Case Number

HCJ 6226/01

Date Decided

2-2-2003

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The Petitioner requested from the city of Jerusalem a permit to post signs around the city, as required by Section 20 of the 5740/1980 Jerusalem Bylaws (Signage). The signs criticized MK Yossi Sarid, who, according to the Petitioner, had attacked the government’s policy of targeting terror leaders in Nablus]. The proposed signs initially stated “Yossi Sarid is Arafat’s collaborator”. The City denied the permit because of an ostensible violation of the 5725/1965 Slander Act and a breach of public policy. Counsel for the Petitioner subsequently proposed an amendment to the sign, to read “Yossi Sarid is Arafat’s attendant”, but this was also rejected by the City, with the support of the Attorney General.

Held: The High Court of Justice ruled that the Bylaw authorized the City to limit freedom of speech; however, as with any administrative body, its discretion was limited by the standards set forth by Section 8 of the ‘Basic Law: Human Dignity and Liberty’ (the limitation clause). The considerable weight of the right to free speech entails a stringent balancing test according to which free speech cannot be limited unless the competing interest is very compelling, and the probability of harm, resulting from disallowing the limitation, is almost certain. Of the various forms of speech, political expression enjoys an elevated measure of protection, as it is a precondition for the existence of democratic discourse. The Bylaw permitted the Mayor to deny a request to post a sign if it explicitly offended public sensibility. However, the nature of such a sign must be such that it is so offensive that it would clearly be intolerable by Israeli society, which is considered to have a rather high tolerance level. The Bylaw also allowed the City to deny a request to post a sign which was criminal in nature. This provision should be interpreted narrowly, granting the right the widest latitude possible. Therefore, it was held that such a sign might only be prohibited when publicizing it would amount to a clear criminal act. The nature of the medium in question should be also taken into account. The Court found that in this case, there was no reason to disqualify the amended sign, even though it might be crude and offensive, as it is well established that freedom of speech protects expressions that are offensive, aggravating and even false. Justice Rivlin added that the fact that the expression was forced upon listeners or viewers (as a "captive audience") should also be taken into account; but this consideration alone was not enough to tip the scale. The Petition was accepted and the City was ordered to permit the amended sign.

Keywords

Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Freedom of Expression

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