Freedom of Expression

"Freedom of expression" is a common concept in the public discourse of many nations, including Israel. Nevertheless, it is a complex notion that reflects various considerations and raises many questions related to their content and interaction. This book examines central aspects of the idea of freedom of expression.

One of the main arguments in this book is that the way to determine the proper normative regulation of the field of expression is to contrast the considerations in support of and against each of the possible normative arrangements. Regarding most types of expressions, there are considerations both for and against freedom of expression and, in such cases, the relative importance of the considerations must be determined. The proper method to examine the pertinent considerations includes two dimensions: the first examines the scope of application of the consideration, namely, its application to different types of expressions; the second examines the strength (weight) of the consideration (regarding the types of expression to which it applies). Such an examination is important because the considerations in favor of permitting or restricting expressions could apply to a different degree to different expressions; and, accordingly, the importance of different types of expressions could be small or great, just as the importance of imposing restrictions on different expressions could be small or great. For this reason, it is crucial to distinguish between different expressions based on the considerations that apply to them. The distinction between expressions should take into account their content, the identity of the persons who express them or who are exposed to them, and the circumstances under which they are published.

The discussion in this essay criticizes the manner in which Israeli courts analyze the subject of freedom of expression—on the basis of the distinction between the "extent of freedom of expression" and the "extent of the protection of freedom of expression"—protection that could apply only to a certain range of the extent of freedom of expression. Analyzing freedom of expression in this manner is of little avail. One reason is that the use of the term "the extent of freedom of expression" in the aforesaid sense is misleading because it is incompatible with its simple meaning. The simple meaning of  "the extent of freedom of expression" is an overall conclusion regarding the question of which types of expressions are permitted or forbidden. In contrast, the meaning of this term as used by the courts relates only to the question regarding types of expressions for which there are considerations that support permitting them. The second, more important, reason is that when the courts use the term "the extent of freedom of expression", they focus on the first dimension of the considerations in favor of permitting expressions—i.e., their scope of application—as opposed to the second dimension—i.e., the weight of these considerations. For this reason, there is a fear that proper weight will not be given to this dimension, or even that it will be ignored. And, indeed, the courts in Israel tend to group together all considerations favoring freedom of expression without examining the differences between them.

This book examines several types of considerations for and against permitting or restricting expressions. One type comprises first-order considerations in favor of permitting, and often even encouraging, expressions, which includes the contribution of freedom of expression to individual welfare and personal autonomy, to ascertaining the truth, and to a proper (democratic) state. A second type consists of first-order considerations for restricting expressions because of the danger that they pose to other interests. A third type includes second-order considerations pertaining to the regulation of the field of expression. In this context, I emphasize that the two main alternatives—regulation of the field of expression by state authorities and by a "free" private market of expressions—create a fear of improper regulation, albeit for different reasons. Therefore, the proper system must combine these two forms of regulation so that each one of them applies to cases where its advantages outweigh its drawbacks.

Within the framework of an analysis of the possible ways to normatively regulate the field of expression—in particular, to restrict expressions, primarily by law—I also examine the common distinction between "prior restraint" of an expression and "subsequent punishment" for an expression. I criticize the common view that subsequent punishment is preferable to prior restraint because the harm to freedom of expression entailed by prior restraint is more severe than that stemming from subsequent punishment, and, therefore, prior restraint is justified and constitutional only if it meets stricter conditions than subsequent punishment.

The common conceptual distinction between prior restraint and subsequent punishment is imprecise. The standard meanings of both terms do not reflect their simple meanings: the standard meaning of subsequent punishment (criminal offenses) does not encompass only rules imposing punishment, in the strict (simple) sense of punishment, but also a preventive aspect; and the standard meaning of the power of prior restraint is not just, and not even primarily, preventive power in the strict (simple) sense. Both types of rules are designed, first and foremost, to prevent certain actions. For this purpose, a similar measure is primarily implemented—the prohibition of certain expressions accompanied by a threat of punishment.

Moreover, the normative argument that subsequent punishment is always preferable to prior restraint is unreasonable; indeed, it is not obvious that it is correct even as a generalization. It is important to emphasize that the question that should be examined is which alternative—power of prior restraint or subsequent punishment—is preferable from an overall normative perspective, and not only from the perspective of the severity of the restriction of freedom of expression. The common view focuses only on the second question, but the important question is the first one, since the conclusion in this regard should be determined not only in light of the considerations in favor of freedom of expression, but also in light of the considerations against permitting an expression. Regarding types of expressions for which the conclusion is that the considerations favoring their restriction outweigh the considerations that favor permitting them—and if, on the whole, all other relevant factors are equal—it is preferable, from this perspective, to take the most effective measures to restrict the relevant expressions. For this reason, if prior restraint, and not subsequent punishment, is the most effective way to deal with such cases, then this is the preferable approach.

The conclusion is that there is not necessarily always a difference between prior restraint and subsequent punishment although there may be characteristic differences between the two types of regulation from the perspective of the likelihood of shaping and implementing a better system. Therefore, the common view that overwhelmingly prefers subsequent punishment for publishing an expression to prior restraint of an expression is unreasonable. There are considerations that favor the typical characteristics of subsequent punishment for criminal offenses, but there are also considerations that favor the typical characteristics of the power of prior restraint. On the one hand, the implementation of the typical procedures of prior restraint by administrative bodies raises a special fear of improper discretion, a fear that exists to a lesser degree when it comes to the enforcement of criminal offenses by the courts. On the other hand, the enforcement of the power of prior restraint is much more effective and, when it is in the form of actual physical restraint, the restriction of freedom is often less severe. Since the distinction between the two alternatives is only based on typical, non-essential characteristics, and given the existence of conflicting considerations even regarding the typical characteristics—the weight of which varies with the circumstances—there is no basis for a sweeping conclusion regarding the question of which alternative is preferable.

This book opens with a preliminary clarification of several concepts. I first present possible meanings of the term "freedom of expression" and emphasize the importance of distinguishing between them; I then examine the distinction between two basic normative terms—"considerations" and "rights"; and at the end of the first chapter, I survey the distinct meanings of two terms that have been widely used in discussions pertaining to freedom of expression—"fact" (i.e., a factual claim) and "opinion" (i.e., an expression of an opinion).

In the second chapter, I address some preliminary issues, mainly concerning the appropriate way to examine the central questions regarding the scope of freedom of expression: whether there is a justification to publish a given expression; what is the proper attitude or the appropriate reaction to an expression; and, in particular, whether it is proper to allow, encourage or restrict the publication of a given expression.

I then continue with an examination of the considerations that are related to these questions. The third chapter begins with an analysis of the main, general, first-order considerations regarding the importance of publishing, permitting and encouraging various types of expressions. In the fourth chapter, I discuss the general aspects of the first-order considerations against freedom of expression. In the fifth chapter, I analyze second-order considerations related to the manner of normatively regulating the field of expression, and focus on the question of who are the most suitable persons or agencies to entrust with the power to determine the proper treatment of different types of expressions.

In the sixth chapter, I examine possible ways to normatively regulate the field of expression, particularly, the restriction of expressions, especially by law. Within this context, I discuss, among other things, legal regulation versus regulation through rules of professional ethics; the differences between content-based and consequential restrictions of expressions; the common distinction between prior restraint and subsequent punishment; and the possibility of encouraging expression (freedom of information). In the seventh chapter, I examine the question of whether it is actually possible to effectively enforce legal restrictions of freedom of expression in the age of the Internet, or whether this is a lost battle and, therefore, futile.

In the eighth and final chapter, I analyze the main considerations against publishing several types of expressions and the conflicts created between them, as well as the considerations in favor of allowing and encouraging these types of expressions and, particularly, restrictions of incitement to violence, incitement to racism, defamation, invasion of privacy, offending religious sensibilities, pornography, and disrupting the proper functioning of state authorities (disclosing official information, criticizing state authorities and expressions related to matters under adjudication).

The general analysis of the issue of freedom of expression in this book is the culmination of a comprehensive project conducted under the auspices of the Israel Democracy Institute over a period of more than a decade. Within the context of this project, specific aspects of the subject of freedom of expression have been examined, while focusing on the justification for imposing legal restrictions on various types of expressions and for determining the proper scope of such restrictions. The expressions in question include those that create a danger of violence,Mordechai Kremnitzer and Khalid Ghanayim, Incitement, not Sedition (Jerusalem: Israel Democracy Institute, Policy Paper No. 7, 1997). criticism of state authorities and public servants,Re'em Segev, Freedom of Expression against the Government (Jerusalem: Israel Democracy Institute, 2001). expressions regarding matters under adjudication,Re'em Segev, Sub-Judice: Freedom of Expression in Matters under Adjudication (Jerusalem: Israel Democracy Institute, 2001). expressions that may offend religious sensitivities,Mordechai Kremnitzer, Shachar Goldman and Eran Tamir, Religious Sensitivities, Freedom of Expression and Criminal Law (Jerusalem: Israel Democracy Institute and Konrad Adnauer Foundation, Policy Paper No. 38, 2003). pornography,Ram Rivlin, Pornography: Morality, Freedom, Equality (Jerusalem: Israel Democracy Institute, Policy Paper No. 41, 2003). defamationKhalid Ghanayim, Mordechai Kremnitzer and Boaz Shnoor, Libel Law: a Criminal Offense and a Civil Tort: De Lege Lata de Lege Ferenda (Jerusalem: Harry Sacher Institute for Legislative Research and Comparative Law, Faculty of Law, Hebrew University of Jerusalem and the Jerusalem: Israel Democracy Institute, 2005). and the disclosure of official information.Mordechai Kremnitzer and Efrat Rahaf, Official Secrets: a Proposal for Amending the Penal Prohibition (Jerusalem: Jerusalem: Israel Democracy Institute, Policy Paper No. 56, 2005).