Defamation in the discussion on Israel
Democratic Presidential hopeful Bernie Sanders recently conducted an interview with the editorial board of the New York Daily News in which he was quoted stating that Israel killed over 10,000 civilians during Operation Protective Edge in the summer of 2014. He of course prefaced this egregious exaggeration cleverly by saying, “Anybody help me out here, because I don’t remember the figures…” Well Senator Sanders, allow me to kindly be that anybody who helps you out; according to the most biased and probably inflated figures we have seen to date (those emanating from Hamas) there were 2,310 Palestinian casualties of the conflict that lasted about 7 weeks. I would like to believe that this was an honest mistake, that perhaps the gentle elderly politician had confused this statistic with a different talking point, but when the interviewer from the Daily News told him that the figure he had used was “probably high,” Sanders reaffirmed the number a second time. He went on to say that he acknowledged that civilian infrastructure was utilized by Hamas for operational purposes on certain occasions, but that “Israel’s force was more indiscriminate than it should have been” and that “most international observers” would agree with him.
For anyone who experienced the conflict first-hand it is troubling to see this dissemination of false information, and even those of the far-left persuasion here in Israel who claim that Israel did not do enough to reduce collateral damage, would find these statements by Sanders to be far-fetched at best. Not only do statistics from multiple sources refute the numbers expressed by Sanders as a-factual, but military experts from all over the world openly contradict his claims of Israel’s guilt in not seeking to minimize civilian casualties and collateral damage, almost unanimously agreeing that the IDF did more to safeguard the rights of civilians in a combat zone than most militaries in the history of warfare.
Disseminating false information about Israel to support a pre-existing low opinion of the state is nothing new; you can ask any person who has set foot on a university campus in the past ten years about just how prevalent this has become and how much damage it causes to Israel’s stature and reputation on the world stage. It is particularly troubling however to witness a political figure with aspirations of becoming the leader of the free world participating in such lowly behavior, especially one who claims that the continued survival and prosperity of the Jewish state is near and dear to his heart. There is no question that statements like these, whether malicious in intent or not, are damaging to the State of Israel, but there is a name for this type of behavior as well as legal provisions for pursuing the wrongdoer.
Defamation is the legal term used to describe false or unjustified injury of the good reputation of another by means of spreading false information; defamation by an institution is called libel and by an individual it is called slander. I have to admit on the onset that my legal expertise is limited; I am not a lawyer nor have I attempted to take the bar exam in any state, but I like to do my research, read the fine print, try to understand the law fully and its various interpretations, and examine legal precedent. That being said defamation law is a very difficult field to analyze, especially given how closely the threshold between it and free speech can be crossed. Its definition and provisions also vary between every country, and sometimes between states, however for the sake of home-court-advantage, I will assess this within the legal framework of the classical American understanding of the concept as well as the Vermont (Sen. Sanders’ home state) civil jury instructions.
According to most sources defamation is constituted by five elements;
- Someone made a statement
- That statement was published
- The statement in question caused you injury
- The statement was false
- The statement did not fall into a privileged category (such as witness testimony)
The first two elements are clearly present in this case, and I don’t think that the state of Israel or the IDF would have a difficult time proving the damage of such a statement to it’s reputation, nor would it face a challenge in providing the supporting evidence to prove the falsehood of Sanders’ claim. This statement was a part of an interview conducted for the purpose of publication and therefore it does not fall into a category of privilege, however the hardest part of justifying this suit would of course be the differentiation between slander and free speech. It could be argued that Sanders protected himself by stating at the beginning that he didn’t remember the exact figures, and therefore expressed fallibility, however that quickly transformed to liability the moment he reaffirmed the 10,000 figure after being confronted with doubt by the interviewer. In fact, according to Vermont jury instructions, wether or not Sanders had malicious intent is irrelevant to the matter as stated by section 10.3 The Fault Element:
You must next decide whether [name of defendant] [spoke, wrote, or made] the statement when [he/she]
knew it to be false,
knew it was probably false or had serious doubts as to its truth, or
[spoke, wrote, or acted] without learning if it was true or false.
These jury instructions further go on to prove that this case is one that meets all of the criteria and is warranting of compensatory and/or special damages as stipulated in section10.5.
As someone who very strongly regards the importance of the first amendment of the United States constitution as a staple of a western democracy, I believe that free speech and the expression of differing opinions is crucial to maintaining a healthy and constructive flow of political discussion.I stand by this principle even if I find the ideas to be morally repugnant, but we need to differentiate between differing opinions and lying to support a pre-existing narrative. Most of us grew up hearing the famous phrase “sticks and stones may break my bones, but words will never hurt me,” but Judaism has always taught us differently. Of the 43 sins we enumerate on Yom Kippur, 11 are speech related, and Lashon Ha-Ra (the evil tongue(slander or gossip)) is regarded as one of the worst offenses that we can do to our fellow man, seeing as financial or physical compensation can be achieved easily whereas rebuilding a reputation is far more difficult. Do I actually believe that the state of Israel should pursue a case like the one I laid out against Senator Sanders in court? No I do not, mostly because there is little to no precedent of a case like this, and also because the monetary and bureaucratic cost of such a suit would be extremely high. I don’t want senator Sanders to pay any financial damages or to censor him, but I do hope he understands the gravity of his misstatements, and the fact that we have reached a point in which litigation could theoretically be pursued shows the seriousness of this problem. However the concept of what a case like this could do or the precedent it would set would be invaluable to all those who defend the state of Israel in the court of public opinion. If only those who slander and vilify us were held accountable for their wrongdoing or if we were able to hold our adversaries to factual standards within debates.
You can read more about the interview between Senator Sanders and the New York Daily News here : http://www.timesofisrael.com/massively-inflating-death-toll-sanders-says-israel-killed-over-10000-innocents-in-gaza/