05-27-2008, 01:06 PM
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Re: FOX Pundit Wishes for Obama Assassination, Laughs
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Originally Posted by Spencer Collins
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Maybe we should rethink our laws on free speech or at least have a new clear interpretation of "clear and present danger....."  Limiting the Limitations on Political Speech
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Limiting the Limitations on Political Speech
by Zeev Segal
The assassination of the late Israeli Prime Minister, Yitzhak Rabin, was not just the killing of a nation's political leader. The assassination brought an end to a firm belief that hate speech and hate propaganda could never lead to such an act of violence by one Jewish person against another. Nonetheless, Yegal Amir currently stands trial in Tel-Aviv for the assassination.
The probable connection between hate statements which were made by religious leaders who viewed the prime minister's policy destructive of all Jewish values, and the assassination has sharpened the debate over free political speech versus the right of democracy to defend itself.
Israel is deeply committed to fundamental human liberties, even in the absence of a comprehensive written constitution and an entrenched Bill of Rights. In the landmark decision Kol Ha'am in the 1950s, as justification for limiting speech, the Israeli Supreme Court introduced into the legal system standards for freedom of speech similar to the American standard "clear and present danger". In the 1989 Schnizer case, Justice Aharon Barak adopted the American "near certainty" test to annul a military censor's decision to prevent publication of an article that dealt with the functioning of the Israeli Mossad, the Israeli intelligence agency. The "near certainty" test, which prevailed in the United States in the 1950s, requires that there be a probable, material harm that flows from the speech. The degree of probability required is high, even if the serious danger expected should not necessarily be immediate.
Following such Israeli Supreme Court decisions, the "free market of ideas," which in the language of Justice Holmes is essential to democracy, continues to flourish in Israel. The opportunity for free and open debate exists in spite of valid legislation hostile to freedom of speech. The policy adopted for many years by the State's prosecution refrained from instituting legal criminal proceedings when speech was involved. Such a policy reflected tolerance toward intolerance. It enabled inflammatory speech to become part and parcel of our daily public life. Publications -- in newspapers, demonstrations, etc. -- even when containing incitement to racism, were met with little law enforcement.
Israel's deep respect for freedom of speech concurs with the European Convention on Human Rights. Article 10 of the Convention allows limitations on freedom of expression only where they are prescribed by law and are "necessary in a democratic society," inter alia for "national security" or "public safety" or "the protection of morals . . . or the rights of others."
In the 1994 case of Jersild v. Denmark, the European Court of Human Rights for the first time addressed the difficult questions of whether and how far free expression should be limited when the content of the political expression is of a racist nature. The Jersild case arose following the broadcast of a television program by the applicant, a journalist. It consisted of an interview with three youth who made extremely abusive and derogatory remarks about ethnic groups in Denmark including the assertion that blacks and other immigrants were not human beings. Following the broadcast, the applicant was convicted of having aided in the dissemination of racist remarks. Limiting the Limitations on Political Speech
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