Barbara Pfeffer Billauer
integrating law, policy, religion and science

One Man’s Freedom Ends – Where the Other Man’s Nose Begins

So ends the story of the new immigrant, who on reaching American shores rapturously extends his arms in joy, and in so doing, fractures the nose of a neighboring bystander. The neighbor sues, and the immigrant finds himself in court.

“But this is America, Your Honor. Don’t I have Freedom of Speech?” cries the immigrant in his defense.

“Yes,” says the judge. “But there are limits. Your freedom ends, where the other man’s nose begins.”

The story is apparently true, recounted in a Harvard Law Review article by Zechariah Chafee, Jr in 1919 and entitled “Freedom of Speech in War Time.”

The right to unfettered freedom of the press is the crux of Netanyahu’s defense as asserted by his legal team of “four American luminary jurists,” two of whom are notoriously unknown, but no matter.

As represented by lawyer-Dershowitz and echoed by client-Netanyahu, their position is that that there isno precedent in history – no precedent in the history of Israeli law, or international law – in which favorable coverage is deemed to be bribery.”

Well, having read the brief, it doesn’t actually say that. Indeed, it wouldn’t. Lack of precedent is not an excuse for not creating one, as I am sure Mr. Deshowitz teaches his students. We call this, in law, “cases of first impression.” And no, you wouldn’t expect to find many prime ministers offering a bounty in exchange for allegedly substantial policy and quotidian control of coverage. So, certainly, this would be a case of first impression – because, it probably ain’t done much.

In fact, the brief of Dershowitz & Co. actually does cite precedent. It notes a few European cases, one American case, and relies on a briefly mentioned 2000-page British Commission inquiry — which actually has no legal weight – not even in Britain. (To be sure, the British report does discuss payoffs for positive press, but the findings are not binding and were never implemented).

Moreover, the legal cases he does cite are distractions, red-herrings. They relate to alleged defamation (a civil claim) for negative press. Ours revolves around alleged bribery (a crime) for positive coverage. Dershowitz and Co. claim these cases assert the proposition that protecting all press is vital to preserving democracy. Well, not quite. These cases hold the press must feel free to publish negative material – as courts want to avoid the prospect of “chilling” – meaning curtailing unflattering press. The reason? Because we want full and open discourse, which is a rudiment of democracy. And certainly Netanyahu wants to promote full and open discourse; right? Surely, he would encourage the police and prosecutors to honestly report their findings; correct? He would never attack the rule of law or branches of government for doing their job — which is essential to a democracy. (The very rule of law and the role of the courts and the judiciary being sacred to party-founder, Menachem Begin).

The lopsidedness of Netanyahu’s actions is even more troubling because a chunk of the population has bought into his story. He gets to say negative things about his accusers, all the while trying to muzzle them. How? By inciting the people, who march, threaten, and attack the legal systems and prosecutors, such that they fear for their lives – to the extent of requiring police protection.

Now, the law in Israel is quite clear that bribery involves: “money, monetary value, a service or other benefit,” in exchange for something of benefit. Netanyahu and family claim they were only involved in moderating a few articles, and ostensibly this is not a benefit. The state claims it was a systematic effort involving substantial press control, not just of substance, but of extent, timing and duration of positive coverage. All the while, reportedly, Netanyahu was engaged in squelching negative press– arguably for another quid pro quo. These claims, should they be proven, are not the stuff involved in the cases Dershowitz & Co. cite as precedent. These allegations are the stuff of blanket control, of an attempt to systematically bias, influence, and prejudice the very public, Netanyahu wants to determine his guilt or innocence.

If Mr. Netanyahu is correct, that he is the most castigated man in Israeli public life, that his version of the facts governs and not the State’s, he had the opportunity to present this argument to the Attorney General. He now has another opportunity to present his arguments to the court, and then to an appellate tribunal, if necessary – three legal venues are open to him to make his case. Why is he playing to a public, untutored in law, who do not have the complete facts before them?

And it is to this public, the legally ignorant, untutored masses to whom Dershowitz and Netanyahu are playing, misrepresenting the legal system by saying the public has the right to decide. Decide what? Whether the prime minister is guilty of a crime? That is the purview of the government’s lawyers. Here, and everywhere else in the democratic world. Surely, no one claims the public has the legal training to determine if the law has been broken.

But let’s assume, for the sake of argument, we do let the public decide. On what basis will they determine whether this Prime Minister – or any prime ministerial candidate – is fit to serve.? If Netanyahu gets his way, neither the police, nor the investigative branches of government can investigate him. And the press cannot report anything bad – because he has foreclosed that. Further, he claims his actions cannot be investigated nor prohibited, because they involve the press – and tampering with the press is protected, in the name of the holy grail of Democracy. In other words, according to reports of the indictment, Netanyahu has manipulated the press — both to clam up the negatives and promote the positives. Now, why would he do this? Perhaps to influence, to bias, to prejudice, the very public to whom he is playing, and in whom he is vesting his political future?

In other countries, where the Supreme Leader can determine the extent of positive coverage and simultaneously squelch negative coverage, they do not call this “democracy.” When the press is under control of the Supreme Leader, (because he can buy or intimidate them), we have what some people call dictatorship. The fact that Dershowitz claims this is “business as usual” is a sad endorsement of corruption-in-action.

Just a few days ago, in a case called National Review, Inc. v. Mann, the US Supreme Court sounded in on the issue of free speech, holding that there are limits, even when political matters are involved, and even if the matters are complex. The plaintiff, a conservative media outlet lambasted a liberal scientist, allegedly falsely. The decision did not come down on party lines. Four of the five conservative judges (plus the four liberal ones) voted against the Conservative icon, the National Review, and allowed the scientist’s defamation claim to stand – reigning in the “free press.” Indeed, the democracy we are supposed to be preserving by promoting free speech, is one that “deter[s] the uninhibited expression of views that would contribute to healthy public debate,” one that is “robust and wide-open.” Nothing in the reported activities of Netanyahu for which he seeks protection aims to achieve that goal. In fact, his alleged activities, if allowed, would foster the opposite climate- one where only his side of the story is given “front page-center coverage” — designed to capture public attention, muzzle his opponents and quell open public discourse.

Yes, even press-freedoms end where someone else’s rights begin. The rights trampled on are our rights to unbiased coverage – or at least coverage which is not bought or coerced. Free speech is not free, if it can be bought. Free press- is exactly that – free.

Somehow, I don’t see Dershowitz & Co. bringing this case to AG Mandleblit’s attention. Hopefully, some reader who knows the Attorney General and reads this will do me that favor.

 

About the Author
Grew up on Long Island, attended Cornell University (BS Hons.)and Hofstra ULaw School, MA in Occupational Health from NYU, Ph.D,. in Law and Science from Uof Haifa. Practiced trial law in New York City, Taught at NYU, University of Md Law School, Stony Brook School of Medicine. Currently Research Professor of Scientific Statecraft, Institute of World Politics, Washington, DC, Professor, International Program in Bioethics, University of Porto, Portugal. Editor Prof. Amnon Carmi's Casebook on Bioethics for Judges, Member of Advisory Board, UNESCO Committee on Bioethics. Currently residing in Netanya, Israel.
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