There is a section in the law that prohibits harming religious sentiments. But a new study by the Israel Democracy Institute holds that freedom of expression should be preferred, and suggests applying the section only in situations designed to prevent racism, violence, violation of public order or damage to holy places. After all, if feelings are already protected by law, what about emotion
Moshe Gorli
As part of the comic, cartoon and animation festival that took place last week at the Cinematheque in Tel Aviv, a special session, titled "God on the line", was required to discuss whether it is permissible to make fun of God or at least incorporate him into cartoons. "I was shocked when I saw the theme of the conference", said Yoni Gerstein, the cartoonist of "Yaded Ne'am", "God is not a subject for jokes".
But not only "faithful stake" think so. Even the law may consider this a criminal offense. This is within the framework of the prohibition on "hurting religious sentiments" in Section 173 of the Penal Code, which stipulates a year in prison for those who "publish a publication that has the purpose of grossly harming the religious beliefs or feelings of others," or who "utters in a public place and within the hearing range of a certain word or voice that there is a gross injury to his faith or his religious feelings."
As with broad and vague prohibitions, except in rare cases, this section is not invoked. Now a study by the Israel Democracy Institute suggests removing the number of laws altogether. The researchers, Prof. Mordechai Kermanitzer, Shahar Goldman and Eran Tamir, reason: "The main consideration by which we oppose the offense is the damage that this offense causes to the principle of freedom of expression." They suggest making the ban conditional only on situations designed to prevent racism, violence, violation of public order or damage to places of worship.
The historical origin of the ban is in the events of 43. The British High Commissioner, who thought that the riots had a religious background, hastened to enact the "Hate Order (Blasphemy of Religion) No. 1929 of XNUMX" which was worded: "Any person who emits any word or sound in public or into the ears of any other person that may or is intended to hurt his religious feelings or in that person's belief, he will be expected to be liable in his case to a prison sentence of one year". In Kermanitzer's eyes, the expansion of the criminal prohibition during the mandate period for the protection of religious sentiments is unnecessary. According to him, "In this context, the conscious choice of the ambiguous linguistic term 'religious feelings' is seen as the highlight of the expansion of the mandatory criminal prohibition and an element that symbolizes the degree of its ambiguity. Although it is clear, especially in view of the historical context, that the main value that required protection is public peace and security - and in fact, human life - there is no mention of this among the elements of the offense."
This prohibition, which went through several incarnations, remains in the law book to this day. For the first time, the Supreme Court required him when in 1964 it rejected a petition against the decision of the legal advisor not to file an indictment against Judge Haim Cohen. The petitioner, Aryeh Wegnar, heard Cohen at a conference on religious-secular relations, say that "racist-Nazi principles became the law of the State of Israel because of an ancient Talmudic rule." He claimed that his religious feelings were hurt and therefore Cohen should be prosecuted. Judge Sussman believed that there was no public interest here and stated: "It is a great rule in our legal system that a person is not punished under any circumstances for an opinion he holds, nor for expressing it."
The study examines the situation in the world: "In Anglo-American law, it can be seen that, in the beginning, the restriction of anti-religious expression was justified by considerations of protecting religion and its symbols, as part of the government or as having a special status among the institutions of the state. In later stages and in different places, there was a significant reduction in the reasoning that attributes importance to these considerations, and the reasoning that attributes importance to the protection required for public peace was recorded. That is, a transition from protecting religion to protecting people from violence."
Jesus is not gay
The last verdict in which they were prosecuted for the offense was a verdict of the English House of Lords from 1979 in which one of the homosexual community's newspapers and the newspaper's editor were convicted of the crime of insulting religion through expression. The charge was filed due to the publication of a poem which attributed to the Christian Jesus a homosexual sexual tendency and included a description of sexual relationships between the hero and other men, including some of the apostles.
By the way, the religion protected by law is the Christian religion only. In 1991, an appeal was rejected in England against the decision not to press charges against the writer Salman Rushdie for hurting Muslim religious sentiments following the publication of his book "The Satanic Verses". The reason for the rejection was that the offense of insulting religion does not apply to non-Christian religious symbols.
In 1997, Tatiana Soskin was convicted by the Jerusalem District Court of attempting to hurt religious sentiments and was sentenced to two years in prison and one year on probation. Soskin was caught in Hebron with leaflets in her possession, including a drawing of a pig wearing a baker's hat stepping on an open book. On the figure of the pig is written "Mohammed" and on the book "Quran".
Judge Theodore Or in the Supreme Court examined the basics of the offense and stated that "a position according to which any expression that has the potential to harm religious sentiments will fall within the scope of this offense undermines the fundamental right to freedom of expression." Or did reject Soskin's appeal but narrowed the applicability of the section prohibiting harm to religious sentiments. He stated that not every serious injury will be considered forbidden, but only that which causes damage to "the interest of the members of the same religion as a whole as opposed to injury to the religious feelings of this or that individual". We are therefore faced with a double reduction, freedom of expression was determined to be greater than harm to feelings and only the general interest - as opposed to harm to the individual - was recognized as entitled to the protection of the law.
The issue of harm to feelings almost did not concern the courts in the criminal field. On the other hand, the issue was discussed in detail in various administrative petitions on censorship issues, the opening of sex shops and transportation in religious neighborhoods. A case where freedom of expression retreated from religious sentiments was in 1972, when the Supreme Court upheld the disqualification of Amos Kenan's play "Friends tell about Jesus". The court ruled that this was a "repulsive mixture of the desecration of the Christian faith" and added that the criminal prohibition does indeed allow "a writer or a playwright to lash out as he pleases with the whip of criticism or satire at religious priests who have sinned... but presenting God himself on stage in a way that insults the feelings of believers is beyond the limit that is allowed in our country on according to law".
The legal adviser intervened
Harming feelings conflicts not only with freedom of expression but also with freedom of occupation and freedom of movement. Regarding the occupation, in 1973 the court overruled a decision of the Jerusalem Municipality not to grant a business license to the "Eros" store to sell sexual accessories, because of a fear of extreme harm to the feelings of the religious public, to the point of risking public peace on the part of the victims. The Supreme Court ruled that harming religious sentiments does not in itself cause harm to public peace and allowed the store to open. On the other hand, closing roads to traffic on Shabbat in religious neighborhoods is a well-known phenomenon. The secular public, as a rule, accepts the restriction as long as it is in clearly ultra-Orthodox neighborhoods, such as Mea Shearim or Bnei Brak, or on roads near large synagogues. However, a great uproar broke out over the decision of Transport Minister Yitzhak Levy in 1996 to close the Bar-Ilan highway, a main transportation artery, during prayer times. The supreme court, by a majority of four against three, approved the closure. President Aharon Barak balanced freedom of movement with harming religious sentiments and stated that religious sentiments are included in the value of public order, which a democratic state may and sometimes must prioritize over other interests.
At the foundation of the ban on harming religious feelings, two questions arise: Why do feelings deserve protection? And why religious feelings in particular? The play "Queen of the Bath" was dropped due to a public protest by bereaved families whose feelings were hurt. Why, then, are only religious feelings protected, while the feelings of bereaved families or Holocaust survivors are not entitled to the protection of the criminal law? And one can also ask why the Maccabi Tel Aviv fans should not be protected, whose feelings were severely hurt following Avi Nemani's removal from the team?
Kremenitzer believes that an attempt to protect feelings in the Penal Code will harm many freedoms. According to him, "life conjures countless situations that contain a real potential for hurting feelings of various kinds, especially in heterogeneous and multicultural societies. An attempt to bring protection in the penal law against such injuries will inevitably result in a huge restriction of freedom. Therefore, there is no reason to prohibit purely emotional harm that does not have additional damage to an important and vital social interest that accompanies it."
Such interests can be within the framework of struggles against racism, violence and the violation of public order. At the "God on the Line" conference, the cartoonist Shlomo Cohen told about an incredible intervention by the attorney general. About two years ago, Cohen illustrated the character of Rabbi Kadori for Sylvi Keshet's column in Yedioth Ahronoth. Kaduri, what to do, is endowed with an oversized nose, which was expressed in the illustration. An outraged reader, who introduced himself as a descendant of a Holocaust survivor, wrote a letter to the legal advisor accepting and denouncing the so-called anti-Semitic cartoon. Cohen said that to his surprise, the consultant sent a harsh letter to the newspaper in which he joined the argument against the cartoon. According to him, "he even increased to do and at the end of the letter he asked the editor what he intended to do about it". Cohen replied in his own letter to the adviser. According to him, the consultant replied, "and in his answer it seems to me that he admitted the mistake he made in writing the letter."
This story shows the great sensitivity of the Israelis, who even find it appropriate to share with the whole world cries of grief for hurting their feelings. Precisely because of this, perhaps it is appropriate to remove the criminal sword, although the law, the researchers remind, does not determine which religion is the feelings of its believers worthy of protection. The law also does not define what religion is - are any handful of people who hold a religious belief allowed to complain to the police about hurting their feelings?
The article was published in Haaretz newspaper.
