Should the right to protest be held above public health?

SEPTEMBER 6, 2020 02:12

BRESLOV HASSIDIM protest against Prime Minister Benjamin Netanyahu in Jerusalem, demanding a solution that would allow them to fly to Uman. September 2020 (photo credit: OLIVIER FITOUSSI/FLASH90) — BRESLOV HASSIDIM protest against Prime Minister Benjamin Netanyahu in Jerusalem, demanding a solution that would allow them to fly to Uman. September 2020

(photo credit: OLIVIER FITOUSSI/FLASH90)

The protestors have a right in law to protest publicly. But these are not normal times.

Yaakov Katz (“Forget Uman, there’s a pandemic to fight”, August 28) is dismissive of any connection between the weekly mass demonstrations against Prime Minister Benjamin Netanyahu, which are legally sanctioned, and travel by thousands of Breslov Hassidim to Uman for Rosh Hashanah, which, like most other travel these days, is either not allowed or not possible.

I have never been to Uman, and think it a peculiar place for a religious Jewish Israeli, Breslov or not, to spend Rosh Hashanah. But, of course, in normal circumstances, Breslov Hassidim, like all Israelis have a right of freedom of movement and travel. And while I do not agree with the positions or the methods of those protesting in large numbers outside the Prime Minster’s Residence on a daily and nightly basis, they, too, certainly have the right, within the confines of the law, to protest publicly. But these, of course, are not normal times. There is a highly communicable deadly pandemic raging that, as of this writing, has caused the deaths of more than 855,000 people worldwide, including more than 940 in Israel, with hundreds more Israelis in critical condition and on respirators. When freedom of movement, worship and of travel to most places in the world is severely curtailed, it is folly and gross malfeasance to allow, let alone facilitate, thousands of Israelis to travel to the Ukraine, which is not a green country, and then to congregate together shoulder to shoulder for Rosh Hashanah services in Uman.

Over the past six months, synagogues have been closed for much of the time, and religious services have been canceled – something unthinkable in normal times – or have taken place in small groups of a few tens at most, with space between attendants. With the High Holy Days coming up, when services are typically held in groups of hundreds and even thousands, preparations are underway to hold prayers within the confines of what the COVID rules will allow. There is disappointment, some sadness, but understanding that this is what has to be done.

What of the Balfour demonstrators and their champions and cheerleaders in the media? They continue to be allowed to march and protest by the thousands on a regular basis. If they are rational and ethical, as they no doubt would consider themselves, they presumably would not think that they are immune from getting infected or of infecting others. And if they are not religious fanatics, as presumably none of them would think of themselves, they would surely not think that the beliefs they hold and seek to advance supersede the rights of others to live in health. The disdain and the hate that many of the demonstrators have for Netanyahu is no different from some of the worst manifestations of religious fanaticism that yields to nobody else and allows for no compromise.

COVID and ethics aside, what does the law say about public protests? Just how sacrosanct is it really? The right to protest in Israel, which developed primarily through case law, is not unfettered and it is not absolute, but, rather, is subject to restrictions and considerations of competing interests. In cases that require a judicial determination, the court is typically required to balance the right of protest against other rights or interests, whether of other individuals or of the public, including property rights, free movement, privacy, order, safety and public welfare. The situation is the same in the US, England, the European Union and, it would be safe to assume, in every democracy around the globe. In the US, for example, where the right to protest arises out of the First Amendment to the US Constitution, the Supreme Court has determined that the government may regulate the time, place and manner in which protest are conducted.

And just as the right of protest is not absolute, there is no legal or moral basis for giving it pride of place and elevating it over all other rights.

The laissez faire attitude of the justice minister to the anti-Netanyahu demonstrations and the nearly everything goes indulgence of the protesters in the offices of the attorney-general and the state attorney during a pandemic blatantly contrasts with the strong intolerance of public protests following the Oslo accords and leading up to the withdrawal from Gaza and the Gush Katif settlements. One example, particularly on point, was a ruling by then-chief justice Aharon Barak in 1993 in response to a petition to hold a protest rally against the Oslo accords on Balfour Street in Jerusalem. Barak wrote that since the Prime Minister’s Residence represented a symbol of government, the petitioning demonstrators had a right to hold a protest there. But, he added, “this right is not absolute. We are required to balance that right with the privacy rights of the prime minister, his family members and his neighbors, and the welfare of the public.” At a time when there were, of course, no health concerns arising out of mass public gatherings, Barak ordered that protests outside prime minister Yitzhak Rabin’s residence be limited to 500 people, for 90 minutes only and that it had to end by 9 p.m. Today, during a pandemic, thousands are allowed to march shoulder to shoulder, set up camp around the prime minister’s house, block traffic and the light rail and embitter the lives of the residents of Rehavia on a nightly basis.

In the period prior to the withdrawal from Gush Katif, harsh restrictions on public protests were imposed by the police and the Shin Bet, with the full and public backing of the justice minister, the attorney-general and state attorney. Violence by the police was always overlooked and sometimes even encouraged by the media, and the demonstrators were depicted in the most threatening and negative terms, rather than in the glowing light of today.

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The limitations on public protests that have always existed in Israel, as in every other democracy, and the selective application of restrictions, depending upon who is demonstrating, are not lost on Israel’s citizenry during the coronavirus pandemic. The battle against the coronavirus requires maximizing public discipline and cooperation. But when health considerations dictate that Israelis are forbidden to congregate in groups of more than a few tens anywhere in the country, whether it be to participate in major, once in a lifetime events, to pay final respects, to tend to the sick or comfort the bereaved, citizens are often left asking themselves, if things are really that bad and dangerous, why are 10,000 people allowed to march and scream at nightly protests in Jerusalem without any form of distancing?

To the Breslov Hassidim, I say, listen to Yaakov Katz, “Forget Uman, there’s a pandemic to fight.” Stay home in Israel this Rosh Hashanah, fervently pray in small groups near your homes. If it can safely be arranged, provide for a small delegation of representatives in Uman. But I would add to Katz’s advice a similar plea to the Balfour demonstrators. At least for now, forget Balfour, there’s a pandemic to fight. Hang banners from your windows in full public view, write letters, circulate petitions, speak on the radio and TV, express whatever criticisms you have of Netanyahu and all the nasty things you have to say about him and send a small delegation to Balfour that doesn’t unduly impinge on the quality of life of Netanyahu’s neighbors. But if you really care about the country and the health and well being of others, don’t take the kinds of actions and engage in those activities that, for the most important of reasons, are forbidden to all of your fellow citizens.

The writer is an attorney in Israel and New York.