Haneen Zoabi Equating IDF Soldiers With ISIS Fighters Is Not a Criminal Offense

In a true democracy, mere expressions of opinion cannot be restricted, no matter how repulsive they may be.

Gil Eliahu

MK Haneen Zoabi’s remark last week equating Islamic State fighters with Israel Defense Forces soldiers, in which she said an Israeli pilot “is no less a terrorist” than an Islamic State operative who beheads a captive, was unfortunate and outrageous. But the question of whether it constitutes a criminal offense is more complex, and it’s worth asking ourselves another question: Isn’t true democracy meant to allow even statements like this?

The answer to the first question is negative. Nothing Zoabi said was a criminal offense. We cannot say her remarks were seditious or incited to violence or terror. It constituted criticism, an expression of her opinion. Neither public figures nor soldiers are immune from criticism, even if the criticism is unworthy or disgraceful. That is precisely the price a real democracy is meant to pay to preserve a diverse society that facilitates exchanges of opinion without fear of government reprisal, and whose members can express themselves freely, even when those expressions are upsetting or unfair.

The test of free expression as a fundamental, constitutional right is its ability to accommodate unacceptable, aggravating and even repulsive statements. What makes free speech distinct is that it isn’t meant to defend sentiments that are already acceptable to the majority of the public, because the majority doesn’t need that protection. It’s the minority that needs a law to protect it.

It’s true that freedom of speech is not absolute or unlimited. In keeping with the philosophy of defensive democracy, being a democracy does not have to mean letting one’s enemy exploit freedom of expression to destroy the democratic society that allows it. A democracy need not sacrifice itself on the altar of free expression. But for a society to determine that it must limit citizens’ free expression to prevent damage to a vital public interest, it must prove with near certainty that such expression will indeed undermine that vital interest.

Comparing IDF soldiers to fighters for Islamic State, also known as ISIS, is offensive, bizarre and inappropriate, but it is nothing more than an opinion and it does not harm state security or any other public interest.

The problem with Zoabi is that she seeks to defame the State of Israel and its soldiers, in the name of freedom of expression. In such a case, the attorney general has the authority to prosecute her under the Prohibition of Defamation Law if he believes that Zoabi’s comparison constitutes slander against an entire population — that is, IDF soldiers. All the same, I wouldn’t suggest he do so.

After Israel’s Operation Defensive Shield in the West Bank in 2002, soldiers were portrayed in an insulting and misleading fashion by Mohammed Bakri, the director of the film “Jenin, Jenin.” But though the Supreme Court condemned comments made by Bakri, it did not see fit to restrict his freedom of expression by ordering screenings stopped because the movie damaged the reputation of soldiers who fought in the Jenin refugee camp.

Freedom of expression is the lifeblood of democracy, as the Supreme Court stated in its ruling. Take away freedom of expression and you no longer have a democracy. Therefore, restrictions on it should be made only for a proper purpose, and they must certainly be proportionate. Mere expressions of opinion cannot be restricted, no matter how repulsive they may be.

Criminal prosecution is not the best response to Zoabi’s remarks. Rather, the media should stop covering every word she says. Ignoring her and her comments will lead Zoabi to understand that her contrarian discourse will accomplish nothing and scare no one.

There is no doubt that Zoabi is challenging the limits of freedom of expression, but the greatness of Israel as a democratic state is its ability to allow even the hateful people in it to express their opinions freely and without fear.

The writer is an expert in criminal law and a law professor at the University of Haifa.