Hostname: page-component-78c5997874-fbnjt Total loading time: 0 Render date: 2024-11-13T03:23:08.659Z Has data issue: false hasContentIssue false
  • English
  • Français

The Right to Demonstrate: A Comparative Study of Israel and the United States

Published online by Cambridge University Press:  12 February 2016

Martin J. Raffel
Get access

Extract

The right of the citizen to express his views publicly is a basic feature of the democratic system. However, the freedom of expression, and the closely related freedom of public assembly, do at times conflict with other major social interests. As a result, no society has accepted the theory that these freedoms should be absolute. The democratic process requires a balancing of these freedoms with other important values and public interests. Consequently, each state has placed various limitations on the freedom of expression and public assembly. If a government limits these freedoms too much, it may do irreparable damage to the democratic process. Likewise, the fact that the freedom is enshrined in some constitutional document does not ensure that it will be given any meaningful protection. Whether or not fundamental freedoms are really preserved, is the true test of a democracy.

Demonstrations have traditionally been used as a vehicle for expressing dissent. A citizen who is generally satisfied with the social and political status quo will probably not feel a need to exhibit his satisfaction publicly.

Type
Articles
Information
Israel Law Review , Volume 11 , Issue 3 , July 1976 , pp. 348 - 368
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1976

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 The expression “silent majority” which surfaced in the United States during the Johnson and Nixon administrations is illustrative of this point. Both Presidents often referred to this majority of Americans who by their silence and inaction demonstrated support for the government's policies.

2 For discussion of the issues, see interview with Chief of Police Shaul Rosolio in Ma'ariv, 29 August 1975, at p. 24.

3 “Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harrassment as long as the assembly and petition are peaceable …” Justice William O. Douglas (dissent) in Adderly et al. v. State of Florida (hereinafter cited as Adderly case) 385 U.S. 39, 87 S.Ct. 242 (1966).

4 See infra p. 353.

5 Another prior restraint method of regulating demonstrations, the issuance of injunctions or restraining orders, will not be dealt with in this article.

6 Police Ordinance (New Version), 5731–1971 (hereinafter cited as Police Ordinance) 2 L.S.I. (N.V.) 158. This Mandatory legislation became part of the Israeli legal system by virtue of sec. 11 of the Law and Administration Ordinance, 1948, 1 L.S.I. 9, which states: “The law which existed in Palestine on the 5th Iyar, 5708 (14th May 1948) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities”. A Mandatory Ordinance is binding in Israeli law until it is either abolished or is translated into Hebrew and, subsequently, passed in a new form in the Knesset. By passing a Hebrew “New Version” of the Police Ordinance the Knesset has, in effect, converted this once purely Mandatory Ordinance into what may now be considered as “Israeli” legislation. For an in depth explanation of the procedure involved in passing a New Version Ordinance, see Yadin, , “The New Version” (1972) 7 Is.L.R. 277.CrossRefGoogle Scholar

7 Police Ordinance secs. 83, 84.

8 Police Ordinance sec. 89. See also Eliahu Udiz et al. v. Attorney General (1956) 11 P.D. 115, 117.

9 Criminal Code Ordinance, 1936 (hereinafter cited as C.C.O.) Supp. no. 1 to P.G. Extraordinary no. 652, 14 Dec. 1936; sec. 80, “Any person who takes part in an unlawful assembly is guilty of a misdemeanour, and is liable to imprisonment for one year.”

10 A possible exception to this rule is Bergmann v. Minister of Finance and State Comptroller (1969) (I) 23 P.D. 693. See also Elman, , Klein, , Akzin, “Judicial Review of Statute” (1969) 4 Is.L.R. 565, 569, 576Google Scholar, and Klein, , “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376.Google Scholar

11 The Court has, on various occasions interpreted statutes in such a way as to render them consistent with important democratic values. See Kol Ha'am Company Limited v. Minister of the Interior 1 S.J. 90 where the Court considered the impact of the Press Ordinance on the freedom of expression. See also, Sh. Z.M. Ltd. v. Mayor of Jerusalem (Mr. Teddy Koliek) (1973) (II) 28 P.D. 113, 121 where Kahn J. weighs the importance of the right of a citizen to engage in the business of his choice.

12 See “The First Amendment Overbreadth Doctrine” (1970) 83 Harv. L.R. 844.

13 The rule in Freedman v. Maryland 380 U.S. 51, 85 S.Ct. 734 (1965) was applied to demonstrations by J. Harlan in Shuttlesworth v. City of Birmingham 394 U.S. 147, 89 S.Ct. 935 (1969)—“The Freedman principle is applicable here. The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture…”

14 Both processes will be examined infra in part 3 of this section.

15 Until 1964 this authority was held by the district commissioners. The authority was transferred to the district police commanders in Transfer of Powers (Disrict Commissioners and District Officers) Law (1964) 18 L.S.I. 70.Google Scholar See also explanatory note in H.H. no. 575, p. 346.

16 This arrangement might be open to attack as a violation of the principle delegatus non polest delegare. The official authorized under the provisions of the Police Ordinance to regulate the licensing procedure is the police commander in each district. According to the Law, the application for a permit is to be made to him, not to the region's assistant police commander. See Smith, S.A. de, Constitutional and Administrative Law (1st ed., 1971) 352.Google Scholar

17 Again this raises the question whether or not this process violates the principle delegatus non potest delegare. The discretionary power to grant or refuse permits was given by law to the district police commander and not to any other official.

18 Conversation with Mr. Armoni, spokesman for Police Commander of the Southern District on 3 March 1975.

19 Police Ordinance, sec. 3: “The Israel Police shall be employed for the prevention and detection of offences, the apprehension and prosecution of offenders, the safe custody of prisoners and the maintenance of public order and the safety of persons and property” (emphasis added).

20 Conversation with Mr. Ben-Eliahu on 2 March 1975.

21 Mr. Ben-Eliahu asserted that “education which encourages the use of a demonstration as a means of expression is totally illegitimate” (translation by the author).

22 One gets the impression, however, that certain groups are treated better than others. In an interview with a representative of Gush Emunim on 3 June 1975 it was stated that “the district police commander has never refused Gush Emunim a permit to demonstrate. Not one member of Gush Emunim has ever stood trial on charges of having participated in an illegal demonstration. There have been some arrests, but everyone arrested has been released within one or two days” (translation by the author). In an interview with a representative of Siach on 3 June 1965 a different picture emerged. “Siach has been refused permits to demonstrate on numerous occasions and our members who have been arrested in the past have been subsequently prosecuted. One sentence handed down on a charge of participating in an illegal demonstration was a fine of IL 5,000 or 6 months in prison”… (translation by the author). Numerous members of the right wing Gush Emunim and Likud were arrested during the violent demonstrations this past August when Dr. Kissinger arrived in Israel. Informations were filed against some, but not all, of those arrested. See also the reference to the Black Panthers of Israel in Libai, “The Right to Assemble and Demonstrate in Israel” (1972) 2 Iyunei Mishpat 54, 59, 60.Google Scholar

23 Libai, ibid., at pp. 69, 70.

24 Judges Law (1953) 7 L.S.I, sec. 13, p. 124Google Scholar, “A judge, in judicial matters, is subject to no authority other than that of law”.

25 Rakah v. Minister of Police and Northern District Police Commander (1976) (not yet published).

26 (1973) H.H. no. 1085, p. 448, currently pending.

27 ibid., at sec. 12.

28 It is interesting to note that the language of the original Police Ordinance is different from that of the New Version. Police Ordinance, 1926, Drayton, , Laws of Palestine II, p. 1145 at pp. 1157–8Google Scholar, §33(1): “The District Superintendent may, as occasion requires, direct the conduct of all gatherings and processions… (2) He may also on being satisfied that it is intended by any person or class of persons to form a procession which will, in the judgment of the District Commissioner, if uncontrolled, be likely to cause a breach of the peace, require by a general or special notice that the person convening or collecting such procession shall apply for a license to the District Commissioner” (emphasis added). Police Ordinance (New Version), 1971, sec. 84: “The district police commander may, if in his opinion it is necessary so to do for the maintenance of public security or public order, require by general or special notice” … (emphasis added). The phrase “likely to cause a breach of the peace” (in other words likely to cause a crime defined in the C.C.O.) was replaced by the phrase “maintenance of public security or public order”. This change in phraseology is an apparent broadening of the already broad discretionary power in the hands of the licensing officials.

29 Notification Concerning Licensing of Processions and Open-Air Gatherings (1964) 17 Dinim 7533.

30 See HaRav Kahane v. Jerusalem Police Commander (not published) where the Court confirmed a refusal to grant Kahane a permit to hold a gathering near the home of the Foreign Minister. According to the police, and the Court, the right of assembly does not imply a right to infringe the privacy of public officials. Compare this with Gregory v. City of Chicago 394 U.S. 111, 89 S.Ct. 946 (1969) where a group of blacks were given permission to march to the home of the Mayor of Chicago. See also Sulea Shafik Taha v. Minister of Defence, Minister of the Police (not published) where the Court, once again, readily accepted the police interpretation of public security and public order—“We all know the security situation in the country, especially in these times, and in times like these it is better to be over-cautious than not cautious enough in everything which relates to state security and public order. We cannot say that the apprehensions of the police here are completely unfounded”, (translation by the author).

31 Unpublished.

32 J. Felix Frankfurter (concurring) in Niemotko v. State of Maryland (hereinafter cited as Niemotko case) 340 U.S. 268, 71 S.Ct. 325, (1951) at p. 328.

33 Fred Shuttlesworth v. City of Birmingham 394 U.S. 147, 89 S.Ct. 935 (1969) at p. 938.

34 ibid., at p. 940.

35 The Ordinance: “…commission shall grant a written permit for such parade, procession, or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals, or convenience require that it be refused.”

36 Kunz v. People of State of New York (hereinafter cited as the Kunz case) 340 U.S. 290, 71 S.Ct. 312 (1951), at p. 315. See also the Niemotko case, decided at the same time as the Kunz case, where the Court ruled that a “practice” of requiring permits for gatherings in a public park was an unconstitutional violation of First Amendment rights. J. Vinson, in setting aside the charge of disorderly conduct which resulted from not having acquired a permit, said, “… all that is here is an amorphous ‘practice’ whereby all authority to grant permits for the use of the park is in the Park Commissioner and the City Council. No standards appear anywhere; no narrowly drawn limitations; no circumscribing of this absolute power; no substantial interest of the community to be served. It is clear that all that has been said about the invalidity of such limitless discretion must be equally applicable here” (emphasis added). Sec also Cox et al. v. State of New Hampshire 312 U.S. 569, 61 S.Ct. 762 (1940) where the Court upheld a state law prohibiting parades or processions unless a permit is obtained from the designated officials. The State Supreme Court of New Hampshire had narrowed the statute through its interpretation, and it was this narrowed version which was eventually accepted by the Court. The New Hampshire Court ruled that the “licensing board was not vested with arbitrary power or an unfettered discretion; that is its discretion must be exercised with uniformity of method of treatment upon the facts of each application, free from improper or inappropriate considerations and from unfair discrimination” (emphasis added).

37 Kunz case, at p. 315.

38 For possible guidelines see Blasi, , “Prior Restraints on Demonstrations” (1970) 68 Mich. L.R. 1482, at pp. 1533, 1534.Google Scholar

39 The police are not required to break up a demonstration. However, the authority exists and may be exercised at any time.

40 Police Ordinance, sec. 89.

41 C.C.O. sec. 79: “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, or will by such assembly needlessly and without any reasonable occasion provoke other persons to commit a breach of the peace, the persons so assembled are an unlawful assembly” (emphasis added).

42 A. Dershovitz v. Attorney General (1951) (I) 6 P.D. 278 at p. 281.

43 Deutsch v. Attorney General (1960) 25 P.M. 336 at p. 337: “It is not necessary that the public peace actually be breached. It is enough that the people in the neighbourhood have a reasonable basis for fearing a breach of the peace” (translation by the author and emphasis added).

44 There is an even more insidious form of prior restraint and it is the arresting of potential demonstrators prior to the day of the planned demonstration on a charge of “conspiracy to hold an illegal demonstration”. This method of preventing a demonstration has been used in Israel against the Black Panthers. See Libai, supra n. 21, at p. 54. See also “Regulation of Demonstrations” (1967) 80 Harv. L.R. 1773, at p. 1788.

45 Mahmoud Amin El-Taha v. Attorney General (1954) 9 P.D. 88, 89.

46 Supra n. 42, at p. 280.

47 Supra n. 30.

48 Gregory et al. v. City of Chicago, supra n. 30, at p. 950.

49 James Edwards Jr. et al. v. South Carolina 372 U.S. 229, 83 S.Ct. 680 (1963), at p. 684.

50 Feiner v. People of State of New York 340 U.S. 315, 71 S.Ct. 303 (1951), at p. 304.

51 ibid., at p. 305.

52 ibid., at p. 310.

53 C.C.O., sec. 79 seems to indicate that the test is whether the people of the neighbourhood reasonably fear a breach of the peace. Supra n. 41.

54 Supra n. 3, at p. 252.

55 Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza, Inc. et al. 391 U.S. 308, 88 S.Ct. 1601 (1968), at pp. 1602, 1603. This test was apparently changed in a recent case decided by the Supreme Court. See evaluation of this decision in International Herald Tribune, 6–7 March 1976, p. 3. and in New York Times 4 March, 1976 at p. 21.

56 Gregory case, supra, n. 30, at p. 947. The notion that a peaceful and legal demonstration cannot become unlawful merely because bystanders oppose it received further reinforcement in a later case, Bachellar et al. v. Maryland 397 U.S. 564, 90 S.Ct. 1312 (1970). Here Vietnam War protestors were arrested and convicted on a charge of disorderly conduct. The Court, in setting aside the conviction, asserted that “it is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers or simply because bystanders object to peaceful and orderly demonstrations” (at p. 1314).

57 Chaplinsky v. State of New Hampshire 315 U.S. 568, 62 S.Ct. 766 (1942), at p. 769. See also Hess v. Indiana 38 L. Ed. 2d 303 (1973).

58 See Vandall, , “Model Guidelines for Handling Street Gatherings” (1973) 51 Journal of Urban Law 49, at p. 69.Google Scholar

59 Supra n. 11.

60 International Herald Tribune, 29 December 1975, p. 3.

61 Dumbauld, , ed., Political Writings of Thomas Jefferson (1966) 89.Google Scholar

62 Emerson, , “The Doctrine of Prior Restraint” (1955) 20 L. and Contemp. Prob. 648, at p. 671.CrossRefGoogle Scholar

63 See Shapira, , “The Status of Fundamental Individual Rights in the Absence of a Written Constitution” (1974) 9 Is.L.R. 497.Google Scholar

64 DeJonge v. State of Oregon 299 U.S. 353, 57 S.Ct. 255 (1937), at p. 260.