Prof. Barak Medina is a legal scholar working on theoretical, comparative and positive aspects of the right to equality, freedom of speech, judicial review, and constitutionalism. He holds the Landecker-Ferencz chair in the study of Protection of Minorities and Vulnerable Groups at the faculty of law of the Hebrew University of Jerusalem. He has served as Dean of the Law Faculty (2009-2012), and as the Rector (Provost) of the Hebrew University (2017-2022). He is a graduate of Tel-Aviv University (LLB, BA and MA in economics), Harvard Law School (LLM), and the Hebrew University (PhD in economics), and served as a Visiting Professor at the Law Schools of Columbia University in New-York and University of California Berkeley.
How do you see the balance between protecting free speech and ensuring public safety in politically volatile environments like Israel?
Protecting free speech is especially important in Israel. Fundamental policy issues are debated, and it is essential to enable the people to participate in the public discourse, both through social media and demonstrations.
In principle, speech should be curtailed only if, given the concrete circumstances, there is imminent risk that listeners will act illegal and cause substantial harm. In most cases, the harm can be prevented without limiting speech. The exception is incitement to racism, of all forms, where the risk is the dissemination of hatred and discrimination.
Can you share an example from recent years where legal frameworks in Israel have successfully protected—or failed to protect—freedom of speech?
The mass demonstrations last year against the government’s plan for “Legal Reform,” which in fact aimed at substantially limiting judicial review, were at first subject to harsh limitations imposed by police. However, an intervention of the AG, and in some instances of the Court, has resulted in Police enabling these mass demonstrations and protecting the demonstrators. It was a remarkable example of the power of social mobilization. These gatherings have been ongoing for over 40 weeks; every Saturday night, around 250,000 people assemble in Tel-Aviv’s city center, with a similar number gathering in numerous locations across the country. This means that approximately 7.5% of Israel’s adult population participates in these weekly demonstrations. In a recent poll, about 22% of Israel’s adult population reported participating in at least one mass demonstration against the government’s plan in 2023, totaling approximately 1.4 million people (equivalent to almost 60 million adults in the U.S.). What is equally remarkable is that these mass demonstrations have been entirely peaceful and non-violent, yet highly effective.
Similarly, at the first few weeks of the current war in Gaza, police tried to prevent demonstrators from calling to stop the war or from accusing Israel of committing war crimes. The AG’s intervention, based on existing legal doctrines developed by the court, resulted in allowing these type of statements.
What role do you believe judicial review plays in safeguarding minority voices in a democracy, especially in the context of ongoing conflicts?
Judicial review is of vital importance in protecting the right of the minority to free speech. Especially in times of war, when the level of tolerance of both the government and the majority is low, it is essential for the Court to enforce the standards that were set in peaceful times.
Israel’s Bill of Rights, namely Basic-Law: Human Dignity and Liberty, does not explicitly enumerate free speech as a protected human right. It was the Court’s decision to interpret the right to human dignity to cover free speech too that secured the protection of this vital right, and enforcing the government to protect it.
In your opinion, how has the global perception of Israel’s free speech laws evolved over the past decade?
The protection of free speech in Israel ranks high in comparison to other liberal democracies. The press is free, as well as social media, and the freedom to demonstrate is strongly protected. The incidents that attract the attention of international media, in which the government curtails speech, such as the decision to prevent Al Jazeera from broadcasting from Israel, are the exception, not the rule. It seems that along with critical views of Israel in general, also evolved an unfavorable perception of its free speech policies. A critique of specific decisions is positive, as it helps rectifying wrong decisions, but it is too often generalized to present a biased picture of the reality in Israel.
What are the biggest challenges facing legal scholars when discussing free speech in the context of national security?
The main challenge is to balance between incitement to violence and terror which might induce people to act and expression of political views in a harsh way. The distinction is difficult, as even ex-post, it is still debated whether the assassination of Prime Minister Rabin, in 1995, could have been prevented had the AG acted against those who expressed the view that Rabin is a traitor. It is even more difficult to make these assessments ex ante, and to ensure that speech is limited in a non-discriminatory way. The doctrine which sets a probability threshold, such that only especially high level of risk can justify limiting speech, provides the required protection to this right.
