The new Nakba Law: Privatizing freedom of speech

By Hagai El-Ad | Originally published in Hebrew on NRG

The creeping depreciation in the value of freedom of expression in Israel is part of a broader  erosion process of democratic principles, but even lengthy processes have their breaking moments. Amendment 39 to the Budget Foundations Law “reduction of budget or support as a result of activities against the principles of the state” expresses exactly such a fracture point.

Yesterday (March 22, 2011) the Knesset voted into law Amendment 39, previously known as the Nakba bill. During the legislative process, the bill’s scope was expanded: not just the “commemoration of Independence Day as a day of mourning”, but also “an act of physical desecration that offends the dignity of the national flag”, and some more. Those who would dare commit such offenses, the finance minister, based on the recommendations of a special team of state employees, may withhold from them budgets that otherwise would have been forthcoming. How much? up to ten times the wrongful expenditure, and all this, of course, to be conducted in a “careful and equitable” manner, as explained in the bill’s language.

In other words, the Knesset has appointed the Finance Ministry to serve as Israel’s Ministry of Truth, whereas state-appointed commissars will now determine the price to be paid by municipalities, theaters, and other publicly-funded cultural institutions, if they dare express independent views on such matters that pertain to the now not-to-be-questioned “principles of the state”. This is perhaps the first time in a democracy for freedom of expression to receive such a price tag.

Ironically, a careful reading of Amendment 39 should actually result in a reduction of the budget of the state itself. For isn’t such legislation, which limits freedom of expression, by itself a form of “activities against the principles of the state”?

But perhaps freedom of expression is no longer one of “the principles of the state.”

What we are faced with is a new silencing model, one of privatization. Speech is not prohibited nor criminalized, at least not at this stage. Instead, according to the new “principles of the state”, certain forms of speech will now have a particularly high price. And, further, the burden of this price will now be shifted from the state budget to the publicly budgeted entity. Privatization is thus expressed not by virtue of freedom of expression having a cost, for freedom of expression always does. The manifestation of privatization occurs by the cost shifting, from the state’s budget to the public entities whose budget will be “reduced.”

For indeed, freedom of expression always had, and forever will have, a price. For example, when police officers are required in order to safeguard a demonstration, the price can reach 7-figure NIS sums. And, of course, the public pocket carries this burden through the police budget. Such is the price in a democratic society, where citizens essentially choose to pay (through their taxes) for guaranteeing the expression of a wide range of opinions, including those with which they disagree. Various attempts to roll these costs onto the shoulders of the demonstrators were rejected by the High Court of Justice: “As unthinkable it is that the police will impose financial burden on those seeking protection against burglary, so it is inconceivable that the police will impose financial burden on those wishing to exercise the right to freedom of expression and demonstration.”

Thus, a new model was found for imposing “financial burden on those wishing to exercise the right to freedom of expression.” But Amendment 39 is just the beginning: it is the new model for shifting the cost of free speech to publicly-funded entities, but it stops short of fulfilling the ultimate form of privatization, i.e. having private individuals pay directly out of their own pockets – for public services, for healthcare, and now, yes, for freedom of expression. But there is more to come: the “Prohibition on participation in a boycott” bill (which recently passed first reading) completes, ideologically, the process that Amendment 39 initiated, and rolls straight into private citizens’ pockets the price of freedom of expression on certain other issues that, apparently, contradict the up-to-date “principles of the state”.

Controversial positions come with a price. So far, at least in principle, the state, appropriately, carried the burden of voicing such opinions in the public sphere. But now, new laws are launched in the Knesset which manifest the new “principles of the state”: according to these principles, there are second-class forms of speech which are not prohibited by law, but rather have had their costs set high – and privatized. The state will now charge, through a budgetary “reduction” (or – forthcoming – through a fine), certain monies from those who desire to speak on certain issues. They will have to pay for their freedom of expression.

Indeed, safeguarding freedom of speech has a price; that price, initially, will probably be paid by relatively few. But silencing has a much higher price – which, with time, will be paid by all of us.

Hagai El-Ad is the executive director of the Association for Civil Rights in Israel (ACRI)