Bill to fire academics who 'incite to terror' is unconstitutional, attorney general says

A bill proposed to force universities to fire faculty who are deemed to have "incited to terror" or "supported a terror organization or supported a terror organization or supported armed struggle or [an] act of terror by a terror organization, enemy state or individual against the State of Israel,” disproportionately  violated free speech and freedom of occupation and was thus unconstitutional, the Attorney-General’s Office wrote in a legal opinion on Sunday.

The bill proposal, which was scheduled to face a vote in the Ministerial Committee on Legislation on Sunday, stipulates that if “it was proven to the manager of a recognized institution” that a member of faculty had made the aforementioned transgressions, the manager was exempt from giving the faculty member early notice of his or her removal, and the faculty member will not be eligible for severance pay.

However, the manager must first receive a “detailed report from the disciplinary authorities” of the institution in question regarding steps it had already taken against the faculty member. The manager must also first “examine” the legal opinions of the institution and of The Council for Higher Education’s legal advisers before firing the faculty member, and give the faculty member the opportunity to defend himself or herself.

Balancing freedom of speech with national security

The bill also gives a Knesset subcommittee the authority to slash funding for institutions that ignore the bill, as well as take “other enforcement measures.”

According to the bill’s explanatory notes, the balance between freedom of expression and the "vital need" to limit inciteful speech has been "violated recently." The bill’s purpose was therefore to ensure that “the arena of higher education will also be void of expressions and actions that incite and support terror.”

The bill was proposed by Likud MK Ofir Katz, with the backing of members of Knesset from both the coalition and opposition: MKs Yevgeny Sova (Yisrael Beytenu), Ze’ev Elkin (United Right), Yosef Taib (Shas), Matan Kahana (National Unity), Limor Son Har-melech (Otmza Yehudit), Tzvi Sukkot (Religious Zionist Party) and Yizhak Pindros (United Torah Judaism).

In a letter to Justice Minister Yariv Levin, who chairs the Ministerial Committee on Legislation, the Attorney-General’s Office argued that the bill “disproportionally violated” freedom of expression, academic freedom, and freedom of occupation. The goal to prevent incitement was of course a worthy one, and was therefore a crime in Israel’s criminal code and open for police investigation, the office argued. However, the bill did not provide sufficient reasons to specifically sanction academics, especially without there being criminal indictment or even a basic investigation.

The A-G’s Office added that “between the walls of academia, especially broad freedom of expression should be enabled,” since “the heart of academic activity is the expression of ideas, presentation of criticism, and development of thinking.” The bill would create a “chilling effect” within academic institutions and thus it would also violate academic freedom, it argued.

The office also pointed out that the bill could be enforced “selectively” and “incautiously,” as academic institutions did not have expertise on the matter; block severance pay, which was a severe provision that could only be implemented after a criminal conviction; and have international implications, as Israel was bound by the International Covenant on Civil and Political Rights (ICCPR), which states that the right to freedom of expression applied even to expressions that can be perceived as “very harmful.”