The following piece appeared in the March 11, 2011, English edition of the Israeli newspaper HaAretz.
The Hazards of Unripe Democracy
Norman L. Cantor
Israelis are understandably apprehensive that the uprisings in nearby Arab countries will produce unripe democracy – elected governments lacking democratic checks and balances and subject to malevolent manipulation and usurpation of majority will. Past experiences in Lebanon, Iraq, Gaza, and Iran, among other places, furnish good cause for such concern.
Yet Israelis should be concerned as well about internal trends inconsistent with basic democratic principles and values. In a robust democracy, freedoms of thought and expression help provide a bulwark against intemperate oligarchic control. Free expression makes a full spectrum of views and information available to an electorate to ensure informed electoral choice. Protected speech includes dissent from current orthodox positions even when that dissent is distasteful to majority views.
A recent decision of the U.S. Supreme Court illustrates how free speech protects even dissenting ideas that are hateful or unpatriotic from a majority perspective. In Snyder v. Phelps, a Christian religious sect had picketed near the Virginia funeral of an American soldier who had fallen in Iraq with signs blaming American policies tolerant of homosexuals for provoking God’s wrath. The picket signs proclaimed “God hates the U.S.” and applauded the soldier’s death as appropriate punishment for America’s tolerant policies. The pickets’ hurtful message was that the soldier had died in shame, not honor, representing a profligate nation. After the Virginia courts had awarded the dead soldier’s mourning family millions of dollars in damages for “intentional infliction of emotional harm,” the U.S. Supreme Court reversed on March 2, 2011. By an 8 to 1 margin, the Court ruled that even the upsetting, offensive expressions by the defendant sect were constitutionally protected by freedom of speech. The sect’s views about American policy might have been wrong, hurtful, and unpatriotic in a time of war, but they could not be suppressed by government unhappy with the speakers’ messages. The remedy for distorted speech is counter-speech to criticize and correct the distortions and to elucidate the facts.
Within Israel, a disturbing tendency exists to equate dissenting voices – public expressions contrary to prevailing policies – as a form of punishable treason. M.K. Miri Regev’s proposed bill to narrow parliamentary immunity is one example. Her bill was triggered by presence and expressions of another M.K. on the Turkish flotilla seeking to reach Gaza. Yet, consistent with free expression, an Israeli legislator could reasonably believe and say that the existing Gaza blockade was overly harsh and counter-productive so long as the legislator was not seeking to smuggle arms or forcibly resist the Israeli search team. Nor is it treason even to believe and argue that a military operation intended as part of national defense – such as operation Cast Lead – might be premature or hasty or ill-planned in causing excessive collateral damage.
Another basic democratic principle is preservation of the rule of law. Citizens are entitled, in a democracy, to protest government policies, but not to physically resist them with impunity. A part of the settler movement in Judea and Samaria fails to grasp this notion. An article in the March 6, 2011, English HaAretz brands the government’s destruction of unauthorized outpost Havat Gilad as “undemocratic” because a majority in the last Israeli elections had supposedly “voted against the destruction of the homes of Jews.” Put aside the puerile notion that representative democracy demands implementation of every majority preference; recent settler outrage is still misplaced. Settlers are indeed entitled to condemn the government’s destruction of unauthorized outposts like Havat Gilad, but they are also subject to appropriate punishment both for physical resistance and for protest actions blocking public transportation. Likewise for vandalizing property (“price tag” retaliations). These disruptive objectors may see themselves as justified by noble creeds, but they are in no better position than a conscientious soldier who refuses to serve beyond the green line and is then jailed for failure to adhere to army orders.
In a robust democracy, citizens can oppose and condemn public policies, but the rule of law ensures that opposition is not converted to illegal conduct disrupting public order. Part of the recent apprehensiveness following Arab popular uprisings flows from the threat of mass violence usurping majority will. A New York Times article of March 6 warns that “minorities that are organized and willing to use violence can establish reigns of terror over unorganized or passive majorities.” Settlers engaging in physical resistance to government decisions pose a similar challenge to Israeli democracy. In short, while Israelis have good cause to fear “unripe” democracy in nearby countries, they should also be alert to the maintenance of robust democracy within.
Norman L. Cantor is professor of law, emeritus, at Rutgers University Law School. He has taught about freedom of expression at both Rutgers and at Tel Aviv University faculty of law.