Earlier this month, Shomrim published an investigation into Israeli measures to curtail the free speech of its Arab citizens. During the course of the investigation, Shomrim uncovered several cases in which police arrested people they suspected of incitement but used other clauses in the criminal code, often “artificial” clauses, to make the arrests. Police used these clauses to avoid having to obtain approval in advance from the state prosecutor, as required by law. In most cases, such approval is not granted. Last week, State Prosecutor Amit Aisman announced that his office is considering changing the directive to police in order to put an end to the practice.

“Safeguarding freedom of expression in difficult and turbulent times is also a serious and complex challenge for us at the State Prosecutor’s Office,” Aisman said at the Haifa Legal Conference at Haifa University. “On the one hand, we want to allow every citizen to exercise their freedom of expression; on the other hand, we must identify those rare cases where freedom of expression crosses the line and becomes incitement, which endangers us all. Our cooperation with the Israel Police’s investigations and intelligence units is excellent. At the same time, we have recently encountered a number of cases in which the Israel Police launched an investigation into alleged speech offenses without obtaining approval from the state prosecutor, as it is obligated to do in accordance with our instructions. In some of these cases, the clauses that police used to charge suspects de facto bypassed the need to ask the State Prosecutor’s Office for approval to open an investigation; in other cases, these clauses were used when the above mentioned approval was not granted.

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“As a result of this, we are currently considering amendments to the directive on speech offenses in order to address the use of such clauses,” Aisman added. “Those of you who follow such things are no doubt aware that there are currently efforts to cancel the need for approval from the state prosecutor to open investigations into allegations of speech crime and to transfer the authority to approve such investigations to the Israel Police. Such a move, if it were to be implemented, would increase, to my understanding, the danger of harm to freedom of speech in the State of Israel, especially given the reality I described at the start of my address.”

Shomrim’s investigation revealed the cases of Yarmuk Zuabi and Issa Fayed, two Arab citizens from northern Israel, who were arrested and interrogated shortly after October 7. Zuabi was arrested for 36 hours after changing his profile photograph on WhatsApp to the Palestinian flag and sharing a cartoon which mocked international responses to the IDF and Israel. Fayed, ironically, was arrested for four days after sharing a video in which he called on Arab citizens not to speak out, claiming that any comment that did not “echo the Zionist narrative” could lead to a police interrogation. Neither of them was ever charged with a crime and, in both cases, the police did not get approval from the state prosecutor to launch an investigation.

The state prosecution’s directives on speech offenses stipulate that the police must obtain approval from the state prosecution in order to open an investigation. Up until the October 7 massacre, the prosecution did not tend to allow the police to open an investigation over a single comment. Rather, investigations were only approved into someone who made several potentially illegal comments. Similarly, the prosecution took into account the number of people who were exposed to the comments and the influence that the person making them has. Immediately after October 7, Aisman ordered his staff to approve investigations over a single comment and to demand that the suspect be detained until the end of legal proceedings as soon as an indictment is filed. If that were not enough, the State Prosecutor also allowed the police to open investigations without specific approval in “clear-cut” cases of support for Hamas.

As a result of the new directive, hundreds of people, predominantly Arabs, were arrested in a very short period, for speech offenses. Shomrim also uncovered cases where police, after being denied approval to investigate, resorted to using spurious clauses that do not require approval as they are not classified as speech crimes. In most instances, the comments in question did not meet the threshold of criminality. For example, Fayed was detained for online comments under the clause “behavior likely to cause a disturbance of the peace.” Since this is not classified as a speech crime, the police did not need special approval from the prosecution to open an investigation. Aisman now says he will crack down on such behavior.