Issa Fayed, from the village of Yafia close to Nazareth, thinks twice now before uploading a video or post to social media. A few days after the October 7 terror attack, Fayed, a father of five and a veteran activist against anti-Arab discrimination in Israeli society, uploaded a video to Facebook in which he complained about restrictions to freedom of expression for Israel’s Arab citizens and warned his 70,000 followers that any comment which did not express total support for and identification with the Zionist narrative has become verboten. “The only thing that’s permitted now is to believe in and identify with the Zionist narrative,” he says in the video. “Apart from that, nothing is allowed. What’s permitted is always shrinking. Today, even if you just publish a photo of a baby, a child killed in Gaza by an occupation missile, then you’re liable to be brought in for questioning. The purpose of these interrogations is deterrence. When they apprehend someone and put out a statement, that is designed to deter and intimidate people. And we, Arabs that are citizens of Israel – apart from a minority – most of us have been trained. That means, if someone is detained for a day or two, then they are already trained… Yesterday, I was sitting with my family, with my daughters, and I told them that if I get arrested, I don’t want them to shout or to be afraid; it’s just a day or two… But they [the police] could try to set me up.”

The very next day, dozens of armed police officers raided Fayed’s home and arrested him. “They  wanted to put on a show of force,” he tells Shomrim. “Grenades in the whole neighborhood, masked officers, counter-terrorism forces. Forget about it. They blindfolded me and put me in handcuffs, they really did a job on my arms… Even as they were taking me to the police car, they gave me a blow to the head. The officer who hit me said, ‘You own a garage in Haifa, right? You make a living from Jews? I’ll make sure your business gets shut down’.”

Fayed says that officers at the police station beat him and even threatened to rape him. Thereafter, he was taken to be interviewed by the police’s intelligence officer, who was the first person to question him. He was held in detention for four days before being released to house arrest – but that was not the end of his tribulations. It remains unclear how news of Fayed’s interrogation got out, but his name and photograph quickly spread over social media by right-wing influencer accounts. He started to get threats and hate messages and there were calls for people to boycott his business. Security cameras also captured somebody vandalizing his business with graffiti reading “Hamas supporter.”

In November, police – armed with a court-issued temporary administrative order – shuttered his business for several hours, apparently to allow a group of rightists to demonstrate outside it. Officers presented Fayed with the administrative order and subsequently arrested him on the charge of “concealing” the order, thereby interfering with a police officer in the performance of his duties. In court, officers told the judge that they had received an anonymous phone call, claiming that Fayed had been overheard saying “itbah al yahud” (slaughter the Jews in Arabic) and asked for permission to investigate him for the crime of making threats. Fayed tried to tell the court that the security cameras at his business also record audio and that the police could listen to the recordings. He also said that the expression in question is not one that is used anymore by Arabs – but to no avail. This time, the judge made do with sentencing him to several days of house arrest.

At the same time, Fayed says that he was subjected to a campaign of “financial harassment.” Citing his arrest, insurance companies annulled his policies for the business and his car, credit card companies refused to provide him with clearing services and his bank informed him that he could no longer be a customer with them. In January, inspectors from Haifa Municipality issued him fines totaling more than 6,000 shekels ($1,600) – purportedly for violations such as smoking in the workplace, dirt and placing tires in a public space. Fayed says that the Israel Tax Authority also audited him.

Two months later, in early March, Fayed was officially informed that the investigation against him had been closed and that no indictment would be filed. The damage, however, had already been done and the intimidation tactics were starting to work. “Two days ago, a senior Hezbollah member was killed and I wanted to post ‘We’ll be hearing sirens in Haifa soon’,” he says. “But then I asked myself why I needed to do that. Next thing you know, I’ll be accused of helping Hezbollah aim its rockets.”

In response to a question submitted by Shomrim, the prosecution service said that it is not familiar with the case and that it did not approve any interrogation of Fayed. The response added that “the decision to arrest people suspected of incitement remains at the discretion of the Israel Police.”

The Israel Police did not respond to Shomrim’s request for comment and instead issued the following boilerplate response, which puts responsibility back with the prosecution: “As a rule, interrogations of people suspected of speech crimes are only conducted with the approval of the prosecution.” The full response appears below.

In early March, Fayed was officially informed that the investigation against him had been closed and that no indictment would be filed. The damage, however, had already been done and the intimidation tactics were starting to work.

More than 350 suspects – only 13 out of them are Jews

Fayed is one of hundreds of Israeli citizens and permanent residents who have been arrested since the outbreak of the war in Gaza on charges of incitement to terrorism. The vast majority are Arabs. The upshot is that, with the war raging in the south, freedom of expression has become a privilege that is reserved for the Jewish sector, where law enforcement officials are not quite as eager to implement the zero-tolerance policy they declared after October 7. The number of indictments for speech crimes has shot up by hundreds of percent and in most of these cases the court has approved the suspect’s detention until the end of legal proceedings against them. Some have been behind bars for several months. At the same time, hundreds of Arab citizens have been detained for shorter periods of time for comments critical of the state – many of which come nowhere near the legal threshold for prosecution. In some cases, like that of Fayed, the police bypass the prosecution’s oversight of sensitive investigations of this kind – occasionally with the prosecution’s approval.

According to figures published by the police and the state prosecution, in the seven months following the outbreak of the war, 160 indictments were filed against Israeli citizens or permanent residents on suspicion of incitement to terrorism. Most of these were submitted in the last three months of 2023. This represents a massive jump compared to normal times; on average, 20 to 25 such indictments are filed every year, as reported by Shomrim in 2022.

Since October 7, the state prosecution has adopted a policy of asking the court to hold the suspect until the end of legal proceedings. According to police figures, between October and March, the court agreed to this request in the 165 cases of alleged incitement (some suspects have been charged with more than one crime). This means that some of the detainees have been locked up for several months, since most of the indictments were filed at the beginning  of the war, between October and December.

For example, the Haifa Magistrate’s Court recently ordered the release of someone suspected of incitement and identifying with a terrorist organization. The suspect was detained in October for comments he made at a demonstration in Umm al-Fahm. Judge Maria Pikus Bogdanov ordered the suspect released to house arrest, with an electronic ankle monitor, after she looked into the likely sentence for someone found guilty of the crimes in question and found that “a situation could arise in which the suspect remains in custody for significantly longer than the likely period of incarceration, should he be convicted.”

While only someone who has been indicted for a crime can legally be detained until the end of proceedings, of no less concern are the figures about who has been detained as a suspect – like the aforementioned case of Fayed. According to police data obtained by Adalah, the Legal Center for Arab Rights in Israel, through a freedom of information request, more than 350 people (not including in the Judea and Samaria District, which is responsible for the West Bank) were detained for speech crimes, in violation of Israel’s antiterrorism laws – almost all of them held for more than 24 hours. Only 13 of the suspects were Jewish.

Indictments are usually only filed in what the state sees as clear-cut cases and when there have been multiple statements in support of Hamas or praising the October 7 attacks. However, most of those detained are never officially charged with a crime. The state prosecution, for its part, sees this as proof that it is using its discretion, examines each case individually and does not automatically file an indictment. However, just being interrogated and detained has a deterrence effect – as it did in the cases of Fayed and many others – irrespective of whether an indictment is eventually filed.

According to figures published by the police and the state prosecution, in the seven months following the outbreak of the war, 160 indictments were filed against Israeli citizens or permanent residents on suspicion of incitement to terrorism. Most of these were submitted in the last three months of 2023.

Not just Ben-Gvir: How the prosecution lowered the bar

The assault on the freedom of expression of Israel’s Arab citizens did not start as a reaction to the October 7 terror attack. In recent years, the state prosecution ordered the police to get its approval before opening any investigation into speech crimes. This was because of the highly sensitive nature of such investigation and the understanding that simply opening an investigation against someone – especially if they are also detained – can have a detrimental effect on their lives and can deter people from exercising their legal right to free speech. Arresting someone for a speech crime is a severe infringement of a citizen’s right to free speech and therefore, unlike other investigations, additional supervision of the police has been deemed necessary.

Last year, the Knesset’s Constitution, Law and Justice Committee held several meetings to discuss the issue. The chair of the committee, MK Simcha Rothman (Religious Zionism) criticized the state prosecution for what he saw as not enough indictments. “There is something rotten in this kingdom,” Rothman said, addressing State Prosecutor Amit Aisman. “If these are the figures we are talking about, I feel abandoned.” Rothman also wanted to know what gives the state prosecution the authority to issue a binding order to the police. The chair raised the issue in a subsequent meeting of the committee, at which he demanded a written response from the attorney general. His message was clear.

In February, meanwhile, Prime Minister Benjamin Netanyahu and National Security Minister Itamar Ben-Gvir announced the establishment of a special taskforce to address incitement to terrorism against Israeli citizens on social media – to be headed by Ben-Gvir himself. According to the government’s announcement, the taskforce was due to be made up of three secondary teams: the enforcement team, which would approve police requests to open investigations and to submit indictments; an intelligence team, which would look into ways of monitoring incitement on social media; and a legal team, that would analyze the existing legal situation vis-à-vis incitement. Each of these teams was to include representatives from the police, the Shin Bet, the National Security Council and the attorney general’s office. This is how Ben-Gvir, who was himself convicted of incitement to racism and supporting a terrorist organization, gained direct control over a hugely sensitive issue.

The most significant change, however, did not come from Ben-Gvir’s direction, but rather from the state prosecution. 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 state at the state prosecution 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.

The more-than-expected outcome quickly arrived, with hundreds of suspects arrested. One of them was Yarmuk Zuabi, who owns a restaurant in Nazareth. Two days after the start of the war, Zuabi, a father-of -two, changed his profile picture on WhatsApp to the Palestinian flag and shared a cartoon on Instagram, comparing Israel to Russia and criticizing the different international responses to the actions of the two countries.

Although such comments may be unpleasant to the ears of Jewish Israelis, certainly so shortly after October 7, it is hard to see how they come close to meeting the criteria to constitute a criminal offense. Nonetheless, Zuabi was arrested. “Two police cars pulled up with eight officers,” he tells Shomrim. “When they took me away I wasn’t handcuffed. I know most of the police officers in Nazareth, so someone called on me to come outside and told me that I was being summoned for questioning at the station. Another officer grabbed my phone, which was on the table, and confiscated it. At the station and during the interrogation, I was handcuffed.”

According to Zuabi, the officers who questioned him accused him of posting a Hamas flag, even though the image was in fact the Palestinian flag. “That is the flag of my people,” he says. “I am not Jewish. Israel signed a peace deal with that flag in 1993 and it has been raised in the Knesset. So, what’s the problem?” The police asked the court to extend Zuabi’s remand, but the Nazareth Magistrate’s Court declined – as did the District Court when the police appealed. To this day, no indictment has been filed against him.

That experience was enough for Zuabi, however, and he is not afraid to speak out. “I no longer believe that we are living in a democratic state,” he tells Shomrim. “This isn’t a democracy. It’s nothing. We’re being muzzled. There is just one reason that I am careful now: because at home, my wife and my two children ask me why I need this headache.. They don’t want me to go through all that again. So, yes, I am cautious.”

Like in the case of Fayed, the state prosecution said that it was unaware of Zuabi’s case and in response to a request from Shomrim confirmed that “the investigation was not authorized by the state prosecution.” The police did not respond to this specific case in its generic response to Shomrim’s request for comment.

According to Zuabi, the officers who questioned him accused him of posting a Hamas flag, even though the image was in fact the Palestinian flag. “That is the flag of my people,” he says. “I am not Jewish. Israel signed a peace deal with that flag in 1993 and it has been raised in the Knesset. So, what’s the problem?”

‘Behavior likely to lead to a breach of the peace’

The state prosecution official responsible for this issue is Shlomi Abramzon , from the Security and Special Roles division. In a recent interview with Calcalist, he doubled down on the new policy, saying that “we have also arrested normative people: students from the Technion and Bezalel, a kindergarten assistant from Hod Hasharon and others – including for just a couple of posts. More than half of the indictments were for one or two posts, while we usually only indict people for a lot more than that. But this time we said, ‘zero tolerance’ for anyone who shows support for that heinous attack.”

In the same interview, Abramzon rejected the claim that the new policy impinges on freedom of expression. “We used an iron fist in cases where it was justified,” he said, “not in situations where someone made legitimate criticism.” At the same time, however, the senior official said that there were cases when police launched investigations without the state prosecution’s approval – but claimed that it was not commonplace. “Yes, there were cases when the police overstepped. There is no need for such  situations to arise. There are regulations and everyone should abide by them, so it is not acceptable for a certain police station to go against them. And yes, a consequence of this could be a chilling effect, which inhibits freedom of expression.”

According to police data, the state prosecution allowed police to open investigations into 524 posts up to the start of May – but these figures do not tell the whole story. Issa Fayed, for example, is not included in these figures since, even though he was detained for online comments, the clause that he was suspected of violating was “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.

Another case is that of Rasha Karim Harami. The Majd al-Krum resident was arrested after several posts on social media, one of which asked, “What is the difference between what Hitler did and what Netanyahu is doing?” In a video of her arrest that was uploaded to social media, Harami is seen arriving at the station in a police car, before her hands are tied and her eyes covered. Once the video went viral – portraying Israel in a negative light in the eyes of the world – the state prosecution said, “in the current case, no prior approval for an investigation was requested and therefore no such approval was granted either. In the state prosecution’s view, given the circumstances that have been published, the reasoning behind the police’s decision to handcuff the suspect with a zip tie and to blindfold her is unclear.”

The arrest of a Harami from X

Police recordings obtained through a freedom of information request reveal that, between October and March, 421 people were arrested for behavior likely to cause a disturbance of the peace. It is impossible to glean from the data how many of these arrests were, in fact, for speech crimes – like in the cases of Fayed Harami – and how many were in different circumstances, such as people arrested at demonstrations.

‘The situation should worry everybody’

As we have already established, the state’s zero-tolerance policy is not enforced equitably when it comes to Jewish and Arab Israelis. While Arab citizens are arrested for borderline statements, Jews do not experience the full force of the law even when they are documented making far more egregious comments. There are plenty of examples. At the end of October, for example, a Jewish mob descended on the dormitories of Netanya College, chanted “Death to Arabs' 'and called for Arab students to be expelled. Even though much of the incident was captured on video and even though police were on the scene, no one was arrested or questioned. In another case just a few weeks ago, a right-wing protestor  screamed at people demonstrating for the release of the hostages, saying “It’s a shame the Nukhba didn’t finish the job.” The video quickly went viral and within hours online activist Daniel Amram published the protestor’s full name. Even though this could be seen as praising Hamas’ terrorist attack, the person was not even questioned, let alone arrested. Since October 7, Nareman Shehadeh-Zoabi, an attorney from Adalah, has been busy defending people suspected and accused of speech crimes, as well as waging a legal campaign against the state’s enforcement of the law. “The whole establishment is coming together to send a message to the Palestinians who live under Israeli rule that they must refrain from any activity that identifies them with their own people and that their very legitimacy depends on them identifying with the Zionist narrative. That is also why the police have slapped a blanket ban on all demonstrations against the war in Arab communities and mixed cities, as well as banning the display of the Palestinian flag, notwithstanding High Court rulings on the matter. The worrying outcome of the politicization of the powers of the police and the state prosecutor is that a huge number of people have had their freedom taken away for different periods of time – simply for having exercised their right to free speech and without having been found to have committed any crime. This is a reality that should worry the whole public.”

Shehadeh-Zoabi adds that, since the start of the war, “political repression of Palestinian citizens of Israel and residents of East Jerusalem has worsened. This is especially evident in the institutionalization of the systemic misuse of the criminal process itself for the purposes of deterrence and punishment. The police, which operates under the authority of Minister Ben-Gvir, now has unprecedented leeway, which leads to the mass infringement of the right of Israeli citizens who have not exceeded what the law defines as legitimate free speech – sometimes in an absolutely arbitrary manner. Alongside the fact that many of the indictments filed fail to meet any criminal criteria, hundreds more people have been baselessly arrested, sometimes by violent means, simply to be subjected to an intimidating interrogation before being released.”