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Demonstrations and the Law

Published online by Cambridge University Press:  16 February 2016

David Kretzmer
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Extract

The right of citizens to demonstrate has been in the news of late. Recent events have led many citizens in Israel to take to the streets as a means of expressing their opposition to, and in some cases support of, government policies, actions or leaders. Following a pattern which is not unusual in Israel, some aspects of this issue have found their way into the courts and on to the table of the Attorney General. Thus, the refusal of the Jerusalem police to grant a permit for a demonstration through the main streets of the city, exactly one month after the tragic murder of Emil Grunzweig during a Peace Now demonstration, led the disappointed applicants, with the active support of the Association for Civil Rights in Israel (ACRI), to petition the Supreme Court. The Court overruled the police decision and ordered the police to grant the licence. On the 1st April, 1983, following repeated requests by the ACRI, the Attorney General issued directives reaffirming the right of citizens to demonstrate and clarifying the powers of the police to disallow or interfere with demonstrations. That one of the two dailies with the largest circulations in Israel saw fit to publish the full text of these directives in its holiday edition is an indication of the interest which the public has in the issue.

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Articles
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Israel Law Review , Volume 19 , Issue 1 , Winter 1984 , pp. 47 - 153
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1984

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References

1 See Sa'ar v. Minister of interior and Police (1980) 34 (ii) P.D. 169; Levi v. Southern District Police Commander (not yet published; judgment given on 13.5.84; seen. 229a below).

2 See n. 4, below.

3 See Levi v. Southern District Police Commander, supra n. 1.

4 See Freedom to Demonstrate, Directives of the Attorney General of Israel (1983) in (1983) 18 Is. L. R. 511.

5 See Ma'ariv, 3 April 1983.

6 See Cmnd. 5919.

7 Cmnd. 7891: Review of The Public Order Act, 1936 and Related Legislation (1980).

8 See Fifth Report from the Home Affairs Committee, Session 1979–80, The Law Relating to Public Order, Vol. 1.

9 The Law Commission (Law Com. No. 123), Criminal Law: Offences Relating to Public Order (1983).Google Scholar This report was preceded by The Law Commission, Working Paper No. 82: Offences Against Public Order (1982).Google Scholar

10 See Kent v. Metropolitan Police Commissioner, The Times, 15 May 1981.

11 CARAF v. U.K. (Application 8440/78) 21 D. and R. of European Commission of Human Rights 138.

12 See e.g., Wallington, , “Injunctions and the Right to Demonstrate” (1976) 35 C.L.J. 82CrossRefGoogle Scholar; Williams, “The Law and Public Protest” The Cambridge — Tilburg Law Lectures, First Series 1978, p. 27; Barnum, , “The Constitutional Status of Public Protest Activity in Britain and the U.S.” (1977) Public Law 310Google Scholar; Bevan, , “Protest and Public Order” (1979) Public Law 163.Google Scholar Also see The Right of Peaceful Assembly — Its Evolution and Limits in a Democratic Society, Proceeedings of a Conference held by the British Institute of Human Rights (1982); Brownlie's, Law of Public Order and National Security. (2nd ed. by Supperstone, M., London, 1981) ch. 2.Google Scholar

13 For a review of the Skokie affair and a defence of the ACLU position in the affair see Neier, , Defending my Enemy: American Nazis in Skokie, llinois and the Risks of Freedom (Dutton, 1979)Google Scholar; Hamlin, , The Nazi Skokie Conflict: A Civil Liberties Battle (Boston, 1980).Google Scholar The major court decisions in this affair were: Village of Skokie v. National Socialist Party of America 366 N.E. 2d. 347 (1977); 373 N.E. 2d 21; Collin v. Smith 447 F. Supp. 676; 578 F. 2d 1197 (1978). The matter reached the U.S. Supreme Court which denied certiorari (with a strong dissent): 439 U.S. 916 (1978).

14 See A.G. v. Dupont (1978) 84 D.L.R. (3d) 420. And see Comment, (1979) 57 Can. B.R. 326.

15 See the reports on the position in Germany, the Netherlands and Austria respectively by Professors Frowein and Peters and Dr. Strasser in The Right of Peaceful Assembly, supra n. 12. On the position in France see Colliard, , Libertes Publiques (6th ed., 1982) 712–742.Google Scholar

16 The definition of expression as “an act intended to communicate to others some proposition or attitude” is taken from Scanlon, , “A Theory of Freedom of Expression” (1972) 1 Philosophy and Public Affairs 204.Google Scholar

17 See, e.g., the Belgian Constitution, which protects freedom of assembly but makes open-air meetings (the format of most demonstrations) “entirely subject to the police laws” (Art. 19). Also see Art. 8 (2) of The Constitution of the German Federal Republic.

18 See, e.g., the opinion of Black J., generally regarded as the justice with the most extreme libertarian stand on freedom of speech in Gregory v. City of Chicago 394 U.S. 11 (1969). Also see Cox v. Louisiana 379 U.S. 536 (1965) and A.G. v. Dupont, supra n 14.

19 For the provisions of major international conventions on freedom of assembly see Brownlie, supra n. 12 at 27–28. For the notion of public places of assembly as forums for expression see Kalven, “The Concept of the Public Forum: Cox v. Lousiana” [1965] S. Ct. R. 1.

20 See, e.g., Emerson, The System of Freedom of Expression (New York, 1970) ch. IX.

21 See, e.g., Cox v. Louisiana 379 U.S. (Cox II) (1965); Adderley v. Florida 385 U.S 39 (1966).

22 See Tribe, , American Constitutional Law (1978) 599–601.Google Scholar

23 See Barnum, supra n. 12.

24 For a recent presentation of this argument see the decision of the Supreme Court of Canada in A.G. v. Dupont, supra n. 14 and especially the dictum quoted in n. 42, infra.

25 The British Parliamentary Homo Affairs Committee Report on the Law Relating to Public Order, supra n. 8, stresses that: “The substantial and increasing financial, political and human cost of demonstrations, was and is, one of the main reasons for this inquiry.” Police spokesmen before the committee who argued for restrictions on the right to demonstrate based their case largely on the costs involved, citing huge costs of policing each large demonstration in London: See Hewitt, , The Abuse of Power (Oxford, 1982) 109–112.Google Scholar

26 See Emerson, supra n. 20 at 286; Peters, in The Right of Peaceful Assembly, supra n. 12; Hartley, and Griffith, , Government and Law (2nd ed., 1981) 154.Google Scholar

27 See Schauer, , Free Speech: A Philosophical Enquiry (Cambridge, 1982) 202.Google Scholar

28 Ibid. Also see Emerson, supra n. 20; Peters, supra n. 26.

29 See Emerson, supra n. 20.

30 See Wallington in The Right of Peaceful Assembly, supra n. 12.

31 See Schauer, supra n. 27.

32 For a recent comprehensive and critical discussion of the grounds for protecting freedom of speech see Schauer, id. Schauer briefly addresses the question I have raised — the place of a “right to dmonstrate” under each of these grounds — in his chapter on “Speech in the Streets”: id., at 201–203. The classic work on freedom of speech is, of course, Mill's essay “On Liberty”. The essay appears in Mill, , Utilitarianism, edited by Warnock, Mary (Collins, Fount Paperbacks, 1979) 126.Google Scholar Modern classics include Chafee, , Freedom of Speech (London, 1920)Google Scholar; Meiklejohn, , Free Speech and its Relation to Self-Government (N.Y., 1948)Google Scholar and Emerson, supra n. 20. Also see Scanlon, supra n. 16.

33 See Meiklejohn, supra n. 32. For a critical discussion of the Meiklejohn theory see Schauer, supra n. 27, ch. 3.

34 Schauer concludes his discussion of the democracy argument with the following statement: “The argument from democracy adds the lesson that political speech is different in kind as well as in degree. No facet of the argument from democracy is conclusive, but it provides several reasons for treating political speech as a wholly different creature. It thus gives added force to the argument from uncertainty, when that argument is applied to questions of governmental policy, power, and control.” (p. 46). This emphasis on “political speech” has been criticized and is cited as a major argument against regarding the Meiklejohn theory as an adequate theory of free speech: see Schauer, ibid.; Tribe, supra n. 22 at 577.

35 See Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871, especially at p. 876; I S.J. 90. For an indepth analysis of this historic decision see Lahav, , “American Influence on Israel's Jurisprudence of Free Speech”, (1981) 9 Hastings Const. L.Q. 21.Google Scholar

36 See Meiklejohn, supra n. 32 at 65–66.

37 See Schauer, supra a. 27 at 38.

38 ibid.

39 On this point see Barnum, supra n. 12 at 326–330.

40 See the remark of Lord Scarman in his Report on the Red Lion Square Disorders, supra n. 6 at 43, that a demonstration “is a means of protest, not a substitute for political discussion or parliamentary debate.”

41 See Etzioni, , Demonstration Democracy (N. Y., 1970).Google Scholar

42 See, e.g., A.G. v. Dupont, supra n. 14. In upholding a Montreal bye-law which gave the Executive Committee of the City the power to prohibit all assemblies, parades or gatherings the Supreme Court of Canada stated: “Freedom of speech, of assembly and association, of the press and of religion are distinct and independent of the faculty of holding assemblies, parades, gatherings, demonstrations or processions on the public domain of a city… Demonstrations are not a form of speech but of collective action. They are of the nature of a display of force rather than of that of an appeal to reason; their inarticulateness prevents them from becoming part of language and from reaching the level of discourse.” at p. 439).

43 See, e.g., Street, Freedom, Individual and the Law (5th ed., 1982); Hartley and Griffith, supra n. 26; Hewitt, supra n. 25. Also see Boyle, , “Freedom of Expression as a Public Interest in English Law” (1982) Public Law 574.Google Scholar

44 See de Smith, Constitutional and Administrative Law (4th ed., by Street and Brayier, 1981) 447.

45 See Wallington, supra n. 12.

46 See the statement of Lord Dunedin in M'Ara v. Edinburgh Magistrates 1913 S.C. 1059, 1073: “As regards the common law, I wish most distinctly to state it as my opinion that the primary and overruling object for which streets exist is passage. The streets are public but they are public for passage, and there is no such thing as a right in the public to hold meetings as such in streets… streets are for passage and passage is paramount to everything else.” And see the other authorities for this view cited in Brownlie, supra n. 12 at 42–44.

47 See Goodhart, , “Public Meetings and Processions” (1937) 6 C. L.J. 161CrossRefGoogle Scholar; Barnum, supra n. 12; Street, supra n. 43 at 57; Wallington, supra n. 12; de Smith, supra n. 44 at 496–477; Blackwell's, Law of Meetings (London, 9th ed., 1967) 5.Google Scholar

48 See Goodhart, supra n. 47. For a criticism of this view see Brownlie, supra n. 12 at 46–50; Williams, , Keeping the Peace (London, 1967) 216Google Scholar; Wallington, supra n. 12. The critics argue that the lawfulness of a demonstration should not depend on whether it may be regarded as exercise of the right of passage or something reasonably incidental thereto, but whether it is a reasonable use of the highway in the context of the rights of highway users generally: see Wallington, ibid.

49 See de Smith, supra n. 44, at 495; Wallington, supra n. 12.

50 Wallington, ibid.

51 The Times, 15 May 1981.

52 Id.per Lord Denning. The third justice, Sir Denys Buckley, went as far as to say that the Commissioner's reasons for his order seemed meagre. He held, however, that it was for the CND to show that there were no, or no reasonable, grounds on which the Commissioner could have held that the CND march would be likely to cause serious disorder.

53 [1975] 3 W.L.R. 201. For a critical review of this case see Wallington, supra n. 12.

54 [1975] 2 W.L.R. 254.

55 [1975] 3 W.L.R. 214.

56 Lord Denning's statement on the right to protest and the public interest in protecting this right is the strongest judicial support in England for recognition of the right to demonstrate as a legal principle. This statement has been welcomed by academic writers: see Williams, , “Freedom of Assembly and Free Speech: Changes and Reforms in England,” (1975) 1 U. of N.S. Wales L.J. 97, 119Google Scholar; Wallington, supra n. 12.

57 The majority based their judgment on the ruling of the House of Lords regarding interlocutory injunctions in American Cyanamid Co. v. Ethicon Ltd. [1975] 2 W.L.R. 316. Having found that it could not be said that the plaintiffs had no prima facie case, they went on to examine the balance of convenience question and decide it in the plaintiffs' favour. Stamp L.J. did indeed refer to the possible limit on freedom of speech (in the context of enjoining a possibly defamatory statement): [1975] 3 W.L.R. at 220. But neither he nor Orr L.J. referred to the right to demonstrate which was stressed by Lord Denning M.R.

58 See first and foremost the strong statement of Lord Scarman in his report in the Red-Lion Square disorders, supra n. 6 at § 5. On the implications of this statement see Williams, supra n. 56. Also see the statement in the Green Paper on the Public Order Act, supra n. 7 at 11: “The freedom to demonstrate one's views in public — within the law — is fundamental to a democracy.

59 See Street, supra n. 43; Wallington, in The Righi of Peaceful Assembly, supra n. 12. For a judicial statement to this effect see the judgment of Forbes, J. in Hubbard v. Pitt, supra n. 54.

60 See Hewitt, supra n. 25 at 149. Also see the Memorandum of the National Council for Civil Liberties (NCCL) submitted to the Parliamentary Home Affairs Committee, in The Law Relating to Public Order, supra n. 8, Vol II, p. 144–149; Legal Action Group, Recommendations to the Review of the Public Order Act, 1936 and Related Legislation (July, 1980).Google Scholar

61 For a classic discussion of the right to a public forum see Kalven, supra n. 19. Also see Stone, , “Fora Americana: Speech in Public Places” [1974] S. Ct. R. 233.Google Scholar

62 167 U.S. 43 (1897).

63 Ibid., at 47.

64 See Emerson, supra n. 20 at 292–298.

65 See, e.g. the leading statement of Justice Goldberg in Cox v. Lousiana 379 U.S. 536, 555, (1965): “We emphatically reject the notion urged by appellant that the First and Fourteenth Amendments afford the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as these amendments afford to those who communicate ideas by pure speech.” And see the other authorities cited in Emerson, supra n. 20 at 294, n. 7. Also see Kalven, supra n. 19 at 23–25.

66 See the concurring judgment of Justice Black in Cox v. Louisiana, ibid. at 577.

67 “Standing, patrolling or marching back and forth on streets is conduct, not speech, and as conduct can be regulated or prohibited:” per Justice Black, ibid. at 581.

68 See Kalven, supra n. 19 at 15; Barnum, supra n. 12 at 316.

69 Supra n. 62.

70 307 U.S. 496 (1939).

71 Ibid., at 515.

72 See Barnum, supra n. 12 at 316. The Davis approach received some support even after the Hague decision. See, e.g., the judgment of Justice Black in Adderley v. Florida 385 U.S. 39, 47–48 (1966).

73 See Haber, Emerson and Dorsen's, Political and Civil Rights in the U.S. (Boston, 4th ed., 1976) Vol. 1, p. 258.Google Scholar

74 See Note, “The Public Forum: Minimum Access, Equal Access and the First Amendment” (1975) 28 Stan. L. R. 117.

75 See, e.g., Cox v. Louisiana 379 U.S. 536 (1965); Shuttlenvorth v. Birmingham 394 U.S. 147 (1969); Police Department of Chicago v. Mosley 408 U.S. 92 (1972); Carey v. Brown 447 U.S. 455 (1980).

76 Ibid.

77 Ibid. at 470–471.

78 On the other hand the “soft” view of this distinction, which allows less protection for speech plus conduct than for “pure speech”, is still influential. For a criticism of this latter view see Emerson, supra n. 20 at 297–298; Kalven, supra n. 19 at 23–25.

79 See Emerson, supra n. 20 at 303; Tribe, supra n. 22 at 689. And see Note, “Regulation of Demonstrations” (1967) 80 Harv. L. R. 1773.

80 See Tribe, supra n. 22 at 689.

81 For a presentation of this tension see Gunther, , Constitutional Law, Cases and Materials (10th ed., 1980) 1195–1208Google Scholar; Note, supra n. 74.

82 See Barnum, supra n. 12 at 316.

83 See Emerson, supra n. 20 at 303–304. It has not, however, convinced commentators that the need for such an independent right is obviated: Emerson, ibid.; Kalven, supra n. 19; Note, supra n. 74.

84 Supra n. 74.

85 In making this statement the present writer does not presume to challenge the call of those American commentators who argue for recognition of a positive right to a public forum: see Kalven, supra n. 19; Emerson, supra n. 20; Note, supra n. 74. My major point is that whatever the approach to the demonstration question, it is clear to all that a constitutional principle is involved. The implications of this point will be explored below.

86 See Shapira, , “The Protection of Human Rights in Constitutional Law in Israel,” in Israeli Reports to the Ninth International Congress of Comparative Law, edited by Englard, I., (Jerusalem, 1974) 105Google Scholar; Lahav, and Kretzmer, , “A Bill of Rights for Israel: A Step Forward?” (1976) 7 Mishpatim 154, 160–165.Google Scholar

87 Supra n. 35.

88 Ibid. Also see the minority judgment of Shamgar, J. in “Ha'aretz” v. Israel Electric Co. (1977) 31 (ii) P.D. 281.Google Scholar

89 See Israel Film Studios v. Geri (1961) 16 P.D. 2407; Al Assad v. Minister of Interior (1979) 34 (i) P.D. 505. Also see the minority judgment of Bach, J. in Zichroni v. Broadcasting Authority (1983) 37 (i) P.D. 757, 777.Google Scholar

90 See Opinion of the Attorney General in the Matter of Censorship under the Public Performances (Censorship) Ordinance, (1982) 17 Is. L. R. 511. The Attorney General concludes his opinion with the following statement: “In summation it can be stated that the Film and Theatre Censorship Board, although established to exercise the power of censorship, must nevertheless be guided first and foremost by the principle of freedom of expression. And freedom of expression does not exist, and is not even necessary, unless it allows for the voicing of the harsh and offensive. It therefore follows that the performance of a play should be prevented only in extreme cases in which the performance entails a criminal offence, such as incitement or rebellion, or an outrage to the public's values and feelings that is so severe that it clearly outweighs the principle of freedom of expression. When in doubt, authorisation of the performance is the proper course:” ibid. at 523.

91 See Shapira, supra n. 86 at 105–106; Lahav and Kretzmer, supra n. 86 at 162.

92 See El Ard v. Northern District Commissioner (1964) 18 (ii) P.D. 340; Makhoul v. Jerusalem District Commissioner (1983) 37 (i) P.D. 789.

93 Per Landau, D.P. in Al Assad v. Minister of Interior, supra n. 89 at 513.

94 See Raffel, , “The Right to Demonstrate: A Comparative Study of Israel and the United States” (1976) 11 Is. L. R. 348Google Scholar, 357–358. The decisions cited by Raffel are all unpublished. The two main decisions, Kahane v. Southern District Police Commander and Malka v. Israel Police are on file with the present writer.

95 See Raffel, ibid.

96 Raffel, id., is forced to conclude: “By choosing to remain silent instead of using its authority to interpret the Police Ordinance by actively seeking a balance between the public order interest and the freedom to demonstrate, the Court leaves the district police commander essentially unfettered in the exercise of his authority.”

97 Supra n. 1.

98 ibid. at 171.

99 Cf. the statement of Frankfurter J. in Niemotko v. Maryland 340 U.S. 273, 276 (1951) that the issue is “how to reconcile the interest in allowing free expression in public places with the protection of… the primary use of streets and parks.” And see Kalven, supra n. 19 at 15.

100 Sa'ar decision, supra n. 1 at 177–78.

101 See text accompanying n. 219, infra.

102 Sa'ar decision, supra n. 1 at 175.

103 I do not maintain, of course, that every system with an entrenched bill of rights will analyse the issue in the same way as the American decisions. Thus, for example, the European Convention of Human Rights guarantees the right to freedom of assembly and provides that no restrictions may be placed on this right “other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others” (Art. 11). In two decisions considering this right the European Commission of Human Rights has bowed to police discretion on public order matters and has upheld general bans on demonstrations based on general public order considerations. See Rassemblement Jurassien et l'unite Jurassienne v. Switzerland (1979) 17 D. and R. of E.C. of H.R. 93 (English translation, p. 108); CARAF v. U.K., supra n. 11. For a discussion of the Convention approach to the right to demonstrate see the analysis of Dr. Strasser, in The Right of Peaceful Assembly, supra n. 12.

104 A legal principle such as that laid down in Sa'ar may, however, serve to overrule secondary legislation, such as a municipal bye-law: see, e.g., Freidi v. Tel-Aviv-Jaffa Municipality (1955) 10 P.D. 734 (invalidation of municipal bye-laws which restricted sale of pork, for religious reasons). And see Melbourne Corp v. Barry (1922) 31 C.L.R. 174 in which the Australian court declared invalid a municipal bye-law which prohibited processions unless licensed.

105 See n. 1, supra.

106 For an interesting insight into the police perspective of the issue see Chapple, , “Freedom of Assembly” (1964) 55 J. Crim. L., G. and P.S. 425.Google Scholar Also see Hewitt, supra n. 25 at chap. 5.

107 See Hewitt, ibid.

108 See Hewitt, ibid. at 107.

109 See Part IA above.

110 See Emerson, , “The Doctrine of Prior Restraint” (1955) 20 Law and Contemporary Problems 648.CrossRefGoogle Scholar

111 See Emerson, id. Also see the judgment of Agranat J. in Kol Ha'am v. Minister of Interior, supra n. 35.

112 See Schauer, supra n. 27 at 151.

113 See Fisse, and Jones, , “Demonstrations: Some Proposals for Law Reform” (1971) 45 Aust. L. J. 593.Google Scholar

114 Processions are prima facie lawful as use of the highway for its dedicated purpose: passage. See Brownlie, supra n. 12 at 50. Also see Barnum, supra n. 12.

115 See Hartley and Griffith, supra n. 26 at 155; Bailey, Harris & Jones, , Civil Liberties: Cases and Materials (London, 1980) 142Google Scholar; Street, supra n. 43 at 55.

116 See Street, id.

117 See Williams, supra n. 48 at ch. 3, for a history of the restrictions on demonstrations in Hyde Park and Trafalgar Square.

118 Williams, ibid. at 85.

119 Id.

120 See Bailey, Harris & Jones, supra n. 115 at 142; Hewitt, supra n. 25 at 122.

121 See Brownlie, supra n. 12, who states (at 36): “While permission for the holding of public rallies in Trafalgar Square is a matter of discretion, the Secretary of State is, of course, responsible to Parliament for the decisions taken.”

122 See Williams, supra n. 48 at 86.

123 Supra n. 70.

124 312 U.S. 569 (1941).

125 ibid. at 575–576.

126 Ibid.

127 Supra n. 124.

128 345 U.S. 395 (1953).

129 See Emerson, supra n. 20 at 371ff.

130 See, e.g., A Quaker Group v. Morton 516 F. 2d 7 7 (1975).

131 See Shuttlesworth v. Birmingham, supra n. 75; Cox v. Louisiana, supra n. 75.

132 See Shuttlesworth v. Birmingham, supra n. 75.

133 See CARAF v. U.K., supra n. 11.

134 See the exposition by Prof. Peters in The Right of Peaceful Assembly, supra n. 12.

135 ibid.

136 Ibid.

137 See the exposition of Dr. Strasser in The Right of Peaceful Assembly, supra n. 12.

138 Police Ordinance, sec. 84(a) (2 L.S.I. [N.V.] 158 at 174).

139 Police Ordinance, sec. 85.

140 Police Ordinance, sec. 86.

141 See Y.P. 648 (5719–1959) p. 660; Y.P. 1114 (5725–1965) p. 52; Y.P. 1645 (5730–1970) p. 2548.

142 see part II, sections A, 2 and 3 below.

143 Police Ordinance, sec. 83.

144 ibid.

145 See notices cited in n. 141, supra.

146 The cases, all unpublished, are cited in n. 203, infra.

147 Directives of Attorney General, supra n. 4 at 513.

148 See Fisse and Jones, supra n. 113. These writers refer to the notification system, but the same could be applied to a permit system.

149 See the Sa'ar and Levi decisions, supra n. 1.

149a 33 L.S.I. 89.

150 See the expositions by Prof. Frowein (W. Germany), Prof. Peters (Netherlands) and Dr. Strasser (Austria) in The Right of Peaceful Assembly, supra n. 12; Colliard, supra n. 15 (France).

151 See, e.g., West Midlands County Council Act, 1980 (sec. 38); Cheshire County Council Act, 1980 (sec. 28); Isle of Wight Act, 1980 (sec. 26). And see Bailey, Harris and Jones, supra n. 115 at 150.

152 See Wallington in The Right of Peaceful Assembly, supra n. 12.

153 See Cmnd. 5919, supra n. 6.

154 See Cmnd. 8427: Report of Inquiry into the Brixton Disorders (1981), § 7.49.

155 See Cmnd. 7891, supra n. 7.

156 See The Law Relating to Public Order, supra n. 8.

157 See Legal Action Group Recommendations, supra n. 60.

158 See NCCL Memorandum, supra n. 60.

159 Supra n. 8.

159a See Wallington in The Right of Peaceful Assembly, supra n. 12; NCCL Memorandum, supra n. 60; Hewitt, supra n. 25 at 142.

160 See Legal Action Group Recommendations, supra n. 60; Hewitt, ibid.

161 See, e.g., sec. 38(b) of West Midlands County Council Act, 1980. And see the expositions of Wallington and Frowein in The Right of Peaceful Assembly, supra n. 12.

162 See Fisse and Jones, supra n. 113.

163 See, e.g., sec. 38 of West Midlands County Council Act, 1980.

164 Ibid.

165 See Fisse and Jones, supra n. 113.

166 ibid.

167 ibid.

168 See the expositions of Profs. Frowein and Peters in The Right of Peaceful Assembly, supra n. 12.

169 See Cmnd. 5919, supra n. 6.

170 See Hubbard v. Pitt, supra n. 53.

171 See Brownlie, supra n. 12 at 72.

172 See Wallington, supra n. 12.

173 Freedom of Assembly Meeting and Procession Bill, 1981, a private member's bill submitted to the Knesset by M. Shahal, M.K. The preliminary reading required for a private member's bill took place on 15 Dec. 82 and the bill was sent to the Constitution and Law Committee of the Knesset for consideration: see Stenograph Minutes of the Tenth Knesset, 3rd Session, 149th meeting, pp. 60–68.

174 See Fisse and Jones, supra n. 113.

175 See above, text accompanying n. 102.

176 See Strasser in The Right of Peaceful Assembly, supra n. 12.

177 See Frowein, ibid.

178 See Peters, ibid.

179 See Brownlie, supra n. 12 at 52. Also see Cmnd. 7891, supra n. 7.

180 See Cmnd. 7891, supra n. 7; Cmnd. 8427, supra n. 154; Wallington, in The Right of Peaceful Assembly, supra n. 12.

181 See N.C.C.L. Memorandum, supra n. 60.

182 See the exposition of Wallington in The Right of Peaceful Assembly, supra n. 12.

183 Ibid.

184 See Parliamentary Home Affairs Committee Report, supra n. 8.

185 See N.C.C.L. Memorandum, supra n. 60.

186 supra n. 10.

187 See text accompanying nn. 51–52, supra.

188 See CARAF v. U.K., supra n. 11, at 150.

189 See below, text accompanying nn. 258–262.

190 See Sa'ar v. Minister of Police, supra n. 1; Levi v. Police Commander of Southern District, supra n. 1.

191 See Brownlie, supra n. 12 at 72–73.

192 See Churchman v. Joint Shop Stewards [1972] 3 All E.R. 603; Midland v. Turner [1972] 3 All E.R. 733; Midland v. Steer [1972] 3 All E.R. 941. The century-earlier case was Llandudno U.D.C. v. Woods [1889] 2 Ch. 705.

193 supra n. 53.

194 Ibid., at 213.

195 See Williams, supra n. 48 at ch. 4; Williams, , “Protest and Public Order” [1970] C. L.J. 96, 103–106Google Scholar; Grunis, , “Binding-Over to Keep the Peace and Be of Good Behaviour in England and Canada” [1976] Public Law 16Google Scholar; Brownlie, supra n. 12 at 312–315.

196 See Archbold, , Pleading, Evidence and Practice in Criminal Cases (41st ed.) § 5–116.Google Scholar Also see authorities cited in supra n. 195.

197 See Grunis, supra n. 195 at 29–30. For other instances of use of this power to prevent demonstrations, see Williams, supra n. 195.

198 See Williams, supra n. 195 at 105; Grunis, supra n. 195 at 39.

199 See Duncan v. Jones [1936] 1 K.B. 218.

200 See Blasi, “Prior Restraints on Demonstrations” (1970) 68 Mich. L. R. 1481.

201 See, e.g., Village of Skokie v. National Socialist Party of America 366 N.E. (2d) 47 (1977), on appeal 373 N.E. 2d 21, in which the constitutionality of a Skokie ordinance aimed at keeping Nazis out was determined in proceedings instituted by Skokie municipality for an injunction.

202 Supra n. 53.

203 A number of cases in which the police have acted in this way have come before the lower courts. See Cr. Ap. 51/77 (Jerusalem District Court); Cr. C. 2132/80 (Jerusalem Magistrate's Court); Cr. C. 4300/81 (Jerusalem Magistrate's Court). The above decisions, none of which has been published, are on file with the writer.

204 See supra n. 173.

205 In one case a neighbour of the Prime Minister, disturbed by the pickets outside his residence, applied to the High Court for an order against the police forcing them to remove the pickets. In a written notice to the court the Attorney General's representative argued on behalf of the police, that the remedy of the applicants was a nuisance action against the demonstrators. The applicant withdrew his petition before the Court decided the case. (See H.C. 431/83 Harpaz v. Minister of Interior, on file with the ACRI).

206 See sec. 44 of the Civil Wrongs Ordinance (2 L.S.i. [N.V.] 5 at 17). An action could not be brought by a private individual on the grounds of public nuisance unless that individual had suffered monetary damage: see Kretzmer, , Nuisance (Jerusalem, 1980) § 16.Google Scholar Furthermore, in order to succeed in a public nuisance suit the plaintiff has to show that the defendants act is “unlawful”: ibid. at § 4. Given the ruling of the Supreme Court in the Sa'ar case (supra n. 1) that the streets in Israel are meant for processions and demonstrations, and not only for passage, it can hardly be argued that a demonstration is, per se, unlawful. However, if the demonstration involves commission of some specific offence, such as obstruction of the highway, it could also be regarded as unlawful for the purposes of the tort of public nuisance. And see Bailey, Harris & Jones, supra n. 115 at 136–137; Wallington, supran. 12.

207 See Protection of Privacy Law, 1981 (S.H. 1011, p. 128).

208 See sec. 63 of the Civil Wrongs Ordinance.

209 See Part I above.

210 See Kalven, supra n. 19 at 25.

211 Two demonstrations, such as pickets, in the same vicinity, are not necessarily incompatible. If there is no incompatibility the competing use question does not arise (though a public order question may arise).

212 See The Law Relating to Public Order, supra n. 8.

213 See Blasi, supra n. 200.

214 Ibid., at 1490.

215 Ibid.

216 ibid., at 1491.

217 ibid.

218 ibid.

219 Supra n. 1.

220 ibid., at 178.

221 On the legitimacy of per se restrictions see Blasi, supra n. 200 at 1501–1503; Note, supra n. 79.

222 For a discussion of the question whether there are types of public places from which demonstrations may be excluded entirely, see below.

223 See the decisions in CARAF v. U.K., supra n. 11 and Rassemblement Jurassien v. Switzerland, supra n. 103.

224 See Blasi, supra n. 200.

225 See, e.g., Sa'ar v. Minister of Police, supra n. 1.

226 See Blasi, supra n. 200 at 1519.

227 See The Law Relating to Public Order, supra n. 8; cf. Sa'ar v. Minister of Interior, supra n. 1 at 175–76. The police, who had refused to grant a permit for a procession to the petitioners, argued that during a previous demonstration organised by the petitioners an attempt had been made to forcibly enter a government office. While the court was prepared to concede that this past conduct of the petitioners would have justified refusing a permit for a demonstration outside a government office, it held that it could not justify refusing a permit for a procession through the city.

228 Supra n. 35.

229 See sec. 3 of the Public Order Act, 1936.

229a This article was completed and submitted for publication before the reasoned judgment of Barak J. in Levi v. Southern District Police Commander (supra n. 1) was handed down on 13 May 1984. The present writer was gratified on reading Barak J.'s opinion, the first major Israeli decision on the hostile audience question, to find that the view presented here is close to the view adopted by Barak J. In these circumstances the writer felt it unnecessary to make changes in the text of the article submitted for publication. But see infra n. 233a.

230 For discussion of the question see Note, “Freedom of Speech and Assembly: The Problem of the Hostile Audience” (1949) 49 Col. L.R. 1118; Carson, , “Freedom of Assembly and the Hostile Audience: A Comparative Examination of the British and American Doctrines” (1969) 15 N.Y.L. Forum 798Google Scholar; Blasi, supra n. 200; Emerson, supra n. 20 at 336–342; Barnum, , “Freedom of Assembly and Hostile Audiences in Anglo-American Law” (1981) 29 Am. J. of Comp. L. 59.CrossRefGoogle Scholar

231 See Blasi, supra n. 200 at 1510.

232 See section C. 1 below.

232a See Levi v. Southern District Police Commander, supra n. 1 at § 12: “The initial action of the police must be directed not against those participating in the procession or demonstration, but against those who threaten acts of violence against the demonstration…. the police have a duty to take all the reasonable measures necessary to prevent threats and interference with the procession or demonstration.”

233 See, e.g., Emerson, supra n. 20 at 338–339.

233a See Levi v. Southern District Police Commander (supra n. 1). Barak J. held that fear of a hostile audience may justify refusal of a licence for a procession only if the police have fulfilled their primary duty to protect the participants against those who threaten violence, and that nevertheless the danger of harm to body or property still meets the “probability” test adopted in Israel as the balancing test in cases of a clash between freedom of speech and public safety. Also see Ne'emanei Har Habayit v. Jerusalem Police Commander (unpublished judgment of 18 May 1984). For an opposing view, see Emerson, supra n. 20 at 336–342.

234 See Blasi, supra n. 200 at 1522.

234a An allied question which has not been dealt with here is the status of the “right to demonstrate” during a state of emergency, not a technical “state of emergency” which exists by virtue of a formal declaration, but a critical situation which “threatens the life of the nation.” (On this distinction see Klinghoffer, , On Freedom of Expression (The Association for Civil Rights in Israel, 1984) 5.Google Scholar A technical state of emergency has existed in Israel since independence by virtue of formal declaration, though clearly a critical situation threatening the life of the nation has not existed during all the time which has passed since the said declaration.). Human rights conventions generally recognize that such a situation may justify incursions on certain acknowledged liberties “to the extent strictly required by the exigencies of the situation.” (Klinghoffer, ibid.). Conceivably the exigencies of a situation could strictly require restraining of demonstrations. Thus, for example, the deployment of law enforcement forces during an emergency situation may make it impossible to allocate forces to police demonstrations. The major point here is that the authorities should be able to show that the restraints on demonstrations are indeed strictly required by the “exigencies of the situation”, and not imposed so as to prevent criticism of the government. It is encouraging to note that the continuation of actual hostilities after the Israeli military intervention in Lebanon in June and July, 1982 was not exploited so as to restrain anti-government demonstrations.

235 In Britain sec. 5A of the Public Order Act, 1936 does indeed outlaw publishing a matter or using words “which are threatening, abusive or insulting, in a case where having regards to all the circumstances, hatred is likely to be stirred up against any racial group in Great Britain…” This section does not, however, outlaw all propagandizing of racist views. Indeed, one of the criticisms of the law is that it does not prevent more sophisticated forms of racist propaganda. See: Lester, and Bindman, , Race and Law (1972) 361.Google Scholar

236 See Haiman, , Speech and Law in a Free Society (Chicago, 1981) 94.Google Scholar

237 See, e.g., Glass, , “Anti-Racism and Unlimited Freedom of Speech: An Untenable Dualism” (1978) 8 Can. J. of Philosophy 559.CrossRefGoogle Scholar

238 See Legal Action Group, Recommendations to the Review of the Public Order Act, supra n. 60.

239 See Preamble to the Universal Declaration of Human Rights adopted by the General Assembly of the U.N. on 10 December 1948.

240 See Hewitt, supra n. 25 at 146; Haiman, supra n. 236 at 97.

241 See Neier, supra n. 13.

242 Cf. Note, “Group Libel Laws: Abortive Attempts to Combat Hate Propaganda” (1952) 61 YaleL. J.

243 See Village of Skokie v. National Socialist Party of America 366 N.E. 2d. 347 (1977); on appeal 373 N.E. 2d. 21. The court held that those who wished to avoid seeing the parade and the swastika symbol could do so. And cf. Jewish War Veterans v. American Nazi Party 260 F. Supp. 452. In this case the court granted an injunction to prevent Nazis marching through a Jewish area during Jewish festivals when residents would be going to and from synagogue services.

244 See Village of Skokie v. National Socialist Party of America, ibid.; Collin v. Smith 578 F. 2d 1197 (1978).

245 See Hewitt, supra n. 25 at 146.

246 Dealing with the legitimate grounds for refusing a demonstration permit, the Israel Attorney General states: “The issue for which the licence to hold a demonstration is requested, the subject of the lecture or speech, or the ideological background of the organizers or participants at the demonstration, are not a police matter, and do not constitute a reason for refusing a licence.”: Attorney General's Directives, supra n. 4, at § 12 b.

247 The standard application form for a procession or open-air meeting permit in Israel requires the applicants to state the aim of the procession or meeting.

248 See Hewitt, supra n. 25 at 147.

249 The preventing of a march by Mosley's fascists in the East End of London in 1936 is said to have precipitated anti-Jewish attacks a week later: see Cross, , The Fascists in Britain (1961) 149 ff.Google Scholar

250 See statement of Israel Attorney General quoted in supra n. 246.

251 See Cox v. New Hampshire, supra n. 124.

252 394 U.S. 147 (1969).

253 ibid., at 155, n.4.

254 See Sa'ar v. Minister of Police, supra n. 1. For a review of the court's approach up until the Sa'ar decision see Raffel, supra n. 94. Also see the remarks of M. Shahal, M.K. in presenting his private member's bill on demonstrations to the Knesset: Stenograph Minutes of Tenth Knesset, supra n. 173.

255 See Sa'ar v. Minisier of Police, supra n. 1 ; Levi v. Southern District Police Commander, supra n. 1.

256 See Säar v. Minister of Police, supra n. 1 at 176.

257 It should be stressed that the Supreme Court does make an effort to hear applications in demonstration cases expeditiously. In Levi v. Southern District Police Commander, supra n. 1, the applicants received the negative reply to their permit application for a procession planned for a Thursday on the preceding Sunday evening. They submitted their petition on Monday morning and a hearing was set for Wednesday. At the end of the hearing the court granted an absolute order against the police, and the procession was held as planned. In another recent case (still pending) the police had attempted to prevent a “protest theatre” from performing in a public park. The petition was submitted on the morning of the planned performance and the Court held a hearing on the application for an interlocutory injunction on the same morning. The interlocutory injunction was granted and the performance went ahead as planned: see Ha'aretz, 19 April 1984. The Court itself has, however, recently remarked on the constraints which the expeditious procedure in this type of case places on it: see H.C. 292/83 Ne'emanei Har Habayit v. Jerusalem Police Commander (unpublished decision of 18 May 1984, on file with author).

258 Supra n. 11.

259 Supra n. 10.

260 See text accompanying nn. 121, 122 supra.

261 See Street, supra n. 43 at 56.

262 (1962) 16 P.D. 2101.

263 See Cmnd. 8427, supra n. 154 at 124.

264 See Hewitt, supra n. 25, ch. 5.

265 See Brownlie, supra n. 12 at 60–61; Barnum, supra n. 12; Law Commission, Working Paper no. 82, Offences Against Public Order (1982) § 7.1–7.13.

266 See May's, Parliamentary Practice (London, 19th ed., 1976) 220Google Scholar; Brownlie, supra n. 12, Appendix 1, p. 349–351.

267 See Brownlie, ibid. And see Despard v. Wilcox (1910) 102 L.T. 103. In Parkhurst v. Jarvis (1910) 101 L.T. 946 the court based a criminal conviction for breach of the sessional orders on another statute, The Prevention of Crimes Amendment Act, 1885.

268 [1967] 2 All E.R. 41.

269 ibid., at 46.

270 ibid., at 45.

271 See Brownlie, supra n. 12 at 60.

272 See Papworth v. Coventry, supra n. 268 at 48; Street, supra n. 43 at 67.

273 The relevant statutes are the Tumultous Petitioning Act, 1961 and the Seditions Meetings Act, 1817: see May's Parliamentary Practice, supra n. 266 at 220; Brownlie, supra n. 12 at 60 n. 18. The Law Commission has recommended that these acts be repealed: Law Commission, supra n. 265 § 7.10.

274 See Barnum, supra n. 12 at 328–329.

275 372 U.S. 229 (1963).

276 Ibid., at 235.

277 See, e.g., A Quaker Action Group v. Hickel 421 F. 2d 1111 (1969); A Quaker Action Group v. Hickel 429 F. 2d 185 (1970); Jeannette Rankin Brigade v. Chief of the Capitol Police 342 F. Supp. 575, aff'd 409 U.S. 972 (1972).

278 516 F. 2d 717 (1975).

279 See Knesset Building and Precincts Law, 1968, sec. 7 (22 L.S.I. 226).

280 It may indeed be argued that as head of the legislative branch, the Speaker's decision should not be subject to judicial review. It is hard to believe that this argument would find much support in the Supreme Court. A more likely approach would be to hold that the Speaker's decision on permit applications is an administrative decision made by a body acting under law, and that it is therefore subject to judicial review.

281 But see below for the position regarding demonstrations in residential areas.

282 These pickets were widely reported in the daily press. See, e.g. Jerusalem Post, 23 June 1983. One aspect of the pickets reached the Supreme Court. The police on the spot demanded that pickets identify themselves and all details were recorded. This practice of the police, which was regarded as a method of harassing, intimidating or at least discouraging pickets, was challenged in court by the Association for Civil Rights in Israel (ACRI): see H.C. 393/83, ACRI v. Israel Police (on file with ACRI). The action ended in a settlement whereby details of pickets were registered with ACRI and destroyed after a few days.

283 See letter of ACRI chairperson attached to petition in H.C. 393/83, ibid.,

284 See supra n. 205.

285 Brown v. Louisiana 383 U.S. 131 (1966).

286 Adderley v. Florida 385 U.S. 39 (1966).

287 Greer v. Spock 424 U.S. 828 (1976).

288 408 U.S. 104 (1972).

289 Ibid., at 116. On the issue generally see Stone, op. cit. supra n. 61. Also see Brownlie, supra n. 12 at 96–98; Tribe, supra n. 22 at 688–693.

290 Supra n. 4.

291 Ibid., at 517.

292 Ibid.

293 Ibid., at 517.

294 See Amalgamated Food Employees v. Logan Valley Plaza 391 U.S. 308 (1968); Lloyd Corp. v. Tanner 407 U.S. 551 (1971).

295 See, e.g. Powe v. Miles 407 F. 2d 73 (1968); Browns v. Mitchell 409 F. 2d 593 (1969); Sounders v. Virginia Polytechnic Institute 417 F. 2d 1127 (1969); Pickings v. Bruce 430 F. 2d 595 (1970); Sword v. Fox 446 F. 2d 1091 (1971).

296 In many countries access to a university campus is restricted to students, staff and people with special permits.

297 These arguments have been advanced in various forums. They appear, inter alia, in a somewhat modified form in a brief submitted by the academic secretary of the Hebrew University to the Disciplinary Committee of the University on 30 January 1980. The brief was submitted in the course of proceedings in which two students who were charged with the disciplinary offence of holding an outdoor demonstration in defiance of university regulations, challenged the validity of those regulations. The brief is on file with the present writer.

298 Supra n. 1.

299 Only two cases need be mentioned here to illustrate this point. 1) In Moniot Ha'uma Ltd v. Controller of Traffic (1971) 25 (ii) P.D. 479 the petitioner, a company whose members were all taxi-drivers, had applied for a licence to establish a taxi-rank for inter-urban trips near the central bus station in Jerusalem. The respondent, who turned down the application, stated that he might have granted such a licence to individual taxi-drivers but was not prepared to grant it to a company of drivers. In overturning this decision the Supreme Court stated (per Haim Conn J.): “Freedom of association is, as is well-known. one of the basic rights of the individual, and until such time as the law expressly authorizes him to do so no controller in this country has the power to limit that right.” (ibid., at 483). 2) In Lipersky-Halifi v. Minister of Justice (1973) 27 (i) P.D. 719 the respondent had exercised his statutory power to regulate the profession of accounting. He laid down, inter alia, that an accountant may not practice also as a land-assessor. The Supreme Court declared this regulation invalid. Berinson J., in explaining the decision said: “Freedom of occupation is one of the basic rights of the individual, and even though, like many other human rights and freedoms, it is not formally entrenched, it may only be denied or restricted on the basis of an unambiguous and clear statutory provision.” (Ibid., at 723).

300 See Ramet v. Company for the Restoration of the Jewish Quarter (1972) 26 (i) P.D. 118, 121–122. Although the issue had been argued before the court, Berinson J. refused to take a general stand on the question as the petition against the respondent company was rejected on the merits.

301 See Bourkhan v. Minister of Finance and Company for Restoration of Jewish Quarter (1978) 32 (ii) P.D. 800 (two of the justices stated that had they been persuaded on the merits that the respondent, a company which was registered under the Companies Ordinance but fulfilled a public function had indeed discriminated against the respondent on unacceptable grounds of race, sex, national origin or religion they would have interfered in the company's decision); Markowitz v. General Federation of Labour (1975) 6 Labour Court Decisions 197, 208 (National Labour Court expressed the opinion that rules of administrative law were appropriate for dealing with the relationship between the respondent, a voluntary organization in which the vast majority of employees in Israel are members, and its members).

302 American courts have distinguished between the right of private and state universities to outlaw demonstrations on campus. See, e.g., Browns v. Mitchell, supra n. 295, (a private university case); Saunders v. Virginia Polytechnic Institute, supra n. 295; Sword v. Fox, supra n. 295 certiorari denied 464 U.S. 994; Hammond v. South Carolina State College 272 F. Supp. 947 (1967) (state university cases). State universities may regulate demonstrations on campus and students who ignore university regulations may be disciplined, and even suspended (See e.g., Powe v. Miles, supra n. 295 in which the court upheld the suspension of students who had ignored a university regulation that care must be taken to avoid disrupting classes or other educational activities. Also Sill v. Penn. State University 462 F. 2d 433 (1972). However, they may not outlaw demonstrations altogether: see the cases cited above. Also see Shapiro, , “Participation of Student in Demonstration On or Near Campus as Warranting Expulsion or Suspension from School or College” 32 ALR 3d 864.Google Scholar

303 On the idea that a university, although incorporated as a private corporation should be regarded as a public body see Albalada v. Hebrew University (1966) 20 (i) P.D. 204.

304 This argument was made in the brief mentioned in supra n. 297.

305 For the idea that constitutional principles place restraints on the use public bodies make of their property see Peretz v. Kfar Shmaryahu, supra n. 262.

305a Attorney General's Directives, supra n. 4.

306 394 U.S. 111 (1969).

307 Ibid., at 113.

308 See Kamin, , “Residential Picketing and the First Amendment” (1966) 61 Nw. U. L. R. 177Google Scholar; Comment, “Picketing the Homes of Public Officials” (1966) 34 U. Chi. L. R. 106.

309 See, e.g., Hebrew Home v. Davis 235 N.Y.S. 2d 318 (1962); Wauwatosa v. King 182 N.W. 2d 530 (1971); Garvia v. Gray 507 F. 2d 539 (1974).

310 See Comment, “Picketcrs at the Doorstep” (1974) 9 Harv. Civ. Rights-Civ. Lib. L. R. 95.

311 H.C. 456/73 Kahane v. Southern District Police Commander (unpublished, on file with the writer).

312 Supra n. 1.

313 Kahane decision, supra n. 311.

314 A.G.'s directives, supra n. 4.

315 See supra n. 205

316 See Gavison, , “The Right of Privacy and the Right of the Public to Know” in Gavison, (ed.), Civil Rights in Israel: Essays in Honour of Haim H. Cohn (Jerusalem, 1982) 177.Google Scholar

317 See Comment, supra n. 308.

318 Some writers have distinguished between “official” and “non-official” residences: see Comment, supra n. 308 at 120, n. 78. The “officiality” factor is not the important question. The issue is the function of the residence: does it serve purely as a residence or is it also an office?

319 See The Draft Code, Criminal Code Bill Commission (1879) in British Paliamentary Papers, Vol. 6, p. 388.

320 Ibid. Also see Stephen, , A History of the Criminal Law of England (1883) Vol. 2, p. 385Google Scholar, n. 1.

321 The Law in Commonwealth and other former British territories is reviewed in Holland, , “Freedom of Assembly in the Commonwealth” (1959) 12 Current Legal Problems 95.CrossRefGoogle Scholar

322 (1882) 9 Q.B.D. 308.

323 This is the case not only in Israel, of course. The U.S. Supreme Court has recognized the danger to freedom of assembly of an overwide construction of “breach of peace” statutes: see Terminiello v. City of Chicago 337 U.S. 1 (1949) in which the Supreme Court quashed a conviction under a “breach of the peace” statute. The judge had instructed the jury that “breach of peace” was action “which stirred people to anger, invited public dispute, or brought about a condition of unrest.” The Court held that as interpreted the statute was invalid as it placed undue restrictions on First Amendment rights. Also see Garner v. Louisiana 368 U.S. 157 (1961); Taylor v. Louisiana 370 U.S. 154 (1962); Cox v. Louisiana 379 U.S. 536 (1965); Gregory v. City of Chicago 394 U.S. 111 (1969); Hess v. Indiana 414 U.S. 105 (1973).

324 See Smith, and Hogan, , Criminal Law (London, 4th ed., 1978) 750Google Scholar; Archbold's, Criminal Pleading and Practice (London, 40th ed., 1979) § 3571Google Scholar; Williams, supra n. 48 at 236; Smith, de, Constitutional and Administrative Law (London, 4th ed., 1981) 501.Google Scholar For other definitions see Law Commission, supra n. 265 § 2.43–2.49.

325 See Law Commission, supra n. 265 § 2.47.

326 See R. v. Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board [1981] 3 W.L.R. 967, 976 (per Lord Denning M.R.).

327 See Smith and Hogan, supra n. 324 at 751.

328 See sec. 84 of The Draft Code, supra n. 319.

329 Sec. 79 of The Criminal Code Ordinance reads as follows: “Where three or more persons assembled with intent to commit an offence, or, being assembled with intent to carry out some common purpose, conduct themselves in such a manner as to cause persons in the neighbourhood reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly needlessly and without any reasonable occasion provoke others to commit a breach of the peace, the persons so assembled are an unlawful assembly.”

330 See chap. 14 of the Penal Law. (L.S.I. Special volume).

331 According to sec. 3 of the Interpretation Law, 1981 (S.H. 1030, p. 302) a contravention is an offence the penalty for which is not more than one month's imprisonment.

332 See, e.g., Penal Law, 1977, secs. 141, 190, 194, 216.

333 See Williams, , “Arrest for Breach of the Peace” (1954) Crim. L. R. 578Google Scholar; Brownlie, supra n. 12 at 2; Law Commission, Working Paper, supra n. 9.

334 See Williams, ibid. Also see Dickey, , “Some Problems Concerned with the Offence of Conduct Likely to Cause a Breach of the Peace,” (1971) Crim. L. R. 265Google Scholar, 271 n. 30. This view received judicial support in R. v. Howell [1981] 3 W.L.R. 501. In dealing with the meaning of the term “breach of peace” (in the context of the constable's power of arrest) the Court of Appeal stated (at p. 508): “even in these days when affrays, riotous behaviour and other disturbances happen all too frequently, we cannot accept that there can be a breach of the peace unless there has been an act done or threatened to be done which either actually harms a person, or in his presence his property, or is likely to cause such harm, or which puts someone in fear of such harm being done.” It is true that this dictum suggests that an act that harms or threatens harm to property may be included, but only in the presence of the owner, the idea being that in such a case violence may ensue. See Law Commission, supra n. 265 § 6.31. The Law Commission also supports the view that “breach of the peace” must involve violence or threatened violence: id. § 6.25. But cf. R. v. Chief Constable of Devon and Cornwa'l Ex parte Central Electricity Board, supra n. 326 at 975.

335 See Restatement of the Law of Torts, § 116 Comment (a); Force, , “Decriminalization of Breach of Peace Statutes: A Nonpenal Approach to Order Maintenance” (1972) 46 Tulane L. R. 367.Google Scholar

336 Ibid. Also see Brownlie, supra n. 12 at 3.

337 See Libai, , “The Right to Assemble and Demonstrate in Israel” (1972) 2 Iyunei Mishpat 54.Google Scholar

338 Blau v. State of Israel (1982) 36 (i) P.D. 274.

339 Ibid. at 274.

340 Sec. 490 does indeed speak of acting “without lawful cause”. It may therefore be argued that demonstrators will not be liable under this offence because they cannot be said to have acted “without lawful cause”. If this argument is accepted the case against the widest interpretation of the term “breach of the peace”, as used in sec. 151, becomes even stronger. For if one or two demonstrators make a noise they will not be liable for commission of an offence, while if three demonstrators act so as to give persons in the neighbourhood reasonable grounds to fear they will cause a noise, they will be criminally liable.

341 Libai, (supra n. 337 at 60), who propounds this view cites two authorities for the proposition that “the view of scholars and the stand of the courts is that the term [breach of the peace] is identical to the term ‘offence’:” Kenny's Outlines of Criminal Law and Perkins on Criminal Law.

342 See Williams, supra n. 333; Force, supra n. 335. Both Kenny and Perkins, cited by Libai as authority for his view, equate the two terms.

343 Williams (supra n. 333) who propounds the view that breach of the peace entails bodily force or threats of force accepts that “generally the threat of force (e.g. by way of forcible entry on land) against property would involve a threat of force against the person, and would therefore amount to a threatened breach of the peace even on a narrow definition of that term” (ibid., at 579). He argues, however, that “if there is no threat to the person, it seems that a threat to property should generally be regarded as insufficient” (ibid.). And see R. v. Howell, supra n. 334.

344 See R. v. Howell, supra n. 334 at 509.

344a The definition of “breach of peace” may vary from offence to offence. However, I intend to agree with Brownlie that “there is at least a presumption that the concept is unitary:” Brownlie, supra n. 12 at 2.

345 Also see, e.g. sec. 190 which provides that a person, who, without colour of right, holds possession of land and is “likely thereby to cause a breach of the peace or reasonable apprehension of a breach of the peace” is liable to 3 years imprisonment. The idea that breach of the peace in this context may be merely noise or uproar does not commend itself.

346 See O'Kelly v. Harvey (1883) 15 Cox's Criminal L. Cases 435; Lowdens v. Keaveney (1903) 2 I.R. 82, 88. In R. v. Vincent (1839) 173 E.R. 754, 762 Alderson B. stated that the question is whether “firm and rational men having their families and property there would have a reasonable ground to fear a breach of the peace”. And see Daintith, , “Disobeying a Policeman: A Fresh Look at Duncan v. Jones” (1966) Public Law 248.Google Scholar

347 See Kol Ha'am v. Minister of Interior, supra n. 35. In interpreting sec. 19 of the Press Ordinance which empowers the Minister to close a newspaper if matters published therein are likely to endanger the public order, the Supreme Court held that the Minister could use his power only if he was of the opinion that the danger to the public order met the “probability test”. This test has since become regarded as the accepted test for balancing freedom of speech against public order interests in Israel: See Israel Film Studios v. Geri, supra n. 89 at 2418.

348 Supra n. 322. For discussion of the hostile audience question see: Bevan, supra n. 12; Emerson, supra n. 20 at 338–42; Note, supra n. 230; Carson, supra n. 230; Stewart, , “Public Speech and Public Order in Britain and the United States” (1960) 13 V and. L. R. 623Google Scholar; Note, “Hostile-Audience Confrontations: Police Conduct and First Amendment Rights” (1976) 75 Mich. L. R. 180.

349 Beatty v. Gilbanks, supra n. 322 at 314.

350 The court stated (ibid.): “Now I entirely concede that every one must be taken to intend the natural consequences of his own acts, and it is clear to me that if this disturbance of the peace was the natural consequence of acts of the appellants they would be liable…” And see Brownlie, supra n. 12 at 126–128. In O'Kelly v. Harvey, supra n. 346, the court disagreed with the decision in Beatty v. Gilbanks. It stated that as the breach of the peace by the Skeleton Army was clearly imminent the assembly of the Salvation Army must have been unlawful.

351 See O'Kelly v. Harvey, supra n. 346; Theodrou v. The Police (1958) Cyprus L. Rep. 178. In Duncan v. Jones (1936) 1 K.B. 218 Lord Stewart referred to Beatty v. Gilbanks as “a somewhat unsatisfactory case” (ibid., at 222). For a discussion of the Beatty case and the cases that followed see Williams, supra n. 12 at 27; Brownlie, supra n. 12 at 125–130.

352 Supra n. 322.

353 See supra n. 320.

354 (1951) 6 P.D. 279.

355 ibid., at 280. But cf. Blau v. State of Israel, supra n. 338. In this case demonstrators blocked the traffic on a main highway and their leader was convicted of unlawful assembly. Tn dealing with the “breach of peace” which was likely to ensue from the demonstrators' behaviour Landau P. stated: “in any event, the existence of a fear, which was proved beyond doubt, that car-owners who were held-up due to the conduct of the (accused) and his friends, would react with violence to prevent the interference, and that this would have caused a violent incident at the traffic junction if the police had not intervened was sufficient (to constitute a breach of peace)”, (ibid., at 277). It seems that this dictum must be confined to a case (such as the Blau case) in which the conduct of the demonstrators which provoked the others is itself a criminal offence (obstruction of the highway). Also see Shas v. State of Israel (1976) P.M. (1) 348), discussed in text accompanying n. 392 below.

356 It may be argued that this has little importance, because the Dershowitz view of “unlawful assembly” should bind the lower courts, before whom all “unlawful assembly” cases are tried. This argument must be rejected. The lower courts are not bound to accept a judicial decision which is inconsistent with a statute. Furthermore, the Dershowitz approach is contained merely in an obiter dictum and can therefore be rejected on formal grounds.

357 See Emerson, supra n. 20 at 336–342.

358 See Part I, section A 2c above.

358a It also seems that most of the English and Irish decisions which deal with the hostile audience question, including Beatty v. Gilbanks, are consistent with the approach. Beatty v. Gilbaiiks and R. v. Londonderry Justices (1891) 28 LR. 440 both involved procession through the main streets of town (Westonsuper-Mare, in the first case; Derry in the second) and the existence or fear of a hostile audience should obviously not have turned those processions into unlawful assemblies. Humphries v. Connor (1864) 17 Ir. L. Rep. 1 and Wise v. Dunning, (1902) 1 K.B. 167, on the other hand, involved a manner of behaviour deliberately insulting towards Roman Catholics, in areas largely inhabited by them. The hostile audience factor was therefore regarded as relevant in judging whether the danger of a breach of the peace could justify intereference with the defendants' activity. The one case which is clearly inconsistent with my approach is Duncan v. Jones (supra n. 351). But this case is most problematical and has been severely criticized: infra n. 408.

359 One must admit that generally the time, place and manner of a demonstration should be left to the demonstrators' choice. It is generally not a good argument to deny the right of A to demonstrate in a given place, at a given time, because someone else thinks he could just as well demonstrate at another place or at another time. However, there must be some exceptions to this principle. I suggest that this is one of them.

360 See the strong dissent of Justice Black in the leading American case of Feiner v. N.Y. 340 U.S. 315 (1951).

361 In numerous cases police have required demonstrators, who did not require a permit, to disperse, giving as the reason that the demonstration was illegal because it had no permit: see the cases cited in supra n. 203.

362 This was essentially the approach adopted in the American case of Feiner v. N.Y. supra n. 360. This case has been severely criticized but it seems that the brunt of the criticism is that on the facts of the case there seemed to be no danger of a breach of the peace and that the dispersal request was therefore unwarranted. Even Justice Black, in his dissent, implicitly conceded that if there were a threat to the peace and the police had made all reasonable efforts to protect the speaker, they could ask him to leave if they were no longer able to control the crowd: see the dictum ibid. For discussion of the Feiner case and the subsequent American stand on the issue see Haiman, supra n. 236 at 252 ff; Note, “Hostile Audience Confrontations,” supra n. 348.

363 See Smith and Hogan, supra n. 324 at 752–753; Brownlie, supra n. 12 at 124.

364 Under the common law there is also an offence of rout which lies somewhere between unlawful assembly and riot. The Law Commissioners who drew up the Draft Criminal Code saw no need for the specific offence of rout and it was not adopted in the Criminal Code Ordinance. Prosecutions for rout have not been brought in Britain in modern times and the Law Commission has recommended that the offence be abolished: Law Commission, supra n. 265, § 5.3–5.4.

365 See Law Commission, supra n. 265, § 2.43–2.49.

366 See Criminal Code Bill Commission, supra n. 319. For a discussion of riot under the common law see Law Commission, supra n. 265, § 2.20–2.42.

367 See Field v. Receiver of Metropolitan Police (1907) 2 K.B. 853, 860.

368 See Smith and Hogan, supra n. 324, at 755; Law Commission, supra n. 265 § 2.32.

369 See Law Commission (Law Com. No. 123), supra n. 9, § 2.

370 Ibid. § 2.6. In making this proposal the Commission departed from the proposals in its original working paper. This proposal had been to create a statutory offence of “unlawful assembly” which would relate to conduct which involves the use or threats of violence, or which “has by means of threatening, abusive or insulting words or behaviour the object of provoking the use of violence by others” and, 2) to circumstances in which the said conduct, words or behaviour give persons in the neighbourhood reasonable grounds to fear an imminent breach of the peace. See Law Commission, Working Paper, supra n. 9, § 6.18.

371 See Law Commission (Law Com. No. 123), supra n. 9, § 2.6.–§ 2.9.

372 On these two Acts in English law see Citrine, Trade Union Law (London, 3rd ed., 1967) 557; Brownlie, supra n. 12, at 66.

373 See Citrine, supra n. 372, at 533.

374 See Zur v. A.G. (1963) 18 (i) P.D. 85.

375 See Zur v. A.G., ibid., at 94.

376 See sec. 1 of the Law (S.H. 1011, p. 128).

377 See sec. 4.

378 See sec. 5.

379 See Presser, Handbook of the Law of Torts (St. Paul, 4th ed., 1981) 807.

380 Sec. 2 (2) defines “listening forbidden by law” as an invasion of privacy. The Secret Monitoring Law, 1979 (33 L.S.I. 141) forbids wire-tapping without a permit (which may be granted by a court for restricted reasons — such as state security). Thus illegal wire-tapping is an invasion of privacy. In the U.S. wire- tapping is generally regarded as being included under the “intrusion” category of privacy: See Prosser, ibid.

381 On this concept see Brandeis and Warren, “The Right to Privacy” (1890) 4 Harv. L. R. 193, 205.

382 See above.

383 See sec. 14 of this Law (19 L.S.L 254).

384 See R. v. Clark (1964) 2 Q.B. 315. Also see R. v. Moule (1964) Crim. L.R. 303; R. v. Adler (1964) Crim. L.R. 304.

385 On the connection between the criminal and civil aspects of public nuisance see Kretzmer, supra n. 206, § 4.

386 See Hubbard v. Pitt, supra n. 54. This case dealt with an application for an interlocutory injunction against pickets. The trial judge held that the demonstrators were liable for public nuisance as they were obstructing the public use of the highway. Lord Denning, dissenting in the Court of Appeal, rejected this view, while the majority thought that the injunction should be sustained as the demonstrators could be liable in private nuisance. Hubbard v. Pitt, supra n. 53.

387 See Kretzmer, supra n. 206 at § 4.

388 See above, Part I, section D.

389 See Kretzmer, supra n. 206 at § 10. And see Lev v. Turgeman (1962) 16 P.D. 2625, Also see Barak, “The Tortious Liability of an Employer for the Acts of an Independent Contractor” (1964) 20 HaPraklit 355, 368.

390 R. v. Clark, supra n. 384.

391 See Weiss and Spektor v. State of Israel (1963) 17 P.D. 2310, 2315: “As far as these laws go the citizen does not enjoy the proper guaranteed constitutional protection whereby the criminal law defines in detail the exact conditions under which he is liable to commit an offence and be punished.”

392 Shas v. State of Israel, supra n. 355. The issue of leaflet-distribution as such will not be dealt with here. It should be noted, however, that there is no specific statute which proscribes leafleting in the streets: In A.G. v. Morris (1957) 11 P.D. 1218 the Supreme Court held that a municipal bye-law restricting distribution of notices was ultra vires. The municipality had based the bye-law on its power to restrict “exhibition of advertisements”. The Court left open the question whether leaflet distribution could regulated by a municipality in the exercise of its power to keep the streets clean.

392a (1976) P.M. (1) 351.

393 Ibid.

394 See above, Part II, section 2b.

395 A new criminal code is being prepared at present. For a draft of the General Part see (1984) 14 Mishpatim 7.

396 See n. 100, supra.

397 It should be noted that reg. 115 provides that reg. 114 shall not apply to a person who participates in a funeral procession or a procession which was lawfully held. It is clear then that persons participating in a procession licensed under the Police Ordinance cannot be charged with interfering with passersby on the pavement (or with walking on, or crossing, the highway in contravention of regs. 109 or 110). However, what of a procession which does not require a permit under the Police Ordinance, as there are less than 50 participants? Such a procession may be said to be “lawfully held”. Are the participants exempt from reg. 114? The answer is not clear.

398 This latter section refers to wilful obstruction of the free passage, while the Israeli regulation does not refer to wilful obstruction. The deletion of the word wilful from the Israeli provision does not necessarily imply that there is a difference between the Israeli and English versions of the offence. For the term wilful merely imports a mens rea requirement into the offence and the Israeli Supreme Court has held that “the mere fact that the legislature has deleted words expressing mens rea from a penal provision does not necessarily mean that it has waived the mens rea requirement, as the proper presumption which must guide us is that the legislature did not intend to waive the requirement unless this presumption is impliedly contradicted by the language of the provision, the aim behind it, the essence of the offence or other factors”: Abu-Rabia v. A.G. (1962) 17 P.D. 2913, 2924–2925.

399 See Street, supra n. 43 at 57–58; de Smith, supra n. 44 at 488; Brownlie, supra n.12 at 80.

400 For a discussion of the English authorities see Brownlie, supra n. 12 at 77–80.

401 Supra n. 53.

402 [1965] 1 All E.R. 78.

403 ibid., at 80.

404 Lewis v. Cattle [1938] 2 K.B. 454, 457. And see Brownlie, supra n. 12 at 327; Archbold, supra n. 324.

405 See Thomas v. Sawkins [1935] 2 K.B. 249.

406 See Humphries v. Conner (1864) 17 Ir. Law Rep. 1; O'Kelly v. Harvey (1883) 15 Cox's Crim. L. Cases 435.

407 See A.G. v. Aharonowitz (1952) 8 P.D. 647.

408 See Duncan v. Jones (1936) 1 K.B. 218. In this case the defendant was about to speak at a meeting near a training centre. The police present asked her to speak further down the road but she refused and started her address. She was promptly arrested and charged with obstructing a policeman in performance of his duty. The decision of the Divisional Court upholding Mrs. Duncan's conviction has been the subject of serious criticism for many years: see Brownlie, supra n. 12 at 110–117; Daintith, supra n. 346; de Smith, supra n. 44 at 495–496.

409 Sec. 287 of the Penal Law provides: “A person who disobeys a direction duly issued by any court, officer or person who acts in an official capacity and is authorized on that behalf is liable to imprisonment for two years unless any other penalty or mode of proceeding is expressly prescribed for such disobedience.”

410 Supra n. 354.

411 See above, p. 131.

412 See sec. 17(b) of the Interpretation Law, 1981.

413 Alternatively the demonstrators could be charged with the offence defined in sec. 287 of the Penal Law (see supra n. 409). If the policeman gives a dispersal order in other circumstances (e.g. circumstances in which the crowd can be controlled) the dispersal order should not be regarded as having been “duly issued” neither should the refusal of the demonstrators to disperse be regarded as obstruction of a policeman in performance of his duty.

414 See sec. 3, (2 L.S.I. [N.V.] 30).

415 The Riot Act, 1714 was repealed in England and Wales by the Criminal Law Act, 1967. On the provisions of the Riot Act see Stephen's, History of the Criminal Law of England (London, 1883) Vol. 1, p. 202 ffGoogle Scholar; Kenny's, Outlines of the Criminal Law (Cambridge, 19th ed., 1966) 418.Google Scholar

416 Sec. 153 of the Penal Law.

417 Sec. 154 of the Penal Law.

418 (1956) 11 p.D. 115.

419 Ibid. at 117.

420 Supra n. 418.

421 See Kenny, supra n. 415 at 418; Stephen, supra n. 415 at 203.

422 See Kenny, ibid.; Stephen, ibid.