Israel's High Court Takes Compromised Stand on Freedom of Expression

High Court's verdict on Anti-Boycott Law is yet another manifestation, alongside other verdicts handed down this week, of the Court's judicial passivity.

Emil Salman

The High Court of Justice’s decision Wednesday to uphold the controversial so-called Anti-Boycott Law is regrettable. The court struck down a clause that permits courts to impose unlimited compensation payments on those calling for a boycott against Israel or areas under its control, even if no damages are proven. But this is not enough. The court should have struck down all the sections in the law that turn the call for boycott into an actionable offense.

Encouraging a boycott for political reasons is a legitimate political measure. One does not have to support a boycott, and may even oppose it strongly, to understand this point. This is why a call to boycott is part of the political freedom of expression, the part of freedom of expression that is most vital to protect, especially when we’re dealing with unpopular opinions.

The High Court ruled that the Anti-Boycott Law, apart from the disqualified clause, indeed impinges on freedom of expression but overall advances a worthy cause, and thus the harm to freedom of expression is proportionate. But the result paves the way to lawsuits for damages not only against those who call to boycott products from the West Bank settlements.

This has an extensive chilling effect on political discourse. Will actors who urge their colleagues to boycott the theater in Ariel be prosecuted if a performance is canceled due to such a boycott? Even if the way to winning such a suit is long, this is a censorious law that could lead to censorious prosecutions.

The High Court compared the law to the laws banning discrimination, but this argument is far from convincing. Discrimination must be banned on the basis of a person’s origin, political positions and other things. But this is exactly why there are laws prohibiting discrimination. These laws also ensure that boycotting does not become individual discrimination for the wrong reasons.

In a broader view, the verdict is yet another manifestation, alongside other verdicts handed down this week — like the one barring security prisoners from formal study — of the Supreme Court’s judicial passivity. The court refrains from intervening in important human rights issues due to its belief that it must defer to the legislature and government.

In view of the anti-democratic legislation expected in the current Knesset, it is especially troubling that the High Court of Justice takes such a compromised stand vis-à-vis laws that seriously infringe on the freedom of expression.