Case Number

HCJ 806/88

Date Decided

6-15-1989

Decision Type

Original

Document Type

Full Opinion

Abstract

The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ" on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel.

The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

1. The point of departure for examining the legality of the Board's decision is the basic principle of freedom of expression, including freedom of artistic creativity, which is the central feature of freedom of human thought and the ability of the human being to attain self expression.

2. Freedom of expression is widely regarded as a right, enjoying supra-legal status, and at any rate constitutes one of the most fundamental features of a democratic society. It is very wide in extent and covers the right to express views which may be unpopular or unpleasant to certain audiences.

3. Restrictions on the freedom of expression must of necessity be applied as narrowly as possible in order to protect the freedom itself. Nevertheless, the freedom cannot be entirely unrestricted, but must yield, in exceptional cases, to competing values, interests and principles. This applies, however, only to extreme cases where it is clearly shown, for example, that there is a close certainty of imminent danger to public order or security in allowing unlimited freedom of expression.

4. In the present case, it was not sufficient to show that the literary and artistic expression as manifested in the film was liable to cause offence to some persons. In order to disqualify the film on the grounds put forward by the Board, it must be shown that such expression was so extreme in its offensiveness against the Christian religion, that public viewing of the film must be prevented. In the present case, the intensity and extent of the offensiveness was not proved, so that the decision of the Board could not be upheld.

5. The fact that the film has been released for almost universal showing, including in most Christian countries, removes the basis from the argument that the screening of the film amounts to a serious offence to Christians. The "political" argument as to potential damage to the State of Israel in allowing the film to be shown has no foundation.

6. The High Court of Justice in this case was bound to intervene in the discretion of the Board in disallowing the showing of the film in order to uphold the principle of freedom of expression, since there was no basis for restricting that freedom.

Keywords

Administrative Law -- Discretion, Constitutional Law -- Freedom of Expression

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