Foundation for Constitutional Democracy
The David Haivri Case
Professor Paul Eidelberg
Expert Opinion Presented to the Jerusalem Court by
Professor Paul Eidelberg on Behalf of David Haivri
Below is the Introduction and Conclusion of said Opinion. The full text is available here.
1. The David Haivri case involves, initially, a clash between two democratic principles: freedom and equality. Printing the picture of Rabbi Kahane on the front of a number of shirts and on the back thereof the slogan “No Arabs No Terror Attacks” manifests the democratic principle of the freedom of expression. Conversely, the phrase “No Arabs No Terror Attacks” has been construed by the prosecution as “racist,” and racism offends the democratic principle of equality.
2. Section 144B of the anti-racism law states that “one who publishes a matter for the purpose of incitement to racism, may be incarcerated for five years”; and that “it does not matter if the publication led to racism or not, and if it contained truth or not.” This means that one may be imprisoned for five years for publishing words which, whether true or not, hurts no one! This is a remarkable infringement on freedom of expression.
3. What makes this infringement all the more remarkable is that whereas publishing the slogan “No Arabs No Terror Attacks” need not harm anyone even if the slogan contains truth, that slogan, if true, threatens the lives of Jews and even Israel’s existence! Which means section 144B of the anti-racist law is based on moral obscurantism. The law clearly implies that freedom of expression in Israel does not include the freedom to publish the truth about the relationship between Arabs and Arab terrorism, hence about this threat to Israel’s existence.
4. Contrast the libertarian position of the Supreme Court. The court recently quashed the Attorney General’s indictment of Talib a-Sana for incitement, when this Arab MK, in an interview on Abu-Dhabi TV, not only praised a suicide bombing attack in Israel but also called for more of the same. What does this ruling have to do with the anti-racism law?
5. Although both involve the democratic principle of freedom of expression, the anti-racist law and the Supreme Court ruling in the Talib a-Sana case also implicate the democratic principle of equality.
a. By making it a crime for a member of one ethnic group to publish a matter that degrades another ethnic group, the anti-racist law implies that all ethnic groups are morally equal even if the matter disparaging one group is true. The law is paradoxical. It renders two groups morally equal even if, in respect to terrorism, they are not morally equal! We have here, at first glance, the doctrine of moral equivalence—a doctrine peculiar to democracy.
b. Notice, moreover, that whereas it is illegal to denigrate Arabs by associating them with terrorist acts against Jews, it is not illegal to praise Arabs for perpetrating terrorist acts against Jews! Viewed in this light there is no moral equivalence but moral reversal! In both instances the Jews, not the Arabs, are placed at a racial disadvantage. One may therefore conclude that the anti-racist law as well as the Supreme Court ruling in the Talib a-Sana case are unwittingly racist! While the racist law endangers Jews, the court’s ruling not only endangers them, but also permits their degradation by giving Arab MKs a license to praise Arabs for killing Jews.
Conclusion: The case against David Haivri should be dismissed, and the anti-racist law should either be rescinded or drastically amended so as not to make it illegal to publish the truth about Arab terrorism in Israel.