Israel Matzav

The right to shout "Fire!" in a crowded theater

Writing in the New York Times, Dimi Reider characterizes the conviction and sentencing to jail time of Anat Kam as an attack on freedom of speech.

The verdict sends several chilling messages. To young soldiers it says: shut up, even if you suspect your commanders of violating the law; they will go unpunished and you will go to jail if you leak. To the source it says: no one will protect you; don’t be a self-sacrificing fool. And to the journalist it says: know your place; cover what we tell you to cover, print our news releases, and keep within your bounds.

The sentencing of Ms. Kamm — who has already spent two years under house arrest — marks a watershed in the relationship between the public and the news media in Israel.

Leaks are used by journalists as a matter of course. Journalists routinely meet people like Ms. Kamm — ordinary patriotic soldiers who are horrified by the contrast between their expectations of their country and its actual conduct.

These ordinary patriots are sometimes moved to make shocking revelations about their country’s inner workings. They act out of civic duty and a belief that their compatriots need to know the truth, regardless of what official institutions think the public should know.

Ms. Kamm and Mr. Blau operated by the unwritten code of conduct that has enabled the Israeli press to monitor at least some aspects of the country’s powerful security establishment for the past 63 years. Ms. Kamm did not leak her secrets to an enemy, or even to a foreign journalist. She gave the documents to a fellow Israeli, who consulted his editors, and submitted his article to the military censor, who gave him the go-ahead.

On Sunday, we learned that this code of conduct no longer applies.

But the code of conduct that Reider is imagining never applied. If Kam really suspected war crimes, then she should have gone to Israel's military advocates, who are independent of the army and can conduct their own investigations. What Reider is seeking for Kam and potentially others is the military equivalent of the right to shout "Fire!" in a crowded theater.

In 1919, Oliver Wendell Holmes wrote in Schenk v. United States,

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

While the ruling was limited in the 1969 case of Brandenburg v. Ohio to instances where there is a likelihood of inciting imminent lawless action, the principal remains: Freedom of speech is subject to restrictions of time, place and manner. That includes publishing or causing the publication of war plans in the run-up to a war, which is what Kam and her cohort Uri Blau (of Haaretz) are accused of attempting to do. It is so clear that what Kam did was over the line that Monday's imposition of jail time will not lead to any weakening of freedom of speech in Israel.

The IDF has means of dealing with war crimes. Its legal department has the right to independently investigate such charges without interference by its high command. If Kam really thought there were war crimes being perpetrated, that was the place to go.

Labels: Anat Kam, freedom of speech, Operation Cast Lead, Uri Blau

posted by Carl in Jerusalem @ 1:28 PM