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Israel: Court Decision Protects Political Advertising

(July 19, 2017) On June 26, 2017, Israel’s Supreme Court unanimously rejected an appeal against a decision by the Court for Administrative Matters (CAM) to void a decision by the Givat Shmuel Municipality to remove politically oriented outdoor billboard advertisements in areas designated by the municipality for commercial advertising. The paid advertisements were intended “to raise public discussion regarding the Israeli-Palestinian conflict.” Among other statements, the advertisements said “the conflict appears to be necessary for the sake of the army.”  (Adm. App. 4058 Givat Shmuel Municipality v. Arik Institute for Conciliation Tolerance and Peace (Danziger opinion, ¶ 1) (decision rendered June 26, 2017), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew).) According to the municipality, the advertisements should be removed based on their political content and the harm they cause to public sentiment.  (Id. ¶ 2.) Justice Yoram Danziger rendered the main decision for the Supreme Court..

Decision by Court for Administrative Matters

In a hearing on the legitimacy of the municipality’s decision to remove the advertisements, the CAM relied on relevant provisions of the Municipalities Ordinance and the appropriate Givat Shmuel municipal bylaw. (Danziger opinion, ¶ 3; Municipalities Ordinance [New Version], DINEI MEDINAT YISRAEL (NUSACH CHADASH), (REVISED TEXT OF LEGISLATION ENACTED BEFORE THE ESTABLISHMENT OF THE STATE) 5724-1964 No 8 p. 197, as amended).)

The CAM concluded that the authority of the municipality to remove or prevent advertising was limited to situations where the content might constitute a criminal offense or harm public sentiment, neither of which situations the municipality had proved to exist in the current case.  The CAM further decided that the relevant bylaw did not distinguish between “political” and “commercial” advertisements.  The law does not and cannot justify restricting different advertisements to specific locations based on their content, the CAM opined, as such differentiation could limit freedom of expression without legal authority.  (Danziger opinion, ¶ 3.)

Supreme Court Verdict

Danziger held that section 246 of the Municipalities Ordinance provides the mayor a general authority to control display of advertisements within the jurisdiction of the municipality.  The specific regulation of the licensing of advertising within Givat Shmuel is found in section 4(a) of the city’s bylaw, which authorizes the mayor to allow advertisements subject to conditions regarding location, size, color, and content, among other aspects, and to prohibit those advertisements that may constitute a criminal offense or pose harm to public order or sentiment.  (Id. ¶¶ 9-10.)  The language of section 4(a), Danziger wrote, “might … mislead the reader” as that language may “support the position that the mayor has broad authority also to intervene in the content and language of advertisements posted throughout the city.”  (Id. ¶ 11.)

In fact, however, according to Danziger, “the authority granted to the mayor to impose limitations on the content of advertisements based on the above-cited provisions was much more limited and … naturally intended to ensure public order, the city’s esthetics, and the safety of the passers-by so that they are not harmed by the ads.” (Id. ¶ 12.)  Additionally, several precedents indicate that the mayor’s general authority to impose limitations on advertisements does not include the power to issue extended content-based restrictions, especially when they involve expressions of a political nature.  (Id. ¶ 13.)  Rather, Danziger noted, “the mayor has to be ‘blind’ as to the question of what has been published.  S/he must be indifferent to the content of the advertisement and not exert any discretion in the matter.”  (Id. ¶ 14.)  Moreover, based on precedent, the authority to prohibit an advertisement that “might constitute a criminal offense or harm public policy or sentiment” under section 4(b) of the bylaw requires that the advertisement would almost certainly lead to “especially harsh and significant” harm to public sentiment or would “clearly constitute a criminal offense.”  (Id. ¶ 16.)

The facts presented in this case, Danziger determined, are different; section4(b) does not authorize the municipality to impose a general limitation on all political advertisement, but was intended instead to authorize the mayor to prohibit any specific advertisement found to be criminal or harmful.  In the current case, there was no claim that the advertisement was criminal, and, rejecting the claim that the advertisement constituted harm to public sentiment, Danziger held that “[t]he threshold for imposition of limitations on freedom of expression for harming public sentiment, especially in the political context, is very high.”  The advertisement that was the subject of the appeal request, according to Danziger, did not meet this high bar.  (Id.)

Danziger concluded that the removal of advertisements of a political nature from certain areas by the Givat Shmuel Municipality harmed the ability of the appellant to exercise its right to freedom of expression.  In the absence of legal authority for it, therefore, the municipality’s act was unlawful.  (Id. ¶ 21.)