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No, democracies don’t have ‘cultural loyalty’ laws

The truth is that Miri Regev's bill was designed to castrate expression and creativity, and induce self-censorship by artists and cultural institutions
Culture Minister Miri Regev holds a press conference on the 'Culture Loyalty Bill,' at the Knesset, November 26, 2018. (Miriam Alster/ Flash90)
Culture Minister Miri Regev holds a press conference on the 'Culture Loyalty Bill,' at the Knesset, November 26, 2018. (Miriam Alster/ Flash90)

Culture Minister Miri Regev’s press conference yesterday marked the hopeful death of the “Culture Loyalty” bill, at least for the time being. The bill seeks to grant the minister holding the culture and arts portfolio the authority to censor culture in Israel, and to make funding to cultural institutions contingent on the content of their activities, based on the minister’s sole personal judgement, ostensibly in order to defend the state’s values and symbols.

While there are some unflattering historical examples of regimes and countries that adopted similar tactics, we should ask ourselves, how does Israel compare with various modern Western, European, democratic states?

Some of these “offenses” to the state values and symbols are theoretically justified because they are “covered” also by similar criminal offenses. Yet there is a substantial difference between enforcement of the criminal code and granting the power to limit artistic expression to a minister in charge of culture.

Recently a prominent Israeli journalist, referring to the French Law, argued in support of the suggested law stating that France similarly treats artists who offend the French flag. But that is actually different. A law passed in 2010 made it a criminal offense to disrespect the French flag or other state symbols, and other countries also define disrespecting the flag as a crime, some of them even extending this definition to the flags of other countries. A similar offense has been on the law books in Israel since 1949, and the penalty for the crime was made even more stringent in 2016. That said, there is a huge difference between these laws and the proposed “Cultural Loyalty” bill: the French law does not grant powers to a minister or to any other administrative official to inspect cultural activities and to cut funding to cultural institutions if they are found to have disrespected the tricolore.

In Israel, as in other countries, freedom of expression (including freedom of artistic expression) is not absolute. The criminal code places limitations on freedom of expression when it is invoked in such a way as to pose a threat to the security of the state or of its citizens, or to other key values or interests. Examples of these limitations include revealing official secrets, inciting terror, expressions of racism, obscene publications, as well as sexual harassment, libel, and invasion of privacy.

Freedom of expression, including artistic freedom, plays an important role in affording individuals an opportunity for self-fulfillment and in facilitating open public discourse, the search for truth, criticism of the regime, and true democracy. All these demand that limitations on freedom of expression be cautious and measured, and imposed only by those entrusted with doing so, rather than by those who might seek to silence free expression because of other interests. Anyone accused of utilizing a work of art in order to express disrespect for the flag, incitement, or support of terror should be investigated by the police; the decision to bring such an individual or institution to trial should be made by law enforcement professionals and the courts will consider whether a conviction is in order, based on the evidence, and on the rules of criminal procedure.

It should be noted that the “offenses” listed in the bill are a mixture of those that are already covered by criminal law, in Israel as in many other countries, and those that are not, such as “referring to the Nakba,” (Palestinian “Day of Catastrophe,” the date Israel was established) or “denying the existence of Israel as a Jewish and democratic state.” These other grounds are less well-defined, and would allow the minister in charge to cut funding to any artistic endeavor he or she dislikes for political reasons: explorations of issues of religion and state, performances featuring nudity, historical analyses of the establishment of the state or the place of Israel’s Arab citizens could all be interpreted as attacks on Israel’s status as a “Jewish and democratic state.”

Israel’s culture “scene” depends on public funding, as is the situation in other countries. Other democracies have developed systems of funding culture that create a healthy buffer between politics and cultural activity. For example, the American system provides public funding for culture on two levels — both of them free from political interference in cultural content. First, by means of tax concessions to donors, which are given regardless of the content of the cultural activities supported; and second, via the National Endowment for the Arts (NEA). Additional support is provided by public funds for the arts, both on a state and local level, which mainly support culture in the periphery (both geographic and social), fringe, or other cultural activities that do not attract sufficient attention from philanthropists.

The guiding ethos, both for the NEA and at a more local level, is to ensure that cultural activities are free from government interference, with funding decisions made independently of artistic content. An exception that proves the rule was the public controversy over possible infringement of freedom of expression during the 1990s regarding funding of “obscene” works, though even here the interpretation of what was considered obscene was left in the hands of the NEA and not entrusted to a political figure.

The European approach, in whose footsteps the Israeli model follows, and in which the state provides direct support for cultural activity, places great emphasis on creating a buffer from political involvement, whether by means of independent culture councils that make funding decisions, as in the United Kingdom; regional funds or councils that involve artists’ groups and the public in their decision-making, as in Scandinavia; or other models such as that in Belgium, where the minister is required to act in accordance with the recommendations of a public advisory body, and is allowed to deviate from these recommendations only in exceptional cases.

For anyone who has forgotten the reality of the situation here in Israel, we would remind them of the reports of the Minister of Culture’s openly declared opinion, when her views were criticized by the National Council for Culture and the Arts at the beginning of her term (March 2016): “I’ll implement my policy without you if I have to. Anyone who doesn’t like it can resign.”

We need to tell the truth and we need to deal with it: the primary goal of the bill was to undermine equality among artists and cultural consumers, to promote culture that passes the test of specific ideas and opinions, and to induce self-censorship by artists and cultural institutions, so as to fall in line with the “minister’s wishes.” The Minister of Culture has an important role in formulating culture policy and in setting priorities, such as investing budgets in the country’s periphery or in certain artistic fields. But handing over to the minister the power to decide whether a work of art or a cultural production is “kosher,” based on amorphous and ideological criteria would constitute a dangerous change that we — on both the left and the right– would regret for generations. It would castrate the expression and creativity that are at the heart of culture and art, and of their contribution to society.

We should view the Minister of Culture’s actions with grave concern and make every attempt ensure that this dangerous law is indeed “dead in the water,” so we will not take a big step toward becoming an illiberal democracy that encourages only state-authorized art.

About the Author
Adv. Edna Harel-Fisher is a researcher at the Israel Democracy Institute and the former legal adviser to the Ministry of Culture.
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