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ast Sunday, Likud activist Rami Ben-Yehuda hosted an open discussion on Twitter. During the discussion, one of the participants asked how it could be possible to change the atmosphere in the State Prosecutor’s Office. “I have a rather extreme viewpoint, but it’s quick, and it solves the problem,” replied Michael Ben-Shoshan, another Likud activist taking part in the discussion. “You have a show trial, find all the people against whom there is evidence that they used their power to corrupt. Then you paint a wall white – a nice wall – you stand them in a line and you execute them.”

Many participants were taken aback by Ben-Shoshan’s comments and a complaint was filed with the police, along with a demand to investigate him for incitement to violence. Naturally, a large part of the uproar centered on when the police choose to question a suspect under caution for something they have said and when the prosecution chooses to indict someone and allow the courts to decide on their guilt.

To answer those questions, Shomrim, via the Movement for Freedom of Information in Israel, asked the Justice Ministry to hand over details of all the indictments filed by the State Prosecutor on matters of freedom of expression between 2020 and 2021. An analysis of these indictments offers an insight into Israel’s enforcement policy when it comes to some of the most complex crimes to handle efficiently and fairly. 

The prosecution views every speech crime case as highly sensitive. The reason is obvious: freedom of expression is one of the fundamental rights of every citizen of a democratic regime and criminalizing speech of any kind is a severe infringement of that right. For this reason, Israel decided in the 1990s that any criminal investigation into a potentially incisive comment – and any subsequent indictment – must be approved by a deputy to the attorney general. Among the various crimes included in the category of speech crime is incitement to violence, racism, or terrorism; offending the religious faith or sentiment of others; insurrection; denigrating the High Court, and expressing solidarity with a terrorist organization.

The information provided to Shomrim shows that Israel indicts people for speech crimes very sparingly. In 2020 and 2021, just 43 indictments were filed for speech crimes; during the same period, the State Prosecutor submitted more than 8,000 indictments. Some of these speech crime trials are taking place behind closed doors, either because of the involvement of a minor or because of a gag order. These files are not available for inspection. Therefore, the figures in this article relate to the 33 files that are accessible for public review.

The most obvious observation is that the vast majority of these cases relate to nationalistic comments. In fact, just three of the cases did not relate to nationalistic comments. In two of them, the defendants were accused of calling for violence against former prime minister Netanyahu over his handling of the coronavirus pandemic. The third case was a person accused of insulting the courts when he posted an online diatribe against a judge from the Family Court.

The most obvious observation is that the vast majority of these cases relate to nationalistic comments. This includes Arabs who expressed support for Palestinian organizations declared by the Israeli government to be terrorist groups or Jews who called for violence against Arabs during Operation Guardian of the Walls last year. In fact, just three of the cases did not relate to nationalistic comments. In two of them, the defendants were accused of calling for violence against former prime minister Benjamin Netanyahu over his handling of the coronavirus pandemic. The third case was a person accused of insulting the courts when he posted an online diatribe against a judge from the Family Court. He was also charged with violating a gag order since he published recordings from an in-camera session of the Family Court. But these cases are a tiny minority.

A more typical example is that of Mahmoud Adwin from the Shuafat refugee camp. Adwan had an Instagram account with 481 followers. The indictment against him submitted a year ago cited 13 posts from between 2015 and 2018. In December 2016, for example, he uploaded a photograph of an AK-47 machine gun next to several Hamas logos. He wrote: “Play the tune of our memory, my machine gun; we are the Qassam fighters, and all fear us.” On another occasion, in October 2015, he posted a photograph of Mohammed Ali, a Palestinian who stabbed two Border Police officers near Jerusalem’s Damascus Gate, writing, “May Allah blesses you with a place in paradise, Mohammed.”

As part of a plea deal, Adwan was convicted of four counts of supporting a terror organization, three counts of incitement to violence or terrorism and seven counts of identifying with a terror organization. The court is yet to hand down his sentence.

The information received shows that in 24 of the cases, the accused is Arab, compared to nine indictments filed against Jews. The most common charges were an incitement to terrorism (23 charges) and identifying with a terror organization or expressing support for a banned organization (23 charges in total). When it comes to charges of supporting a terrorist organization or identifying with one, almost all of the cases involved Palestinian organizations. In just one case was a Jewish Israeli charged with identifying with a Jewish terror group. A Jerusalem man was charged with expressing support for a terror organization and incitement to terrorism after he took to Twitter to praise Baruch Goldstein, the perpetrator of the 1994 Cave of the Patriarchs massacre in Hebron, in which 29 Muslim worshipers were killed. For reasons that remain unclear, the same day that an indictment was filed in that case, the Jerusalem District of the State Prosecutor announced that it was withdrawing the indictment.

Most of the indictments for speech crimes are filed for comments people made on social media. Here too, however, there is a vast difference between the treatment of Jews and Arabs. Most of the speech crimes allegedly committed by Arabs were on ‘open’ platforms, such as Facebook and Instagram. When it comes to Jews, in contrast, most of the indictments are for comments made in group chats on WhatsApp and Telegram.

For example, three Jewish Israelis from Herzliya were charged with incitement to terrorism for comments they made in a WhatsApp group with around 40 members during Operation Guardian of the Walls. One of the participants in the group sent a photograph of an Israeli woman injured by rocket fire from the Gaza Strip and, in response, a used called Asi Solomon sent a voice message in which he said: “Anyone who sees [an Arab] on the street and has a chance to beat the shit out of him without getting caught, you’ve got to do it … Right now, I’ve got my pepper spray and I’m on my way to Jerusalem. If I see an Arab, I’ll spray him and bash him six times over the head with my helmet before running off.”

For this comment and other similar statements, Solomon was convicted, as part of a plea bargain, of incitement to terrorism and racism.

"Calling for ‘Death to Arabs’ is, in my opinion, a criminal offense", says a senior state prosecution official. "Will we enforce it in every situation? No. The world of responses [to online articles] is very challenging for us on a legal level. Writing ‘Death to Arabs’ as the 333^rd response to a news story on a website is not the same as writing it in a post"

‘We’ll never press charges over a single comment’

When one looks at the content of the indictments, it is impossible not to feel that similar comments are far more prevalent than the number of indictments – around 20 a year – would suggest. On the one hand, the more common and prevalent a statement is, there is less legitimacy to indict someone for saying it. Moreover, it is doubtful that a situation wherein any marginal comment becomes a criminal case – and wherein law enforcement bodies are policing the public discourse – are acceptable in a democratic regime.

One senior State Prosecution official explains that there is such a gulf between the number of indictments filed against Jews and Arabs because there are more Palestinian terror groups than Jewish ones. About the extreme right-wing settlers, he adds that “the hilltop youth aren’t on social media, which is where you can find a lot of nationalistic incidents. They don’t even have smartphones.

“When it comes to speech crimes, we are barely dealing with the tip of the iceberg in terms of what’s happening on social media,” the official told Shomrim. “And still, the courts reject any accusations of selective enforcement by the prosecution. Of course, other people committed similar crimes and were not charged, but, by the same token, some people don’t get caught going through a red light. I live these comments and I am happy when I look in the mirror. I am consistent. I will close any case that does not meet the legal threshold for an indictment – whether the defendant is a rightist or a leftist.

“We will never press charges for a single comment,” he adds. “In every indictment, you’ll see anything between a few and dozens of comments. In the end, I believe that someone who consistently expresses support for terrorist attacks and identifies with terrorist organizations – with every protection that there is for freedom of expression, which is a value that we are at pains to uphold – must be prosecuted for their comments. Similarly, calling for ‘Death to Arabs’ is, in my opinion, a criminal offense. Will we enforce it in every situation? No. The world of responses [to online articles] is very challenging for us on a legal level. Writing ‘Death to Arabs’ as the 333^rd response to a news story on a website is not the same as writing it in a post. We also consider how many friends or followers the person has, how many people saw the comment, how many likes it got and how many wrote a response.”

To what extent do you consider the possibility that the perpetrator will not just commit a speech crime but act on the threat?

“That’s the threshold we must meet [for a speech crime.] I have to prove that the content constitutes a crime and I have to prove that there is a real chance that the comment will lead to violence or terrorism. In the end, some would say that incitement led to the assassination of Yitzhak Rabin; on the other hand, some say that it allows people to blow off steam, which is preferable to acting. We examine the evidence and assess whether there is a public interest in an indictment. I very much have my finger on the pulse when it comes to not infringing on freedom of expression in borderline cases. Take, for example, the student at Bezalel [Academy of Arts and Design], who exhibited work with a noose next to an image of Netanyahu – which he said was an homage to Obama’s campaign. We don’t care how much people accuse us of not protecting the former prime minister because there is an alternative explanation of the expression (and that’s why no indictment was filed). When it comes to political criticism, we give people a very wide berth.

“But anyone who crosses the line – supporting terror attacks or organizations – will be prosecuted. I do not believe our enforcement policy is incorrect, or we are failing to protect freedom of speech.”