Shnitzer v. Chief Military Censor
[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]
This petition concerns the decision by the First Respondent to prohibit, under its authority according to Regulation 87(1) of the Defense Regulations (State of Emergency) 1945, the publication of a newspaper article criticizing the functioning of the Director of the Institute for Intelligence and Special Operations (the “Mossad”,) while noting the upcoming change in Mossad directors. After submitting to the First Respondent different versions of the article and after the Petitioners withdrew several portions of it, excerpts discussing two matters were prohibited for publication: the first topic was criticism of the Director of the Mossad and questioning his efficiency. In the First Respondent’s opinion, such criticism may compromise the functionality of the entire Mossad, on all levels of its ranks. The other topic concerns the timing of the change of directors while emphasizing the public importance of the Mossad Director’s role. The First Respondent’s position is that such publication may focus attention onto the Director of the Mossad, which creates real danger to his safety. The Petitioners maintain that the excerpts of criticism in regards to the Director of the Mossad and the timing of changing the director are worthy of publication and that their prohibition is unlawful. The Petitioners rely on the importance of freedom of expression and the public’s right to know in a democracy, and in their view the publication does not create a near certainty for harm to state security that justifies limits to free expression.
The High Court of Justice ruled:
A. 1. The Interpretation that must be given to the Defense Regulations (State of Emergency) in the State of Israel is not identical to the interpretation that must be given to them at the time of the British Mandate. The Defense Regulations (State of Emergency) are currently part of the laws of the democratic state, and they must be interpreted in light of the fundamental principles of the Israeli legal system.
2. The Defense Regulations (State of Emergency) concern state security. This fact impacts the way the system’s fundamental principles are implemented but it does not impact the mere application of these fundamental principles. The state security and the public order do not outweigh or negate the application of fundamental principles. They are weaved into them, influencing their shape and content, and are balanced against them.
3. The fundamental principles that shape the interpretation of the Defense Regulations (State of Emergency) are, first and foremost, considerations of security, which cover the entire scope of the Regulations. Realizing the interests in state security, public safety and public order are at the basis of the purpose for which the Regulations were enacted and they must be interpreted according to this purpose.
4. Alongside the security considerations (in their broad sense) stand additional values that any piece of legislation in a democratic society must be interpreted in their light and which are implicated by the Defense Regulations (State of Emergency).
B. 1. It may so happen that fundamental principles conflict with each other. The principles in terms of state security, public safety and public order may conflict with values such as the freedom of movement, free expression, and human dignity. In each of these cases the Court must balance between the conflicting values.
2. The “balancing formula” in the conflict between state security and free expression presupposes realizing the values of state security.
3. Because of the centrality of the fundamental value of free speech the infringement of this fundamental value must be as limited as possible, and only when the infringement of free speech is essential in order to realize the value of state security is this infringement permitted.
4. The likelihood that justifies limits on free expression is that of a “near certainty.” There must be extreme circumstances that create a real and almost certain danger to the safety of the general public.
5. This likelihood does not exist where other means – aside from limiting personal liberty and aside from limiting free expression – may be employed in order to reduce the danger. Infringing free expression need not be the first resort; it must be the last resort.
C. 1. Subjective discretion must be applied within the contours of the authorizing statute. Therefore those who were empowered under the Defense Regulations (State of Emergency) may apply this authority in order to realize the purposes behind the Regulations rather than realizing irrelevant purposes.
2. Any governmental authority is based on conditions and requirements as to its implementation, and lawful implementation of the authority requires that such conditions be actually realized. Therefore, to the extent that the correct interpretation of Regulation 87 of the Defense Regulations (state of Emergency) is that a publication in a newspaper may be prohibited only if the Censor believes there is near certainty that the publication would cause real harm to security, then the Censor’s must give thought to the existence of such near certainty. Should the Censor prohibit a publication without being persuaded that the publication creates the required near certainty it did not exercise its discretion lawfully.
3. Discretion assumes freedom to select between lawful options. Subjective discretion assumes that the competent authority makes the choice between the options according to an evaluation of each option’s benefits. This evaluation must be made according to the rules of administrative law: in good faith, without arbitrariness or discrimination, and following consideration of all relevant factors and only relevant factors.
4. The Censor’s decision must be reasonable, that is that any reasonable Censor would reach such decision under the circumstances. The question in each case is whether a reasonable military Censor may reach the conclusion that, on the basis of a given set of facts, there is near certainty that the publication would cause a severe or real harm to state security.
5. The determination that were the publication not prohibited there would be near certainty for real harm to state security must be based on clear, unequivocal and convincing evidence.
D. 1. There is no basis to the approach that the subjectivity of the administrative discretion restricts judicial review to only a limited number of grounds for review. The proper approach is that the theory of discretion establishes the conditions for the lawfulness of the use of discretion and the theory of adjudication establishes that the court is authorized to examine the existence of such conditions.
2. The principle of separation of powers requires the court to review the lawfulness of the administrative entities’ decisions. Security factors hold no unique status in this sense. Just as the courts are able and obligated to examine the reasonability of professional discretion in each and every area, so they are able and obligated to examine the reasonability of discretion in terms of security. There are no unique restrictions on the scope of judicial review over administrative discretion that concerns state security.
3. Under the circumstances here, once the First Respondent gave reasons for its decision, these reasons are subject to judicial review, just like any other administrative discretion.
E. 1. The First Respondent’s distinction between criticism of the Director of the Mossad, which he believes compromises state security rendering prohibiting its publication and criticism of the Mossad itself, which must not be prohibited, is unacceptable. Publishing criticism of the functioning of the Director of the Mossad causes no near certainty of real harm to state security.
2. In a democratic society, criticism of people who hold public roles should be possible. Free expression includes the freedom to criticize and the freedom to pose difficult questions to those in government. Discomfort regarding criticism or the harm it may cause cannot justify the silencing of criticism in a democracy, which is founded on the exchange of idea and public discourse.
3. In deciding to prohibit the publication of criticism over the functioning of the Director of the Mossad, the First Respondent did not attribute sufficient weight to the principle of free expression. A free society cannot exist without a free press, therefore the press must be allowed to fulfill its function and only in special and extreme cases, where there is near certainty for real harm to state security, is there place for prohibiting news articles.
4. Under the circumstances here, the First Respondent did not meet the heavy burden of showing that advance restriction of free expression is lawful.
F. 1. The First Respondent’s reasoning to prohibit the Petitioners to publish in an article details as to the timing of the change in the directors of the Mossad does not withstand the test of review. The possibility that publishing the timing of the impending change in the directors of the Mossad increase the risk to the outgoing Director’s safety is merely speculative.
2. There is public importance to the fact that the public is aware of the upcoming appointment. This reflects one of the aspects of the great importance of free expression and the public’s right to know.
3. Under the circumstances here, there position and the estimations of the First Respondent are unreasonable. In its approach, the Court does not appoint itself super-censor, but it finds that a reasonable censor, operating in a democracy and required to balance security against free expression, would not reach the conclusion reached by the First Respondent.
|Barak, Aharon||Primary Author||majority opinion|
|Melitz, Yaakov||majority opinion|
|Wallenstein, Shulamit||majority opinion|