Barbara Pfeffer Billauer
integrating law, policy, religion and science

Who Knows Democracy? I know Democracy: It’s whatever Netanyahu wants it to be.

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Of late, various articles in Israeli English language newspapers have reported on American democratic principles used to justify Israeli practices – and fortify the pro-Netanyahu bloc. Ayelet Shaked, for one, gave a mangled view of the American judicial selection system to justify her views that she, in her former guise as Justice Minister, got to select the High Court judges. Her fantasy included rubber-stamping her selections by cabinet members and approval voted by the one-sided partisan coalition Knesset. This is democracy, she said. A look at what’s happening in America these days shows that it’s not.

Then we had Alan Dershowitz, former Harvard Law professor, tell us that no indictment could lie against Netanyahu for bribery – because it’s never been done before – in a democracy. Alas, Alan should know better. That’s not a valid reason. These are called cases of first impression for a reason. And the reason bribery charges haven’t been brought against leaders for seducing the press for favorable coverage is because this is just not done in a democracy. In dictatorships, sure, the press is often manipulated, intimidated, threatened, seduced. But we just don’t do this in a democracy, or at least we aren’t supposed to. That’s why there haven’t been any indictments. Until Netanyahu.

Then, just last week, an American rabbi penned a piece justifying shutting down protests (against Netanyahu) on the grounds that “this is not done in a democracy.” The author, an educator, to be sure, although without secular legal training, used American law to support his position. His opinion rested on the fact that protesting against Netanyahu was improper because he is a duly elected leader. No one pushed back. No one objected. No letter to the editor appeared to contradict him.

Sad to say, he got it wrong. All wrong. And very wrong.

In the article, this author advocated that “in the interest of public safety, one should suspend the right to assemble peacefully until a valid and reliable therapeutic vaccine is available.” If we are lucky, perhaps this will occur a year from now. Moreover, the position is quite, utterly, demonstrably, and embarrassingly – wrong.

The author begins by citing the case of Schenk v. United States on which to base his claim.  Sadly for him, Schenk was overturned over fifty years ago. The new standard, enunciated in Brandenburg v. Ohio, outlaws only speech which is “directed to inciting or producing imminent lawless action.”  Nothing of the sort exists in the Israeli protests, except maybe the acts of some pro-Netanyahu police. In fact, Brandenburg struck down a statute which would have prohibited advocacy of violence – in that case against Jews and “niggers” — at a mass rally of the KKK – and allowed both the violent speech and assembly.

Truth be told, freedom of assembly and speech can be suspended – but only if the harm is demonstrably imminent and unlawful, in addition to the harm being clear and compelling. When thousands of Israelis are allowed to go – against government directives – to Uman, a CoVid hot spot (the pilgrimage also seeded the 2018-2019 Israeli and American measles epidemics, sickening thousands and killing three) and other localities, and return with five dozen diagnosed cases — so far — and somehow manage to escape the quarantine dragnet, one can hardly call CoVid harm from protests– imminent.  Harm from CoVid is real, but the protests aren’t responsible for imminent danger, as recognized by dozens of American courts striking down similar attempts to prevent gatherings in our CoVid time.

As for the political speech the author claims should be banned when calling to dump “a duly elected leader” as violative of democracy, again, wrong, wrong, and more wrong. Actually, this author got the concept of democracy arse-backwards. First, our leader is NOT duly elected, a fact that seems to elude those who want to muzzle any opposition to him.  As a reminder: We have a party selected NOT by a majority, but by a plurality, and a cobbled-together government based on the fraudulent claim that we would soon see 10,000 Corona virus deaths. These hapless souls which we did elect are struggling to “play nice in sandbox” and follow the whims and wishes of someone they selected. Not you and not me. This is not a duly “elected” leader by the populace. Second, even if he were, protests and demonstrations against any political leader – even the President (or hasn’t anyone been watching TV) — are preserved, and even hallowed under the First Amendment.

It is precisely this kind of speech that the First Amendment democracy is designed to protect -even more especially when aimed at a national leader. If anyone has any doubt, he’s a link to a report on US Chief Justice Roberts’ views on the First Amendment:

I cannot imagine from where such flawed misinformation derived, other than wrongful assumptions of American law seems to be percolating through Israeli society, dispensed by who knows? To be clear: under American constitutional law, protest rallies are allowed, even hallowed,  even in the time of Corona (with whatever safeguards deemed reasonable by the Health Ministry) AND so are protests against the prime minister – or anyone else. These are the rights protected by the First Amendment.

And as a reminder, Jewish law is not necessarily Israeli Law. And if anyone is so concerned with Pikuach Nefesh, then students being flown in from America (including the Yeshiva students) should be stopped. Or is it only political assembly that is being advocated for ban?

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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