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Israel: Supreme Court Holds City Rabbis Do Not Enjoy Unlimited Freedom of Speech

(Oct. 12, 2020) On September 21, 2020, Israel’s Supreme Court, sitting as a High Court of Justice, unanimously ordered the minister of justice and the attorney general (AG) to file a disciplinary action against the rabbi of the city of Safed for a series of offensive statements attributed to him. The statements involved disparaging comments against women, Arabs, and LGBT persons, as well as political statements and criticism of state institutions. (HCJ 7150/16 Reform Center for Progressive Judaism in Israel v. Minister of Justice (Sept. 21, 2020), decision by Justice Alex Stein, Court President Esther Hayut and Justice Isaac Amit generally concurring.)
Special Disciplinary Tribunal for City Rabbis
City rabbis operate within the framework of the Jewish Religious Services (Consolidated Version) Law 5731-1971 (JRS Law), Sefer HaHukim [Book of Laws, official gazette] 5731 No. 628 p. 130, as amended (in Hebrew). City rabbis’ salaries are partially funded by the state and city rabbis (not all rabbis) are subject to the jurisdiction of a special disciplinary tribunal. (HCJ 7150/16 para. 20.)
According to section 12A of the JRS Law the minister of justice may file a complaint against a city rabbi if the minister has concluded that the rabbi acted inappropriately in fulfilling his duties, or acted in a manner that does not fit the status of a rabbi in Israel.
According to Justice Stein, the Court would generally intervene in a minister’s decision on whether to file a complaint only in unusual circumstances. The case at hand, he opined, justified the Court’s intervention as it appeared that several of the rabbi’s public statements “crossed the red line that separates between what a city rabbi is allowed to say and publish in public and what he is not allowed.” Considering the number of prohibited utterances and the long period to which they extended, Stein concluded, alternative measures implemented by the minister and the AG, such as clarification and warning, did not provide a proper response to the rabbi’s conduct. (HCJ 7150/16 para. 16).
Freedom of Expression and Behavior Unbecoming of a City Rabbi
Along with the right to freedom of expression, Stein recognized “the right against compelled listening” [the right to ignore; which] is an important component of the rule of tolerance that freedom of expression intends to promote.” (HCJ 7150/16 paras. 35 & 40.) In Stein’s opinion, a person’s ability to exercise the right to ignore in effect defines the gap between freedom of expression of an ordinary person and that of public servants.
An expression that hurts the feelings of a citizen, or presents the citizen or the group to which he/she belongs in a negative light, creates in the citizen a feeling of alienation, lack of fairness, discrimination, and even helplessness, Stein said. Statements made by high-ranking public officials may also influence lower ranks in the government, impact the general atmosphere in different government institutions, and ultimately influence citizens. In Stein’s opinion, in most contacts between a citizen and the government the right to ignore is not effective as citizens are considered a captive audience. (HCJ 7150/16 paras. 42–44.)
Additionally, Stein held, the implicit or explicit terms of the employment agreement between a public employee and the state or the public institution to which the employee belongs require that the employee be loyal to the employer. Such terms further require that the employee refrain from making public statements that may harm the employer’s image or the proper provision of public service with which the employer is entrusted. (HCJ 7150/16 para. 46.)
Statements Unbecoming of a City Rabbi
City rabbis, like every other person in Israel, are not allowed to make or present in public statements that constitute incitement to violence or racism, defamation or invasion of a person’s privacy, Stein continued. As public servants, city rabbis are also prohibited from making statements that are discriminatory or racist and that are almost certain to harm the reputation of the public service system. Such statements, Stein determined, are prohibited even if uttered “in the guise of a halakhic [Jewish law] religious discourse when it is clear that their abusive or discriminatory content is unnecessary and cannot be helpful to convey the halakhic message by the rabbi.” (HCJ 7150/16 paras. 70, 72.)

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