Monday, April 27, 2009

Free Speech vs Incitement to Lawless Action

There is an interesting case right now in Israel about the arrest of seven people who operate two websites suspected of encouraging youths to not enlist in the IDF and gave advice on how they can dodge service. The police released the suspects after questioning and confiscated several computers and documents.

According to a statement issued by the Justice Ministry spokesman at that time, the Web sites of New Profile and Target 21 were suspected of preaching evasion of military service, thereby violating Article 109 of the Penal Law. They were also suspected of helping those slated for military service to obtain an exemption by deceit or by knowingly submitting false information, the ministry said.

Members describe New Profile as a feminist organization.

"The organization does not encourage people to evade military service," she told The Jerusalem Post. "It is in favor of refusal to serve and anti-militarism, but it does not encourage conscripts to do so if they do not want to in the first place."

Ben-Natan added that when the organization explained the options open to a conscript who does not want to serve, it did not include illegal options such as forging medical opinions.

But the state thinks otherwise. In its September announcement that it was opening an investigation, the Justice Ministry spokesman said, "The deputy attorney-general believes that the gravity of the incitement on these sites, in its scope, quality and thoroughness - and especially by the fact that it also tries to persuade conscripts to obtain an exemption by deceiving the army, and gives finely detailed instructions on how to execute this deception - obliges the state to deviate from its [usual] highly restrained policy of not investigating a priori suspicions of incitement to evasion of military duty."

I'm bringing this up because this case prompts an intereting debate on the matter of law and freedom.

It would be more appropriate for me to refer to Israeli law, but I am more familiar with US jurisprudence and it has a much longer history. SinceI am going to refer to US Supreme Court cases, I want to make it clear that I am using the Israeli case as just a launching pad for my post discussing law regarding free speech and that Israel isn't obligated by American jurisprudence.

In the US, falsely shouting "fire" in a crowded movie theater is illegal. Wikipedia actually has an article about this which I used as a starting point for my adventrue through American jurisprudence (if by now you don't know what jurisprudence means, google it). This scenerio refers to a passage in the unanimous opinion in Schenk v. United States (1919) which established the "clear and present danger" test which deemed regulations of speech constitutional if the prohibited language poses a clear and present danger.

I highly encourage readers to read further about the cases I discuss and the people involved.

The "clear and present danger" test was later modified in Brandenburg v. Ohio (1969) which established the "imminent lawless action" doctrine. This doctrine states that speech is NOT constitutional protected if it advocates criminal activity immidiately. This doctrine is the current legal standard in the US.

Now let's apply this to the current case in Israel. Did New Profile publish texts trying to persuade youths to use deceit to evade military service?

The New Profile charter states: "While we were taught to believe that the country is faced by threats beyond its control, we now realize that the words 'national security' have often masked calculated decisions to choose military action for the achievement of political goals. We are no longer willing to take part in such choices. We will not go on enabling them by obediently and uncritically supplying soldiers to the military which implements them.

We will not go on being mobilized, raising children for mobilization, supporting mobilized partners, brothers, fathers, while those in charge of the country go on deploying the army easily, rather than creating other solutions."

I do not interpret this as advocating "immidiate lawless action". But this is not all the organization published. I don't exactly what else they have published but if they did advocate to youths how to evade "military duty", I would say that it does fall under the "immidiate lawless action" doctrine".

I'm interested how this will play out. There is another incident which was investigated I'd also like to apply American jurisprudence too. I'm referring to when soldiers were incited to refuse orders to evict settlers. The article I linked above is from the end of November of last year. I don't know how it played out.

Deputy State Prosecutor Shai Nitzan has instructed police to launch an investigation regarding a ceremony that was held to praise soldiers who refused an order to evict settlers from the Hebron market. During the ceremony these soldiers received payment as reward for their refusal.

The order was given following a police investigation that raised suspicion that soldiers were incited to refuse commands, an act which under Israeli law is a crime in itself.

Nitzan also ordered an investigation into an ad published on the Internet by a group called the Headquarters to Save the People and the Land of Israel, which is suspected to be the organization responsible for orchestrating the ceremony for the soldiers. The ad states that any soldier that resists orders to evict the residents of the Hebron house will receive monetary reward of several thousand NIS.

I think this obviously falls under "immidiate lawless action". If New Profile advocated in the same "scope, quality and thoroughness" as this ultra-right settler organization, than they too would be guilty under the same doctrine of "immidiate lawless action".

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