Paying a price for silencing public debate

Published on Haaretz

A democratic Israel needs to learn from the Im Tirzu judgment; lawsuits aimed at silencing public debate and intimidation – mostly from the right attacking the left – should be far more risky to initiate.

The significance of the court ruling against Im Tirzu in its defamation suit against eight sponsors of the Facebook page, Im Tirzu: A Fascist Movement, is not only that a repellent organization received its public comeuppance, at least temporarily, but that an Israeli judge spoke out against the destructive impact of SLAPP suits – libel suits intended to discourage public debate – and in favor of the free marketplace of ideas.

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The significance of the court ruling against Im Tirzu in its defamation suit against eight sponsors of the Facebook page, Im Tirzu: A Fascist Movement, is not only that a repellent organization received its public comeuppance, at least temporarily, but that an Israeli judge spoke out against the destructive impact of SLAPP suits – libel suits intended to discourage public debate – and in favor of the free marketplace of ideas.

The best thing that could happen now would be for judges nationwide to study Jerusalem district court Judge Yaakobi’s opinion, and his insistence that public discourse between even bitter political rivals should take place with the “least possible restrictions or sanctions.”

SLAPP suits are usually deployed by well-funded entities which want to silence their critics. In Israel, they almost always involve charges of defamation. SLAPP is an acronym for Strategic Lawsuits Against Public Participation, but the Hebrew term, “silencing lawsuits,” is more straightforward. Shutting people up are what they’re all about.

To better protect Israeli democracy, organizations that work to silence public debate should pay a price when they lose in court. Presumably, Im Tirzu’s image has taken a hit – no one wants a court to affirm that their organization has fascistic characteristics – and this might explain why we have not seen their former Likud allies running to defend them. But in order to discourage future SLAPP suits, the courts should set up an expedited mechanism to assess which suits should be dismissed as spurious and which should go forward. And if the court determines that a losing lawsuit was a SLAPP suit, judges should impose court costs and heavy fines on the plaintiffs who filed them.

Free speech is the touchstone of Western democracy, worn lightly and perhaps taken for granted in North America, but held aloft as a banner to go to the barricades for in Europe. Considering the ongoing threat of SLAPP suits and other legislative attempts to limit public debate, we should establish legal clinics to protect free speech and public discourse. There is currently no anti-SLAPP legislation in Israel and we should study the effectiveness of laws against SLAPP suits pursued in the U.S.

The way SLAPP suit works is simple. An organization or individual hires a lawyer to sue someone who has publicly criticized their policies or practices for libel. In response, the activist or NGO or unaffiliated private citizen has to get their own lawyer, raise money to pay the lawyer, and instead of continuing their efforts, prepare to defend themselves in court.

Public discourse goes out the window. Not only are the defendants – for example, leaders of an NGO – too busy with their legal defense to continue their advocacy, but others who might consider weighing in often keep silent, censor themselves, or at least think twice before speaking. It’s about intimidation. Activists get rattled, worried about how they will pay huge the fines they fear may be assessed them, and new supporters slink away, worrying they also will get sued. In most of these cases, the plaintiffs ask for exorbitant amounts of money far beyond any damage they could conceivably have suffered – Im Tirzu asked for NIS 2.6 million – but these inflated figures are meant to intimidate the other side. Organizations sometimes collapse under the financial strain as legal fees mount. This “chilling effect” is the point.

While there are other types of SLAPP suits, those primarily involving our polarized left-right political discourse, are generally filed by right wing organizations against individuals or NGOs who criticize them from the left. I consulted with several lawyers involved with SLAPP suits, and we couldn’t find a single counter-example. There are good reasons for this.

Some on the right believe that their Greater Israel agenda is more important to Israel’s future than democracy or public debate. If they can put their critics on the defensive trying to prove that they are loyal patriots and Zionists, or loyal Palestinian citizens of a Jewish democratic state, if they are busy fending off implied or explicit charges of treason, then who will listen to their positions on settlement expansion in East Jerusalem or the Occupation?

The critic may be a journalist, a small NGO which published a report, the NGO’s board members who may be deeply or only minimally involved in the organization’s activities, the sponsors of a Facebook page, a blogger, even an individual who yelled critical remarks through a bullhorn at a rally. All of the above have been hit with SLAPP suits in Israel by right wing entities in the last three years.

Im Tirzu is destined to be a footnote in Israeli history, having passed the peak of its destructive influence. They appeared when the government was looking to scapegoat someone for its bungling of the Goldstone Commission. Three years after its obsessive and expensive campaign against the New Israel Fund, Im Tirzu gains little traction with Israel’s media.

But political leaders who allied themselves with Im Tirzu, such as Prime Minister Netanyahu or Interior Minister Gidon Saar, who spoke at Im Tirzu conferences or sent their videotaped blessings for broadcast at Im Tirzu events, are still in power, and our vigilance must be directed toward them. They have never disavowed this affiliation, nor have they responded to the court’s decision that it is not libelous to term Im Tirzu a fascist movement.

Progressive organizations tend not to file SLAPP suits because they favor open discourse and defend free speech. Arguably, the frequent charges against vocal critics of the settlement enterprise that they are enemies of the state could be considered defamation, since it is hard to think of a worse insult in our hyper-patriotic society. Of course, the term “fascist,” is also loaded, and was meant to rile public opinion against Im Tirzu’s policies and practices. But heated debate about heated issues, according to Judge Yaakobi, is warranted and even desirable in an open society. In most SLAPP suits, by the way, the language is not particularly provocative.

The goal of the SLAPP suit is not actually to get money, and the out-of-court settlements to make such lawsuits go away usually involve only minute, symbolic payments. But it’s more cost-effective for a well-financed operation to sue than to answer their critics in the public arena. The powerful plaintiffs can continue doing what they are doing without subjecting themselves to the public scrutiny that results from such criticism.

That’s what it makes such a great and tempting tactic for a strong outfit that wants to silence a weaker opponent. And that’s why SLAPP suits ought to be illegal, or at least, a much more risky proposition for the organizations which deploy them.

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