“It pains me to say so, but this suit contradicts this court’s fundamentals regarding the scope of freedom of speech, whereas we are speaking of the heart of the political-ideological sphere on one end, and on the other end we have another consideration, where this discussion took place — on Facebook — rather than a book or an article in a newspaper. When we take into consideration these two aspects, the result is so trivial that is it difficult to believe that you didn’t consider that your appeal will be rejected.” That is what Supreme Court Justice Yitzhak Amit told Im Tirzu’s attorney during a hearing on the appeal filed by the group against the founders of a Facebook group titled, “Im Tirzu is a fascist movement.” “The truth,” Justice Amit added, “is that your appeal should have been rejected out of hand.”
The hearing, which was heard by a three-judge panel that also included justices Anat Baron and Meni Mazuz, was on an appeal filed by both sides, against the Jerusalem District Court’s previous ruling. Roy Yellin, one of the founders of the group, appealed the district court’s decision, which fined him for libel after he published a Facebook comment tying Im Tirzu to scientific racism. The remaining defendants in the original lawsuit filed by Im Tirzu (for NIS 2.3 million), asked the court to force the organization to pay their legal costs. For its part, Im Tirzu appealed the court’s ruling that the “Im Tirzu is a fascist movement” Facebook group did not constitute libel.
Im Tirtzu has become known over the past several years for their attacks on left-wing academics and organizations. It launched a personal campaign against the head of the NIF, Naomi Chazan in the wake of Operation Cast Lead, campaigned against academics who taught courses about the Palestinian narrative of 1948, and led the campaign to shut down the political science department in Ben Gurion University. Im Tirtzu was also behind the attempt to scare the Eretz Yisrael Museum from hosting the annual ‘Return Conference,’ an event put on by the non-profit Zochrot, which works to promote awareness of the Nakba in Israeli society.
At the end of the court hearing, both sides agreed with the Supreme Court’s decision that the district court’s rulings will be rescinded, and that the suits will continue separately. Furthermore, Im Tirzu agreed to donate several thousands shekels to an animal rights NGO.
The ship should not have sailed
At the beginning of the hearing, it was clear that the justices were not comfortable with Im Tirzu’s suit. “We believe that the court has sailed to places it shouldn’t have sailed to, the ship should not have embarked,” said Justice Amit at the beginning of the hearing, and suggested the two sides withdraw their appeals and that the Supreme Court cancel the district court’s decision.
Attorney Nadav Haetzni, who represented Im Tirzu, claimed that the suit was filed after red lines were crossed and that the Facebook group was an attempt at political elimination. According to Haetzni, the court should have stressed this red line. On this matter, Justice Mazuz stated that indeed there are red lines when it comes to free speech, but the question is where you place them. For Mazuz, a case such as this one — which is part of the public, political discourse and in which the claims made aren’t personal — has looser restrictions on free speech. Thus, Mazuz said, exaggerations, which certainly occurred, are certainly acceptable in this case.
Attorneys Michael Sfard and Ishay Shneydor, who represented the defendants, claimed that canceling the district court’s decision without forcing Im Tirzu to pay a price for its lawsuit would only encourage them to file more SLAPP suits. According to Sfard, the court’s suggestion would mean a concesssion on both the price that Im Tirzu was made to pay according to the district court’s ruling, as well as on the legal costs incurred by the defendants. Shneydor warned that if the court’s suggestion is accepted, it will mean that anyone who wants to express him or herself in the public sphere may be dragged to court over a NIS 2.3 million lawsuit, will have to deal with the case for years, see the suit against him be eventually rejected, and will not be eligible for any financial compensation or a positive statement on his/her behalf by the court.
At this point Justice Amit asked to change his suggestion so that alongside withdrawing the suits and rescinding the district court’s decision, Im Tirzu would be forced to donate a symbolic sum of money to “a good cause.” “I believe that your appeal was honest,” said Amit to Haetzni. “However, sometimes the real test is the result, and the result could fall into the category of SLAPP, which is not easy. Until today, the court has not dealt with these issues.”
After a short break, Haetzni announced that Im Tirzu will accept the court’s suggestion. Sfard, however, expressed his opposition, stating that accepting the withdrawal of the appeals and erasing the district court’s verdict without any additional aid harms the obligation toward future victims of SLAPP suits.
After a short consultation between the justices, they suggested an agreement that would include withdrawing the appeals, rescinding the district court’s verdict, ordering Im Tirzu to donate money to an NGO supporting battered women, and issuing a statement according to which “this court believes that this kind of appeal should have never been filed in the first place, and it is fitting, as a normative instruction for the future, that the courts will express their opinions on matters of legal costs in such suits.”
After an additional short break, both sides agreed with the suggestion, although Attorney Haetzni asked to donate the money to an animal rights NGO. “We do not know which of these organizations which helps battered women are tied to the New Israel Fund,” he explained.