One interesting distinction between Israeli and American law connected to Jewish Law arises in the field of defamation. US law, of course, tends to favor the defendant, the entity whose statements allegedly cause damage to the plaintiff. With the guiding principle here the First Amendment and its concerns for freedom of speech and freedom of the press, the Supreme Court in NY Times v. Sullivan (1964) stated that public officials would win a libel suit only if they could prove the defendant knew the information was false, it was published with malice – defined as reckless disregard whether it was false or not, and it actually caused damage.
In contrast, Israel presents a lower bar for the plaintiff to successfully prosecute defamation cases (and gives greater birth to the military and the government in general for censorship purposes). Part of the reason why is certainly due to Israel’s inheritance of the British legal tradition.[1] An additional reason is historical; Israel, born out of the Holocaust, took note of how the Nazis used the press as a weapon in their propaganda machine, and thus was far from sympathetic to its needs for free reign.
A final possible explanation can be found in the documents accompanying the introduction of the Defamation Law in 1965. In explaining the government’s motivation behind the bill, the Justice Minister Dov Yosef stated: “Ancient Jewish law, too, did not tolerate defamation. In Chapter 19 (Verse 16) of Leviticus, the precept “Do not go about as a talebearer among your people” is immediately followed by the precept “Reprove your kinsman” (verse 17). The first precept became the foundation in Jewish law for the prohibition of defamation, and the second became the foundation for the freedom of public debate. There is no need in this House to belabor the fact that sharp public debate has freely taken place among the Jewish since the beginning of Jewish history. The prohibition of defamation has not prevented free debate, inasmuch as freedom of debate does not necessitate freedom to defame. These principles are undisputed. Any disagreement concerns the balance to be struck between the two principles – where to set the boundary between them. In the Defamation Bill, we have attempted to draw the correct boundary line.”
In other words, a major influence
on Israel’s Defamation Law – and absent in the US Constitution – is Jewish
Law’s concern for limiting the damage caused by unrestrained speech.[2]
[1] Which in turn perhaps explains why as Israel’s legal orbit draws closer to the US so too has its defamation laws loosened somewhat.
[2] There is no shortage of sources to support this assertion that Jewish Law abhors defamatory speech – even if true – though given space constraints I will include just one: “Do not go talebearing among your people. And even though we do not give lashes on the thing, it is a great transgression and it causes the killing of many souls in Israel. … There is a much greater sin than this – and it is included in this negative commandment – and that is evil speech (lashon hara). And that is the one who speaks disparagingly about his fellow, even though it is true.” Rambam, Mishneh Torah, Hilchot De’ot 7:1-2.
