Speech, Media and Ethics

The Limits of Free Expression

Critical Studies on Freedom of Expression, Freedom
of the Press and the Public’s Right to Know

Raphael Cohen-Almagor
Speech, Media and Ethics
This page intentionally left blank
Speech, Media and Ethics
The Limits of Free Expression
Critical Studies on Freedom of Expression, Freedom of
the Press and the Public’s Right to Know

Raphael Cohen-Almagor
© Raphael Cohen-Almagor 2001

All rights reserved. No reproduction, copy or transmission of

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Copyright, Designs and Patents Act 1988.

First published 2001 by

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Cohen-Almagor, Raphael.
Speech, media and ethics, the limits of free expression : critical studies
on freedom of expression, freedom of the press and the public’s right to
know / Raphael Cohen-Almagor.
p. cm.
Includes bibliographical references and index.
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1. Freedom of speech. 2. Freedom of the press. 3. Mass media—Moral
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Contents

Foreword ix

Acknowledgements xi

Introduction xiii

Part I Freedom of Expression 1

1. Harm Principle, Offence Principle, and Hate Speech 3

2. The Right to Demonstrate versus the Right to Privacy:

Picketing Private Homes of Public Officials 24

3. The Right to Participate in Elections: Judicial

and Practical Considerations 42

Part II Media Ethics, Freedom and Responsibilities 67

4. Objective Reporting in the Media: Phantom

Rather than Panacea 69

5. Ethical Boundaries of Media Coverage 87

6. Media Coverage of Suicide: Comparative Analysis 105

7. The Work of the Press Councils in Great Britain,

Canada, and Israel: a Comparative Appraisal 124

Appendix: Perceptions of Media Coverage among the

Israeli-Jewish Public: a Reflection of Existing
Social Cleavages? (with Itzhak Yanovitzky) 152

Notes 166

Index 212

Index of Court Cases 217

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Foreword

The principle of free communication is probably the most complex

and controversial of all constitutional guarantees. Traditionally it has
been spoken of as the Free Speech Principle. But that expression con-
ceals the fact that the principle it enunciates is both narrower and wider
than its language suggests. The principle does not protect many things
that are in a literal sense speech. On the other hand it does protect
many things that are not speech. Defamation, obscenity, and fraud may
be perpetrated through speech acts but are unprotected. Marching,
picketing, and voting are non-speech activities but the free speech
guarantee may in certain circumstances protect them.
In 1994, in The Boundaries of Liberty and Tolerance, Raphael Cohen-
Almagor published a pioneering study of the challenge to liberal prin-
ciples of toleration posed by extremist political parties in Israel. In
Speech, Media and Ethics: the Limits of Free Expression, the examination
of the limits of tolerance is extended to embrace the problem of main-
taining a free press in the face of challenges from forces that, if left
unrestrained, would destroy the institutions of a free society. This is
the classic dilemma of liberal toleration. To the extent that liberal
theory can distinguish between what John Stuart Mill – the founding
father of free speech theory – called discussion, and expressive activi-
ties that go beyond discussion, the classic question whether we should
tolerate the intolerant has a simple answer. The toleration of discussion
or advocacy extends to the advocacy of violent or extremist policies
since ex hypothesi it extends to the advocacy or discussion (if that is
what it is) of anything. But the application of that principle and the
analysis of what it is that carries communicative activities beyond
advocacy are complex. It is also best explored, as here, in relation to
concrete instances and experiences.
Though much of this study focuses on the necessary limitation of
the communicative and journalistic function, it is written from a liberal
rather than a communitarian standpoint. Communitarian critics of lib-
eral ideology sometimes write as if liberal theory in its nature were
incapable of entertaining societal considerations or limitations
on individual aspiration. Liberals are sometimes said to be committed to
a metaphysic of the atomic individual. But – unless it is definitionally so

ix
x Foreword

arranged – there is nothing in the concept of being an atomic, molecu-

lar, or just plain individual that determines how such individuals
should behave in relation to each other. Separate identity is not incon-
sistent with mutual restraint. Individual personalities may wish to limit
their activities for good reasons for the sake of other individual person-
alities – in other words, society. In relation to expression, liberal theory
is neither in principle nor in practice incapable of accepting limitations
on freedom. It is true that some few American constitutionalists have
spoken energetically and unreflectively of the First Amendment’s free
speech guarantee as being absolute within the boundaries of political
speech. But that has not been the general consensus, and everywhere
courts and commentators in the liberal tradition operate on the
assumption that there are principled limitations on expression that
may be imposed in a free society and on a free press and, in the latter
case, that some of them are best when self-imposed.
It is even possible that defenders of liberal and democratic principles
may be too modest in expounding them. Raphael Cohen-Almagor pre-
sents his conclusions as principles that are fitted for democratic soci-
eties rather than doctrines having universal application. It is of course
true that non-democratic and non-liberal societies would reject them.
Nevertheless, if such principles are advanced as moral propositions
they must be universalisable. That is only to say that they will apply in
all societies unless there are good reasons for making exceptions and
modifications to them.
Whether there are such reasons and how the relevant principles
should be formulated are matters for close argument. But denial of
their relevance or validity by non-democratic societies should not per-
suade democrats to refrain from proclaiming them as universal moral
principles. This does not of course mean that they apply absolutely or
in uniform fashion in all places and circumstances. But the same is
equally true within one society.
Of all the dilemmas in the operation of free governments, the
dilemma of free discussion and the delimitation of press freedom are
the most intractable. In this book Raphael Cohen-Almagor tackles the
dilemma at the points where its complexities are most apparent.
Political theorists, politicians, and philosophical journalists (if such
there be) will have good reason to ponder what he has to say.

Geoffrey Marshall
The Queen’s College, Oxford
Acknowledgements

Chapter 1 contains material originally published in ‘Harm Principle,

Offence Principle, and the Skokie Affair’, Political Studies, XLI, No. 3
(1993), 453–70, reprinted in Steven J. Heyman, ed., Controversies in
Constitutional Law: Hate Speech and the Constitution (New York and
London: Garland Publishing Inc., 1996) Vol. II, 277–94. Chapter 3 con-
tains material originally published in two essays: ‘Disqualification of Lists
in Israel (1948–1984): Retrospect and Appraisal’, Law and Philosophy,
Vol. 13, No. 1 (1994), pp. 43–95, and ‘Disqualification of Political Parties
in Israel: 1988–1996’, Emory International Law Review, Vol. 11, No. 1
(1997), pp. 67–109. Chapter 5 was published in Australian Journal of
Communication, Vol. 26, No. 2 (1999), pp. 11–34. Part of Chapter 7 may
be found in Sceince and Engineering Ethics, Vol. 6, No. 3 (2000). An ear-
lier version of the Appendix was published in Hebrew in Megamot
(Trends), Vol. 39, No. 4 (1999), pp. 400 –19. I am grateful for permis-
sion to use these articles.

xi
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Introduction

This volume deals with limits on freedom of expression, defined

broadly as including the right to demonstrate and to picket, the right
to compete in elections, and the right to communicate views via the
written and electronic media. Throughout the book moral principles
are applied to analyse questions that deal with liberty and its limits.
In the liberal framework, the concept of ‘rights’ is understood in
terms of a need that is perceived by those who demand it as legitimate
and, therefore, the state has the responsibility to provide it for each
and every citizen. Rights are primary moral entitlements for every
human being. In this context one could differentiate between rights
that guarantee certain goods and services, like the right to welfare and
to healthcare, and rights that protect against certain harm or guarantee
certain liberties, like the right to freedom of expression and to exercise
choice. This book concentrates attention on the latter.
Another pertinent distinction is between an individual’s rights with
regard to the state or government and an individual’s rights with
regard to his or her fellow citizens. Rights, conceived to be legitimate,
that must be met by the state (for example, the right to life, to shelter,
and to associate), justify taking political actions to fulfil them. Rights
regarding other individuals who act illegitimately justify the use of
coercive measures against those individuals either by concerned citi-
zens (right to self-defence or to protect one’s property) or by the state.
Furthermore, the claim that citizens have rights that the state or the
government is obligated to fulfil does not mean that the state may not,
under certain circumstances, override these rights. Citizens have a right
to freedom of expression, but the state can limit that right in order to
prevent a threat to public order, the security of the state, or third par-
ties in need of protection (such as children).1
The right to freedom of expression, including freedom of the media,
lies at the centre of this volume. Liberals are quite happy to speak of
rights but do not elaborate on the limits of these rights. In the United
States, where the tradition of the First Amendment is well established,
American scholars often describe free speech and free journalism in
absolute terms.2 Obviously there needs to be very convincing justifica-
tion to interfere with this essential right and freedom. The debate on
the proper boundaries of free speech and communication is still lively,3

xiii
xiv Introduction

and many argue that the essence of the First Amendment is to guaran-
tee a free and uncontrolled marketplace of ideas. This book will address
the question of proper boundaries.
The boundaries are designed to promote the values of respect for
others, and not harming others. Liberal ideology places the individual
at the centre: all liberal reasoning derives from seeing the individual as
the focus of analysis, and all its reasoning is aimed at the advancement
and development of the individual which, in turn, would result in the
progress of society. The tradition evolving from the philosophical
thought of John Locke (1632–1704), Thomas Paine (1737–1809), Alexis
de Tocqueville (1805–59), John Stuart Mill (1806–73) and, in our time,
John Rawls and Ronald Dworkin, places the individual, in contrast to
the collective, at the centre of analysis, viewing the state as a mere
instrument to serve the interests of the individual. The liberal state is
conceptualized as a means of protecting society from external attacks, a
framework regulating the implementation of the law for the prosperity
of the citizens, a sophisticated tool to ensure individual rights.
One assumption of the liberal ideology that this book contests is the
assumption of universalism. The hypotheses advanced in this book
and the conclusions reached are limited to modern democracies emerg-
ing during the last one hundred years or so. I believe that there are
some basic universal needs that all people wish to secure such as food,
raiment, and shelter. I believe that sexual drives are universal and that
people need to have some sleep to be able continue functioning. I also
believe that we should strive to universalise moral principles. But soci-
ologically speaking we cannot ignore the fact that universal values do
not underlie all societies. Some societies reject the moral notions of lib-
erty, tolerance, equity, and justice that liberal democracies promote.
Thus my concern is with liberal democracies which perceive human
beings as ends and which respect autonomy and variety. The argu-
ments are relevant to other countries, but because non-democratic
countries do not accept the basic liberal principles, because their prin-
ciples do not encourage autonomy, individualism, pluralism, and
openness, and their behaviour is alien to the concepts of human dig-
nity and caring, one can assume that the discussion will fall on deaf
ears. Non-liberal societies, based on authoritative conceptions and
principles, deserve a separate analysis.
That said, one of the problems of any political system is that
the principles which underlie and characterize it might also, through
their application, endanger it and bring about its destruction. This
contention is obvious when totalitarian/authoritarian regimes are
 Introduction xv

considered. A well-known dictum holds that you can do many things

with bayonets, except one: to sit on them. Given the opportunity, peo-
ple will rebel against the flagrant denial of their basic liberties. What
seems to be obvious for totalitarian countries is conceived as less obvi-
ous where democracies are concerned. Because the democratic system
of ruling is designed for the people, by the people, employing the posi-
tive mechanisms of liberty, tolerance, participation, and representation
(in contrast to the coercive mechanisms utilized by authoritative sys-
tems), democracy is deemed immune to the above contention that the
very principles that underlie the system might bring about its destruc-
tion. I would argue that democracy, in its liberal form, is no exception.
Moreover, because democracy is a relatively young phenomenon, it
lacks experience in dealing with pitfalls involved in the working of the
system. This is what I call the ‘catch’ of democracy.4
Part I deals with recent controversies over freedom of expression.
The first chapter discusses free expression and its confines when deal-
ing with hate speech. It formulates principles conducive to safeguard-
ing fundamental civil rights, and further employs the theory to analyse
the Skokie affair. The focus is on the ethical question of the constraints
on speech. I advance two arguments relating to the ‘Harm Principle’
and the ‘Offence Principle’. Under the ‘Harm Principle’, restrictions on
liberty may be prescribed when there are sheer threats of immediate
violence against some individuals or groups. Under the ‘Offence
Principle’, expressions which intend to inflict psychological offence are
morally on a par with physical harm, so there are grounds for abridg-
ing them. Moving from theory to practice, in the light of the formu-
lated principles, the ruling of the Illinois Supreme Court which
permitted the Nazis to hold a hateful demonstration in Skokie is
argued to be flawed.
While the first essay deals with the right to demonstrate with the
aim to harm a target group that cannot avoid being exposed to the
demonstration, the second addresses the question of picketing private
homes of public officials. Immediately after Prime Minister Rabin’s
assassination a proposal was raised to ban demonstrations outside pri-
vate houses of politicians. I object to this proposal because of its sweep-
ing language. This chapter reviews the American, English, and Israeli
stances with regard to the subject matter, arguing that the Israeli stance
is more akin to the American, and that the right to picket cannot be
flatly prohibited. Democracy may set regulations of time, place, and
manner but it should not proscribe pickets and demonstrations at
private places. Democracy has an interest in furthering and promoting
xvi Introduction

free flow of opinion between the public and its representatives.

Sometimes the direct communication between the public and its repre-
sentatives near private homes of public figures is much more effective
both for the public and its representatives. The government and its pow-
ers, that is, the police, may require satisfying some procedural measures
but they should not set prior restraints on such direct communications.
In deciding whether to grant permission to carry out such a protest
we need to weigh the right to picket or to demonstrate, derived from
the right to freedom of expression, against the right to privacy. It is
asserted that the degree to which interference in a public official’s pri-
vacy may be tolerated should be a function of his or her political,
social, or economic position in society. The more prominent the
position, the greater latitude we have for interference with the public
official’s privacy. We need to strike a balance between the right to
communicate and the right to be let alone.
The third chapter discusses the limits of parliamentary representa-
tion as it has been tackled in Israel (the rationale, however, is made in
principled terms and could be applicable to every liberal democracy). It
reviews the decisions of the Central Elections Committee and of the
Supreme Court regarding disqualification of lists in Israel. The discus-
sion revolves around the question of what constraints on the right to
be elected to parliament should be introduced in order to safeguard
democracy. It is argued that democracy does not have to permit a vio-
lent list propounding the destruction of democracy to act in order to
fulfil its aim. It is neither morally obligatory, nor morally coherent, to
expect democracy to place the means for its own destruction in the
hands of those who either wish to bring about the physical annihila-
tion of the state, or to undermine democracy. These two are the only
cases in which democracy has to introduce self-defensive measures and
to deny representation in parliament to violent lists which convey
such ideas, and which act to realize them.
Hence, the three chapters that open the volume deal with funda-
mental liberties, and their limits. They are concerned with different
aspects of the tension between the basic inclination to allow as much
freedom as possible, and the employment of self-defence mechanisms
to safeguard and protect democracy. Together they provide a system-
atic analysis of some of the most troubling issues confronting modern
democracies, and aim to offer moral reasoning that coincides with
basic moral principles of justice and humanism.
Part II focuses attention on freedom of communication and media
ethics, a very timely concern in the western world. For the past few
 Introduction xvii

years I have been engaged in a comparative study of the main prob-

lems of the media in liberal democracies. I examine what issues trouble
the minds of media scholars and decisionmakers with regard to the
work of the media in their respective countries. In my study I reviewed
the relevant literature and, in addition, conducted many dozens of
interviews and discussions with judges and academics, media scholars
and ethicists, senior media administrators as well as reporters, in
Britain, the United States, Canada, and Israel. The lessons and conclu-
sions arising from this comparative study provide food for thought
about the relationships between media and democracy as we enter the
new millennium.
The four essays analyse some of the basic principles, and fallacies, of
the media. All these essays formulate ethical limits on the working of the
media, emphasizing that these should be self-imposed rather than
imposed on the media from above by the legislature or the courts. Like
the three previous essays, they combine theory and practice, and try to
set boundaries to free expression. Here the concern lies with the con-
cept of ‘the public’s right to know’ and its ethical constraints.
The concept of media ethics is conceived to be an oxymoron. Sadly,
many segments of the modern media are stripped of almost all ethical
concerns. In a reality of competition, ratings, and economic considera-
tions, ethics becomes a secondary, sometimes irritating issue. The idea,
so to speak, is: ‘Let me do my job of reporting and don’t trouble me with
your morals.’ Many people in the media industry portray their work as a
hack, a trade, and not as a profession, in order to legitimize their moral-
free conduct. This moral-free conception should be changed. Ethics, in a
nutshell, means taking responsibility for the consequences of one’s
conduct. People working in the media should be concerned with the
consequences of their reports. The second part of the book speaks of
the ethical mechanisms that need to be employed in the pursuit of the
public’s right to know.
The first essay of this part scrutinizes the assumption that objective
reporting is good reporting, is ethical reporting. It does so by reflecting
on different dimensions that are associated with the concept of objec-
tivity: (1) accuracy; (2) fairness and balance; (3) truthfulness; and
(4) moral neutrality. Evidence shows that most media people believe
that they are objective. It is asserted that in most cases journalists are not
objective in their reporting either because they consciously prefer not to
be or because they are being manipulated by their sources. I proceed by
an examination of the concept of ‘good journalism’, which encompasses
the requirement of objective reporting. The chapter contends that in
xviii Introduction

cases of conflict between ‘good journalism’ and the effort of getting

‘good stories’ often the latter will enjoy precedence. I close by asserting
that the values of not harming others and respecting others should
play a prominent part in the considerations of journalists. These are
basic ethical standards that sometimes require normative reporting. The
ethical journalist must be allowed to transcend objectivity by not
remaining morally neutral on some issues. Consequently, morally neu-
tral coverage of hate speech, racism, slavery, genocide, or terrorism is a
bad idea. It is a false and wrong conception.
The concern of the second chapter is with the limitations that
should be placed upon freedom of the written and electronic press. The
tragic death of Princess Diana and her lover in August 1997 and the
subsequent extensive discussions on the role of the media and the lim-
its on ‘the public’s right to know’ prompted the writing of this essay.
Freedom of speech in the media is the guiding rule, one of the founda-
tions of democracy, but at the same time freedom does not imply anar-
chism, and the right to exercise free expression does not include the
right to harm others.
This chapter consists of five parts. I commence by reflecting on
ethics in the media, and then the responsibility of journalists to their
audience and profession is discussed. Next consideration is given to
categorizing events, outlining the boundaries of media coverage. I close
with suggestions for media self-regulatory mechanisms and controls
that could improve their working.5
The third chapter supplements the preceding by devoting attention
to the troubling issue of media coverage of suicide. It examines how
the media in Canada, Great Britain, and Israel report suicide stories,
arguing for caution in reporting both for reasons of sensitivity towards
the individuals involved, the suicides and their families, and for ethical
reasons: caring for the consequences of reporting. The means by which
the suicide was committed should not, generally speaking, be reported.
Suicide should not be romanticized. Instead, the media should speak of
the emergency signals that people in distress emit, and how to help
them through by reassurance and referral to the appropriate agencies
where mentally unbalanced people can get help and support. In addi-
tion, responsibility requires that teenage and celebrity suicides be
viewed as special cases that demand extra caution. This is because
teenagers are attracted to sensational headlines about suicide, and they
are susceptible to imitation, and because celebrity suicides are the most
often imitated.6 It is maintained that, in any event, suicide should not
be reported in real time.
 Introduction xix

The fourth chapter is concerned with the powers of the press coun-
cils in Great Britain, Canada, and Israel. It shows the inherent deficien-
cies of the councils and proposes some fundamental changes. It is
impossible to have voluntary councils, with limited budgets, and yet to
expect from them serious work. It is also not feasible to hope that the
councils, sponsored by the media, could effectively criticize their spon-
sors without fear that they might be harmed if their adjudication is not
to the liking of editors and publishers. And it is quite pointless to speak
of the desired idea and practice of self-regulation without equipping
the relevant organization, the press council, with significant powers of
sanction. Here I compare the press councils in the three democracies
and outline practical recommendations for modifications.
These chapters propose recommendations for better, more ethical
media. To paraphrase the words of Tom Kent, who headed the Canadian
Royal Commission on Newspapers in 1980, the necessary motto for
reformers, in this as in other matters, is: Be prepared for the day when
some conjunction of circumstances creates a will for change. Then
practical ideas will be handy. If this is understood by some of the peo-
ple who recognize democracy’s need for a better information service
from the press, the working principles offered here will be of use.7
The Appendix, co-authored with Itzhak Yanovitzky, is also concerned
with media ethics and the limits of freedom of expression. However,
this chapter differs from all the others in two important respects: (1) it
is an empirical study based on short telephone interviews with a rela-
tively large sample of people; (2) because it describes and analyses a
public poll that was conducted in Israel, it is difficult to suggest gener-
alizations that will be true for other countries.
The essay examines public attitudes regarding the conduct of the
media. Emphasis is given to the difference between the ‘ought’ and the
‘is’; that is, in the eyes of the Jewish public,8 what should the roles of
the media be? How do the media behave in reality? What are the main
factors that motivate the conduct of the media? The article also probes
the effect of different sociodemographic characteristics (gender, educa-
tion, religiousness, ethnic origins, and economic status) on public atti-
tudes in Israel.
A public poll was conducted among Israeli-Jews (N:501). It showed
that most people accept the premise of the public’s right to know as the
general principle that should guide the media and that does guide the
media in practice. The findings reveal that the only issue in which
the ‘ought’ received a lower score than the ‘is’ was the publication of
scoops. In other words, the public thought that the media were paying
xx Introduction

too much attention to this factor in their conduct, and that the drive
for scoops should be less prominent in their reporting. The most
important factor that should guide the conduct of the media in the
eyes of the public was observing state security. The second most impor-
tant factor that should guide the conduct of the media was objectivity.
The Israeli-Jewish public sampled here thought that the media should
invest more effort in trying to be objective in their reporting. The only
guiding factor for the media in which the difference between the
‘ought’ and the ‘is’ was relatively small was the public’s right to know.
In other words, the public thought that the media more or less operate
in the name of the public’s right to know, as they should in theory. In
addition, the Israeli-Jewish public believed that the media should invest
more effort in safeguarding individual privacy and social responsibility.
The data further show that education and religiousness have moder-
ate effects on the perception of the media. The more educated have
higher expectations from the media than the less educated, and reli-
gious Jews tend to be more disenchanted with regard to the conduct of
the media than secular Jews.
In sum, all the chapters discuss basic human rights and the limits of
free expression in liberal democratic societies. Specifically they address
the issue of democratic constraints and limits, which has not been
treated adequately by the literature.

This book is the result of work that started a decade ago. I would like to
express gratitude to friends and colleagues who conversed with me on
pertinent questions, who read parts, or all of my writings, and who
supported this project in various ways. Isaiah Berlin was a kind sup-
porter. I greatly miss his friendship, advice, and the intellectual aspira-
tion he offered me when we used to meet in his room at All Souls
College, Oxford. I am deeply thankful to Geoffrey Marshall, Wilfrid
Knapp, Bob O’Neill, David Heyd, Eric Barendt, Ed Lambeth, Jim
Weinstein, Jack Pole, Dave Boeyink, Ken Karst, Rick Abel, and Sam
Lehman-Wilzig. I am also indebted to Wayne Sumner, Ronald
Dworkin, David Feldman, Yitzhak Zamir, Haim Zadok, Aharon Barak,
Zelman Cowen, Adam Roberts, Dick Moon, Valerie Alia, Georg Nolte,
Eike-Henner Kluge, David Lepofsky, Ron Robin, Gabriel Weimann,
Jonathan Cohen, Rivki Ribak, Cliff Christians, Hugh Stephenson,
David Allen, Art Hobson, David Goldberg, Ejan Mackaay, Godfrey
Hodgson, Jan Sieckmann, and Conrad Winn for their thoughtful
 Introduction xxi

remarks and incisive comments. Their knowledge, experience, and

insight were truly enriching and illuminating.
I also acknowledge with gratitude the generous support of the
University of Haifa, the Israel Ministry of Education, the British
Council, the Canadian government, the Hastings Center, New York,
the Israel Association for Canadian Studies, the Fulbright Foundation
and UCLA School of Law.
Last but not least, I express my deep gratitude to my research assis-
tants, Dafna Gold-Malchior, Keren Eyal, and Nathalie Pravedna for
their dedicated work and patience. I greatly value their assistance.
This page intentionally left blank
Part I
Freedom of Expression

Freedom of expression is vital in a democratic society. It is in

everyone’s interests that it should be upheld, provided that
this is not at the expense of other important rights. All rights,
however, carry responsibilities, especially when those exercis-
ing them have the potential to affect other people’s lives.

Report of the Committee on Privacy and Related Matters,

Cm 1102 (June 1990), para. 17.16
This page intentionally left blank
1
Harm Principle, Offence Principle,
and Hate Speech1

Introduction

The aim of this chapter is to confront the ethical question of the con-
straints of speech. Focus is put on the harm or the offence caused by
the speech in question: can we say that sometimes the harm or the
offence brought about by a certain speech constitutes such an injury
that it cannot be tolerated? More specifically, under what conditions
can preventing offence provide adequate reason for limiting freedom
of expression?
The plan for confronting these issues is the following. The discussion
is divided into two major parts: theoretical and practical. In the first
part, I shall try to formulate the restrictions on freedom of expression
in the clearest and most precise fashion possible. Too vague and overly
broad a definition might lead to administrative abuse on the part of
the government in its attempt to silence ‘inconvenient’ views. An
imprecise definition might have a snowballing effect, paving the
way for a syndrome whereby freedom of speech might become the
exception rather than the rule. Moreover, the restrictions cannot be
occasional. We have to seek a criterion that could serve both as an eval-
uative guideline and be suitable for a range of cases, covering different
types of speech (racist, ethnic, religious, and so on). In this quest I shall
avail myself of the Millian theory on liberty, which continues to
inspire the free speech literature, discussing in brief the well-known
Harm Principle, and then proceed by formulating the Offence
Principle.
In the practical part of the essay I shall attend to a hate speech case,
which arouses much controversy, the Skokie affair, evaluating the court
decision in the light of the two principles. My suggestion will be that

3
4 Freedom of Expression

there are grounds for abridging expression not only when the speech is
intended to bring about physical harm, but also when it is designed to
inflict psychological offence, which is morally on a par with physical
harm, provided that the circumstances are such that the target group
cannot avoid being exposed to it. The term ‘morally on a par with physi-
cal harm’ is intended to mean that just as we view the infliction of physi-
cal pain as a wrongful deed, seeing it as the right and the duty of the
state to prohibit such an infliction, so should we set boundaries to
expressions designed to cause psychological offence to some target group.
It will be argued that in either case, when physical harm or psychological
offence is inflicted upon others, four considerations are pertinent:

– the content of the speech.2

– the manner in which the speech is expressed.
– the intentions and the motives of the speaker.
– the circumstances in which the speech takes place.

I further assert that when no consideration is paid to these aspects,

then freedom of speech might be abused in a way that contradicts, to
use Dworkin’s phraseology, fundamental background rights to human
dignity and equality of concern and respect, which underlie a free
democratic society.3 The view enunciated in this study is similar, in
various respects, to that of German law. Article 5 of the Basic Law lim-
its the right to freedom of expression by the right to inviolability of
personal honour4 and the German Penal Code (section 130) makes it
an offence to attack the dignity of other people (inter alia, by inciting
racial hatred) and thus prevents the possibility of exploiting democra-
tic principles.5
Before contemplating the Millian theory, one preliminary method-
ological note has to be made concerning the Offence Principle. The
common liberal interpretation of Mill is that any speech that falls
under the category of ‘advocacy’ is immune to restrictions. Only forms
of instigation which bring about instant harm are punishable, and
these cases constitute the exception to the Free Speech Principle. My
view is different. I shall argue that Mill introduced an exception to
advocacy, holding that there is a category of cases of advocacy that has
to be restricted. These are concerned with offensive conduct that is per-
formed in public. Thus I will show that there are certain offensive
expressions which may be considered advocacy but which nevertheless
should be prohibited. However, it seems that my view and the com-
mon liberal view differ only in terminology, not in essence. That is,
 Harm Principle, Offence Principle, and Hate Speech 5

there are certain utterances which do not induce anyone to take a

harmful action but which should still be excluded from the protection
of the Free Speech Principle because of their imminent offensive effects
on those who are exposed to them. Some liberals would probably not
agree with my vocabulary, and would not consider what I call advocacy
to be such. They would rather put the case under the rubric of instiga-
tive speech. But I think that they would agree with my conclusions.

The Millian theory and freedom of expression

Mill proffered two main qualifications for the immunity which free-
dom of expression should, as a general rule, enjoy, and in an earlier
article concerning freedom of the press he formulated two other quali-
fications.6 He did not introduce them systematically, but in an ad hoc
way, allowing for interference in what he conceived to be special cases.
The first qualification proposed in On Liberty is concerned with the
case of instigative speech. The second qualification considers the case
of indecent conduct that is performed in public. Let us first examine
the case of instigation.
As a consequentialist, Mill acknowledged that speech loses its immu-
nity when it constitutes instigation to some harmful action. In his
corn-dealer example, Mill asserted that opinions lose their absolute
immunity when the circumstances in which they are expressed are
such as to constitute by their expression a positive instigation to some
mischievous act. Thus, the opinion that corn dealers are starvers of the
poor may be prevented from being delivered orally to ‘an excited mob
assembled before the house of a corn-dealer, or when handed about
among the same mob in the form of a placard’.7 But, that same opin-
ion ought to go unmolested when simply circulated through the press.
Accordingly we may deduce that Mill considered as instigation a
speech that aims to lead to some mischievous action in circumstances
which are conducive to the taking of that action. It seems that in
instances such as that of the corn dealer, Mill would regard certain
speeches as instigation irrespective of whether overt harmful action
follows. Though he did not explicitly say this, Mill implied that the
intention to lead people to take a harmful action constitutes an instiga-
tion.8 However, advocacy that does not induce someone to take an
action, but which is voiced as a matter of ethical conviction, is pro-
tected under Mill’s theory. This is one of his major contributions to the
free speech literature. Mill was the first to distinguish between speech
(or discussion) as a matter of ethical conviction and instigation.
6 Freedom of Expression

The essential distinction between ‘instigation’ and ‘advocacy’ or

‘teaching’ is that those to whom the instigation is addressed must be
urged to do something now or in the immediate future, rather than
merely to believe in something. In other words, instigation is speech
closely linked to action. Mill in the corn dealer explicitly opined that
when an audience has no time for careful and rational reflection before
it pursues the course of action urged on it, this speech falls outside the
protection of the Free Speech Principle since the people are too excited
to be responsible for their acts.9 Mill did not restrict the advocating of
certain opinions per se. Rather, it is the combination of the content of
the opinion, its manner, the intentions of the speaker, and the circum-
stances that necessitates the restriction. In the corn-dealer example the
harmful results of a breach of the peace, disorder, and harm to others
are imminent and likely, and therefore they outweigh the importance
of free expression.
In parenthesis, two clarifications have to be made. One relates to the
factor of ‘intention’, the other to ‘manner’. As to ‘intention’, one may
question the relevance of intention to Mill’s argument about instiga-
tion. One may argue that the relevant consideration is whether circum-
stances are such that a speech will cause a riot; that would seem
sufficient reason for intervention even when the speaker does not
intended to cause a riot. I am not convinced. The very usage of the
word ‘instigation’ implies that the intention exists to provoke a riot. I
agree that there might be unintended riots. But it seems to me odd to
use the term ‘instigation’ in that context.
As for ‘manner’; this factor characterises the way expressions are
made, be it an oral or a symbolic speech. We can think of situations in
which the manner is not so important, yet the three other factors are
sufficient to constitute instigation. Consider, for example, a leader of a
fundamentalist religious sect who urges his followers to some mis-
chievous act in a very cool and quiet tone. In this case it seems
that Mill would have had no qualms about classifying such a speech
under the heading of ‘instigation’. I shall discuss this issue further
infra.
The implications of the instigation reasoning are that it will be incor-
rect to say that all opinions bring the same results. It seems, then, that
Justice Holmes’s assertion ‘[E]very idea is an incitement’ is too hasty.10
Rather, we may concede that words, which express an opinion in one
context, can become incendiary when addressed to an inflammable
audience. The peculiarity of cases of instigation is that the likelihood
of an immediate danger is high, and there is little or no opportunity to
 Harm Principle, Offence Principle, and Hate Speech 7

conduct a discussion in the open, and to bring contrasting considera-

tions into play that may reduce the effects of the speech. Justice
Holmes himself agreed that in certain circumstances, when speech is
closely related to action and might induce harmful consequences, it
should be curtailed. In a similar way to the Millian corn dealer exam-
ple, Justice Holmes asserted in a renowned opinion that we cannot
allow falsely shouting ‘Fire!’ in a crowded theatre.11 Here too a restric-
tion on speech is justified on the grounds that the content of the
speech (that is, its effects, not its intrinsic value), the manner of the
speech, and the intentions of the agent are aimed to bring about harm,
and the audience is under conditions which diminish its ability to
deliberate in a rational manner, and therefore such a shout might lead
it to act in a harmful manner (harmful to themselves as well as to
others).12 Hence, to the extent that speech entails an immediate effect,
the arguments that assign special status to freedom of speech are less
compelling. Boundaries have to be introduced in accordance with the
context of the speech, otherwise the results could be too risky. As
Chafee asserted: ‘Smoking is all right, but not in a powder magazine.’13
Thus, incorporating the four conditions of content, manner, inten-
tion, and circumstances to the Millian and the Holmesian examples,
the following argument may be deduced:

Argument number one: any speech, which instigates (in the sense of
meeting the four criteria of content, manner, intention, and circum-
stances) to cause physical harm to certain individuals or groups, ought
to be curtailed. Note that this argument is a much more decisive ver-
sion of the Millian Harm Principle.14

Let us now move on to examine Mill’s second exception which quali-

fies, in my opinion, the immunity Mill generally granted to advocacy.
This exception considers the case of indecent conduct done in public.
Although Mill spoke of ‘conduct’ and did not explicitly mention
speech, it is plausible to argue that he included utterances, as well as
acts, when he set out this qualification.15 Mill implied that there are cer-
tain cases which fall within the scope of social regulation, and people
not only have the right but the duty to put a stop to those activities by
individuals. In a brief paragraph he discussed a category of actions
which being directly injurious only to the agents themselves, ought not
to be legally interdicted, but which, ‘if done publicly, are a violation of
good manners, and coming thus within the category of offences against
others, may rightly be prohibited’.16 This argument is in accordance
8 Freedom of Expression

with Mill’s position on the importance of autonomy. There are inti-

mate matters, which do not concern anyone but the individual so long
as they are done in private. But when they are done publicly, they
might cause offence to others, and the state may legitimately control
them.17 Of this kind, Mill said, are offences against decency.
Hence, in certain situations, one is culpable not because of the act
that one has done, though this act might be morally wrong, but
because of its circumstances and its consequences. Mill assumed that
one can evaluate the rightness and wrongness of an action by consider-
ing its consequences, believing that the morality of an action depends
on the consequences which it is likely to produce.18 Since one is to
judge before acting, one must weigh the probable results of one’s
doing, given the specific conditions of the situation.
From these arguments we may infer that it is usually not the act
itself that is crucial for taking a stand on this subject, but the forum in
which it is done. In other words, a certain conduct in itself does not
necessarily provide sufficient grounds for interference. But if that same
conduct is performed in public it might be counted as morally wrong,
and consequently constitutes an offence, so it is legitimate to curtail it.
Enforcement of sanctions may be justified when a conduct causes
offence to others.19
To sum up: the two exceptions brought forward by Mill touch upon
the time factor, which distinguishes speech from action. Thus, action –
if it endangers the public, or part of it – might have immediate conse-
quences; whereas speech, if it has any endangering effect, will have it
in most cases sometime in the future, whether near or more remote,
and thus will allow us a much wider range of manoeuvres.20 Even if a
specific view might cause harm, or risk of harm to others, but the dan-
ger is not immediate, then free speech has to be allowed. However, in
some circumstances the time factor might lose its distinctiveness, with
the result that the effects of the expression in question are immediate.
Indeed, both in the case of instigation as well as in cases of moral
offence (say when one vulgarly praises in public the sexual qualities of
one’s next door neighbour or one’s performances in bed, knowing the
anguish that the neighbour might suffer as a result), the effects of the
expression are instantaneous, and thus might bring about hurtful con-
sequences now, rather than at some remote point in the future. That is,
when we discuss the issue of obscene speech or defamation,21 the line
between conduct and speech, according to the criterion of time,
becomes blurred and consequently these utterances are not protected
under the principle of freedom of speech.
 Harm Principle, Offence Principle, and Hate Speech 9

The preliminary argument (number one) included the term ‘physical.’

I formulated the argument, using this term, in order to avoid at that
stage the question of whether the formula ought to include other sorts
of harm. I have now argued that in the cases both of instigation and of
indecent conduct done in public, the effects of the communication are
immediate. Yet such conduct does not necessarily fall under the first
argument, for offences against decency may not be physical. There
seem to be other notions of injury that Mill articulated when he intro-
duced this qualification. The expression in question may fall under the
rubric of ‘advocacy’, in the sense that it does not induce anyone to
take a harmful action. Nevertheless, the expression may still be
excluded from the protection of the Free Speech Principle because of its
offensive effects on those who are exposed to it. This is the only excep-
tion that is implied in Mill’s theory with regard to advocacy. It is the
combination of the content of the advocacy, its manner, the intentions
of the speaker, and the fact that it is done publicly which gives grounds
for restriction. Certain types of advocacy constitute a violation of good
manners thus coming within the category of offences and, consequently,
may rightly be prohibited. In order to understand what notions of
injury may be included under this qualification, which may be put
under the heading of the Offence Principle, it is necessary to explain the
distinction between ‘harm’ and ‘offence’. Here Joel Feinberg supplies
some useful guidelines.

Feinberg: the offence principle

Feinberg explains that like the word ‘harm’, the word ‘offence’ has
both a general and a specifically normative sense, the former including
in its reference any or all of a miscellany of disliked mental states (dis-
gust, shame, hurt, anxiety, and so on), while the latter refers to those
states only when caused by the wrongful (right violating) conduct of
others. He postulates that offence takes place when three criteria are
present: one is offended when (a) one suffers a disliked state, and
(b) one attributes that state to the wrongful conduct of another, and
(c) one resents the other for his role in causing one to be in that state.22
Feinberg maintains that the seriousness of the offensiveness will be
determined by three standards: (1) ‘the extent of offensive standard’ –
meaning the intensity and durability of the repugnance produced, and
the extent to which repugnance could be anticipated to be the general
reaction of strangers to the conduct displayed; (2) ‘the reasonable avoid-
ability standard’ – which refers to the ease with which unwilling
10 Freedom of Expression

witnesses can avoid the offensive displays; and (3) ‘the Volenti
standard’ – which considers whether or not the witnesses have willingly
assumed the risk of being offended either through curiosity or the antic-
ipation of pleasure.23 Standards (2) and (3) are of relevance when we
examine the circumstances in which an offensive speech is expressed.
Feinberg categorically asserts that offence is a less serious thing than
harm, and thus ignores the possibility that psychological offences
might amount to physical harm, with the same serious implications.
The next section specifically reflects on this subject through considera-
tion of Feinberg’s standards. Here, however, if we return to Mill’s sec-
ond qualification, we may say that morally wrong actions which
concern others cause one to suffer a disliked state, which one attributes
to the doer’s conduct. Consequently one resents the doer for his acts.
Nevertheless, offences against decency are problematic, since what is
offensive to one may not be regarded as offensive at all by another. If
we want to make the Offence Principle an intelligible principle, the
offence has to be explicit, and it has to be more than emotional dis-
tress, inconvenience, embarrassment, or annoyance. We cannot outlaw
everything that causes some sort of offence to others. If the Offence
Principle is broadened to include annoyance, it becomes too weak to
serve as a guideline in political theory, for almost every action can be
said to cause some nuisance to others. Cultural norms and prejudices,
for instance, might irritate some people. Liberal views may cause some
discomfort to conservatives; and conservative opinions might distress
liberals. Some, for instance, might be offended when hearing a woman
shouting commands, or just by the sight of black and white people
holding hands. This is not to say that these sorts of behaviour should
be curbed because of some people who are ‘over sensitive’ to gender or
interracial relations. Similarly, if someone is easily offended by porno-
graphic material, one can easily avoid the pain by not buying maga-
zines marked by the warning: ‘The content may be offensive to some.’
Under Feinberg’s ‘reasonable avoidability’ and ‘Volenti’ standards the
offence cannot be considered serious. Injuries, to be restricted under
the Offence Principle, must involve serious offence to be infringed. By
‘serious offence’ it is meant that consideration has to be given to the
‘reasonable avoidability’, and the ‘Volenti’ as well as the ‘extent of
offensive’ standards. The repugnance produced has to be severe so as to
cause an irremediable offence, which might affect the ability of the
listeners to function in their lives.
Let me consider in some more detail Feinberg’s ‘reasonable avoidabil-
ity standard’. Under this standard and Mill’s argument regarding public
 Harm Principle, Offence Principle, and Hate Speech 11

immoral actions, the offence has to be committed in such circumstances

that those offended by it cannot possibly escape for there to be grounds
for restriction. For example, if a person takes a stool to Hyde Park
Corner, advocating the abolition of Parliament, throwing out all Indians,
expressing his desire to become the new Stalin of tomorrow, and
claiming that yesterday he was Napoleon, the offence cannot be con-
sidered anything more than annoying, or anything more than an
inconvenience to the listeners, for they can simply leave the place and
free themselves of the speaker’s presence, as well as of his speech. We
cannot say that the audience’s interest in ‘having a good environment’
is more important than the speaker’s interest in conveying his
thoughts.24 Also, the argument that this communication does not carry
substantive content cannot serve as sufficient reason for abridging it,
for then we might supply grounds for curtailing many other speeches
that just repeat familiar stands. In addition, ‘the extent of offence stan-
dard’, determined by the content and manner of the speech, and ‘the
Volenti standard’, do not provide reasons for restriction.
The situation is different, however, when the avoidance of offensive
conduct in itself constitutes severe pain. Then we may say that the
matter is open to dispute. That is, if those who are offended by a cer-
tain speech feel an obligation to stay because they think that they will
suffer more by leaving and avoiding it, then there are grounds for plac-
ing restrictions on speech, provided that the extent of the offence is
considerable. In any event, it is the combination of the content and
manner of the speech, the evil intention of the speaker, and unavoid-
able circumstances that warrants the introduction of sanctions.
In the next section I shall discuss the Nazis’ decision to march in
Skokie as an illustration of this argument. In this case the conflict over
freedom of expression involves the freedom to march and demon-
strate. I shall attempt to assess the preliminary court decisions to ban
the march, as well as the Illinois Supreme Court ruling which allowed
the demonstration of hatred, and explore whether the Offence
Principle supplies us with grounds for supporting one over the other.
Before embarking on this endeavour, however, one clarification is
needed. In applying the Offence Principle to Skokie I do not claim that
racist and hateful speech should be considered a distinct case, as some
philosophers and commentators urge, thus excluding it from the pro-
tection usually accorded to expression.25 It may be suggested that if we
are to speak of matters of principle, racist speech is incompatible with
liberal democracy, so it should be outlawed. I am in favour of regula-
tion of racist speech rather than outright prohibition.26 My reluctance
12 Freedom of Expression

to accept the principled line of reasoning evolves from two basic con-
siderations. First, I do not see why verbal attacks on race, colour, reli-
gion, and so on, should be regarded as a unique type of speech that
does not deserve protection. I find it difficult to see why racist expres-
sions should be thought different from verbal attacks on one’s most
fundamental ethical and moral convictions – as, for instance, in the
abortion or the euthanasia cases. I do not see why dignity or equal
respect and concern is so much at stake in the former than in the latter.
Second, there is lack of agreement on the meaning of the term
‘racism’. Different countries and forums put different types of speech
under the heading of ‘racism’. By excluding racist expressions we might
open the way to curtail expressions that we may want to defend. For
instance, Zionism was condemned as a form of racism, so accordingly
anyone who expresses his desire to live in Zion (Israel) might be consid-
ered a racist by some. This claim is less strong than the preceding, for
we can define exactly what sorts of speech should be put under ‘racism’.
However, the argument is in place because in applying common terms
from one place to another, definition might be lost on the way.
Consequently, my intention is to formulate general criteria to be
applied consistently not only in cases of racial hatred, but also in other
categories of offensive speech. Any speech, be it on religious, ethnic,
cultural, national, social, or moral grounds, should be placed within
the confines of the two principles that are suggested.27 Speech that
instigates causing immediate harm to the target group, and speech that
is designed to offend the sensibilities of the target group – in circum-
stances that are bound to expose the target group to a serious offence
(which is morally on a par with physical pain) – should be restricted.

Applying the offence principle: the Skokie controversy

Background
What came to be known as ‘the Skokie case’ began in April 1977, when
Frank Collin, the leader of the National Socialist Party of America
(NSPA) announced that a march would be held in Skokie, one of the
suburbs of Chicago, inhabited mostly by Jews, some hundreds of them
being survivors of Nazi concentration camps.28 The Skokie residents
obtained an injunction in court that banned the march. Referring to
the Brandenburg case, they contended that the display of the Nazi uni-
form and the swastika were the symbolic equivalents of a public call to
kill all Jews, and consequently that it constituted a ‘direct incitement
to immediate mass murder’.29 After a long legal struggle, which lasted
 Harm Principle, Offence Principle, and Hate Speech 13

until January 1978, the Illinois Supreme Court, in a seven to one deci-
sion, ruled in favour of Collin.30 The main argument was the ‘content
neutrality rule’ according to which political speech shall not be
abridged because of its content, even if that content is verbally abusive.
Speech can be restricted only when it interferes in a physical way with
other legitimate activities; when it is thrust upon a ‘captive’ audience,
or when it directly incites immediate harmful conduct. Otherwise, no
matter what the content of the speech, the intention of the speaker,
and the impact of the speech on noncaptive listeners, the speech is
protected under the First Amendment to the Constitution.31
The Court dismissed the main arguments of the residents of Skokie,
declaring that the display of the swastika was symbolic political
speech, which was intended to convey the ideas of the NSPA, even if
these ideas were offensive. Similarly it was argued that the plaintiffs’
wearing uniforms need not meet standards of acceptability. The judges
further concluded that anticipation of a hostile audience could not
justify prior restraint or restrict speech, when that audience was not
‘captive’. Freedom of speech cannot be abridged because the listeners
are intolerant of its content.32

The ‘avoidability standard’

Two basic things concerning this case are plain and generally agreed
upon. First, Skokie was not a case of a captive audience, because there
was advance notification of the Nazis’ intentions. Second, the argu-
ment that the Nazi march or speech was designed to convince some
members of the audience to embrace all, or part of the Nazi ideology,
was not an issue. It was obvious that Collin’s aim was not to con-
vince his audience but to offend the Jewish population in Skokie.
Nevertheless, the Illinois Supreme Court ruled that it was not a case of
‘fighting words’,33 because the display of the swastika did not fall
within the confines of that doctrine,34 and because it was no longer
the prevailing thought that it was up to the court to assess the value of
utterances. The Court ruled that the wearing of Nazi uniforms and the
display of the swastika constituted political speech that was protected
under the Free Speech clause.35
In his examination of the Skokie decision, Feinberg lays emphasis on
the contention that given the relative ease by which the Nazis’ mali-
cious and spiteful insults could be avoided, there was not an exception-
ally weighty case for legal interference. Since the Nazis announced the
demonstration well in advance, it could easily be avoided by all those
14 Freedom of Expression

who wished to avoid it, in most cases with minimal inconvenience:36

‘Despite the intense aversion felt by the offended parties, there was not
an exceptionally weighty case for legal interference with the Nazis,
given the relative ease by which their malicious and spiteful insults
could be avoided.’
In other words, Feinberg reiterates the reasoning of the Illinois
Supreme Court in favour of the NSPA, in accordance with his ‘reason-
able avoidability standard’. He maintains that ‘the scales would tip the
other way’ if their behaviour were to become more frequent, for the
constant need to avoid public places at certain times can soon become
a major nuisance.37 Since the issue concerned only one demonstration,
the solution was easy enough: those likely to be offended simply had
to be elsewhere when it was held. These assertions are in accordance
with Feinberg’s emphasis on the intensity and the durability of the
repugnance produced.38
From this analysis we can deduce that the crux of the matter lies in
the ‘avoidability standard’: the Jews can ignore the offence, as others
ignore the giving of ‘the finger’. For Feinberg, as for the court, the Jews
did not have to attend the rally. However, not attending the march was
no solution at all for these Jews, because it took them back to the days
when they had to hide from the Nazis. The survivors of the Holocaust
learned the lesson not to keep silent, not to wait until another ‘wave of
hatred’ was over. The lesson of 1933 was enlightening enough. Hiding
and running away had been their solution in Europe, when they could
not do anything else. That solution, they thought, was over and done
with when they came, after the war, to live in the United States. For
them as Jews, when the Nazi phenomenon was at issue, there was no
other way but to stand against it with all their power, especially when
the Nazis decided to come to their own neighbourhood with the inten-
tion of hurting, and awakening fear. Therefore, the suggestion that the
Nazis would march in their own front yard without their being present
was inconceivable. It was not a matter of a ‘nuisance’ to avoid ‘public
places’ as Feinberg suggests; it is neither a matter of a nuisance, nor of
a public place.
If the Nazis were to march elsewhere in Chicago (say in the city
centre), their right to be heard would be granted protection under the
Free Speech Principle. Then one could say that this march was equally
offensive to the Jews of Chicago, New York, or Tel Aviv.39 But this is not
the case when Nazis come to a populated Jewish neighbourhood, when
the clear and deliberate intention is to offend and excite the inhabitants,
especially when they know that many of them are survivors of the
 Harm Principle, Offence Principle, and Hate Speech 15

Holocaust. Intentions and motives do matter because they may lead to a

wrong interpretation being given to the real and true motives of the
agent. True, the same conduct may be interpreted in different ways,
according to the motives of the doer.40 But here there is no fear of such
possible confusion. Here it is not a case of interpretation at all for the
Nazis voiced their reasons for coming to Skokie. It has to be emphasized
that the intentions and motives were manifested by Collin himself,
who said that he had decided to march in Skokie in order to spite and
offend the Jews. Under such circumstances, refraining from attending
the march was not a solution for the Jews, as Feinberg suggests, for it
would not make them evade the injury. It might even increase it.
Clearly Collin did not mean to persuade the Jews that he was right,
or that his ideas were justified.41 He chose Skokie not only because
there was a big community which he could offend but also because he
wanted to gain public attention. As Dworkin suggested to me,42 it was
the grotesqueness of the venue that gained attention. This, of course, is
true. The choosing of a venue is cardinal to the success of the demon-
stration. Protests are made where they can convey their message best.
For example, we would not seriously consider a demonstration against
sending troops to Saudi Arabia, say, in a zoo. We would expect such
a demonstration to take place outside the draft offices, or opposite
10 Downing Street. By the same logic, we would expect a Nazi to pro-
pagate his ideas in a Jewish neighbourhood. The question is, however,
whether or not our understanding of Collin’s motives in choosing
Skokie to attract public attention and media coverage should convince
us to allow the march. My conclusive answer is ‘No’. I repeat: when the
offence is serious; the intentions of the offender are clear; and the
target group is not in a position to avoid the offence, then democracy
should draw the line and constrain freedom of expression.
Furthermore, these arguments do not intend to suggest that only
demonstrations that are meant to persuade should be allowed, whereas
those that mean to protest or to offend should be prohibited. As stated,
the intentions of the demonstrators is only one of the considerations
that we should bear in mind when deciding on boundaries of freedom
of expression. No less important are the seriousness of the offence and
the circumstances in which the protest is being made; that is, whether
or not the target group can avoid the demonstration without being
hurt by the very act of going away. In this context, historical experi-
ence is of relevance.
Thus, the Skokie Jews were put in such a position that in either case
they would have been offended: if attending the demonstration, they
16 Freedom of Expression

would have to see the swastika, the Nazi uniform, and so on; and if not
attending, it would have been as if to allow Nazism to pass, and pass in
their own vicinity. Skokie exemplifies the democratic ‘catch’ in a vivid
manner: the same liberty that is granted to Nazis to exercise their belief
that espouses hatred and malicious speech might endanger their target
group that wishes to maintain their peaceful life and protect what they
conceive as a fundamental right not to be harassed by hate mongers.
Acceptance of the ‘avoidability standard’ only criticizes the main
argument of the Illinois Supreme Court. It does not in itself constitute
sufficient grounds to imply that the Nazi right to freedom of expres-
sion had to be curtailed in that instance. What I have tried to establish
until now is that the seriousness of the offence was severe according to
‘the Volenti standard’ and ‘the reasonable avoidability standard’. Now
there is still a need to clarify the scope of ‘the extent of the offence
standard’, and explain how serious the offence has to be for it to be
liable to restriction. The fact that Skokie was not a case of instigation
might have been a sufficient reason to protect the expression and allow
the march, unless we can say that the expression in itself constitutes
pain that could be considered morally on a par with physical harm. In
other words, while it is true that Skokie could not fall within the
confines of the Harm Principle, nevertheless, if strong argument were
provided that the very utterance of the Nazi speech constitutes psycho-
logical damage that could be equated with physical pain, then a strong
case might be provided against tolerance under the Offence Principle,
and in accordance with ‘the extent of offence standard’. Then we may
hold, contrary to Feinberg’s presupposition, that an offence might be
as serious as harm.43

Psychological offence, morally on a par with physical harm

The issue of psychological damage is problematic for two reasons. First
there is the general claim that the law is an inappropriate instrument
for dealing with expression which produces mental distress or whose
targets are the beliefs and values of an audience.44 Second, speaking
of psychological damage necessarily involves drawing a distinction
between annoyance or some emotional distress, and a significant
offence to the mental framework of people.
As for the first claim, Haiman postulates that individuals in a free
society ‘are not objects which can be triggered into action by symbolic
stimuli but human beings who decide how they will respond to the
communication they see and hear’.45 He conceives people as rational
human beings, who carefully weigh arguments and decide according to
 Harm Principle, Offence Principle, and Hate Speech 17

them. He does not acknowledge that people also have feelings, drives,
and emotions, which are sometimes so powerful as to dominate their
view regarding a certain object, or a phenomenon, or other people. He
is not willing to concede that a personal trauma, for example, might
prevent an autonomous person, who is usually capable of reason and
making choices, from developing a rational line of thought about the
causes of his or her trauma. As far as Haiman is concerned, the anguish
experienced by those exposed to scenes that remind people of their
trauma is a price that must be paid for freedom of speech. He admits
that it is difficult not to seem callous in holding this position, but he
‘must take that risk and so argue’.46 Otherwise, those who display Nazi
symbols would have to be prohibited from appearing not only in front
of the Skokie Village Hall but in any other public place where it might
be expected that they would be seen by survivors of the Holocaust.
Furthermore, a television documentary examining and vividly portray-
ing neo-Nazi activity might have to be censored because of its impact
on Holocaust survivors.47
Both arguments, however, are not sufficient to explain why the law
should not deal with expressions which produce mental distress, for
the ‘avoidability standard’ takes the sting out of them. The Offence
Principle, as postulated, does not supply grounds to restrict either of
Haiman’s examples. One can switch one’s television off, or intention-
ally avoid an encounter with an offensive phenomenon in the city
centre. Either of these acts may be deemed necessary to keep one’s
peace of mind. However, an intentional going away from facing an
offensive phenomenon occurring in one’s own neighbourhood entails
more than mere avoidance. It may be seen by some as surrender. This
Haiman, like Feinberg and others, fails to understand.
With regard to the second issue, the distinction between annoyance
or some emotional distress and a severe offence to one’s psyche is not
clear-cut and it is bound to awaken controversy. For the task obviously
requires professional judgements, which further complicates this issue.
These reasons, among others, have influenced the literature to the effect
that it lacks sufficient consideration regarding the potential psychologi-
cal injury that certain speech acts might cause. But these difficulties
should not make us overlook the issue. Rather, because we are aware of
the complexities that are involved, we must make the qualifications as
conclusive as possible and the requirements equally stringent, in order
not to open avenues to further suppression of freedom of expression.
As previously stated, we must insist that restrictions on freedom of
expression be as clear as possible, for otherwise they might become
18 Freedom of Expression

counter productive in the sense that instead of protecting our liberties,

they will assist in their denial. Hence, there can be no doubt that when
we speak of a psychological offence, we refer to one that is well beyond
inconvenience, irritation, or some other marginal form of emotional
distress. Only considerable pain, one which is not speculative, and
which is preferably backed by material evidence, may provide us with a
reason to restrict freedom of expression under the Offence Principle, in
that the circumstances make the offence inescapable. With regard to
Skokie, therefore, our task is to establish that the offence was such as
to constitute an injury that outweighed the special status reserved for
freedom of expression.
There was testimony by psychologists on the possible injuries many
Jews would suffer as a result of the march. They argued that this speech
act might be regarded as the equivalent of a physical assault.48 This
entails that the speech act was properly subject to regulation (if we
recall Scanlon’s theory of free speech), as was any physical attack.49
Thus, in opposition to the Brandenburg and Skokie decisions, the argu-
ment here is that the content of speech is of significance. In emphasiz-
ing the importance of content, the focus is put not on the truth of the
speech, but rather on its effects. When the content and the purpose of
expression are overlooked, freedom of speech may be exploited in a
way that rebuts fundamental principles that underlie a democratic soci-
ety. Indeed, the United States Supreme Court recognized in a series of
cases several classes of speech as having ‘low’ value, and thus deserving
only limited constitutional protection.50 The Court held that otherwise
speech could be exercised wilfully to inflict injury upon the target per-
sons and groups, thus transforming freedom of speech into a means for
curtailing freedoms of others. Therefore, we should bear in mind the
content of speeches, and when they are designed to inflict psychologi-
cal damage upon their target group, then there is a basis to consider
their constraint. Here it is worth mentioning the Illinois Appellate
Court ruling, later to be overruled by the Illinois Supreme Court, which
justified the restriction of the Nazi march because of the likelihood of
such injury. The court said that: ‘the tens of thousands of Skokie’s
Jewish residents must feel gross revulsion for the swastika and would
immediately respond to the personally abusive epithets slung their way
in the form of the defendants’ chosen symbol, the swastika … ’.51
It maintained that the swastika was a personal affront to every member
of the Jewish faith, especially to Holocaust survivors. These beliefs were
powerful enough for a ruling in favour of Skokie’s residents and against
Collin. However, this ruling supplies a weaker standard than the one that
 Harm Principle, Offence Principle, and Hate Speech 19

was just declared to restrict free speech. ‘Gross revulsion’ and ‘personally
abusive epithets’ make a more general standard for constraining free-
dom of speech. As said, one person might be offended simply at the
sight of black and white people holding hands. Another may feel gross
revulsion when watching a commercial featuring a woman in a bathing
suit. We cannot extend the scope of the Offence Principle so as to
include any potential reaction of disgust on the part of some people.
Therefore, we ought to insist on the more stringent requirement, that
which holds that restriction on freedom of speech under the Offence
Principle is permissible only if we can show that the speech in question
causes psychological offence, which may be equated with physical pain.
Now, however, we face the problem of making this distinction
between an offence which causes ‘emotional distress’, or is a ‘personal
affront’, and an offence which causes ‘psychological injury’ amounting
to physical pain, an intelligible distinction. It has been argued that
offensive acts in general cause unpleasant distressful psychological
states to one degree or another. To be offended is, by definition, to suf-
fer distress or anguish.52 It is, therefore, reiterated that the Offence
Principle allows infringement of freedom of speech only in specific
cases, when the damage is deemed irreversible. Skokie is a relevant case
because racist utterances, as stated before, have a damaging psycholog-
ical impact on the target group, which is difficult to overcome or to
reverse. Concentration camp survivors carry psychological scars with
them for the rest of their lives. Often they have sustained residual
organic and psychological damage, and find it difficult to cope with
any kind of stress, especially when it is imposed on them by malicious,
invidious Nazis who provoke them and wish to disturb their peace and
undermine their lives.53 Consequently it would appear that ‘the extent
of offence standard’ is satisfied to an extent that Feinberg himself does
not acknowledge when formulating his standards. In some instances
the seriousness of the offence is such that it can be viewed as morally
on a par with physical harm. A Nazi march in a Jewish neighbourhood
populated by Holocaust survivors is a case in point.
A further clarification is called for in order to make the argument
under the Offence Principle more precise. The Principle does not provide
grounds to restrict racial hatred as such. It insists that we should take
into consideration the circumstances in which the speech is made. In
this respect my view is somewhat different from criminal codes of some
European countries, such as Great Britain or Sweden.54 With regard to
the British stance, sections 5 and 18 of the Public Order Act 1986
are of specific relevance.55 Section 5 prohibits threatening, abusive,
20 Freedom of Expression

or insulting speech likely to cause harassment, alarm, or distress.56

There need be no intention to insult: it is sufficient that an ordinary
person might feel so insulted.57 In turn, section 18 of the 1986 Act
reads:

1) A person who uses threatening, abusive or insulting words or

behaviour, or displays any written material which is threatening,
abusive or insulting, is guilty of an offence if (a) he intends thereby
to stir up racial hatred, or (b) having regard to all the circumstances
racial hatred is likely to be stirred up thereby.58

By the British reasoning, grounds might be provided to prohibit a

Hyde Park Corner speaker from conveying racist opinions; while this
essay postulates that a Hyde Park Corner speaker wishing to preach
racial hatred should not be denied expression because the listeners are
free to leave the place at will, thereby avoiding the offence. Relying
on the Millian formulation of the Offence Principle, which speaks
of a combination of consequences and circumstances, and also on
Feinberg’s standards, which determine the seriousness of the offensive-
ness, it is emphasized that the fact that some types of speech (such as
racial and discriminatory advocacy) create great psychological distress
is not in itself a sufficiently compelling reason to override free speech.
The Home Affairs Committee of the House of Commons in its fifth
report (1979–80) recommended not to create power to ban marches
where there was a likelihood of racial incitement. Barendt, concurring,
writes: ‘ … however distasteful the views of these [racist] organisations
may be, they are entitled to the same freedom of speech as those with
more orthodox opinions, and the suppression of such views may be
the first slide down the “slippery slope” towards total government
control of political discourse.’59
There is no disagreement that the prescribing of boundaries to free-
dom of expression has to be a painstaking effort, involving careful
consideration and lucid articulation, so as to avoid sliding down the
slippery slope. I must express reservations in regard to the traditional
British position, which solely emphasizes the fear of provoking a
breach of the peace. This reasoning comes close to argument number
one. Indeed, looking at the way the British authorities have dealt with
fascist and racist demonstrations over the years, one can assume that
this reasoning would have been invoked in order to ban a Skokie-like
demonstration.60 It seems that the British approach is at variance with
that adopted in the United States.61
 Harm Principle, Offence Principle, and Hate Speech 21

In Britain, unlike the United States, there is no guaranteed right to

demonstrate. The view is that public processions are prima facie lawful;
that is, peaceful demonstrations are lawful.62 Accordingly, a procession
may only be banned on the ground that it is likely to cause ‘serious
public disorder.’63 Here lies my disagreement with the British stance.
My view is that the apprehension of serious public disorder should not
be the sole ground for the prohibition of processions and assemblies.64
Thus I have offered the Offence Principle as another reason for abridg-
ing expressions. The British authorities considered this reason in the
Green Paper of 1980 and the White Paper of 1985, and rejected it on
both occasions.65
One additional comment has to be made before formulating the
argument under the Offence Principle. Among the justifications voiced
for the Skokie decision was the contention that if the Nazis were denied
free expression, this would jeopardise the entire structure of free
speech rights that has been erected. According to this argument, to per-
mit Skokie to ban this speech because of its offensiveness would mean
that southern American whites could ban civil rights marches, espe-
cially those that are held by blacks.66 Let us assume that it is plausible
to argue that the degree of the irritation resulting in this case
amounted to psychological offence. Then these southern whites could
claim that these demonstrators acted in a manner which they found
seriously offensive; that they maliciously, recklessly, or negligently dis-
regarded their interest in not being harmed by seriously offensive
actions, such as marching in ‘their’ territory; that the corollary of these
marches was severe injury, conducive to further impairment of those
whites who were offended, and difficult to reverse.
The Offence Principle, however, is intended to defend against the
abuse of freedom by those who deny respect for others. It is not to assist
those, whose motivation is to cause harm to others, whose aim is either
to intimidate or to discriminate and to deny rights to others.67 There is
a set of values that underlie a liberal society and we judge in accordance
with it. The fact that some individuals are offended by a speech that
advocates equal rights cannot supply sufficient reason for its restriction.
The Principle bears on freedom of expression when the speech in ques-
tion contradicts fundamental background rights to human dignity and
to equality of concern and respect.68 Otherwise, every speech which
some might find psychologically offensive may be curtailed. Members
of the civil rights movement who come to demonstrate in the southern
United States do not deny the rights of any group of people. In contrast
to the Nazis in Skokie, they are not deliberately setting out to upset
22 Freedom of Expression

southern whites. The intentions of the civil rights marchers are not to
offend but to protect the rights of those who are discriminated against
by those who now claim that they are being offended. The right to free-
dom of speech is here exercised out of respect for others, aiming to
preach values that are in accordance with the moral codes of a liberal
society, not values which deny these accepted moral codes. Those who
are offended by the values adopted by the entire society implicitly
argue when wishing to prevent the demonstration that their problem is
not with the march as such. Rather, their problem is a matter of princi-
ple, which concerns their own place within a liberal society.
Hence, four major elements should be taken into account when we
come to restrict expression on the grounds of psychological offence:
the content of the expression; the tenor and the manner of the expres-
sion; the intentions and the motive of the speaker; and the objective
circumstances in which the advocacy is to take place. Accordingly we
can now lay down our second qualification of free speech. This restric-
tion is made under the Offence Principle. The argument is:

Argument number two: under the Offence Principle, when the con-
tent and/or manner of a certain speech is/are designed to cause a psycho-
logical offence to a certain target group, and the objective circumstances
are such that make the target group inescapably exposed to that offence,
then the speech in question has to be restricted.

Note that this argument differs from my reconstruction of the

Millian Harm Principle in two crucial respects: it covers damages that
are not physical, and it restricts certain types of speeches that fall
within the category of ‘advocacy’, as distinct from ‘instigation’.
One last point: it might be argued that the Offence Principle as con-
strued might be applicable to Skokie but the Skokie circumstances are
special, hence the applicability of the Principle is very limited. I agree
that the applicability of the Offence Principle should be limited. I have
made every effort to formulate it in the most decisive way. Any princi-
ple designed to restrain freedom of speech should be narrowly defined
in order to prevent the possibility of opening a window for further
restrictions.
However, the Skokie case is not unique. We could think of other
cases in which the conditions of the Offence Principle are fulfilled,
hence there is scope to set boundaries to liberty and tolerance. For
instance, it is one thing to allow marches of the quasi-fascist and anti-
Arab ‘Kach’ movement in Tel Aviv, and quite another to allow such
 Harm Principle, Offence Principle, and Hate Speech 23

marches in Shfaram, an Arab town.69 Similarly, we should not see in

the same light the burning of a cross by the Ku Klux Klan in an iso-
lated farm in the southern United States, and the same act in Harlem,
New York.70 In a similar vein, it would be legitimate to forbid promot-
ing pornographic literature and the selling of pork in Bnei Brak, an
ultra-orthodox religious town in Israel. And it is one thing to permit
the publication of Salman Rushdie’s Satanic Verses in Britain and other
democracies, and quite another to allow Mr Rushdie to promote his
book outside the central mosque in Bradford, a town with a large
Muslim minority.71 In all instances there are valid arguments to
prohibit expressions that are highly offensive, designed to offend a des-
ignated group of people who could not avoid being exposed to the
offensive speech.

Conclusion

To sum up, we ought not to tolerate every speech, whatever it might

be, for then we elevate the value of freedom of expression, and indeed,
of tolerance, over other values which we deem to be of no less impor-
tance, such as human dignity and equality of concern and respect.
Tolerance, which conceives the right to freedom of expression as a carte
blanche allowing any speech, in any circumstances, might prove
counter productive, assisting the flourishing of anti-tolerant opinions
and hate movements.72 Therefore, we have to be aware of the dangers
of words, and restrict certain forms of expression when designated as
levers to harmful, discriminatory actions; for words, to a great extent,
are prescriptions for actions.
2
The Right to Demonstrate versus
the Right to Privacy: Picketing
Private Homes of Public Officials1

Introduction

On November 4, 1995 Prime Minister Yitzhak Rabin was assassinated

in the main square of Tel Aviv. After the tragic assassination the Prime
Minister’s widow, Mrs Leah Rabin, complained of the constant picket-
ing which had been conducted outside their private home in Tel Aviv,
in protest against the Oslo Accords signed between Israel and the
Palestinian Liberation Organization (PLO). A suggestion was raised to
ban all such picketing. The argument was that such picketing should
not be allowed. Public figures have the right to enjoy the tranquillity
of their homes. Their privacy must be honoured and therefore pickets
and demonstrations should be restricted to public places, such as the
Knesset Rose Garden, government offices and public squares.
This chapter objects to this proposal because of its sweeping language.
The argument to be advanced is that democracy may regulate time, place
and manner but it should not proscribe pickets and demonstrations
from private places. Democracy has an interest in furthering and pro-
moting free flow of opinions between the public and its representatives.
Sometimes the direct communication between the public and its repre-
sentatives near private homes of public figures is much more effective
both for the public and its representatives. The government and its pow-
ers, that is, the police, may require satisfying some procedural measures
but they should not set prohibitions on such direct communications.

Freedom of picketing and demonstration

The participation of the people in public affairs is so important

and fundamental that liberals call the existing form of democracy

24
 The Right to Demonstrate v. the Right to Privacy 25

‘participatory democracy’.2 The rights to assemble, to picket, and to

demonstrate are regarded as fundamental in the democratic tradition,
guaranteed to each citizen in a free society. The public has the right to
voice its dissent against governmental policies, or to back the govern-
ment on policies deemed justifiable and correct. There should be a free
flow of opinions, feedback between the government and the public.
Democracy has a vested interest in securing this feedback, and in stim-
ulating discussion and public debate. Decisionmakers should not
remain separate and alienated from the public. They must be aware of
the public’s interests and goals. Through demonstrations, picketing
and processions the public fans its cries, its feelings, and its beliefs with
regard to governmental decisions that concern society or segments of
society. From an economic point of view the streets afford the pickets
the benefit of minimal costs – ‘a consideration of some importance to
those aggrieved, as in many instances they are the persons least able to
finance the expression of their complaints’.3 Picketing is available for
poorly financed communicators to voice their grievances and vindicate
their rights. To paraphrase Justice Black’s dictum that door to door dis-
tribution of circulars is essential to the poorly financed causes of ‘little
people’,4 picketing enables the poor and the powerless to bring some
influence to bear upon public officials whom others might influence
through more conventional ways.
In Israel, the Police Ordinance (new version) distinguishes between
‘assembly’ and ‘procession’. The term ‘assembly’ refers to 50 or more
people who have gathered to hear a speech or a lecture of a political
nature or to discuss politics. ‘Procession’ refers to 50 or more people
who walk together, or have convened for the purpose of walking
together, from one place to another. We may deduce from the language
of the Ordinance that a small or large group of people who have con-
vened but not for the purpose of discussion or hearing a lecture would
be considered as ‘picketing’.
Picketing is an activity whereby a group of people conveys informa-
tion by means of their presence at a certain place. The picketers may
engage in different activities. They may observe, communicate a cause
and/or concern/s, or persuade through speech, banners, or induce-
ments. Picketing is a powerful means of communication for the
common citizens, effectively delivering the message directly to the tar-
geted audience. It attracts media attention that might otherwise be
indifferent regarding the picketers’ cause and concerns. In turn, picket-
ing attracts through the media public attention to their cause, and
it inflicts psychological pressure on the designated audience. This
26 Freedom of Expression

psychological effect of picketing has aroused the most concerns among

courts and legislatures.5
Obviously, democracy acknowledges that there cannot be unlimited
freedom of demonstration and picketing. There is a need to set regula-
tions of time, place and manner. Section 84 of the Israel Police
Ordinance (new version) holds that anyone wishing to assemble in a
public place has to ask permission from the Chief District Police
Officer. Section 85 of the same Ordinance adds that the police officer
has discretion to grant permission, deny it or prescribe conditions
deemed necessary for the maintenance of public security or public
order. The accepted rationale in democracies is that we cannot allow
demonstrations at major junctions without prior permits. Such demon-
strations might obstruct the flow of transportation and jam the roads.
Parks are there for demonstrations but they are also for picnics, for
peaceful strolling and for familial enjoyment.
From the general to the particular. The regulation of time, place and
manner is of more crucial importance when the intent is to hold a
demonstration or to picket outside the private homes of public offi-
cials. Democracy has an interest in protecting the privacy and tranquil-
lity of the home. That interest was recognized by the Israeli6 and the
American7 Supreme Courts in several decisions. Justice Frankfurter
wrote in one of his prominent rulings: ‘Homes are sanctuaries from
intrusions upon privacy and of opportunities for leading lives in health
and safety’.8 Similar reasoning was enunciated by Justices Black and
Brennan. Justice Black held that a person’s home is ‘the sacred retreat
to which families repair for their privacy and their daily way of living’,
‘sometimes the last citadel of the tired, the weary, and the sick’,
wherein people ‘can escape the hurly-burly of the outside business and
political world’.9 In turn, Justice Brennan said:

Preserving the sanctity of the home, the one retreat to which men
and women can repair to escape from the tribulations of their daily
pursuits, is surely an important value. Our decisions reflect no lack
of solicitude for the right of an individual ‘to be let alone’ in the pri-
vacy of the home.10

Residential picketing involves different elements of privacy: interest

in protecting one’s reputation, sanctity of the home and freedom from
being held as a captive audience, as well as a high degree of focus on a
particular individual for a period of time. Therefore the American courts
did not adopt the absolutist view that First Amendment privilege would
 The Right to Demonstrate v. the Right to Privacy 27

always prevail.11 Having said this, we still should not impose sweeping
restrictions. We can surely understand why people prefer to voice their
opinion in front of public officials’ homes. Such conduct is undoubt-
edly relevant. We do not expect protesters against, say, raising taxes, to
picket outside the local theatre or zoo. It is understandable that they
will go to protest outside the house of the Prime Minister and the
Minister of Finance. Sometimes protest in a residential area constitutes
the most effective way of expressing an opinion because there protest-
ers can establish direct contact with the object of their protest, some-
thing they will find difficult to achieve in government precincts,
which are usually more protected. The picketing of the public official’s
home may make a more powerful impression upon him or her.
Moreover, the picketers may feel that picketing the home is the most
effective way to bring social conditions to the attention of the general
public or to obtain wider news coverage for their views.12 In deciding
whether to grant permission to carry out such a protest the police
should take into account the privacy of the public official, his or her
family, as well as the privacy interest of the public official’s neighbours.
But we should not hold as a general rule that the right to privacy
always overrides the right to voice an opinion next to his or her home.
So we are speaking here of two rights that come into conflict: the
right to picket or to demonstrate, derived from the right to freedom of
expression, as against the right to privacy. The degree to which inter-
ference in a public official’s privacy may be tolerated should be a func-
tion of his or her political, social or economic position in society. The
more prominent the position, the greater latitude we have for interfer-
ence with the public official’s privacy.13 We need to strike a balance
between the right to communicate and the right to be let alone. When
speaking of the right to be let alone I mainly focus on the public offi-
cial and his/her family. Some may feel that neighbours of officials
should enjoy that same right but I do not think this constitutes a
major consideration. Living next to a public figure entails obvious
advantages. People love to rub shoulders with public figures. I imagine
that one may be somewhat amused to meet one’s prime minister in the
garbage room and allow him or her to lift the lid for one’s rubbish.
Sometimes neighbours are in a better position to evaluate the news,
seeing with their own eyes things that are kept secret from the public.
It may also be assumed that not many neighbours, upon selling their
homes, will fail to highlight the fact that their neighbourhood is of
special repute owing to the famous public figure who resides there.
But, as with all things in life, you cannot have all pros and no cons.
28 Freedom of Expression

Living next door to public officials entails some drawbacks as well.

Invasion of privacy and disturbing one’s peace of mind are prices that
need to be paid. Each neighbour may decide for himself or herself
whether the pros outweigh the cons, and if they do not they have the
liberty to move to a more peaceful place.
The ensuing discussion analyses the American, British and Israeli
stances with regard to the subject matter.14 It is argued that the Israeli
stance is more akin to the American, and that the right to picket can-
not be flatly prohibited. The Free Speech Principle that is one of the
tenets of liberal democracy does not allow stifling picketers’ expressive
activity at all times and all places. Speech may be subject to reasonable
limitations when important countervailing interests are involved.15
Thus the police may impose regulations of time, manner and place for
the purpose of maintaining public order and security, but they should
not ban picketing tout court.

The American stance

The American courts have mixed views on residential picketing. In some
cases the courts sustained the validity of states’ antiresidential pick-
eting statutes and recommended alternative demonstration sites.16 In
other cases antiresidential picketing statutes were declared invalid, con-
travening the First and Fourteenth Amendments to the Constitution.17
Having said that, Frisby v. Schultz is now recognized as the leading
precedent and the doctrinal approach to residential picketing. In order
to understand its rationale we need to analyse the court judgments
preceding Frisby.
In one of his renowned rulings concerning picketing in a workplace,
Thornhill v. State of Alabama, Justice Murphy asserted:

Freedom of discussion, if it would fulfill its historic function in this

nation, must embrace all issues about which information is needed
or appropriate to enable the members of society to cope with the
exigencies of their period.18

Thornhill established that the Free Speech Principle guaranteed by the

Constitution embraces the liberty to discuss publicly all matters of public
concern without previous restraint or fear of subsequent punishment.
Picketing was recognized as one of a limited number of effective means
that can enlighten the public on the nature and causes of a given dispute.
It is not within governmental constitutional power to ban picketing.19
The courts distinguished between peaceful and disorderly picketing.
Peaceful picketing on issues of public importance is conceived to be a
 The Right to Demonstrate v. the Right to Privacy 29

protected expressive activity.20 When this picketing occurs in the pub-

lic forum it can only be narrowly restricted. O’Brien established in 1968
that reasonable content-neutral time, place or manner restrictions
which allow ample alternative channels for expression are permissible
and this is still the prevailing view.21 In Perry Education Ass’n v. Perry
Local Educators’ Ass’n the court prescribed strict limits on the ability of
the State to prohibit expressive activity in the public forum.22 The
same year, 1983, in United States v. Grace concerning picketing in a
courthouse, the Supreme Court held that public places such as pave-
ments and city streets are part of the public forum, open to public
discussion and expression. Grace clearly states that an absolute prohibi-
tion is the least favoured restriction. Under the guidelines set out in
Grace, an ordinance prohibiting residential picketing in a public place can
only be upheld if it is a narrowly drawn restriction, designed to achieve a
compelling government interest.23
Two years later, in 1985, the court established further layers of analy-
sis. In the Cornelius case,24 the Supreme Court stated that the review of
an alleged free speech violation proceeds in three steps. First, the court
must decide whether the speech in question is protected under the
First Amendment.25 Second, assuming that the conduct is protected
speech, the court must identify the nature of the forum, ‘because the
extent to which the Government may limit access depends on whether
the forum is public or non-public’.26 Third, the court must determine
whether the requisite constitutional standards, as delineated in Grace,
are met when restricting expressive activity protected by the First
Amendment. That is to say that the restrictions must be narrowly tai-
lored to serve a significant governmental interest, and leave open
ample alternative channels of communication.27
In Frisby v. Schultz, abortion protestors brought a suit seeking to
enjoin enforcement of a municipal ordinance prohibiting picketing
before or about the residence or dwelling of any individual. They
wanted to protest outside the residence of a doctor who performed
abortions. The Supreme Court held that the ordinance does not ban all
picketing in residential areas, but prohibits only focused picketing tak-
ing place solely in front of particular residence. The court, per Justice
O’Connor, maintained that the ordinance serves significant govern-
ment interest of protecting residential privacy, and is narrowly tailored
thus does not violate the First Amendment.28
The thesis of this essay is concerned with picketing private homes of
public officials. Abortionists are not people who are elected or nomi-
nated to serve in the public administration. They do not make policy
30 Freedom of Expression

issues that concern the citizenry at large. They are not political figures
who need to be responsive to their public and explain the reasoning
behind a certain policy. Therefore the issue of picketing homes of doc-
tors is different and somewhat more complicated. Having said that,
I cannot agree with Justice O’Connor’s statement that because the pick-
eting prohibited by the ordinance is speech directed primarily at those
who are presumptively unwilling to receive it, the state has a substantial
and justifiable interest in banning it.29 If this were the rationale, then
no debate would ever be allowed in residential area. There would always
be someone who was not willing to hear criticism. Like Justices Brennan
and Marshall, I think that there might be room to regulate such picket-
ing but it should not be entirely prohibited.30 The picketers are entitled
to communicate their strong feelings to the doctor who performs
abortions and should have fair opportunity to convey their pro-life
statements. But they should not harass the doctor and his family, and
obviously they should not harm them.31 Regulation is legitimate.
Unqualified prohibition is not. In order for a regulation relating to
time, manner and place of expression to be enforced, the state must
show that its regulation is necessary to serve a compelling state interest,
and that it is narrowly tailored to achieve that end.32
The balancing between protecting the privacy of the home and free-
dom of expression is exemplified in Ramsey v. Edgepark where the Ohio
Court of Appeals said that regulation rather than prohibition is appropri-
ate. The court held that the trial court did not abuse its discretion when
it found appellants’ activities to be offensive to a reasonable person and
issued the injunction prohibiting appellants from intruding into
appellees’ privacy in that manner. However, the trial court did err when
it restricted appellants from picketing within 200 yards of appellees’
homes, as this restriction violates appellants’ First Amendment right to
disseminate information from a public forum, namely a public street.
Appellants have a right to picket in the neighbourhood, block or street
where appellees live. There is no invasion of privacy as long as the
picketers remain on public property and do not focus their activities
solely at a particular home.33
Obviously the government is entitled to use state powers to prevent
picketers from blocking, impeding, or inhibiting access to residential
premises. The government may also implement ordinances or injunc-
tions prohibiting petitioners from physically abusing, grabbing, intimi-
dating, harassing, touching, pushing, shoving, or assaulting persons
entering or leaving the premises.34 There is a judicially cognizable
difference between a legitimate attempt to pronounce views and to
 The Right to Demonstrate v. the Right to Privacy 31

persuade decision makers of one’s logic and personal convictions, and

an attempt to physically and psychologically intimidate someone into
acquiescence in one’s own beliefs under the guise of exercising free
speech rights. Freedom includes both the right to speak one’s mind and
the right to make up one’s mind free from intimidation.35 An injunc-
tion against use of signs and peaceful picketing activities designed to
criticize a certain policy or activity constitutes an unconstitutional prior
restraint on expressive conduct.36 This is why I protest against outright
prohibition but find myself in agreement with many of the recent abor-
tion/free speech cases which aimed at securing the private domain of
physicians performing abortions and creating buffer zones for women
approaching abortion clinics.37
Recently the Supreme Court rejected a challenge to an injunction
issued to protect the home of a New Jersey abortionist. The court let
stand a restriction that prohibited protestors from demonstrating on
the street along Murray’s property line, about eighty feet from his
house, and limited protesting beyond that point to fifteen persons for
one hour every two weeks, provided that the protestors give police
24-hour advance notice. Although Justice Scalia concurred in the deci-
sion on separate grounds, he condemned the injunction as ‘a mockery
of First Amendment law’.38 He wondered ‘whether prior restraint of
speech may be imposed in absence of actual or threatened illegality’.39
Let me focus attention on two cases that are most pertinent to our
discussion. Like picketing the Rabins’ home, both are concerned with
protests on public matters that were made next to private homes of
high officials. The two cases are State of Maryland v. Schuller40 and Brown
v. Scott.41 I shall review the judgments in some detail since they encap-
sulate the different reasonings in the debate.
In Schuller, defendants were convicted under a statute prohibiting res-
idential picketing except in connection with labour disputes. Members
of a group called ‘The Community Action for Non-Violence’ picketed
the home of Donald H. Rumsfeld, then the Secretary of Defense, in
protest against ‘the proliferation of nuclear armaments of the United
States Government’.42 The picketers were peaceful and at all times coop-
erative with the police. At no time during the picketing did they
obstruct traffic, become disorderly or otherwise disturb the neighbours
other than through their picketing activity. However, they were tried
and found guilty of unlawful picketing. Upon appeal to the Circuit
Court for Montgomery County the charges against the defendants
were dismissed and the State of Maryland petitioned for certiorari. The
State argued that a prohibition against all residential picketing is not
32 Freedom of Expression

violative of the First and Fourteenth Amendments to the Constitution,

that statutes prohibiting picketing of residential dwellings are a consti-
tutionally valid exercise of the state’s police power to protect individual
privacy, and that the exemption of labour-related picketing does not
create a classification which violates the Equal Protection Clause.
The Court of Appeals, Judge Eldridge, held that picketing is not ‘pure
speech’ but rather an activity which intertwines elements of speech
and conduct, and it is therefore subject to some regulation. However,
attempts at regulation must be narrowly drawn to reach only certain
specified conduct that impinges on valid state interests.43 In the pre-
sent case, rather than prohibiting certain specific conduct associated
with picketing and within the purview of the State’s power to control,
the Maryland act provides for a blanket ban on residential picketing
itself. Judge Eldridge concluded that the State act violated the right to
freedom of speech protected by the First and Fourteenth Amendments
as well as infringing upon the right to equal protection of the laws
guaranteed by the Fourteenth Amendment. In this paper it is argued
that this line of reasoning, with the necessary accommodations suit-
able for Israeli law, be adopted by the Israeli legal authorities.
The matter in Brown v. Scott was quite similar yet the District Court
reached the opposite conclusion, and a further appeal to the Supreme
Court was needed to allow the picketing. Members of the Committee
Against Racism peacefully demonstrated on the pavement in front of
the Mayor of Chicago’s home in protest against his alleged failure to
support the bussing of school children to achieve racial integration.
They were arrested for disorderly conduct and for violating the Illinois
Residential Picketing Statute. Thereafter, plaintiffs brought suit in the
Federal District Court, seeking a declaratory judgment that the statute
was prima facie unconstitutional. The District Court denied all relief,
but the Court of Appeals reversed, holding that the statute violated the
Equal Protection Clause of the Fourteenth Amendment.44 The state’s
attorney appealed to the Supreme Court, which affirmed the decision.
The plaintiffs contended that although the state may reasonably reg-
ulate picketing as to time, place and manner by means of a narrowly
drawn statute, the state may not flatly prohibit picketing in a particular
place. The Illinois Residential Picketing Statute, they maintained, was
not a statute narrowly tailored to the purposes of the legislature.45
District Judge Grady acknowledged that picketing is an activity
which often expresses a political or social viewpoint and which is thus
entitled to First Amendment protection.46 He maintained that, never-
theless, a State or municipality may protect individual privacy by
 The Right to Demonstrate v. the Right to Privacy 33

enacting reasonable time, place and manner regulations applicable to

all speech irrespective of content. In essence, a court must look to the
nature of the forum in which the plaintiffs propose to picket, and
then must strike a balance between the First Amendment rights of
the speakers and the privacy interests of their audience.47 Judge Grady
quoted from Hague v. CIO which said that wherever the title of streets
and parks may rest, they have immemorially been held in trust for the
use of the public and have been used for purposes of assembly, com-
municating thoughts between citizens, and discussing public ques-
tions. The privilege of a citizen to use the streets and parks for
communication of views on national questions may be regulated in
the interests of all. It is not absolute but relative, and must be exercised
in subordination to the general comfort and convenience; but it must
not, in the guise of regulation, be abridged or denied.48 I cannot agree
more with this statement.
The District Court rejected the plaintiffs’ appeal after balancing their
right to picket against the Mayor’s right to enjoy the tranquillity of his
home, holding that the latter right is heavier. By patrolling the official
at his home, the picketers annoy him and his family, and indeed,
intend to annoy them. The prohibition of all picketing at this location
is the only way for the legislature to achieve its purpose of reserving for
the homeowner a sense of security and privacy. Judge Grady explained
that the Illinois statute only prohibits picketing at one particular place,
‘before or about’ a residence, and does not bar picketing at any other
appropriate place. To his mind, in terms of the plaintiffs’ purpose City
Hall was a more meaningful forum than the Mayor’s home.49 They
could have pronounced their views there. Judge Grady concluded that
the balance favoured the privacy interests of the homeowner as against
the free speech interests of the picketers.50
As stated, the decision of the District Court was struck down by the
Supreme Court. Speaking for the majority of the court, Justice Brennan
held that the Illinois statute violated the Equal Protection Clause
because it impermissibly distinguished between labour picketing and
all other peaceful picketing without any evidence that the latter was
‘clearly more disruptive’ than the former.51 Quoting from Hudgens v.
NLRB, Justice Brennan maintained that ‘streets, sidewalks, parks, and
other similar public places are so historically associated with the exer-
cise of First Amendment rights that access to them for the purpose of
exercising such rights cannot constitutionally be denied broadly and
absolutely’.52 Yet here, under the guise of preserving residential privacy,
Illinois flatly prohibited all non-labour picketing even though it
34 Freedom of Expression

permitted labour picketing that was equally likely to intrude on the

tranquillity of the home. Justice Brennan explained that government
may not grant the use of a forum to people whose views it finds accept-
able, but deny use to those wishing to express less favoured or more
controversial views. And it may not select which issues are worth dis-
cussing or debating in public facilities. There is an ‘equality of status in
the field of ideas’, and government must afford all points of view an
equal opportunity to be heard.53 While quoting from Stromberg v.
California Justice Brennan asserted that the ‘maintenance of the oppor-
tunity for free political discussion to the end that government may be
responsive to the will of the people and that changes may be obtained
by lawful means, an opportunity essential to the security of the
Republic, is a fundamental principle of our constitutional system’.54
Having said that, Justice Brennan clarified that the right to commu-
nicate was not limitless. Even peaceful picketing may be prohibited
when it interferes with the operation of vital government facilities. The
Supreme Court acknowledged in previous decisions that picketing or
parading is prohibited near courthouses,55 on jailhouse grounds,56 or
when it is directed toward an illegal purpose.57 Moreover, the court
declared that a ‘State or municipality may protect individual privacy by
enacting reasonable time, place, and manner regulations applicable to
all speech irrespective of content’.58 Thus, preserving the sanctity of
the home is surely an important value. Justice Brennan thought that
the court decisions reflected no lack of solicitude for the individual’s
right to be left alone in the privacy of his home. The crux of the matter
was that the defence of the individual’s privacy should not be
grounded in a statute that discriminated among pickets because of the
subject matter of their expression.
I have elaborated on these court judgments because they encapsulate
much of what I want to say. The judgments show sensitivity to the
official’s right ‘to be left alone’. The Supreme Court judgment also
reflects sensitivity to the importance of participation in public life and
communication between public figures and common citizens. I do not
think Mrs Leah Rabin would have complained about the picketing out-
side the Rabins’ home if the picketers had expressed agreement with
the government’s policies and praised Yitzhak Rabin’s leadership. I
understand that Mr and Mrs Rabin found the picketing disruptive and
offensive, probably more than a mere nuisance. As Justice Stevens
acknowledged in his dissenting opinion in Frisby v. Schultz, picketing is
a form of speech that, by virtue of its repetition of the message
and often hostile presentation, may be disruptive of an environment
 The Right to Demonstrate v. the Right to Privacy 35

irrespective of the substantive message conveyed.59 Nevertheless, pub-

lic officials who take upon themselves state responsibilities must know
that their policies might attract criticism. They need to concede that
the citizens have every right to voice dissent and even anger if certain
policies deem – in their view – dangerous, repulsive, or wrong. To my
mind, the notion of the term ‘citizen’, as distinct from simply a
‘person’, relates to active participation in public life. Democratic gov-
ernments should encourage citizens’ participation, within the confines
of the law, no matter what the content is, supportive of government’s
policies or protesting against them with disdain and venom. A saying
that is attributed to President Harry Truman is most appropriate in this
context: ‘If you cannot stand the heat, stay out of the kitchen’. Unlike
Justice Shlomo Levine I am reluctant to accept the argument that
allowing picketing near officials’ private homes might deter capable
people from entering public life.60 Politics is saturated with intrigue,
personal rifts, tensions and stress of the highest degree. People who
might be deterred by potential picketing near their homes are better off
outside the realm of politics.
Now, this is not to say that picketing has to be allowed at all times
and at all places. The right to free speech and its derivatives – the right
to picket, to demonstrate, to march, to hold processions and so on –
are not absolute.61 As the analysis has shown, the American courts
acknowledged that the right to picket and to demonstrate is not limit-
less, and that regulations of time, manner, and place could be imposed.
For instance, the police have every right to interfere in protests which
involve a large number of cars, some parked at the curb next to the
public official’s residence and others racing their motors with sliding
wheels, coupled with honking horns and noisy car occupants.62 The
government could constitutionally regulate the number of picketers,63
the hours during which a residential picket may take place,64 or the
noise level of such a picket.65 But we should not prohibit outright all
picketing outside public officials’ private homes. Picketing that is
peaceful and on the public street, which neither obstructs traffic nor
becomes disorderly, and which aims at communicating ideas before
public officials’ residences is within the protective ambits of the Free
Speech Principle.66

The British stance67

As far as I know there is no British authority about picketing of public
officials’ private houses. As David Feldman, Dean of the Faculty of Law
at University of Birmingham told me, the main concern with regard to
36 Freedom of Expression

‘public people’ has been press harassment, not protest. In August 1996,
the Princess of Wales obtained an emergency injunction from the High
Court against Martin Stenning, a photographer who frequently trailed
the Princess on his motorcycle. The injunction barred Stenning from
approaching within 300 metres of her, communicating with her, harass-
ing her, interfering with her safety, security or wellbeing, or molesting
or assaulting her.68
As a matter of law, it is probable that the judge regarded the case as
involving a simple application of the principle set out in Burris v.
Azadani where the court appeared to hold that it had jurisdiction to
award an injunction in interlocutory proceedings to protect a litigant
against harassment even if the harassment would not have entitled the
litigant to damages by way of a final order.69 It is now becoming clearer
that there is a cause of action in tort in respect of harassment at
common law.
There have been cases where injunctions have been obtained to
restrain publication of photographs taken of the Princess and other
members of the royal family in intimate settings, by means of tele-
photo lenses, and so on. But the general rule is that the taking of pho-
tographs cannot in itself be controlled (except where it is likely to
cause a breach of the peace), unless the interference with the subject’s
life is so significant that it amounts to serious and probably intentional
harassment.70
As for political protests outside the private homes of politicians and
other public figures, these are simply not part of the overall British
political culture. If we observe this issue in historical perspective, dur-
ing the last century there were a few instances of such picketing. When
there was a major demonstration in Hyde Park near Prime Minister
Disraeli’s London home in July 1866, in connection with electoral
reform, there was great concern and the militia was summoned. A
month earlier, a demonstration favourable to Gladstone had taken
place outside his house (in Gladstone’s absence) in Carlton House
Terrace, following a meeting in Trafalgar Square.71 So such events were
not unheard of in the nineteenth century, but were regarded as excep-
tional and undesirable.
Peter Cook, a lecturer in legal history at the University of
Birmingham who specializes in the history of eighteenth and nine-
teenth century criminal law, points out in a personal communication
that there has been virtually no work done on newspapers’ and peace-
keepers’ records of protests at the houses of politicians. It is well
known that there were riots and other protests at the homes of major
 The Right to Demonstrate v. the Right to Privacy 37

landowners over such matters as the enforcement of the Corn Laws,

which affected corn prices and could contribute to or mitigate the mis-
ery caused by bad harvests. So far, these demonstrations have been seen
as anti-landowner protests.72 However, many of the landowners would
also have been MPs for the areas in which their houses stood, or mem-
bers of the House of Lords. It may be, therefore, that there were politi-
cally motivated attempts to influence the way in which the MPs voted
on Corn Law issues in Parliament.73 The work on that issue needs to be
further developed by social and political historians. It remains true that
such demonstrations have been very rare in Britain this century.
That said, the prevailing view seems to be that residential neighbour-
hoods are public places, as are roads, whether next to the houses of
government officials or anyone else. The question of whether protests
are aimed at public figures or government officials is, as Geoffrey
Marshall of Queen’s College, Oxford thinks, of no relevance since their
rights to invoke the law are no less and no more than anybody else’s.
The only question would be what offences, if any, are capable of being
committed by anyone who is demonstrating, or picketing, or processing.
The problem until recently has been that the justification for restrict-
ing protests outside private premises had to be sought in either private
property rights or public interests in the maintenance of order on pub-
lic highways. The general position is that the protester can use the
highway for any reasonable purpose, which may include protesting
(but not harassment – a fine line to draw). There was no right of pri-
vacy that a politician (or, indeed, anyone else) could assert in such sit-
uations. If proprietary rights could not be invoked, the police might
use their common law or statutory powers (for example, in relation to
breach of the peace and maintaining public order) to control or pro-
hibit protests, but they had no obligation to do so. On the whole, con-
siderations of public order and security enjoy greater weight than
individual rights, such as the right to demonstrate or to picket.
The most obvious statutory powers are in Part I, Section 5 of the
Public Order Act (1986), ‘Harassment, alarm or distress’. Under this
Section a person is guilty of an offence if he

(a) uses threatening, abusive or insulting words or behaviour, or

disorderly behaviour,
or
(b) displays any writing, sign or other visible representation which is
threatening, abusive or insulting, within the hearing or sight of a
person likely to be caused harassment, alarm or distress thereby.
38 Freedom of Expression

Accordingly it seems that the law in Britain would provide public

officials with grounds to ask for prohibition on picketing outside their
homes. They could argue that such pickets constitute harassment. The
British stance is akin to Justice Rehnquist’s dissent in Carey v. Brown.74
However, I see a difference between picketing and harassment. Not all
forms of picketing constitute harassment though some might. As Justices
Brennan and Stevens asserted in their dissenting opinions in Frisby, the
state could regulate the unduly coercive aspects of picketing. Once free
of such elements, only the speech would remain. Justice Brennan
grounded his defence of residential picketing on this reasoning.75
Justice Stevens, in turn, argued that picketing for the sole purpose of
imposing psychological harm on a family in the shelter of their home
is not protected under the constitution, but nevertheless picketers
should have a fair opportunity to communicate their strong opposi-
tion.76 In contrast, Section 5 of the 1986 Public Order Act is too broad
in its application, with the effect of narrowing the scope of free speech
more than it should. As said, there is a difference between expressing
opinions near another’s private home and harassing an individual near
his or her home. The British stance does not seem to make adequate
distinction between the two.
It should be added that developments in the British law of nuisance
and privacy have taken place in the contexts of (a) private citizens and
(b) people trying to carry on their ordinary business activities. They
have not been concerned with politicians or other public officials. The
owner or occupier of the premises can obtain a remedy for infringe-
ment of private rights, for example, trespass or private nuisance.77
Private nuisance has recently been given an extended reach, allowing
remedies to be granted against people who interfere with the quiet
enjoyment of the workplace or home by harassment. This may have
developed to the point where one can speak of a tort of harassment, or
of infringement of privacy, which until recently was undeveloped in
British law.78

The Israeli stance

The right of privacy is protected in Israeli law under the Law of
Protection of Privacy (1981) and under Basic Law: Human Dignity and
Freedom (1992). Section 7a of this Basic Law holds that every person is
entitled to privacy and to the confidentiality of his or her life. On the
other hand, the right to demonstrate and to picket, like freedom of
expression, is not protected under any specific Israeli law. However,
the Israeli Supreme Court acknowledged the right to assemble, to hold
 The Right to Demonstrate v. the Right to Privacy 39

processions and to picket in several of its decisions.79 In the language

of the court, this right belongs to ‘those liberties that shape the charac-
ter of the Israeli regime as a democratic regime’.80 The court main-
tained that ‘the freedom to demonstrate and to assemble stands on a
broad ideological base’.81 At the centre of this ideological base lies
recognition of the value of the individual, his or her dignity, and the
freedom granted to him or her to develop his or her character.
In a recent case, H.C. 2481/93. Yoseph Dayan v. Police Chief District of
Jerusalem, people wished to demonstrate before the private home of
a prominent religious and political leader, the patron of ‘Shas’ party
Rabbi Ovadia Yoseph. The police refused to grant them a permit as the
demonstration would infringe the privacy of Rabbi Yoseph, his family
and neighbours. The protesters appealed to the Supreme Court who
denied their appeal. Three justices sat in the court and each justice pro-
vided a different line of reasoning. Justice Shlomo Levine held that
the consideration of privacy overrides. Demonstrations might take
place near the public workplace but not outside private homes. Justice
Barak, on the other hand, thought that the balancing approach, rather
than the principled approach adopted by Justice Levine, was more
appropriate. In turn, Justice Goldberg explained that he would allow
demonstration near a private home only if no other effective alterna-
tive existed.
Let me first note that there is a peculiar discrepancy in Justice
Levine’s judgment between the declarative remarks and the actual
analysis that he employs. Although Justice Levine declared that he
would not refrain from balancing the competing rights he nevertheless
categorically holds that the right to privacy overrides when speaking of
demonstration near private homes.82 It is unclear in what circum-
stances, if any, the right to demonstrate near a private residence might
override the right to privacy. Therefore, the language of balancing
seems to serve only as a lip service. After all, balancing is the current
fashion in the Israeli Supreme Court.
Furthermore, I also disagree with Justice Levine’s assertion that the
American stance is in line with his point of view, that is, that privacy
overrides free speech when concerned with picketing near private
homes.83 Cases from Gregory v. Chicago84 to Carey85 recognized the pre-
ferred position of First Amendment freedoms. In Carey, the court pon-
dered public forum considerations. It dealt with public streets in
residential areas as public fora and thus subjected the regulation of
speech to strict scrutiny. The regulation had to be narrowly tailored to
effectuate a substantial state interest.86 The government also must
40 Freedom of Expression

show that ample alternative channels of expression are available to the

speakers in spite of the restriction.87 An alternative channel for expres-
sion could entail moving the speech to a nearby, less obtrusive location
or allowing the speakers to stay in the area but to communicate in
other ways. If the speaker can reach the selected target audience
through the alternative channel, a court will usually find that ample
channels exist.88 Generally speaking, in the American courts, regulation
rather than prohibition is considered the appropriate state response to
problems caused by using public forums for free speech purposes.89
In his judgment for the court in the Dayan case Justice Barak con-
tended that freedom of demonstration and the right to privacy are of
equal status.90 The balancing formula would determine what restric-
tions should be made. Justice Barak was looking for a solution that
would not infringe the right to demonstrate while reducing as far as
possible the invasion of privacy. His view bears a resemblance to Justice
Brennan’s. Justice Barak thinks that the right to picket, to hold a pro-
cession and to demonstrate is derived from the same Basic Law that
secures the right to privacy. According to his judgment, this right is
grounded in the individual’s right to human dignity and freedom guar-
anteed by the Basic Law of 1992.91 Justice Barak maintained that the
constitutional starting point is that every individual has the right to
assemble, to hold a procession and to picket, and this right is not con-
fined only to the governmental or commercial parts of town.92
Justice Goldberg provided yet another approach that constitutes one
of the layers of analysis adopted by the American courts. In his opin-
ion, it is possible to demonstrate in front of a private residence only if
there is no other effective alternative. If an alternative exists, such as
the workplace of the public figure, one may not demonstrate near his
(or her, R.C.A) home. If the residence of the public figure serves also as
a place where he (or she) conducts all or most of his (or her) public
activity then we may conceive that residence as the only effective place
near which to hold an assembly.93

Conclusion

My approach is similar to that of Justices Brennan and Barak. Peaceful

demonstration and picketing on the public streets and pavements in
residential areas falls within the scope of the Free Speech Principle.
Acknowledging that, the police are under no obligation to grant per-
mission to each and every demonstration or picket. They can regulate
 The Right to Demonstrate v. the Right to Privacy 41

the exact place of the picketing, the number of residential picketers,

the hours during which a residential picket may take place, or the
noise level of such a picket. A large assembly in front of a public offi-
cial’s home is different from a small picket. One picket or demonstra-
tion has a different effect from frequent pickets and demonstrations. A
picket or demonstration at 10 am is substantially different from a simi-
lar picket or demonstration at 10 pm. A picket that goes on for ten
hours is much more intrusive than a picket that lasts one hour. The
police will look less favourably on pickets or demonstrations that
might also obstruct traffic. It is easier to grant a permit to pickets or
demonstrations on the pavements of side streets. A picket outside the
premises of a private isolated house disturbs only the public figure and
his or her family, while a picket outside a block of flats disturbs the pri-
vacy of many people. Picketers who use loud speakers to voice their
opinions have an intrusive effect that is quite different from picketers
who only carry signs and placards. These are all pertinent considera-
tions. We should take them into account and apply common sense in
prescribing some form of regulation. As Justice Brennan said, ‘substan-
tial regulation is permitted to neutralize the intrusive or unduly coer-
cive aspects of picketing around the home. But to say that picketing
may be substantially regulated is not to say that it may be prohibited
in its entirety’.94
3
The Right to Participate in
Elections: Judicial and Practical
Considerations

Preliminaries

This chapter deals with the right to compete in elections. The aim is to
review some of the decisions of the Israeli Central Elections Committee
and of the Supreme Court regarding disqualification of political
parties1 in Israel. The discussion is on two levels: philosophical and
judicial. On the first level two major questions are addressed: (a) when
should tolerance have its limits?; (b) what constraints on liberty should
be introduced in order to safeguard democracy? As for the judicial
level, here the focus lies on the issue of authority. Attention is given to
the written law and to existing normative considerations, which allow
justices exegetic latitude.
I commence discussion by reflecting on two milestone cases, Yeredor
and Neiman. While in Yeredor the court resorted to a principled posi-
tion, in Neiman the court preferred a consequentialist attitude of bal-
ancing between interests. Consequentialism has become a very
fashionable approach, especially among American justices and philoso-
phers. What is striking about it is that consequentialists are willing to
endure the costs of offensive speech now because of speculative fears of
the consequences of restriction. Hence, American liberals justify the
Skokie decision of the Illinois Supreme Court,2 saying that it helped the
cause of fighting racism in the United States and increased the aware-
ness of the general public regarding the Holocaust, yet at the same time
they give little or no consideration to the actual harm that might have
been inflicted on the Holocaust survivors of Skokie if the Nazis had
taken the option granted them to exercise (or rather to abuse) their First
Amendment right and march through this Jewish suburb of Chicago. As
described in Chapter 1, liberals warn that if we restrict speech, this

42
 The Right to Participate in Elections 43

might lead to an increasing tendency towards law and order legisla-

tion (Anthony Skillen);3 to the creation of undergrounds (Norman
Dorsen);4 to abuse of power on part of the government (Thomas
Scanlon,5 Frederick Schauer)6; or to a less tolerant society (Lee Bollinger)7.
I side with the principled position when the issue at hand concerns
participation of parties in the elections. Also from a consequentialist
perspective it can be argued that the court should not ignore the
licensing effect of its decisions. But more importantly, democracy does
not have to allow a list propounding the destruction of democracy to
act in order to fulfil its aim.8 It is neither morally obligatory, nor
morally coherent, to expect democracy to place the means for its own
destruction in the hands of those who either actively wish via violent
means to bring about the physical annihilation of the state, or to
undermine democracy. These two are the only cases in which democ-
racy has to introduce self-defensive measures and to deny representa-
tion in parliament to lists which convey such ideas, and which act to
realize them. Representation is a fundamental principle that underlies
democracy but we need to set limits to it so as to overcome the democ-
ratic ‘catch’ and to protect democracy. Therefore, when a violent list
such as the quasi-fascist ‘Kach’ bases its political platform on discrimina-
tion and disrespect towards others, resorting to violence with the aim of
harming some people and undermining democracy, it should be disqual-
ified, as ‘Kach’ indeed was in 1988 and in 1992, and as its splinter
‘Kahane Is Alive’ was in 1992. I also justify the amendment to the Basic
Law: The Knesset (1958) that specifically aimed at banning ‘Kach’, and
further vindicated outlawing quasi-fascist parties. I conclude by reflecting
on the two decisions that were made in 1996 with regard to two political
parties: one of the extreme right in Israel; the other a Palestinian party.

Guiding principles

Yeredor
The first important decision on the question whether a party should be
banned from participating in the elections was Yeredor.9 In Yeredor the
majority of the court addressed the issue of what should be the moral
limitations of tolerance. It explained that in order to avoid self-defeat
of democracy, it was necessary to introduce boundaries to the very
principles that underlie democracy, tolerance, and liberty. The Central
Elections Committee (CEC) decided to disqualify the Socialist List ‘for
the reason that this candidates list is an illegal organization, because its
initiators deny the integrity and the very existence of the State of
44 Freedom of Expression

Israel.’10 Justice Moshe Landau, who chaired the Committee, argued

that the list could not be confirmed because the Knesset could not
incorporate within it an element that propounded the destruction of
the state. Democratic procedures were not to be used to undermine the
democratic regime itself.
The statements of Justice Landau were straightforward. He did not
make contingent assumptions regarding the actual power of the list in
question to implement its political platform. The Chairman of the CEC
did not say that a list might be banned when it might endanger the
foundations of the state. He refrained from discussing the magnitude
of the threat. Rather he conclusively held that certain ideas do not
have any place in the parliament. A list that wishes to destroy the state
should not be allowed to be represented in the Knesset, seeking to fur-
ther its ideas. Tolerance should prevail, but it also has to have its limits;
otherwise democracy might supply its destroyers with the means to
carry out their task more quickly and efficiently. Note that Justice
Landau did not say that members of the list should be denied freedom
of expression altogether. He advocated what we may call ‘qualified tol-
erance’, implying that democracy may endure any opinion, but this is
not to say that each and every view has to be represented. Anti-democ-
ratic opinions deserve no legitimization by democracy to help them
prosper and attract more people.
Members of the Socialist List appealed to the High Court of Justice,
who in a two-to-one decision confirmed the CECs decision. The majority
justices, Shimon Agranat and Yoel Sussman, agreed with the opinion of
their colleague Justice Landau, asserting that the character of the Socialist
List was in polar opposition to the purpose of the elections, because its
essence and objectives were to bring about the annihilation of the State
of Israel. A group of people whose open political objective was to under-
mine the very existence of the state could not a priori have any right to
take part in the process of consolidating the will of the people, and could
not, therefore, stand as candidates in the Knesset elections. Justice
Sussman introduced the notion of supra-constitutional considerations,
emanating from natural law, which were superior to any form of legisla-
tion, whether ordinary laws or Basic Laws. Justice Sussman relied on a
decision of the Supreme Court of West Germany from 1953, where the
court spoke of the notion of ‘militant democracy’, which aimed to pro-
tect parliamentary functions from abusive attacks by subversive groups:

[T]he German Constitutional Court, in discussing the question of

the legality of a political party, spoke of a ‘militant democracy’,
 The Right to Participate in Elections 45

which does not open its doors to acts of subversion under the cover
of legitimate parliamentary activity. As far as I am concerned,
regarding Israel, I am satisfied with a ‘self-defending democracy,’
and we have the tools to protect the existence of the State even
though we do not find them expressly specified in the Elections
Law.11

Accordingly, the state (or rather, the CEC) possesses an implied

power, which is similar to self-defence, to fight against subversive
attempts designed to destroy Israel. The holding of this ruling was that
even where the existing law did not contain a provision allowing for
the disqualification of a list, it was necessary to avoid the moral inco-
herence involved in allowing a person, who aspired to the cessation of
the existence of the state and its authorities, to compete in the Knesset
elections. In certain circumstances judicial quasi-legislation beyond the
written text might be permitted to fill a gap as required by existential
necessity. Justice Sussman maintained:

Just as a man does not have to agree to be killed, so a state too does
not have to agree to be destroyed and erased from the map. Its
judges are not allowed to sit back idly and to despair from the
absence of a positive rule of law when a plaintiff asks them for assis-
tance in order to bring an end to the State. Likewise no other state
authority should serve as an instrument in the hands of those
whose, perhaps sole, aim is the annihilation of the State.12

Indeed, democracy has to find answers to the dangers emanating

from the practice of its very principles, that is, tolerance, liberty, partic-
ipation, and representation (the democratic ‘catch’). Arguments that
convey similar notions have been employed in Britain by those seeking
to restrict the activities of the ‘National Front’.13 The majority of the
court, like Justice Landau, said nothing about circumstances, potential
power, gravity of danger or similar considerations. They made no refer-
ence to any criterion. Because President Agranat and Justice Sussman
thought that the matter in hand involved a combination of security
factors, together with an ideological threat to the state and the basic
principles that it embodies, neither of them saw it necessary to discuss
the level of the danger. This view is explicit in Sussman’s reasoning. For
him the subject is a matter of principle, rather than one that is contin-
gent on various facts and factors.14
46 Freedom of Expression

Neiman
The next milestone decision on this question of representation in parlia-
ment was decided 19 years later. In 1984, some weeks before the elec-
tions to the 12th Knesset were to take place, and in the light of the then
recent polls that showed that ‘Kach’, the quasi-fascist party of Rabbi Meir
Kahane, would succeed in entering the Knesset, the CEC decided not to
confirm ‘Kach’.15 It was argued that ‘Kach’ propounded racist and anti-
democratic principles; openly supported acts of terror; tried to kindle
hatred between different sections of the population; and that it intended
to violate religious sentiments and values of part of the state’s citizens.
In order to keep the ‘balance’ between the right and the left in par-
liament and to secure wide support for the disqualification decision,
the CEC also decided to ban the leftist ‘Progressive List for Peace’ (PLP)
on the grounds that the list contained subversive elements and tenden-
cies, and that central figures in the list identified with the enemies of
the state.16 Both ‘Kach’ and ‘PLP’ parties appealed to the Supreme
Court, which reversed the decisions of the CEC.17
All five justices in the appeal did not reject the idea of disqualifying
lists in order to defend democracy as such. They said that this measure
should be resorted to with caution, only in extraordinary cases. ‘Kach’
and the ‘PLP’ were not seen as such cases. Regarding the ‘PLP’, the
unanimous judgment was straightforward: the procedure used by the
CEC to disqualify the ‘PLP’ was seen as incorrect, in that it referred to
either unconvincing or old documents. The court was right in its
judgement. The ‘PLP’ ’s political platform did not differ significantly
from those of other parties that were allowed to compete in the elec-
tions, and no evidence brought before the court established that the
list constituted any danger to the state. But the decision concerning
‘Kach’ is less clear. The court should have used its authority to declare
that explicit antidemocratic ideas and aims cannot claim a right to be
represented in the Knesset.
The question of authority is strongly related to that concerning the
scope of tolerance and the restrictions on liberty. Constitutional mat-
ters in democratic societies frequently turn on the decision of the
courts; we must, therefore, examine the force of philosophical princi-
ples regarding societal norms and values, when the court formulates
judicial decisions in the absence of specific statutes empowering it to
act. This is the context in which we should consider the authority that
may be accorded to the court when it contemplates which democratic
methods of self-defence are to be resorted to on the basis of principles
underlying the constitutional text.
 The Right to Participate in Elections 47

The role of the judge is also to set more defined standards for action
for both politicians and the courts when they are faced with constitu-
tional matters, especially where attacks on the very foundations of
democracy are concerned. Hence a scope exists for taking normative
constitutional principles into account. These principles may in some
‘hard cases’ convince the court to take a creative approach. Dworkin
explains that in hard cases, judges must choose between eligible inter-
pretations of some statute or line of cases by asking which shows the
community’s structure of institutions and decisions in a better light
from the standpoint of political morality. The judge’s decision will
reflect not only his or her opinions about justice and fairness but his or
her higher-order convictions about how these ideals should be com-
prised when they compete.18 Following Dworkin, I would say that two
sets of considerations inevitably play their part when judges come to
formulate a judgement. One set is related to the moral convictions
held by the judges, influenced by their personal upbringing and educa-
tional background, as well as by the tradition and values of the society
in which they live. The other is concerned with the specific legal his-
tory. Precedents and other legal facts are bound to limit the moral con-
siderations of judges but they should not exclude moral considerations
altogether. When faced with an unprecedented situation, in which
they are required to use their discretion to find a judicial solution to a
‘hard case’ (such as this one), judges should decide the case by inter-
preting the political structure of their community so as to find the best
possible justification, in principles of political morality, for the struc-
ture as a whole.19 Accordingly, if the right of people to be treated as
equals and not to be harmed by others can be defended only by creative
adjudication, then creativity is not only in order but necessary. This is
the case so long as the judge tries to make the creative decisions in line
with previous ones rather than starting in a new direction as if writing
on a clean slate. In my view, Neiman allowed room for unwritten values
of the judicial system to be taken into account. And if the court could
not find an answer in statute law and could not draw an analogy with
Yeredor, it could have referred to ‘the principles of freedom, justice,
equity, and peace’ as the law of Foundation of Law (1980) provides. The
court should have done so not only because of the alarming nature of
the Kahanist phenomenon, but also because questions concerning the
eligibility of a list to participate in the elections inevitably are con-
nected with granting legitimacy to the list in question.
None of the five justices raises this issue of licensing. In my view,
the issue concerning the eligibility of a list to compete in the elections
48 Freedom of Expression

necessarily involves the question of legitimacy. It is not merely a ques-

tion of allowing opinions the right to be heard. Of course, a court
could approve something with reluctance, and judges could hold that
they do not have the authority to regard something as unconstitu-
tional, without giving the impression that in some broader sense that
something is right. Nevertheless, the final decision of the court is
bound to influence the way in which those matters are viewed:
whether they are given the status of any other matter, which may be
held with or without reservation but is still free to be represented in
parliament, or whether they are dismissed as matters that even the
courts of justice think should have no place in society.
President of the Supreme Court, Meir Shamgar, expressed fears of the
temptation to silence unpopular opinions. He held that a person’s lib-
erty was not to be restricted except by law, and was not to be denied
merely on the grounds of objection, however forceful, to the content
of an individual’s statement. President Shamgar postulated that the cri-
teria upon which answers to questions were examined should be based
on expressed statutory provision, and even more importantly, should
be activated only as a last resort when facing a probability of danger. If
there was a probability that the exercising of a certain right would
jeopardize public order and security in a concrete case, the authorised
statutory body could limit the practical implementation of the right in
the said circumstances.20 President Shamgar did not speak of defensive
means of democracy against certain threats in principle; instead his
view was practical. He maintained that there must always be a logical
connection between the degree of danger and the means taken. Not
any advocacy, even if it elicits justified indignation, may cause the
denial of the entire scope of liberty. A democracy that enforces restric-
tions without existential necessity loses its spirit and force.21
In turn, Justice Barak argued that a difference existed between free-
dom of expression and freedom to be elected. I concur with his view
that democracy must allow itself wider security margins when consid-
ering the eligibility of questionable lists. It is one thing to express
views and opinions, however repugnant they are, and quite another
thing to use parliamentary methods to put them into effect by legisla-
tive means. These two issues should be dealt with separately. When we
come to restricting the right of a list to be elected, the focus is on the
opinions and the goals of the list, and on its actions to realize them. If
the content of the political platform of a given list and its explicit
intentions are to bring about the physical annihilation of the state or
to undermine democracy, and members of the list are violently acting
 The Right to Participate in Elections 49

along these lines, democracy has the right to defend itself and not to
allow that list representation in parliament to further its aims by legal
means. To ask democracy to place the means for its own destruction in
the hands of its potential destroyers is neither morally obligatory nor
morally coherent. Notice my emphasis on physical annihilation of the
state. That is, in the Israeli context, no sufficient grounds warrant dis-
qualification of a party that wishes to change the character of the state
from a Jewish state into, say, a Canaanite secular state, as distinguished
from aiming to destroy the Israeli State as such.
According to Justice Barak’s line of thought, endangering democracy
amounted to endangering the basic foundations of the state. Hence,
parties that wished to participate in the democratic rules of the game,
and to gain power to implement their ideas through legislation and
other democratic means, had first to accept democratic principles. As
Justice Bejski said: ‘Whoever claims rights in the name of democracy
must himself act in accordance with its rules.’22 However, Justice Barak
added a restrictive qualification to the Yeredor ruling: the ‘reasonable
possibility’ standard for danger, and therein lies my disagreement with
him. I do not share either Justice Shamgar’s or Justice Barak’s opinions
that in the face of such dangers a standard of some sort should be
applied in order to evaluate the danger, and it should then be decided
what defensive means to apply.
Justices Shamgar and Barak believed that all parties should enjoy the
right to be elected, including those who threatened the existence of
the state (Shamgar and Barak), or its democratic foundations (Barak),
unless the threat they posed was severe, and unless they had a reason-
able chance of translating their ideas into deeds. Their reasoning was
founded on balancing and evaluating probabilities, a process that in
this context raised substantial questions. But not just the process raises
doubts. The essential question is: why should we wait for the stage of
probable or reasonable possibility of danger to be reached, while the
list in question goes from strength to strength, and meanwhile its ideas
and acts undermine democracy and deliberately discriminate against
others? The courts acknowledged that ‘Kach’ ’s values were not compat-
ible with the fundamental values of democracy, and that it did not
reject the use of violence to further its aims. Even if we follow Justices
Shamgar’s and Barak’s reasoning which concentrates attention on cir-
cumstances, the increasing popularity of ‘Kach’ against a background
of severe economic problems, combined with societal and national
crises, posed a danger to Israeli democracy. It was not as if the political
platform of ‘Kach’ was dubious, or the intentions of its members were
50 Freedom of Expression

unclear, or they did not act in accordance with their declared aims. I
do not therefore see why such a list should be allowed representation
in parliament to help it achieve its purposes. More fundamentally, the
issue of defending democracy is a matter of moral principle, rather
than one that is contingent on the level or the proximity of the dan-
ger. Justice Barak preferred to consider circumstantial considerations,
thereby avoiding a discussion of the ethical constraints of liberty and
tolerance. I argue that moral restrictions deriving from the defence of
democracy necessitate the outlawing of antidemocratic lists. A similar
line of reasoning guided the framers of the European Convention on
Human Rights when they enacted Article 17, recognizing the necessity
of preventing specific groups from exploiting the principles enunciated
by the Convention in their own interests. Article 17 provides:

Nothing in this Convention may be interpreted as implying for any

state, group or person any right to engage in any activity or perform
any act aimed at the destruction of any of the rights and freedoms
set forth herein or at their limitation to a greater extent than is pro-
vided for in the Convention.

Legal measures

The Knesset recognized the incoherence that existed in enabling anti-

democratic parties to exploit the machinery of democracy to bring
about its destruction. In August 1986 the Knesset passed a law that
specifies ‘incitement to racism’ as a criminal offence. Anyone who pub-
lishes anything with the purpose of inciting to racism is liable to five
years imprisonment (144B); and anyone who has racist publications in
his or her possession for distribution is liable to imprisonment for one-
year (144D). The term ‘racism’ is defined as

persecution, humiliation, degradation, manifestation of enmity, hos-

tility or violence, or causing strife toward a group of people or seg-
ments of the population – because of colour or affiliation with a
race or a national-ethnic origin (144A).23

One year after the writing of the Neiman decision, the Knesset
decided to take legal measures to provide grounds for disqualification
of racist and/or anti-democratic parties. The Knesset amended the Basic
 The Right to Participate in Elections 51

Law: The Knesset (1958) so as to include Section 7a.24 It is clear that

this section was legislated under the influence of the court ruling in
the Neiman decision of 1984 and that ‘Kach’ was the prime concern
which brought about this piece of legislation. The section reads:

A list of candidates shall not participate in Knesset elections if any

of the following is expressed or implied in its purposes or deeds:

1. Denial of the existence of the State of Israel as the State of the

Jewish people;
2. Denial of the democratic character of the State;
3. Incitement to racism.

Quite similarly, Section 5 of the Parties Law, 1992, provides that:

A party will not be registered if any of its purposes or deeds, explic-

itly or implicitly, contains

1. Negation of the existence of Israel as a Jewish, democratic state;

2. Incitement to racism;
3. Reasonable ground to deduce that the party will serve as a cover
for illegal actions.25

Both provisions are highly problematic. At first glance these laws

supply only three specific grounds for disqualification. A closer read-
ing, however, reveals that they open wide the door to the slippery-
slope syndrome. To begin with, why the laws speak of ‘purposes or
deeds’ is unclear. In my view, the language of the text needs to be nar-
rower in scope, speaking of ‘purposes and deeds’. Indeed, a political
party is expected to act according to the platform upon which it was
elected. But the framers of the laws opened the way to the exclusion of
parties solely on the grounds of their expressed intentions. In my opin-
ion, members of a party who merely voice their desires, doing nothing
to further them and bring them about, should be subjected to the same
restrictions of freedom of expression as any other citizen. If Kahane
were not involved in illegal, violent activities; if he only talked about
discriminating against others and ‘emigration for peace’ without actu-
ally doing something along these lines, then democracy should toler-
ate him, the way it tolerates people who take a soap box in Hyde Park
praising Hitler and declare themselves Hitler’s successor. To disqualify a
political party, proof should be given that the list in question was not
only promoting destructive ideas but also resorted to violence.
52 Freedom of Expression

These provisions are also problematic because they state that a list
may be disqualified if any of the three grounds is ‘expressed or implied’.
The focus is on the word ‘implied’. Intentions can be implied, but activi-
ties speak for themselves. Unclear is how any one of the three categories
can be implied from attempts to bring it about. And if a list can be dis-
qualified just because one of the three issues may be implied from its
activities, or even from its purposes, then again the scope for curtailing
this fundamental right is too broad, and the slippery-slope syndrome
becomes tangible. On the other hand, the language of the laws is restric-
tive in the sense that it does not exclude racist platforms per se.
Section 7a served as the basis for the disqualification of ‘Kach’ in the
1988 elections. That year saw a boom in the number of requests to ban
parties. Altogether there were 21 (!) such requests. The ‘Kach’ represen-
tative initiated 12 of those requests. The CEC’s discussions revolved, in
the main, around two parties: the ‘PLP’ and ‘Kach’. Both of the deci-
sions reached the Supreme Court of Justice. In a divided 3 to 2 decision
the court approved the participation of ‘PLP’ in the elections. The
majority of the court was not convinced that there was conclusive evi-
dence to show that the political programme of ‘PLP’ was aimed at
bringing about the end of Israel as the state of the Jewish people.26 A
unanimous court, on the other hand, denied the ‘Kach’ appeal.27
Having the legal grounds as provided by Section 7a the court saw no
reason to accept the ‘Kach’ appeal.28
The same phenomenon reoccurred in 1992. Three parties were on
the CEC’s agenda: ‘Moledet’, and the two parties with almost identical
anti-Arab and theocratic political platforms – ‘Kach’ and ‘Kahane Is
Alive’. The Communist party, ‘Hadash’, asked to disqualify them, argu-
ing that they incited to racism and negated the democratic character of
Israel. The Civil Rights Movement, ‘Ratz’, joined ‘Hadash’ ’s request in
regard to ‘Kach’ and ‘Kahane Is Alive’. In the end, these two parties
were disqualified on the grounds of Section 7a.29

Outlawing political parties

The next elections were held four years later, in 1996. The years
between 1992 and 1996 were of significant importance in the history
of Israel. On 13 September 1993 Israel and the Palestinian Liberation
Organisation (PLO) signed a peace agreement known as the Oslo
Accords. From that date Israel witnessed high-profile activity on the
part of the extreme right seeking to reverse the trend leading to peace.
The most vicious attack against Palestinians took place on 25 February
 The Right to Participate in Elections 53

1994 when Dr Baruch Goldstein, candidate no. 3 on the ‘Kach’ list for
the 11th Knesset elections and designated to be the ‘Kach’ ’s representa-
tive on the Kiryat Arba council, entered the Cave of Machpellah (the
burial place of the Hebrew Patriarchs and their wives) in Hebron and
massacred in cold blood some 29 Palestinians praying in the mosque
inside the Cave. Following this murderous attack, on 13 September
1994, the government decided to outlaw both the ‘Kach’ and ‘Kahane Is
Alive’ movements.30 Before I proceed to examine the 1996 Supreme
Court’s decisions regarding disqualification of parties, let me reflect for a
moment on the outlawing measure, which is relevant to our discussion.
The decision to outlaw ‘Kach’ and ‘Kahane Is Alive’ was made in
accordance with the Prevention of Terrorism Ordinance. Section 1 of
the Prevention of Terrorism Ordinance (No. 33 of 1948) defines a ‘ter-
rorist organisation’ as ‘a body of persons resorting in its activities to
acts of violence calculated to cause death or injury to a person or to
threats of such acts of violence’.31 The Ordinance specifies the penal-
ties for activity and membership in such an organization. Section 2
holds, inter alia, that a person performing a function in the manage-
ment or instruction of a terrorist organization, or participating in the
deliberations or the framing of the decisions of a terrorist organization,
or delivering a propaganda speech on behalf of such an organization,
commits a criminal offence and is liable to maximum punishment of
20 years imprisonment. Mere membership in a terrorist organization is
liable to imprisonment for a term not exceeding five years (Section 3).
In addition, a person publishing praise, sympathy, or encouragement
for acts of violence calculated to cause death or injury, and a person
assisting the organization in its activities, is subject to criminal proceed-
ings and a maximum penalty of three years’ imprisonment (Section 4).
The outlawing of the ‘Kach’ and ‘Kahane Is Alive’ movements after
the atrocious attack at the Cave of Machpellah is yet another extreme
step Israel took in its struggle against Kahanism. It exhibited the gov-
ernment’s firm determination to foil further recurrence of murderous
attacks against Palestinians. In his opinion paper of 10 March 1994 to
Prime Minister Yitzhak Rabin, Attorney-General Michael Ben-Yair
explicitly wrote that

violence and the threat of violence are inherent in the activities of

the ‘Kach’ and ‘Kahane Chai’ (‘Kahane Is Alive’) movements. This
violence does not follow a uniform pattern. It is directed towards var-
ied targets and appears in different forms, according to the situation,
the time and the person performing the act.32
54 Freedom of Expression

He maintained that the movements’ violence was aimed against the

entire Arab population, both within the area of Israel and outside it.

It is also aimed against public figures who express opinions that are
different from the opinions of the movements, and against the secu-
rity forces that prevent members of these movements from violating
the law and public order.

In many instances activists of these movements had threatened public

figures, both orally and in writing, with physical injury and death.
Ben-Yair asserted that ‘until now threats of a physical nature have not
been carried out. However activists of these movements have damaged
property belonging to these public figures’.33
Evidently, the feeling was that these organizations constituted a real
danger to the Palestinian community and also posed a threat to public
figures opposing the movements’ views and to the security forces. ‘Kach’
and ‘Kahane Is Alive’ never exhibited any intention of ceasing to pro-
mote and incite racial discrimination and hatred against Palestinians.
The murderous and vicious attack at the Cave of Machpellah showed
that any inhibition in their activities had been put aside. The legal
authorities appear to have felt that the criterion of clear and present
danger was satisfied and that Israeli democracy could no longer afford
the degree of tolerance it had shown until then. Attorney-General Ben-
Yair’s recommendation was accepted.
My view of the outlawing decision is one of principle. As a matter of
principle I feel that terrorist organizations should be outlawed tout
court. It is contrary to logic to expect democracy not to react in the
most decisive fashion to challenges which undermine the state’s sover-
eignty and which aim to destroy law and order. This is so, provided
that conclusive evidence indicates that the organization in question is
indeed a terrorist organization. Democracy has to be on the defensive.
It has the right to outlaw organizations that propagate and use vio-
lence against opposition. Tolerance should prevail but it also has to
have its limits; otherwise democracy might supply its destroyers with
the means to carry out their task more quickly and efficiently. We
should therefore claim in the name of tolerance the right not to toler-
ate the intolerant.34
To reiterate: the argument I put forward is one of principle and it
accentuates the rationale of mutuality. Acts of self-defence against
those who undermine democracy by resorting to brutal means necessi-
tate the imposition of restrictions. Clearly, violence and terrorism
 The Right to Participate in Elections 55

negate the functioning of democracy. Similarly, democracy should

deny the working of violent movements. The concepts of democracy
on the one hand, and violence and terrorism on the other, are mutu-
ally exclusive. They contradict one another by definition. Democracy
has a moral and practical right to suppress resorting to violence and
terrorism by legal means (as distinct from terrorist means).35
I review below the 1996 Supreme Court’s decisions on disqualifica-
tion of political lists. The CEC did not deal with this matter for the
simple reason that the court decided the preliminary issue of the very
registration of the parties in question with the Parties’ Registrar. Once
those decisions were rendered there was no need for the CEC to delve
into the question of denying the parties in contention participation in
the election.
The two parties on the agenda were an extreme right-wing political
party, and a Palestinian party. I first discuss the appeal against the
Jewish ‘Yemin (Right of) Israel’ party and proceed to an examination of
the request to prevent the registration of the ‘Arab Movement for
Change’.

The Court’s decisions of 1996

‘Yemin Israel’
‘Yemin Israel’ asked to be registered as a political party. The Parties’
Registrar received objections to this request, grounded on the above-
mentioned Section 5 of the Parties Law, 1992.36
In the case at hand, the Parties’ Registrar dismissed all objections to
the registration of ‘Yemin Israel’ and an appeal was made to the Supreme
Court which decided against it.37 The Parties’ Registrar reviewed the
objections and contested the view that the aims of ‘Yemin Israel’ consti-
tuted racism or incitement to racism. In his view, nothing in ‘Yemin
Israel’ ’s aims would necessarily lead to the negation of minorities’
rights. The Parties’ Registrar did not think that accepting Jewish law
principles would necessarily transform Israel into a halacha state, nor
would it result in negation of human and civic rights. The party was
entitled to pursue its ends as long as it acted within the legal frame-
work. Furthermore, its programme did not offend the right of non-
Jewish citizens to elect and be elected, nor did it constitute incitement
to racism.38
Let me note the following. ‘Yemin Israel’ ’s statement ‘the law and
constitution of the State of Israel is to be based on Jewish law’ is open
to interpretation. If the members of ‘Yemin Israel’ meant by this that
56 Freedom of Expression

the entire legal framework would be based only on Jewish law princi-
ples then Israel could no longer be considered a democracy. It would
then be transformed into a theocracy. But those who framed ‘Yemin
Israel’ ’s political platform never said that explicitly. Nowadays the legal
framework of Israel is based, inter alia, on principles of Jewish law, and
Israel can still be called a democracy.
However, I disagree with the Parties’ Registrar’s conclusion that the
party’s demand for an ‘oath of allegiance’ to the State of Israel as a
Jewish state does not offend the right of non-Jewish citizens to elect
and be elected. The Palestinian citizens of Israel can identify with the
democratic principles of Israel, with the spirit of liberty that is
enshrined in its institutions. They may appreciate, love, and identify
with certain aspects of Israeli culture (food, songs, dance, theatre, folk-
lore). They may love Israel’s beautiful location, enjoy strolling the
streets, visiting the natural spots Israel is blessed with, and finding time
for relaxation on its relatively long beaches. Some Palestinians may
admire Israel’s strength and advanced technology and others may trea-
sure the Holy places. But most of them would find it difficult to iden-
tify with the Jewish character of Israel. In the same way that Jewish
Americans would find it difficult to vow their allegiance to the United
States as a Christian nation and would protest such a demand, so the
Palestinian citizens have every right to protest against vowing alle-
giance to a religion they do not adhere to. Nevertheless, this does not
entail that ‘Yemin Israel’ should have been disqualified from registra-
tion. I contend that evidence should be produced that the party in
question is acting violently to promote its aims for it to be banned,
either from registration or for contesting elections.
‘Yemin Israel’s’ additional call for the ‘exchange of population’
between Jews and Palestinians can be seen as a guise for a transfer oper-
ation of Palestinians to Israel’s neighbouring countries. ‘Yemin Israel’
spoke of ‘consent’ of the people to be transferred but this consent was
not of the people concerned but between governments, the Israeli and
the Arab, over and above the heads of the people who would be asked
to leave. To my mind, the transfer programme is aimed at depriving
the Palestinians of their right to live in their place of origin, and it is
for the Supreme Court to address the question of whether this idea is
racist under the Penal Law. Unlike the Parties’ Registrar39 I think that
both the ‘oath of allegiance’ proposal and the ‘exchange of population’
programme are racist ideas. However, as noted before, Section 5 (2) of
the Parties Law, 1992, speaks of ‘incitement to racism’ rather than of
racism per se; therefore no sufficient ground existed to refuse the party’s
 The Right to Participate in Elections 57

registration. We later on observe that President Barak thought that the

‘oath of allegiance’ proposal was not racist, and that he avoided
addressing the question of whether the ‘exchange of population’ pro-
gramme was racist under the Penal Law. Probably he did not wish to
tread on too sensitive a political issue.
In his judgement, President Barak explained that on the basis of
Section 5 to the Parties Law lies the rationale of balancing. We need to
strike a balance between two conflicting trends. On the one hand, we
need to enable every individual to form with other individuals an asso-
ciation through which they may further political and social ends. On
the other hand, we should safeguard the character of Israel as a Jewish
democratic state that shrinks from racism.40 President Barak accentu-
ated that the right to elect and to be elected was fundamental, and
went on to stress that democracy is entitled to defend itself against
those who aim at undermining its existence. This is the essence of the
right to democratic self-defence.41
While agreeing with Justice Barak that democracy has every right to
defend itself I contest his reasoning. President Barak is the chief cham-
pion of the very fashionable balancing approach. He believes that on
constitutional matters the balancing method is most appropriate and
that on each and every case we should weigh up the competing inter-
ests. As stated, my approach is different. I think that, as a matter of
principle, a party that advocates the destruction of democracy, or of
the state, and which employs violent means to bring about one or both
of these aims, should be banned. It is contrary to logic, as well as to
morality, to grant such a party the democratic means to help it accom-
plish its anti-democratic ends. The balancing approach is suitable only
when considering two or more competing interests that accept the
basic rules of democracy, first and foremost among them respect for
others and not harming others.42
To elucidate my point, let me consider the case of terrorism that, like
violent anti-democratic parties, negates the very basis of democracy. I
do not see any need to balance the interests of the terrorist against the
interests of the state protecting its citizens. I strongly urge people to
fight with all their strength against the terrorist phenomenon,
acknowledging that a zero-sum game exists between democracy and
terrorism. The same line of argument guides my reasoning when dis-
cussing violent, anti-democratic parties. As with terrorism, every gain
on the part of the violent anti-democratic party comes at the expense
of democracy. Therefore, there is no need to weigh the competing
interests, simply because the interests of the said party are illegitimate.
58 Freedom of Expression

By implication, parties that do not employ violent means to further

their causes in the marketplace of ideas and political platforms should
be able to compete in a free, democratic spirit. Democracy may allow
peaceful transformation but it cannot allow bloodshed in the name of
religion, racism, nationalism, or any ideology.
President Barak does not share this conviction. He is an ardent
believer in balancing and, in his view, the issue of interests and means
has a place only within this general framework. Justice Barak’s concern
lies with the question of how the court should strike a balance between
the two conflicting trends. President Barak explained that human rights
are relative. They need to be balanced in a way that will benefit the
public. The balancing process is conducted within a social framework
that needs to be safeguarded. We do not live on an isolated island and
we need to bear in mind the social implications of the juridic deci-
sion.43 Therefore, because of the major importance that the freedom to
associate enjoys in democratic life, we must insist that only in the most
extreme cases we should prevent the formation of parties. More specifi-
cally, only if the central and dominant aims of the party in question
will bring about the negation of the State of Israel as a Jewish democra-
tic state, will there be room to prevent the registration of that party.44
I concur with almost all the above statements. I also believe that
human rights are relative. I agree that the judges adjudicate within a
social framework that needs to be safeguarded, and that they need to
bear in mind the social implications of their juridic decision. Likewise I
think that only in the most extreme cases should we prevent the for-
mation of parties. However, while President Barak stresses that there is
room to prevent the registration of a party only if its central and dom-
inant aims will bring about the negation of the State of Israel as a
Jewish democratic state, I focus on the aims and the means employed
by the party in question to bring about the denial of Israel as a Jewish
state or as a democracy. Justice Barak ignored the question of how we
should treat a party whose aim is to annul only the democratic charac-
ter of Israel. This is a tense issue embodied in political considerations,
and Justice Barak obviously did not want to address complexities he
would find difficult to resolve. In the Israeli Knesset there are a few
orthodox parties that enjoy the rights and liberties of democracy and
at the same time do not believe in the spirit and the essence of democ-
racy and strive to enhance the Jewishness of the state at the expense of
democratic life.
From the general to the particular. President Barak considered whether
the ‘oath of allegiance’ proposal and the ‘exchange of population’
 The Right to Participate in Elections 59

programme constituted racism. Interestingly Justice Barak spoke of

racism rather than incitement to racism as Section 5 (2) of the Parties
Law, 1992, provides. In his opinion, an oath of allegiance to the State
of Israel as a Jewish state did not entail lack of commitment to its
democratic character, could not be said to be illegal, and was not
racist.45 I assume that if Justice Barak did not find this programme
racist, ipso facto it could not be considered incitement to racism.
As for the ‘exchange of population’ programme, Section 6 of ‘Yemin
Israel’s’ political platform speaks of ‘the enemies of Israel’ and not of all
the non-Jewish population. President Barak admitted that this phrase
was problematic, meaning (I assume) that it could be interpreted in dif-
ferent ways. Nevertheless, owing to the need to give a narrow interpre-
tation to Section 5 of the Parties Law and the effort to employ this
Section only in the most extreme cases, the affirmation of ‘Yemin
Israel’ should be upheld and the party should have the right to be
registered.46
Canvassing President Barak’s judgement leads me yet again to agree
with his conclusion while disagreeing with the method and some of
the statements. Justice Barak argues that the statement ‘Eretz Israel in
its entirety belongs to the people of Israel, to them alone, and it cannot
be divided’ did not offend the rights of the non-Jewish minorities. The
statement might offend the Palestinians’ sensibilities but in itself it
obviously does not deny their rights. Actions to materialize this state-
ment might deny their rights. Thus I reiterate my emphasis on paying
attention to ends and means (rather than ends or means) when consid-
ering confirming a party for either registration or participation in
the elections.
Moreover, I have my doubts whether the Parties’ Registrar and the
court should have accepted so easily the argument made by the ‘Yemin
Israel’ representative that its aim was not to transform Israel into a
halacha state. Having said that, I concur with Justice Barak that the
desire to change the laws of the state does not in itself constitute a
ground to prevent the party’s registration. Yet again I emphasize that
two considerations must be present in our minds: purposes and deeds
of the party in question. Each of these considerations is necessary and
none in itself is sufficient.
Furthermore, Justice Barak opined that the ‘oath of allegiance’ pro-
posal did not entail lack of commitment to Israel’s democratic charac-
ter, cannot be said to be illegal, and was not racist. I disagree. As
explained supra, I think that such a demand is anti-democratic and dis-
criminatory, and therefore racist. As for the ‘exchange of population’
60 Freedom of Expression

programme, Justice Barak refrained from considering whether or not it

was racist.

The ‘Arab Movement for Change’

The same day that the ‘Yemin Israel’ decision was made the court also
dealt with another appeal for disqualification of an Arab party.47 Fol-
lowing the registration of the ‘Arab Movement for Change’ by the
Parties’ Registrar, six objections were made to reverse his decision. The
Registrar examined all objections and decided to turn them down.
Appeal was then made to the Supreme Court to overturn the decision.
On 2 April 1996, the court heard both sides of the appeal and decided
that the Parties’ Registrar should carefully re-examine all related facts
and grant a new decision. The Registrar did so and reissued an affirma-
tion of the party in question. The Supreme Court was asked to review
the decision.
The court (per Mishael Cheshin, Yitzhak Zamir, and Zvi Tal) rejected
the appeal. Speaking for the unanimous court, Justice Cheshin exam-
ined the same issue that troubled him in the ‘Yemin Israel’ decision,
arguing that the interpretation of Section 5 of the Parties Law is similar
to the interpretation of Section 7a of Basic Law: The Knesset. The lan-
guage of the laws is almost similar; the social and national values they
uphold are the same.48 In essence, both laws are concerned with the
same thing: grounds for disqualification of political parties. Quoting
from his own judgement in the ‘Yemin Israel’ decision, Justice Cheshin
reiterated that the difference between the two laws was so fine that
only angels could observe it.49
Justice Cheshin proceeded by an examination of the appellant’s
arguments that were four in number. First, the appellant argued that
the ‘Arab Movement for Change’ negated the very existence of Israel.50
Second, the appellant contended that the party negated the existence
of Israel as a Jewish state.51 Third, it was claimed that the party might
serve as a cover for illegal actions.52 Therefore it should be disqualified
in accordance with Section 5 of the Parties Law. Last, the appellant
held that the Parties’ Registrar should have refused the party’s registra-
tion because there was a clear conflict of interests between the party
leader’s activities as a consultant to the Chairman of the Palestinian
Authority, Yassir Arafat, and his role as a head of party that wished to
compete in the elections.53
The appellant based his reasoning on reading the party’s political plat-
form, which spoke of ‘continuation of support of the Israeli–Palestinian
peace process in order to establish an independent Palestinian state
 The Right to Participate in Elections 61

next to the State of Israel in its 1967 borders. The capital of the
Palestinian state would be east Jerusalem.’ The party also declared that
it would strive for a just solution to the refugee problem.54
The appellant argued that one should not read this statement as it is
but rather looks for the implied agenda. The ‘real’ aims of the party
were to settle for a two-state solution in the first instance and then
work to accomplish the further stage, which was the destruction of
Israel. Justice Cheshin was willing to accept that in evaluating the char-
acter and essence of a given party we should not examine only the for-
mal publications and the explicit agenda. Instead, we should strive to
unveil the real aims of the party, which might be camouflaged in a cal-
culated manner.55 However, a question arose as to whether the appel-
lant was in a position to prove that the destruction of Israel was,
indeed, the ‘real’ aim of the said party. The appellant based his reason-
ing on three interdependent arguments. The first argument was that
the Palestinian Liberation Organization (PLO) aimed at the destruction
of Israel, as declared, inter alia, in the Palestinian Covenant. Second,
the leader of the party in question, Ahmed Tibi, was identified with the
PLO. Consequently, Dr Tibi’s aim was similar to the PLO’s.56
In considering the arguments, Justice Cheshin held that the ends of
the PLO were revised. He mentioned the Oslo and Cairo accords signed
between Israel and the PLO; the explicit recognition of Israel by the
Chairman of the Palestinian Authority, Yassir Arafat; the explicit con-
demnation of violence and terrorism made by Chairman Arafat, and
Israel’s recognition of the PLO as the representative of the Palestinian
people. Justice Cheshin also questioned the argument that identified
Dr Tibi with the PLO. He agreed that Dr Tibi was the leader of the party
but noted that 120 people had founded the party and it was not at all
clear whether it was possible to identify the entire party with only one
person.57 Moreover, Justice Cheshin did not think that the appellant
succeeded in demonstrating that Dr Tibi could be identified with the
PLO. True, Dr Tibi served as a consultant to Yassir Arafat and the
Palestinian Authority. When asked about his activities Dr Tibi explained
that he was not a member of any of the PLO’s bodies, that his role as
consultant was limited to the peace process alone, and that he acted
voluntarily without asking for any reward. All he wanted was to help
bring about peace between the two nations. Justice Cheshin reviewed
in some detail Dr Tibi’s statements and saw no reason to question
them.58
Consequently, the appellant’s line of reasoning was quashed. No
valid evidence was presented to prove that the party in question, either
62 Freedom of Expression

in its aims or deeds, disputed the right of existence of Israel.59 The

court rightly rejected the appellant’s claim in this regard.
Justice Cheshin went on to probe the claim that the party denied the
right of existence of Israel as a Jewish state and therefore should not be
registered. The appellant based his reasoning on three different claims:
first, the party defined the state of Israel as ‘a state of all its citizens’;
second, the party supported the Palestinian refugees’ right of return;
third, the party supported the establishment of a Palestinian state with
Jerusalem as its capital. The appellant opined that each of those claims
contradicted the existence of Israel as a Jewish state.60
As for the first claim, Justice Cheshin argued that the assertion that
the State of Israel was the state of all its citizens did not undermine the
existence of Israel as a Jewish state. Of course Israel is a state of all its
citizens. One of the most fundamental principles of democracy is
equality among citisens. Justice Cheshin quoted from the Declaration
of Independence, which assures ‘full equality of social and political
rights to all its citizens, without distinction as to religion, race or sex’.
This is the credo of the Israeli nation. Striving to ensure equal rights of
all citizens does not make Israel less Jewish.61
As for the second claim concerning the Palestinians’ right of return,
Dr Tibi stated in his affidavit that this concern was to be dealt with in
the negotiations between Israel and the PLO, and whatever was agreed
between the two parties would be acceptable to the ‘Arab Movement
for Change’. Observing this statement, Justice Cheshin asserted that he
could not see how the negation of the State of Israel as a Jewish state
was imperative to the party’s ends.62
Last, regarding the party’s desire to make east Jerusalem the capital of
the established Palestinian state, Justice Cheshin did not think that the
motivation to divide Jerusalem undermined the existence of Israel as a
Jewish state. The State of Israel was a Jewish state prior to the Six Day
War, when only west Jerusalem was part of Israel. Therefore this aim
did not entail the negation of Israel as a Jewish state.63
Justice Cheshin went on to analyse the third ground for the appeal,
that the party might serve as a cover for illegal activities. The appellant
argued that Dr Tibi served as a consultant to Chairman Arafat and that
this in itself constituted an illegal action. Dr Tibi and his party would
continue their illegal actions, this time in a more organized form. The
appellant accused Dr Tibi of affiliation with a terrorist organization,
basing his argument on a decision of the Israeli government that
declared the PLO a terrorist organization. That declaration was at that
time valid.64
 The Right to Participate in Elections 63

Justice Cheshin did not accept this argument. He held that no crimi-
nal proceedings were opened against Dr Tibi; that the Attorney-General
reviewed this and similar arguments against Dr Tibi and decided not to
bring criminal charges against him; and that the Supreme Court was
asked to examine the Attorney-General’s decision and concluded that
the decision was reasonable.65 After all this, the court was not in a posi-
tion to hold that the party might serve as a cover for illegal activities.66
Justice Cheshin maintained that not a shred of evidence had been
adduced to show that party members might utilize the party for illegal
actions.67
Finally, Justice Cheshin probed the argument that the Parties’
Registrar should have disqualified the party owing to a clear conflict of
interests between Dr Tibi’s activities as a consultant to Chairman Arafat,
and his role as a head of a party that aimed to compete in the elections
for the Israeli Knesset. The argument was that Dr Tibi sought to
become a member of the Knesset who must uphold his allegiance to
the State of Israel, and at the same time wished to serve as a consultant
to the PLO whose interests conflicted with those of Israel. Dr Tibi
responded that once he presented his candidacy for the Knesset, and
the party was presented for the approval of the Central Election
Committee, he would then announce his resignation from his role as a
consultant.68
Justice Cheshin again reminded the appellant that Dr Tibi was,
indeed, the leader of the party and might be the most prominent figure
in the party. Nevertheless, the appellant sought to disqualify the entire
list, comprising 120 people, and not Dr Tibi alone. It was difficult to
deduce that the entire list should be disqualified because of only one
person. Having said that, Justice Cheshin felt compelled to address the
issue that was put to the court, whether the ‘conflict-of-interest’ ratio-
nale ( Justice Cheshin spoke of doctrine) constituted a ground for dis-
qualification. That issue consisted of two different questions: first,
whether the ‘conflict-of-interest’ rationale was included within Section 5
of the Parties Law; and second, assuming that it was not included
within Section 5, did the law permit the Registrar or the court to intro-
duce more grounds for disqualification, additional to those mentioned
in the law?69
As for the first question, Justice Cheshin opined that Section 5 did
not include limits to party’s registration solely on the ground of con-
flict of interest. The court was obliged to interpret the law narrowly,
but even a broad interpretation would not permit disqualification of
parties due to conflicts of interests.70 Justice Cheshin went on to
64 Freedom of Expression

address the second question and asserted conclusively that neither the
Registrar nor the court, was empowered to add or to subtract grounds
for disqualification.71
I find Justice Cheshin’s reasoning most compelling. I think he elo-
quently and masterfully analysed all the issues presented for the court’s
consideration. No wonder that Justice Cheshin’s colleagues did not
have anything to add to his skillful analysis. Justices Zvi Tal and
Yitzhak Zamir reflected in their brief judgments only on the side ques-
tion of the differences between Section 7a of Basic Law: The Knesset,
and Section 5 of the Parties Law. Justice Zamir acknowledged that this
in no way was the essential question before the court for deciding
whether or not the party in question should have been confirmed or
disqualified. Justice Tal added a minor reflection on whether the con-
tention that the ‘State of Israel is the state of all its citisens’ was as
innocent as the framers of the party in question pretended it to be. He
thought one might suspect that the hidden agenda was to reject the
Jewish character of the state. Nevertheless, Justice Tal maintained that
to disqualify a party we need clear, conclusive, and convincing evi-
dence, and this was not provided.72

Conclusion

It is right and necessary to restrict the competition of parties in elec-

tions only if they endanger the very existence of the state or its democra-
tic foundations. Violent parties which are unequivocally anti-democratic,
or which aim to bring about the physical annihilation of the state,
should not – as a matter of principle – be eligible to take part in the
elections so as to enable them to further their ends. To avoid the possi-
bility of the slippery-slope syndrome, I argue that only in these two
instances may a list be disqualified. A list that wishes to participate in
the democratic procedures and to gain power to implement its ideas
through legislation and other democratic means must first recognize the
right of the state to exist and to comply with the basic principles that
underlie its democratic foundations. If the political platform of a list
negates the basic requirements of democracy, those of respecting oth-
ers and not harming others; if the list’s ideology advocates not accept-
ing these principles when they are applied to a designated group, and
it resorts to violence to further its discriminatory ideas, that list dis-
qualifies itself from the right to participate in the democratic process.
When democratic institutions accept such a list, they assist the promo-
tion of anti-democratic notions.73 Therefore, no evidence of a danger,
 The Right to Participate in Elections 65

near or remote, is needed when a list aims to undermine democracy or

the state. The evidence that is required concerns the content of the
political platform of the list in question, the list’s intentions, and the
fact that violent acts were undertaken to accomplish the declared aims.
The evidence must be explicit and clear, and it must be substantiated,
to use Barak’s contention, by ‘qualified administrative evidence’, that
is, ‘such testimony as any reasonable person would consider to be of
probative value and would have relied upon to a greater or lesser
degree’.74 The burden of providing the evidence is on whoever argues
for refusing to confirm the list.
This page intentionally left blank
Part II
Media Ethics, Freedom and
Responsibilities

We define freedom of the press as that degree of freedom from

restraint which is essential to enable proprietors, editors and
journalists to advance the public interest by publishing the facts
and opinions without which a democratic electorate cannot
make responsible judgments.

The British Royal Commission on the Press,

Cmnd. 6810 (1977), para 2.3

Freedom of the press is guaranteed only to those who own

one.

A. J. Liebling, The Press (1964)

This page intentionally left blank
4
Objective Reporting in the Media:
Phantom Rather than Panacea1

Preliminaries

Journalism historians researching the developments in North America

have tied the emergence of objectivity to the decline in party journal-
ism, beginning in the 1830s, when the commercial penny papers com-
bined advanced print technology with a street-sale distribution system
as a way of expanding and cultivating a new public. Massive economic
and political changes in the 1830s were expressively integrated into the
form and content of the penny press, which both drew upon and
strengthened the culture of a democratic market society. The cheap
commercial papers asserted their independence from party politics and
emphasized their reliance on news from any and all social spheres. The
penny press could offer, so it claimed, a more dependable and authentic
journalism: news untainted by the political, social, and economic values
that for so long had defined the content of the daily papers. The belief
that knowledge, like property, should not be monopolized for exclusive
use by private interests was expressed in the penny papers as a positive
commitment to cheap, value-free information – to objective fact.2
By the early 1900s objectivity had become the acceptable and
respectable way of doing reporting. Conventions of objective reporting
were adopted as a routine journalists use to objectify their news stories.
The media and newsworkers saw themselves as arbiters of social reality.
Just as scientists discovered the facts about nature by using norma-
tively established objective methods, so too the news media and the
news professionals would use their methods to reveal social reality to
the news consumer. Gaye Tuchman3 describes these conventions as a
strategy journalists use to deflect criticism, the same kind of strategy
social scientists use to defend the quality of their work.4 As early as

69
70 Media Ethics, Freedom and Responsibilities

1924 objectivity appeared as an ethic, an ideal subordinate only to

truth. Objectivity was portrayed as the ultimate discipline of journal-
ism, ‘at the bottom of all sound reporting – indispensable as the core of
the writer’s capacity’.5 It was called ‘the emblem’ of American journal-
ism.6 In 1973, the Society of Professional Journalists, Sigma Delta Chi,
adopted as part of its Code of Ethics a paragraph characterizing objec-
tive reporting as an attainable goal and a standard of performance
toward which journalists should strive.7 And, in 1982, a survey of 153
US journalists found that most of them equated ethics with ‘objective’
news coverage.8
The idea of media objectivity was sustained by the contemporary
acceptance of positivist science and photographic realism, both of
which conceived as mechanisms to overcome the tendency towards
subjectivity. As newspapers have grown in size, and at least in North
America have come to monopolize particular geographic areas, they
had to claim objectivity. Otherwise, so newspaper owners thought,
there might be greater pressure to impose public responsibilities and
access legislation. Objectivity, thus, became a key word of praise, some-
thing that the public wants to attribute to journalism; an elusive idea
that media organizations adopt and propagate so as to acquire influ-
ence and prestige, a façade of professional journalism to which they
vow their allegiance.
Furthermore, objective reporting is believed to be a necessary com-
ponent of media ethics and of an unbiased reporting. Objectivity in
the media is popularly conceived as a virtue. Often it is claimed that
media ethics require complete objectivity and that objective reporting
is professional reporting, is ethical reporting. When editors were asked
what they considered to be the most pressing ethical issues facing
reporters or editors, the concern for fairness and objectivity was cited
nearly twice as often as any other concern.9
I suggest that the idea of objectivity should be rejected in cases pre-
senting ideas sharply opposed to democracy, which sanctify various
forms of discrimination or violence against others.10 In consequence,
ethics in the media means taking social norms into consideration. The
preservation of those very norms, which allow the functioning of
democracy, ought also to require self-containment and self-control on
the part of media reporters.
Let me clarify that the aim of this chapter is not to reject objectivity
tout court but to warn against human deficiencies. As Thomas Nagel
observes, it is natural for us to want to bring our capacity for detached,
objective understanding as closely into alignment with reality as we
 Objective Reporting in the Media 71

can, but it should not surprise us if objectivity is essentially incom-

plete.11 Like Nagel, I am not a solipsist. I do not believe that the point
of view from which I (or any other human being for that matter) see
the world is the only perspective of reality. The world is seen from
many perspectives, including my own; there are many subjects of con-
sciousness in it, as well as many biases, conceptions, and misconcep-
tions that we hold consciously or subconsciously.
Furthermore, the aim of this chapter is also to warn against false
ideas of objectivity and to call attention to the dubious notions associ-
ated with this term. The problem is that objectivity can be contrasted
with too many different things, such as falsity, bias, partisanship, sub-
jectivity, exaggeration, understatement, moralizing, emotiveness, and
so on. Now I need to explain what notions are encompassed within the
broad concept of objectivity.
The concept of objectivity is concerned with the way news is created
and reported in the selection of facts, their arrangement, their framing
and formation on the public agenda with or without relationship to
values. Objectivity is generally defined as the view that one can and
should separate facts from values. Facts are assertions about the world
open to independent validation; they are statements that stand beyond
the distorting influences of any individual’s personal preferences.
Values are an individual’s conscious or unconscious set of preferences
for what the world should be; they are ultimately subjective and have
no legitimate claims on other people.12 However, this definition, which
emphasizes the relationship between facts and values, is deficient. In
the ensuing discussion I want to show that objectivity involves several
dimensions, among them accuracy; balance and fairness; truthfulness;
and moral neutrality.
While I accept and encourage accuracy and fairness in reporting,
I also reject moral neutrality on important social issues that concern
the safeguarding of democracy within which the media operate and
flourish. In this context I focus attention on moral neutrality which is
another dimension usually associated with the notion of objectivity. As
Gans13 holds, journalists seek to exclude conscious values and they do
so in three ways: employment of the notion of objectivity, disregard of
implications, and rejection of ideology as they define it. Value exclu-
sion is a practical consideration, for it defends journalists against actual
or possible criticism, and protects them against demands by powerful
critics for censorship and self-censorship.
My contentions against this viewpoint are twofold: disregarding impli-
cations is unethical conduct and it also negates professional journalism.
72 Media Ethics, Freedom and Responsibilities

Second, on some occasions journalists should be subjected to criticism

because they refrain from taking sides in a controversy and because
they exclude values. Here I briefly discuss the issues of rape, and Prime
Minister Rabin’s assassination, and then move on to discuss in some
more detail how the media should cover practices which stand in stark
contradiction to the basic values of democracy and which aim to
destroy the democratic foundations. The concern of this section lies
with abhorrent phenomena such as terrorism and racism. I argue that
ethical media reporting calls for normative, or what might be con-
ceived as subjective, treatment of such phenomena. When the media
report on terrorists or hate mongers, they do not have to view them-
selves as detached observers; they should not only transmit a truthful
account of ‘what’s out there’.14 When such matters are in the foci of
concern, the media need not stop short of making moral judgments.
These moral judgments should be expressed in the editorials and opin-
ion columns interpreting the events. I further claim that it is an objec-
tive matter – a matter of how things really are – that terrorism is
wrong.
Thus, the claims that this essay evinces are that objectivity in the
media does not necessarily mean stating every possible fact or examin-
ing every possible side of a question without taking sides, avoiding
moral praise or condemnation. The media have certain obligations to
fulfil.15 They should be fair and not exaggerate, view people as ends
rather than means to something, take into account the consequences
of reporting, reveal what is reported, and not refrain from making
proper distinctions. Some may feel that not all of these obligations fall
into line with objectivity. My assertion, then, is that in cases of conflict
these obligations should enjoy precedence over objectivity. To my
mind, this view is the essence of ethical and professional journalism.

Exaggeration, selection, and manipulation

Facts are of obvious importance in media coverage of events. Reporters

and editors should not magnify facts so as to put a story on the public
agenda when it does not deserve it. In any event, exaggeration
designed to promote stories, newsworthy or not, is an unethical proce-
dure. Some of the readers would think that this is a simple and obvious
assertion. Others, like David Heyd (in his comments on a draft of
this essay), think that it still needs to be made, and I concur. If, for
example, 200 000 people are present at a given demonstration, reporters
should not exaggerate its importance by saying that 400 000 are
 Objective Reporting in the Media 73

present. During the Lebanon War and after the massacre of hundreds
of Palestinians by Christian Phalangists in the Sabra and Shatilla
refugee camps in two harsh days (16–18 September 1982), a large
demonstration was held in Tel Aviv on 24 September. The shock and
horror of the tragic event led people to raise their voice in protest. The
following day the media reported that 400 000 people were present at
Kings of Israel Square. This became a magic figure, and the demonstra-
tion led the government to decide on the formation of an inquiry
commission (the Kahan Commission) to investigate the events in the
refugee camps and the extent of Israel’s involvement in the atrocious
massacre. This magic figure was later disputed, with the argument that
Kings of Israel Square is incapable of holding such a large number of
people. I do not argue that reporters were misled by officials about the
figure. If this was the case then the situation might be an interesting
study of the ‘politics of numbers’.16 Nor do I claim that the reporters
knew the figure was incorrect and told an outright lie. It seems that the
reporters were simply carried away in telling the story. They were so
impressed with the demonstration that an unsubstantiated exaggera-
tion made by some reporters turned out to be ‘a correct estimation’
with more emphasis on the term ‘estimation’ and less on the correct-
ness of the number.17 Accuracy and good faith on the part of the
reporter is desirable.18
In many instances journalists are not objective in their reporting
because they cannot avoid selecting and because they prefer to inter-
pret.19 In his comments on a draft of this paper, David Lepofsky argues
that in North American electronic media the line between reporting and
editorializing is rapidly collapsing. Television news reports on issues
often mix the two shamelessly without admitting it. Moreover, against
the general assumption I would like to suggest that objective reporting
in the sense of separating facts from values does not necessarily entail
ethical reporting. Another argument I wish to evince is that sometimes
journalists are not objective because there is a certain angle that they
want to highlight for various reasons, pertinent among them the
increase of ratings and sales. We can assume that each newspaper will try
to satisfy the taste and wants of its particular readership. Consideration
is given, inter alia, to major news items that cast a shadow over other
events; to preferences of politicians, celebrities, and others who influ-
ence agenda-setting; to cultural affinities of each paper’s readership,20 and
to the particular taste and preferences of the publisher or the editor who
is usually nominated by the publisher.21 John McManus22 analysed 34
case studies, each of a separate news account’s construction, at three
74 Media Ethics, Freedom and Responsibilities

television stations in the western United States. His findings show objec-
tivity violations in 20 case studies, all classified as serving the self-interest
of the news organization or its parent corporation. In almost all of these
cases (18), the structure of the news organization either encouraged dis-
tortion or failed to correct obvious omissions and errors.
On many occasions the media consciously prefer not to be objective
in the sense of either providing a balanced portrayal of a given issue or
striving for accuracy in their reporting because they want to draw
attention to a specific problem, person, political platform, ideology,
dilemma, human story, mischief, and so on.23 Moreover, sometimes
their reporting is unconsciously subjective. They are not aware of tak-
ing sides in a debate by using certain terminology or by refraining from
using other terms. I will illustrate this argument below when discussing
the issue of cultural norms that justify murder. The interesting thing is
that most media people believe that they are being objective.
A poll was conducted among 50 journalists and 50 academics who
teach journalism in the United States. Forty-one journalists thought
that a connection existed between media ethics and objective report-
ing. Only nine journalists objected to the assumption. Forty-seven
journalists believed that objective reporting was something one could
achieve. Compare these figures with the responses of the educators.
Among those who taught journalism, 27 objected to the objectivity-
as-ethics assumption and 23 supported it. Forty-two educators out of
50 rejected the possibility of objective reporting. The level of scepti-
cism among the educators is noticeable.24
The journalists who supported the assumption saw their role as
providers of precise and unbiased reporting of a given event. This essay
holds that ethics sometimes requires biased or normative reporting.
The press, in their editorials and opinion columns, and the broadcast-
ing media in their analyses, should condemn practices that undermine
the basic values of democracy (see the discussion on terrorism and
racism infra). I would also suggest that journalists should be aware of
the limitations of their knowledge, which make them unaware of
manipulations performed without their notice. Sometimes journalists
unknowingly serve the interests of others.
Consider the following hypothetical yet realistic example. A brother
kills his sister because she ‘misbehaved’. A rumour that spread in the
Bedouin village that the girl was ‘too permissive’ in her attitude to
one boy in the village constituted sufficient reason to kill her so as to
defend family honour. The trial attracts wide public attention and a
reporter is sent to interview a leading specialist on the subject. The
 Objective Reporting in the Media 75

specialist says that for reasons of sub judice and due process of law he
does not want to express an opinion with regard to this ‘cultural norm’
and the appropriate verdict for the killer. All he wants to do is to explain
the cultural grounds of such behaviour. He nevertheless speaks of ‘homi-
cide for family honour’. The journalist reports the interview in detail,
thinking that she has provided an objective account without noticing
that she has served the purposes of the specialist. We can assume that
those who condemn and criticise such conduct would speak of ‘murder’
rather than of ‘homicide’.25 Our journalist has provided a service to a
distinct approach without being aware of it. Similarly one should be
aware of the differences that exist between the terms ‘euthanasia’,
‘assisted suicide’, ‘mercy killing’, and ‘mercy murder’ in the field of med-
ical ethics.26 The very method of posing ethical questions, such as ‘Is
euthanasia wrong?’ assumes a certain moral assumption which – one is
right to presume – is totally different from the underlying reasoning of
someone whose question is, say, ‘Why should we legalise euthanasia?’.
A sports reporter who equates the football skills of an individual to
those of the legendary Brazilian player Pelé is making an evaluative
judgment by choosing to make this comparison with Pelé. In political
and social issues the very framing and phrasing of questions in them-
selves might involve moral claims that are evaluative and subjective.
Achievement of objective reporting free of biases is often rather
wishful thinking because journalists often cannot help being subjec-
tive. They have their own opinions, feelings, and attitudes with regard
to given subjects. They operate under compulsions, be it editorial pres-
sures, time constraints, priorities of the publisher, accessibility to lim-
ited channels of information, and the like. Journalists are sometimes
required by their editors to forego a story because it runs counter to the
interests of the publisher or of the editors. Journalists do not always
report misconduct of a politician they appreciate. They leave this to
their colleagues.27 Some journalists find it difficult to remain objective
when covering the deeds of a political group or of a sports team with
whom they identify. Others find it difficult to provide an objective
account, sometimes any account at all, of an ideological group which
they detest. They prefer not to provide it with any platform at all. One
such case reached the Israeli Supreme Court.

Kahane versus the Broadcasting Authority

In the 1984 elections Rabbi Meir Kahane – a quasi-fascist ideologist –

was elected to the Israeli parliament, The Knesset, for the first time.
76 Media Ethics, Freedom and Responsibilities

Immediately after the elections, the News Forum of the Broadcasting

Authority decided that in matters that concerned Kahane and his politi-
cal party ‘Kach’, only items of ‘clear newslike character’ were to be
broadcast. This was in order to ensure that the national media would
not serve as a platform for incitement against citizens and for statements
which contradicted the Declaration of Independence.28 In fact, that
decision meant that Kahane was not provided with any media platform.
The frustrated Kahane sought the assistance of the Supreme Court,
arguing that the decision to ban him infringed his fundamental demo-
cratic rights, and that it was an act of ‘private censorship’, contrary to
the principles of equal opportunity and fairness. The court, per Justice
Aharon Barak (Justices Gabriel Bach and Shoshana Netanyahu concur-
ring) accepted the appeal.
Justice Barak (who became President of the Supreme Court in 1995)
postulated that the right to disseminate views through the electronic
media was part and parcel of the principle of free speech. It was the
duty of a broadcasting authority in a democratic society to express the
views of different sections of the population. The Israel Broadcasting
Authority could decide its priorities regarding what should be broad-
cast, but it could not discriminate against specific views and pinions.29
In my opinion, the court reached the right decision. I can under-
stand the aversion felt by the Broadcasting Authority towards Kahane
and his movement. Hence, the Broadcasting Authority does not have
to be neutral in its attitude towards Kahane (I discuss the question of
neutrality later on). It can apply value judgments in its reporting and
emphasize the racist and discriminatory nature of the Kahanist ideol-
ogy. Nevertheless, the media should not act ultra vires in banning opin-
ions. The public has an interest in knowing and has the right to know
about Kahane’s deeds and agenda. Large segments of the Israeli public
were not aware of Kahane’s intent to transform Israel into a theocracy
because Kahane spoke of his intention only upon coming to speak
before religious audiences, and the media did not elaborate on
Kahane’s political platform. Furthermore, the media need to acknowl-
edge the right of speakers to communicate messages to the public. The
media are not obliged to report each and every communication but
media organizations should not be allowed to disregard certain politi-
cal agents on the mere ground that their opinions are not to their lik-
ing. In sum, the banning decision was unfair and too harsh: it denied
Kahane a public forum and at the same time denied the public its right
to know. The media were far from being objective in the sense of pro-
viding a fair and balanced account of the Kahanist phenomenon.
 Objective Reporting in the Media 77

‘Good journalism’ versus ‘good stories’

The effort to achieve objective reporting is often impeded by pressures

exerted on journalists by editors. They demand stories, and the sooner
the better. In their briefings, emphasis is put on deadlines, the need to
fill space, competition with other media organizations, scoops, and
increasing ratings. I am hesitant to think that ethical standards appear
as prominently as those considerations. In support I wish to refer to
David Boeyink’s findings. Boeyink30 wrote to 29 daily newspapers to
identify editors who would be willing to call when a case involving an
ethical issue arose. Four editors were willing to open their newsrooms
for on-site observations and interviews, of which three were visited.
One of Boeyink’s principal findings was that written ethical standards
were rarely invoked in the resolution of cases, even when the code was
relevant to the case. A managing editor of one of the newspapers
explicitly admitted that he ‘never liked the idea of a code of ethics
telling me what was right’.31
The pressure to report might influence journalists to twist the facts,
to glorify relatively simple events, to magnify data, to produce no mat-
ter what. These are very human inclinations. We all tend to tell per-
sonal stories in a way that will benefit us, serve our interests, make us
feel good, and at the same time make others look at us favourably.
Journalists are not immune to these human inclinations and in addi-
tion they are under pressure to tell their stories when they are still
‘hot’, when they can attract public attention, within the deadlines set
by editors. And if the story which at first seemed unique proves on
examination to be quite ordinary, then it can be ‘coloured’ a bit to jus-
tify its inclusion. One would be very uncomfortable approaching one’s
editor after spending considerable time investigating a purported story
just to say that there is no story.
Sometimes I come across journalistic investigations whose contents
do not match their headlines. The headline, written by an eager editor,
is spread across the page in bold letters, promising a tale of juicy cor-
ruption in a big organization. The content, by contrast, speaks of
minor things such as the distribution of football tickets to associates
and preferring the bid of a supposed acquaintance. Set in derogatory
language, such a piece of newspaper inquiry can hardly be said to be
fair. Accurate reporting is a basic requirement of journalistic ethics and
professionalism.
A recent Israeli district court case is pertinent to the discussion.32 It
concerns several reports broadcast on Israel television at prime time
78 Media Ethics, Freedom and Responsibilities

about one of the biggest commercial corporations in Israel, ‘CLAL’.

Allegations were made that senior managers of the concern were
involved in a cover up of major transgressions that had lasted for nine
years. Judge Ben-Zimra claimed that the report was one-sided and ten-
dentious, aiming to besmear ‘CLAL’ and its workers. Ben-Zimra main-
tained that the defendants were seeking ‘sensational revelation’. Thus
they did not give the senior managers of ‘CLAL’ sufficient time to
respond to the allegations and as a result the broadcasts were unfair
and inaccurate.
The urge for sensationalism is the prime obstacle to maintaining
some standard of ethics in the media. Under pressure to sensationalize,
journalists might even invent events. There are dozens of examples but
here I mention the staging of events during the Intifada. The following
analysis highlights the dimension of truthfulness in media coverage of
events.
During the days of the Palestinian Intifada (1987–93) there were
times when media people asked young Palestinians to fake events.
I should clarify that I am not referring to cases where the presence of
the camera sparked an event and made it happen.33 That happened
many times. I am referring to incidents in which media crews urged
Palestinians ‘to do something’ that they could report back home:
throw stones and Molotov cocktails, burn tyres, provoke soldiers, and
so on.34
Objectivity in the sense of covering all aspects of a given story in a
fair, true, and decent way might become a relatively minor thing to
forego when there is urgency to produce. The two ‘goods’ – ‘good jour-
nalism’ and ‘good stories’ – are not necessarily commensurate. Often
one ‘good’ might come at the expense of the other, and when this hap-
pens the need to produce a ‘good story’ often prevails. ‘Good journal-
ism’, which involves the requirement of objective reporting, might
become no more than a token, something to which journalists pay lip
service. After all, good stories (which are often concerned with bad and
negative phenomena: terror; war; drug addicts; rape; accidents; vio-
lence; racism and so on) are more likely to sell newspapers and increase
ratings. I should emphasize that good stories and good journalism
do not necessarily conflict but in many cases of such conflict ample
justification might be produced to offset considerations that impede
publication.
In this context Mills’s findings are of relevance. Mills provides data of
a poll conducted among media people who were asked the following:
when there is a conflict between the pursuit of news and consideration
 Objective Reporting in the Media 79

for the feelings of sources or subjects, which should the journalist

choose?. Most of the respondents listing that conflict among their eth-
ical decisions gave no clear-cut answer. Those few who did came down
in favour of the news, often with the argument that they would pub-
lish the story in the name of the reader’s right to know.35 This abstract
right of the abstract reader is conceived to be more important than the
privacy and dignity of a specific individual. A sizeable minority of
respondents exhibited concern that aggressive pursuit of ‘objective’
news might exploit individuals. But in all cases where the respondent
suggested which choice should be made, protection of the individual
or publication of an important story, the choice was for the story. The
liberal values that underlie any democratic society, those of not harm-
ing others and respecting others, are kept outside the realm of journal-
ism. As long as this is the case, the term ‘media ethics’ will remain a
cynical combination.
My critique of the media does not suggest that journalists should
refrain from critical reporting. Surely on some matters, such as corrup-
tion in political institutions, the media have every right to reveal infor-
mation to the public at the expense of some corrupted individuals.
Those individuals do not deserve respect and should be denied oppor-
tunity to carry on their mischief. My concern is with occasions where
the search for ‘juicy stuff’ leads the media to disregard what Ronald
Dworkin terms ‘fundamental background rights’, that is, basic rights to
human dignity and to equality of concern and respect that underlie a
free democratic society.36
The values of not harming others and respecting others need to
occupy a prominent place in the considerations of journalists. These
are basic ethical standards that sometimes require a normative attitude
on the part of the media. Here I come to deal with moral neutrality,
which is a further dimension usually associated with objectivity. I con-
test William Marimow’s assertion that moral values are not problem-
atic for the investigative reporting and that ‘right and wrong may be a
threshold question but not a fundamental question.’37 Morality, I sub-
mit, should be a factor in deciding whether to cover an event or not,
and if it is decided to cover the event, how it should be covered. When
clearly immoral practices, such as terrorism and racism, are at issue,
morality is a pertinent and significant factor that prescribes partiality
rather than neutrality. Media organizations do not necessarily have to
give a platform to both sides of a given conflict. They do not need to
play the role of a neutral observer when one side in a given dispute or
conflict is clearly immoral.
80 Media Ethics, Freedom and Responsibilities

That is to say that the media may have an opinion, even a strong
opinion, regarding a certain issue. For instance, when doing a follow-
up to a rape story where clear evidence was produced during the trial
to prove the man’s guilt, the media do not and should not give equal
footing to the girl who was raped and to the convicted rapist. They
should not be impartial between the criminal and the victim. It is the
duty of the media to be partial, to condemn the rape, and to say
that the deed was repugnant. This is the only correct way of presenting
the moral case in hand. Likewise, it would be unthinkable to provide
an equal platform to Yigal Amir, the assassin of Prime Minister Yitzhak
Rabin, and to Leah Rabin, the Prime Minister’s widow. These two
examples are so repugnant that I hope they do not evoke any moral
dilemma. But when a moral dilemma arises, impartiality is required.
For instance, when reflecting on debatable moral questions such as the
abortion debate, the media see themselves committed to furnishing an
equal platform to both prolife and prochoice activists, and rightly so.
In arguing against moral neutrality when covering explicit immoral
conduct I advance several arguments. The first argument is one of
democracy. It holds that journalists are also citizens. They live within
the democratic realm and owe democracy their allegiance. Free speech
and free journalism exist because democracy makes them possible.
They flourish in a liberal environment and they would become extinct
in a coerced, anti-democratic society. Hence journalists are obliged to
sustain the environment that enables their liberties. They should
uphold and promote the basic values of democracy: not to harm
others, and to respect others.
The second argument is one of paternalism. It is wrong to assume
that all readers and spectators are able to differentiate between good
and evil, and that all beings are rational. The media need to be respon-
sible to those who are not fully rational, who are not able to discern
between values and mischiefs. Here I refer first and foremost to chil-
dren and youth. Violence and black-and-white slogans work better on
the youth than on mature people. The media should not simply
transmit attractions without a warning. They need to be aware of
the range of people who receive their communications. The rejection
of evil does not necessarily have to be made by the media per-
sonnel. The media could offer a platform for decisionmakers and
influential personalities to condemn detestable phenomena such as
racism. But where criminal murderers, terrorists, and hate mongers are
concerned the media are not obliged, in the name of objective
reporting, to provide quotations from both sides of a case to the
 Objective Reporting in the Media 81

audience. We are not talking of equal sides who should enjoy equal
access to the media.
The third argument is one of social responsibility.38 It is, of course,
connected to the previous two arguments but it has to do more with
the shape and character of society that we wish to have. Jonathan
Kaufman and his colleagues at the Boston Globe prepared a series
attacking racial discrimination not merely because it was illegal but
because they had decided that discrimination made a bad city and they
wanted Boston to be ‘the best city it could be’.39
In a similar vein, the BBC regards impartiality as involving not
absolute neutrality or detachment from those basic moral or constitu-
tional beliefs upon which the nation’s life rests. For instance, ‘the BBC
does not feel obliged to be neutral as between truth and untruth, jus-
tice and injustice, freedom and slavery, compassion and cruelty, toler-
ance and intolerance.’40 Being a constitutional creation of Parliament,
the BBC could not be impartial towards the maintenance or dissolu-
tion of the nation or towards illegal behaviour.
John Merrill is among those who equate objective reporting with
ethical reporting.41 He thinks that reporters who make no judgments
are more ethical than those who do. Merrill asks rhetorically: ‘Why not
just report and let the chips fall where they may?’42 My conclusive
answer is: Because not worrying about the consequences of the report
is grossly unethical. Journalists should not merely seek stories, facts,
truth. Journalists as human beings, as citizens in a democracy, as peo-
ple who wish to ensure a good future for their children, have a respon-
sibility to bear. ‘Let the chips fall where they may’ reminds me of
the Leninist view (Lenin said: ‘When trees are felled, the chips will
fly’, thereby legitimising all acts of terror and violence against the
Tsar),43 stripped of responsibility, stripped of all ethical values and
commitments.44
Following the same logic, and in contrast to the demand for objec-
tivity on the part of the media that is often echoed, the media do not
have to be objective towards phenomena which contradict their basic
values. They do not have to be objective towards violence, terrorism,
racism, chauvinism, fascism, sexism, genocide and slavery.
The fourth and last argument is one of jurisprudence and law. In the
Canadian Keegstra case, Judge Quigley of the Alberta Court of Appeal
noted that persons maligned by hate propaganda might be stripped of
their sense of personal dignity and self-worth, while those whom the
hate monger seeks to influence are harmed because ‘it is beyond doubt
that breeding hate is detrimental to society for psychological and social
82 Media Ethics, Freedom and Responsibilities

reasons and that it can easily create hostility and aggression which
leads to violence’.45 Later on, Keegstra appealed to the Canadian
Supreme Court without success. Chief Justice Dickson, who delivered
the opinion of the court, said that hate propaganda seriously threat-
ened both the enthusiasm with which the value of equality is accepted
and acted upon by society and the connection of target group mem-
bers to their community. The court depicted Keegstra as inflicting
injury on his target group, the Jews, and as striving to undermine wor-
thy communal aspirations. The language used by the court to describe
Keegstra was far from neutral or objective. On the contrary, it was
strong, negative, and extreme. Chief Justice Dickson explicitly stated
that there could be no real disagreement about the subject matter
of the messages and teachings communicated by the respondent,
Mr Keegstra: it was deeply offensive, hurtful, and damaging to target
group members, misleading to his listeners, and antithetical to the fur-
therance of tolerance and understanding in society. Those who pro-
moted hate speech were described as ‘hate mongers’ who advocated
their views with ‘inordinate vitriol’. Their aim was to ‘subvert’ and
‘repudiate’ and ‘undermine’ democracy, which they did with ‘unparal-
leled vigour’. Since their ideas were ‘anathemic’ and ‘inimical’ to
democracy, the court viewed them with ‘severe reprobation’. Chief
Justice Dickson asserted that expressions can work to undermine
Canadians’ commitment to democracy where employed to propagate
ideas anathemic to democratic values. Hate propaganda worked in just
such a way, arguing as it did for a society in which the democratic
process was subverted and individuals were denied respect and dignity
simply because of racial or religious characteristics. This brand of
expressive activity was thus wholly inimical to the democratic aspira-
tions of the free expression guarantee. In this manner, the court char-
acterized Keegstra as the enemy of democracy who did not deserve the
right to free speech to undermine the fundamental rights of others.46
The media should treat racists in a similar fashion.
I would also refer media professionals to two international covenants.
Article 20 (2) of the International Covenant on Civil and Political Rights
states the following: ‘Any advocacy of national, racial or religious hatred
that constitutes incitement to discrimination, hostility or violence shall
be prohibited by law.’47 In turn, Article 4 of the International Convention
on the Elimination of All Forms of Racial Discrimination holds that

States Parties condemn all propaganda and all organisations which

are based on ideas or theories of superiority of one race or group of
 Objective Reporting in the Media 83

persons of one colour or ethnic origin, or which attempt to justify

or promote racial hatred and discrimination in any form, and
undertake to adopt immediate and positive measures designed to
eradicate all incitement to, or acts of, such discrimination … 48

The rationale of these conventions should be observed by the media.

Let me now elaborate on the connection between ethical reporting
and moral neutrality by first discussing the issue of terrorism.

Ethical reporting versus moral neutrality

One of the issues on which the media should take a moral stand and
abandon objectivity in the sense of adherence to moral neutrality is
terrorism. Terrorism is defined here as the threat or employment of
indiscriminate violence for political, religious, or ideological purposes
by individuals or groups who are willing to justify all means to achieve
their goals. In the past, however, there have been incidents where ter-
rorists and heads of states were treated as equals. In 1985, during the
kidnapping of the TWA aeroplane to Lebanon, David Hartman of ABC
asked Nabih Berri, the leader of the Amal militia that was responsible
for the kidnapping, whether he had anything to say to President
Reagan. It was as if we were talking of two people negotiating, each
having his own interests that are prima facie legitimate. Nothing was
said about the murderous deeds of Amal or about Berri’s responsibility
for them. Hartman failed to realize that his direct approach had done a
service to terrorism, that he was helping the terrorist convey his mes-
sage to the public and spread fear, and that in the final analysis this
kind of approach was not conducive to resolving such crises.49 This
violent and brutal spectacle ended with the terrorists having the upper
hand partly because of the negative involvement of the media. The
media are not outside the democratic realm. They are a necessary part
of it. Media organizations have to realize that democracy and terrorism
are mutually exclusive. A zero-sum game exists between democracy
and terror. The victory of one comes at the expense of the other.
Therefore, if the spirit and ideas of democracy are dear to media editors
and commentators and if they want democracy to prevail, they cannot
be objective or neutral vis-à-vis the terrorist phenomenon. Media per-
sonnel should take sides, distinguishing good from evil.
Moreover, yet again I emphasize that journalists should be conscious
of the terminology they employ in their reports. An ephemeral terrorist
organization is not ‘an army’. People who kidnap and murder randomly
84 Media Ethics, Freedom and Responsibilities

whomever happens to be on the stage of the theatre of terror, be it an

old person, a child, a woman or a man, are not ‘students’ or ‘saints’ or
‘freedom fighters’. The killing of innocent civilians travelling on a bus
or a train should not to be described in terms of a ‘military operation’.
Media organizations must condemn terrorism in explicit language and
suffocate it by denying terrorists the airwaves. A difference exists
between covering news and providing terrorists an equal platform on
which to declare their agenda. Terrorism is inhuman, insensitive to
human life, cruel, and arbitrary. To remain objective in the sense of
moral neutrality with regard to terrorism is to betray ethics and moral-
ity. Terrorists deserve no prize for their brutality. The media should treat
them in the same way as common criminals are treated.50
However, some reporters believe that all they need to do is to report
the story, and let the public, who are able to differentiate between right
and wrong, use their judgment. What is required from them is to
report the facts in a so-called objective manner. Let me say something
about this belief. I think all humane people conceive bombing civilian
targets – be they buses, trains, aeroplanes, shopping malls, buildings –
as immoral, wrong, wicked, and odious. We also think that these views
are true, that is, in this case we might be sufficiently confident to say
that we know they are true, and that people who disagree are making a
bad mistake. We think, moreover, that our opinions are not just subjec-
tive reactions to the idea of indiscriminate massacre of innocent lives,
but opinions about its actual moral character. We think that it is an
objective matter – a matter of how things really are – that terrorism is
wrong and wicked. This claim that I am advancing now – that terror-
ism is objectively wrong – is equivalent to the claim that terrorism
would still be wrong even if no one thought it was. That is another
way of emphasizing that terrorism is plainly wicked, not wicked only
because people think it is.51
Another crucial aspect in regard to the coverage of such a wicked
phenomenon has to do with the notion of responsibility. It is the duty
of media reporters to think about the consequences of their decisions.
Viewing democratic government, on the one hand, and terrorists, on
the other, as morally equal, and the tendency of some journalists to
glorify terrorist events, hinder the forces of democracy, and serve the
forces of destruction. Responsible journalists understand that terrorism
without media attention would have a very limited effect and would
cease to appeal to others who might contemplate imitating it. To avoid
misinterpretation I am not suggesting that the media refrain from pub-
lishing but that they advocate proportionality, as well as co-operation
 Objective Reporting in the Media 85

and consultation, with government officials and experts on terrorism. I

also press for not remaining morally neutral in editorials and analyses
with regard to such an abhorrent phenomenon. Explicit condemnation
is not to be avoided.52
In a similar vein, when the media cover a confrontation between
ACLU activists and KKK men, they are not obliged to broadcast dia-
tribes of Klanners explaining why the white race is superior to other
races. Yet again, I am not suggesting a ban on all reports of KKK actions
in the sweeping way that the Israel Broadcasting Authority treated Meir
Kahane. The public has the right to know about the place of racism in
society and should be informed of the whereabouts, movements, pro-
nunciations, and deeds of hate mongers. Racism and hate groups con-
stitute an increasing problem for democracies and we should be aware
of their power in society, and strive to limit the effectiveness of their
voice and sources of attraction. But views about racial superiority are
not just views, and they should not be reported in the same way as
views about equality and social justice. Agents of democracy, the media
among them, should observe and promote fundamental human rights,
first and foremost the right to equal respect and dignity which lies at
the heart of liberal democracy. It should not be neutral towards such
detesting phenomena.53 Media organizations should see themselves
committed to the values of liberal democracy, of respecting others, and
of not harming others, values that allow free expression and free jour-
nalism. They are under no obligation to air racist condemnations and
discriminatory speeches.54 And if the media decide to air racist dia-
tribes because the public needs to know and be aware of the dangers of
racism, they should also raise a voice of disgust and shame in their edi-
torials and analyses with regard to anti-democratic and illiberal move-
ments and trends.55 Objective coverage of hate speech is a bad idea. It
is a false and wrong conception.56
Media organizations can use their news stories to promote a particu-
lar agenda and to advance moral viewpoints. This call for advocacy
journalism and normative reporting has some implications for news
coverage. In particular, it calls also for more in-depth reporting to deal
with major issues in communities. Dave Boeyink argues that by most
accounts this kind of investigative reporting is on the decline in news-
papers, partly over the issue of cost, partly for fear of lawsuits. This call
would also mean more analysis and more interpretative journalism –
putting issues in context, making the value dimensions of issues
explicit.57 With Boeyink, I think that the public, and journalism, would
be better off by espousing this moral outlook.
86 Media Ethics, Freedom and Responsibilities

Conclusion

This chapter has discussed the main dimensions often associated with
the concept of objectivity: accuracy, balance and fairness, truthfulness,
and moral neutrality. I have accepted and encouraged accuracy, fair-
ness, and truthfulness in reporting but at the same time warned against
common tendencies that involve partisan inclinations in media cover-
age, generating biases and imbalance.58 A distinction was made
between cases where journalists are not objective in their reporting
because they consciously prefer to be subjective and cases where jour-
nalists play into the hands of others and are manipulated by their
sources. It was further argued that in cases of conflict between ‘good
journalism’ and the effort of getting ‘good stories’ (which are often bad
stories), regrettably the latter will often enjoy precedence. I closed by
urging media professionals to adhere to the values of not harming
others and of respecting others.
These are basic ethical standards that sometimes require normative
and biased reporting. Furthermore, and for similar reasons, reporters
and editors are urged not to turn a deaf ear to moral considerations. It
is plausible to think that one can sell newspapers while maintaining
some moral standards. Morality is part and parcel of liberal society. It is
significant for the shaping of democracy. It is important for safeguard-
ing journalism. Moral journalism will necessitate acknowledgement
that objectivity is not an end in itself, that on certain matters objectiv-
ity in the sense of prescribing moral neutrality is a false idea. The
media should not observe moral neutrality in the face of wrong con-
ceptions and deeds, those that aim to harm others and that discrimi-
nate against certain segments of democracy. It is required that
journalists be accountable for what they report as well as for how they
report. Media organizations have to play the role of an umpire both in
the sense of applying just considerations when reviewing different con-
ceptions and also in trying to reconcile conflicting interests, claims,
and demands. This is a delicate task, one that demands integrity: bear-
ing in mind when making decisions the relevant considerations and
demands that concern society as a whole.
5
Ethical Boundaries of
Media Coverage1

Were it left to me to decide whether we should have a govern-

ment without newspapers, or newspapers without a govern-
ment, I should not hesitate a moment to prefer the latter.
Thomas Jefferson (to Edward Carring in 1787)

Nothing can now be believed which is seen in a newspaper.

Truth itself becomes suspicious by being put into that polluted
vehicle.
Thomas Jefferson (to John Nowell in 1807)

Introduction

Some think that democracy should tolerate all forms and types of
speech, for liberals must not play the anti-liberal game. Those who
make this sweeping claim argue that liberal democracies are different
from other forms of government precisely because they do not use
non-liberal tools.2 I find this claim naive and dangerous. Democracy
should set rules for speech as well as for action. Those who choose to
break and to undermine the basic democratic rules should not be sur-
prised if, in the name of democratic self-defence, the legislature might
decide to disqualify them from participation in the democratic process.
I reiterate the importance of acknowledging the democratic ‘catch’ and
the need for setting limits to the democratic principles.
The two main ground rules of liberal democracy are to avoid harming
others and respect others as human beings; treating fellow citizens as
an end rather than a means to another end.3 The emphasis is on the
notion of basic equality, that all citizens are entitled to enjoy the same
civil and political rights. Every person should be able to pursue his/her

87
88 Media Ethics, Freedom and Responsibilities

conception of the good as long as he/she does not harm others.4

Hence, anyone who chooses violence, terror, and/or racism as his/her
conception of the good should be condemned by the democratic insti-
tutions.5 There can be no compromises with regard to the application
and employment of violence and terror in society, while the racist phe-
nomenon should be closely monitored and supervised.
The argument advanced here is that thoughtful democracy will want
to place careful limitations upon freedom of action and freedom of
speech. Freedom of speech is a guiding rule, one of the foundations of
democracy, but at the same time, freedom does not imply anarchy, and
the right to exercise free expression does not include the right to do
unjustified harm to others. We need to distinguish between freedom of
information, of speech, and of the press, and excessive behaviour that
infringes on people’s privacy and undermines journalism. This chapter
deals with excessive forms of media coverage and offers ethical bound-
aries to reporting. While having due appreciation for the liberal incli-
nation to provide wide latitude to freedom of expression, we need to
acknowledge the need for making careful and well-defined exceptions.
We should also recognize that democracy is the best arena for those
who wish to reach their ends by violent means. Violent movements and
individuals exploit the hesitations of democratic agencies (the legislature,
the courts, and the police) to find ‘golden paths’ (from their point of
view) to further their ends without holding themselves to the rules of
law and order. Those movements and individuals would be crushed with-
out remorse were they to employ similar tactics in autocratic systems.
The discussion should be put in a historical context. Modern repre-
sentative democracy as we know it today (in its ‘inclusive’ form) was
formed after World War I. Lord Bryce wrote that in the 1850s the rising
power of the masses was seen by European intellects as a threat to
order and progress, and the term ‘democracy’ aroused disgust and fear,
but in the 1920s it was praised.6
Because of its youth, democracy suffers from ‘childhood diseases’
which, quite naturally, trouble us. We are still (some would say that we
will always be) at the stage of learning, and we tend to be fearful of tak-
ing hazardous steps which might later prove to be unwise. Toddlers
learn to walk carefully. Democracy must find its way carefully, too.
Having learned the dangers of violence, terror, and racist hatred; hav-
ing paid our ‘dues’, we now know that there are things that must be
prohibited. Imposing these limitations need not harm democracy; on
the contrary, these careful restrictions are required to preserve the very
spirit of democracy.
 Ethical Boundaries of Media Coverage 89

In the discussion that follows, emphasis is placed on the triangle

constituted by the media, freedom of speech, and democracy. The fol-
lowing discussion consists of five parts. The first section focuses on
ethics in the media and then the responsibility of journalists to their
audience and profession is discussed. Next consideration is given to
categorizing events, outlining the boundaries of media coverage. I close
with suggestions for media self-regulatory mechanisms and controls
that could improve its working. It is preferable that the media control
themselves.
I do not wish to enter into a debate about whether media studies, or
journalism, is a ‘profession’ or merely a ‘craft’ or a ‘trade’. For all practi-
cal matters, the distinction does not make much of a difference. Too
much time and trouble were invested in the past to upholding one con-
cept, and dismissing the other, and vice versa; this came at the expense
of addressing substantive issues relating to journalistic accountability
first and foremost to the public.7 Journalists, whether they are called
professionals or merely craftworkers, should be held accountable for
their conduct. To take an example from a different realm, when we are
about to cross a bridge we assume that the professional engineer who
designed the bridge, and the people who actually built it, have done a
competent, reliable job. Every job that deals with human life should
be performed with a sense of responsibility. In addition, we should
acknowledge the pertinent cultural and traditional aspects involved in
the characterization of journalism as a profession or a hack. In Britain,
journalism is not perceived as a profession in the same way it is in Italy
or France. In Italy, Mussolini made journalism a profession by law and
those laws are still in force. In France, there is an extensive set of rules
that protects people’s privacy, and journalism enjoys some sort of pro-
fessional status.
Throughout the discussion references will be made to the last part of
this chapter, which consists of suggestions to improve the working of
the media. Some of these suggestions are concerned with the content
of media coverage, and to them I will refer. The other suggestions gath-
ered at the end of this piece are concerned with the general framework
within which the media should operate.

Ethics in the media

Discussions of the normative roles of the media must be held within the
context of the social system in which we live. Against the assumptions
that all societies share the same universal values and that it is possible
90 Media Ethics, Freedom and Responsibilities

to create a unified explanation for moral attitudes and behaviour across

cultures,8 it is argued that different sets of values are upheld in different
systems of ruling; consequently, as argued in the Introduction, media
in a democracy differ greatly from media in an autocracy or in any other
authoritarian system. The expectations are different, the abilities cannot
be similar because the government largely dictates the lexicon that the
media use in authoritarian systems. Terms like ‘positive’, ‘negative’, ‘jus-
tice’, ‘truth’, ‘ethics’, and ‘morality’ assume different meanings against
the backdrop of the society in which they are expressed. The values in
Iraq are different from those in the United States, the values in Russia are
dissimilar from those in both Iraq and the United States, and the values
in Iran are significantly different from those of the other three societies.
Moreover, discussions on the normative boundaries of media coverage
within democracies should take into account the particular social context
of each society that might influence our views on some of the narratives
and ways of reporting. It would be unwise to assume that the First
Amendment tradition prevalent in the United States could be suitable,
without qualification, for Canada, the United Kingdom, or Israel. The
cultures are different, the raison d’être of the four states is different, the
history and respective experiences are different. General principles could
serve as a starting point for discussion and analysis, but only as a starting
point. Careful analysis must take the significant historical, cultural, and
normative differences that exist between societies into account.
The freedom granted to the media is meant to allow the expression of
society’s various subcultures and classes, to voice public opinion, and to
serve as a means of transmitting messages between the public and their
elected representatives. The media seem to serve the public by enabling
its members to vent their frustration, by bringing their requests to the
attention of the government, by informing them of the various devel-
opments concerning their future, by entertaining, by criticizing the
actions of the government, and by exposing corruption or irresponsible
acts of public delegates. These are the media’s most important roles,
which can be carried out to their fullest extent in democracies alone.
Democracy and free media live, breathe, and act under certain basic
tenets of liberty and tolerance, from which they draw their strength and
vitality, and by which they preserve their independence. The media are
not under an obligation to remain impartial with regard to all concepts:
some concepts may coexist with the principles of democracy while oth-
ers contradict them completely. It is for the media to take a firm stand to
defend democracy whenever it is threatened.9 It is reiterated that ethics
in the media require the preservation of the very norms that enable
 Ethical Boundaries of Media Coverage 91

democracy to function. On this issue my view differs significantly from

the view of some commentators and from media codes of conduct.10
Sometimes ethics might call for self-restraint and self-control by the
media. An example for this claim is the treatment of the Holocaust and
Nazism in Israeli society. In October 1995 a large demonstration was
held in Zion Square in Jerusalem to express opposition to the Oslo
Accord and the Rabin government. Some demonstrators carried posters
in which Prime Minister Yitzhak Rabin appeared wearing the infamous
uniform of the Nazi leader Heinrich Himmler. Mr Moshe Vardi, the edi-
tor of the popular daily newspaper, Yedioth Ahronoth, decided to report
the fact that such photomontages were brandished during the demon-
stration, but not to print them in his newspaper. The rationale for
employing self-restraint was that such pictures were too objectionable
and did not deserve publication. Printing them would only serve the
purposes of those who portrayed Mr Rabin as a Nazi. On the other
hand, the daily Ma’ariv newspaper chose to print the photomontages.
To my mind, the approach exhibited by Yedioth Ahronoth is the right
and ethical approach. The newspaper did not fail to report the issue
and at the same time did not serve as a promoter of hatred and incite-
ment. In the Israeli culture, portraying a political figure as a Nazi
amounts to calling for his or her death. The media should not play
into the hands of instigators who wish to undermine democracy.11
Some might argue that the printing of such depictions makes a differ-
ence, increasing public awareness regarding the phenomenon of hatred,
and arguably creating a much more intense public reaction to the level
of hatred against a designated individual or government. I agree: it is
one thing to report such images and quite another to actually show
them. The effect is much stronger when they are printed or broadcast.
However, this rationale fails to adequately take into account the social
context in which these photomontages were presented and the likeli-
hood that printing them might mobilize hatred and increase the intense
feelings of resentment and alienation among those opposed to the
peace process and the Rabin government. Printing such a photomon-
tage fuels an atmosphere of incitement against the designated target.
This atmosphere was conducive to the event that took place on
4 November 1995: Prime Minister Rabin’s assassination.

Media responsibility

A discussion of journalism must take into account the political and

economic establishments, the morals of the nation and the state, the
92 Media Ethics, Freedom and Responsibilities

citizens’ basic rights, and the conceptions of good that guide society.
The media pass on information to the people, some of this information
is vital for the people to fulfil their obligations as citizens.12 The dissem-
ination of information should take place only after some thought has
been invested in trying to evaluate its possible results.13 This is both a
consequentialist and moral claim. The Israeli media, for instance, often
make such an evaluation regarding security issues but they are far more
careless when the privacy of individuals is concerned. The media are
expected to act with responsibility and accountability with regard to all
pieces of information. Journalists who are not troubled with the likely
harmful consequences of their reports are amoral individuals.
Journalists who live in a democracy are not abstract humans living in
some sort of natural state. They are citizens who are expected to support
the democratic process by which they operate, and to exhibit responsibil-
ity in their reporting. Entry into the world of journalism does not
exempt citizens from this basic responsibility. On the contrary, because of
the extra burden of affecting the lives of others, journalists are expected
to show sensitivity and to adhere to what Ronald Dworkin terms ‘liberal
background rights’, first and foremost respect for others and not harming
others.14 Here it is relevant to mention that Section Five, ‘Fair Play’ of the
Sigma Delta Chi (the Society of Professional Journalists) Code says:
‘Journalists at all times will show respect for the dignity, privacy, rights
and well-being of people encountered in the course of gathering and
presenting the news’15 (see Summary, Suggestion A below).
Obviously the background rights mentioned above, respect for others
and not harming others, should not be held secondary to considerations
of profit and personal prestige. Journalism does not mean only increasing
the sales of a newspaper or promoting the ratings of certain broadcasts.16
Journalism also means seeing people as ends and not as means – a
Kantian deontological approach.17 It implies that the ability to control
the power lying in the hands of journalists when they are reporting in
the name of the people’s right to know might cause unjustified harm
to others (see Summary, Suggestion I below). I now need to clarify the
meaning of ‘justified’ and ‘unjustified’ harm.
When a person acts corruptly, and there is evidence to prove it, the
media are allowed, and even obliged, to look into the issue and bring it
to public scrutiny. This is what is meant when people refer to the media
as having a watchdog role in democracy.18 To fulfil this role, the media
are sometimes justified in using means of deception that constitute a seri-
ous invasion of privacy. They are justified, provided that they have care-
fully deliberated the reasons for and against deception, the short- and
 Ethical Boundaries of Media Coverage 93

long-term implications for their work and for society at large. The story
needs to be socially significant, with its exposure resulting in reducing
evil and promoting public good; it has to be clear that the benefits
resulting from the unveiling of the story outweigh the harm involved in
resorting to deception (for instance, when the story involves a crime or
administrative corruption); other alternatives to telling the story have
been exhausted and have proved insufficient, making deception a nec-
essary means for exposing the crime, and the reporters inform the pub-
lic about the reasons that prompted their resort to deception.
Accordingly, resorting to deception is justified only in exceptional cir-
cumstances. In recent years, however, we have witnessed an increase in
the use of hidden cameras in investigative reporting to reveal corrup-
tion and misconduct. One of the most illustrative stories is ABC
PrimeTime’s report on the Food Lion supermarket chain. Small cameras
that were carefully camouflaged showed vivid pictures of unsanitary
practices such as repackaging out-of-date food to be sold as fresh. After
investigating the story from various sources, ABC went behind the
scenes with hidden cameras to support and document their findings.
Upon first viewing the ABC programme I thought that this was a sound
investigation of utmost importance, of vital public interest (securing
customers’ health), designed to prevent harm to individuals and, there-
fore, justified.19 Undoubtedly this was the best way to tell the gruesome
story. Oral evidence cannot enjoy the same credibility and cannot con-
vince as pictures can. After careful reflection I think that the story could
have been told without using deception. It could be argued that Section b
of the 1992 guidelines of the Society of Professional Journalism and the
Poynter Institute for media studies, namely exhausting all other alter-
natives for obtaining the same information, was not satisfied.20 The
food could have been sent to labs to examine whether it was edible and
workers could have been interviewed in detail and their lengthy reports
submitted. The footage would have been less vivid and powerful but it
would nevertheless have told the story.

Categorizing events

The next task is to determine what can be included within the bound-
aries of ethical and responsible media coverage. In this context we may
differentiate several types of events:

1. Events that have social-public meaning. For example: an assassina-

tion of a prime minister; the tragic death of Diana, Princess of
94 Media Ethics, Freedom and Responsibilities

Wales; earthquakes; a train overturning; missile attacks on the Galilee;

bombs in the London underground; a scientific discovery; a techno-
logical breakthrough; the opening of a newspaper; parliamentary
elections; corruption in a local city council; a massacre on a bus; the
death of famous movie stars or public figures (celebrities).
2. Gossip – events that are of little social value but are of interest to the
public. Frequently reporting such events might intrude on
people’s privacy. Let me elaborate.
Reporting of these events feeds the voyeuristic needs of many of
us, to various extents. Many of us enjoy learning the details of what
is thought to be unattainable by the common people. If I cannot be
like the ‘significant others’, at least I would like to know about their
lifestyle: what living in a castle with servants is like; the pros and
cons of living with three wives; what it is like to be an idolized rock
star; what a famous basketball player eats for breakfast; why a politi-
cian chose to divorce her husband. Many of these gossip events can
be quite banal. For instance, millions of women are pregnant
around the globe at any given time. The media usually do not
regard this as newsworthy. But it might attract public interest if the
woman concerned is a soap opera star or a leading actress in one of
the commercial television series. Many viewers of ‘Melrose Place’
would be very interested in knowing that the actress playing their
favourite character is pregnant. They would begin to ponder and
speculate: will her character become pregnant as well? Will the pro-
ducers of the series try to conceal her pregnancy? Will the star
finally get married? Will a replacement be found in case the preg-
nancy does not fit the producers’ plans? Will they decide, God for-
bid, to terminate the filming of the series during the advanced
months of pregnancy? These are top priority questions for the cap-
tive followers of the series.
People often suffer from various ailments, minor and severe, and
in most cases these ailments are not reported to the public. On the
other hand, mere laryngitis could become of public interest if it is
the throat of Luciano Pavarotti. This bad news might have dire con-
sequences, which could affect the tenor’s career in the long run, or
the viewer’s plans to attend his next week’s performance.
The prime minister’s partner falls in the tub (or tube) and twists
an ankle. Some may find this interesting. However, the public’s
interest in such an incident is enhanced if we are speaking of the
president of the United States. The story would show that even the
unchallenged ruler of our times is human: he or she, too, is subject
 Ethical Boundaries of Media Coverage 95

to such misfortunes, and the fact that many bodyguards surround

him/her cannot protect him/her from everyday nuisances.
In this context we should make two relevant distinctions. The first
is between people who have chosen a life of self-publicity, like politi-
cians, diplomats, and people in showbusiness, and people who choose
a life that will predictably attract media attention, like artists or foot-
ballers. The media usually are not interested in this distinction and
will cover their personal stories if they think this might increase sales
and ratings. People who choose professions that attract public atten-
tion should realize that media intrusion is an inevitable side effect.
People who wish to reduce this side effect should not co-operate with
the media on all matters, positive and negative.
The second distinction is much more important, morally speak-
ing. It differentiates between celebrities and public figures who
choose their position, and ordinary people. For some people, hon-
our is the primary asset they have. A careless report might destroy
their lives irreversibly. Ordinary people do not usually enjoy access
to the media and could not adequately respond to media allega-
tions. Public figures, on the other hand, have the assets and the abil-
ity to respond. People who have knowingly chosen to live in the
spotlight are aware of the price they must pay. As success increases,
the ability of a politician or a celebrity to maintain a private life
decreases drastically. A well-known remark by President Harry
Truman says: ‘If you cannot stand the heat, stay out of the kitchen.’
A married politician who takes a lover should not be surprised to
find herself featured in the gossip columns. If that politician is
known to preach family values and morals, discovery of the lover
might hit the front page. I would even say that in that case it should
reach the news, because the politician’s electorate will find such
information valuable.
Gossip is not supposed to be stripped of ethics either. People’s
honour must be dealt with carefully and the boundaries of decorum
must be maintained. Pure voyeurism might cause unjustified harm
to celebrities and their families, and often this attitude does not add
to a paper’s reputation.
In Great Britain, members of the royalty rarely complain against
the press. One of the rare occasions21 in which a complaint was
issued took place in 1995, when Earl Spencer filed complaints to the
Press Complaints Commission (PCC) against the News of the World,
the People, and the Daily Mirror for publishing stories about his wife,
who was receiving treatment in a private addiction clinic, arguing
96 Media Ethics, Freedom and Responsibilities

that they unjustifiably intruded into her privacy in breach of

Sections 4 (Privacy),22 6 (Hospitals and similar institutions),23 and 8
(Harassment)24 of the Code of Practice.25 The complaints were all
upheld. The Commission held that to justify such an intrusion, the
newspaper is required to demonstrate that publication would be in
the public interest. The newspapers had failed to offer any sufficient
argument to sustain their position on this point26 (see Summary,
Suggestion D below concerning the work and powers of press
councils, and Suggestions F, G, H concerning an effective Code of
Practice).
On 31 August 1997, the Princess of Wales was killed in a road
accident in Paris. Princess Diana and her lover Dodi Al Fayed were
trying to escape some paparazzi photographers who raced after their
car. Princess Diana was exceptional among celebrities because she
insisted on continuing to live as normal a life as possible despite the
constant surveillance to which she was subjected (in her words, ‘to
sing openly’, a way of living that the royal family did not appreciate
so much but the paparazzi adored). Princess Diana understood the
power of the media and frequently used them and manipulated
them for her own advantage. One can say that Diana confused pub-
lic interest with public prurience. Although the paparazzi had made
her life very difficult in the preceding years, Princess Diana never
filed a complaint against newspapers (under Section 8, Harassment,
of the Code of Practice). Even after her pictures were taken in a gym
and subsequently published in the Daily Mirror (November 1993), she
chose not to complain and to resolve the matter through concilia-
tion. To a large extent her image was built by the media, which, in
turn, used her to sell newspapers. It takes two to tango, and the two –
Princess Diana and the media – were eager to dance. Princess Diana
knew what is a good picture, and she provided opportunities for the
photos that were printed all over the world and helped newspapers
to increase their sales. She attracted wide public attention and gen-
erated innumerable stories for the reporters and photographers who
followed her. What she did not understand until her last day was
that she could not choose which pictures should be taken, and
which not; which photographers could accompany her during her
trips, and which should not follow her. Princess Diana was disgusted
and appalled by the behaviour of the unscrupulous paparazzi who
made their living by recording her private moments (see Summary,
Suggestion E below regarding freelance journalists). Apparently, she
 Ethical Boundaries of Media Coverage 97

failed to recognize that when you open the door to the media, they
will enter in force, making the most of the opportunity.27
A further note should be made distinguishing between people
who choose to become social figures and people who provoke public
attention as a result of a deed or a speech but wish to retain their
anonymity. On occasion, people stumble unintentionally into the
spotlight, under circumstances that are not within their control.
When this phase passes, they wish to regain their privacy and return
to normal life. With regard to these people, the media should refrain
from intruding into their private lives and should respect their pri-
vacy, especially when exposure of certain details could harm one or
more of the people involved. Look, for instance, at the painful story
of Oliver Sipple, the ex-marine who knocked a gun out of the hands
of a would-be assassin of then American President Gerald Ford.
Shortly after the incident, the media revealed that Sipple was active in
the San Francisco gay community, a fact that had not been known to
Sipple’s family, who then broke off relations with him. His entire life
was shattered as a result of this publication. Sipple’s good deed caused
him extremely harmful consequences.28
3. Heightened events. These are events that actually take place but are
not dramatic enough for reporters, so they choose to embellish
them a little. In 1985, Armenian terrorists attacked the Turkish
embassy in Ottawa, Canada. They held hostages in the embassy and
during the siege of the building one of the reporters asked if the kid-
nappers had more specific demands besides the general ones they
had stated previously. In a different incident a reporter asked the
kidnappers if they intended to set an ultimatum, when none had
been stated earlier.29 Supposedly, that reporter was not satisfied with
the existing tension and he wished to raise its level (see Summary,
Suggestion F below).30
4. Exaggerated events and twisted stories. These are reports of events
that have taken place but the media try to tamper with their true
proportions or to twist the details.31 When a famous British diplo-
mat arrived in New York, he was warned by a friend about the
American reporters. One reporter asked him: ‘Do you plan to visit
any night clubs while you are in New York, Lord Selwyn?’ Selwyn
responded: ‘Are there any night clubs in New York?’ The following
morning, the reporter’s newspaper carried a story beginning ‘ “Are
there any night clubs in New York?” That was the first question
British diplomat Lord Selwyn asked yesterday as he arrived … ’32
98 Media Ethics, Freedom and Responsibilities

The New York Post told the story of a man who allegedly raped a
three-year-old girl on a grassy knoll near a crowded Manhattan
highway while passing motorists stopped to watch. The incident
was described as ‘a chilling mix of apathy and voyeurism’. But the
story was untrue. Three motorists did stop to pursue the alleged
rapist, and traffic had simply stalled behind their abandoned cars.33
In the financial and administrative arenas, the media often use
large bold headlines to report the corrupt acts of any public figure sus-
pected of embezzling large sums of money from public funds. Long
after the scandal dissipates the charges are often dropped for lack of
evidence or the dimensions of the fraudulent act turn out to be much
smaller in scope than was initially reported. This is not to say that
there is no room for reporting such stories. They must be reported,
but in a responsible manner, proportionate to the suspicions, without
exaggeration. Obviously, all embezzlement must be condemned, but
proportion must be kept. There is a substantial difference between
headlines that hint of corruption and bribery, and reports of misman-
agement of public funds or auctions.34 If after a thorough investiga-
tion the accused is found innocent, the acquittal must be reported
with the same degree of emphasis used to report the original allega-
tions (see Summary, Suggestion F below).
5. Staged events are events that probably would not have occurred had
the media not been present. Here we must differentiate cases in
which the media were invited to cover an event from cases where
the media initiated events.
During Giscard d’Estaing’s presidency, he invited his courtyard’s
workers to breakfast at his house. We can assume that the president
would not have invited his workers to his table without first
summoning media coverage. It was a public relations act by the presi-
dent. Another incident is taken from the Israeli scene, when a female
member of The Knesset chose to take a dip in the Mediterranean
specifically on the Day of Atonement, the most sacred day on the
Jewish calendar. A photographer ‘just happened to be there’ and
snapped the shot showing the MK in her bikini.
Staged events can be harmful. In March 1983, Cecil Andrews
ignited himself in protest at local unemployment rates. A local tele-
vision crew that was invited in advance by Mr Andrews captured the
event. After the event, some searching questions were raised as to
the role of the television crew: would Mr Andrews have set himself
on fire had the cameras not been there? Probably not. It is reason-
able to expect a television crew to try to stop Mr Andrews from
 Ethical Boundaries of Media Coverage 99

igniting himself, instead of rolling the film for 37 terrible seconds. I

think that this is a case of immoral and irresponsible behaviour.35
In some cases the media initiate events. During the Intifada, the
Palestinian uprising in the occupied territories, foreign television
crews directed Palestinian youth to create events for the cameras.
Former Deputy Head of the General Security Services (SHABAC),
now Member of Knesset, Gideon Ezra, said that during the uprising
foreign reporters used to convene in the American Colony hotel in
East Jerusalem and instigate events before sending their photogra-
phers to the territories. He testified that they paid Palestinian
youths $50 for stone throwing and $100 for Molotov cocktails (see
Summary, Suggestion F below).36
6. Fictitious events. These events have no connection to reality, or at
least no tangible proof that they occurred.

A notorious false news item was Jimmy’s World, published on the

front page of the Washington Post. The author, Janet Cooke, won the
Pulitzer Prize for that heartbreaking story about an eight-year-old
and a third-generation heroin addict, ‘a precocious little boy with
sandy hair, velvety brown eyes and needle marks freckling the baby
smooth skin of his thin brown arms’. The story ended with a
detailed account of how Ron, Jimmy’s mother’s lover, grabs the
child’s left arm, ‘his massive hand tightly encircling the child’s small
limb. The needle slides into the boy’s soft skin like a straw pushed
into the center of a freshly baked cake. Liquid ebbs out of the
syringe, replaced by bright red blood. The blood is then reinjected
into the child.’ Ron says, ‘Pretty soon you got to learn how to do
this for yourself.’37 Later, it turned out that the story was fictitious
and that Jimmy was a figment of her imagination. Janet Cooke was
dismissed and was forced to return the prize she had received. After
Jimmy’s World was exposed as a fabrication, Cooke explained that
one reason she had faked the story was that she had spent so much
time unsuccessfully looking for a young drug addict that she felt she
could not return empty-handed to her desk. ‘If I did not produce
a story, then how was I to justify my time?’38 (see Summary,
Suggestion F below).39

The boundaries of media coverage

I argue that only real events and gossip belong in the realm of accept-
able coverage. In cases covering celebrities-for-a-day, rules of propriety
100 Media Ethics, Freedom and Responsibilities

must be upheld. The media should not aid in staging, promoting, or

exaggerating events or rumours. Moreover, the media act irresponsibly
and immorally in all of the following instances:

Reporting events on the basis of rumours, without supporting

evidence and without cross-checking sources and testimonies.40

Reporting imprecisely in the interest of creating a sensational
response.41

Media coverage that shows no consideration other than ‘the public
has the right to see all that I am seeing’, without regard for the con-
sequences, is immoral. For instance, reporting is immoral when the
media broadcast accidents and terrorist events live, unedited, and in
consequence some of the victims’ relatives are informed of the
deaths of their loved ones by means of the shocking pictures.42

The media act in ways that might endanger lives. On one of the first
days of the hostage kidnapping in Iran in 1979, an NBC reporter
disclosed that two American emissaries had been sent to Teheran.
The report was broadcast against the better judgment of the govern-
ment and seemed to contradict understandings reached with the
Iranian government. A short time after the report, Ayatollah
Khomeini stated that the two emissaries would not be welcome in
Teheran.43 Considering that lives of people who were held hostage
in a hostile country were at stake, it was an irresponsible act. It was
certainly possible to delay the report and to give the diplomatic
channel a chance to succeed away from the spotlight.
In 1986, Lord Chalfont wrote the following:

Unless newspaper editors, and those who control our radio and
television programs, recognise their responsibility and act accord-
ingly, they might well find themselves facing pressure for some
kind of legislative regulation over the reporting of terrorism and
the interviewing of terrorists.44

Summary

Limitations should be placed on media coverage. Freedom of speech is a

fundamental right, an important anchor of democracy, but it should not
be used in an uncontrolled manner. Unlimited liberty and unqualified
tolerance might deteriorate into anarchy and lawlessness, and in such
 Ethical Boundaries of Media Coverage 101

an atmosphere, democracy would find it quite difficult to function, and

the media would be one of the first institutions to be undermined.
Today’s public is more aware of the power of the media and is more
willing to voice its dissent when it finds the media’s conduct offensive
or unacceptable. It seems that ten years ago the publication of a correc-
tion was a rare occurrence, whereas nowadays people complain more
and media agencies are more willing to admit their mistakes. The
media understand that it is better for them to control their own
agencies than for the state to intervene through the legislature and the
courts.
Undoubtedly free media are a pillar of democracy. One of their roles
is to watch what the government does; the media could not perform
this duty if they were under government control. But it is essential for
the media to take some concrete measures to improve their conduct.
Let me make the following suggestions:

A. We should strive to establish a working environment in which jour-

nalists understand their responsibilities as people who work in the
industry and as citizens in democracy, applying judgment and ethi-
cal standards in their reporting, and self-scrutinize and self-control
their activities. The role of education in creating this environment is
crucial.45 Indeed, during the past 20 years or so we have witnessed
the establishment of schools of journalism and departments of com-
munication and media studies in North America, Europe, and Israel.
Many people who wish to become reporters enrol in these pro-
grammes. It is essential to make ethics studies in these schools oblig-
atory, as many do voluntarily.
B. We should strive to diffuse the power of the media through laws
prohibiting cross-ownership.46 If possible, democracies should strive
to have each fragment of the media controlled by a different propri-
etor, provided that there are enough people who are interested in
becoming media proprietors. In Britain, Rupert Murdoch controls
some 35 per cent of the press circulation: the Sun; The Times; the
Sunday Times, the News of the World. He also owned Today, which was
closed down. In addition, Murdoch has control over BSkyB – the
only satellite provider. In Israel three families – Schocken, Nimrodi,
and Moses – control all the media. In Canada, two major media
groups – Thomson and Southam – account for 60 per cent of daily
circulation. These are unhealthy situations for democracies.
C. Each large media organization should have its own ombudsperson,
in the format adopted by the Washington Post, to deal promptly with
102 Media Ethics, Freedom and Responsibilities

complaints and to publish resolutions when the story that brought

about the initiation of the complaint is still remembered.47 Com-
plaints may be referred to the ombudsperson by any reader or any-
one who has been the subject of an article by the paper. The
ombudsperson (or Managing Editor) should be an independent
entity within the organization, enjoying autonomy and the power
to publish his or her own views without scrutiny. The paper would
regularly publish the ombudsperson’s name and the means of
contact.48
D. In every democracy, there should be a strong, independent, and
effective Press Council, with significant powers of sanction. The Press
Council should publicize itself, its powers, its work and its adjudica-
tion so as to make itself known to the public and to gain its trust (for
further deliberation see Chapter 7).
E. Freelance journalists should make themselves familiar with the
respective code of practice of the newspaper for which they are writ-
ing. Alternatively they could form their own code of practice.49
F. The Code should contain at least the following norms:

Admit error.

Do not distort, mislead, misrepresent, fabricate or plagiarize.

Grant fair opportunity to reply to inaccuracies.

Do not obtain or seek to obtain information or pictures through

harassment, intimidation, or persistent pursuit.

Do not aid in staging, promoting, or exaggerating events or
rumours.
50

Protect confidential resources.

Do not harm anyone unless you have strong moral justification;

do not harm people caught up on the fringes of events that are
not of their own making.

Invade privacy only when you are certain it is in the public inter-
est, to be distinguished from prurient motives. Following the
lessons of the Princess Diana affair, we should regard as unac-
ceptable the use of long-lens photography to take pictures of
people in private places without their consent.51

Avoid smearing people by innuendo or implying guilt by
association.

The application and employment of violence, terror, and racism
should be condemned in explicit language.

Avoid prejudicial or pejorative reference to a person’s race,
colour, religion, sex, or sexual orientation, and to any physical
or mental illness or disability.52 Moreover, editors must make
 Ethical Boundaries of Media Coverage 103

concerted, sustained efforts to recruit, retain, and develop staffs

that reflect the variety of the communities they serve.53

Do not receive gifts, favours, and other benefits from news
sources or organizations that the newspaper may cover.

Do not use or pass to others financial information revealed dur-
ing research.

Keep the business side of the paper (influence of companies
owned by the publisher) from dictating content to the editorial
side (news and views).

Do not exploit the innocence of children to get information.
G. The Code of Practice should be incorporated into the contracts of
editors and reporters.54
H. Create a two-tier press system of those who accept the above recom-
mendations and those who do not. It is not enough to join the Press
Council and to subscribe to its Code of Practice. In Britain, although
almost all newspapers subscribe to the Code, this is more of a lip
service. Clearly the tabloids still often disobey it in their publica-
tions. We need to create a more stringent scheme for the working of
press councils, and then the tabloids will decide whether they prefer
to join in and accept the responsible frame of reference, or to opt
out. The public should be notified of those who prefer to stay out.
People would probably continue reading the tabloids, enjoying their
light, entertaining, sensational stories. But no newspaper should
have the respectability of association with the Council and accep-
tance of its Code when it does not deserve it. Those who prefer to be
associated with the Press Council will ipso facto declare that they see
themselves as credible journalists. It is in their best interest to safe-
guard and protect certain rules. Those who abstain could either say
that no guidelines should be adopted or could adopt their own set
of guidelines. Advertisement of association with the Press Council
should be encouraged. Association with the Council should be
looked on with pride, as adding to the prestige of journalism. Public
officials working for the government, hence for democracy, should
be encouraged to co-operate with the responsible press.
I. In addition, a norm should be established by which all editors be
registered by the Press Council, and members of the Council should
have the power to expel from this body a colleague who misbe-
haves. Editors should abide by the Code incorporated in their con-
tracts. If found in gross violation of ethical standards, an editor could
be removed from his or her office in the Council. The proprietors
should decide whether they choose to leave the concerned person in
104 Media Ethics, Freedom and Responsibilities

the editorial office or to regard the editor’s removal from the

Council as a recommendation for outright dismissal. In any event,
the Press Council should not co-operate with the newspaper as long
as the editor concerned is in office.55
J. Former Israeli prime minister Shimon Peres suggested that journalists
should adopt their own Journalist Oath, similar to the Hippocratic
Oath in medicine.56 Yet again, it would become public knowledge if
any media agency decided not to accept the oath. The oath should
outline in stringent terms values that would not change over the
years (see above).

I repeat, it is preferable that the media supervise themselves and criti-

cize their own actions.57 If the media break the frame of decency
within which all competitors must work, and act irresponsibly, they
leave an opening for the government, the legislature, and the courts to
intervene and fill the gap left by the media.58
Self-regulation can succeed if all newspapers accept the gravity of the
issues concerned. We have seen that self-regulation can work. One of
the rare incidents in which self-regulation works in Britain concerns
Princes William and Harry. All newspapers pledged not to take any
photos of the two boys in their respective schools. Eton is a relatively
big open place, yet no pictures of Prince Harry were taken. The same is
true for Prince William. Their privacy is respected. The only photos
that were released were those issued by the Palace. The editors
promised that this rule would be kept as long as Harry and William are
at school. They reiterated their pledge following the death of Princess
Diana, when facing repeated public calls to introduce some ethical
standards into the work of the press. Lord Wakeham, Chairperson of
the Press Complaints Committee, declared immediately after Princess
Diana’s funeral (6 September 1997) that the PCC would have to ponder
ways to protect the privacy of Princes William and Harry so that they
would not have to go through the experience that their mother suf-
fered almost daily after she became Princess of Wales. Lord Wakeham
said he was ‘extremely concerned’ about what will happen when the
princes reached the age of 16.59 Unfortunately, it seems that only tragic
incidents such as the death of the Princess of Wales sway the public to
show involvement and concern which, in turn, positively influence
the work of the media.
6
Media Coverage of Suicide:
Comparative Analysis

Introduction

Media coverage of suicide is problematic because it is an emotional

issue, involving loss of human life. Reports of suicides can intrude on
individuals’ privacy and contribute to the sense of trauma, shock, and
horror shared by the individual’s loved ones. It might also be conta-
gious, negatively affecting the shaky state of mind of people in emo-
tional crisis. A study conducted in Great Britain and the United States
showed that suicide rates increased after a suicide story was published:
the more publicity the story received, the greater the increase.1
Another study found that suicide rate increased after a television sui-
cide story and that the increase in suicides lasted for about ten days
after the report.2 In contrast, Phillips argued that the most effective
channel of cultural contagion is newspapers. This is so because an indi-
vidual can spend a great deal of time reading and rereading a newspa-
per story; consequently he or she can remain longer in contact
with the contagious influence of the story and might be more
readily affected by it.3 The most susceptible is the teenage population.
Sociologists who conducted independent studies of suicide pat-
terns found significant copycat correlations. Reports of teenage suicide
appear to lead to outbreaks of other teenage suicides.4
This chapter examines how the media in Canada cover suicide sto-
ries, and reflects on this issue in the British and Israeli media. It argues
for media caution in reporting suicide, both for reasons of sensitivity
towards the individuals involved, the suicides and their families, and
for ethical reasons: consideration for the consequences of reporting.
The method of the suicide should not, generally speaking, be reported.
Suicide should not be romanticized. Instead, the media should speak of

105
106 Media Ethics, Freedom and Responsibilities

the alarm signals that people in distress emit, and how to help them,
through reassurance and referral to the appropriate agencies where
mentally unbalanced people can get help and support. In addition,
responsibility requires that teenage and celebrity suicides be viewed as
special cases that demand extra caution. This is because teenagers are
attracted to sensational headlines about suicide, and are susceptible to
imitation, and because celebrity suicides are the most often imitated.5
In any event, live suicide should not be reported.

The research question and method of analysis

In 1995 I was conducting research on freedom of expression in

Canada.6 During our discussion of this issue, M. David Lepofsky of the
Ministry of the Attorney-General in Ontario, shifted the discussion to
media coverage of suicide. Mr Lepofsky said that the media refrain in
principle from covering suicide. The case was different, of course,
where public figures were concerned, because of the clear public inter-
est in reporting the story, but even in such instances the media use the
term ‘self-inflicted wounds’.7
Mr Lepofsky said that the unwritten Canadian policy was the result
of responsible reporting, the journalists’ fearing that suicide coverage
might sway unbalanced people who may be prone to such harmful
conduct in imitating the reported action. Because the Israeli media do
not have such a policy – they would cover suicide stories as any other
story that they think is of some ‘public interest’ – I was surprised and
impressed.
In 1997 I embarked on research, examining whether the Canadian
media had, indeed, adopted such a praiseworthy unwritten policy, and
for what reasons. The research question examined was:

The Canadian media employ an unwritten policy of refraining from

covering suicide stories when these are of no clear public interest.
This for fear of copycat cases.

One editor of a large newspaper in Toronto wrote the following in

response to my query about this unwritten policy:

Yes, there is an unwritten policy not to report suicides unless they

are so well known (e.g. jumping off a bridge that closes one of the
local highways for several hours) that it becomes news. I think the
main impetus for this over the years has been our highly developed
 Media Coverage of Suicide 107

subway system, where quite often (I don’t know the exact figures
but certainly more than a handful of times every year) people com-
mit suicide by jumping under the train wheels. Most editors feel
that reporting on suicides encourages ‘copycats’, as people contem-
plating suicide are emotionally unstable anyway, a position I tend to
agree with. I do not believe individual cases of suicide are, in unre-
markable circumstances, news. Features about suicide and why peo-
ple do it are, of course, in a different category.8

Following this communication, I examined the relevant literature and

established contact with prominent people who study or work in the
media. This chapter reports the findings. It also draws some similari-
ties, and dissimilarities, to media coverage of suicide in Great Britain
and Israel. Although the research is not comprehensively empirical in
the sense that it does not offer a content analysis of Canadian, British,
and Israeli news media coverage of suicide, it nevertheless does indi-
cate the existing trends in the media of these three countries and it
provides sufficient data to draw some suggestions for a responsible
framework of media coverage of suicide.

Media coverage of suicide in Canada

In 1998 I returned to Canada to conduct research on media ethics.9

One of my prime concerns was whether there is any truth in the
research question formulated supra. I first looked at the CBC’s Jour-
nalistic Standards and Practices (1993) manual that outlines the policy
framework within which Canadian Broadcasting Corporation journal-
ism seeks to meet the expectations and obligations it faces. Unlike the
BBC’s Guidelines, the CBC’s Standards manual does not discuss coverage
of suicide.10 So at least as far as national broadcasting is concerned, the
policy on suicide is, indeed, unofficial and unwritten.
Next I looked at the Globe and Mail Style Book. This book is a guide to
language and its usage with some reflections on ethics, for instance
concerning the appropriate usage of the term ‘terrorist’. Suicide is not
mentioned.11 I addressed this question to the directors of the press
councils in Quebec and Ontario. Mr Michel Roy and Mr Robert
Maltais, President and Secretary General of Conseil de Press du Quebec
respectively, said that no guidelines on suicide exist.12 This was also the
answer of Mr Mel Sufrin, Executive Secretary of the Ontario Press
Council.13 The Canadian Press Style Book does mention suicide briefly
in relation to obituaries. It says: ‘When suicide is suspected but not
108 Media Ethics, Freedom and Responsibilities

officially confirmed, it may be possible to report that a note or a gun or

an empty barbiturate bottle was found near the body.’14 This is in order
to explain the possible cause of death.
The fact that suicide is hardly mentioned in formal documents might
suggest that the issue as such is not of importance. Discussions with
senior media people refute this suggestion. People in the Canadian
media feel it is a significant concern, and some of them are well aware
of the ethical dimensions involved in the coverage of suicide. Others
felt that the issue should be left to the discretion of editors. If an editor
thinks that such coverage is of public interest, then surely suicide
should be covered. But if it is not, then there is no story and there is
nothing to report.
The question is, then, how to decide, and in accordance with what
criteria, whether to report a suicide story. Everyone I met – more than
30 prominent people from the media industry and academia – said that
sporadic suicide instances of unknown individuals are not reported in
the Canadian media. Many told me that most, if not all, subway sys-
tem suicides do not get reported. These stories are conceived as private
matters, with no significant public interest. Mr Michel Roy added that
suicide in general is not covered because in Canada there is more
respect for private life.15 This notion of respect for privacy was reiter-
ated by Professors Enn Raudsepp16 and Stuart Adam.17 Professor
Christopher Dornan, Director of the School of Journalism and
Communication at Carleton University, also thought that the media
show sensitivity as well as concern and respect for the family of the
person who committed suicide.18
This, however is only part of the story. The research question speaks
also of the reasoning for refraining from coverage, and it also qualifies
the assertion of non-coverage by saying that the policy is applied
only when no clear public interest is present. To what extent does
the responsible reasoning of fear of copycat endure in the minds of
decisionmakers?

Fear of copycat cases

The interviews showed a mixed picture with regard to this question.
Some accepted this as a cautionary ground for not reporting suicide;
others dismissed it outright. Mr Henry Aubin, senior columnist and
member of the Editorial Board of the Gazette, the major English-lan-
guage paper in Quebec and member of the Quebec Press Council Board
of Directors, spoke of the need for careful coverage so as to avoid copy-
cat cases.19 Similarly, Mr Michel Roy, President of the Conseil de Press
 Media Coverage of Suicide 109

du Quebec, said that the media may write about the phenomenon but
would, in principle, refrain from publishing individual stories. The
media were aware that coverage of suicide might influence young and
unstable people, and for fear of copycat cases they exercise caution.20
On the other hand, Mr Gord Sinclair, Director of News and Public
Affairs of CJD, the leading English radio station in Quebec, explained
that murder and crimes were covered, but suicide was not a crime, and
it was of no public interest. Hence, CJD did not cover suicide in princi-
ple. But if the suicide caused a traffic accident or involved a public fig-
ure, then the event would be covered because it had aspects that were
of public interest. Mr Sinclair did not mention any ethical reasoning in
his response. I then asked him directly whether he was concerned with
the contagious effects of such a report. His answer was blunt and clear:
he was not troubled with copycat considerations.21
This was also the answer given by Mr Al MacKay, Interim General
Manager of the Cable Public Affairs Channel. Mr MacKay explained
that suicide was a personal thing, not of public interest. In response to
my direct question on ethics he said they did not cover suicide because
of lack of public interest, not because of fear of copycat cases.22
The fear of copycat as grounds for refraining from coverage of suicide
was also forthrightly dismissed by Mr Michael C. Auger, political
columnist of Le Journal de Montreal, who served also as President of La
Federation Professionale des Journalistes. He explained that sporadic
suicides, like underground suicides, did not get reported simply because
they are of no public interest. On the other hand, if the media were
worried about an emerging phenomenon, then it was within their
duties to report it.23 I will elaborate on this issue later on.
Mr Auger’s answer brings us to consider the tricky issue of ‘public
interest’. When do the media find it justifiable to report suicide?
Which circumstances evoke such interest?

Public interest
The category of ‘public interest’ encompasses several dimensions.
These are grouped under the headings of fame, drama, and phenome-
non. Let me discuss and explain each of them.

Fame
If the person who committed suicide was a celebrity, a public figure in
Canada or the world at large, then the media would report the story.
This was the only qualification that Mr Lepofsky made to the assertion
110 Media Ethics, Freedom and Responsibilities

that prompted this research, that the Canadian media do not, in prin-
ciple, cover suicide,24 an assertion he repeated in a more recent inter-
view.25 As we shall see infra, this assertion is incorrect. This is not the
only ground that justifies media coverage.
One example has to do with Roger Quilliot, a former French govern-
ment minister, who committed suicide at the age of 73 in Clermont-
Ferrand, where he was mayor for more than 20 years. The brief report
said that he was concerned about his ill health.26 I did not find any dis-
cussion that expressed anxieties in regard to reporting suicides of public
figures – politicians and celebrities – because these might be imitated. It
could be argued that relatively old people in a similar condition might
be triggered to consider suicide as an option following such reports.

Drama
If the story is dramatic, captures the public eye for some reason, then
public interest prescribes reporting. Professor Fred Fletcher said that
suicides were not reported unless they were dramatic (jumping off CN
Tower). Names of suicides were not reported unless the suicide evoked
public controversy or the suicides were public figures.27
The President of the Quebec Press Council, Michel Roy, gave an
example of an exceptional story, when one of the Quebec newspapers
covered in crude details the suicide of a person who ended his life by
jumping off a bridge. La Presse, the major newspaper of the region,
published a series of photos of the man and the stages of his fall.
Subsequently the father of that person wrote a very touching letter to
the paper, which La Presse published, and the public reaction to these
was very strong and negative. The public voiced its dissent and con-
demned the decision to publish the photos. In fact, the entire press
condemned the coverage.28 Here it should be noted that Le Journal de
Montreal, the most popular tabloid in Quebec, notorious for its menu
of sex, sport, and blood, had the photos and chose not to publish
them.29
I asked Mr Roy whether the Press Council was urged to interfere,
condemning the publication because it violated the Quebec Press
Council’s Rights and Responsibilities of the Press, which holds:

While insuring the right to information, the media and journal-

ists must respect the rights of the person, including the right to pri-
vacy, intimacy, dignity and reputation. They must be careful to
inform the public without resorting to sensationalism … .Media and
 Media Coverage of Suicide 111

journalists should distinguish between matters of public interest

and public curiosity.30

However, no complaint was made to the Quebec Press Council and the
Council did not intervene. Mr Roy said that the public reaction was so
fierce that there was no real need to interfere. He assumed that La
Presse understood the public message loud and clear.
The most sensational suicide reports are those involving murder and
suicide. In such reports we find ‘juicy stuff’, characteristics of murder
stories: more details in reddish colours. The stories usually involve a
person who kills another, most often someone he or she knows well,
and then commits suicide. Murder is of public interest and the suicide
is part of the package. One such story concerned a 34-year-old man
whom the police wanted for questioning in relation to the slaying of
his wife and two boys. The report said that the man, who had been in
a state of emotional turmoil, was found hanged.31 A similar story con-
cerned a woman who shot her two-year-old triplet sons and then com-
mitted suicide. This story was full of details usually spared in suicide
stories: it said, inter alia, that she shot the boys in the head with a semi-
automatic pistol and then turned the gun on herself; that one of the
boys survived the shooting but was declared brain dead; that the
woman became despondent after finding another woman’s underwear
in her boyfriend’s suitcase; that she went to the store asking for rat poi-
son, and that she told the shopkeeper she wanted to throw herself in
front of the cars, taking her children with her.32 The story was full of
details that were entirely unnecessary for reporting the incident in the
name of ‘newsworthiness’ and ‘public interest’. This is an example
where the press resorts to sensationalism and confuses interest with
curiosity. Such mixed stories that involve self-inflicted violence as well
as violence against other people, should have, for ethical reasons, more
the characteristics of a suicide story and less of a murder story. The
media should preserve the privacy of the people involved, and be
aware of the possible consequences of the report.

Phenomenon
I
If the suicide occurs among a certain group of people, suggesting that it
is not a sporadic instance of suicide but rather part of a more general
problem, then there is justification for reporting. For instance, farmer
112 Media Ethics, Freedom and Responsibilities

suicides are seen as a serious consequence of the recession on the Cana-

dian prairies and, therefore, are reported when other deaths are not.33
Mr Auger gave another example. In the summer of 1997 there were
five consecutive suicides in a small town, all children from the same
school. This attracted a lot of publicity. Five suicides of children from
the same school may indicate a serious problem in that school or
town. This story must be covered. Mr Auger maintained that if the
media had refrained from reporting, rumours would have started and
these could have been more intrusive, insensitive, and inaccurate. Of
course, the media reports should be presented with caution and good
taste. Apparently, however, this was not the case. Mr Auger elaborated
that after the story broke the Quebec Psychiatric Association organized
seminars for reporters, instructing how suicide stories should be cov-
ered in a way that would not offend the parties concerned.34
Mr Edward Greenspon, Ottawa Bureau Chief of the Globe and Mail,
said that his newspaper covers suicides. According to him, five years
ago suicide stories were taboo. Now they were covered when deemed
newsworthy and bearing social ramifications. Mr Greenspon gave an
example of a person who was abused as a child and during his adult
life became famous for his crusade against child abuse. That person
later committed suicide, and the Globe felt it was an important story,
with an added value to society.35 In a sense, the story was not merely
about suicide but about the wrongs of child abuse and the longterm
trauma that such abuse inflicts on its subjects.
Mr Mel Sufrin of the Ontario Press Council mentioned reporting
general stories about suicides in aboriginal communities. The stories
are concerned with the phenomenon, reflecting on it in general terms,
or using a particular suicide as a springboard to discuss the problem.36
Mr Arch Mackenzie, a veteran journalist who had been active for many
years in the Michener Award Committee on Investigative Reporting,
also said that aboriginal suicides are covered. He explained that alcohol
and the high rate of unemployment were major problems in these com-
munities, and that the media covered suicides of aboriginal individuals
in order to turn public attention to the problem. Mr Mackenzie stated
that every week there were one or two stories on aboriginal suicides.37
One account, reported by the Globe and Mail, aimed to arouse public
concern, told the story of a troubled Manitoba Indian band, Birdtail
Sioux, that had suffered seven suicides in the previous year and 20
attempts since January 1998, some by children as young as nine. Chief
Nelson Bunn, himself a recovering alcoholic, called on the medical ser-
vices and the Indian agencies to help his tribe get through the crisis.38
 Media Coverage of Suicide 113

Similar considerations led the media to cover suicide stories of other

particular segments of the population. They covered suicide of Aids
patients to attract public attention to their delicate position in society.39
The media also covered suicide stories in Quebec especially, and teenage
suicide in this region as well as in other parts of Canada. Again, the
media reflected alarming phenomena that were conceived to be of
major public concern. The media were not interested in individual sto-
ries per se but wanted to attract public attention to a social problem.
The Globe and Mail reported that the Quebec Health Minister, Jean
Rochon, said that the region had the third-highest suicide rate in the
industrialized world, and that his government was determined to cut
the toll. The most recent figures available show Quebec’s suicide rate at
19 for every 100 000 people, compared with the Canadian average of
13.3 for every 100 000 people in 1995. Mr Rochon said the Parti
Quebecois government would spend $700 000 over three years on
prevention programmes and public education, and that the govern-
ment had already spent close to $2.5 million on addressing the growing
problem. Suicides had risen progressively since the early 1970s, with
especially high numbers in 1982, 1983, and the early 1990s.
Mr Rochon stipulated that painful economic recessions during those
periods might have contributed to the higher rates.40
Mr Henry Aubin of the Montreal Gazette said that the French press
gave more coverage to suicide because Quebec had the highest ratio of
suicide in the country, especially among young people. His explanation
for this phenomenon took account not only of the economic recession
and widespread unemployment but also of the high divorce rate in the
region, which was the highest in the country; the lack of religious val-
ues, and in his words, the fact that ‘children do not go to church’; the
sensitive political climate, and the hatred of English-Canadians. All
these created a negative climate that led people to commit suicide.41
As for teenage suicide: this was a principal concern. Except for motor-
vehicle accidents, suicide was the most common cause of death among
young Canadians. The World Health Organization (WHO) ranked
Canada eleventh in the world for frequency of suicide among those
aged 15 to 24. For Canadian teenagers, the rate of suicide had soared
400 per cent in the past 30 years, from 5.3 to 23 per 100 000 and the rate
among desperate aboriginal youth was five times that of all Canada.42
The media could not, and should not, ignore this phenomenon
which was especially worrisome in Quebec. Health Minister Jean
Rochon said that people between the ages of 15 and 29 were the most
vulnerable, and suicide was the foremost cause of death for men in
114 Media Ethics, Freedom and Responsibilities

that age group. Dr Christine Colin, a health ministry official, said there
was no single reason why young people in Quebec decided to end their
lives, and that environment and social situation could be factors.43
Mr Henry Aubin said that teenage suicide in Quebec was apparently
about the highest in the world. He argued that La Presse in particular
provided extensive coverage of this phenomenon, and that the French
press on the whole was quite immature in its reporting. It did not
think about the ramifications of their coverage, not realizing that such
extensive coverage might elicit copycat suicides.44
Reporting of teenage suicide is tricky. On the one hand, it is of
importance to inform the public about the phenomenon. The high
rate of suicide among teenagers in Quebec should be a major concern
to be discussed in order to find some solutions for the problem. On the
other hand, the media should be aware of the likely consequences of
such reporting. It could be the trigger for another suicide of a teenager
reading the report. The media should not exaggerate in their reporting
of the phenomenon. They should not provide details about the means
of suicide in particular stories, and they should provide details on how
to handle depression, the importance of counselling, and ways to find
assistance in coping with emotional distress. Of course, they should
refrain from covering live suicide.
Several people whom I met in Toronto mentioned one particular
story that received wide coverage in the Toronto newspapers.45 The
story had several public dimensions. It concerned a 17-year-old choir-
boy named Kenneth AuYeung who was involved in a schoolboy prank
which went wrong. Someone had altered a line in the yearbook
farewell message of the outgoing principal of his choir school, alluding
to his involvement in a recent sex abuse scandal. The new principal of
the school summoned Kenneth and five other members of the year-
book committee, saying that the administration was not amused by
jokes about sexual abuse, demanding that they confess or face criminal
charges. Next day, the principal also called an off-duty police officer to
exert more pressure on the boys. The officer offered them a choice: to
confess immediately or face criminal charges of public mischief.
Kenneth AuYeung confessed.
Kenneth was a smart, successful boy who made the honour roll every
year and had never been in trouble before. For him the event was fatal.
His entire world collapsed. Two hours after his investigation he jumped
to his death from the Bloor Street Viaduct in Toronto. The media
reported the story in detail, raising the following questions: was it
appropriate to call an off-duty police officer to put pressure on the
 Media Coverage of Suicide 115

boys, threatening them with the opening of criminal proceedings for a

senseless prank? Was it justified to do this without involving the par-
ents? The media also analysed the event in terms of teenage suicide,
and then focused on the bridge from which Kenneth jumped.
Apparently that bridge became a favoured spot for potential suicide.
The media raised the issue, suggesting the need to look for solutions
that would prevent people from jumping off that bridge.46
The Bloor Viaduct had been a common site for suicide jumpers.
Should the media report the phenomenon, which was certainly alarm-
ing, and of public interest, taking the risk of making the bridge even
better known for potential suicides? Apparently the media refrained
from reporting Bloor Viaduct suicides for quite some time and started
their coverage after the numbers of suicides became relatively high,
and the Toronto authorities had begun investigating ways to solve the
problem. Proposed solutions included putting netting under the bridge
or erecting a high fence.
Kenneth AuYeung jumped from the bridge on 11 December 1997.
During that year the statistics showed that one person had committed
suicide there every three weeks. The Globe and Mail published a story
about the bridge in February 1998 after two more people died in this
way.47 The report said that the viaduct is to Toronto what the Empire
State Building was to New York: a magnet for desperate people wishing
to end their lives, and that since its construction in 1919 more than
300 people had jumped from the bridge. The report suggested installa-
tion of a chain-link fence and emergency telephone stations on the
bridge, citing research showing that preventive measures taken at the
Empire State Building and the Eiffel Tower in Paris reduced the overall
rates of suicides in those cities.48
The report spoke of the phenomenon so as to evoke public debate
and to put pressure on the authorities to address the problem.
Balancing the interest in spurring the authorities to action against the
likelihood that the report might induce another potential suicide to
leap from the bridge, the paper felt the balance should lean toward
reporting. With such gloomy statistics, it seems that the bridge was
well known among people seeking ways to commit suicide, and there
was a pressing need to push the local government into action.
Following the suicide of AuYeung, an inquest jury was set up to
examine the affair. It recommended that ‘every effort should be made
to keep the location and method of suicide out of the media. If that is
not possible, a low profile should be given to these matters.’49 This
is because it had been shown that reporting suicides and locations of
116 Media Ethics, Freedom and Responsibilities

suicides acted as a magnet to perpetuate the act, and the location

became known as a death magnet. In response, the Ontario Press
Council issued a press release, saying that it opposed any effort by
authorities to suppress news of this sort. It further noted that the press
did not report suicides unless they were clearly newsworthy.50

II Assisted suicide
Stories that involve two or more dimensions of renown figures, human
drama, and phenomenon are of greater interest for the media. One
such story that captured the public eye and evoked public controversy
was the story of Sue Rodriguez, a 42-year-old woman who suffered
from progressive Amyotrophic Lateral Sclerosis (ALS) and had been
informed by her physicians that her prognosis was poor. While remain-
ing fully aware and legally competent, she would lose her capacity to
move her limbs, to feed and clothe herself, to swallow, and eventually
to breathe without assistance. As her condition deteriorated,
Ms Rodriguez publicly expressed, through the media, a wish to have a
physician assist her in ending her life at a time of her choosing, when
she would be unable to do so herself, rather than waiting helplessly to
die by suffocation or choking. Ms Rodriguez sought to challenge the
Criminal Code of Canada prohibition on assisted suicide, on the
grounds that it violated the Canadian Charter of Rights and Freedoms.
The specific section of the Criminal Code is 241(b): ‘Everyone who aids
or abets a person to commit suicide, whether suicide ensues or not, is
guilty of an indictable offence and liable to imprisonment for a term
not exceeding fourteen years.’51
The Canadian Supreme Court rejected Ms Rodriguez’s appeal in a 5
(Sopinka, La Forest, Gonthier, Iacobucci, and Major) to 4 (McLachlin,
L’Heureaux-Dube, Lamer, and Cory) decision.52 Without entering into
the legal aspects involved, this was the first time that such an appeal
reached the Supreme Court, hence it excited prolonged public debates
engaging all circles of society.53 The media took much interest in
Ms Rodriguez’s situation and discussed at length the ethical dilemma
involved in her motion to be assisted to die. Of course, here the issue is
of assisted suicide, and not of suicide per se, but it demonstrates the
kind of a story that the media seek: it involved the human drama of a
person who became public figure, whose story had ethical and societal
implications. On the whole, the media were quite sympathetic to the
appeal though they presented both sides of the controversy: those who
were in favour of it and those who opposed it, mainly for fear of slip-
pery slopes.54 Ms Rodriguez was well aware of the media interest in her
 Media Coverage of Suicide 117

story and co-operated with them fully until her very last days. On
5 February 1994, one week prior to her death through assisted suicide,
she advised a member of the media that a physician had agreed to
assist her in her death but would not divulge his/her name or details of
the suicide.55
Assisted suicide is interesting because it is a most complicated issue,
with which society is struggling: it involves a person who is taking his
or her life, with the help of others. Does this help make the co-operat-
ing person a murderer? It is strange to speak of murder under these cir-
cumstances because the person concerned has asked to die. However,
the law failed to adequately address this question, so all such incidents
evoke media attention.56
A related story involves Erwin Krickhahn, who was dying of Lou
Gehrig’s disease. He invited the media to watch him commit suicide,
thereby hoping to persuade Parliament to legalize assisted suicide. If
the media were to attend the event, would their presence influence the
event itself? Is it their role to advance such a cause? In the end, only
the Toronto Sun said it would assign a reporter to the suicide. The other
media chose to abstain and said they would cover the story by assign-
ing reporters to a ‘deathwatch’ outside Krickhahn’s home. For most
journalists, his was a story not to cover. Krickhahn then decided to
postpone the event.57
Another form of assisted suicide that the media felt compelled to
report because of its public dimension was police-assisted suicide. The
press reported the story of Moshe Pergament who was shot by a police
officer. Later detectives discovered an envelope addressed ‘To the offi-
cer who shot me’. The note said: ‘I’m sorry to get you involved. I just
needed to die … ’. The Globe and Mail reported that no one knows how
many people manipulate police into killing them, but two recent stud-
ies suggest it is surprisingly common: researchers who examined hun-
dreds of police shootings in British Columbia and in Los Angeles
County ‘found that in at least 10 per cent of the cases, the dead and
wounded sought death’.58
This phenomenon is clearly newsworthy. In its report, the Globe
emphasized that every time police-assisted suicide happens, there are
victims on both sides of the gun. The newspaper wanted to draw pub-
lic attention to the phenomenon, and to warn the police that some
people would wish to have police-assisted suicide. The newspaper also
wanted to show the officers who were involved in this, against their
will, that it was a phenomenon of which they should be aware, and
that similar cases took place elsewhere.
118 Media Ethics, Freedom and Responsibilities

The next two sections briefly reflect on media coverage of suicide in

Great Britain and then discuss in some more length coverage of sui-
cide in Israel. It will be argued that media coverage of suicide in both
societies is more extensive than it is in Canada. With regard to the
BBC, it seems that its policy is not much different from the unwritten
Canadian guidelines.

Media coverage of suicide in Great Britain

In the summer of 1997 I studied media ethics in Britain.59 The discussion

is based in the main on reports of my meetings with decisionmakers and
media scholars. My open questionnaire included the following question:

The Canadian press has an unwritten policy not to report suicides

unless the people concerned are so well known that it becomes
news. The main impetus for this is the fear of ‘copycats’. Is there
any such unofficial policy in Britain?

I added that I assumed that in Britain, as in Canada, some people used

the underground (tube) for this purpose. The unwritten Canadian pol-
icy was practically unknown to the people I interviewed. However, the
undisputed consensus arising from the dozens of interviews was that
the case was very different in Britain. The British media did not
espouse such a policy.
Charles Moore, editor of the Daily Telegraph, said that his newspaper
would not run a story of someone who tried to commit suicide.
Nevertheless he thought that sometimes there was a need to publish
suicide cases, not only where public figures were concerned, but also
common citizens. If, for instance, a high school girl committed suicide
after being bullied by her friends because she was fat, there was a story
to tell to evoke public discussion about the dangers of bullying.
Mr Moore maintained that the Telegraph would also report suicides of
students, trying to understand what brought them to such an act, as
universities should also address this issue.60
So in fact, the Telegraph accordingly would cover suicide stories when
they were of public interest, under the heading called ‘phenomenon’
here. Mr Moore maintained that the Daily Telegraph would not run a
story of any person who tried to commit suicide but immediately
admitted that the paper once did publish photos of such an event. He
said that he was away and the decision to print the photos was made
without his knowledge. A young person climbed to a high roof with
his dog, pushed his dog over the edge and then jumped. The Telegraph
 Media Coverage of Suicide 119

published a series of dramatic pictures of the event, telling the story.

Mr Moore’s replacement published them because he thought they were
amazing photos. Subsequently the paper apologized to the boy’s family.61
Similar views were invoked by Alan Rusbridger, editor of the Guar-
dian, and by senior personnel of the Reuter Foundation and of the BBC.
Mr Rusbridger expressed the opinion that journalists must be careful
about sanitizing the news. Copycat was not a good enough reason to
have a general policy of refraining from covering suicide. Therefore the
Guardian reported suicides like any other story.62 In turn, Mr Godfrey
Hodgson, Director of the Reuter Foundation Programme for Journalists,
Oxford, said that suicide cases were reported routinely.63 Mr Martin Bell,
a former prominent reporter with the BBC and now member of the
House of Commons, likewise testified that the British media did not
have a policy of not reporting suicide. Suicide cases were reported like
any other news.64 Ms Margaret Hill, Senior Advisor of the BBC Editorial
Policy, and Mr Fraser Steel, BBC Head of Programme Complaints, consid-
ered each case in terms of its public interest. Ms Hill said: ‘We never say
“never” ’. She emphasized that there were no absolute policies and that
the BBC refrained from making blanket decisions. Sometimes the BBC
did report suicide in radio and local programmes, the thought being that
the story should be discussed in public. Like Mr Moore, Ms Hill and
Mr Steel argued that if someone was bullied and committed suicide, it
was important to report the incident.65
The BBC Producers’ Guidelines book postulates that the factual report-
ing of suicides may encourage others. Bearing this in mind, reports
should usually avoid graphic details of suicide methods. Reporters
should be particularly circumspect about details when the method is
unusual. The Guidelines proceed by saying that in drama, unnecessary
concentration on suicide methods should be avoided. They instruct
that particular care should be taken in making editorial judgments
about any drama that seems to exploit or glorify suicidal behaviour
and actions.66 Accordingly, the BBC usually does not mention what
means suicides used. This was reiterated also in my discussion with
Ms Hill and Mr Steel. On the whole it seems that the BBC is quite care-
ful in its coverage of suicide, and that its directors are aware of the
harmful repercussions of sensationalized reporting.

Media coverage of suicide in Israel

The Israeli press does not follow such ethical guidelines. Suicide stories
are covered in minute detail. This was not always the case. During the
120 Media Ethics, Freedom and Responsibilities

1960s the press usually did not report suicide for ethical reasons. It was
believed that suicide stories might encourage similar conduct. Even
when public figures were involved, the reports would say ‘died in tragic
circumstances’ without elaboration.67 Over the years, the press started
to use the term ‘suicide’, but suicide stories were reported in brief in
the back pages. The drastic change took place during the 1980s, with
the increased competition between the two tabloid newspapers, Yedioth
Ahronoth and Ma’ariv, when they discovered the sensational element in
suicide stories. They would compete in providing more ‘juicy’ details,
including the means of how the suicide was committed.
Weimann and Fishman conducted a systematic content analysis of
more than 430 suicide cases published in Ma’ariv and Yedioth from
1955 to 1990. They found that the number of press reports on suicide
declined during the 1960s, increased moderately during the 1970s, and
increased dramatically during the 1980s and 1990s, an increase of
more than 500 per cent compared with 1955, despite the relative con-
sistency of suicide acts in reality. Moreover, the space devoted to suicide
stories increased steadily, as did the prominence of the stories in the
paper. While between 1955 and 1970 no suicide story exceeded a half
page in length, the frequency of articles longer than that increased from
2 per cent of the articles in 1975 to 5.6 per cent in 1980, 6.1 per cent in
1985, and 7.2 per cent in 1990. More and more stories appeared on
page one; by 1990, almost 20 per cent of all articles published appeared
there. Weimann and Fishman suggest that the growing interest of the
press in reporting suicide may be related to the tough competition
between the two popular dailies, one that led to sensationalization of
the news and increased space devoted to violence and crime.68
The Israeli press has no qualms reporting the means by which sui-
cides are committed. Weimann and Fishman show that the press
focused on the more violent modes of suicides: shooting (28.8 per cent
of all reports), hanging (20.2 per cent), jumping from high buildings
(17.4 per cent). The less violent modes were less attractive for the press,
with taking poison (the most frequent mode of suicide among females)
comprising only 8.4 per cent of the stories, far below its actual fre-
quency (34.2 per cent among females, 20.9 per cent among males).69
As may be imagined, the motive for suicide also plays a major role in
the decision whether to report it or not. It is alarming to note that the
press operates in accordance with stereotypes that distort reality and
convey a false impression to readers. Weimann and Fishman have
shown that the reality perceived through the media is very different
from the reality formally portrayed by the official statistics. They chose
 Media Coverage of Suicide 121

to review three ‘most obvious’ motives for suicide: economic hardship,

romantic disappointment, and mental problems. They found that the
first two had low frequencies in the official statistics but high preva-
lence in the press. The last motive was underrepresented in the press
compared with its high prevalence in reality. According to their data,
the leading motive for suicide in Israel was personal depression, moti-
vating 42.7 per cent of the males and 53.3 per cent of the females who
committed suicide, but only 18.1 per cent of the suicide stories demon-
strated personal depression. Furthermore, the distortion of reality was
intensified when they examined the motive and the gender of suicides
together. While females, according to the official data, tended to com-
mit suicide because of economic hardships more often than males, the
media portrayed the reverse picture, that males were more likely than
females to commit suicide owing to economic problems. In addition,
the official statistics showed that males tended to have the romantic
motive assigned to their suicide at a much higher frequency than
females, while the press underplayed that fact and even slightly,
though not statistically significantly, tended to attribute it more than
females.70
During the 1980s and the 1990s, there were several waves of suicides.
One wave involved some six teenagers from the Jerusalem area. There
was a feeling that the elaborate reports on the front pages of the news-
papers contributed to the suicides in this wave, when the press num-
bered each suicide and provided the most personal details. A second
wave involved young soldiers in the Israel Defence Forces (IDF).
Yet again, there was the notion that the detailed reports produced
copycats.71
In April 1986, a special symposium was convened to discuss this
issue of media coverage of suicide. Professor Aryeh Arhel, President of
Red Magen David (the Israeli Red Cross), argued that bold publication
of suicide stories, especially of youngsters, might provoke a suicide
wave. He noted that, generally speaking, suicide is not a sudden inci-
dent but the result of the internal struggle of a person under personal
and other pressures. The decision on how to cope with his/her situa-
tion is a delicate matter that could be influenced by media coverage of
suicide. His opinion was that it was preferable to report suicides in
small print on the last page and to refrain from giving such stories
prominence in the newspapers. Dr Bracha Geoni, Director of the Youth
Department of Shalvata Hospital, contended that newspaper coverage
of suicides is a catalyst to further suicides among youth. According to
her data, 80 per cent of suicides in Israel take place among normal
122 Media Ethics, Freedom and Responsibilities

youth. The dramatization of suicide stories by the media might drive

other youth in sensitive conditions to copy this act. She reported sev-
eral copycat incidents, and said that in the past newspaper clippings
concerning suicide reporting were found in the rooms of young people
who tried to commit suicide. In her opinion, the media should refrain
from publishing the means by which suicides were committed. This is
because in several incidents suicides imitated the methods reported by
the media.
Amos Shapira, a law professor at Tel Aviv University and currently
the Deputy President of the Israel Press Council, voiced a totally differ-
ent opinion. He argued that there was not a single poll demonstrating
that lack of publicity on suicide helped to prevent such incidents. He
advocated finding ways to fight the factors that caused people to com-
mit suicide rather than fighting against the media, which merely pre-
sented the given reality. In a free society, the role of the press was to
bring relevant material to the attention of concerned parents. We need
to invest more in education and explanation, to try to discover causes
for depression among the youth, and to raise a voice against easy
access to weapons that facilitate suicide.72
Professor Shapira’s viewpoint is too sweeping, and therefore lacks sen-
sitivity. Of course we should invest more efforts to fight depression, and
education is a vital tool in this respect. At the same time, we should not
relieve the media from their public responsibilities. Responsibility pre-
scribes proportionality and caution in the coverage of suicide: not to
glamourize such incidents; to report while being aware of the likelihood
of the copycat phenomenon.
As stated, suicide stories in Israel are reported in the most sensational
terms. On 9 January 1994, the last news page of Yedioth Ahronoth car-
ried a detailed story of how a young girl, aged 15, burned herself to
death.73 Recently, Yedioth reported in a white-and-red headline that a
15-year-old boy hanged himself in his room during his brother’s cir-
cumcision. The report elaborated that the boy took a belt and tied it on
a crossbar in his room. He was found by his 17-year-old sister.74
Periodically, the press publishes statistics about the motives for suicide
attempts, how they were committed, and the profile of suicides: their
gender, age, and country of origin.75

Conclusion

The main impetus for not reporting suicide in Canada over the years
has been that it is a private matter of no public interest. The media on
 Media Coverage of Suicide 123

the whole are quite responsible and sensitive where suicide is con-
cerned. Principally, newspapers rarely report routine suicide. Many feel
that reporting on suicides should be done with utmost sensitivity
because people contemplating suicide are emotionally unstable and
may be influenced by the reports. Generally, the Canadian media do
not report methods of suicide; do not report underground suicide
(which apparently is common, especially in Toronto); do not show live
suicide; and do not publish suicide statistics. They do cover suicides of
public figures and when the case involves some wider dimensions.76
This study found that suicide is reported when it is identified as a prob-
lem among sections of the population: youth; native people; Aids
patients; farmers; abused children; the particular problem of Quebec;
and when the story involves different forms of assisted suicide. Quite
naturally, the suicides of well-known figures, whose stories encompass
unusual human drama and suggest a general problem that may affect
some segments of the population, are reported more widely.
The grounds for reporting such incidents of suicide are solid and well
reasoned. The public should be aware of phenomena that exceed the
emotional distress of one particular individual. At the same time, cau-
tion demands not to sensationalize suicide stories, both for the sake of
sensitivity towards the people concerned and awareness of the conse-
quences of suicide reporting. Media reporters and editors are not
abstract humans living in some sort of ‘state of nature’. They are citi-
zens who are expected to show responsibility in their reporting. Entry
into the industry of journalism does not exempt citizens from this
basic responsibility. On the contrary, because of the extra burden of
affecting the lives of others, media reporters and editors are expected
to show sensitivity and to adhere to the liberal background rights, first
and foremost respect for others and not harming others.77 Whenever
the media cover a suicide story, they should not provide details about
how the suicide was conducted, and they should not romanticize the
deed. I conclude with Section III of the Statement of Principles for
Canadian Daily Newspapers, which is pertinent:

The Newspaper has responsibilities to its readers, its shareholders, its

employees and its advertisers. But the operation of a newspaper is in
effect a public trust, no less binding because it is not formally con-
ferred, and its overriding responsibility is to the society which pro-
tects and provides its freedom.78
7
The Work of the Press Councils in
Great Britain, Canada, and Israel:
a Comparative Appraisal

Introduction

The aim of this chapter is to review the work of the press councils in
Britain, Canada, and Israel. Britain and Israel are unitary states, each
with its own national press council. Canada is a federal state with
provincial press councils in all provinces except Saskatchewan. The
British Press Council and the Press Councils in Canada, with the excep-
tion of Quebec, deal only with the written press. The Quebec Press
Council and the Israel Press Council deal with both the written and
electronic media.
The press councils, however, do not possess real ability to sanction
newspapers for misconduct. The espoused idea is of self-regulation by
the press. The essay considers the history of the press councils in
Britain, Canada, and Israel, analysing the ways they developed, their
work, and how they have achieved their current status. It is argued that
the existing situation in the three democracies is far from satisfactory,
and that the media should advance more elaborate mechanisms of self-
control, empowering the press councils with greater authority and
equipping them with substantive ability to sanction.

The British case

At the end of World War II, Britain and its politicians were concerned
about the growing tendency toward concentration of ownership
(which was much less marked then than it is now), and about the ethi-
cal standards of newspaper proprietors and journalists. In 1947, the
first Royal Commission (the Ross Commission) was set up ‘to inquire

124
 The Work of the Press Councils 125

into the control, management and ownership of the newspaper and

periodical Press and the news agencies, including the financial struc-
ture and the monopolistic tendencies in control, and to make recom-
mendations’.1 Two years later, in 1949, the Ross Commission submitted
its report which recommended the establishment of a council consist-
ing of members from the newspaper owners’, editors’, and journalists’
organizations, with lay people representing the public and an indepen-
dent chair. The newspaper industry showed no enthusiasm to set up
the council, and only after two more years of negotiations and an
implied threat on the part of government to impose a statutory council
did the newspaper industry agree to form the press council.2
The British Press Council was founded in 1953. It was a voluntary
body, formed and sponsored by the press, not imposed by or answer-
able to the government. Its aims were to preserve the freedom of the
press while trying to ensure its responsibility, ‘to further the efficiency
of the profession and the well-being of those who practise it’,3 and to
resolve the grievances of those who felt they had been wronged. The
Council was initially composed of 25 newspaper proprietors, and later
included magazine proprietors, editors and journalists.4
The poor performance of the Press Council was subject to scathing
criticism. The Council was financed wholly by the industry, as its suc-
cessor is now. It did little to influence the development of professional
standards and failed to draw attention to the increasingly monopolistic
tendencies in the industry.5 In February 1961, the government
appointed a second Royal Commission (the Shawcross Commission)
to take another look at the ethics and economics of newspapering. The
Commission recommended a reformed press council which, in addition
to its existing duties, would scrutinize and give publicity to changes in
ownership and control of newspapers; publish up-to-date statistics;
ensure that newspapers carried the name of the company or individual
in ultimate control of its affairs; hear complaints from journalists of
undue influence from advertizers, and change the membership compo-
sition of the Council so as to include lay members in it.6
In 1963, on the advice of the Shawcross Commission, members of
the public were introduced into the Council in the proportion of five
of them to 20 press people. The Council also accepted the Royal
Commission’s recommendation to appoint an independent chairman.
The first lay chairman was Lord Devlin, appointed in 1964. He was a
distinguished and well-respected retired judge who had no connections
with the press. Fourteen years later, in 1978, the balance between
members of the public and members of the industry was made even
126 Media Ethics, Freedom and Responsibilities

with 18 representatives on each side, and an independent, voting

chairperson to tip the scales to the public side.
The Press Council had no power of sanction. The norm, however,
was to first try to resolve any matter through correspondence with the
editor of the offending paper. If no satisfaction were obtained, the
Council would then take action. Any newspaper against which a com-
plaint was upheld was required to publish in full the Press Council’s
adjudication on the complaint. Usually the publication was hidden on
the inside pages so no one would read it.7
In a period of 37 years, there were only 11 occasions out of hundreds
on which a publication failed to report the adjudication against it. It
was an accepted moral obligation. Only one of the 11 occasions
involved a national newspaper (the Daily Sketch), which no longer
exists. The other ten occasions involved small, specialized newspapers.
The Press Council acknowledged third-party complaints. They are not
acknowledged today by the Press Complaints Commission (PCC).8
However, the feeling was that the Press Council was ineffective,
without sufficient authority or powers. Its bureaucracy was very slow
and its work was little known to the public.9 The press did not regard
this body as an authority to decide matters because it never codified its
views, and because its decisions were inconsistent: different panels
decided similar cases differently (later on we shall see that the same
flaw exists also in the Canadian and Israeli press councils). In fact, the
Council did not enjoy much of a reputation, and did not gain the
respect of the press, or people outside the press.10
In 1973, the Younger Committee on Privacy analysed the Council’s
performance on that subject. Its view was that freedom of the press,
rather than the interests of complainants, was the Council’s main pri-
ority.11 It argued that the Council could not expect to command public
confidence in its work unless there was at least an equal membership
of public representatives. The Younger Committee also recommended
that the Council’s adjudication be published with a prominence equal
to that given to the original offending article, and that it should codify
its adjudication and keep the code up to date. Neither of these recom-
mendations was implemented.12
In 1974, Lord Shawcross became chairman of the Council, resigning
directorships of Times Newspapers and Thames Television in order to do
so. Robertson argues that he was an advocate, not a judge, and his
annual reports ‘were outspokenly partisan and moralistic’.13 That same
year, the third Royal Commission (the McGregor Commission) was estab-
lished, and after three years of work it issued its report. The McGregor
 The Work of the Press Councils 127

Commission made a detailed study of the Press Council, arguing that

the Council ‘had so far failed to persuade the knowledgeable public
that it deals satisfactorily with complaints against newspapers’.14 The
Commission held that the work of the Press Council gave the impression
that it was more concerned to protect publications from the public than
to raise standards in the interests of the public. The Commission also
noted the evident absence of standards that should be set down in a code
of conduct, the Council’s refusal to condemn inaccuracy and distortion,
and the ineffectiveness of its sanctions. The Commission found evidence
of ‘flagrant breaches of acceptable standards’, ‘inexcusable intrusions into
privacy’, and that there was ‘a pressing call to enhance the standing of
the Press Council in the eyes of the public and potential complainants’.15
The McGregor Commission urged the Council to publish a code
based largely on its earlier adjudication and decisions. However, the
Council felt then that it was still preferable to rely on building up its
jurisprudence rather than to seek to reduce practice and ethics to a
tight code.16 The Council also rejected the idea of seeking more funds
and publicity for its services, and undertakings from newspapers to
give front-page prominence to complaints upheld against them.17
Thus, the detailed and reasoned report made only little impact. A
former journalist was appointed as a ‘conciliator’ to try to negotiate
settlements before complaints were formally adjudicated, and adjust-
ments to the composition of the Council were made so that half of its
membership would come from the public. The Guild of Editors, the
National Union of Journalists (NUJ, a trade union), and the Institute of
Journalists (an older and much smaller independent, élite body)
selected the 18 nominees of the publishers’ organizations in England
and Scotland. A journalist could not be affiliated with both organiza-
tions, which traditionally competed with one another. Each of the 36
members served for a period of three years.
Of the 18 public representatives, any citizen was eligible for election
provided he or she did not have any connections with the press. A
selection (appointment) committee reviewed the applications and
chose the people. The main functions of the Press Council were three-
fold: first, to deal with complaints of the public against the press; sec-
ond, to deal with complaints of the press against any other body for
their conduct against the press. This was quite rare. The third function
was to institute on its own initiative a general inquiry into some
aspects of press behaviour. This was done occasionally, for instance, on
cheque-book journalism, and on the conduct of the press regarding a
particular story, the Yorkshire Ripper.18
128 Media Ethics, Freedom and Responsibilities

In 1980, the main union representing journalists, the NUJ, voted at

its annual conference to withdraw entirely from the Council because of
its ineffectiveness and incapacity for reform. The union felt that the
Council could never be free of the proprietors’ control and despite
increased lay membership still did not provide a representative forum
to deal with complaints. Instead the union decided to rely on its own
code of conduct and disciplinary procedures to maintain and improve
journalistic standards.19
At the end of the 1980s there was growing unease with regard to the
functioning of the press. One of the most notorious stories was pub-
lished by the Sun. Four days after the tragic Hillsborough stadium disas-
ter during the FA Cup semi-final (15 April 1989), the Sun tabloid
published an article headlined ‘THE TRUTH’. Its subsidiary headline
alleged, ‘Some fans picked the pockets of victims. Some fans urinated
on the brave cops. Some fans beat up PC giving kiss of life.’ Following
this publication, the Press Council received numerous complaints,
including a petition from the Merseyside Area Student Organization
with some 7000 signatures. The Council held that the article was one-
sided, unbalanced, offering no counter to the allegations, and its gen-
eral effect was misleading. The Council maintained that the headline
‘THE TRUTH’ was insensitive, provocative, and unwarranted.20 This
was one of the rare occasions on which a single story had a negative
effect on newspaper’s sales. Even today, the Sun does not sell well in
Liverpool.
That same year, 1989, two Private Members’ Bills were initiated in
Parliament, a Protection of Privacy Act, and a Right of Reply Act, to
enforce responsibility on the press.21 The government was never going
to give them the necessary time in the House to complete their
required stages. However, the Thatcher government certainly did not
want to get into the embarrassing position of having to use the govern-
ment vote whipping system to kill the bills off. To avoid that embar-
rassment, the government decided to form an inquiry committee to
consider the behaviour of the press and to suggest remedies for the
people who complained that the press had invaded their privacy.22
While this was going on, the Press Council drafted and adopted a code
of practice intended to reflect its earlier decisions and declarations, but
this was not conceived to be sufficient.
The issue of privacy was at the forefront of concern of the inquiry
committee. The committee, headed by Sir David Calcutt, held that ‘the
Press Council’s poor image derives from its ineffectiveness. This in turn
is the result of its nature, procedures and inadequate funding.’23 The
 The Work of the Press Councils 129

committee recommended, among other things, various procedural

changes, in particular, publication of a code of practice, establishment
of a hotline, a public commitment by publishers, a quicker handling of
complaints; they also recommended that the Press Council be replaced
by a new body, the Press Complaints Commission (PCC), similarly vol-
untary, but the recommendation was accompanied with the threat to
turn it into a statutory body armed with powers of law if the voluntary
system did not work. The report, issued in June 1990, instructed the
new body to concentrate on providing an effective means of redress for
complaints against the press. It concluded with the view that ‘the press
should be given one last chance to demonstrate that non-statutory self-
regulation can be made to work effectively. This is a stiff test for the
press. If it fails, we recommend that a statutory system for handling
complaints should be introduced.’24
Following the Calcutt Report, the new and much smaller body was
set up in 1991: the Press Complaints Commission. It had the same
offices; for a time, it had the director of the Press Council, and it
was (and still is) funded by the newspaper industry. It comprised 16
members, including the chairperson. A small commission selected the
members: initially nine were editors or senior press people, and six
were members of the public coming from the élite, ‘the great and the
good’. Now there are more public representatives than editors so as to
better serve the interests of the public.25
A special committee of editors, chaired by the then editor of the
News of the World, drafted a new Code of Practice for the newspaper
industry. The PCC is supposed to ensure that British newspapers and
magazines follow the letter and spirit of the ethical Code dealing with
issues such as inaccuracy, privacy, misrepresentation, and harassment.
The Commission ‘resolves complaints about possible breaches of the
Code and gives general guidance to editors on related ethical issues’.26
Some two years after the establishment of the PCC, at the govern-
ment’s request, Sir David Calcutt alone, this time without a committee,
reviewed the work of the PCC. The January 1993 Report argued that
the Press Complaints Commission was not an effective regulator of the
press. Sir David maintained that the PCC did not ‘hold the balance
fairly between the press and individual. It is not the truly independent
body which it should be. As constituted, it is, in essence, a body set up
by the industry, financed by the industry, dominated by the industry,
and operating a code of practice devised by the industry and which is
over-favourable to the industry.’27 Accordingly, the report recom-
mended replacing the self-regulatory body of the press with a statutory
130 Media Ethics, Freedom and Responsibilities

regime designed to ensure that privacy ‘is protected from unjustifiable

intrusion, and protected by a body in which the public, as well as the
press, has confidence’.28
Although Sir David said that his recommendations

are designed to make a positive contribution to the development of

the highest standards of journalism, to enable the press to operate
freely and responsibly, and to give it the backing which is needed,
in a fiercely competitive market, to resist the wildest excesses,29

the government of John Major did not accept his recommendations.

The feeling was that the formation of a statutory regime might hinder
freedom of expression and the right of the public to know. That feel-
ing was accentuated in the report of the National Heritage Select
Committee established after the Calcutt review, which felt that his rec-
ommendations were inappropriate for regulating the media. The Select
Committee preferred voluntary restraint combined with general laws
not aimed solely and specifically at the media.30
There are some fundamental differences between the Press Council
and the PCC. Whereas the Press Council was largely comprised of
people from the industry, the majority of members in the PCC are
independent people, including the chairperson. Previously, people
approaching the Press Council could not go to the courts.31 Now peo-
ple can approach the PCC and subsequently go to the courts. The PCC
cannot adjudicate if the issue is under court review, but it can adjudi-
cate when it is not under the court’s consideration. In addition, the
Code of Practice is written in clear language that lay people without
knowledge of law can comprehend. As we shall see, the Israel Press
Council adopted many features of the British model.
Every year over 2500 complaints are brought to the PCC. Most con-
cern possible breaches of the Code, and nearly all of those concerning
inaccuracy are resolved directly by editors. The Commission adjudi-
cates formally on the remainder. On the whole, 75 per cent of the com-
plaints are resolved without the need of adjudication, while 25 per
cent are adjudicated.32
In six years of operation there has not been a case when a newspaper
failed to publish the PCC’s adjudication when asked. Ms Anderson,
press officer of the Press Complaints Commission, ensured me that the
item appears in a place of comparable prominence to the original piece
that provoked the complaint. If the adjudication appears on the inside
page, and it is thought that it should be more prominent, the PCC can
 The Work of the Press Councils 131

demand that it be published again. So usually the press follows the

guidelines.33
However, this is the only power of the PCC – the requirement to
publish the adjudication. This seems to be too little to effectively con-
trol the conduct of the media. Much of the debate about the work of
the PCC in the last decade revolved around the media’s treatment of
the Royal family, especially Princess Diana. On 8 June 1992, the PCC
issued a press release saying that the recent

intrusive and speculative treatment by sections of the press (and,

indeed, by broadcasters) of the marriage of the Prince and Princess
of Wales is an odious exhibition of journalists dabbling their fingers
in the stuff of other people’s souls in a manner which adds nothing
to legitimate public interest.34

The manner and tone of the reporting of the private lives of the Prince
and Princess of Wales was without a doubt in breach of the Code of
Practice. The Code was supposed to provide the framework of decency
within which all competitors must work, but in practice the media,
most notably the tabloids, clearly betrayed it every day in their publi-
cations. Their ‘acceptance’ of the Code is still lip service at best.
A notable incident that took place in 1993 demonstrated the neces-
sity of such a regulatory body to be truly independent. Photographs of
Princess Diana exercising in a gym were published in the Daily Mirror.
The former chairperson of the PCC, Lord McGregor, was quick to act,
recommending that companies should not publish their advertize-
ments in the Mirror Group newspapers. This recommendation was way
beyond his authority. The PCC was supposed to be an adjudicating
body, with Lord McGregor as the presiding judge, but here he was giv-
ing his verdict not only before hearing the evidence but even before a
complaint had been made. In protest, the Mirror Group resigned from
the PCC. The resignation of such an influential media group was a
blow to the PCC and could have led to the breakdown of this body.
Lord McGregor realized the mistake he had made and within a day he
retreated from his suggestion and the Group rejoined the PCC.35
As long as the PCC is funded by the press, it will find it difficult to
bite, on justifiable grounds, the hand that feeds its activities.36 In this
regard Mr Charles Moore, Editor of the Daily Telegraph, commented:

The PCC is too frightened from the proprietors. See what happened
to Lord McGregor. McGregor acted foolishly, but it was not for the
132 Media Ethics, Freedom and Responsibilities

proprietors to tell him to go. The proprietors could bully the PCC.
They can direct their papers to attack the PCC. They might threaten
to leave the PCC.37

On 31 August 1997, the Princess of Wales and her lover were killed
in Paris. Following her death many people in Britain called for a re-
examination of the tension between the right to freedom of expression
and the right to privacy.38 Voices for governmental regulations were
heard, but with greater public support. Lord Wakeham, chairperson of
the Press Complaints Commission, conceded that the PCC’s Code of
Practice might change after consultation with editors.39 On 24 October
1997 the Newspaper Publishers Association sent a memorandum to all
national and Sunday newspaper editors, asking for their thoughts on
the amended Code of Practice.40 Bearing in mind the attitude to the
Code of Practice of leading personalities within the press I do not think
that significant changes will take place. About two months after
Princess Diana’s tragic death, I had an interview with Mr Robin Esser,
consultant editor of the Daily Mail, who said that self-regulation was
working quite well in Britain, and that there was no need to vest the
PCC with more powers.41 In turn, Rupert Murdoch was asked in an
interview whether he had any regrets regarding the conduct of his
papers during Diana’s life. He answered that his only regret was that he
had to pay too much for the paparazzi photos.42
On 12 November 1997, the Guardian published the results of a public
poll on the work of the PCC and on the Royal family. One of the ques-
tions was: ‘Do you think the current system of self-regulation by the
Press Complaints Commission is working?’ Of the respondents, 30 per
cent thought that the system was working; 59 per cent thought the
system was not working, and 12 per cent answered ‘Don’t know’.
Another question addressed the issue of privacy: ‘Would you be in
favour or against the introduction of a law giving people the right to
privacy?’ In response, 87 per cent were in favour; 10 per cent were
opposed, and 3 per cent answered ‘Don’t know’.43 This poll shows the
disbelief that the public shares with regard to the work of the press,
and the growing support for taking legal steps to protect individual pri-
vacy against press intrusion.

The Canadian case

The press councils in Canada were established following the recommen-

dations of the Davey Committee of 1970. Members of that Committee
 The Work of the Press Councils 133

thought that many of the problems of the press could be alleviated

by the existence of a watchdog organization that would monitor the
press the way the press monitors society. The Davey Report noted that
public confidence in the press was declining and that a press council
could help reverse this trend. The Report maintained that the media’s
tendency towards monopoly threatened to restrict the public’s access
to diverse and antagonistic sources of information, and that a press
council could meet this threat by helping to ensure that media monop-
olies did not act as though they owned the news. Furthermore, a press
council could help foster a sense of professionalism and contribute to
developing a set of standards for an occupation that badly needed them.
Finally, the Report said that even if a press council did nothing what-
ever, the very act of setting one up ‘would force journalists and publish-
ers, for the first time, to come together on an organised basis to think
about what they’re doing, how well they’re doing it, and why’.44
Davey recommended instituting a national press council. The
Committee recognized that Quebec’s special position made it desirable
and inevitable that the province have its own regional organization and
thought it was equally desirable that a counterpart organization for
English-speaking Canada be formed, and that the two bodies affiliate
themselves to form a national body.45 The media preempted the initia-
tive by pushing to establish local press councils. The first to be estab-
lished were the press councils in Windsor in 1971, and in Alberta and
Ontario in 1972.46 In 1973 the Quebec Press Council was formed.47 This
process continued well into the 1980s,48 following the strong recom-
mendation of the Kent Commission, which issued its report in 1981.49
Today there are provincial press councils in all provinces except
Saskatchewan.
Right from the Councils’ inception, the senior management of the
press were very touchy about the possibility of outsiders meddling in
their affairs, regarding the very idea of press councils with considerable
mistrust. The President of Sterling Newspapers, David Radler, character-
ized press councils as ‘an open forum for denunciations’.50 Murray
Burt, managing editor of the Winnipeg Free Press, did not like ‘the
prospect of editing over my shoulder, perhaps second-guessing three
months after the fact – or however long after the fact’.51 Equally harsh
opinions are voiced nowadays. Mr Eddie Greenspon, Ottawa Bureau
Chief of the Globe and Mail, regards the Ontario Press Council as
‘overzealous’ and admits that he does not care much about its work.
Greenspon thinks that ‘ethics is a personal matter, and I apply my own
judgement. I do not like the idea that bureaucrats tell me what to do.’52
134 Media Ethics, Freedom and Responsibilities

As stated, the Davey Report recommended the creation of a national

press council. Some ten years later, at the Kent Commission hearings, the
most common suggestion was to establish press councils in provinces.
The arguments were that provincial councils had an established practice,
that there was already an established jurisprudence that differed from
one place to another, and that the nature of the councils differed
from one place to another. All this presented obstacles from the outset
to the creation of a national organization.53
However, one of the major players in the Canadian media, arguably
the most influential, Conrad Black, came out in favour of a national
press council with the power to accredit journalists; he lobbied for a
journalism profession:

The much-bruited idea of a national press council with regional

divisions has considerable merit … .Without being endowed with
the disciplinary powers of a bar association (at least initially), the
council should have a composition capable of calling members to
account for their conduct when necessary, and should be vested
with genuine powers of moral suasion.54

Mr Black’s opinion is yet to be accepted and, furthermore, it is not

clear what he means by ‘genuine powers of moral suasion’ (emphasis
added), and to what extent such moral powers have, indeed, the ability
to persuade. Without being too cynical, I feel that the power to per-
suade is geared more toward the public than to the press.
In essence, the establishment of the press councils in Canada was a
preemptive measure. The press councils in Canada, as well as those in
Britain and Israel, serve a highly instrumental purpose: they exist to
show the public that the press industries are willing to self-regulate,
and that there is no need for external regulation. The question, how-
ever, is whether the press councils serve and represent the public to the
same degree that they serve and represent the press. My impression is
that the press councils (at least those in Quebec and Ontario) do not
work very hard for different reasons: the press industry does not really
want them to work hard; they are incapable of working hard; and the
people who work on the councils are perhaps satisfied with the current
situation. Let me explain.
Like the British case, the main sponsors of the press councils in
Canada (and Israel) are the federation of journalists and the pub-
lishers.55 The councils are said to be totally independent. But because
the newspapers might cut their fees to the councils if they feel unhappy
 The Work of the Press Councils 135

with their adjudication, the councils must be aware of their critics. As in

Britain, they find it difficult to bite the hand that feeds them.
Although people in Canada do not take much notice of the work of
the press councils,56 the media do not seem troubled by this, appar-
ently because the situation serves their interests. The media are not
thrilled to produce special programmes on their control mechanisms,
namely press councils, the ombudsman institution, and so on, because
they do not really want to make these institutions well known and
popular. As they see the issue, publicizing these institutions is asking
for trouble and, therefore, more complaints.
The staff of the Canadian and Israeli press councils is very small in
comparison with the British Press Council. They consist of between
two and four salaried people.57 The representatives on the councils – of
the journalists, the publishers, and the public – are volunteers. This
small staff is incapable of dealing with a large number of complaints,
and the media industries that sponsor them obviously do not wish to
enlarge it. They are happy with the limited work that the councils
accomplish. At the same time it seems that the small staff working on
the press councils do not take pains to publicize their existence and
their work because they are comfortable dealing with a relatively small
number of complaints.58 They are well aware of their limitations, and
that the likelihood of expanding the councils is slight.59
The fact that members of the press councils are volunteers creates
another problem. Usually they are fairly prominent people, who are
busy with their own work. They are unable, and unwilling, to invest a
lot of time in the work of the councils. Therefore, the councils meet
infrequently. The Quebec Press Council meets four or five times a year.
The Ontario Press Council meets three times a year. As we can see, a
vicious cycle is at work here. Press councils would need to meet more
often if there was more work, but nobody wants to generate more
work. Members of the councils and the media industry at large seem
satisfied with this arrangement. I call into question whether the inter-
ests of the public are best served in this way.
Those who do complain in Quebec and Ontario are often disap-
pointed with the process. Because the councils meet only a few times a
year, a complaint received immediately after one meeting will be dealt
with only at the next meeting a few months later. Usually it takes sev-
eral months, sometimes a year, from the time a complaint is received
until its adjudication.60 In that time, the public can forget what was
the matter, and the publication of the adjudication is out of context.
Mr Michel Roy, President of the Quebec Press Council, admitted that
136 Media Ethics, Freedom and Responsibilities

the process takes too long, and that people want to have a much
quicker response. He argued that the Council was respected, and later
in the same interview he testified that ‘if we find a complaint justified,
the newspaper will keep an eye for a week, and then get back to
business’.61
Moreover, its seems that at least part of the council’s work is not sys-
tematic. Michael C. Auger, President of the Journalists Federation in
Quebec, argued that the body is comprised of volunteers who have no
time to invest in the work of the Council, and that there is no respect
for the work of the Quebec Press Council, not only because it is con-
ceived as a weak body, with limited authority and a small budget, but
also because it gave different adjudications on similar issues.62 David
Pritchard, who studied the work of the Quebec Press Council, asserted
that its jurisprudence has never been indexed in any meaningful way,
and that essential principles have never been systematically distilled
from the hundreds of cases. Pritchard quoted J. Serge Sasseville, who
handled all the Quebecor’s dealings with the Council: ‘They don’t
know what they’re doing!’. He concluded that the jurisprudence of the
Council is in a ‘state of chaos’. Because the Council’s staff had no effi-
cient way to review previous decisions, and the Council did not have
the means to undertake the crucial indexing, the Council’s decisions
rarely cited precedents. Consequently, it was impossible for news
organizations to know what the landmark cases were.63 Inconsistency
is a problem shared by the press councils in the three democracies
under review.
In Canada, as noted, most people are oblivious to the work of the
Press Councils. Some try to look at the councils’ work in a positive
way. While believing that the press councils have little long-term
impact, and acknowledging that their impact on the daily working
of newspapers is also limited, these people argue that press councils
serve as a useful outlet for complaints.64 Others are far more critical.
Professor Enn Raudsepp said that the press is obliged to publish a sum-
mary of the Press Council’s adjudication, and it publishes the adjudi-
cation in brief, with a tiny headline at the bottom of the page. He
maintained that nobody is compelled to join the council, and con-
cluded, ‘it is a totally useless organisation, a window dressing’.65

The Israeli case

The foundations for the Israel Press Council were laid in 1956. As in
Britain, journalists realized that they had better do something themselves
 The Work of the Press Councils 137

before the government began to restrict their activities. At that time

there were tendencies and voices in the government to legislate a press
law and to restrict journalistic activities. In addition, penetrating criti-
cism was voiced by many journalists about their own daily activity.
Under this pressure, the journalists instituted a special committee,
called the Ethics Committee, whose role was to legislate ethics codes
and to form a body that would preempt ‘intervention from above’.66
Prior to the establishment of the Ethics Committee, the activists in
this initiative studied the situation in other democracies. They appro-
ached foreign journalists’ organizations and finally chose the British as
the model, according to which the Israeli journalists formulated their
first Code of Ethics. In the first five years of its activity, the Ethics
Committee did not receive many complaints. The most critical rulings
against newspapers were ‘severe reprimand’.67 In 1962 the National
Union of Journalists was established and a year later the Press Council
was formed. Many journalists supported the decision but there were
also cautionary voices. Gershom Schocken, then Editor of the
respected Ha’aretz newspaper, said that the press should be very careful
in instituting such a controlling body, and that ‘we should be careful
in obser-ving the limited and well-defined authority of such a body’.68
The National Union of Journalists, the Press Editors’ Committee, and
the Union of the Dailies Management decided to go ahead with the
initiative and to establish the Council. The former President of the
Supreme Court, Yitzhak Olshan, who in the mid-1960s became the sec-
ond president of the Council (the first was Zeev Scherf who at one
point became the Finance Minister in one of Mapai’s governments),
explained the rationale and the need for the Council:

Because in the modern era there are increasing points of friction

between the need for freedom of the press and the public interests,
the press realised that they should take it upon themselves to bridge
the gap between them.69

President Olshan served two four-year terms in office before he

stepped down and was succeeded by Attorney Yehoshua Rotenstreich.
Olshan thought that a free press was a public right rather than a privi-
lege of journalists. A journalist in the Press Council is first and foremost
a citizen, and he or she should not subject the Council to his or her pro-
fessional interests. He saw the prime aim of the Council as preventing
abuse of the freedom journalists enjoy through self-restraint. This, in
turn, would avert legislative attempts designed to curb such abuse.70
138 Media Ethics, Freedom and Responsibilities

President Olshan’s first motion was to propose that journalists would

not publish facts or rumours before substantiating them in accordance
with the best available data. His motion encountered objections from
the journalists’ representatives, who, Olshan said, preferred getting
scoops to safeguarding the public interest. After long deliberations, the
motion was accepted.71
Next, President Olshan strove to establish ‘Clarification Committees’
to consider complaints. He wanted these Committees to include public
figures who were not press professionals. Again, the motion encoun-
tered much opposition on the ground that journalists do not need to
be subjected to external control. After a long struggle, the motion
passed in the plenary.72 The same scenario took place when President
Olshan suggested including public figures in the plenary and on the
Executive Committee, all with voting rights. The motion was eventu-
ally adopted.
In 1968, the Press Council decided that it had the authority to dis-
cuss complaints also against papers that were not members of the
Council. In the event that a paper refused to take part in the delibera-
tion, the Council would be permitted to publish the refusal. The
Council considered itself the representative of all the media, without
regard to the question of membership. However, this authority was not
used systematically. On occasion the Council did deal with such com-
plaints. On many other occasions, especially when the complaints con-
cerned local papers, the Council refused to deal with them on the
ground that the papers were non-members.73
Like the British and Canadian councils, the Israel Press Council is a
voluntary body whose institutions are comprised of representatives of
the press (30 per cent); representatives of publishers and editors (30 per
cent), and public representatives (40 per cent). Sixty members sit in the
plenary organ, and ten in the presidency organ that implements the
decisions of the plenary. Recently there have been discussions to
expand membership in the plenary and the presidency. This is because
the cable television stations as well as Galei Zahal (the military radio
station) and the News Corporation of the Second Television and Radio
Authority wish to join the Council, and the three major dailies –
Ha’aretz, Yedioth Ahronoth, and Ma’ariv – demand more represen-
tatives.74 The functions of the Council are to protect freedom of the
press and information, to crystallize ethical codes, and to examine
complaints regarding violations of the codes.75
Until 1994 the Clarification Committees considered complaints and
submitted their conclusions to the Executive Committee of the Press
 The Work of the Press Councils 139

Council. Moshe Ronen, a past member in the Executive Committee,

testified that the deliberations in this body, which no longer exists,
had been partisan and biased. He recalls an incident when the
Executive Committee refrained from asking a newspaper to publish the
Clarification Committee’s ruling, which was very unpleasant for
the newspaper. In exchange, after a few minutes the Committee also
refrained from asking the rival newspaper to publish another unpleas-
ant ruling that concerned itself. In another incident, members of the
Executive Committee organized a lobby within the Committee against
the acceptance of the Clarification Committee’s ruling concerning
complaints of a journalist who became a politician. Those members
opposed the politician’s views and did not wish to grant him any form
of support.76
The Israel Press Council has undergone significant changes during
the past ten years or so. In 1988, Professor Yitzhak Zamir, former Legal
Adviser to the Government (Attorney-General), was elected President
of the Council. Prior to his acceptance of the appointment, Professor
Zamir clarified that he cared very much about freedom of the press and
that he objected to legal intervention to control the Council’s work. At
the same time, he emphasized the need for an effective mechanism of
press self-regulation, with the necessary ‘teeth’ to maintain profes-
sional ethics.77
Justice Zamir testifies that he had found an organization with virtu-
ally no office and no money. There were no protocols for meetings,
hardly any documentation at all. In essence, says Justice Zamir, he
found an organization under the leadership of one person: Dr Yehoshua
Rotenstreich, who served as President of the Council. President
Rotenstreich operated the Council: he convened the meetings, decided
on priorities, and ruled the body. Justice Zamir maintains that in prac-
tice President Rotenstreich ran the Council’s affairs from his well-to-do
law office, and with the help of the then Secretary-General, Yoseph
Karni, who was a volunteer. The Union of Journalists gave the
Secretary-General a desk and telephone in the Journalists’ House (Beith
Sokolov), and arranged for the typing of his letters. Beith Sokolov also
arranged rooms for the meetings of the Council’s organs. There were
not many complaints because there was not much public awareness of
the Council’s work. The journalists and editors wanted a council, but
did not want to invest in it. It appears, to use Professor Raudsepp’s
words, that the Council was an Israeli-made window dressing. It was
basically a figleaf to cover the indecencies and breaches of ethics on
the part of the journalists and their editors and publishers.
140 Media Ethics, Freedom and Responsibilities

More than a year before Professor Zamir took office, Dr Rotenstreich

died and the Council practically ceased operations during this period.
The Editor of Ha’aretz newspaper, Hanoch Marmari, later said that the
Council did not operate for a year and nothing happened. He regarded
this as proof that it was obsolete.78 President Zamir’s first priority was to
secure funds for the work of the Council. The Union of Journalists and
the Editors’ Committee provided a two-room office in the Journalists’
House. They also undertook to pay monthly membership fees to secure
a budget for the day-to-day work. Nevertheless, securing the funding
was not an easy task and the fees were hard to raise. After a few
months the Presidency of the Council started to work on drafting Press
Council bylaws and on revising the Professional Ethics Code. President
Zamir proposed to institute an Ethics Tribunal to replace the existing
Clarification Committees. The journalists did not like the idea of a
Tribunal to which they would be subordinated, and members of the
Executive Committee realized that the institution of the Tribunal
would render them obsolete because the decisions of the Tribunal
would no longer necessitate ratification of the adjudication by the
Committee. However, the Council bylaws and the Ethics Code were
slowly drafted and updated by the plenary, including the institution of
the Tribunal, until the discussion came to deal with the ‘teeth’: the
powers of the Tribunal.
For President Zamir, the Ethics Code and the mechanism for effective
self-regulation were the main things. The existing most severe sanction –
the publication of adjudication – was not to be ignored: journalists did
not like it. At the same time, it was not a painful penalty, and, more-
over, the public did not think it was a substantial sanction. Many times
the publication of adjudication was brief and the President’s protests
fell on deaf ears because the Council lacked real power. In such circum-
stances, when the journalists did not appreciate the work of the
Council, no wonder it also lacked public esteem. President Zamir
thought it was important that the public would see the sanctions as
significant, and would truly regard the Press Council as a shield to pro-
tect the press from legislation. He also thought that if the press did not
introduce these sanctions, the legislature would find it necessary to
intervene. Some press representatives calmed his worries by saying that
the politicians were afraid of the press and would never resort to legis-
lation.79 In essence, the industry wanted a limited Council with lim-
ited powers and abilities.
The journalists and editors were willing to accept the existing sanc-
tions: reprimand and publication of adjudication. President Zamir
 The Work of the Press Councils 141

pushed for two additional sanctions: a maximum fine of NIS10 000

(roughly US$7000 in 1992 terms) on newspapers, and a recommenda-
tion to suspend journalists for one month for severe breaches of the
Ethics Code. After many hesitations and long negotiations, the journal-
ists agreed, but the editors stood firm in their objection. Then the jour-
nalists retreated and joined the editors. President Zamir explained his
position and threatened to resign. When the resolution failed to pass
in the plenary owing to the objection of journalists and editors, who
were the majority (the public representatives supported the President’s
motion), Zamir resigned from office (in 1992). Because of this episode,
Justice Zamir thinks that the majority of the Council should consist of
public representatives who would truly care for the public interest.80
In 1993, Attorney Haim Zadok (a former Minister of Justice) was
nominated President of the Council. During his first year in office, he
pushed forward some of his predecessor’s initiatives. The Executive
Committee and the Clarification Committees were abolished. The
Ethics Tribunal was established in their place. In addition, the new
Press Council bylaws and the revised Professional Ethics Code were rat-
ified by the plenary in May 1994 and in May 1996 respectively.
The Press Council bylaws set forth the ends and functions of the
Council (as described above); explicate the identity of the Council’s
members, in accordance with the proportion described between jour-
nalists, editors, and publishers, and public representatives; set out pro-
cedures for the work of the Council, and the allocation of budget; and
discuss the roles of the Ethics Tribunal. The Professional Ethics Code
covers issues similar to those invoked in the British and Canadian
Codes: decency; fairness; truth; objectivity; privacy; coverage of speci-
fied segments of the population (victims; minors; patients, and so on);
racism; discrimination; freebies; confidentiality of sources, and so on.81
Complaints are dealt with according to the following procedure: the
President of the Council, or person/s appointed by him (usually
the Secretary-General),82 reviews the complaint upon its receipt. If the
complaint is found to be lacking any substance, he/she may turn it
down and inform the complainant of the reasoning. If the complaint is
not rejected, the Secretary-General passes the complaint to the
Council’s Legal Advisor or his/her deputy (usually to the latter). The
Deputy Legal Advisor reviews the complaint and if he/she thinks it is
prima facie valid, it is supposed to be sent within 48 hours to the media
organization that is the subject of the complaint with a request to sub-
mit a response within ten days. As in Britain, the Council does not deal
with complaints that are handled by judicial courts or by the police.
142 Media Ethics, Freedom and Responsibilities

Within ten days the complaint and the response to it are supposed to
be examined by the Council’s Legal Advisor (usually by the deputy).
The examiner is required to decide within 21 days from the receipt of
the complaint whether to pass it on to the Chairperson of the Ethics
Tribunal. The examiner will do so only if he/she thinks that there has
been prima facie violation of the Code of Ethics. Before the complaint is
passed to the Chairperson of the Ethics Tribunal, the President of the
Council is entitled to seek ways to settle the complaint without adjudi-
cation, provided that the complainant and the media organization
concerned agree to this.83
Once the Chairperson of the Ethics Tribunal has received the com-
plaint, he/she appoints a tribunal comprised of three members: a
public representative (Chairperson of the tribunal), a journalists’ repre-
sentative, and a representative of the publishers and editors. The
Chairperson of the Ethics Tribunal makes sure that the representatives
of the journalists, publishers, and editors are not from the same media
organ that is the subject of the complaint. The Tribunal is required to
submit its ruling within 21 days. The ruling is not required to be unan-
imous. A majority vote is binding. In the event that one of the sides
wishes to appeal against the ruling, an appeal must be submitted
within ten days. It will be adjudicated by a larger panel of the Tribunal,
comprised of five or seven members nominated by the Chairperson of
the Ethics Tribunal. Two of the members of the appeal panel must be
public representatives. The other three are representatives of the jour-
nalists, publishers, and editors.84
The Tribunal is supposed to weigh the interests of the Press Council,
and to serve as a guide and a ‘watchdog’.85 Members of the Tribunal are
elected for a period of three years and can be re-elected. In the event
that a complaint is found justified, the Tribunal can decide on one of
the following measures against the journalist and/or his/her newspa-
per: to issue a warning; to reprimand; to ask that an apology be pub-
lished; or to suspend the newspaper from the Council for a limited
period of time.86 The punishment of suspension is not a very wise alter-
native given that the Council is striving to have all newspapers become
members. In the words of President Zadok, this punishment saws off
the bough one is sitting on.87 Attorney Uri Slonim, Chairperson of the
Ethics Tribunal from the day of its establishment, some three years ago,
and Mr Bezalel Eyal, Secretary-General of the Council, said that the
most extreme measure taken by the Tribunal was to ask the paper con-
cerned to publish the Tribunal’s adjudication in a prominent place. The
newspapers usually comply with the rulings of the Tribunal.88
 The Work of the Press Councils 143

In 1994, the Press Council received 95 complaints; 27 complaints

were submitted to the Tribunal for deliberation and ruling, the others
were rejected or resolved prior to the Tribunal. In 1995, 94 com-
plaints were received, of which 19 reached the Tribunal. In 1996 the
Council received 92 complaints, and 18 necessitated the attention of
the Tribunal. In 1997 there were 148 complaints and 17 were passed to
the Tribunal. In 1998 the Council received 130 complaints, most of
which were pending resolution in 1999 owing to the dispute with the
journalists, publishers, and editors over the issues of representation
and funding.89 Secretary-General Eyal said that on average it takes
three months from the time a complaint is received until the Tribunal
resolves it.90 He nevertheless admitted that the process is longer now
because of the crisis that has paralysed the work of the Council for a
few months (see infra). My own examination of the Council’s files dur-
ing the three years 1996 to 1998, and the Council’s most recent Select
Tribunal Decisions and Judgements that covers the years 1994–95, shows
that it takes between one and thirteen months to resolve complaints
that necessitated the attention of the Tribunal, and that the average
time of dealing with complaints is six months.
In the review of the Canadian situation it was said that the Ontario
Press Council meets three times a year. Similarly, the plenary of the
Israeli Press Council is also supposed to meet three times a year. The
plenary decides on policy issues. The Ethics Tribunal of the Israel Press
Council deals with complaints and they meet ‘in accordance to need’.
The needs, it appears, are not overwhelming.
The Israel Press Council rarely met during 1998 because the journal-
ists, who fund 40 per cent of the Council’s budget, decided to stop the
funding. President of the Council Zadok tried to raise funds from inde-
pendent sources but did not succeed. After long deliberations, a new
arrangement is being formed according to which 80 per cent of the
budget will be funded by the publishers and editors, and only 20 per
cent by the journalists.91 The publishers and editors offered to cover
the entire budget of the Council but the Israel Union of Journalists
rejected this generous offer and agreed to take upon itself the burden
of 20 per cent. This new arrangement will grant more power to pub-
lishers, and the Council will be more cautious in scrutinizing them.
There will have to be a dramatic change to allow truly free and inde-
pendent work by the Council.92
President Zadok is, on the whole, satisfied with the Council’s work.
He thinks that it should remain voluntary, equipped with public–moral
sanctions, and that the developments – the new Professional Ethics
144 Media Ethics, Freedom and Responsibilities

Code of 1996, and the formation and work of the Ethics Tribunal –
strengthened the position of the Council. One positive sign that
reflects the status of the Council is the fact that its representatives are
consulted whenever members of The Knesset contemplate new press
laws. However, the fact that there are growing number of efforts to
legislate laws that would limit press freedom is alarming. President
Zadok is striving to have publishers and editors see the importance of
sitting on the Council, rather than sending third-rate representatives.
Subsequently President Zadok plans to convince prominent journalists
to become members. Right now, activists of the Israel Union of
Journalists sit on the Council, and these are not necessarily the most
prominent people in the industry. After solving the issue of representa-
tion, President Zadok thinks it will be easier to secure more funding
from publishers, editors, and journalists, which will foster more effec-
tive work by the Council. He does not think that funding should be
secured outside the press industry, and would like to think that more
people in the industry are more appreciative of the necessity in having
a strong Press Council, especially in the face of a growing wave of
attempts to legislate illiberal press laws.93
As a member of the Council’s plenary, I am far from satisfied with its
current conduct. The Council meets irregularly, at best three times a
year. It does not raise its voice with regard to important ethical con-
cerns on the public agenda. Its budget is ridiculous – NIS300 000 a year
(US$74 000) – and as a body it is unable to scrutinize effectively the
work of the press that funds the organization. Its image among the
public is one of a stagnant, ineffective body, whose work is obscure and
whose existence is questionable. There needs to be a major reassess-
ment of the work of press councils and a systematic reorganization of
their machinery in order to make these bodies effective entities that
really are able to fulfil their duties of supervision and monitoring the
media. The press councils should be equipped with more power, and
have the support of independent, non-partisan foundations that care
about the media and about democracy.
One of the criticisms against the work of the Ethics Tribunal con-
cerns its inconsistent adjudication. As with the British and Canadian
Press Councils, different panels of the Tribunal may decide similar
cases differently. In order to prevent this, the Tribunal’s decisions
should be published regularly, and in any event they should be circu-
lated among members of the Tribunal. The Tribunal’s judgments are
supposed to be published once in every year. However, because of the
limited budget and the past year-long dispute with the journalists,
 The Work of the Press Councils 145

publishers and editors, only one such selection of judgments was pub-
lished in 1996.
Professor Amos Shapira, Deputy President of the Press Council,
thinks that this problem of inconsistent adjudication needs to be
addressed and answered through more publication and circulation of
the Tribunal’s decisions among its members.94 Justice Zamir thinks that
one of the roles of the Secretary-General (Mr Eyal is a former journalist,
not a lawyer) and the Legal Advisor is to review all the rulings and see
that the working of the Tribunal conforms to the norms and prece-
dents.95 I believe this is a major issue and that members of the Tribunal
need to be consistent in their judgments to maintain their credibility.
Inconsistency is a prescription for justified grievances. Newspapers and
journalists might feel that justice would be ill served if they were found
guilty of violating the Code when another paper is acquitted after com-
mitting the same questionable deed. Furthermore, it is unjust to incon-
sistently penalize different papers for similar ethical misconduct. One
paper would be warned while the other would be suspended for the
same misconduct. Diversity of interpretations is fine within bound-
aries. Each panel of judges should not decide inharmoniously without
being aware of precedents.
In the current state of affairs, the Council cannot work effectively.
The Legal Advisor and deputy are volunteers. The Legal Advisor is a
successful lawyer who can hardly find time to review the complaints,
and the work is currently done by the deputy. The deputy has more
time but with limited energies. There is a need to secure a budget for
an independent salaried Legal Advisor. I asked Secretary-General Eyal
whether it was possible to resolve the problem of inconsistency at least
through a steady issuing of reports that cover the work of the Tribunal.
His answer was that he had prepared another selection of the Tribunal’s
rulings, but because of budget constraints he could not have it
published. As for my suggestion to circulate the rulings, at least among
the members of the Ethics Tribunal, this too was impossible. The
budget did not allow photocopying and sending decisions to all mem-
bers, and the secretary, who is working part-time, cannot devote time
and attention to mailing the more than 150 members of the
Tribunal.96
In February 1996, the Minister of Justice and the Minister of the
Interior established a public committee to check the legal arrange-
ments relating to the work of the press in Israel. The Committee,
headed by President of the Council Zadok, issued its report in
September 1997. With regard to the Press Council, the Zadok
146 Media Ethics, Freedom and Responsibilities

Committee concluded that its voluntary status and the fact that the
Council’s decisions were not binding hindered its ability to enforce the
Ethics Code. The Committee voiced its concern that the present situa-
tion permitted the press to ignore the professional and ethical rules,
and to conduct their affairs as they saw fit. The Committee therefore
recommended the enactment of a new obligatory arrangement that
would compel the press to abide by the Code of Ethics and, at the same
time would improve the public image of the press.97
The arrangement, accordingly, would consist of two parts: on the
one hand, the authority to write and impose the professional Ethics
Code would remain in the independent hands of the Press Council; on
the other hand, the law would determine that every journalist and
every newspaper ought to conduct their affairs as prescribed by the
Ethics Code, and that they must respect the rulings of the Ethics
Tribunal. At the same time, the Committee decided to refrain from pre-
scribing sanctions for the violation of the law: ‘The sanctions would be
public, professional and moral, determined by the Press Council’s
bylaws and its Code of Ethics.’98 This arrangement of imperfect legal
obligation was deemed necessary by the majority of the committee,99 in
order to balance the interest of strengthening the normative status of
the Code and in the interest of keeping the media independent of gov-
ernmental involvement in determining the contents of the Ethics Code.
The recommended law, the ‘Press Council Law’, would hold that ‘every
newspaper and every journalist will be obliged to maintain the Ethics
Code of the Press Council, and to abide by the Council’s Tribunal’.100
The Zadok Committee expressed concern that the self-regulatory
mechanisms of the media were not working as they should, and that
something should be done to enforce the Code of Ethics. I see no harm
in the enactment of the suggested law. I do not think that this law
could undermine the independent status of the press and it might
strengthen, in a positive way, the authority of the Press Council. On
this issue my view is similar to that of Attorney Slonim, who is also in
favour of such a law, thinking that it would strengthen the status of the
Council and would provide its Ethics Tribunal with ‘more teeth’.101 The
Secretary-General of the Council, Bezalel Eyal, does not think that
this law will pass in The Knesset in the foreseeable future.102 President of
the Council Zadok hopes that it will pass at some later point by
the Knesset.103 Justice Zamir is ideologically ‘unhappy’ with the
need to resort to legislation. He would have liked the Committee to spec-
ify significant sanctions for the Council. At the same time, Justice Zamir
thinks that this might be the solution in the present state of affairs, given
 The Work of the Press Councils 147

that the journalists and editors are unwilling to grant the Council further
sanctions, and reporters continue to breach the Ethics Code. This moder-
ate form of legislation could prove to be the beginning of a solution.104
The concluding section offers some further recommendations to
improve the work of the press councils.

Conclusion

Many people in the media portray any limitation on free expression as

the infringement of a virtue that lies at the heart of democracy. But
often this portrayal is exaggerated. We need to acknowledge the ‘demo-
cratic catch’: that the very foundations of democracy might open the
gate for denial of fundamental rights. Often the case is not one of a
zero-sum game. Quite the contrary: sometimes limitations on free
speech are required to safeguard basic liberal values, like the right to
privacy. The freedom to print and publish does not include the free-
dom to unjustifiably ruin one’s name, one’s honour and dignity.
Indeed, the British, Canadian, and Israeli societies have sensational
tabloid journalism that does not care much for the work of the press
councils, and prints whatever story is likely to increase its sales.
Financial and ethical considerations do not necessarily go hand-in-
hand. To ensure that some standards are maintained, the press (in
Israel and Quebec the media at large) must have a strong, independent,
and effective Press Council, with significant powers of sanction. The
Press Council should publicize itself, its powers, work, and adjudica-
tion, to make itself known to the public and to gain its trust. The bud-
get to run each council’s affairs should be far larger than it now is. We
have seen that the very limited budget of the councils does not allow
them to carry out their duties adequately.
We also witnessed that the media industries conceive the press coun-
cils more or less as lightning rods. They exist to show that the press
cares about ethics, that it grapples with ethical dilemmas, that it is
interested in what the public thinks; therefore there is no need for
restrictive legislation. Press councils are designed to receive and deal
with public grievances as well as to calm intolerant tendencies on the
part of the legislature.
There are many similarities between the press councils in Britain,
Canada, and Israel. The only powers that the press councils have is the
publication of adjudication against the papers. This is a very limited
power. Newspapers in Britain and Canada that have opted out and are
not members of the press councils are not obliged by their adjudication.
148 Media Ethics, Freedom and Responsibilities

The case is different in Israel, as described supra. In the three democra-

cies, papers that do publish adjudication of justified complaints against
them do not necessarily grant the adjudication a prominent place in
the newspaper.
Furthermore, the press councils are little known in their respective
countries. Large segments of all three societies are unaware of their
existence, and many of those who are aware of their presence do not
appreciate their work. This is because the press councils are voluntary
bodies, with little authority and power, with very limited abilities, and
they enjoy only qualified support of the industry. The press industries
want the councils to act as preventive bodies, to preempt measures
that would interfere with press freedom; they do not really want the
press councils to represent the public interests; they fund the work of
the councils and through this they secure their dependence. The result
is that the public conceives their work as a ‘sold game’, and most of it
remain indifferent or uninterested in what the councils do.
Some of the papers, while upholding the idea of press freedom,
abuse that freedom. This should not be allowed. As Anthony Smith
believes, it is essential that the press councils be accorded the powers to
humiliate, to expose hideous and ghastly publications and behav-
iour.105 These powers should include the following:

The publication of adjudication. Any newspaper against which a

complaint has been upheld should publish in full the Press
Council’s adjudication on that complaint. The publication should
appear in a prominent place. If the Council is unhappy with the
placement of the adjudication, it should be able to ask the paper to
republish the item on a specific page. The Council should be able to
decide where, on what page, the adjudication should be published,
so as not to allow newspapers to bury the adjudication-in-brief in
small letters on an inside page. We have seen that the publication of
adjudication is the only power that press councils possess, and that
it is not enough to adequately monitor the work of the press.

Additional powers should be granted to the councils which would

include:

The ability to impose significant fines on newspapers for gross mis-

conduct. These fines should be given to designated charities.
Because of the inherent conflict of interests, the fines should not be
made available to sponsor the work of the Press Council. After the
 The Work of the Press Councils 149

tragic death of Princess Diana in 1997, the British PCC contem-

plated this idea but in the end it was decided not to expand the
powers of control. Charles Moore and Anthony Smith are among
the experts who thought that the ability to impose fines was a good
idea that would enhance the effective working of the PCC. Justice
Zamir suggested the same for the Israel Press Council.106

The ability to suspend journalists for gross misconduct for a limited
period of time (see Justice Zamir’s initiative supra).

The ability to suspend publication of newspapers. A threat to sus-
pend publication even for one day would be effective, even more
than fines. In Britain, where competition between the tabloids is
particularly fierce, readers looking for their usual paper would not
find it, and would buy another paper, and might switch their alle-
giance.107

The Press Council should be comprised, as they are indeed now, of

public representatives and representatives of the press industry, of the
proprietors, and of the editors. A special and independent Select (or
Appointment) Committee, selected by leading publishers and promi-
nent journalists, would decide who would serve on the Council among
those who offer their candidacy. The independent public repre-
sentatives should have a majority within the body and include the
Chairperson (see Justice Zamir’s experience and analysis supra). This
would be to avoid a partisan majority and a leader who would care
more for the interests of the industry than for those of the public.108
Members of the Press Council should serve for a period of five years.
They could be re-elected by their colleagues for an additional five years
if the majority of members felt that they could continue carrying out
their duties and if the representatives felt that they were able to con-
tinue to commit themselves. After a maximum period of ten years,
members should be expected to retire so as to allow the introduction of
new members.109
Members of the Council should be paid for each meeting in which
they take part. We have seen that one of the inherent problems in the
working of all the press councils in the three democracies reviewed
concerns the voluntary character they assume. The councils are com-
posed of relatively prominent people who do not have the time and
the will to adequately meet the responsibilities involved. Volunteering
is a lofty idea but it hinders the effective working of the councils.
Serving on press councils should be considered a responsibility that
deserves some financial recognition. The exact payment should be
150 Media Ethics, Freedom and Responsibilities

decided in accordance with the budget of each council. In any event,

the payment should not be seen in terms of a salary but as a token of
appreciation for the commitment, time, and effort invested by the
members. Members of the Ethics Tribunal or Committees dealing with
complaints should convene every two or three months for a weekend
during which they would hear complaints and adjudicate. Members of
these organs deserve substantial payment for their involvement. Here I
follow the pattern set by the British Standards Council, an indepen-
dent body on behalf of the audience, whose roles are to consider com-
plaints, to conduct research and monitor the broadcasting media, and
to provide a forum for the discussion of wider issues. The 12 members
of the Council are paid for their work (each member is paid some
£14 000 a year, a sum that is more than a mere token of appreciation),
and they meet several times a year for concentrated sessions of two
to three days to adjudicate complaints.110 Complaints to the Press
Council should be made in writing, snail mail and electronic mail, free
of charge, as is the case now. The procedure should be fast, informal,
and available to ordinary people. One should not have to have a
lawyer to be represented.
Funding is an essential prerequisite for independence of the councils.
The press councils should be funded by an independent body – a char-
ity or a foundation – that cares about the press and understands its
significant role in a democratic society. This body is required to be apo-
litical, without any affiliation to the media. Existing bodies like the
Ford or MacArthur foundations would be a suitable model, or alterna-
tively special charities (‘Concerned Citizens for Accountable Media’)
could be founded. We must change the existing situation where propri-
etors fund the councils that are supposed to scrutinize their conduct.
There is room to suspect that the public interests are not adequately
served when the entire funding comes from the industry.
The press councils’ adjudication should be made in accordance with
a written Code of Ethics. The Code should be written in clear language
that lay people without knowledge of law can comprehend. The Code
of Ethics should not cover areas that are covered by the law but should
set normative standards for ethical and professional reporting. The
Code of Ethics should be circulated among media circles and among
the public at large so people will be aware of its existence. Editors
should see that the Code is on the desk of every reporter. This is not
the case now in most media organizations in Britain, Canada, and
Israel. As suggested in Chapter 5, the Code of Practice should be incor-
porated into the journalists’ contracts.
 The Work of the Press Councils 151

The adjudication of the press councils should be reported regularly

every several months, as is the case in Britain. It is assumed that if the
above recommendations were accepted, there would be sufficient
material to issue a report every two months or so. These reports should
be sent to all people involved in the work of the councils: reporters,
publishers, editors, and members of the public.
Finally, serving on the press council should be regarded as an honour
for media organizations, reflecting their keeping of ethical standards.
As suggested in Chapter 5, we should create a two-tier press system of
those who accept and abide by ethical standards and those who would
print any news that would sell. Incentives should be given to those
who adhere to ethical standards.
Appendix: Perceptions of
Media Coverage among the
Israeli-Jewish Public: a Reflection
of Existing Social Cleavages?1
(with Itzhak Yanovitzky)

Introduction

In recent years we have witnessed growing criticism of the conduct of the mass
media in Israel.2 This criticism is multidimensional (social, political, economic,
cultural, and ethical) and is grounded partially in facts and mostly in beliefs
concerning the conduct of the media. Among those who criticize the media are
representatives of the political right and left, Jews and Arabs, religious and secu-
lar, elite members and lay people, academics, judges, and media professionals
themselves.
Three typical critiques are raised against the media. First, that the media are
not an objective but a politically biased mediator. This criticism is common
among all political parties in Israel, on the right and the left, and is especially
prominent during political tensions, like election campaigns.3 Another common
criticism is that the Israeli media lack social responsibility. In this respect, some
express concern that the media’s irresponsible coverage of national events may
undermine state security4 or offend (unintentionally) public morale. One such
contention is that intense coverage of terrorist events, such as those that fol-
lowed the signing of the Oslo Accords in September 1993, increased public fears
and anxieties.5
Finally, some find the Israeli media’s pursuit of sensationalism owing to mar-
ket-driven competition to be a major flaw. The media, they argue, frequently and
needlessly invade the privacy of individuals, and consequently severely impair
the reputation of individuals, groups, or organizations.6 The use of hidden listen-
ing devices, on the instructions of the editor of the national newspaper Ma’ariv,
in the offices of its competitor Yedioth Ahronoth, is only one (although the princi-
pal) example of behaviour driven by unrestrained competition.7
These criticisms are not unique to Israel. Similar arguments are an integral
part of public discourse in most democratic societies.8 More often than not,
these arguments are not substantiated by empirical data. It may be argued that
in a considerable number of cases biased judgements lead to a perception of
biased media, and not vice versa.9
Both critics and supporters of the Israeli media ignore one of the most impor-
tant aspects of the debate: how do the media consumers themselves (that is, the

152
 Appendix 153

public) evaluate the conduct of the Israeli media? The goals of this case study
were (a) to explore the attitudes of the Jewish public toward the conduct of the
Israeli media,10 (b) to examine the extent to which there is a discrepancy
between public perceptions of the conduct of the media and their view of how
the media ought to behave, and (c) to try and explain this discrepancy as a
product of existing social cleavages in the Israeli society.

The media’s role in democratic societies: the ‘is’ versus

the ‘ought’

The mass media are widely assumed to occupy a central role in modern democ-
ratic societies. The media are the primary providers of essential information to
the public,11 the force that sets the public agenda,12 the ‘watchdogs’ of govern-
ment on behalf of the public,13 important agents of political socialization,14 an
important mechanism of mobilization,15 and the essential platform of participa-
tory democracy.16
To a large extent, these functions of the media derive from the democratic
thinking.17 Democracy is founded on principles such as majority rule while
respecting the rights of minorities;18 representation;19 participation;20 open dis-
cussion of public matters;21 tolerance,22 and equal access to societal resources.23
Despite differences between the popular perception and the elitist perception of
democracy24 and among the various definitions of participation in democratic
procedures (passive versus active, mass versus representation, and so on),25 the
participation of the citizens in political procedures constitutes an essential com-
ponent of democratic societies. The complex and diverse nature of modern soci-
eties requires institutionalization of various mediation procedures. The mass
media are widely assumed to play this role.26
This basic ideology about the role of the mass media in society highlights the
media’s role as impartial and objective mediators between government and pub-
lic opinion. The media, in service of the public, are expected to closely follow
government procedures and facilitate social changes when such changes are
needed. The media are also said to be objective, free of political biases and parti-
san considerations (such as economic profits, and personal or institutional ben-
efits), to maintain balanced reporting, uphold social responsibility, and protect
individual privacy.27 Such an image is common among both journalists28 and
politicians,29 and is increasingly evident in public attitudes.30
This ideal type of media conduct does not exist in reality and its future exis-
tence is probably unlikely. This pessimistic view stems from recognition of the
impact of the social, economic, and political environment in which the media
operate. In an era that is characterized by an ‘overflow of information’, the mass
media have no real way of covering all events or all aspects of a given story.
Moreover, the media are aided by news selection processes that are not and can-
not be objective.31 These procedures, in turn, are not immune to pressures and
manipulations exerted by politicians and bureaucrats, advertisers,32 pressure
groups,33 publishers,34 and media owners.35
The restrictions within which the media operate are not unknown to the pub-
lic, which tends to address media content with considerable cynicism and suspi-
cion.36 This tendency causes consumers to resist the messages they receive,37
154 Appendix

and it may even lead to increased hostility towards the media and media profes-
sionals. Indeed, criticism and hostility are often interwoven, and only rarely do
the media receive praise for their conduct.38 Hence, that perceptions of biased
media exist is a predictable consequence of the normative realm that surrounds
the mass media. The questions we should ask, therefore, are: against what stan-
dards are the media judged, and do these standards vary across individuals and
groups in society because of prior dispositions.
As in many current democracies, the status of the media in Israel is quite
low.39 For example, Yuchtman-Yaar found that the Israeli press, alongside the
Histadrut (the umbrella organization of major trade unions in Israel) and political
parties, were ranked the lowest on the trust-in-institutions scale.40 In a recent
study, Yuchtman-Yaar found that the media were ranked fourth out of six with a
46 mark on his 0 to 100 trust-in-institutions scale, after the Israel Defence Forces
(82), the Supreme Court (76), and the universities (71), and before the govern-
ment (39) and the Rabbinate (33).41 Similarly, Liebes and Ribak found that
about half of media consumers in Israel reported considerable mistrust of some
or most news they were exposed to.42 In this study, individual differences in
attitudes toward the media were accounted for by four variables: level of educa-
tion, level of religiousness, age, and ethnic origin. Higher levels of education
and religiousness, younger age, and Asian-African origin were found to be asso-
ciated with higher levels of discontent with the media. In the Israeli context
two of these variables are not only measures of sociodemographic characteris-
tics, but also correspond to existing cleavages in the Israeli society. They capture
the religious cleavage between orthodox and secular Jews and the ethnic cleav-
age between Jews of European-American origin (Ashkenazim) and Jews of Asian-
African origin (Sephardim).43
This study examined the extent to which the Israeli public is content with the
performance of the media. This is done by comparing the Israeli public’s norma-
tive perception of the media’s conduct (the ‘ought’) with its perception of the
media’s conduct in practice (the ‘is’). More specifically, we attempt to answer the
following questions: what does the public perceive to be the priorities of journal-
ists and media organizations when reporting the news? Does the public think
that media priorities should be changed and, if it does, according to what guid-
ing principles? Finally, are different levels of discrepancy between desired and
actual media conduct associated with current social cleavages in Israeli society?
It is hypothesized that a greater level of discrepancy between the desirable
and actual conduct of the Israeli media will be greater among (1) more educated
people, (2) more religious people, (3) younger people, and (4) people of Asian-
African origin. The assumptions underlying these hypotheses are as follows.
People with a higher level education tend to be more critical towards the con-
duct of the media because they tend to devote more thinking to the role of soci-
etal institutions.44 Younger people tend to be more cynical towards the conduct
of the media, as they are towards other social institutions.45 Religious people are
more alienated from the predominantly secular culture in Israel and from the
media that are part of this culture, and thus are more likely to regard the secular
media as obscene, anti-religious and dangerous.46 Yuchtman-Yaar found that
80 per cent of the ultra-religious expressed no trust or little trust in the media,
compared with 63 per cent of religious Jews, 39 per cent of moderately religious
Jews (massortiim), and 20 per cent of secular Jews.47 Jews of Asian-African origin
revealed a higher level of suspicion towards democratic ideals and towards the
 Appendix 155

media and their roles in society, especially when fulfilling these roles were per-
ceived as undermining state security and strength. This is because they tended
to be more hawkish in their views on security matters.48

Data and methods

The sample
Data for the purposes of the current research project were collected from tele-
phone interviews conducted by a survey company (Michshuv) on a random
sample of the adult (age 18;) Jewish population of Israel (N:501). The sample
characteristics are described in Table A1.

Table A1 Demographic characteristics of respondents in the sample (N:501)

Distribution (in percentages)

Sex
Men 46.0
Women 54.0
Ethnic origin
Asian-African 33.1
European-American 36.6
Native Israeli 26.1
Immigrants from the former 4.2
Soviet Union
Religiousness
Secular 58.0
Traditional 29.2
Religious 12.8
Age
18–34 48.2
35–54 37.2
55; 14.6
Education
Less than high school 7.9
High school education (12 years) 40.9
Greater than high school 51.2
Income*
Less than average monthly income 30.8
Average income 34.6
Higher than average income 34.6

* Average monthly household income in Israel at the time of the survey (June 1996) was
about NIS 4800.
Note: In comparison with the Central Bureau of Statistics demographic distribution, people
with higher education are slightly overpresented in the sample.
156 Appendix

The questions included in the questionnaire examined public attitudes regard-

ing the conduct of the media, and were similar to questions included in previ-
ous research in Israel and in the United States.49
Respondents were first asked to answer a general open question concerning
the principal considerations they believed underlay the production of news by
journalists. Next, respondents were asked about the values they believed guided
journalists in practice (the ‘is’) and those they believed should guide journal-
ists (the ‘ought’). Note that in contrast to past research, which focused on the
amount of trust granted to the Israeli media in general, we asked about the rela-
tive importance (on a scale from 1 to 10) of the following dimensions of media
conduct: social responsibility, protecting state security, pursuit of ‘scoops’, safe-
guarding individual privacy, objectivity in covering events, and the extent to
which the media follow the principle of the public’s right to know. The ratio-
nale for choosing the six dimensions derived from the fact that typical critiques
against the Israeli media were concerned with objectivity, social responsibility,
and the pursuit of sensationalism. The two other dimensions were the public’s
right to know, which was often quoted in Israel and elsewhere as the basic justi-
fication for freedom of expression and freedom of the press,50 and state security –
a highly sensitive issue in the Israeli culture.51
Also examined was the extent to which criticism voiced against the Israeli
media regarding the overly obsessive coverage of terrorist events was held by
the entire public, and not only by the élite. The years after the signing of the
peace Olso Accords in September 1993 were saturated with terrorist attacks
against civilian targets, launched by the Hamas and the Islamic Jihad and
designed to reverse the peace trend and to forestall the negotiations between
Israel and the PLO. Two additional questions aimed at examining public atti-
tudes regarding the superiority of the public’s-right-to-know principle when in
conflict with important values such as state security and individual privacy. The
two final questions canvassed public perceptions regarding two proposals that
were raised in Israel in recent years. One asked whether ethical–professional
guidelines similar to those imposed on medical and the legal professionals
should be imposed on journalists (see Shimon Peres’s suggestion in Chapter 5).
The other asked whether more severe restrictions on freedom of speech, includ-
ing freedom of the press, should be imposed in Israel (see Addendum).

Variables
The dependent variable in the research was the level of discrepancy between
attitudes about the desired conduct of the media (‘ought’ value) and attitudes
about the actual conduct of the media in practice (‘is’ value). For each respon-
dent, this level of discrepancy was calculated separately for each of the six
dimensions presented above by subtracting the ‘is’ value from the ‘ought’ value.
Possible values of this variable ranged from 0 (indicating lack of discrepancy) to
<10 (the highest possible level of discrepancy). The reliability of the items in
the questionnaire that composed this variable was measured by Cronbach’s
Alpha and was found to be satisfactory (␣:0.71). The independent variables
were sex, ethnic origin, level of religiousness (interval), age (ratio), level of edu-
cation (interval), and level of income (interval).
 Appendix 157

Results
Twenty-four different answers were given by the respondents to the open ques-
tion: ‘What are, in your opinion, the primary considerations that guide journal-
ists’ selection of news?’ Each respondent was given the opportunity to list up to
three considerations. The answers were grouped into five categories: (1) per-
sonal interests of journalists (that is, journalists’ opinions and political views,
personal reputation, and personal gain), (2) interests of media organizations
(political interests, audience preferences, scoops, sensations, economic profit,
and higher ratings), (3) social values (maintaining state security, protecting free-
dom of speech, pursuing the public’s right to know), (4) serving the public (report-
ing matters of public interest, revealing facts and ‘truths’, revealing failures and
corruption); (5) ethical considerations (not offending public emotions, weighing
the possible results of the publication, safeguarding individual privacy and dignity,
weighing the possible influence of the report on the behaviour and conduct of the
public). The distribution of these categories is presented in Table A2. Because
respondents were given three possibilities regarding the considerations that
guide the media, Table A2 presents the cumulative percentage of the considera-
tions mentioned. Hence, the cumulative percentage of all answer categories is
greater than 100 per cent.

Table A2 Public opinion about the considerations that are perceived to guide
the Israeli media news selection

Consideration Cumulative percentage of all subjects

Personal interests of the reporters 19.5

Interests of media organizations 50.0
Social values 17.0
Serving the public 71.0
Ethical considerations 6.0
Number of respondents 449

Table A2 shows that most respondents (71 per cent) indicated that providing
a service to the public as the main guiding consideration of media practices.
A substantial proportion of respondents also indicated partisan interests of
either media organizations (50 per cent) or individual journalists (19.5 per cent)
as the prime motive for reporting a certain story. Seventeen per cent thought
that social values guided journalists in their work, and only 6 per cent indicated
ethical considerations to be a factor in this respect. No statistically significant
cross-group (that is, sex, ethnic origin, education, income, and religiousness)
differences were found in this respect.
The next step of the analysis was to examine the level of discrepancy between
the ‘is’ and the ‘ought’. Figure A1 presents a comparison of average ‘is’ and
‘ought’ scores, indicating the relative importance respondents attributed to the
six dimensions of media conduct (that is, social responsibility, protecting state
security, pursuit of ‘scoops’, safeguarding individual privacy, objectivity in cov-
ering events, and the extent to which the media follow the principle of the
public’s right to know).
158 Appendix

10
9.3
9 8.78
8.24 8.39
8.09
8 7.46 7.53 7.66
7 6.27
6 5.57 5.28 5.66
5
4
3
2
1
0
Responsibility Security Scoops Privacy Objectivity Right to know

Desired media conduct score Actual media conduct score

Figure A1 A comparison of average desired and current media conduct scores

by six aspects of media conduct (N:493).

Figure A1 describes the level of discrepancy between the perception of how

the media ought to function and how they function in practice. The prime con-
sideration that ought to guide the media was state security. Following this con-
sideration, in decreasing order of importance, were objectivity in the reporting,
protecting individual privacy, social responsibility, the public’s right to know,
and finally, the pursuit of ‘scoops’.
In contrast, the average perception of the considerations that guided the
media in practice was altogether different. Respondents thought that the main
consideration that guided the media in practice was the public’s right to know.
Following this consideration were the pursuit of ‘scoops’, state security, social
responsibility, objectivity in reporting, and finally, safeguarding individual pri-
vacy. The greatest discrepancies between the desired and the actual existed with
regard to the dimensions of objectivity in the reporting, (d:93.12) and pro-
tecting the privacy of individuals (d:93.11). Clearly the Jewish public wished
that the media would give more weight to these considerations. Substantial dis-
crepancies also appeared between the ‘ought’ and the ‘is’ on the issues of social
responsibility (d:91.97) and state security (d:91.84). In addition, the media
were perceived as being overly motivated by the search for ‘scoops’ (d:1.96).
The public’s right to know was the only dimension where the discrepancy
between the ‘ought’ and the ‘is’ was relatively small (d:90.43).
Next we examined whether different sub-populations in the Jewish public dif-
fered in their level of discrepancy between ‘is’ and ‘ought’. We performed this
analysis in two stages. First we compared the level of discrepancy regarding each
of the six dimensions of media conduct across these sub-populations. Next, we
estimated the magnitude and significance of group differences by employing a
set of multiple-regression analyses.
Several interesting findings emerged from the first part of the analysis. The
average ‘ought’ score on all six dimensions was higher in the more educated
group (above high school education) than in the less educated (high school
education and less). An identical pattern was found regarding the average ‘is’
 Appendix 159

scores: those with higher education gave the media higher scores than did those
with less education on all six dimensions.
As for religiousness groups, secular people granted on average higher ‘ought’
scores on all six dimensions than traditional and religious people did. Secular
people also gave higher average ‘is’ scores on four dimensions (protecting pri-
vacy, safeguarding state security, demonstrating social responsibility, and pur-
suit of scoops) than did traditional and religious people. In general it seems that
as individual’s level of religiousness increases, his or her normative and actual
evaluation of media conduct decreases, hence the low ‘ought’ scores.
Negligible differences in the normative and actual evaluation of media con-
duct across age groups were apparent. Individuals from various age groups seem
to perceive the way the media ought to function in a similar manner, though
younger people tended to report slightly higher average evaluations of the
actual conduct of the media on all six dimensions.
Finally, average ‘ought’ scores among European-Americans were slightly higher
than those reported by Asian-Africans, Israeli natives, and new immigrants. By
contrast, Asian-Africans reported the lowest average ‘is’ scores of all ethnic groups.
To estimate the magnitude and significance of these group differences a series
of multiple-regression models were employed. The inherent benefit of employ-
ing multiple-regression analysis was teasing out the effects of individual inde-
pendent variables (that is, education, ethnic origin, religiousness, and age),
while controlling for the effects of other possible influences. In addition, this
analysis assisted us in avoiding possible spurious associations between the
dependent variable and the independent variables stemming from the interac-
tion of different independent variables. The dependent variable for the purposes
of this analysis was the level of discrepancy between the normative and actual
media conduct on each of the six dimensions. The independent variables
were introduced successively into the regression model according to their rela-
tive contribution to the explained variance in the dependent variable (that is, a
stepwise procedure). Only the significant results of this analysis are reported in
Table A3.
As expected, one central finding is that as the level of education increased,
the higher was the level of discrepancy. This is particularly true regarding the
dimensions of privacy and state security. In addition, the younger the person,
the higher the level of discrepancy regarding the privacy dimension. Finally, the
higher the level of religiousness, the higher the level of discrepancy regarding
all four dimensions in the analysis. As little variance existed in the level of dis-
crepancy regarding the dimension of the public’s right to know (see Figure A1),
no significant effects of demographic variables were found. Similarly, null effects
of demographic variables on level of discrepancy regarding the pursuit of scoops
were found. Finally, no interaction terms were found to have a significant effect
on the association between the dependent and independent variables.
In the next stage of the analysis we examined the answers respondents gave
to questions dealing with various aspects of their personal preferences of media
coverage. One question referred to the coverage of terror attacks that occurred
in the last months of 1996. Of those interviewed (N:490) 46.3 per cent replied
that the coverage was too extensive, 49 per cent thought that the coverage was
appropriate, and only 4.7 per cent thought that there was not enough coverage.
A weak yet significant negative correlation was found between the respondent’s
age and this variable (Gamma:90.16; p:0.001). Younger people felt slightly
more than older people that the media coverage of terrorism was too extensive.
160 Appendix

Table A3 Multiple-regressions of levels of discrepancy between desired and actual

media conduct on four dimensions of media conduct by level of education, level
of religiousness, and age: standardized regression coefficients (standard errors)

Objectivity Privacy Security Responsibility

Education 0.124 0.21* 0.12** 0.04

(0.30) (0.32) (0.31) (0.30)
Religiousness 0.25* 0.13* 0.08* 0.13*
(0.26) (0.28) (0.27) (0.26)
Age 90.09 90.17* 90.07 90.05
(0.13) (0.14) (0.14) (0.13)
Adjusted R-square 0.177 0.22 0.19 0.15
N 489 490 490 487

* p:0.05.
** p:0.001.

In addition, respondents were asked two related questions that dealt with the
extent to which the public’s-right-to-know principle was superior to other
values such as state security and privacy. Of the respondents, (N:493)
88.2 per cent thought that preference should be given to state security over the
public’s right to know. Only 4.9 per cent thought that we should decide the
issue in accordance with the extent of the likely harm to the state security, and
4.7 per cent stated that we should give preference to the public’s-right-to-know
principle. The rest of the respondents had no opinion on the matter.
With regard to privacy versus the public’s right to know, 62.5 per cent of the
respondents (N:496) thought that individual privacy should be prioritized over
the public’s right to know. Of the respondents, 14.1 per cent answered that the
decision should be made according to the potential harm caused to individual
privacy, while 19.6 per cent preferred the public’s-right-to-know principle under
any circumstances. No statistically significant demographic differences were
found regarding answers to both questions.
In the final stage of the analysis we examined the willingness of the Israeli
public to impose restrictions on journalists and on the freedom of press. Of the
493 respondents, 51.6 per cent were certain that there was a need to impose eth-
ical guidelines on journalists, similar to those imposed on medical and legal
professionals. An additional 32.9 per cent thought that there was a need to
impose ethical guidelines, while about 10 per cent thought that there was no
need to do so. Respondents with higher levels of education were more likely to
consider this option positively (␥:0.31; p:0.002).52
Finally, 18.8 per cent of the respondents (N:487) were certain that more
severe restrictions should be imposed on free speech and free press in Israel and
another 24.4 per cent thought that this should be done. By contrast, 30.1 per
cent did not think that there was a need to expand the existing restrictions and
 Appendix 161

a further 24.8 per cent absolutely rejected such a possibility. The willingness
to restrict free speech and free press was positively correlated with level of
religiousness (␥:0.29; p:0.001) and negatively correlated with the level of edu-
cation (␥:90.32; p:0.023).53

Discussion

The purpose of the present research was to analyse the Israeli public climate of
opinion regarding the conduct of the Israeli media. First, it appears that the public
is less cynical about the conduct of the media than the American public.54 While
between 30 and 35 per cent of the American public believe that the mass media
operate in the interest of the public, nearly half of the Jewish public in Israel
believes this according to the findings of this study. This finding is particularly
encouraging as the survey was conducted in proximity to the end of the election
campaign in Israel (June 1996), which was accompanied by fierce criticism of the
media by politicians and public figures. Although we are unable to estimate public
attitudes towards the media before the elections, it seems that the Israeli media
enjoy a higher appreciation than that accorded them in the United States.
However, it is noteworthy that the Jewish public in Israel is by no means naive
about the role of personal and institutional considerations in media coverage.
Another finding that emerged from our research is that different levels of dis-
crepancy between the normative and actual conduct of the Israeli media exist
on different dimensions of media performance. The greatest levels of discrep-
ancy between the ‘ought’ and the ‘is’ concern the dimensions of objectivity in
reporting and safeguarding individual privacy. On average, the Jewish public
feels that the media give insufficient weight to these dimensions. A significant
level of discrepancy also exists regarding the extent to which the media should
be guided by standards of social responsibility and safeguarding the state secu-
rity. In addition, the public feels that the media are overly motivated by the
pursuit of ‘scoops’. The only dimension where the ‘ought’ and the ‘is’ almost
converges is the public’s right to know.
The prevailing opinion that the media are guided primarily by the considera-
tion of providing services to the public can be explained by their success in
revealing failings and corruption in public office.55 However, the level of dis-
crepancy regarding other dimensions should not be ignored. Media organiza-
tions and professionals should take these findings into consideration and
ponder the reasons for these opinions and perceptions.
The findings of this research partially support the hypothesis that the level
of discrepancy regarding the normative and actual functioning of the media is
influenced by the existing social cleavages in Israel. For example, the more
religious people exhibit a greater level of discrepancy than less religious. This
finding is consistent with past research.56 We also found a positive correla-
tion between a higher level of education and a higher level of discrepancy in
relation to privacy matters. A higher level of education also predicts lower
willingness to constrain free speech and free press, and a higher level of support
for imposing ethical guidelines on journalists. Overall, the more educated peo-
ple tend to present a higher level of expectation concerning the conduct of
162 Appendix

the media and to evaluate their actual conduct more positively than the less
educated.
Finally, and slightly surprisingly, we acknowledge the weakening of ethnic
origin as a predictor of the level of discrepancy concerning the role of the
media. A possible explanation for this is the existing overlap between origin and
the level of education on the one hand (Ashkenazim are more educated than
Sephardim), and religiousness on the other (Sephardim tend to be more reli-
gious). However, this seems unlikely given that no interaction terms between
ethnic origin and other demographic characteristics were found to be signifi-
cant in the regression analysis.
As expected, the enduring prominence of security considerations in Israeli
society57 dictates, in the eyes of the Jewish public, restrictions on the conduct of
the media. The majority of the public conceives security considerations as supe-
rior to the principle of the public’s right to know. In this regard the media are
expected to follow the principle of the public’s right not to know. Similar find-
ings were reported by Yuchtman-Yaar.58 Yet in contrast to the argument that
media coverage of terror attacks is excessive,59 about half of the Jewish public
feels that the coverage is appropriate under the circumstances.
We observe with concern the relatively high proportion of the public
(43 per cent) that supports the imposition of restrictions on freedom of speech
and press. This finding could be interpreted as an additional expression of the
lack of democratic values among large segments of Israeli society. At the same
time, this message of dissatisfaction with regard to the conduct of the media
should receive appropriate consideration by all people involved in the media:
publishers, concessionaires, editors, and reporters. In any event, it is reiterated
that regulations and constraints on the media should be self-imposed, rather
than the products of the legislature and court rulings. But if the media do not
take ethical considerations seriously, there might be a necessity to resort to legal
measures.
 Appendix 163

Addendum

The survey questionnaire (given as a percentage of the

:501)
total responses N:
The survey was conducted by the Michshuv Institute, directed by Dr Rachel
Israeli, in June 1996.

Question: What are, in your opinion, the primary considerations used by media
reporters (journalists, radio reporters, and television reporters) to decide which
stories will be reported and which will not?

First answer 97.2

Second answer 47.5
Third answer 10.1

Question: When you think of good professional media (written press, televi-
sion, and radio), what importance should be given, in your opinion, to each of
the following factors? Rate on a scale from 1 (‘no importance’) to 10 (‘very
important’).

Social responsibility 98.8

Safeguarding state security 98.8
Publication of ‘scoops’ 98.8
Safeguarding individual privacy 98.8
Objectivity in reporting 98.8
The public’s right to know 98.8

Question: In your opinion, what importance do the Israeli media attribute to

the following factors? Rate on a scale from 1 (‘no importance’) to 10 (‘very
important’).

Safeguarding individual privacy 98.8

Objectivity in reporting 98.8
The public’s right to know 98.8
Social responsibility 98.8
Safeguarding state security 98.8
Publication of ‘scoops’ 98.8

Question: After the terror massacres at Beit-Lid, Jerusalem, and Dizengoff Street,
the evening newspapers and television broadcasts dedicated most pages and news
broadcasting to the coverage of the attacks. In your opinion, was the coverage
(98.4)
1. Too extensive
2. Appropriate
3. Insufficient

Question: When there is a conflict between the public’s right to know and state
security, which of the two considerations should take precedence? (do not read
the answers out loud) (98.8)
164 Appendix

1. The public’s right to know

2. State security
3. Depends on the level of offence caused to state security
4. I do not know

Question: When the public’s right to know and safeguarding individual privacy
(the right to privacy) come into conflict, which consideration should take prece-
dence? (do not read the answers out loud) (99.6)
1. The public’s right to know
2. Safeguarding individual privacy
3. Depends on the level of offence caused to individual privacy
4. I do not know

Question: There are professions, such as medicine and law, which require com-
mitment to certain guidelines of professional ethics. In your opinion, is there a
need for ethical guidelines that will be binding on media reporters?
1. Yes, certainly
2. Yes, I think so
3. I do not know/have any opinion
4. I think not
5. Certainly not

Question: In your opinion, would it be justified to impose more severe restric-

tions on freedom of speech, including freedom of the press in Israel? (97.8)
1. Yes, certainly
2. Yes, I think so
3. I think not
4. By no means/certainly not
5. I do not know/have any opinion

Profile
Education
1. less than complete high school (less than 12 years)
2. complete high school (12 years)
3. above high school (more than 12 years)

Where were you born? (if Israeli native, ask where the father was born)
1. Asia-Africa
2. Europe-America
3. The former Soviet Union
4. Israel (the father was born in Israel)
5. Israel (the father was born in Asia-Africa)
6. Israel (the father was born in Europe-America)

Is your family: 1. Secular 2. Traditional 3. Religious

Age: 1. 18–24 2. 25–34 3. 35–44 4. 45–54 5. 55–64 6. 65;

 Appendix 165

The average net income per month per household in Israel is about NIS 4 800. Is the
income in your household:
1. Much below the average
2. Slightly below the average
3. About average
4. Slightly above the average
5. Much above the average

Sex: 1. Male 2. Female

Notes

Introduction

1 For further discussion on the concept of rights, see Ronald Dworkin, Taking
Rights Seriously (London: Duckworth, 1977); Roland J. Pennock and John
W. Chapman (eds), Human Rights (New York: New York University Press,
1981); L. W. Sumner, The Moral Foundation of Rights (Oxford: Clarendon
Press, 1989); Michael Freeden, Rights (Minneapolis: University of Minnesota
Press, 1991); Hillel Steiner, An Essay on Rights (Oxford: Blackwell, 1994); Alan
Gewirth, The Community of Rights (Chicago: University of Chicago Press,
1996); Annabel S. Brett, Liberty, Right and Nature (Cambridge: Cambridge
University Press, 1997); Richard Dagger, Civic Virtues (New York: Oxford
University Press, 1997); Matthew H. Kramer, N. E. Simmonds and Hillel
Steiner, A Debate over Rights: Philosophical Enquiries (Oxford: Clarendon Press,
1998); Samuel Walker, The Rights Revolution (New York: Oxford University
Press, 1998); Michael J. Perry, The Idea of Human Rights: Four Inquiries (New
York: Oxford University Press, 1998); John R. Rowan, Conflicts of Rights
(Boulder, CO.: Westview Press, 1999).
2 See Alf Ross, Why Democracy? (Cambridge, Mass.: Harvard University Press,
1952); Robert B. McKay, ‘The Preference for Freedom’, New York University
Law Review, Vol. 34 (1959), 1182–227; Hugo L. Black, ‘The Bill of Rights’, New
York University Law Review, Vol. 35 (1960), 865–81; Milton R. Konvitz, First
Amendment Freedoms (Ithaca, New York: Cornell University Press, 1963);
Thomas I. Emerson, ‘Toward a General Theory of the First Amendment’, The
Yale Law Journal, Vol. 72, No. 5 (1963), 877–956; Alexander Meiklejohn,
Political Freedom (New York: Oxford University Press, 1965); idem, ‘Freedom
of Speech’, in Peter Radcliff (ed.) Limits of Liberty (Belmont, California:
Wadsworth Publishing Co., 1966), 19–26; Walter Berns, Freedom, Virtue and
the First Amendment (New York: Greenwood Press, 1969); J. A. Barron,
Freedom of the Press For Whom (Bloomington: Indiana University Press, 1973);
Aryeh Neier, Defending My Enemy (New York: E. P. Dutton, 1979); Harry
H. Wellington, ‘On Freedom of Expression’, The Yale Law Journal, Vol. 88
(1979), 1105– 42; Franklin S. Haiman, Speech and Law in a Free Society
(Chicago and London: University of Chicago Press, 1981); Lee C. Bollinger,
The Tolerant Society (Oxford: Clarendon Press, 1986); David A. J. Richards,
Toleration and the Constitution (New York: Oxford University Press, 1986);
Norman Dorsen, ‘Is There a Right to Stop Offensive Speech? The Case of the
Nazis at Skokie’, in Larry Gostin (ed.), Civil Liberties in Conflict (London:
Routledge, 1988), 122–35.
3 See, for example, Anthony Skillen, ‘Freedom of Speech’, in Keith Graham
(ed.), Contemporary Political Philosophy (Cambridge: Cambridge University
Press, 1982), 139–59; Andrew Belsey and Ruth Chadwick (eds), Ethical Issues in
Journalism and the Media (London: Routledge, 1992); Bud Ward, ‘Crossing the
Line?’, American Journalism Review, Vol. 17 ( January/February 1995), 12-–13;

166
 Notes 167

S. J. Heyman (ed.), Controversies in Constitutional Law: Hate Speech and the

Constitution (New York and London: Garland Publishing Inc., 1996); Owen
M. Fiss, Liberalism Divided (Boulder, Col.: Westview Press, 1996); Clifford
Christians and Michael Traber (eds), Communication Ethics and Universal
Values (Thousand Oaks, Cal.: Sage, 1997).
4 R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville, FL:
The University Press of Florida, 1994).
5 For a general discussion on the nature of regulation and the rationales for
media regulation, see Thomas Gibbons, Regulating the Media (London: Sweet
and Maxwell, 1998), 2nd edn, esp. pp. 4 –13.
6 Report of the Secretary’s Task Force on Youth Suicide (Washington, DC: U.S.
Government Printing Office, 1989).
7 Tom Kent, ‘The Time and Significance of the Kent Commission’, in Helen
Holmes and David Taras (eds), Media, Power and Policy in Canada (Toronto:
Harcourt Brace Jovanovich, 1992), p. 39.
8 Most public polls conducted in Israel are restricted to the Jewish population
because there is a problem accessing the Palestinian communities, and trans-
lation to Arabic is often required which makes polls very expensive.

1 Harm Principle, Offence Principle, and Hate Speech

1 I have benefited from discussions with Joel Feinberg, G. A. Cohen, and

Michael Freeden on various aspects of this chapter.
2 When people speak of the content of the speech, they may refer to its truth-
fulness or to its consequences or to both. Here I refer not to the truthfulness of
the speech but to the consequences that it is intended to bring about.
3 R. M. Dworkin, Taking Rights Seriously (London: Duckworth, 1977),
pp. 266–78; ‘Liberalism’, in A Matter of Principle (Oxford: Clarendon Press,
1985), pp. 181–204.
4 The view is that the right to freedom of expression has to be balanced
against the right to personal honour. Cf. the German Federal Constitutional
Court’s decision of 7 December 1976. BVerfGE, Vol. 43, 130 (at 137, 139).
5 Article I of the Grundgesetz provides: ‘The dignity of man shall be inviolable.
To respect and protect it shall be the duty of all state authority.’ Cf. Eric
Barendt, Freedom of Speech (Oxford: Clarendon Press, 1985), p. 165.
6 The two qualifications that were presented in the article are quite problem-
atic because it is difficult to reconcile them with his arguments in On Liberty.
One qualification is concerned with telling ‘the truth’, when that ‘truth,
without being of any advantage to the public, is calculated to give annoy-
ance to private individuals’. The other qualification is concerned with the
publication of false statements of facts. Cf. ‘Law of Libel and Liberty of the
Press’, in Geraint L. Williams (ed.), John S. Mill on Politics and Society
(Glasgow: Fontana, 1976), pp. 143–69. For further discussion, see R. Cohen-
Almagor, ‘Why Tolerate? Reflections on the Millian Truth Principle’,
Philosophia, Vol. 25, Nos. 1– 4 (1997), pp. 131–52; idem, ‘Ends and Means in
J. S. Mill’s On Liberty’, The Anglo-American Law Review, Vol. 26, No. 2 (1997),
pp. 141–74.
7 J. S. Mill, On Liberty (London: Dent, Everyman’s Edition, 1948), p. 114.
168 Notes

08 Mill acknowledged the importance of intentions in other places. For

instance, speaking of employing military commanders by ministers, Mill
said that as long as a minister trusts his military commander he does not
send him instructions on how to fight. He holds him responsible only for
intentions and results. ‘Appendix’, in Dissertations and Discussions, Vol. I
(New York: Haskell House, 1973), pp. 471–2.
09 Similar reasoning, as far as shortage of time is concerned, guided Mill in
supporting interference in the other’s freedom in the case of the unsafe
bridge.
10 Gitlow v. New York, 268 U.S. 652, 673 (1925).
11 Schenck v. U.S., 249 U.S. 47 (1919).
12 Note that in this instance it does not matter whether the intention of the
actor was only to do this specific act and not to bring about harmful conse-
quences. The actor may say that he only wanted to break the silence or to
attract public attention and that he did not think of creating panic. Still, he
will be held accountable for his action. The same reasoning guides us in
prosecuting those who press emergency buttons in trains just because they
cannot resist the temptation of ‘these beautiful red buttons’.
13 Z. Chafee, Free Speech in the U.S. (Cambridge, Mass.: Harvard University
Press, 1946), p. 397.
14 The Millian Harm Principle holds that something is eligible for restriction
only if it causes harm to others. Whether it ought to be restricted remains
to be considered; whereas this argument provides conditions in which a
harm ought to be restricted.
15 For a different view, see Wayne Sumner, ‘Should Hate Speech be Free
Speech? John Stuart Mill and the Limits of Tolerance’, in R. Cohen-Almagor
(ed.), Liberal Democracy and the Limits of Tolerance (Ann Arbor: University of
Michigan Press, 2000).
16 Mill, On Liberty, op. cit., p. 153.
17 John Skorupski, John Stuart Mill (London: Routledge, 1989), pp. 347–59,
speaks of the concept of moral freedom which is conceived by Mill as ratio-
nal autonomy. The autonomy which one values as an independent part of
one’s own good is the freedom to lead one’s life but this is not just ‘freedom
to do as one likes’ either. Autonomy is sovereignty over one’s own life, not
sovereignty over anyone else’s.
18 Mill, ‘Bentham’, in Dissertations and Discussions, Vol. I, p. 386.
19 In Utilitarianism (p. 45) Mill explained: ‘We do not call anything wrong,
unless we mean to imply that a person ought to be punished in some way
or other for doing it; if not by law, by the opinion of his fellow-creatures; if
not by opinion, by the reproaches of his own conscience. This seems the
real turning point of the distinction between morality and simple expedi-
ency. It is a part of the notion of Duty in every one of its forms, that a per-
son may rightfully be compelled to fulfil it … ’
20 One common argument, following Mill, is that action – if it endangers the
public or part of it – might have its consequences immediately; whereas
speech, if it has any endangering effect would have it in most cases some-
time in the future, thus allowing us a much wider range of manoeuvres.
The assumption is that an opinion does not necessarily entail action, and
that, in most cases, opinions do not automatically translate into action, and
 Notes 169

so there is enough time to stop ideas before they materialize into harmful
action. Even if a specific view might cause harm or risk of harm to others,
the danger is not immediate, so free speech has to be allowed.
21 There are situations in which the offence done by the defamatory remarks
is immediate and irreparable, so there is no time for a reply. An example
would be the publication of false accusations against a rival candidate on
the eve of elections.
22 Joel Feinberg, Offence to Others (New York: Oxford University Press, 1985),
pp. 1–2.
23 Ibid., p. 26.
24 T. M. Scanlon, ‘Freedom of Expression and Categories of Expression’,
University of Pittsburgh Law Review, Vol. 40 (1979), p. 527.
25 David Kretzmer, ‘Freedom of Speech and Racism’, Cardozo Law Review, Vol. 8
(1987), pp. 445–513. See also Justice Matza in Iddo Elba v. State of Israel, C.A.
2831/95 (September 1996, Hebrew); and Jean-Paul Sartre, who wrote that
anti-Semitism does not fall within the category of ideas protected by the
right of free expression (Reflexions sur la Question Juive, Gallimard, 2nd edn,
1954). In addition, several international law treaties justify restricting racist
speech on the grounds of the possible connection between racist expres-
sions and discrimination. Cf. Universal Declaration on Human Rights, Art. 7;
Convention on the Elimination of all Forms of Racial Discrimination, Art. 4;
International Covenant on Civil and Political Rights, Art. 20(2).
26 But when dealing with the right to participate in elections I am in favour of
the principled approach. This is because here we speak not of free speech
alone but of speech accompanied by the ability to legislate and to overturn
the raison d’être of democracy that favours liberty and tolerance. See
Chapter 3.
27 Accordingly, pornography may be dealt with under the Offence Principle.
This issue, however, requires a separate analysis.
28 Skokie had the highest number of Holocaust survivors of any city in the
United States, outside the city of New York.
29 In Brandenburg v. Ohio, 395 U.S. 444 (1969) the court ruled that the expres-
sion of a particular idea may not be suppressed unless it is both directed to
and likely to incite or produce imminent unlawful conduct. See also Hess v.
Indiana 414 U.S. 105 (1973).
30 Justice Clark dissented without submitting any explanation.
31 Skokie v. NSPA., 373 N.E. 2d, 21 (1978). Chief Justice Vinson wrote in Dennis
v. U.S. 341 U.S. 494 (1951) that the basis of the First Amendment is the
hypothesis that speech can rebut speech, propaganda will answer propa-
ganda, free debate of ideas will result in the widest governmental policies.
Powell J. argued in Gertz v. Robert Welch, 418 U.S. 323 (1974) that under this
amendment there is no such thing as a false idea.
32 Under constitutional precedents, the threat of violence could not serve as
an argument to prevent assemblies, rallies, and the like. Terminiello v.
Chicago, 337 U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951); Edwards v.
South Carolina, 372 U.S. 229 (1963); Street v. New York, 394 U.S. 576 (1969);
Tinker v. Des Moines, 393 U.S. 503 (1969); and Bachellar v. Maryland, 397 U.S.
564 (1970). In Britain the most notable case is Beatty v. Gillbanks, 9 QBD 308
(1882). The reasoning of the British courts on this issue is similar to that of
170 Notes

the American courts, holding that the hostile audience problem should not
serve as grounds for suppression of demonstrations.
33 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). See also Cohen v. California,
403 U.S. 15 (1971). In Great Britain the ‘fighting words’ doctrine came into
expression in Lord Parker’s phraseology, that a speaker must insult his audi-
ence in the sense of ‘hitting them with words’ for an offence to be commit-
ted (Jordan v. Burgoyne, 2 QB 744, 1963).
34 The ‘fighting words’ doctrine is not applicable to Skokie for it gives grounds
to punish a person who, in a face-to-face encounter, states something so
provocative and insulting as to cause an immediate violent response. This
was not the case in Skokie.
35 One may suggest, following Chaplinsky, that there may be room for a
‘fighting symbols’ doctrine. I disagree. The crux of the matter in the
‘fighting words’ doctrine is that certain utterances are seen as having no
essential part of any exposition of ideas, or rather utterances which do not
communicate any ideas. Therefore they are ruled out of the Free Speech
clause of the Constitution. On the other hand, the very using of a symbol
intends to convey a certain idea, otherwise it would not be considered a
symbol. It may be intended to insult or intimidate, but one cannot employ
the reasoning of Chaplinsky here: ‘fighting words’ seem to contain no idea;
symbols, by their very characterization as such, do contain a certain idea.
36 Feinberg, Offence to Others, op. cit., pp. 87–8. I find Feinberg’s arguments
confusing, for he also writes that the feelings of a Jewish survivor of a Nazi
death camp as a small band of American Nazis strut down the main street
of his town ‘cannot be wholly escaped merely by withdrawing one’s atten-
tion, by locking one’s door, pulling the window blinds, and putting plugs in
one’s ears’. Feinberg maintains that the offended state of mind is at least to
some degree independent of what is directly perceived (at p. 52).
37 For a similar line of argument, see Lee C. Bollinger, The Tolerant Society
(Oxford: Clarendon Press, 1986), p. 60. Bollinger further argues that we
should grant wide latitude to freedom of expression, even though the
speech in question might be harmful because of the societal benefits
derived from the lessons learned through toleration (p. 198). The contesting
argument holds that to tolerate speech abusing racial groups is to lend
respectability to racist attitudes, which in turn may foster an eventual
breakdown of public order. Barendt, Freedom of Speech, op. cit., p. 161.
38 Quite surprisingly, and without much explanation, Feinberg does not jus-
tify the decision which allowed the march. He states that one can have
sympathy for the A.C.L.U. decision to back the Nazis, but he disagrees with
this stand (Offence to Others, op. cit. p. 93). In a private discussion he admit-
ted that he did not make his position explicit enough and expressed regret
for not fully clarifying his reasoning.
39 Feinberg, Offence to Others, op. cit., p. 87.
40 The same conduct can be interpreted in totally different ways, according to
the motives of the agent. Witness a farmer who takes his old donkey to be
killed. If he wishes that the donkey not be subjected to further pain, we
would regard this as a humanitarian act. But if the same farmer takes his
donkey to be killed in front of the gates of the White House, in protest at
the high interest that the farmers of the South are required to pay, which
 Notes 171

brings many of them to bankruptcy, and states that a similar end awaits the
Democrat donkey (referring to the Democrat president), then this is surely a
political act and many humanitarians are likely to protest.
41 It would not make any significant difference if the Nazis were primarily
concerned to persuade the Skokie Jews of their views rather than deliber-
ately to cause offence.
42 In a private communication made to me on an earlier version of this essay.
Thomas Scanlon told me that he approves of the Skokie decision because he
did not like the idea that a local government passes an ordinance that is
effectively designed to prohibit speech it does not like. For further delibera-
tion, see Richard L. Abel, Speaking Respect, Respecting Speech (Chicago:
University of Chicago Press, 1998), pp. 15–19, 53.
43 Feinberg, Offence to Others, op. cit., p. 2.
44 Franklin S. Haiman, Speech and Law in a Free Society (Chicago: University of
Chicago Press, 1981), p. 425.
45 Ibid., pp. 425–6.
46 Ibid., p. 97.
47 Ibid., p. 154.
48 Bollinger, The Tolerant Society, op. cit., pp. 197–200. See also New York Times,
7 February 1978 (Dr William Niederland’s letter); D. A. Downs, Nazis in
Skokie (Notre Dame, Indiana: University of Notre Dame Press, 1985), chaps
1, 8; and the statement of Sol Goldstein, a concentration camp survivor
whose mother was killed by the Nazis, in Aryeh Neier, Defending My Enemy
(New York: Dutton, 1979), p. 46.
49 Thomas Scanlon in ‘A Theory of Freedom of Expression’, in R. Dworkin
(ed.), The Philosophy and Law (Oxford: Oxford University Press, 1977) con-
templates that an assault is committed when one person intentionally
places another in apprehension of imminent bodily harm. He maintains
that instances of assault necessarily involve expressions since an element of
successful communication must be present (p. 158).
50 There were several occasions in which the United States Supreme Court
considered whether certain types of speech are of only ‘low’ First Amend-
ment value. Among them are the ‘fighting words’ doctrine (Chaplinsky v.
New Hampshire 315 U.S. 568, 1942); incitement (Dennis v. U.S., 341 U.S. 494,
1951); obscenity (Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d
1498, 1957; Miller v. California, 413 U.S. 15, 1973); defamation (Beauharnais
v. Illinois, 343 U.S. 250, 1952; New York Times v. Sullivan, 376 U.S. 254, 84
S.Ct. 710, 11 L.Ed.2d 686, 1964), and false statements of fact (Gertz v. Robert
Welch, 418 U.S. 323, 1974). Geoffrey R. Stone, ‘Content Regulation and the
First Amendment’, William and Mary Law Review, Vol. 25 (1983), pp.
189–252 and Justice Scalia’s judgment in R.A.V. v. St. Paul, 505 U.S. 375
(1992), esp. 381–8.
51 Village of Skokie v. NSPA., 366 N.E. 2d 347 (1977), p. 357.
52 Donald Vandeveer, ‘Coercive Restraint of Offensive Actions’, Philosophy &
Public Affairs, Vol. 8 (1979), p. 177.
53 Robert C. Carson, James N. Butcher and Susan Mineka, Abnormal Psychology
and Modern Life (New York: HarperCollins, 1996).
54 Chapter 16, Section 8 of the Swedish Criminal Code (amended in 1982)
reads: ‘Anyone who publicly or otherwise in a declaration or other statement
172 Notes

which is disseminated to the public threatens or expresses contempt for an

ethnic group or some similar group of persons, with allusion to race, colour,
national or ethnic origin or religious creed, shall be sentenced for agitation
against ethnic groups by imprisonment of up to two years or, if the crime is
petty, to a fine.’ On the laws of other countries concerning racist speech see
Bollinger, The Tolerant Society, op. cit., pp. 253–6.
55 In addition, under the Race Relations Act of 1976 a speaker can theoreti-
cally be prosecuted if he uses in public threatening, abusive, or insulting
words. Section 70 of this Act inserted a new section (5A) into the Public
Order Act 1936. The section made it an offence for any person to publish or
distribute written matter or to use in any public place or at any public
meeting words which were threatening, abusive, or insulting in a case
where hatred was likely to be stirred up against any racial group. This law
altered the previous law in that it was no longer necessary, as it had been
under Section 6 of the Race Relations Act (1965), to prove that the accused
intended to stir up racial hatred.
It did not, however, confer any powers to ban demonstrations or meet-
ings by racialist organizations. It should also be said that prosecutions for
incitement to racial hatred require the consent of the Attorney General. For
a critique of the British stance see Ronald Dworkin, Freedom’s Law
(Cambridge, MA.: Harvard University Press, 1996), chap. 9.
56 A number of speakers in Parliament justified the legislation prohibiting
racist expressions on the grounds of the fear, alarm, and distress caused to
members of minority groups. W. J. Wolffe, ‘Values in Conflict: Incite-
ment to Racial Hatred and the Public Order Act 1986’, Public Law (1987),
p. 94.
57 Parkin v. Norman, (1982) 3, W. L. R. 523.
58 Cf. part III, ‘Racial Hatred’. According to the Attorney General 15 prosecu-
tions for incitement to racial hatred were brought between March 1986 and
November 1990 under part III of the 1986 Act, or under section 5A of the
1936 Act (180 Parliamentary Debates, 1990 –91, p. 88W).
59 Fifth Report of the Home Affairs Committee of the House of Commons
1979–80, HC 756, para. 51. Cf. Barendt, Freedom of Speech, op. cit., p. 198.
60 In 1948, the Home Secretary invoked the Public Order Act to ban all politi-
cal marches in London for three months after the Fascists marched through
Jewish areas of London. The same reaction was made in the 1970s after the
‘National Front’ decided to march through immigrant areas. For a general
discussion, see A. T. H. Smith, The Offences Against Public Order (London:
Sweet and Maxwell, 1987).
61 I also think that Skokie-like cases will not take place in Canada. This is
because the Canadian criminal law is extensive on prevention of hate
speech. Here we need to understand the basic ideologies that underlie the
Canadian and American cultures. The different ideologies bring the two
societies to confront the democratic ‘catch’ in very different ways. Canada
is perceived to be a mosaic, whereas the prevalent ideology in the United
States is one of a melting pot. Consequently, the attitude to government
and its roles is significantly different. In both countries minorities are
encouraged to speak and express opinions. In Canada it is acknowledged
that hate speech builds on differences and targets minorities for hatred.
 Notes 173

Hate speech is less tolerable because it destroys the mosaic that is so impor-
tant for the Canadian identity. The Special Committee on Hate Propaganda
in Canada (the Cohen Committee) noted that individuals subjected to
racial or religious hatred may suffer substantial psychological distress, the
damaging consequences including loss of self-esteem, feelings of anger and
outrage, and strong pressure to renounce cultural differences that mark
them as distinct. Report of the Special Committee on Hate Propaganda in
Canada (Ottawa: Queen’s Printer, 1966). Other study groups and court judg-
ments have echoed the Cohen Committee’s conclusion that hate propa-
ganda presents a serious threat to society. See the ‘Report of the Special
Committee on Participation of Visible Minorities in Canadian Society’,
Equality Now (Ottawa: Supply and Services, 1984). The Supreme Court con-
cluded that messages of hate undermine the dignity and self-worth of target
group members and ‘contribute to disharmonious relations among various
racial, cultural and religious groups, as a result eroding the tolerance and
open-mindedness that must flourish in a multicultural society which is
committed to the idea of equality’. Taylor et al. v. Canadian Human Rights
Commission et al., Dominion Law Reports, Vol. 75 (4th) (1990), 593– 4. I bene-
fited from discussion with The Honourable Justice Ian Binnie, The
Honourable Justice Peter de C. Cory and The Honourable Justice Frank
Iacobucci, The Supreme Court of Canada (28 September 1998). For further
deliberation, see Mayo Moran, ‘Talking about Hate Speech: A Rhetorical
Analysis of American and Canadian Approaches to the Regulation of Hate
Speech’, Wisconsin L. Rev., No. 6 (1994), pp. 1425–514; Warren Kinsella,
‘Challlenges to Canadian Liberal Democracy’, in R. Cohen-Almagor (ed.),
Challenges to Democracy: Essays in Honour and Memory of Isaiah Berlin
(London: Ashgate, 2000); Irwin Cotler, ‘Holocaust Denial, Equality and
Harm: Boundaries of Liberty and Tolerance in a Liberal Democracy’, and
Richard Moon, ‘The Regulation of Racist Expression’, both in R. Cohen-
Almagor (ed.), Liberal Democracy and the Limits of Tolerance, op. cit.
62 Note that international treaties speak of ‘the right to freedom of peaceful
assembly’ (emphasis added). Cf. Article II of the European Convention of
Human Rights; Article 20 of the Universal Declaration of Human Rights; and
Article 21 of the UN International Covenant on Civil and Political Rights.
63 Home Office, Review of Public Order Law, Cmmd. 9510 (White Paper). May
1985, pp. 23– 4.
64 It may be of interest to note that part II of the Public Order Act 1986 speaks
of imposing conditions on public processions, holding that if a senior
police officer reasonably believes that the procession in question ‘may
result in serious public disorder, serious damage to property or serious dis-
ruption to the life of the community … he may give directions imposing on the
persons organising or taking part in the procession such conditions as
appear to him necessary to prevent such disorder, damage, disruption or
intimidation’ (sect. 12, emphasis added). The courts, it seems, interpret the
above as being in line with the ‘breach of the peace’ reasoning.
65 Home Office, Review of Public Order Act 1936 (The Green Paper), April 1980,
esp. pp. 11–12, and Home Office, Review of Public Order Law (The White
Paper), May 1985, esp. p. 23. In both papers it was reiterated that consider-
ations of public order should be the sole test for banning of processions. For
174 Notes

my part, I do not see why in delicate or (if we resort to familiar phraseol-

ogy) ‘hard’ cases – such as Skokie – it has to be left to the police to decide
whether or not to allow the demonstration in question. Moreover, this rea-
soning does not fully consider the extent of harm that is inflicted upon the
target group, which cannot avoid being exposed to the offensive utterances.
66 Bollinger, The Tolerant Society, op. cit., p. 34. In the same vein, Aryeh Neier
(Defending My Enemy, op. cit., p. 142) rightly contends that speakers charac-
teristically carry their messages to places where their views are anathema.
However, he fails to distinguish incidents of protest from demonstrations
aiming to offend a specific target group, who cannot avoid being exposed
to it.
67 By discrimination is meant ‘any distinction, exclusion, restriction or prefer-
ence based on race, colour, descent, or national or ethnic origin which has
the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an actual footing, of human rights and fundamental free-
doms in the political, economic, social, cultural or any other field of public
life’. Cf. International Convention on the Elimination of All Forms of Racial
Discrimination. Article 1 (1).
68 R. M. Dworkin, Taking Rights Seriously, op. cit., pp. 266–78; ‘Liberalism’, in
A Matter of Principle, op. cit., pp. 181–204. It seems that Mill failed to ade-
quately address this issue of grounds for offence. I imagine he did not envis-
age that people who uphold anti-humanitarian and discriminatory
principles would become champions of free speech so as to enable them to
offend others.
69 See R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville,
FL: University Press of Florida, 1994), chap. 12.
70 See Herbert McClosky and Alida Brill, Dimensions of Tolerance (New York:
Russel Sage Foundation, 1983).
71 For Further deliberation, see Simon Lee, The Cost of Free Speech (London:
Faber and Faber, 1990), pp. 73–105; Joseph Raz, ‘Free Expression and
Personal Identification’, Oxford Journal of Legal Studies, Vol. 11, No. 3 (1991),
esp. pp. 319–23.
72 A similar line of reasoning guided the framers of the European Convention on
Human Rights when they enacted Articles 9, 10, and 17. Note in particular
the language of Article 17: ‘Nothing in this Convention may be interpreted
as implying for any State, group or person any right to engage in any activ-
ity or perform any act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a greater extent than is
provided for in the Convention.’ A case in point concerning the right to
freedom of expression in general and freedom of expression in the context
of elections in particular is Glimmerveen and Hagenbeek v/the Netherlands
(1980) Decisions and Reports, Vol. 18, E. Comm. H. R., pp. 187–208. For fur-
ther discussion of the social and legal aspects of hate propaganda, see
Frederick M. Lawrence, Punishing Hate (Cambridge, MA.: Harvard University
Press, 1999); James Weinstein, Hate Speech, Pornography, and the Radical
Attack on Free Speech Doctrine (Boulder, CO.: Westview, 1999); James B.
Jacobs and Kimberly Potter, Hate Crimes (New York: Oxford University Press,
1998); Samuvel Walker, Hate Speech (Lincoln: University of Nebraska Press,
1994).
 Notes 175

2 The Right to Demonstrate versus the Right to Privacy:

Picketing Private Homes of Public Officials

01 I am grateful to Martin Golding, Geoffrey Marshall, Amir Zolty and Bernard

Dickens for providing me with some relevant documents and court
judgments.
02 Carole Pateman, Participation and Democratic Theory (Cambridge: Cambridge
University Press, 1979); Richard Dagger, Civic Virtues (New York: Oxford
University Press, 1997), esp. chap. 9.
03 Walinsky v. Kennedy, 404 N.Y.S.2d 491, 495 (1977).
04 Martin v. City of Struthers, 319 U.S. 141 (1943), at 145.
05 Sylvia Arizmendi, ‘Residential Picketing: Will the Public Forum Follow Us
Home?’, Howard L. J., Vol. 37 (Spring 1994), 495, at 496, 548.
06 H.C. (High Court of Justice) 456/73. Rabbi Kahane v. Southern District Police
Commander (was not published); Justice Shamgar’s judgment in F.H. 9/83.
Military Court of Appeals v. Vaaknin, P.D. 42 (iii), 837, 851.
07 Justice Douglas in Public Utilities Commission v. Pollack, 343 U.S. 451, 467
(1952). See also Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L.Ed.2d
542 (1969); City of Wauwatosa v. King 182 N.W. 2d 530, 537 (1971). See
also ‘Supreme Court Denied Certiorari in Anti-Abortion Demonstrators’
Picketing Case’, West’s Legal News 3061, 1995 WL 910586 (19 October
1995).
08 Martin v. City of Struthers, 319 U.S. 141, 153 (1943).
09 Gregory v. City of Chicago, 394 U.S. 111, 125, 118, 89 S.Ct. 946, 953–54, 950,
22 L.Ed.2d 134 (1969).
10 Carey v. Brown, 447 U.S. 455, 471 (1980). In Rowan v. United States Post Office
Department, 397 U.S. 728, 737, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), Chief
Justice Burger stated that the concept that ‘a man’s home is his castle’ into
which not even the king may enter, has lost none of its vitality.
11 Daniel M. Taubman, ‘Comment: Picketing at the Doorstep’, Harvard Civ.
Rig. Civ. Lib. L. Rev., Vol. 9, No. 1 ( January 1974), pp. 95–123, at 121.
12 State v. Anonymous, Conn, Cir. 372, 274 A.2d 897, 898 (1970).
13 Professor Kretzmer writes that public leaders cannot lay the same claim not
to be ‘bothered’ by others as people who refrain from positions in public
life. This certainly does not imply that public leaders can be bothered at all
times of the day and night; it also in no way implies that private individu-
als can expect immunity from being bothered. What it does imply, how-
ever, is that one person’s bother may be another person’s harassment. A
picket outside the home of the prime minister or mayor need not be
regarded as harassment even if the same picket outside the home of a pri-
vate individual can be so regarded. David Kretzmer, ‘Demonstrations and
the Law’, Israel L. Rev., Vol. 19, No. 1 (1984), pp. 47–153, at 142.
14 In his comments on a draft of this paper, Georg Nolte writes that Germany
has so far not had any major court cases dealing with picketing in front of
the private homes of public figures. He supposes that the German courts
would take a rather restrictive approach in this respect. Although they
would start with ad hoc balancing and would not exclude the possibility of
picketing in certain exceptional circumstances, they would insist on the
right of privacy even of politicians.
176 Notes

15 See R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville,

FL: University Press of Florida, 1994), esp. chap. 5.
16 Wauwatosa v. King, 49 Wis. 2d 398, 182 N.W.2d 530 (1971); Walinsky v.
Kennedy, 404 N.Y.S.2d 491 (1977); Pursley v. City of Fayetteville, 628 F.Supp.
676, 678 (W.D. Ark. 1986); Frisby v. Schultz, 487 U.S. 474, 101 L.E.2d 420
(1988).
17 State of Maryland v. Schuller, 372 A.2d 1077 (1977); Bernard Carey v. Roy Brown
et al., 447 U.S. 455 (1980); United States v. Grace, 461 U.S. 171 (1983); Pursley v.
City of Fayetteville, 820 F.2d 951 (8th Cir. 1987).
18 Thornhill v. State of Alabama, 310 U.S. 88, 102 (1940).
19 Ibid.
20 Cf. Flores v. Denver, 122 Colo. 71, 220 P.2d 373 (1950).
21 United States v. O’Brien, 391 U.S. 367 (1968) concerning symbolic speech, a
person who burnt his registration certificate. The court held that sufficient
governmental interest was shown to justify his conviction. For further dis-
cussion, see Robert E. Rigby, Jr., ‘Balancing Free Speech in a Public Forum
vs. Residential Privacy: Frisby v. Schultz’, New England L. Rev., Vol. 24, No. 3
(Spring 1990), pp. 889–915.
22 Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S.Ct.
948 (1983).
23 United States v. Grace, 461 U.S. 171, 177 (1983).
24 Cornelius v. NAACP Legal Defense and Education Fund, Inc 473 U.S. 788
(1985).
25 Ibid., at 797.
26 Ibid.
27 This was reiterated, inter alia, in Klebanoff v. McMongale, 380 Pa. Super. 545,
552 A.2d 677 (1989); Kaplan v. Prolife Action League of Greensboro, 111
N.C.App. 1, 431 S.E.2d 828 (1993). See also Lyle R. Smith, ‘Pursley v. City of
Fayetteville: Flat Bans on Residential Picketing Held Unconstitutional’,
Arkansas L. Rev., Vol. 41 (1988), pp. 861–74, at 863–66.
28 Frisby v. Schultz, 487 U.S. 474 (1988). 108 S. Ct. 2495 (1988). Following
Frisby, in Barrington v. Blake, 568 A.2d 1015 (R.I. 1990), the Supreme Court
of Rhode Island ruled that a town ordinance on picketing did not violate
First Amendment insofar as it prohibited focused residential picketing. It is
difficult to reconcile this construction with the plain language of the ordi-
nance, which prohibited picketing ‘in front of, adjacent to or with respect
to any property used for residential purposes’. Barrington v. Blake, at 1017.
29 Frisby v. Schultz, at 2504.
30 Ibid., at 2507.
31 Pro-life activists murdered a few abortionists in recent years. See Planned
Parenthood of the Columbia/Willamette Inc. et al v. American Coalition of Life
Activists, No. 95-1671-JO, 41 F.Supp.2d 1130 (March 16, 1999). See also
Tompkins v. Cyr, 995 F.Supp. 664 (N.D. Tex. 1998), at 671–673; Tompkins v.
Cyr, 2000 WL 96076 (5th Cir. Tex. 2000), at 2; K-T Marine Inc. v. Dockbuilders,
251 N.J. Super. 107, 597 A.2d 540 (1991); Boffard v. Barnes, 248 N.J. Super.
501, 591 A.2d 699 (1991).
32 Dayton Women’s Health Center et al. v. Enix et al., 68 Ohio App. 3d 579, 589
N.E.2d 121 (1991), at 126; Perry Education Assn. v. Perry Local Educators Assn.,
460 U.S. 37, 103 S.Ct. 948, 74 L.E.2d 794, 804 (1983), at 955.
 Notes 177

33 Ramsey v. Edgepark, 66 Ohio App.3d 99, 583 N.E.2d 443 (1990), at 451. In
Valenzuela v. Aquino, 763 S.W.2d 43 (1989) the Texas Court of Appeals,
Kennedy J., held that injunction prohibiting residential picketing within
half a mile of owner’s home was overly broad and unnecessarily infringed
picketers’ First Amendment rights. On the other hand, a year later, the same
Court of Appeals held that a permanent injunction mandating abortion
opponents to cease picketing within 400 feet of centre of lot upon which
physicians’ home was located was content-neutral, narrowly tailored limita-
tion on place and manner of picketers’ expressive activities, and provided
ample alternative avenues of communication. Thus, the said injunction did
not violate First Amendment. Valenzuela v. Aquino, 800 S.W.2d 301 (1990).
34 Madsen v. Women’s Health Center, 114 S.Ct. 2516 (1994); Trojan Electric and
Machine Co. v. Heusinger et al., 162 A.D.2d 859, 557 N.Y.S.2d 756 (1990).
35 Hazel A. Landwehr, ‘Unfriendly Persuasion: Enjoining Residential Picketing’,
Duke L. J., Vol. 43, No. 1 (October 1993), pp. 148–88.
36 Chalfont v. Kalikow, 392 Pa.Super. 452, 573 A.2d 550 (1990).
37 Madsen v. Women’s Health Center, 114 S.Ct. 2516 (1994). See also Everywoman’s
Health Centre Society (1988) et al. v. Bridges et al., 109 Dominion Law Reports
(4th) where three defendants were found guilty of civil contempt of court
after they violated a restraining order which was issued to prevent them
from ‘watching or besetting’ an abortion clinic in Vancouver, Canada.
38 Lawson v. Murray, 119 S. Ct. 387 (1998), at 387.
39 Ibid. See also Alan Phelps, ‘Picketing and Prayer: Restricting Freedom of
Expression Outside Churches’, Cornell L. Rev., Vol. 85 (November 1999),
271, at 284.
40 State of Maryland v. Schuller, 372 A.2d 1076 (1977).
41 Roy Brown et al. v. William J. Scott et al., 462 F. Supp. 518 (U.S. District Court,
N.D. Illinois, 27 September 1978).
42 State of Maryland v. Schuller, 372 A.2d 1077 (1977).
43 Ibid., at 1080.
44 Brown v. Scott, 602 F. 2d 791 (1979).
45 The Illinois Residential Picketing Statute provides:

It is unlawful to picket before or about the residence or dwelling of any

person, except when the residence or dwelling is used as a place of busi-
ness. However, this Article does not apply to a person peacefully picketing
his own residence or dwelling and does not prohibit the peaceful picket-
ing of a place of employment involved in a labor dispute or the place of
holding a meeting or assembly on premises commonly used to discuss
subjects of general public interest.

46 Brown v. Scott, 462 F. Supp. 518, at 525.

47 Ibid., at 528.
48 Hague v. CIO, 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939).
49 Brown v. Scott, 462 F. Supp. 518, at 530.
50 Ibid., at 532.
51 Bernard Carey v. Roy Brown et al., 447 U.S. 455 (1980), 100 S.Ct. 2286, at
2289. Justice Rehnquist filed a dissenting opinion in which Chief Justice
Burger and Justice Blackmun joined.
178 Notes

52 Hudgens v. NLRB, 424 U.S. 507, 515, 96 S.Ct. 1029, 1034, 47 L.Ed.2d 196
(1976).
53 Carey v. Brown, 447 U.S. 455, at 2291.
54 Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 536, 75 L.Ed. 1117
(1931).
55 Cox v. Louisiana, 379 U.S. 559, 563– 4, 85 S.Ct. 476, 480, 13 L.Ed.2d 487
(1965). After United States v. Grace 461 U.S. 171 (1983), this dictum should
be reconsidered. The court said in Grace that it is protected speech to picket
outside courthouse.
56 Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).
57 Teamsters v. Vogt Inc., 354 U.S. 284, 77 S.Ct. 1166, 1 L.Ed.2d 1347 (1957).
58 Erznoznik v. City of Jacksonville, 422 U.S. 205, 209, 95 S.Ct. 2268, 2272, 45
L.Ed.2d 125 (1975).
59 Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 2509, 101 L.Ed.2d 420 (1988).
For further discussion, see Randall M. England, ‘Residential Picketing:
Balancing Freedom of Expression and the Right to Privacy’, Missouri L. Rev.,
Vol. 54 (1989), pp. 209–23.
60 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem (not pub-
lished), para. 1 in Justice Levine’s judgment.
61 In Northern Ireland the right to march was used by the Protestant majority
to intimidate the Catholic minority. This is not the intention of the Free
Speech Principle.
62 Garcia et al. v. Gray et al., 507 F.2d 539 (U.S. Court of Appeals, Tenth Circuit,
17 December 1974).
63 United States v. Pyle, 518 F. Supp. 139, 160 (E.D. Pa. 1981).
64 Grayned v. City of Rockford, 408 U.S. 104 (1972).
65 See Justice Brennan’s dissenting opinion in Frisby v. Schultz, 487 U.S. 474,
108 S.Ct. 2495, 2507, 101 L.Ed.2d 420 (1988), and Hugh J. O’Halloran,
‘Balancing First Amendment Rights to Freedom of Expression Against the
Rights of an Individual to Privacy in the Home. Schultz v. Frisby’, Marquette
L. Rev., Vol. 71 (1987), pp. 201–16.
66 For contrasting views, see Justice Levine’s judgment in H.C. 2481/93. Yoseph
Dayan v. Police Chief District of Jerusalem, infra; ‘Picketing the Homes of
Public Officials’, Un. of Chicago L. Rev., Vol. 34, No. 1 (Autumn 1966),
106– 40; Alfred Kamin, ‘Residential Picketing and the First Amendment’,
Northwestern U. L. Rev., Vol. 61, No. 2 (May–June 1966), pp. 177–236.
67 In summing up the British stance I rely, inter alia, on communications and
conversations with Geoffrey Marshall, Eric Barendt and David Feldman.
I thank them for their comments and advice. For further deliberation, see
D. Feldman, ‘Protest and Tolerance: Legal Values and the Control of Public-
Order Policing’, in R. Cohen-Almagor (ed.), Liberal Democracy and the Limits
of Tolerance (Ann Arbor: University of Michigan Press, 2000).
68 See Emma Wilkins, ‘Princess wins court bar on photographer’, The Times (16
August 1996), p. 1, column e. Princess Diana’s affidavit gives details of Mr
Stenning’s behaviour towards her over an extended period. See The Times
(17 August 1996), p. 2. Earlier in 1996, a German doctor had been stalking
the Princess. He was arrested and bailed after waving a placard outside the
health club where she worked out in January (see The Times,
 Notes 179

13 January 1996, p. 1, column g); arrested again after distributing leaflets

outside Harrods shortly before she was due to go there (The Times, 8 March
1996, p. 2, column g); and was later subject to a court order barring him
from going within 8 km of the places where she was to attend engagements.
69 See the judgment of Sir Thomas Bingham M.R. in Burris v. Azadani [1995] 4
All ER 802, C.A.
70 Under Public Order Act 1986, Part I, Section 5 (3) (c), it is a defence
for accused (press photographers, protesters, and so on) to show that his
or her conduct was ‘reasonable’. For further discussion, see Helen Fenwick
and Gavin Phillipson, ‘Confidence and Privacy: A Re-examination’,
Cambridge Law Journal, Vol. 55, No. 3 (November 1996), pp. 447–55, esp.
448–50.
71 See Roy Jenkins, Gladstone (London: Macmillan, 1996), p. 268.
72 Vorspan argues that particular characteristics of nuisance law made it an
effective tool to regulate labour picketing. It was easily adaptable to judicial
purposes; it imposed on plaintiffs and prosecutors minimal evidentiary
requirements; it ostensibly applied to all persons impartially, and it oper-
ated independently of legislative judgments in the area of labour relations.
Rachel Vorspan, ‘The Political Power of Nuisance Law: Labour Picketing and
the Courts in Modern England 1871–Present’, Buffalo L. Rev., Vol. 46 (Fall
1998), 593, at 697.
73 For further deliberation, see David J. V. Jones, Rebecca’s Children: A Study of
Rural Society, Crime and Protest (Oxford: Clarendon Press, 1989).
74 Carey v. Brown, 447 U.S. 455, esp. 478–79 (1980).
75 Frisby v. Schultz, 487 U.S. 494, 108 S.Ct 2495, 2507 (1988).
76 Frisby v. Schultz, 487 U.S. 494, 108 S.Ct 2495, 2510 (1988).
77 Hubbard v. Pitt [1976] Q.B. 142, C.A.
78 Examples of these developments include Thomas v. National Union of
Mineworkers (South Wales Area) [1985] 2 All ER 1; Khorasandjian v. Bush
[1993] 3 W.L.R 476, 3 All E.R. 669, C.A.; Burris v. Azadani [1995] 4 All E.R.
802, C.A.
79 H.C. 148/79. Saar v. Minister of the Interior and the Police, P.D. 34 (ii), 169;
H.C. 153/83. Levy and Amit v. Southern District Police Commander, P.D. 38 (ii),
393. See also H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem;
H.C. 4712/96. MERETZ v. District of Jerusalem Police Commander (not
published).
80 H.C. 153/83. Levy and Amit v. Southern District Police Commander, at 398.
81 Ibid.
82 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, paras 2, 3 in
Justice Levine’s judgment.
83 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, para. 3 in
Justice Levine’s judgment.
84 Gregory v. Chicago, 394 U.S. 111 (1969), where the Supreme Court over-
turned the conviction of protesters who marched from City Hall to the
home of Chicago Mayor Richard Daley urging him to accelerate desegrega-
tion of public schools.
85 Carey v. Brown, 447 U.S. 455 (1980). This judgment is also concerned with
content regulation.
180 Notes

86 In several early cases, the court’s position was that regulation, not prohibi-
tion, was the appropriate policy in dealing with free speech questions. In
Lovell v. Griffin, 303 U.S. 444 (1938) ordinance requiring permit to distribute
literature was declared invalid on its face. In Schneider v. State, 308 U.S. 147,
160, 162 (1939) flat prohibition on leafleting to prevent littering was
declared unjustified. In Cox v. New Hampshire, 312 U.S. 569 (1941) the
court established that time, place and manner regulations of parades are
permissible. Saia v. New York (334 U.S. 558, 1948) and Kovacs v. Cooper (336
U.S. 77, 1949) deal with regulations of sound trucks and loudspeakers on
city streets.
87 Klebanoff v. McMongale, 380 Pa. Super. 545, 552 A.2d 677 (1989); Barrington v.
Blake, 568 A.2d 1015 (R.I. 1990), at 1021; Kaplan v. Prolife Action League of
Greensboro, 111 N.C.App. 1, 431 S.E.2d 828 (1993). In Hibbs v. Neighborhood
Organization to Rejuvenate Tenant Housing, 433 Pa. 578, 252 A.2d 622 (1969)
the court overturned an injunction barring protestors from picketing
the home of Hibbs as violative of the picketers’ First Amendment rights
because Hibbs conducted his business affairs in such a secretive manner
that no other place was available for the protestors to communicate their
views.
88 Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640
(1981), at 654 –5; Klebanoff v. McMongale, 380 Pa. Super. 545, 552 A.2d 677
(1989). See also Phelps, ‘Picketing and Prayer: Restricting Freedom of
Expression Outside Churches’, op. cit., at 282.
89 But, as we have seen, in Frisby the court said it is permissible to prohibit
focused picketing taking place solely in front of a particular residence.
90 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, para. 28 in
Justice Barak’s judgment.
91 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, para. 12 in
Justice Barak’s judgment.
92 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, para. 25 in
Justice Barak’s judgment. For further discussion, see Aharon Barak, ‘The
Tradition of Freedom of Expression in Israel and Its Problems’, public lec-
ture delivered on 13 May 1996 at Tel-Aviv University. An English transla-
tion of the text, albeit in a shorter version, is found in Justice, No. 9 ( June
1996), 3–10; idem, ‘Freedom of Expression and Its Limitations’, in R. Cohen-
Almagor (ed.), Challenges to Democracy: Essays in Honour and Memory of
Professor Sir Isaiah Berlin (London: Ashgate, 2000).
93 H.C. 2481/93. Yoseph Dayan v. Police Chief District of Jerusalem, para. 4 in
Justice Goldberg’s judgment.
94 Frisby v. Schultz, 487 U.S. 474, 494 (1988).

3 The Right to Participate in Elections: Judical and

Practical Considerations

01 The terms ‘party’ and ‘list’ are used interchangeably.

02 Village of Skokie v. The National Socialist Party of America, 373 N.E. 2d 21
(1978).
 Notes 181

03 Anthony Skillen, ‘Freedom of Speech’, in Keith Graham (ed.), Contemporary

Political Philosophy (Cambridge, England: Cambridge University Press,
1982), 139–59.
04 Norman Dorsen, ‘Is There A Right to Stop Offensive Speech? The Case of
the Nazis at Skokie’, in Larry Gostin (ed.), Civil Liberties in Conflict (London:
Routledge, 1988), 122–35.
05 T. M. Scanlon, ‘Freedom of Expression and Categories of Expression’,
University of Pittsburgh Law Review, Vol. 40, No. 3 (1979), 519–50.
06 Frederick Schauer, Free Speech: A Philosophical Enquiry (New York: Cambridge
University Press, 1982); idem, ‘The Cost of Communicative Tolerance’, in
R. Cohen-Almagor (ed.), Liberal Democracy and the Limits of Tolerance (Ann
Arbor: University of Michigan Press, 2000). In his comments on a draft of this
essay, Jim Weinstein argues that the fundamental liberal objection to hate
speech bans, such as the one imposed by Skokie, is the quite principled objec-
tion that government has no business regulating public discourse because it
disagrees with its message or finds the message offensive. So consequentialist
arguments are not necessarily unprincipled ones. The focus of this view, how-
ever, is different from mine. While my prime consideration has to do with the
question of concrete harm that is inflicted on a designated group, Weinstein
and like-minded liberals focus on societal considerations. For further deliber-
ation see James Weinstein, Hate Speech, Pornography, and the Radical Attack on
Free Speech Doctrine (Boulder, CO.: Westview, 1999); idem, ‘An American’s
View of the Canadian Hate Speech Decisions’, in W. J. Waluchow (ed.), Free
Expression (Oxford: Clarendon Press, 1994), pp. 175–221.
07 Lee C. Bollinger, The Tolerant Society (Oxford: Clarendon Press, 1986).
08 In his comments on this essay, Dave Boeyink writes that in the American
Declaration of Independence people do have a right to overthrow the gov-
ernment, but only when the government itself has become destructive of
the ends of democracy.
09 Election Appeal (E.A.) 1/65, Yeredor v. Chairman of the Central Committee for
the Elections to the Sixth Knesset, P.D. 19 (iii), 365.
10 Ibid., at 369.
11 Yeredor, p. 390.
12 Yeredor, p. 390.
13 See A. T. H. Smith, The Offences Against Public Order (London: Sweet and
Maxwell, 1987).
14 For further analysis of the majority and minority judgments in Yeredor, see
R. Cohen-Almagor, ‘Disqualification of Lists in Israel (1948–1984): Retrospect
and Appraisal’, Law and Philosophy, Vol. 13, No. 1 (1994), pp. 43–95.
15 For discussion on Rabbi Kahane and ‘Kach’, see Robert I. Friedman, The
False Prophet (London: Faber and Faber, 1990); R. Cohen-Almagor, The
Boundaries of Liberty and Tolerance: The Struggle Against Kahanism in Israel
(Gainesville, FL: The University Press of Florida, 1994), esp. chaps 9, 11.
16 E.A. 2/84. Neiman and Avneri v. Chairperson of the Central Committee for the
Elections to the 11th Knesset. P.D. 39 (ii), 238.
17 E.A. 2/84. Neiman and Avneri v. Chairperson of the Central Committee for the
Elections to the 11th Knesset. P.D. 39 (ii), 237.
18 Ronald Dworkin, Law’s Empire (Cambridge, MA.: Harvard University Press,
1986), pp. 255–6.
182 Notes

19 Ronald Dworkin calls this theory of adjudication ‘a naturalist approach’. Cf.

‘ “Natural” Law Revisited’, University of Florida Law Review, Vol. 35 (1982),
pp. 165–88.
20 E.A. 2/84. Neiman and Avneri v. Chairperson of the Central Committee for the
Elections to the 11th Knesset. P.D. 39 (ii), 265.
21 Ibid., at 279.
22 Neiman, p. 326.
23 Sections 144 (A–E) of Penal Law, Amendment No. 20 (1986).
24 Basic Law: The Knesset. Amendment No. 9. 1155 Sefer Ha’chukim (Book of
Laws), 1985 (Hebrew).
25 Parties Law, 1992, in 20 Dinim, at 12036c (Hebrew) (emphasis added).
26 E.A. 2/88, Ben Shalom and Others v. the Central Committee for the Elections to
the 12th Knesset. P.D. 43 (iv), 221.
27 E.A. 1/88. Neiman and ‘Kach’ v. Chairperson of the CEC to the 12th Knesset,
P.D. 42 (iv), 177, at 189.
28 For further deliberation on the 1988 and 1992 elections, see R. Cohen-
Almagor, ‘Disqualification of Political Parties in Israel: 1988–1996’, Emory
International Law Review, Vol. 11, No. 1 (1997), pp. 67–109.
29 E.A. 2805/92. ‘Kach’ v. Chairperson of the CEC to the 13th Knesset; E.A.
2858/92. ‘Kahane Is Alive’ Movement v. Chairperson of the CEC to the 13th
Knesset (both decisions rendered on 9 June 1992).
30 Yalkut Ha’pirsumim (14 March 1993), 4202, p. 2786 (Hebrew).
31 The Official Gazette, No. 24 (29 September 1948).
32 Attorney-General Michael Ben-Yair’s opinion paper to Prime Minister
Yitzhak Rabin Regarding the Declaration of the ‘Kach’ and ‘Kahane Chai’
(‘Kahane Is Alive’) movements as well as Their Combination and
Derivatives as Terrorist Organizations (10 March 1994), paras. 2, 1 (Hebrew).
33 Ibid., paras 2, 3.
34 Karl Popper, The Open Society and Its Enemies (London: Routledge & Kegan
Paul, 1962), and ‘Toleration and Intellectual Responsibility’, in S. Mendus
and D. Edwards (eds), On Toleration (Oxford: Clarendon Press, 1987),
pp. 17–34.
35 For further discussion, see R. Cohen-Almagor, ‘La Lutte Contre
L’Extremisme Politique en Israel’, Pouvoirs, Vol. 72 (1995), pp. 83–96
(French), or ‘Combating Right-Wing Political Extremism in Israel: Critical
Appraisal’, Terrorism and Political Violence, Vol. 9, No. 4 (1997), pp. 82–105.
See also Justice Zamir’s judgment in 6897/95. Benjamin Zeev Kahane v.
Commander Kroyzer, Israeli Police (12 December 1995).
36 Parties Law, 1992, in 20 Dinim, at 12036c (Hebrew).
37 P.C.A. 7504/95, 7793/95, Yassin and Rochly v. the Parties’ Registrar and Yemin
Israel (28 April 1996).
38 Ibid., see para. 5 in P. Barak’s judgment.
39 P.C.A. 7504/95, 7793/95, Yassin and Rochly v. the Parties’ Registrar and Yemin
Israel, para. 5 P. in Barak’s judgment.
40 Ibid., para. 8 in P. Barak’s judgment.
41 Ibid., para. 15 in P. Barak’s judgment.
42 R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977), and A
Matter of Principle (Oxford: Clarendon Press, 1985); R. Cohen-Almagor, The
Boundaries of Liberty and Tolerance, esp. chaps 3, 4, 13.
 Notes 183

43 P.C.A. 7504/95, 7793/95, Yassin and Rochly v. the Parties’ Registrar and Yemin
Israel, para. 17 in P. Barak.’s judgment.
44 Ibid., para. 22 in P. Barak’s judgment.
45 Ibid., para. 27 in P. Barak’s judgment.
46 Ibid., para. 28 in P. Barak’s judgment.
47 P.C.A. 2316/96 Meiron Aizekson v. the Parties’ Registrar and the Arab Movement
for Change (28 April 1996).
48 Ibid., para. 7 in J. Cheshin’s judgment.
49 Ibid.
50 Ibid., para. 11 in J. Cheshin’s judgment.
51 Ibid., para. 20 in J. Cheshin’s judgment.
52 Ibid., para. 27 in J. Cheshin’s judgment.
53 Ibid., para. 30 in J. Cheshin’s judgment.
54 Ibid., para. 12 in J. Cheshin’s judgment.
55 Ibid., para. 13 in J. Cheshin’s judgment.
56 Ibid.
57 Ibid., para. 16 in J. Cheshin’s judgment.
58 Ibid., para. 17 in J. Cheshin’s judgment.
59 Ibid., para. 19 in J. Cheshin’s judgment.
60 Ibid., para. 20 in J. Cheshin’s judgment.
61 Ibid., para. 23 in J. Cheshin’s judgment.
62 Ibid., para. 24 in J. Cheshin’s judgment.
63 Ibid., para. 25 in J. Cheshin’s judgment.
64 Ibid., para. 27 in J. Cheshin’s judgment.
65 H.C. 426/94 Yoseph Adler v. Israeli Police Head of Investigations et al.
66 P.C.A. 2316/96 Meiron Aizekson v. the Parties’ Registrar and the Arab Movement
for Change, para. 28 in J. Cheshin’s judgment.
67 Ibid., para. 29 in J. Cheshin’s judgment.
68 Ibid., para. 31 in J. Cheshin’s judgment.
69 Ibid., para. 31 in J. Cheshin’s judgment.
70 Ibid., para. 32 in J. Cheshin’s judgment.
71 Ibid., para. 34 in J. Cheshin’s judgment.
72 Ibid., para. A in J. Tal’s judgment.
73 Cf. Glimmerveen and Hagenbeek v/the Netherlands (1980) Decisions and Reports
18 European Community H.R. 187–208.
74 E.A. 2/84. Neiman and Avneri v. Chairperson of the CEC to the 11th Knesset,
p. 304.

4 Objective Reporting in the Media:

Phantom Rather than Panacea

01 A draft of this essay was presented in summer 1996 at The 12th National
Workshop on the Teaching of Ethics in Journalism, Freedom Forum First
Amendment Center, Vanderbilt University, Nashville, Tenn., and at Conver-
sation and Community, The Australian and New Zealand Communication
Association Annual Conference, QUT (Queensland University of Technology),
Brisbane, 1996. I express gratitude to Dave Boeyink, Ed Lambeth, Mayo
Moran, and John McManus for sending me their respective writings.
184 Notes

The University of Haifa Research Authority provided me with a research

grant that helped facilitate part of the work. I am most grateful to the
Research Authority for its kind support.
02 Dan Schiller, Objectivity and the News (Philadelphia: University of
Pennsylvania Press, 1981), pp. 7–10; Robert A. Hackett and Yuezhi Zhao,
Sustaining Democracy? Journalism and the Politics of Objectivity (Toronto:
Garamond Press, 1998), esp. chap. 1; Celeste Michelle Condit and J. Ann
Selzer, ‘The Rhetoric of Objectivity in the Newspaper Coverage of a Murder
Trial’, Critical Studies in Mass Communication, Vol. 2, No. 3 (1985), pp. 197–216,
esp. 210 –11; Theodore L. Glasser and James S. Ettema, ‘Investigative
Journalism and the Moral Order’, Critical Studies in Mass Communication,
Vol. 6, No. 1 (1989), pp. 1–20, at 4.
03 Gaye Tuchman, Making News (New York: The Free Press, 1978), pp. 160 –1,
177–81.
04 For further discussion, see Meenakshi Gigi Durham, ‘On the Relevance
Standpoint. Epistemology to the Practice of Journalism: The Case for
“Strong Objectivity” ’, Communication Theory, Vol. 8, No. 2 (May 1998),
pp. 118–19.
05 Theodore L. Glasser, ‘Objectivity Precludes Responsibility’, The Quill
(February 1984), pp. 14 –15.
06 Michael Schudson, Discovering the News (New York: Basic Books, 1978), p. 9.
07 It should be noted that the code was revised three times since then. The
latest revision, in 1996, does not mention the word ‘objectivity’, which
is a significant omission. There are many other codes of ethics that aspire
to objectivity in media reporting. See, for instance, Section 6 of the
Israeli Professional Ethics Code of Journalism (ratified on 16 May 1996);
Chapter C of the Guidelines of the Israeli Second Television and
Radio Authority (1994); Article 2 of the Italian Riforma della legge 3/2/1963
N. 69 ‘Ordinamento della Professione di Giornalista’, and Sections 2 and
3 of Carta dell’informazione e della programmazione a garanzia degli
utenti e degli operatori del servizio pubblico – Rai (December 1995). For fur-
ther discussion, see Tiina Laitila, ‘Journalistic Codes of Ethics in Europe’,
European Journal of Communication, Vol. 10, No. 4 (1995), pp. 527– 44.
08 Robert A. Hackett and Yuezhi Zhao, Sustaining Democracy? Journalism and the
Politics of Objectivity, op. cit., p. 54.
09 Seven areas of concern were cited most frequently. The other six were
reporter misrepresentation; privacy rights versus the public’s right to know;
conflicts of interest; anonymous sources; ‘freebies’; and balancing compas-
sion for subjects with newspaper policy. See Douglas Anderson, ‘How
Managing Editors View and Deal With Ethical Issues?’, Journalism Quarterly,
Vol. 64 (1987), pp. 341–5, at 344.
10 I am not suggesting that neutrality and objectivity are one and the same.
One can be objective about facts without being neutral. What I suggest is
that moral neutrality is one of the notions involved in this rather complex
and vague concept of objectivity.
11 Thomas Nagel, ‘The Limits of Objectivity’, in Sterling M. McMurrin (ed.),
The Tanner Lectures on Human Values (Salt Lake City: University of Utah
Press, 1980), pp. 83– 4.
12 See Michael Schudson, Origins of the Ideal of Objectivity in the Professions
(New York and London: Garland Publishing, 1990), p. 3. He provides an
 Notes 185

analysis of the historical development of the concept of objectivity in jour-

nalism in chap. vii, esp. pp. 231–69.
13 Herbert J. Gans, Deciding What’s News (New York: Pantheon Books, 1979),
pp. 183, 187–93, 304 –35.
14 Stephen D. Reese, ‘The News Paradigm and the Ideology of Objectivity: A
Socialist at the Wall Street Journal’, Critical Studies in Mass Communication,
Vol. 7 (1990), pp. 390 – 409, p. 394.
15 The Agreement accompanying the BBC’s Charter specifies that ‘due impar-
tiality does not require absolute neutrality on every issue or detachment
from fundamental democratic principles’, in the BBC Producers’ Guidelines
(November 1996), p. 14.
16 See I. Roeh and S. Feldman, ‘The Rhetoric of Numbers in Front-page
Journalism: How Numbers Contribute to the Melodramatic in the Popular
Press’, Text, Vol. 4, No. 4 (1984), pp. 347–68.
17 The Israel Broadcasting Ethics Code addresses this issue. Section 106 is enti-
tled ‘How many participated in the demonstration?’. It says that the num-
ber of participants in demonstrations is a newsworthy fact. Reporters
should not rely on estimations of partisan parties. Such information should
be received from senior police officers. See Nakdimon Rogel and Amit
Shechter, The Nekdi Document (Israel Broadcasting Authority, July 1995),
pp. 42–3 (Hebrew).
18 The BBC has always stressed the importance of accuracy. See Thomas
Gibbons, Regulating the Media (London: Sweet and Maxwell, 1998), Second
Edition, pp. 99–100. The CBC Journalistic Standards and Practices (Canadian
Broadcasting Corporation, 1993) holds that information programmes must
reflect established journalistic principles: accuracy; integrity, and fairness,
and that ‘application of these principles will achieve the optimum objectiv-
ity and balance that must characterise CBC’s information programs’ (p. 28).
19 Lehman-Wilzig’s view is more extreme than mine. In his comments on
this chapter he writes that journalists are never objective, nor can they be.
As yesterday’s events involve hundreds of details and the reporter must
select which to include and which to exclude, such selection entails a
high level of subjectivity. Moreover, Professor Lehman-Wilzig main-
tains that about 50 per cent of all news items originate through someone
outside the paper (for example, public relations officers and professional
spokespersons) who often have partisan interests. Thus, if the source is not
objective, how can the report itself be? Lehman-Wilzig concludes his point
by saying that the published results are selective and subjective in the high-
est order.
20 See Christopher Hewitt, ‘Public’s Perspectives’, in David L. Paletz and Alex
P. Schmid (eds), Terrorism and the Media (Newbury Park, CA.: Sage, 1992),
pp. 170 –207; Herbert G. Kariel and Lynn A. Rosenvall, ‘Cultural Affinity
Displayed in Canadian Daily Newspapers,’ Journalism Quarterly, Vol. 60
(1983), pp. 431–6.
21 Amos Schocken, the owner of the Israeli daily newspaper Ha’aretz and some
other local newspapers, said in a public meeting on Israeli media that the
only requirement of a journalist is to write in accordance with the prefer-
ences of the editor. Academic Forum, Dan Carmel Hotel, Haifa (27 February
1996). David Radler, president of the Canadian media giant, Hollinger Inc.
said: ‘If editors disagree with us, they should disagree with us when they are
186 Notes

no longer in our employ.’ See Maude Barlow, and James Winter, The Big
Black Book (Toronto: Stoddart, 1997), p. 11.
22 John McManus, ‘How Objective Is Local Television News?’ Mass Communica-
tion Review, Vol. 18, No. 3 (1991), pp. 21–30, 48.
23 Leftist ideologists advance Marxist arguments that hold that the media
actively frame and promote news stories that serve the needs and concerns
of the élite. Herman and Chomsky provide a systematic ‘propaganda
model’ to account for the behaviour of the corporate news media in the
United States. They preface their discussion of the propaganda model by
noting their fundamental belief that the mass media serve to mobilise sup-
port for the special interests of power groups and large corporations that
dominate the state, the media, the advertising industry, and private activity.
In their view propaganda is a very important aspect of the work of the
media. See Edward S. Herman and Noam Chomsky, Manufacturing Consent:
The Political Economy of the Mass Media (New York: Vintage, 1995).
24 John C. Merrill, ‘Is Ethical Journalism Simply Objective Reporting?’,
Journalism Quarterly, Vol. 62, Nos. 1–2 (1985), pp. 391–3.
25 Raphael Cohen-Almagor, ‘Female Circumcision and Murder for Family
Honour among Minorities in Israel’, in Kirsten E. Schulze, Martin Stokes
and Colm Campbell (eds), Nationalism, Culture and Diasporas: Identities and
Rights in the Middle East (London: I. B. Tauris, 1996), pp. 171–87.
26 I discuss medical ethics in ‘The Patients’ Right to Die in Dignity and the
Role of Their Beloved People’, Annual Review of Law and Ethics, Vol. 4
(1996), pp. 213–32; ‘Autonomy, Life as an Intrinsic Value, and Death with
Dignity’, Science and Engineering Ethics, Vol. 1, No. 3 (1995), pp. 261–72;
idem, ‘Reflections on the Intriguing Issue of the Right to Die in Dignity’,
Israel Law Review, Vol. 29, No. 4 (1995), pp. 677–701; ‘ “Muerte con dig-
nidad”, “calidad de vida”, “estado vegetativo”, “doble efecto” y otras expre-
siones empleadas por los medicos’, Perspectivas Bioeticas, No. 5 (1998),
pp. 26– 44 (Spanish); The Right to Die in Dignity: Au Argument in Ethics,
Medicine and Law (forthcoming); Raphael Cohen-Almagor and Merav
Shmueli, ‘Can Life Be Evaluated? The Jewish Helachic Approach vs. the
Quality of life Approach in Medical Ethics: A Critical View’, Theoretical
Medicine and Bioethics (2000).
27 Sarah Davidovitz, a columnist working for a local newspaper in Jerusalem,
was explicitly asked whether she would report misconduct of politicians she
worked with. Her answer was no less explicit. She said that she would not
report the misconduct. There are enough journalists who would be happy
to provide their readers with such news. She left it to them. Interview on
Yoman Ha’shavuah, Channel 1 Israel Television (Friday, 9 February 1996).
28 The Declaration of Independence holds, inter alia, that Israel will foster the
development of the country for the benefit of all its inhabitants; that it will
be based on the foundations of liberty, justice, and peace; that it will ensure
complete equality of social and political rights to all of its citizens irrespec-
tive of religion, race, or sex; and that it will guarantee freedom of religion,
conscience, language, education, and culture.
29 H.C. 399/1985. Kahane v. Board of Directors of the Broadcasting Authority.
Piskei Din ( Judgments of the Israeli Supreme Court), 41 (iii), 255. For a fuller
account of this case, see Raphael Cohen-Almagor, The Boundaries of Liberty
 Notes 187

and Tolerance: The Struggle Against Kahanism in Israel (Gainesville, FL: The
University Press of Florida, 1994), chap. 12.
30 David E. Boeyink, ‘How Effective Are Codes of Ethics? A Look at Three
Newsrooms’, Journalism Quarterly, Vol. 71 (1994), pp. 893–904, esp. 895.
31 A Canadian editor used almost the same words during an interview I con-
ducted in the summer of 1998.
32 405/1995. ‘CLAL’ and Others v. the Broadcasting Authority and Others,
Jerusalem (16 January 1996).
33 For a different example concerning Cecil Andrews who set himself on fire
after calling upon a camera crew to film him igniting himself, see Stephen
D. Reese, ‘The News Paradigm and the Ideology of Objectivity: A Socialist at
the Wall Street Journal’, op. cit. p. 390.
34 Gideon Ezra, former Deputy Head of the SHABAC (Israel internal security)
(Communication Forum on Terror and Communication, University of Haifa,
30 April 1996). For further discussion on staging events, see A. P. Schmid,
‘Terrorism and the Media: The Ethics of Publicity’, Terrorism and Political
Violence, Vol. 1, No. 4 (1989), pp. 539–65.
35 Rilla Dean Mills, ‘Newspaper Ethics: A Qualitative Study’, Journalism
Quarterly, Vol. 60, No. 4 (1983), 589–94, 602.
36 Ronald M. Dworkin, ‘Liberalism’, in A Matter of Principle (Oxford: Clarendon
Press, 1985), pp. 181–204; Ronald M. Dworkin, Taking Rights Seriously
(London: Duckworth, 1977), pp. 266–78.
37 See Theodore L. Glasser and James S. Ettema, ‘Investigative Journalism and
the Moral Order’, op. cit., p. 7.
38 Standard 1 of the Society of Professional Journalists Code of Ethics speaks of
Responsibility. See also Section 1 of Associated Press Managing Editors Code
of Ethics. On the social responsibility theory, see Deni Elliot (ed.),
Responsible Journalism (Beverly Hills, CA.: Sage, 1986); Conrad C. Fink,
Media Ethics (Boston, Mass.: Allyn and Bacon, 1995), 2nd Edition, Appendix
B, p. 309; Michael Schudson, The Power of the News (Cambridge, MA:
Harvard University Press, 1995); Kristie Bunton, ‘Social Responsibility in
Covering Community: A Narrative Case Analysis’, Journal of Mass Media
Ethics, Vol. 13, No. 4 (1998), pp. 232– 46.
39 See Theodore L. Glasser and James S. Ettema, ‘Investigative Journalism and
the Moral Order’, op. cit. p. 10.
40 Thomas Gibbons, Regulating the Media, op. cit., pp. 107–8.
41 See J. C. Merrill, ‘Is Ethical Journalism Simply Objective Reporting?’,
Journalism Quarterly, Vol. 62 (1985), pp. 391–3, at 391.
42 See J. C. Merrill, ‘Good Reporting Can Be a Solution to Ethics Problem’,
Journalism Educator (Autumn 1987), pp. 27–29, at 27.
43 For a critical discussion of the Leninist view, see R. Cohen-Almagor,
‘Foundations of Violence, Terror and War in the Writings of Marx, Engels,
and Lenin’, Terrorism and Political Violence, Vol. 3, No. 2 (1991), pp. 1–24.
44 For further deliberation on the concept of social responsibility, see Conrad
C. Fink, Media Ethics op. cit., 2nd edn, chap. 5.
45 Alberta Court of Queen’s Bench (1984), 19 C.C.C. (3d) 254, at 273.
46 Cf R. v. Keegstra [1990] S.C.J. No. 131, 763–9. See also Richard Moon,
‘Drawing Lines in a Culture of Prejudice: R. v. Keegstra and the Restriction of
Hate Propaganda’, U.B.C. L. Rev. (1992), pp. 99–143; Mayo Moran, ‘Talking
188 Notes

about Hate Speech: A Rhetorical Analysis of American and Canadian

Approaches to the Regulation of Hate Speech’, Wisconsin L. Rev., No. 6
(1994), 1425–514, esp. p. 1493; Irwin Cotler, ‘Holocaust Denial, Equality
and Harm: Boundaries of Liberty and Tolerance in a Liberal Democracy’, in
R. Cohen-Almagor (ed.), Liberal Democracy and the Limits of Tolerance (Ann
Arbor: University of Michigan Press, 2000).
47 International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).
Article 20 immediately follows Article 19 on freedom of expression, and the
UN Human Rights Committee that monitors and adjudicates on compli-
ance with and alleged violations of these rights takes the view that there is
no inconsistency between the two Articles.
48 International Convention on the Elimination of All Forms of Racial Discrimination,
adopted by the United Nations in 1966 (Can. T.S. 1970, No. 28).
49 Robert G. Picard, ‘News Coverage as the Contagion of Terrorism’, in
A. Odasuo Alali and Kenoye Kelvin Eke (eds), Media Coverage of Terrorism
(Newbury Park, CA.: Sage, 1991), pp. 49–62; Gary Sick, ‘Taking Vows: The
Domestication of Policy-Making in Hostage Incidents’, in Walter Reich
(ed.), Origins of Terrorism (New York: Woodrow Wilson Center and
Cambridge University Press, 1990), pp. 230 – 44; Gabriel Weimann and
Conrad Winn, The Theater of Terror (New York: Longman, 1994), chap. 4.
50 As a general rule, the BBC World Service refrains from using the term ‘ter-
rorists’, which is perceived to be too loaded and prefers to resort to more
neutral terms, even when the brutality involved in the violent crime
against innocent civilians is obscene.
51 Ronald Dworkin, ‘Objectivity and Truth: You’d Better Believe It’, Philosophy
and Public Affairs (1996), pp. 87–139, at 92–8.
52 My views on the ways to fight terrorism are similar to those of Paul
Wilkinson, Terrorism v. Liberal Democracy – The Problems of Response, Centre
for Security and Conflict Studies, No. 67, January 1976.
53 R. Cohen-Almagor, ‘Between Neutrality and Perfectionism’, The Canadian
Journal of Law and Jurisprudence, Vol. VII, No. 2 (1994), pp. 217–36.
54 In his comments on this paper, Dick Moon shares my concern about the
tendency to report arguments and perspectives without critical evaluation.
He writes that perhaps neutrality is the reason for this but wonders whether
it can also be attributed to laziness and lack of knowledge on the part of
newspapers. Professor Moon sees a growing trend of the media, at least in
North America, to avoid analysis of complex public issues.
55 Section 26 of the Israel Broadcasting Ethics Code says, ‘the ability to report
news in a neutral and objective manner is one of the necessary professional
virtues of the journalist. The reporter should avoid expressing his/her per-
sonal views’. But Section 35 prescribes qualifications to objective reporting. It
holds that reporters need to remember that they broadcast to a particular
audience with particular norms and values: ‘It is not to be expected from this
audience to be objective, or indifferent, to murder, anti-Semitism, Holocaust
denial, bodies that wish to destroy Israel, or acts that desecrate synagogues
and cemeteries’. See Nakdimon Rogel and Amit Shechter, The Nekdi Document
(Israel Broadcasting Authority, July 1995), pp. 25–6 (Hebrew).
56 Members of the public journalism movement in North America may share
this endorsement. The movement believes that journalists should actively
help to make public life work, and in so doing strengthen the bonds
 Notes 189

between journalism and the community to which it is addressed. It asks

journalism to abandon a stance of detachment in order to actively reinvigo-
rate public politics. Public journalism asks that journalists be more self-
reflective about their own practices and assumptions, how stories are
framed, how the audience is positioned, and what master narrative is being
used. Accordingly, making public life work, rather than simply providing a
balanced and objective flow of information, becomes journalism’s primary
legitimation. See Robert A. Hackett and Yuezhi Zhao, Sustaining Democracy?
Journalism and the Politics of Objectivity, op. cit, pp. 200 –6.
57 David E. Boeyink, ‘A Defense of Advocacy in the Media, or Why
Newspapers Should Not (Always) be Neutral Observers’ (unpublished draft
paper), p. 12.
58 Quite sensibly, the British Press Complaints Commission’s Code of Practice
speaks, inter alia, of accuracy (section 1), the distinction of comment, con-
jecture, and fact (Section 3), and of misrepresentation (Section 7). The word
‘objectivity’ is not mentioned even once in the Code.

5 Ethical Boundaries of Media Coverage

01 A draft of this essay was presented in summer 1998 at The Jerusalem

Conference in Canadian Studies. I am grateful to attorneys Amir Zolty, Noam
Solberg, Ilan Bombach, Annalisa Verza, and Liora Havilio for providing me
with documents and court judgments, and to Aharon Barak, Michael Ben-
Yair, Valerie Alia, and Cliff Christians for sending me their respective writings.
02 Anthony Skillen, ‘Freedom of Speech’, in Keith Graham (ed.), Contem-
porary Political Philosophy (Cambridge: Cambridge University Press, 1982),
pp. 139–59.
03 Ronald M. Dworkin, Taking Rights Seriously (London: Duckworth, 1977).
R. Cohen-Almagor, The Boundaries of Liberty and Tolerance (Gainesville, FL:
The University Press of Florida, 1994).
04 Persons, as moral agents, have their conceptions of the moral life, and
accordingly determine what they deem to be the most valuable or best form
of life worth leading. A conception of the good involves a mix of moral,
philosophical, ideological, and religious notions, together with personal
values that contain some picture of a worthy life. One’s conception of the
good does not have to be compatible with moral excellence. It does not
mean a conception of justice. Leading a valuable life does not entail leading
a moral life. The moral life may guide the valuable life, but it is equally plau-
sible to think that the moral life may be subordinated to the valuable life.
The assumption is that a conception of the good comprises a basic part of
our overall moral scheme and that it is public in that it is something we
advance as good for others as well as ourselves. Consequently we would
want others to hold a conception for their sake. But when that desire is
based on coercion, it cannot be said to be moral because people are no
longer autonomous to decide on their way of life. They are then forced to
follow a scheme, which they do not consider to be a conception of the good
life. For further discussion, see Joseph Raz, The Morality of Freedom (Oxford:
Clarendon Press, 1986), pp. 134 –5; R. Cohen-Almagor, The Boundaries of
Liberty and Tolerance, chap. 3.
190 Notes

05 R. Cohen-Almagor, ‘Combating Right-Wing Political Extremism in Israel:

Critical Appraisal’, Terrorism and Political Violence, Vol. 9, No. 4 (1997),
pp. 82–105.
06 James Bryce, Modern Democracies (London: Macmillan, 1921), Vol. I, p. 4.
07 A statement of journalistic principles by the Canadian Daily Newspaper
Association holds: ‘The newspaper has responsibilities to its readers, its
shareholders, its employees and its advertisers. But the operation of a news-
paper is in effect a public trust, no less binding because it is not formally
conferred, and its overriding responsibility is to the society which protects
and provides its freedom’. Royal Commission on Newspapers, 1981, 286;
quoted in Carmen Cumming and Catherine McKercher, The Canadian
Reporter (Toronto: Harcourt Brace, 1994). For further deliberation, see Jeffrey
Olen, Ethics in Journalism (Englewood Cliffs, NJ: Prentice Hall, 1988),
pp. 29–31.
08 Deni Elliott, ‘Universal Values and Moral Development Theories’, in
Clifford Christians and Michael Traber (eds), Communication Ethics and
Universal Values (Thousand Oaks, CA.: Sage, 1997), pp. 68–83.
09 See, for example, the struggle of the Times-Picayune in New Orleans against
a bigot named David Duke who wished to become the governor of the state
of Louisiana (20 October–17 November 1991 issues). See David E. Boeyink,
‘Reporting on Political Extremists in the United States: The Unabomber, the
Ku Klux Klan and the Militias’, in R. Cohen-Almagor (ed.), Liberal
Democracy and the Limits of Tolerance (Ann Arbor: University of Michigan
Press, 2000).
10 For instance, the Radio/Television News Directors Association code begins
with the unqualified statement: ‘The responsibility of radio and television
journalists is to gather and report information of importance and interest to
the public accurately, honestly, and impartially.’ For further discussion, see
John McManus, ‘Who’s Responsible for Journalism?’, Journal of Mass Media
Ethics, Vol. 12, No. 1 (1997), pp. 1–5. My opinions are presented in Chapter 4.
11 See R. Cohen-Almagor, ‘Boundaries of Freedom of Expression Before and After
Prime Minister Rabin’s Assassination’, in R. Cohen-Almagor (ed.), Liberal
Democracy and the Limits of Tolerance, op. cit.
12 Earl Winkler, ‘The Unbearable Lightness of Moral Principle: Moral
Philosophy and Journalistic Ethics’, in Valerie Alia, Brian Brenan and Barry
Hoffmaster (eds), Deadlines and Diversity (Halifax: Fernwood, 1996),
pp. 12–20.
13 Of course there are limits to what journalists could rightfully be expected to
anticipate prior to the publication of news. Frequently issues are deemed to
be relatively simple, hence journalists do not feel obliged to seriously con-
template possible consequences. Consider, for instance, the following: a
person committed a felony and was taken to jail. A newspaper reports the
story and after the publication that person’s mother commits suicide. The
editor cannot be expected to anticipate such a reaction and, in any event,
could not perform his/her job adequately under threats of suicide if a given
piece of news is to be reported.
14 Ronald M. Dworkin, Taking Rights Seriously, op. cit.
15 See also the Italian Carte di Parma (1992), and Carta dei Doveri del
Giornalista (1993); Chapter E of the Guidelines of the Israeli Second
 Notes 191

Television and Radio Authority (1994); Section 8 of the Professional Ethics

Code of Israeli Journalism (affirmed on 16 May 1996).
16 In a private discussion with a British academic, I harshly criticized the Sun
daily tabloid for many publications, which I considered to be unethical. At
that time I thought that equating ethical behaviour with professionalism
could be of some value, therefore I claimed that this daily could not be con-
sidered as a professional newspaper. My colleague answered that the Sun is
extremely professional because it succeeds in achieving its prime concern:
sales. For many years the Sun has retained its place as the most popular
newspaper in Great Britain. This conception, which equates professionalism
with efficiency in marketing, is devoid of all ethical considerations.
Subsequently this and similar views constituted a further good reason for
me to avoid the journalism as professionalism/trade debate. What we do
need to take into account are ethical considerations and responsibility to
the public, and to the system that allows the working of free media. For fur-
ther discussion, see Clifford Christians, ‘Enforcing Media Codes’, Journal of
Mass Media Ethics, Vol. 1, No. 1 (Fall/Winter 1985–86), pp. 14 –21; Richard
Clutterbuck, The Media and Political Violence (London: Macmillan, 1983);
and Tiina Laitila, ‘Journalistic Codes of Ethics in Europe’, European Journal of
Communication, Vol. 10, No. 4 (1995), pp. 527– 44.
17 Immanuel Kant, Foundations of the Metaphysics of Morals, trans.: Lewis White
Beck (Indianapolis, Ind.: Bobbs-Merrill Educational Publishers, 1969, 2nd
edn), esp. pp. 52–53. For further discussion, see J. Kemp, The Philosophy of
Kant (Oxford: Oxford University Press, 1979); R. Cohen-Almagor, ‘Between
Neutrality and Perfectionism’, The Canadian Journal of Law and Jurisprudence,
Vol. VII, No. 2 (1994), pp. 217–36.
18 A good example would be the report by Ayala Hasson of the Israel Broadcast
Authority [IBA/Channel one] on the nomination of Mr Ronny Bar-On to
Attorney General. This Der’ei–Bar-On–Hasson affair almost terminated
the premiership of Mr Benjamin Netanyahu less than a year after his elec-
tion in 1996.
19 On 22 January 1997, a North Carolina jury awarded Food Lion $5.5 million
in punitive damages against ABC without challenging the network’s claims
that the chain sold spoiled meat. The jury had found that ABC News had
committed fraud, trespass, and breach of loyalty. See Food Lion v. Capital
Cities/ABC Inc. 6:92CV00592 (M.D.N.C., 1 October 1996). For further dis-
cussion, see Russ W. Baker, ‘Damning Undercover Tactics as “Fraud” ’,
Columbia Journalism Review, Vol. 3 (March/April 1997), pp. 28–34.
20 According to the 1992 guidelines of the Society of Professional Journalists
and the Poynter Institute for media studies, hidden cameras and other
forms of misrepresentation should only be used when (a) the information
obtained is of profound importance. It must be of vital public interest, such
as revealing great ‘system failure’ at the highest levels, or it must prevent
profound harm to individuals; (b) when all other alternatives for obtaining
the same information have been exhausted; (c) when the journalists
involved are willing to disclose the nature of the deception and the reason
for it; (d) when the individuals involved and their news organization apply
excellence, through outstanding craftsmanship as well as the commitment
of time and funding needed to pursue the story fully; (e) when the harm
192 Notes

prevented by the information revealed through deception outweighs any

harm caused by the act of deception; (f) when the journalists involved have
conducted a meaningful, collaborative, and deliberative decisionmaking
process. See Russ W. Baker, ‘Truth, Lies and Videotape’, Columbia Journalism
Review, Vol. 32 ( July/August 1993), pp. 25–8; Robert Lissit, ‘Gotcha!’,
American Journalism Review, Vol. 17 (March 1995), pp. 16–21. Compare with
the use of deceptive methods in psychology, Andrea Ortmann, and
Ralph Hertwig, ‘Is Deception Acceptable?’, American Psychologist ( July 1997),
pp. 746–7.
21 In 1996, Charles Anson, Press Secretary to the Queen, complained that an
analysis of the Queen’s personal wealth and that of other members of the
royal family included in a feature entitled ‘The Rich 500’ in the September
1995 issue of the magazine, Business Age, was inaccurate and misleading in
breach of Clause 1 (Accuracy) and Clause 3 (Comment, conjecture and fact)
of the Code of Practice. The Commission upheld the complaint, holding
that the article presented speculation as established fact, and made a num-
ber of errors. PCC Report (April/May/June 1996) No. 34 (London).
22 Section 4 holds: ‘Intrusions and enquiries into an individual’s private life
without his or her consent … are not generally acceptable and publication
can only be justified when in the public interest.’
23 Section 6 (i) holds: ‘Journalists or photographers making enquiries at hospi-
tals or similar institutions should identify themselves to a responsible exec-
utive and obtain permission before entering non-public areas.’
24 Section 8 (i) and (ii) say: ‘Journalists should neither obtain nor seek to
obtain information or pictures through intimidation or harassment; unless
their enquiries are in the public interest, journalists should not photograph
individuals on private property … without their consent; should not persist
in telephoning or questioning individuals after having been asked to desist;
should not remain on their property after having been asked to leave and
should not follow them.’
25 On 2 April 1995 the News of the World published a story covering the first
three pages headlined ‘Di’s Sister in Booze and Bulimia Clinic … Royal
Exclusive … Earl Spencer’s ailing wife has secret therapy. … ’ The People pub-
lished a similar story while the Daily Mirror published a photograph taken
without the permission of Lady Spencer walking in the grounds of the pri-
vate addiction clinic.
26 PCC Report (March/April 1995) No. 29 (London).
27 Mr Robin Esser, consultant editor of the Daily Mail, argued that Princess
Diana was obsessive about her image. It was not rare for her to phone the
Mail’s Royal reporter several times a week, sometimes several times a day.
Princess Diana had been on the phone with him regularly every week for
the previous two to three years; interview with Mr Esser (20 October 1997).
Mr Charles Moore, Editor of the Daily Telegraph, said that Princess Diana
was regularly in touch with senior people at the paper, like himself, the
Royal affairs reporter, and another senior member who is close to the Royal
family; interview with Mr Moore on 21 October 1997.
28 For further discussion, see R. Cohen-Almagor, ‘Why Tolerate? Reflections
on the Millian Truth Principle’, Philosophia, Vol. 25, Nos. 1– 4 (1997),
pp. 131–52.
 Notes 193

29 Ronald D. Crelinsten, ‘Victim’s Perspectives’, in David L. Paletz and Alex

Schmid (eds), Terrorism and the Media (Newbury Park, CA: Sage, 1992),
pp. 208–38. For further deliberation, see Linda N. Deitch, ‘Breaking News:
Proposing a Pooling Requirement for Media Coverage of Live Hostage
Situations’, UCLA L. Rev., Vol. 47 (1999), esp. p. 253; R. Cohen-Almagor,
‘The Terrorists’ Best Ally: The Quebec Media Coverage of the FLQ Crisis in
October 1970’, Canadian Journal of Communication, Volume 25, No. 2 (2000).
30 It should be further noted that there have been cases of politicians inter-
viewing ‘off the record’, making statements whose shock value caused jour-
nalists to go back on their word and publish the information.
31 Several years ago I recall that a British tabloid reported that a famous mar-
ried footballer on the English national team had spent the night before
an important game in his hotel room with three women from an escort
service. The facts turned out to be that he spent time with a girl he had met
at a bar; the time they spent together was at the bar and not in his room,
and the game was not all that important. The correction, which was pub-
lished at a later time, could not reverse the harm caused to the player’s
reputation.
32 William L. Rivers and Cleve Mathews, Ethics for the Media (Englewood Cliffs,
New Jersey: Prentice Hall, 1988), p. 64. Other examples can be drawn from
the stormy world of Israeli politics. After 4 November 1995, during the
funeral of Prime Minister Yitzhak Rabin, the media reported that one mil-
lion people came to The Knesset courtyard to pay their respects. This esti-
mate seems to have been quite exaggerated. Later estimations mentioned
approximately 30 000 people.
33 Howard Kurtz, ‘Why the Press Is Always Right’, Columbia Journalism Review,
Vol. 32 (May–June 1993), pp. 33–5, at 34.
34 See the inquiry articles by Saul Peretz in the weekend supplements of
Yedioth Ahronoth: ‘Charity, Safed Municipality Style’ (20 January 1995),
pp. 14 –15; ‘Deputy Minister Micha Goldman’s Primaries Fund’ (24 February
1995); ‘Charlie Biton and the Bribery Deal’ (2 June 1995), p. 6; ‘Weinstein
Looks Out for His Friends’ (21 July 1995), p. 22. Saul Peretz left Yedioth
Ahronoth after the paper refused to print other articles that supposedly
warned about corruption. The paper claimed that the reporter’s actions
were sometimes ‘ruthless’ and the articles were not worthy of publication.
For further discussion see Saul Peretz, ‘The Public’s Right To Know’, Ma’ariv,
Weekend Supplement (14 February 1997), pp. 32–8, and the response of
Yedioth Ahronoth on page 38.
35 Stephen D. Reese, ‘The News Paradigm and the Ideology of Objectivity: A
Socialist at the Wall Street Journal’, Critical Studies in Mass Communication,
Vol. 7 (1990), pp. 390 – 409, at 390.
36 A talk given at a forum on Media and Terror, held at the Department of
Communication, University of Haifa (30 April 1996). For further discussion,
see Alex P. Schmid, ‘Terrorism and the Media: The Ethics of Publicity,’
Terrorism and Political Violence, Vol. 1, No. 4 (1989), pp. 539–65, at 559.
37 Janet Cooke, ‘Jimmy’s World’, Washington Post (28 September 1980), A1.
38 Tom Goldstein, The News at Any Cost (New York: Simon and Schuster,
1987), pp. 215–21; Janet Cooke, ‘Jimmy’s World’, Washington Post
(28 September 1980), p. A1; Bill Green, ‘The Confession’, Washington Post
194 Notes

(19 April 1981), pp. A12–A14; Philip Meyer, Ethical Journalism (New York:
Longman, 1987), pp. 9, 58.
39 In a ‘Letter from Barcelona’, Alastair Reid of The New Yorker described
Spaniards sitting in ‘a small, flyblown bar’, openly jeering at a television
speech by Francisco Franco. In fact, the bar no longer existed. This fabricated
scene, and several other instances in which Reid acknowledged that
he might have modified events and facts, were disclosed in June 1984 in
a page one story of the Wall Street Journal. See David L. Eason, ‘On Journalistic
Authority: The Janet Cooke Scandal’, Critical Studies in Mass Communication,
Vol. 3 (1986), pp. 429– 47; Edmund B. Lambeth, Committed Journalism
(Bloomington and Indianapolis: Indiana University Press, 1992), pp. 25, 27.
Also see David Shaw, ‘ “Docudramas. Faction. Nonfiction novels. Composites.
Gonzo journalism. New Journalism. The blurring of fact and fiction… worries
me. A lot” ’, The Bulletin, No. 643 ( July–August 1981), pp. 3–6.
40 These allegations were made regarding Israeli TV Channel 1’s treatment of
the Der’ei–Bar-On–Hasson affair mentioned previously, allegations that
were refuted by both Attorney General Elyakim Rubinstein, and State-
Attorney Edna Arbel.
41 See Judge Ben-Zimra’s severe criticism of a news item broadcast by IBA’s
Channel One in 405/95 CLAL v. The Broadcasting Authority (The Jerusalem
Magistrate’s Court, 16 January 1996). Some codes of ethics address this
issue. For instance, Section 3 of the Italian Carta dell’informazione e della
programmazione a garanzia degli utenti e degli operatori del servizio pub-
blico – Rai (December 1995) requires the avoidance of sensationalism.
42 On 19 October 1994, a No. 5 bus was attacked by terrorists on Dizengoff
Street in Tel Aviv. The media started to broadcast unedited pictures immedi-
ately from the scene. Some people learned about the death of their loved
ones from the television. This kind of irresponsible coverage happened
again at the site of the crash of two Israel Defence Forces helicopters carry-
ing 72 soldiers in early February 1997, when live footage included a soldier’s
personal bag with the owner’s name clearly visible.
43 Gary Sick, ‘Taking Vows: The Domestication of Policy-Making in Hostage
Incidents’, in Walter Reich (ed.), Origins of Terrorism (New York: Woodrow
Wilson Center and Cambridge University Press, 1990), pp. 230 – 44, at 242.
44 Lord Chalfont, ‘The Price of Sympathy’, in Benjamin Netanyahu (ed.),
Terrorism: How the West Can Win (New York: Farrar, Straus, Giroux, 1986),
pp. 126–9, at 128. See also the 1988 British Ministerial directives to the BBC
and the Independent Broadcasting Authority (IBA) to refrain from broad-
casting interviews with members of terrorist organizations as defined in the
Prevention of Terrorism legislation.
45 See the recommendations of the Davey Committee. Special Senate Committee
on Mass Media, The Uncertain Mirror, Vol. I (Davey Committee), p. 127.
46 See Royal Commission on Newspapers (Hull, Quebec, Canada: Ministry of
Supply and Services, 1981), (Kent Commission), pp. 227–33, 237– 45.
47 Of course, we cannot expect small dailies with a staff of only a few reporters
to hire an ombudsman, hence the emphasis on large media organizations. In
North America there are only 42 ombudspeople, most of them in newspapers.
The Washington Post model is conceived to be the best. The Post ombudsper-
son is not an employee of the newspaper. He/she has a two-year contract,
which can be renewed once for a total of four years. The ombudsperson is
 Notes 195

free to investigate any matter deemed relevant. Once a week he/she publishes
an unedited column on a specific topic. If there are extensive complaints
about the paper’s coverage, he/she undertakes a comprehensive investigation.
Discussions with Joann Byrd, former ombuds person of the Post (17–22 June
1996). For further deliberation, see the ‘Terms of Reference for the
Ombudsman Office’, Canadian Broadcasting Corporation Board Manual.
48 Following Princess Diana’s funeral, the Guardian contemplated the idea of
appointing an ‘external’ ombudsperson, in addition to the Readers Editor.
In the Guardian system, the Readers Editor is the first person to whom com-
plaints are referred. He/she will either adjudicate, and if he/she thinks it is
a substantial complaint he/she will ask the reporter for response. The Editor
cannot tell the Readers Editor what he/she should write. He/she cannot be
sacked by the Editor. At the same time the Readers Editor is a staff member.
According to the proposal, the external ombudsperson will be paid
by the Guardian Group but will not be a staff member. He/she will be
able to write everything that he/she wants and according to the planned
scheme the Guardian will publish his/her item in a prominent place in
the paper. Interview with Mr Alan Rusbridger, Editor of The Guardian
(28 October 1997).
49 One British freelance journalist said that his main concern was to make a
living, to support himself and his family. He was assigned to cover a local
election, and the editor who hired his services wanted to help the candi-
dacy of a friend who ran for office for the Tories. The freelance journalist
was asked to research the level of support which each candidate enjoyed
within the constituency, and when the figures did not flatter the editor’s
friend he was ordered to revise them ‘which’, he admits, ‘was quite disap-
pointing behaviour’. The freelance journalist’s main concern was to make a
living, so he did not like the fact that someone fiddled with the figures, but
co-operated and said nothing in protest. Testimony during 21st Century
Trust Seminar on ‘The Media and the Public Interest in the Information
Age’ (London, 12 October 1997).
50 Section IA(g) of the Quebec Press Council’s The Rights and Responsibilities of
the Press (second edition, 1987) holds: ‘Journalists and the media must be
assured that sources will remain confidential if the freedom of the press and
the right to information are to be respected’.
51 See Code of Practice Committee revised draft code (The Newspaper
Publishers Association Ltd., 1997).
52 According to the Quebec Charter of Rights and Freedoms (8), everyone is
entitled to full and equal recognition and exercise of personal rights and
freedoms without distinction as to race, colour, sex including sexual orien-
tation, marital status, pregnancy and so on. Discrimination results from
compromising or removing this right. See Quebec Press Council’s The Rights
and Responsibilities of the Press (second edition, 1987), IIB(a).
53 Alicia C. Shepard, ‘Legislating Ethics’, American Journalism Review, Vol. 16
( January–February 1994), pp. 37– 41.
54 The Daily Mail incorporated the Code of Practice into its journalists’ con-
tracts, and there were cases in which journalists were dismissed when in
breach of the Code. In one incident a reporter was dismissed because he did
not identify himself as a journalist. Interview with Mr Robin Esser, consul-
tant editor of the Daily Mail (20 October 1997).
196 Notes

55 I am grateful to Mr Charles Moore, Editor of the Daily Telegraph, for this

idea. Interview with Mr Moore (21 October 1997).
56 Mr Shimon Peres’s Opening Address, Ethics, Law and Communication in an
Era of Political Violence and Extremism: An Examination of the Boundaries of
Liberty and Tolerance in Liberal Democracies, International Conference,
University of Haifa (28 January 1997).
57 Clifford Christians, ‘Self-Regulation: A Critical Role for Codes of Ethics’, in
Everette E. Dennis, Donald M. Gillmor and Theodore L. Glasser (eds), Media
Freedom and Accountability (New York: Greenwood Press, 1989), pp. 35–53.
58 For further discussion, see Report of the Committee on Privacy and Related
Matters (London: Her Majesty’s Stationary Office, June 1990), Cm 1102;
Aharon Barak, ‘The Tradition of Freedom of Expression in Israel and Its
Problems’, Justice, Vol. 9 ( June 1996), pp. 3–10.
59 Clause 12 of the PCC Code of Practice holds that children aged under 16
should not be interviewed or photographed on subjects involving their per-
sonal welfare without the consent of a parent or other adult responsible for
them. For further discussion, see Lord Wakeham’s speech at St. Bride’s
Institute (23 August 1995), in Moving Ahead (Press Complaints Commission,
1995).

6 Media Coverage of Suicide: Comparative Analysis

01 See Elizabeth B. Ziesenis, ‘Suicide Coverage in Newspapers: An Ethical

Consideration’, Journal of Mass Media Ethics, Vol. 6, No. 4 (1991),
pp. 234 – 44, esp. 235; Conrad C. Fink, Media Ethics (Boston, MA.: Allyn and
Bacon, 1995), 2nd edn, p. 53.
02 Elizabeth B. Ziesenis, ‘Suicide Coverage in Newspapers: An Ethical
Consideration’, p. 236. See also Ronald W. Maris, Alan L. Berman, John T.
Maltsberger, and Robert I. Yufit (eds), Assessment and Prediction of Suicide
(New York: Guilford Press, 1991); David Lester (ed.), Current Concepts of
Suicide (New York: Charles Press, 1990); David P. Phillips and Daniel J.
Paight, ‘The Impact of Televised Movies about Suicide’, New England Journal
of Medicine, Vol. 317 (March 1987), pp. 809–11; Ronald Kessler and Horst
Stipp, ‘The Impact of Fictional Television Suicide Stories on U.S. Fatalities: A
Replication’, American Journal of Sociology, Vol. 90 ( July 1984), pp. 151–67;
David P. Phillips, ‘The Impact of Fiction Television Stories on American
Adult Fatalities: New Evidence on the Effect of the Mass Media on
Violence’, American Journal of Sociology, Vol. 87 (March 1982), pp. 1340 –59;
Kenneth Bollen and David P. Phillips, ‘Imitative Suicides: A National Study
of the Effect of Television News Stories’, American Sociological Review, Vol. 47
(December 1982), pp. 802–9; David P. Phillips, ‘The Influence of Suggestion
on Suicide: Substantive and Theoretical Implications of the Werther Effect’,
American Sociological Review, Vol. 39 ( June 1974), pp. 340 –54.
03 David P. Phillips, ‘Airplane Accidents, Murder, and the Mass Media: Towards
a Theory of Imitation and Suggestion’, Social Forces, Vol. 58, No. 4 ( June
1980), p. 1016. For a critical study of the contagion literature, especially on
the relationships between terrorism and the media, see Robert G. Picard,
‘News Coverage as the contagion of Terrorism’, in A. Odasuo Alali and
 Notes 197

Kenoye Kelvin Eke (eds), Media Coverage of Terrorism (Newbury Park, CA:
Sage, 1991), pp. 49–62. See also Hans-Bernd Brosius and Gabriel Weimann,
‘The Contagiousness of Mass-mediated Terrorism’, European Journal of
Communication, Vol. 6 (1991), pp. 63–75.
04 Nick Russell, Morals and the Media (Vancouver: UBC Press, 1995), p. 84;
David P. Phillips and L. L. Carstensen, ‘The Effect of Suicide Stories on
Various Demographic Groups, 1968–1985’, Suicide and Life-Threatening
Behavior, Vol. 18 (Spring 1988), pp. 100 –14; David P. Phillips and L. L.
Carstensen, ‘Clustering of Teenage Suicides After Television News
Stories about Suicide’, New England Journal of Medicine, Vol. 315 (1986),
pp. 685–9.
05 Elizabeth B. Ziesenis, ‘Suicide Coverage in Newspapers: An Ethical
Consideration’, op. cit., pp. 239, 242. See also Report of the Secretary’s Task Force
on Youth Suicide (Washington, DC: U.S. Government Printing Office, 1989).
06 Gratitude is expressed to the Canadian government for its research grant.
07 Discussion with M. David Lepofsky, Toronto (23 August 1995).
08 Electronic message on 30 August 1997, in response to my letter of 17 July
1997.
09 Gratitude is expressed to the Canadian government and the Israel
Association for Canadian Studies for their generous support.
10 CBC, Journalistic Standards and Practices (Canadian Broadcasting Corporation,
1993).
11 Globe and Mail Style Book (Toronto, 1994).
12 Interview with Mr Michel Roy and Mr Robert Maltais, Montreal
(18 September 1998).
13 Interview with Mr Mel Sufrin, Toronto (6 October 1998).
14 Peter Buckley (ed.), CP Stylebook: A Guide for Writers and Editors (Toronto: the
Canadian Press, 1997), p. 69.
15 Interview with Mr Michel Roy, Montreal (18 September 1998).
16 Interview with Professor Enn Raudsepp, Department of Journalism,
Concordia University, Montreal (22 September 1998).
17 Interview with Professor G. Stuart Adam, Vice-President (Academic), and
former Director of the School of Journalism and Communication, Carleton
University, Ottawa (29 September 1998).
18 Interview with Professor Christopher Dornan, Ottawa (29 September 1998).
19 Interview with Mr Henry Aubin, Montreal (18 September 1998).
20 Interview with Mr Michel Roy, President, and Mr Robert Maltais, Secretary
General, Conseil de Presse du Quebec, Montreal (18 September 1998).
21 Interview with Mr Gord Sinclair, CJD, Montreal (17 September 1998).
22 Interview with Mr Al MacKay, Cable Public Affairs Channel, Ottawa
(28 September 1998).
23 Interview with Mr Michael C. Auger, Le Journal de Montreal (21 September
1998).
24 Discussion with M. David Lepofsky, Toronto (23 August 1995).
25 Discussion with M. David Lepofsky, Toronto (3 October 1998).
26 World Report, Passages, Globe and Mail (20 July 1998), Metro, p. A10.
27 Interview with Professor Fred Fletcher, Head of the Mass Media Program,
York University, Ontario (5 October 1998).
28 Interview with Mr Michel Roy, Montreal (18 September 1998).
198 Notes

29 Interview with Mr Michael C. Auger, Le Journal de Montreal (21 September

1998).
30 Quebec Press Council, The Rights and Responsibilities of the Press, a revised
edition of the original text which was published in French in October 1983,
p. 15.
31 National Report Quebec, ‘Wanted man found hanged’, Globe and Mail
(31 July 1998), Metro, p. A8.
32 Michael Rubinkam, ‘Jobless and deserted, mom shoots triplets, then com-
mits suicide’, Globe and Mail (16 September 1998), National, p. A24.
33 Nick Russell, Morals and the Media, op. cit., pp. 84, 129.
34 Interview with Mr Michael C. Auger, Le Journal de Montreal (21 September
1998).
35 Interview with Mr Edward Greenspon, Ottawa (25 September 1998).
36 Interview with Mr Mel Sufrin, Toronto (6 October 1998).
37 Interview with Mr Arch Mackenzie, Ottawa (24 September 1998).
38 ‘Manitoba Sioux chief sends plea for help. Suicides making band “another
Davis Inlet” ’, Globe and Mail (27 July 1998), National, p. A5.
39 Discussion with Professor Bernard M. Dickens, Faculty of Law, University of
Toronto (3 October 1998).
40 ‘Quebec fighting high suicide rate: Government sets aside additional
$700,000 for prevention programs, public education’, Globe and Mail
(3 February 1998), Metro, p. A8.
41 Interview with Mr Henry Aubin, Montreal (18 September 1998).
42 Advertising Special Report, ‘Ignoring mental health of children can be disas-
trous. For Canadian teens, the rate of suicide soared 400 per cent in the past
30 years’, Globe and Mail (15 June 1998), Metro, p. C4.
43 ‘Quebec fighting high suicide rate’, op. cit., Globe and Mail (3 February 1998).
44 Interview with Mr Henry Aubin, Montreal (18 September 1998). Mr Aubin,
however, admitted that his paper, the Gazette, did romanticize one suicide
story of two teenagers. But except for that incident, the paper’s policy was
not to provide too many details.
45 Interviews with Professor Ramsay Cook, General Editor, Dictionary of
Canadian Biography, University of Toronto (1 October 1998); Professor Wayne
Sumner, Department of Philosophy, University of Toronto (1 October 1998);
Mr Fil Fraser, C.M., President and Chief Executive Officer, VISION TV
Canada’s faith network (2 October 1998); Professor Bernard M. Dickens,
Faculty of Law, University of Toronto (3 October 1998); Professor Fred
Fletcher, Head of the Mass Media Program, York University (5 October 1998).
46 Jan Wong, ‘The choirboy who thought he fell from grace. For the other
boys called into the principal’s office over a yearbook prank, it was just a
minor scrape. But Kenneth AuYeung had never been in trouble before’,
Globe and Mail (31 January 1998), Metro, p. A15; Virginia Galt, ‘No “imme-
diate action” in student’s suicide. Sexual impropriety ruled out at school’,
Globe and Mail (28 February 1998), Metro, p. A9; Sara Jean Green, ‘Principal
testifies in student’s suicide. Would have called parents, official says’, Globe
and Mail (27 June 1998), Metro, p. A10; Alan Taylor, ‘Personal responsibil-
ity’, Globe and Mail (27 August 1998), Metro, p. A18; Sara Jean Green,
‘Principal exonerated in student’s suicide. Official “acted in good judg-
ment”, did not breach school policy in death of Kenneth AuYeung, Toronto
board rules’, Globe and Mail (22 August 1998), Metro, p. A8.
 Notes 199

47 Jill Mahoney, ‘ “Bridge of death” a magnet for jumpers. Fence, phones

sought for viaduct’, Globe and Mail (23 February 1998), Metro, p. A1.
48 Jill Mahoney, ‘ “Bridge of death” a magnet for jumpers. Fence, phones
sought for viaduct’, Globe and Mail (23 February 1998), Metro, p. A1.
49 Inquest recommendation, files compiled by the Ontario Press Council for
its Annual Meeting (16 October 1998).
50 Ibid.
51 R.S.C. 1985, c. C-46.
52 Sue Rodriguez v. The Attorney General of Canada, File No. 23476 (September
1993). For critical discussion, see Lorraine Eisenstat Weinrib, ‘The Body and
the Body Politic: Assisted Suicide under the Canadian Charter of Rights
and Freedoms’, McGill Law Journal, Vol. 39 (1994), pp. 619– 44. See also
R. Cohen-Almagor, ‘Reflections on the Intriguing Issue of the Right to Die
in Dignity’, Israel Law Review, Vol. 29, No. 4 (1995), pp. 677–701; The Right
to Die in Dignity (forthcoming).
53 See Eric M. Meslin and John Senn, ‘A Discussion of the Rodriguez
Decision’, Ethical Effects, Vol. 1, No. 4 (Winter 1993); Eike-Henner Kluge,
‘Doctors, Death and Sue Rodriguez’, Canadian Medical Association Journal,
Vol. 148, No. 6 (1993), pp. 1015–17; Margaret A. Somerville, ‘ “Death Talk”
in Canada: the Rodriguez Case’, McGill Law Journal, Vol. 39 (1994),
pp. 602–17.
54 Margaret A. Somerville, ‘Euthanasia in the Media: Journalists’ Values, Media
Ethics and “Public Square” Messages’, Humane Health Care International,
Vol. 13, No. 1 (Spring 1997), pp. 17–20.
55 Province of British Columbia, Ministry of Attorney General, B. C. Coroners
Service, ‘Judgment of Inquiry into the death of Susan Jane Rodriguez’ (12
February 1994). I thank Chief Coroner J. V. Cain for sending me the report.
56 See the story of Mr Doerksen who helped his 78-year-old wife commit sui-
cide. ‘Minister won’t stay charges’, Globe and Mail (29 August 1998), Metro,
p. A4.
57 S. Fine and A. Mitchell, ‘Why a suicide plan became a spectacle’, Globe and
Mail (4 November 1993), A1, A5; Nick Russell, Morals and the Media, op. cit.,
p. 81.
58 Todd Lewan, ‘The tragedy of police-assisted suicide’, Globe and Mail (2 May
1998), Metro, p. D4.
59 I thankfully acknowledge the generous assistance of the British Council.
60 Interview with Mr Charles Moore, London (21 October 1997).
61 Interview with Mr Charles Moore, London (21 October 1997).
62 Interview with Mr Alan Rusbridger, London (28 October 1997).
Mr Rusbridger added that the Guardian thinks carefully about publishing
distressing photos. For instance, the paper has an unwritten policy to pub-
lish photos of cars after accidents but not if there are people inside.
63 Interview with Mr Godfrey Hodgson, Oxford (14 October 1997).
64 Interview with Mr Martin Bell MP, House of Commons, London (20
October 1997). Mr Bell added that the media apply voluntary restriction on
reporting when a person is kidnapped. Then the media abide by the police
directives. The media also accept a degree of regulation and censorship in
times of war. He testified that during the Gulf War he served as a reporter
and there was blanket censorship that no one disputed.
65 Interview with Ms Hill and Mr Steel, London (29 October 1997).
200 Notes

66 BBC, Producers’ Guidelines (November 1996), p. 71.

67 Moshe Ronen, Media Ethics (Tel Aviv: Miskal, 1998), Vol. II, p. 682 (Hebrew).
68 Gabriel Weimann and Gideon Fishman, ‘Reconstructing Suicide: Reporting
Suicide in the Israeli Press’, Journalism and Mass Communication Quarterly,
Vol. 72, No. 3 (1995), pp. 553– 4.
69 Ibid.
70 Gideon Fishman and Gabriel Weimann, ‘Motives to Commit Suicide:
Statistical versus Mass-Mediated Reality’, Archives of Suicide Research, Vol. 3
(1997), pp. 199–212, esp. 209; G. Weimann and G. Fishman, ‘Reconstructing
Suicide: Reporting Suicide in the Israeli Press’, p. 555.
71 Moshe Ronen, Media Ethics, op. cit., Vol. I, pp. 283– 4. Weimann and
Fishman found that suicides of soldiers were more likely to be reported by
the press than civilian suicides. See ‘Reconstructing Suicide’, op. cit., p. 554.
72 Israel Press Council, Information Sheets, No. 50 (Tel Aviv, June 1986),
pp. 22– 4 (Hebrew).
73 Moshe Ronen, Media Ethics, op. cit., Vol. II, p. 682.
74 David Regev, ‘A 15 year-old boy hanged himself in his room during his
brother’s circumcision’, Yedioth Ahronoth (3 January 1998), pp. 12–13
(Hebrew).
75 Sarit Rosenbloom, ‘Every day five people attempt suicide in Israel’, Yedioth
Ahronoth (23 March 1999), p. 12 (Hebrew).
76 Interviews with Professor Enn Raudsepp, Montreal (22 September 1998);
Professor Wayne Sumner, Department of Philosophy, University of Toronto
(1 October 1998); Mr Ronald Cohen, National Chair, Canadian Broadcast
Standards Council (23 September 1998).
77 Ronald Dworkin, ‘Liberalism’, in A Matter of Principle (Oxford: Clarendon
Press, 1985), pp. 181–204; idem, Taking Rights Seriously (London: Duckworth,
1976); Raphael Cohen-Almagor, ‘Between Neutrality and Perfectionism’,
The Canadian Journal of Law and Jurisprudence, Vol. VII, No. 2 (1994),
pp. 217–36. idem (ed.), Liberal Democracy and the Limits of Tolerance (Ann
Arbor: University of Michigan Press, 2000).
78 Statement of Principles for Canadian Daily Newspapers, Canadian Daily
Newspapers Publishers Association, adopted in April 1977. Quoted in Nick
Russell, Morals and the Media, op. cit., p. 199.

7 The Work of the Press Councils in Great Britain,

Canada, and Israel: a Comparative Appraisal

01 George Murray, The Press and the Public (Carbondale and Edwardsville:
Southern Illinois University Press, 1972), pp. 27–8.
02 Kenneth Morgan, ‘The British Press Council Experience’, in Richard T.
Kaplar (ed.), Beyond the Courtroom (Washington, D.C.: The Media Institute,
1990), p. 131; Home Office, Report of the Committee on Privacy and Related
Matters (London: Her Majesty’s Stationary Office, June 1990), Cm 1102,
p. 58; George Murray, The Press and the Public, op. cit., p. 66.
03 Louis Blom-Cooper, ‘Freedom and Responsibility: The Future of Press
Regulation in Britain’, Index on Censorship, Vol. 21, No. 3 (March 1992), p. 2.
 Notes 201

04 Personal letter of Mr Kenneth Morgan (17 June 1996), former Director of

the Press Council and for one year, 1991–92 (the first year of establish-
ment), Director of the Press Complaints Commission.
05 Geoffrey Robertson, People Against the Press (London: Quartet Books, 1983),
p. 11; Thomas Gibbons, Regulating the Media (London: Sweet and Maxwell,
1998), 2nd edn, p. 275; George Murray, The Press and the Public, op. cit.,
pp. 87–9.
06 Special Senate Committee on Mass Media, The Uncertain Mirror (Ottawa:
Information Canada, 1970), Vol. I (Davey Committee), pp. 114 –15. For fur-
ther discussion, see George Murray, The Press and the Public, op. cit., chap. 9,
pp. 117–39 and pp. 157–9.
07 Interviews with Mr Morgan (3 September 1997); Professor Hugh
Stephenson, former Head of the Department of Journalism, City University,
London (1 October 1997), and with Mr Charles Moore, Editor of the Daily
Telegraph (21 October 1997).
08 Interview with Mr Morgan (3 September 1997).
09 Discussions with Dr Geoffrey Marshall, Provost of Queen’s College, Oxford
(29 August, 25 September, 31 October 1997).
10 Interviews with Ms Janet Anderson, press officer of the Press Complaints
Commission (23 September 1997) and Professor Hugh Stephenson (1 October
1997).
11 Report of the Committee on Privacy (The Younger Committee) (1972), Cmmd.
5012, para. 135.
12 Geoffrey Robertson, People Against the Press, op. cit., p. 13.
13 Geoffrey Robertson, People Against the Press, pp. 17–18.
14 Home Office, Report of the Committee on Privacy and Related Matters (London:
Her Majesty’s Stationary Office, June 1990), Cm 1102, pp. 59–60.
15 Home Office, Report of the Committee on Privacy and Related Matters ( June
1990), Cm 1102, p. 60.
16 Kenneth Morgan, ‘The Coming of the Codes’, in Is de klant of de krant
koning (Utrecht: Otto Cramwinckel Uitgever, 1990), p. 58.
17 Home Office, Report of the Committee on Privacy and Related Matters ( June
1990), Cm 1102, p. 60. See also Martin Bulmer and Jennifer Bell, ‘The Press
and Personal Privacy – Has It Gone Too Far?’, Political Quarterly, Vol. 56,
No. 5 (1985), p. 19.
18 Interview with Mr Kenneth Morgan (3 September 1997).
19 Martin Bulmer and Jennifer Bell, ‘The Press and Personal Privacy’, op. cit.,
pp. 17–18.
20 I am grateful to Ms Janet Anderson, press officer of the Press Complaints
Commission, for the information (interview on 23 September 1997).
21 The bills were introduced by John Brown MP and Tony Worthington MP
respectively. For further deliberation, see Louis Blom-Cooper, ‘Freedom and
Responsibility: The Future of Press Regulation in Britain’, op. cit., pp. 4 –5.
22 I am grateful to Hugh Stephenson for clarifying this issue with me (elec-
tronic message sent on 10 March 1999).
23 Home Office, Report of the Committee on Privacy and Related Matters ( June
1990), Cm 1102. Sir David Calcutt Report, p. 77.
24 Home Office, Report of the Committee on Privacy and Related Matters ( June
1990), Cm 1102. Sir David Calcutt Report, p. 73.
202 Notes

25 Interview with Mr Kenneth Morgan (3 September 1997).

26 Press Complaints Commission, Report No. 36 (October–November–December
1996), p. 3.
27 Sir David Calcutt, Review of Press Self-Regulation (London: Her Majesty’s
Stationary Office, January 1993), Cm 2135, p. xi.
28 Ibid., at xiv.
29 Ibid., p. 63.
30 Thomas Gibbons, Regulating the Media, op. cit., p. 281.
31 Hugh Stephenson says that, to the best of his knowledge, the issue was
never tested and it is hard to see how a person could have been stopped. He
explains that, in taking on a complaint, the old Press Council required
complainants to accept an undertaking (the waiver) that they were not
intending to go to court. If they did not, the Press Council would not take
their complaint. Electronic message sent by Professor Stephenson (10
March 1999).
32 Interview with Ms Janet Anderson (23 September 1997).
33 Interview with Ms Janet Anderson (23 September 1997).
34 Press Complaints Commission Press Release (8 June 1992).
35 Press Complaints Commission Press Release, ‘This agreed statement between
Lord McGregor and Mirror Group Newspapers … ’ (10 November 1993).
36 The PCC is funded by the press. To have a façade of independence, another
body was established for finance and budgeting called The Press Standards
Board of Finance. But it is only a façade.
37 Interview with Mr Charles Moore, Editor of the Daily Telegraph (21 October
1997).
38 Immediately after the death of Princess Diana I requested an interview
with Sir David Calcutt. In a letter dated 6 October 1997 Sir David refused
my request, saying that he had to move to other things, and that he had
‘not been able to maintain the close interest [in the press] which I once
took’.
39 Alison Boshoff, ‘Curbs on Press to Protect Princes’, Daily Telegraph
(8 September 1997), p. 1.
40 Steve Oram, ‘Memorandum re Consultation on Revised Draft Code’ (24
October 1997).
41 Interview with Mr Robin Esser (21 October 1997).
42 Interview with Martin Bell MP, House of Commons (20 October 1997).
43 Guardian (12 November 1997).
44 Special Senate Committee on Mass Media, The Uncertain Mirror, Vol. I
(Davey Committee), p. 111.
45 Report of the Davey Committee, pp. 117–18.
46 Royal Commission on Electoral Reform and Party Financing, Reforming
Electoral Democracy (Ministry of Supply and Services, 1991), Vol. 1, pp.
475–6. The Kent Commission concluded that the Alberta Press Council is,
at most, a pale imitation of the model envisaged by the Davey Committee.
See Royal Commission on Newspapers, Report (Hull, Quebec: Ministry of
Supply and Services, 1981), (Kent Commission), p. 226; see also pp. 147–50.
For a general discussion, see David Bruce Raddick, Press Councils in Canada:
Their Founding, Function and Future (MA Thesis, School of Journalism,
Michigan State University, 1976).
 Notes 203

47 On the Quebec Press Council, see David Pritchard, ‘The Role of News
Councils in a System of Media Accountability: Le Conseil de Quebec at Age
16’ (paper prepared for presentation to the annual meeting of the Canadian
Communication Association, Victoria, BC, 1 June 1990); idem, ‘Media
Accountability in Action: How the Quebec Press Council Handles Disputes’
(draft paper).
48 In June 1983 the British Columbia Press Council was formed.
49 Following the recommendations of the Kent Commission, in 1982 the gov-
ernment drafted a Canadian Newspaper Act that was in line with a policy
decision to regulate aspects of the newspaper industry. Both the policy and
the draft legislation were quickly abandoned, not only because of opposi-
tion from the industry, but also because the proposed Act was probably
unconstitutional in the light of the Charter’s protection of freedom of the
press. See Arthur Siegel, Politics and the Media in Canada (Toronto: McGraw-
Hill Ryerson, 1996), 2nd edn, p. 250.
50 Report of the Kent Commission, pp. 151–2.
51 Ibid., p. 152.
52 Interview with Mr Eddie Greenspon, Ottawa (25 September 1998).
53 Report of the Kent Commission, p. 152. See also Tom Kent, ‘The Time and
Significance of the Kent Commission’, in Helen Holmes and David Taras
(eds), Media, Power and Policy in Canada (Toronto: Harcourt Brace Jovanovich,
1992), pp. 21–39.
54 Maude Barlow and James Winter, The Big Black Book (Toronto: Stoddart,
1997), p. 122.
55 Some councils have additional funding. For instance, the Quebec Press
Council was donated $1 million by a private foundation.
56 This is the opinion of Professors Enn Raudsepp, Department of Journalism,
Concordia University (interview on 22 September 1998), and G. Stuart Adam,
Vice-President (Academic) of Carleton University, and formerly Director of
the School of Journalism and Communication at Carleton, Ottawa (interview
on 29 September 1998). Mr Michel Roy, President of the Quebec Press
Council, admitted that ‘the public does not know about our existence. We
should be more known’ (interview on 18 September 1998).
57 Four people work in the administration of the Quebec Press Council, includ-
ing the Secretary-General. They receive salaries. The President receives only a
small salary for expenses. Interview with Mr Robert Maltais, Secretary-General,
Conseil de Presse du Quebec (18 September 1998). Two people receive full
salaries in the Ontario Press Council, the Secretary-General and his secretary.
Interview with Mr Mel Sufrin, Executive Secretary of the Ontario Press Council
(6 October 1998). Two people receive part-time salaries in the Israel Press
Council, the Secretary-General and his secretary. The previous Secretary-
General of the Council was a volunteer. Discussions with Mr Bezalel Eyal,
Secretary-General of the Council (25 November 1998, 27 December 1998), and
Professor Amos Shapira, Deputy President of the Council (13 December 1998).
58 In 1997, the Ontario Press Council received 119 complaints. Only ten of
them were adjudicated, four were upheld, three upheld in part, and six were
dismissed, one with reservations. Interview with Mr Mel Sufrin, Executive
Secretary of the Ontario Press Council (6 October 1998); Annual Report,
1997 (Toronto: The Ontario Press Council), p. 9.
204 Notes

59 Mr Mel Sufrin told me that he was happy with the powers granted to the
Council. The papers were quite co-operative, so there was no need to have
more powers. Interview on 6 October 1998.
60 Mr Henry Aubin, senior columnist, member of the Editorial Board of the
Montreal Gazette, and member of the Quebec Press Council Board of
Directors, said that the Press Council’s adjudication is a slow process. It
takes a year, sometimes eighteen months. Interview on 18 September 1998.
61 Interview with Mr Michel Roy (18 September 1998).
62 Interview with Mr Michael C. Auger, political columnist, Le Journal de
Montreal, and President of La Federation Professionale des Journalistes
(21 September 1998).
63 David Pritchard, ‘The Role of News Councils in a System of Media Account-
ability: Le Conseil de Quebec at Age 16’, op. cit., 1 June 1990, pp. 18–19.
64 This is Mr Graham Fraser’s opinion (interview on 28 September 1998).
Mr Fraser is senior political reporter (parliamentary correspondent) for
the Globe and Mail and former Ottawa bureau chief and former Washington
correspondent for the Globe and Mail.
65 Interview with Professor Enn Raudsepp, Concordia University (22
September 1998).
66 Uri Paz, Inspection of the Media: The Relationship between the Press Council and
the Public, MA Thesis, Institute of Communication, the Hebrew University,
Jerusalem (May 1987), pp. 43– 4 (Hebrew).
67 Ibid., p. 46.
68 Ibid., p. 48.
69 Ibid., pp. 48–9. See also Moshe Zack, ‘The Press Council After Six Years’, The
Journalists Yearbook (1969), p. 336 (Hebrew).
70 Yitzhak Olshan, Judgments and Discussions ( Jerusalem and Tel Aviv:
Schocken, 1978), p. 383 (Hebrew).
71 Ibid., p. 384.
72 Ibid.
73 Dan Caspi and Yehiel Limor, The Mediators (Tel Aviv: Am Oved, 1992), p. 17
(Hebrew).
74 Israel Press Council, ‘Ad Hoc Committee, Conclusion and Recommenda-
tions’ (27 October 1998) (Hebrew).
75 Israel Press Council, Israel Press Council By-Laws, Professional Ethics Code of
the Press (updated to 1 July 1996), p. 5 (Hebrew).
76 Moshe Ronen, Media Ethics (Tel Aviv: Yedioth Ahronoth, 1998), Vol. II,
pp. 697–8 (Hebrew).
77 Interview with Professor Yitzhak Zamir, now Justice of the Israel Supreme
Court (3 January 1999).
78 Hadas Manor, ‘The Flickering of a Dying Candle?’, The Journalists Yearbook
(1993), p. 64 (Hebrew).
79 Interview with Justice Zamir (3 January 1999).
80 Interview with Justice Zamir (3 January 1999). The impotence of
the Council prompted Moshe Negbi to resign from this body. See his
criticism in Hadas Manor, ‘The Flickering of a Dying Candle?’, op. cit.,
p. 63.
81 Israel Press Council, Israel Press Council By-Laws, Professional Ethics Code of
the Press (updated to 1 July 1996), pp. 15–18 (Hebrew).
 Notes 205

082 The Press Council By-Laws states that this authority is reserved for the
President of the Council or a person nominated by the President. Justice
Yitzhak Zamir and Attorney Haim Zadok, past presidents of the Council,
principally refrained from interfering in the dealings with complaints
(interviews on 31 December 1998; 3 January 1999).
083 Israel Press Council, Israel Press Council By-Laws, Professional Ethics Code of
the Press (updated to 1 July 1996), pp. 11–12 (Hebrew).
084 Ibid.
085 Israel Press Council, Ethics Tribunal, Select Decisions and Judgments (16
September 1996) (Hebrew), p. 5.
086 Israel Press Council, Israel Press Council By-Laws, Professional Ethics Code of
the Press (updated to 1 July 1996), p. 12 (Hebrew).
087 Interview with President Zadok of the Press Council (31 December 1998).
088 Interviews with Attorney Slonim (20 December 1998), and Secretary-
General Eyal (27 December 1998).
089 Statistics compiled by the Press Council. I thank Secretary-General Eyal for
the information.
090 Interview with Secretary-General Eyal (27 December 1998).
091 Discussion with Secretary-General Eyal (25 November 1998).
092 For further criticism of the Israel Press Council, see Dan Caspi and Yehiel
Limor, The Mediators (Tel Aviv: Am Oved, 1992), pp. 185–6, 207–12 (Hebrew).
093 Interview with President Zadok (31 December 1998).
094 Interview with Professor Shapira (13 December 1998).
095 Interview with Justice Zamir (3 January 1999).
096 Interview with Mr Bezalel Eyal (27 December 1998).
097 Report of the Public Committee on Press Laws, presented to the Minister of
Justice and Minister of the Interior (September 1997), p. 62 (Hebrew).
098 Ibid., pp. 62–3.
099 Four members of the Committee backed the decision. One member, Professor
Zeev Segal, thought that the recommended legislation might hinder the
work of the Press Council and its independent discretion to formulate eth-
ical norms as it sees fit. Ibid., p. 63.
100 Ibid.
101 Interview with Attorney Slonim (20 December 1998).
102 Interview with Secretary-General Eyal (27 December 1998).
103 Interview with President Zadok (31 December 1998).
104 Interview with Justice Zamir (3 January 1999).
105 Interview with Mr Anthony Smith (16 October 1997). Mr Smith is the
President of Magdalen College, Oxford. Among his many capacities,
Mr Smith was the Director of the British Film Institute for 10 years.
106 Interviews with Mr Anthony Smith (16 October 1997); Mr Charles Moore
(21 October 1997), and Justice Yitzhak Zamir (3 January 1999).
107 This is the suggestion of Mr Martin Bell, MP. Interview in the House of
Commons (21 October 1997).
108 In one of my interviews, an authority on one of the press councils told
me that on occasion the journalists exerted pressures on him to represent
their interests better. He said that he needed to remind them that he also
represents the editors and publishers. I reminded him, in turn, that the
Council is comprised also of a third, no-less important component: the
206 Notes

public. Indeed, I often felt that decisionmakers on the press councils are
preoccupied with the needs and interests of the press industry and less so
with those of the public.
109 The Israel Press Council decided (on 13 December 1998) that members of
the plenary could serve a maximum of three consecutive terms of three
years each and then retire so as to allow the introduction of new members.
Professor Asa Kasher strongly disagreed with this motion, saying that the
Press Council should be viewed as a professional body on which ethics
professionals should sit as long as they express willingness to continue
their voluntary work.
110 Interview with Mr Stephen Whittle, Director of the Broadcasting
Standards Commission (9 October 1997). For further deliberation, see
Broadcasting Standards Council, A Code of Practice (London, February
1994, 2nd edn); Broadcasting Standards Council, Complaints Bulletin, No.
54 (25 July 1995).

Appendix Perceptions of Media Coverage among the

Israeli-Jewish Public: a Reflection of Existing Social
Cleavages? (with Itzhak Yanovitzky)

01 The authors express grattude to the Research Authority at University of

Haifa for its financial support in conducting the public poll.
02 Our use of the term ‘media’ is quite consciously inclusive although it does
not distinguish various media of communication and various genres. This is
because the public and media professionals alike often resort to this term.
Note that frequently the use of the term ‘media’ in the public discussion
actually refers more to the press.
03 N. Barnea, ‘Long Live the Hostile Press’, Ha’ain Ha’shevieit, Vol. 1 (1996), p.
2; U. Benziman, ‘Revenge Emotions’, Ha’ain Ha’shevieit, Vol. 3 (1996), p. 2
(both in Hebrew).
04 D. Caspi and Y. Limor, The Mediators: The Media in Israel 1948–1990 (Tel
Aviv: Am Oved, 1992) (Hebrew).
05 T. Liebes, ‘Television Disaster Marathons: A Danger for Democratic Process?’,
paper presented at the International Symposium in Honour of Elihu Katz
( Jerusalem, May 1996).
06 R. Cohen-Almagor, ‘Boundaries of Freedom of Expression in Mass
Communication’, Kesher, Vol. 22 (1997), pp. 9–19 (Hebrew).
07 Y. Mosko, ‘The Charge Sheets: The Boundary of Listening-Ins’, Ha’ain
Ha’shevieit, Vol. 2 (1996), pp. 16–21 (Hebrew).
08 J. W. Carey, ‘The Press, Public Opinion, and Public Discourse’, in T. L.
Glasser and C. T. Salmon (eds), Public Opinion and the Communication of
Consent (New York: Guilford Press, 1995), pp. 373– 402.
09 For further discussion, see A. C. Gunther, ‘Biased Press or Biased Public?:
Attitudes toward Media Coverage of Social Groups’, Public Opinion Quarterly,
Vol. 56 (1992), pp. 147–67; Asher Arian, Gabriel Weimann and Gad
Wolfsfeld, ‘Balance in Election Coverage’, in A. Arian and M. Shamir (eds),
 Notes 207

The Israeli Elections 1996 (New York: City University of New York Press, 1998);
G. Weimann and G. Wolfsfeld, ‘The Coverage of the Election Campaign on
Television’, Ha’ain Ha’shevieit, Vol. 5 (1996), pp. 20 –2 (Hebrew).
10 Ideally, it would have been better to include all segments of the Israeli
population in the poll. We had to limit the public poll to the Jewish
public mainly for economic reasons. If we had included the Palestinian
population (Christians and Muslims), the Bedouin, and the Druze, the
survey would have become far too costly. We may note that it is
also quite difficult to access some of these communities, and for these
reasons most public polls that are conducted in Israel are limited to the
Jewish public.
11 R. Cohen-Almagor, The Boundaries of Liberty and Tolerance, (Gainesville, FL.:
University Press of Florida, 1994), chap. 12; S. Chaffee and S. Frank, ‘How
Americans Get Political Information: Print versus Broadcast News’, Annals
of the American Academy of Political and Social Sciences, Vol. 546 (1996),
pp. 48–58.
12 M. McCombs, L. Danielian and W. Wanta, ‘Issues in the News and the
Public Agenda: The Agenda-setting Tradition’, in T. L. Glasser and C. T.
Salmon (eds), Public Opinion and the Communication of Consent (New York:
Guilford Press, 1995), pp. 281–300.
13 J. W. Carey, ‘The Press, Public Opinion and Public Discourse’, op. cit.,
pp. 373– 402. See also Justice Yitzhak Zamir’s judgment in Further Appeal
(F.A.) 7325/95 Yedioth Ahronoth v. Yoseph Kraus, Israel Supreme Court of
Justice (29 June 1998) (Hebrew).
14 D. H. Weaver, ‘What Voters Learn from Media’, Annals of the American
Academy of Political and Social Sciences, Vol. 546 (1996), pp. 34 – 47.
15 E. Katz, ‘And Deliver Us from Segmentation’, Annals of the American
Academy of Political and Social Sciences, Vol. 546 (1996), pp. 22–33.
16 A. Barak, ‘The Tradition of Freedom of Speech in Israel and Its Problems’,
Mishpatim, Vol. 27 (October 1996), pp. 223– 48 (Hebrew).
17 J. D. Peters, ‘Historical Tensions in the Concept of Public Opinion’, in T. L.
Glasser and C. T. Salmon (eds), Public Opinion and the Communication of
Consent, op. cit., pp. 3–32.
18 P. Jones, ‘Intense Preferences, Strong Beliefs and Democratic Decision
Making’, Political Studies, Vol. 36 (1988), pp. 7–29.
19 S. L. Feld and B. Grofman, ‘On the Possibility of Faithfully Representative
Committees’, American Political Science Review, Vol. 80 (1986), pp. 863–79.
20 C. Pateman, Participation and Democratic Theory (Cambridge: Cambridge
University Press, 1979); Richard Dagger, Civic Virtues (New York:
Oxford University Press, 1997), esp. chap. 9.
21 J. R. Pennock and J. W. Chapman (eds), Liberal Democracy (New York and
London: New York University Press, 1983).
22 R. M. Dworkin, Taking Rights Seriously (London: Duckworth, 1977); R. M.
Dworkin, A Matter of Principle (Oxford: Clarendon Press, 1985); R. Cohen-
Almagor, ‘Liberalism, and the Limits of Pluralism’, Terrorism and Political
Violence, Vol. 7 (1995), pp. 25– 48; F. Schauer, ‘The Cost of Communicative
Tolerance’, in R. Cohen-Almagor (ed.), Liberal Democracy and the Limits of
Tolerance (Ann Arbor: University of Michigan Press, 2000).
23 C. C. Euchner, Extraordinary Politics (Boulder, CO: Westview, 1996).
208 Notes

24 E. Etzioni-Halevi, ‘Elite Power, Manipulation and Corruption: A Demo-elite

Perspective’, Government and Opposition, Vol. 24 (1989), pp. 215–31;
J. S. Fishkin, The Voice of the People: Public Opinion and Democracy (New
Haven and London: Yale University Press, 1995).
25 M. Stiefel and M. Wolfe, A Voice for the Excluded (London and New Jersey:
Zed Books, 1994).
26 J. D. Peters, ‘Historical Tensions in the Concept of Public Opinion’, in T. L.
Glasser and C. T. Salmon (eds), Public Opinion and the Communication of
Consent, op. cit., pp. 3–32; J. W. Carey, ‘The Press, Public Opinion, and
Public Discourse’, op. cit., pp. 373– 402.
27 G. Boyce, ‘The Fourth Estate: The Reappraisal of a Concept’, in George
Boyce, James Curran and Pauline Wingate (eds), Newspaper History from the
17th Century to the Present (London: Sage, 1980), pp. 19– 40; J. Halteng and
R. Nelson, The Fourth Estate (New York: Harper and Row, 1971); J. W. Carey,
‘The Press, Public Opinion, and Public Discourse’, op. cit., G. Weimann,
‘ “Theatre of Terror”: Hard Challenge for Democracy’, in R. Cohen-Almagor
(ed.), Basic Issues in Israeli Democracy (Tel Aviv: Sifriat Poalim, 1999)
(Hebrew).
28 M. Fishman, Manufacturing the News (Austin, Texas and London: University
of Texas Press, 1980).
29 J. H. Altschull, Agents of Power: The Media and Public Policy (White Plains,
NY: Longman Publishers, 1994), 2nd edn.; The Right Honourable Brain
Mulroney, public speech delivered at Columbia University, New York (20
March 1995). Gratitude is granted to Mr Mulroney for sending us a copy of
his speech.
30 J. W. Carey, ‘The Press, Public Opinion, and Public Discourse’, op. cit.,
pp. 373– 402.
31 G. Tuchman, Making News: A Study in the Construction of Reality (New York:
The Free Press, 1978). See also chap. 4.
32 M. Fishman, Manufacturing the News, op. cit.
33 T. Gitlin, The Whole World is Watching (Berkeley, CA: University of
California Press, 1980); W. Gamson, The Strategy of Social Protest (Belmont,
CA: Wadsworth Publishing, 1990).
34 E. C. Baker, Advertising and a Democratic Press (Princeton: Princeton University
Press, 1994).
35 Walter Tarnopolsky, Colin Wright, Gerald A. Beaudoin, and Edith Cody-Rice,
Newspapers and the Law, Canadian Royal Commission on Newspapers, Vol. 3
(1981); Ben H. Bagdikian, The Media Monopoly (Boston, MA.: Beacon Press,
1983); Joyce Nelson, Sultans of Sleaze (Monroe, Maine: Common Courage
Press, 1989); Edward S. Herman and Noam Chomsky, Manufacturing Consent
(London: Vintage, 1994); Media Ownership, The Government’s Proposals,
Presented to Parliament by the Secretary of State for National Heritage by
Command of Her Majesty (London, May 1995), Cm. 2872; Michael Dorland
(ed.), The Cultural Industries in Canada (Toronto: James Lorimer & Co., 1996);
Robert G. Picard, ‘The Experience of the United States and Its Implications for
Canadian Policy’, in La Concentration dans les medias, Numero 1 (Quebec:
Universite Laval, Centre detudes sur les medias, December 1996); Maude
Barlow and James Winter, The Big Black Book (Toronto: Stoddart, 1997); James
 Notes 209

Winter, Democracy’s Oxygen: How Corporations Control the News (Montreal:

Black Rose Books, 1997); Dwayne Winseck, Reconvergence: A Political Economy
of Telecommunications in Canada (Cresskill, New Jersey: Hampton Press, 1998);
http://www.geocities.com/CapitolHill/Lobby/2500/newspprs.htm;
http://www.web.net/coc/black.html; http://www.media-awareness.ca/eng/
issues/mediaown/conrad.htm
36 J. N. Cappella and K. H. Jamieson, ‘News Frames, Political Cynicism, and
Media Cynicism’, Annals of the American Academy of Political and Social
Sciences, Vol. 546 (1996), pp. 71–84.
37 T. Liebes and E. Katz, The Export of Meaning (New York: Oxford University
Press, 1990).
38 G. Weimann, ‘The Conduct of the Israeli Press after Rabin’s Assassination’, in
D. Caspi (ed.), Communication and Democracy in Israel (Tel Aviv: The Van Leer
Jerusalem Institute and Hakibbutz Hammeuchad, 1997), pp. 223–36 (Hebrew).
39 In March 1998, Ekos Research Associates held a public poll on ‘Trust in
Occupations’. Journalists and reporters were ranked 11 out of the 17 profes-
sions mentioned in the poll (31 per cent), just above federal public servants
and lawyers, with 30 per cent. We thank Mr. Patrick Beauchamp, Director of
Qualitative Research, for providing us with the poll results. According to the
Angus Reid polling firm, two out of three Canadians think the media are
guilty of sensationalizing scandals, and more than one third (35 per cent)
have actually boycotted certain media because of their extensive intrusive
reporting. Almost two thirds (65 per cent) feel reporting delves too deeply
into the personal lives of public figures. Cf. ‘Most of us feel reporters pry
too much into lives of public figures’, Globe and Mail (10 October 1998),
p. C3. See also Gina Lubrano, ‘Newspapers, credibility and the public’, The
San Diego Union-Tribune (21 December 1998); Tim Jones, ‘public wants more,
and less, from media’, Chicago Tribune (16 December 1998); Humphrey Taylor,
‘Lawyers and Law Firms Plumb the Depths of Public Opinion’,
The Harris Poll, No. 37 (11 August 1997); Humphrey Taylor, ‘Dramatic Increase
in Confidence in Leadership of Nation’s Major Institutions’, The Harris
Poll, No. 8 (11 February 1998); Humphrey Taylor, ‘Doctors’ Prestige Rises
Sharply’, The Harris Poll, No. 31 (17 June 1998); ‘What Do the People Want
from the Press?’, in http: //www.cmpa.com/Mediamon/mm0506.htm; Steven
R. Van Hook, ‘Public Perception & Expectations of the News Media’, in
http://www.west.net/~wwmr/mediapap.htm; http://www.pollingreport.com/
institut.htm
40 E. Yuchtman-Yaar, ‘The Israeli Public and Its Institutions’, Israeli Democracy
(1989), pp. 7–11.
41 E. Yuchtman-Yaar, ‘Education, Science and Other Beliefs in the Eyes of the
Israeli Public’, Ha’aretz (Be’shaar Supplement, 14 April 1999, Hebrew).
42 T. Liebes and R. Ribak, ‘Democracy at Risk: The Reflection of Political
Alienation in Attitudes toward the Media’, Communication Theory, Vol. 1
(1991), pp. 239–52. See also Yeshayahu Ben-Porat, ‘The Israeli in His Own
Eyes: What Is Allowed and What Is Prohibited’, Yedioth Ahronoth (1 August
1986), Saturday Supplement, pp. 1–2 (Hebrew). Journalists received the
third lowest rating (21/100), above politicians (15/100) and business people
(14/100).
210 Notes

43 S. Smooha, Israel, Pluralism and Conflict (London: Routledge and Kegan

Paul, 1978); R. Cohen-Almagor, ‘Cultural Pluralism and the Israeli Nation-
Building Ideology’, International Journal of Middle East Studies, Vol. 27
(1995), pp. 461–84; M. Lissak, ‘Dominant Political Culture and Political
Mutations in Israel’, in R. Cohen-Almagor (ed.), Challenges to Democracy:
Essays in Honour and Memory of Isaiah Berlin (London: Ashgate Publishing
Ltd., 2000).
44 ‘The Israeli Student as a One-dimensional Person’, interview with Professor
Zvi Rosen, Skill (Tel Aviv University student newspaper) (May 1984),
pp. 16–17 (Hebrew).
45 Yaron London, ‘Half of the Youth Favours Transfer’, Yedioth Ahronoth (29
May 1990) (Shavu’ut Supplement), pp. 2–5 (Hebrew).
46 See Yitzhak Ben-Horin, ‘Democracy Goes Down’, Ma’ariv (10 February
1990); Amos Nevo, ‘Religious-Secular: Could It Be Otherwise?’, Yedioth
Ahronoth (20 June 1986) (Saturday Supplement), pp. 1–3. See also Yochanan
Peres and Ephraim Yuchtman-Yaar, Between Consent and Dissent: Democracy
and Peace in the Israeli Mind ( Jerusalem: The Israel Democracy Institute,
1998), esp. pp. 29–32; Sam Lehman-Wilzig, ‘Israeli Democracy: How
Democratic? How Liberal?’, in R. Cohen-Almagor (ed.), Basic Issues in Liberal
Democracy, op. cit., pp. 275–6 (all in Hebrew).
47 E. Yuchtman-Yaar, research conducted in conjunction with ‘Education,
Science and Other Beliefs in the Eyes of the Israeli Public’, Ha’aretz (Be’shaar
Supplement, 14 April 1999, Hebrew). We are grateful to Professor
Yuchtman-Yaar for this useful information.
48 ‘25% of the Youth till the Age 18 Have Anti-democratic Worldview’, Yedioth
Ahronoth (19 September 1984), p. 1 (Hebrew); R. Cohen-Almagor, The
Boundaries of Liberty and Tolerance, op. cit., chap. 9; idem, ‘Cultural Pluralism
and the Israeli Nation-Building Ideology’, op. cit., Vol. 27 (1995) pp. 461–84.
See also T. Herman and E. Yuchtman-Yaar, ‘Is There a Mandate for Peace?
Public Perceptions and the Peace Process’, in D. Caspi (ed.), Communication
and Democracy in Israel, op. cit., pp. 191–222 (Hebrew).
49 A. C. Gunther, ‘Biased Press or Biased Public?: Attitudes toward Media
Coverage of Social Groups’, Public Opinion Quarterly, Vol. 56 (1992), pp.
147–67; T. Liebes and R. Ribak, ‘Democracy at Risk: The Reflection of
Political Alienation in Attitudes toward the Media’, op-cit., pp. 239–52. See
also J. N. Cappella and K. H. Jamieson, Spiral of Cynicism: The Press and the
Public Good (New York: Oxford University Press, 1997).
50 See Edmund B. Lambeth, Committed Journalism (Bloomington, Ind.: Indiana
University Press, 1986); David M. O’Brien, The Public’s Right to Know (New
York: Praeger, 1981); Jerome Barron, Freedom of the Press for Whom?: The Rise
of Access to Mass Media (Bloomington, Ind.: Indiana University Press, 1973);
The Israeli Journalists’ Professional Code of Ethics (approved on 16 May 1996)
(Hebrew). See also Report of the Public Commission on Press Laws (September
1997, Hebrew).
51 See A. Yaniv (ed.), National Security and Democracy in Israel (Boulder and
London: Lynne Reinner, 1993); M. Lissak (ed.), Israeli Society and Its Defense
Establishment (London: Frank Cass, 1984).
52 In order to calculate the correlation we reversed the scale of the variable
that relates to the need for ethical rules.
 Notes 211

53 In order to calculate the correlation we reversed the scale of the variable

that relates to imposing restrictions on free speech.
54 J. N. Cappella and K. H. Jamieson, ‘News Frames, Political Cynicism, and
Media Cynicism’, Annals of the American Academy of Political and Social
Sciences, Vol. 546 (1996), pp. 71–84.
55 For instance, in recent years we could mention the extensive media cover-
age of the Derei affair (a prominent corrupt politician), the Ze’elim B affair
(misconduct in military training operation resulting in the death of sol-
diers), the killing of Egyptian POWs during the 1973 Yom Kippur 1973 War,
the revelation about the danger of Dimona nuclear waste, the revelation of
silicon in milk products produced by Tnuva dairy company, and the Bar-On
affair involving the nomination of an ill-suited lawyer, Ronny Bar-On, to
the office of Attorney-General.
56 E. Yuchtman-Yaar, ‘The Israeli Public and Its Institutions’, Israeli Democracy
(1989), pp. 7–11; T. Liebes and R. Ribak, ‘Democracy at Risk: The Reflection
of Political Alienation in Attitudes toward the Media’, op. cit., pp. 239–52.
57 D. Horowitz and M. Lissak, Hardships in Utopia: Israel Overloaded Society (Tel
Aviv: Am Oved, 1990); M. Lissak, ‘Uniqueness and Normality in the
Relationship between Military and Government in Israel’, in R. Cohen-
Almagor (ed.), Basic Issues in Israeli Democracy, op. cit., (both in Hebrew).
58 E. Yuchtman-Yaar, ‘Who’s Afraid of a Free Press?’, Israeli Democracy (1990),
pp. 19–21.
59 T. Liebes, ‘Television Disaster Marathons: A Danger for Democratic Process?’,
paper presented in International Symposium in Honour of Elihu Katz
( Jerusalem, May 1996).
Index

Adam, G. Stuart 108 Boeyink, David 77, 85, 181n8

advocacy 4 –7, 9, 20, 22, 48, 82 Bollinger, Lee C. 43, 170n37
advocacy journalism 85 breach of the peace 6, 20, 36–37,
Agranat, Justice Shimon 44 – 45 173n64
Al Fayed, Dodi 96 Brennan, Justice William J. 26, 30,
Amir, Yigal 80 33–34, 38, 40 – 41, 178n65
Anderson, Janet 130 British Standards Council 150
Andrews, Cecil 98, 187n33 Brown, MP John 201n21
Anson, Charles 192n21 Bryce, Lord James 88
‘Arab Movement for Change’ 55, Bunn, Chief Nelson 112
60, 62 Burger, Justice Warren 175n10,
Arafat, Chairman Yassir 60 –63 177n51
Arbel, Edna 194n40 Burt, Murray 133
Arhel, Aryeh 121 Byrd, Joann 195n47
assisted suicide 116–117, 123
see also police-assisted suicide Calcutt, Sir David 128–130, 202n38
Aubin, Henry 108, 113–114, Canadian Charter of Rights and
198n44, 204n60 Freedoms 116
Auger, Michael C. 109, 112, 136 Canadian Newspaper Act 203n49
autonomy xiv, 8, 168n17 Canadian Royal Commission on
AuYeung, Kenneth 114 –115 Newspapers xix
captive audience 13, 26
Bach, Justice Gabriel 76 ‘catch’ of democracy xv, 16, 43, 45,
balancing 30, 33, 39– 40, 42, 49, 87, 147, 172n61
57–58, 115, 175n14 CBC Journalistic Standards and
Barak, Justice Aharon 39– 40, 48–50, Practices 185n18
57–60, 65, 76 Chafee, Zechariah 7
Barendt, Eric 20 Chalfont, Lord 100
Bar-On, Ronny 191n18, 211n55 Cheshin, Justice Mishael 60 –64
Basic Law: Human Dignity and Chomsky, Noam 186n23
Freedom (1992) 38, 40 Clarification Committees 138–141
Basic Law: The Knesset (1958) 43, clear and present danger 54
51, 60, 64 Cohen Committee
Bejski, Justice Moshe 49 see Special Committee on Hate
Bell, MP Martin 119, 199n64 Propaganda
Ben-Yair, Attorney-General Michael Colin, Christine 114
53–54 Collin, Frank 12–13, 15, 18
Ben-Zimra, Judge 78, 194n41 Committee Against Racism 32
Berri, Nabih 83 Community Action for Non-Violence
Bingham, Sir Thomas M.R. 179n69 31
Black, Conrad 134 conception of the good 88, 92,
Black, Justice Hugo L. 25–26 189n4
Blackmun, Justice Harry A. 177n51 consequentialism 42

212
 Index 213

contagion effect 105, 196n3 fictitious events 99

Cook, Peter 36 fighting words 13, 170n33, 170n34,
Cooke, Janet 99 170n35, 171n50
copycat 105–109, 114, 118–119, First Amendment xiii-xiv, 13, 26,
121–122 28–33, 39, 42, 90, 169n31,
creative adjudication 47 171n50, 176n28, 177n33, 180n87
cross-ownership 101 see also Free Speech Principle
Fishman, Gideon 120, 200n71
Daley, Mayor Richard 179n84 Fletcher, Fred 110
Davey Committee/Report 132–134 Food Lion 93, 191n19
Davidovitz, Sarah 186n27 Ford, President Gerald 97
deception 92–93, 191n20 Fourteenth Amendment 28, 32
Declaration of Independence 62, 76, Frankfurter, Justice Felix 26
186n28 freelance journalism 102
defamation 8 Free Speech Principle 4 –6, 9, 14, 28,
democracy 35, 40, 178n61
‘militant’ 44 see also First Amendment
‘self-defending’ 45
democratic ‘catch’ Gans, Herbert J. 71
see ‘catch’ of democracy Geoni, Bracha 121
deontological approach 92 Gladstone, Prime Minister William
Derei affair 211n55 Ewart 36
Devlin, Lord Patrick 125 Goldberg, Justice Eliezer 39– 40
Diana, Princess of Wales xvii, 36, 96, Goldstein, Baruch 53
102, 104, 131–132, 149, 178n68, Grady, Judge 32–33
192n27, 195n48, 202n38 Greenspon, Edward 112, 133
Dickson, Justice Brian 82 Gulf War 199n64
discrimination 43, 54, 70, 81–83,
141, 174n67 ‘Hadash’ 52
Disraeli, Prime Minister Benjamin Haiman, Franklin 16–17
36 Hamas 156
Dornan, Christopher 108 Harm Principle xv, 3, 7, 16, 22,
Dorsen , Norman 43 168n14
Duke, David 190n9 harassment 36–38, 96, 102, 129,
Dworkin, Ronald xiv, 4, 15, 47, 175n13, 192n24
79, 92 Hartman, David 83
Hasson, Ayala 191n18
Eldridge, Judge 32 hate speech/propaganda xv, 3, 11,
Esser, Robin 132, 192n27, 195n54 81–82, 85, 172n61, 174n72,
European Convention on Human 181n6
Rights 50, 173n62, 174n72 heightened events 97
euthanasia 75 Herman, Edward S. 186n23
Eyal, Bezalel 142–143, 145–146 Heyd, David 72
exaggerated events 97 Hill, Margaret 119
Ezra, Gideon 99 Hillsborough stadium disaster 128
Himmler, Heinrich 91
Feinberg, Joel 9–10, 13–20, 170n36, Hodgson, Godfrey 119
170n38 Holmes, Justice Oliver Wendell 6–7
Feldman, David 35 hostile audience 13, 170n32
214 Index

Illinois Residential Picketing Statute Lepofsky, M. David 73, 106, 109

32–33, 177n45 Levine, Justice Shlomo 35, 39,
incitement 6, 12, 50 –51, 55–56, 178n66
59, 82–83, 91, 172n55, Liebes, Tamar 154
172n58 Locke, John xiv
see also instigation
instigation 4 –9, 16, 22 MacKay, Al 109
see also incitement MacKenzie, Arch 112
Intifada 78, 99 Major, Prime Minister John 130
International Convention on the Maltais, Robert 107
Elimination of All Forms of Marimow, William 79
Racial Discrimination 82, marketplace of ideas xiv, 58
174n67 Marmari, Hanoch 140
International Covenant on Civil and Marshall, Geoffrey 37
Political Rights 82 Marshall, Justice Thurgood 30
Islamic Jihad 156 Matza, Justice Eliyahu 169n25
Israel Broadcasting Authority 76, McGregor Commission 126–127
85 McGregor, Lord 131
Israel broadcasting Ethics Code McManus, John 73
185n17, 188n55 Merrill, John 81
Mill, John Stuart xiv, 4 –10, 168n8,
Journalist Oath 104 168n9, 168n17, 168n19, 168n20,
174n68
‘Kach’ 22, 43, 46, 49, 51–54, 76, Mills, Rilla Dean 78
182n32 ‘Moledet’ 52
Kahan Commission 73 Moon, Richard 188n54
‘Kahane Is Alive’ 43, 52–54, Moore, Charles 118–119, 131, 149,
182n32 192n27
Kahane, Rabbi Meir 46, 51, 75–76, moral neutrality 71, 79–80, 83–86,
85 184n10
see also ‘Kach’, ‘Kahane Is Alive’, murder for family honour 75
Kahanism Murdoch, Rupert 101, 132
Kahanism 53 Murphy, Justice Frank 28
Karni, Yoseph 139
Kasher, Asa 206n109 Nagel, Thomas 70 –71
Kaufman, Jonathan 81 ‘National Front’ 45, 172n60
Keegstra, James 82 National Heritage Select Committee
Kent Commission 133–134, 202n46, 130
203n49 National Socialist Party of America
Kent, Tom xix (NSPA) 12–14
Khomeini, Ayatollah 100 Nazism 91
Kretzmer, David 175n13 Negbi, Moshe 204n80
Krickhahn, Erwin 117 Neier, Aryeh 174n66
Ku Klux Klan (KKK) 23, 85 Netanyahu, Prime Minister Benjamin
191n18
Landau, Justice Moshe 44 – 45 Netanyahu, Justice Shoshana 76
Lebanon War 73 neutrality
Lehman-Wilzig, Sam 185n19 see moral neutrality
Lenin, Vladimir Ilich 81 Nolte, Georg 175n14
 Index 215

O’Connor, Justice Sandra Day Public Order Act (1986) 19–20,

29–30 37–38, 173n64, 179n70
Offence Principle xv, 3, 9–11, 16–22, public’s right to know xvii-xx, 92,
169n27 156–162, 184n9
Olshan, Justice Yitzhak 137–138
ombudsperson 101–102, 194n47 Quebec Press Council 110 –111,
Ontario Press Council 116, 133–135, 124, 133–136, 195n50, 203n55,
143, 203n57, 203n58 203n57
Oslo Peace Accords 24, 52, 61, 91, Quigley, Judge 81
156 Quilliot, Roger 110

Paine, Thomas xiv Rabin, Leah 24, 34, 80

Palestinian Liberation Organization Rabin, Prime Minister Yitzhak
(PLO) 24, 52, 61–63, 156 xv, 24, 34, 53, 72, 80, 91,
participatory democracy 25, 193n32
153 Race Relations Act (1976) 172n55
Parties Law (1992) 51, 55–57, 59–60, racism 12, 42, 50 –52, 55–59, 72,
63–64 79–81, 85, 88, 102, 141
paternalism 80 Radler, David 133, 185n21
Pavarotti, Luciano 94 ‘Ratz’ 52
Pelé, Edson Arantes do Nascimento Raudsepp, Enn 108, 136, 139
75 Rawls, John xiv
Peres, Prime Minister Shimon 104, Readers Editor 195n48
156 Reagan, President Ronald 83
Peretz, Saul 193n34 Rehnquist, Justice William H. 38,
Pergament, Moshe 117 177n51
Phillips, David P. 105 Reid, Alastair 194n39
police-assisted suicide 117 respect for others xiv, 21–22, 57,
see also assisted suicide 79–80, 85–87, 92, 123
Police Ordinance (Israel) 25–26 Ribak, Rivki 154
‘politics of numbers’ 73 Robertson, Geoffrey 126
Powell, Justice Lewis F. 169n31 Rochon, Jean 113
Press Complaints Commission (PCC) Rodriguez, Sue 116
95, 104, 126, 129–132, 149, Ronen, Moshe 139
189n58, 202n36 Ross Commission 124 –125
Press Council Law 146 Rotenstreich, Yehoshua 137,
Press Standards Board of Finance 139–140
202n36 Roy, Michel 107–108, 110 –111, 135,
Prevention of Terrorism Ordinance 203n56
53 R, Attorney General Elyakim
prior restraint xvi, 13, 31 194n40
Pritchard, David 136 Rumsfeld, Donald H. 31
‘Progressive List for Peace’ (PLP) 46, Rusbridger, Alan 119, 195n48,
52 199n62
‘propaganda model’ 186n23 Rushdie, Salman 23
public journalism movement
188n56 Sabra and Shatilla 73
Public Order Act (1936) 172n55, Sasseville, J. Serge 136
172n60 Scalia, Justice Antonin 31
216 Index

Scanlon, Thomas 18, 43, 171n42, Sussman, Justice Joel 44 – 45

171n49 Swedish Criminal Code 171n54
Schauer, Frederick 43 symbolic speech 176n21
Scherf, Zeev 137
Schocken, Amos 185n21 Tal, Justice Zvi 60, 64
Schocken, Gershom 137 terrorism 54 –55, 57, 61, 72, 79, 81,
Schudson, Michael 184n12 83–85, 100, 102, 159, 188n52,
Segal, Zeev 205n99 196n3
self-regulation xix, 104, 124, 129, see also theatre of terror
132, 139–140 theatre of terror 84
sensationalism 78, 100, 110 –111, Tibi, Ahmed 61–63
120, 152, 156, 194n41 Tocqueville, Alexis de xiv
Shamgar, Justice Meir 48– 49 tolerance 23, 42– 44, 46, 50, 54,
Shapira, Amos 122, 145 81–82, 90, 100, 153, 173n61
‘Shas’ 39 Truman, President Harry 35, 95
Shawcross Commission 125 Tuchman, Gaye 69
Shawcross, Lord 126
Sigma Delta Chi UN International Covenant on Civil and
see Society of Professional Political Rights 173n62
Journalists Universal Declaration of Human Rights
Sinclair, Gord 109 173n62
Sipple, Oliver 97
Six Day War 62 Vardi, Moshe 91
Skillen, Anthony 43 Vinson, Justice Fred. M. 169n31
Skokie affair 12–22, 42, 174n65, Vorspan, Rachel 179n72
181n6
Slippery-slope syndrome 20, 51–52, Wakeham, Lord 104, 132, 196n59
64, 116 Weimann, Gabriel 120, 200n71
Slonim, Uri 142, 146 Weinstein, Jim 181n6
Smith, Anthony 148–149 Wilkinson, Paul 188n52
social responsibility 81, 152–153, World War I 88
156–159, 161, 187n38 World War II 124
Society of Professional Journalists Worthington, MP Tony 201n21
70, 92–93, 191n20
Special Committee on Hate ‘Yemin Israel’ 55–56, 59–60
Propaganda 173n61 Yom Kippur War 211n55
Special Committee on Participation of Yoseph, Rabbi Ovadia 39
Visible Minorities in Canadian Younger Committee on Privacy 126
Society 173n61 Yuchtman-Yaar, Ephraim 154, 162
Spencer, Earl 95, 192n25
staged events 98, 187n34 Zadok Committee 146
Steel, Fraser 119 Zadok, Haim 141–146, 205n82
Stenning, Martin 36, 178n68 Zamir, Justice Yitzhak 60, 64,
Stephenson, Hugh 202n31 139–141, 145–147, 149, 205n82,
Stevens, Justice John Paul 34, 38 207n13
Sufrin, Mel 107, 112, 204n59 Zionism 12
Index of Court Cases

Canada United States

R. v. Keegstra [1990] 82 Stromberg v. California (1931) 34
Taylor et al. v. Canadian Human Lovell v. Griffin (1938) 180n86
Rights Commission et al. (1990) Hague v. CIO (1939) 33
173n61 Schneider v. State (1939) 180n86
Thornhill v. State of Alabama (1940)
28
European Commission on Cox v. New Hampshire (1941) 180n86
Human Rights Chaplinsky v. New Hampshire (1942)
170n33, 170n35
Glimmerveen and Hagenbeek v/the Saia v. New York (1948) 180n86
Netherlands (1980) 174n72 Kovacs v. Cooper (1949) 180n86
Dennis v. U.S. (1951) 169n31
United States v. O’Brien (1968) 29,
Israel 176n21
Brandenburg v. Ohio (1969) 12, 18,
E.A. 1/65 Yeredor v. Chairman of the
169n29
Central Committee for the Elections
Gregory v. Chicago (1969) 179n84
to the Sixth Knesset 42– 45,
Hibbs v. Neighborhood Organization to
47, 49
Rejuvenate Tenant Housing (1969)
E.A. 2/84 Neiman and Avneri v.
180n87
Chairperson of the Central
Gertz v. Welch (1974) 169n31
Committee for the Elections to the
Hudgens v. NLRB (1976) 33
11th Knesset 42, 46–51
State of Maryland v. Schuller (1977) 31
H.C. 2481/93 Yoseph Dayan v.
Skokie v. NSPA (1978) 13–14, 18
Police Chief District of Jerusalem
Brown v. Scott (1978) 31–32
39– 40
Carey v. Brown (1980) 38–39
405/95 CLAL v. The Broadcasting
Perry Education Association v. Perry
Authority 78, 194n41
Local Educators Association (1983)
P.C.A. 7504/95, 7793/95 Yassin and
29
Rochly v. the Parties’ Registrar and
United States v. Grace (1983) 29
Yemin Israel 55–60
Cornelius v. NAACP (1985) 29
P.C.A. 2316/96 Meiron Aizekson v. the
Frisby v. Schultz (1988) 28–29, 34, 38,
Parties’ Registrar and the Arab
180n89
Movement for Change 60 –64
Ramsey v. Edgepark (1990) 30
Valenzuela v. Aquino (1989) 177n33
United Kingdom Barrington v. Blake (1990) 176n28
Food Lion v. Capital Cities/ABC Inc.
Burris v. Azadani [1995] 36 (1996) 93, 191n19