they serve the goal of protecting the interests of the individual. Like the government and its institutions themselves, their status has no independent value. Rather, their value depends upon their efforts towards assuring the welfare of the individual through acceptable means. The power to govern has been placed in the hands of the government officeholders solely in order for them to achieve this goal.

Therefore, when the government does not act to advance the interests of the individual, there is no longer a justification for defending its performance, and it is acceptable, and even mandatory, to challenge the government's authority and even to seek to replace it. It follows, therefore, that every expression containing information, evaluation or criticism of the performance of the government is legitimate, and occasionally even essential, in order to maintain a just regime that fulfills its duty to protect the interests of the individual, even if the expression may damage the image of the government in the eyes of the public. Even when there is justification for restricting certain expressions, such as deliberate factual lies, there is value in making a determination in favor of the right of absolute freedom of expression with regard to criticism of the government. Such a determination would symbolize the concept of the sovereignty of the individual and the basic essence of government as a means whose only aim is to protect the interests of the individual.

It should not be concluded from the above that the government or officeholders deserve to be treated with a lack of respect or even with contempt. In fact, they deserve respect for their activities on behalf of the individual. However, they are entitled to this respect and trust only on the condition and to the extent that they indeed act to advance the welfare of the individual, in accordance with the relevant legislation. The act of holding office is not a source of respect in itself; respect can be earned only by employing authority to advance the welfare of the individual. The authorities of the state, including the courts, should act in such a manner as to earn the trust of the public as a result of their actions, not because of criminal prohibitions.

On the other hand, a lack of trust in a particular governmental authority on the part of the public is not necessarily undesirable per se. When a governmental authority does not succeed in winning the trust of the public, the problem may not lie in the attitude of the public, but in the flawed performance of that authority. The solution, therefore, is not the artificial protection of the public's trust in the authority by means of preventing the expression of criticism against it, but by confronting the criticism on a factual and a conceptual level and improving the performance of the authority if this is necessary. Public trust in governmental authorities is desirable only when it is based on knowledge of and satisfaction with their performance. Trust that is not based on full information concerning the performance of an authority is not deserving of the name and should not be protected.

Even when the criticism is unjustified, the government should not use the power that it has been entrusted with by the public to silence criticism directed towards it by the public. This is true even when the criticism actually impairs the efficient performance of the governmental authorities to a certain extent. The correct response to unfounded criticism should be a pertinent answer, not punishment. Rescinding prohibitions on expression against governmental authorities will shift the public debate to a desirable examination of the validity of the critique against the government instead of focusing on the legitimacy of punishing those who expressed this critique. This emphasis on the validity of the criticism will also contribute to raising the standard of the public discourse on the performance of governmental authorities.

Exploiting the power that has been entrusted to the government by the public in order to silence criticism is not only wrong in principle but is also unwise. Silencing criticism, even unfounded criticism, is not an efficient method for achieving trust. Putting those who expressed criticism on trial constitutes a crude and rigid means which is unsuitable for achieving a complex goal, and it is doubtful whether such action would contribute to the public's trust in the government. Prohibitions on criticism of the government, and the manner in which they are enforced, damage the public's regard for the government more than does the criticism they seek to restrict.

A suspicious attitude towards government on the part of the citizens, which makes confidence in governmental authorities conditional on the proper performance of their duties, is not a negative phenomenon and is not indicative of an unwarranted approach. On the contrary, it expresses a proper concept of government.