Five years in prison is the current punishment given to those who incite violence under the existing law, specified in 2002. However, to be charged with such incitement, the distinct possibility that what was said will lead to violence must be evident. Such evidence is nearly impossible to produce which is why the Ministry of Justice back then wanted the law to refer to a reasonable possibility instead of an actual one. Consequently, the current number of indictments on incitement is close to zero.
As tensions rise due to the pending evacuation from Jewish settlements, incitement is on the rise. Therefore, on Thursday, 7 April 2005, Minister of Justice Tzipi Livni called upon the Israel Democracy Institute (IDI) to convene a panel of experts to discuss the current law on incitement to violence. The meeting, at the IDI, was attended by Tzipi Livni along with Attorney General Menachem Mazuz and State Prosecutor Eran Shendar as well as other State Attorneys. Among the present IDI members was IDI President Dr. Arye Carmon, Senior Fellow Professor Mordechai Kremnitzer, and Senior Fellow Dan Meridor, former Minister of Justice. Also present were leading journalists including Dr. Ilana Dayan-Orbach, who anchors a 60 Minutes type show and Shalom Kital, Director of News at Second Channel TV.
The discussion started out as a debate on whether freedom of speech can come at the expense of securing democracy, and to what extent. Most of those present at the meeting expressed the need to amend the current law. The new law, proposed by the Ministry of Justice, would define two distinct categories that would be deemed as incitement. The first is a direct call to violence which would be considered as such whether or not the possibility of its enactment is plausible to a certain degree. The second is the publication of materials that promote, support, praise or identify with violent acts in a way that provides a reasonable possibility that these acts might be carried out.
One of the main issues discussed was the timing of the initiative to change this law. Attorney general Mazuz stated that in order to establish that a call to violence is not a legitimate means of expression the current law needs to be changed. He nevertheless expressed his hesitation at the timing of this change. IDI’s Professor Kremnitzer agreed with this and added that amending the law now would produce a distinct connotation which should be avoided. The settlers, who already feel betrayed by the current government and Prime Minister Ariel Sharon in particular, would see this as a direct attack on their freedom of expression. Justice Minister Tzipi Livni accepted this notion and ultimately decided that as long as matters do not get out of hand, she will not initiate changing the current law although if incitement to violence will escalate, then she will push to change the law without delay.
Dr. Ilana Dayan-Orbach expressed the view shared by other journalists who attended the meeting, that the current law shouldn't be changed at all.