Censorship

Law Professor Eugene Kontorovich argues in the Jerusalem Post that the outcry against Israel's recent law banning the organization of boycotts is mistaken, and guilty of a double-standard:

There is no universal code of free speech. Determining what gets protection involves trade-offs between the very real harm that speech can cause and the benefit of free expression. Among liberal Western democracies, how that balance is struck varies significantly, depending on legal traditions and circumstances. The United States has far more robust constitutional speech protections than almost any Western country. Most European nations – and Israel – have numerous laws criminalizing speech that would not conceivably pass muster under the First Amendment. This does not mean these countries deny freedom of speech; merely that there are competing ideas...

...Great Britain has strong libel laws that prevent people from truthfully condemning public officials. While the law is widely criticized, no one has suggested Britain has thereby lost its democratic status. Critics of Israel’s anti-boycott law denounce it as fascist. In Europe, calling others fascist has gotten prominent politicians prosecuted – prosecutions that have not provoked lectures on free speech from the EU or America’s State Department...

...The anti-boycott law prohibits speech intended to cause economic harm to businesses solely because of their national identity. Nondiscrimination laws commonly ban plans to deny business to specified groups of certain national or ethnic origins. Israel’s new law bans discrimination against businesses because they are Israeli. Most European states – and Israel – have laws prohibiting speech that is perceived as “hateful” or which simply offends the feelings of particular groups. Often such speech expresses important viewpoints. A boycott of Israel promotes hatred of Israel, and certainly offends the vast majority of Israelis...

...[T]he law has a characteristic crucial for free-speech scrutiny – it is “viewpoint neutral.” That is, it applies to boycotts of Israel whether organized by the left wing or the right wing.

Like most European democracies, Israel’s constitutional protection of speech has long been narrower than America’s. One example is that speech restraints have long been used against right-wing groups. Just recently, a prominent right-wing activist has been prosecuted for “insulting a public official,” after denouncing those responsible for expelling Jewish families from Gaza in 2005. In recent weeks, police have arrested several rabbis for authoring or endorsing obscure treatises of religious law that discuss (allegedly too leniently) the permissibility of killing enemy civilians in wartime...

...Israel’s current practice is clearly well within the limits of an open democracy. Singling out Israel for laws that are identical to, or just as restrictive as, laws on the books in America and Europe manifests the very problem that exists with the boycotts themselves – the application of an entirely different set of standards to Israel than to the rest of the free world.

Kontorovich makes an extremely compelling case that Israel's new law is completely in line with the range of speech laws exemplified by many democratic countries. I, for one, am convinced that it is completely unfair to claim that Israel is undemocratic for passing this law.

That being said, the law remains a terrible idea. Kontorovich is right that Israel is being held to a risible double standard, but the answer isn't to lower the standard of freedom for Israel, it is to raise the standard of freedom for everyone else. Other democracies with restrictive speech laws, including Europe, Canada and others, should pass new laws permitting the expression of any opinion, even offensive and harmful opinions, because that's the right thing to do. The goal shouldn't be matching precedent, it should be doing what is right.

The dodge of right and wrong by fleeing to precedent is a common pattern when Israel is unfairly singled out (i.e., depressingly frequently): critics point out something Israel has done wrong, and Israel's defenders immediately shout to the high heavens that every other country does it and nobody ever complains, and that's unfair in a very sinister way.

They're absolutely right: it's monumentally unfair, and often sinister, and the use of the double standard as a stealth weapon in the PR war against Israel must be exposed and combated. That important conversation, however, (the one about fairness and double standards) ought to be separate from conversations about specific criticisms of specific actions. Responding to a specific criticism by pointing to the double standard is a dodge, and a mistake.

When it comes to a specific criticism, the crux of the matter is always this: either the action Israel did was wrong, or it's right. If the action was right, then the double standard is a red herring; respond to criticism by demonstrating that the action was right. If the action was wrong, then the double standard remains a red herring; respond to the criticism by acknowledging that the action was wrong, and figure out how to fix it.

In the case of this anti-boycott law, the idea that the state can stop people from advocating that their fellow citizens use their purchasing power to make a political statement is just wrong, even if that political statement is despicable. If freedom of speech means anything, it means freedom of advocacy.