It Is Not Right to Punish People for Expressing Support for Hamas

Edgar Degas: Young Woman with Her Hand over Her Mouth // Public domain

The Israeli-Palestinian war has stirred emotions well beyond the Levant. However, we should approach the censorship of public speech with a cooler head.

The British Home Secretary has warned that waving the Palestinian flag might be deemed a criminal act. France has banned pro-Palestinian protests, and so has Germany. The Chief Minister of an Indian state directed the police to address pro-Palestinian statements on social media. In the US, pro-Palestinian students have been threatened by school officials and politicians.

In the case of the Czech Republic, Interior Minister Vít Rakušan announced on Twitter that experts in his ministry have concluded that the slogan “from the river to the sea” may constitute a criminal offence, like in Bavaria.

Personally, I had never heard this slogan before the current conflict, so I will include a crash course. In Palestinian Arabic, من المياه للمياه, romanized: min al-mayeh lil-mayeh, literally means “from water to water”. The whole phrase in English reads, “From the river to the sea, Palestine will be free”.

The river in questions is the Jordan River, forming the border between Israel and the West Bank (also called Judea and Samaria) on one side and the country Jordan on the other, flowing into the Dead Sea. The sea in question is the Mediterranean Sea, on which the Gaza Strip lies.

Obviously, when someone talks about there being one state between the river and the sea, there is no room left for the other.

The slogan began to be used in the 1960s by the Palestinian party Fatah, but, for example, the founding document of the Israeli party Likud, of which the current Prime Minister of Israel, Benjamin Netanyahu, is a member, states: “Between the sea and the Jordan there will be only Israeli sovereignty”.

The slogan has had more than sixty years of use connotations and interpretations. I agree that it is something akin to the symbolism of the Southern Confederacy – it is possible that some (or even most) people who use the slogan do not mean it in a bad way. In the case of the Palestinian slogan, they may want to point to the civilian casualties of the Israeli offensive or to the wrongs that happen to Palestinians under Israeli rule. In the case of the Confederate flag, they may be pointing to Southern pride or highlighting wrongs done to Dixie people by the federal government.

The use of either symbolism by people of good will is unfortunate. Both symbols are used by influential groups in the sense of the genocide of Jews on the one hand, especially by Hamas, and slavery on the other. I believe that a dispassionate observer would understand them as such. Therefore, in my opinion, it is foolish to use these symbols if one disagrees with these goals.

But being stupid is not and should not be criminal. Expressing an opinion, however stupid, should not be punishable.

I do not agree with bullshit crimes like endorsing a crime (Section 365 of the Czech Criminal Code) or supporting movements aimed at suppressing rights and freedoms (Section 403) or endorsing an act of terrorism (Section 312e).

Acts that are directed to inciting or producing imminent lawless action and are likely to incite or produce such action are to be punished. This is the so-called Brandenburg test under Brandenburg v. Ohio (1969), the limit on free speech in the US today. Statements like opinions or political advocacy that do not cross that line (or another, such as true threats) are not punishable.

Opinions about Hamas or Likud, as well as verbal support for one or the other on social media and in town squares, should not to be punished. Why not? How do we help ourselves if we prosecute and punish people for posting something on the internet or waving a banner in a town square? I am not talking about threats here, I amm talking about expressing an opinion, albeit a stupid one.

And, yes, I believe that this also applies to neo-Nazi demonstrations and symbols, as the United States shows, where such demonstrations and symbols are not banned, and neo-Nazis are less than a marginal political force here. If fascism reigns in the USA, it will not be under the swastika, but under the signs of TRUMP and MAGA.

I can only recommend reading the book “Defending My Enemy”, written by Aryeh Neier about the case Nazi Party v. Skokie (1977), which was about whether members of the Nazi Party USA would be allowed to hold a march through the village of Skokie, home to many Holocaust survivors. Neier, who fled the Third Reich with his Jewish family, argued the case for the Nazi Party before the Supreme Court. His reasoning can be summed up in two points:

  1. if the Nazis are allowed to express themselves, they will not be able to present themselves as martyrs, and their support will be minimal;
  2. we do not want future governments to ban speech they don’t like.

On both counts he is absolutely right. To borrow a hypothetical example from a nearby country, we would not want the government of Róbert Fico to be able to ban verbal support for Ukraine, and the government of, say, Zuzana Čaputová to be able to ban verbal support for Russia.

Yes, I know that many of you want the latter. But think about how such a law will be used by your political enemies when they are in power.

It is also a common misconception that if the Weimar Republic had had better hate speech laws, Hitler would not have come to power. Nothing could be further from the truth. The German authorities took measures 36 times against Der Stürmer weekly, and its publisher ended up in prison twice. “As a result, he grew from an unknown and marginal figure into a nationally known fighter for his truth and a martyr,” a Czech publicist Bohumír Žídek writes for Finmag.

So let’s assess the situation calmly and let’s not punish stupid babbling on the internet or in town squares, and let’s focus our criminal law efforts on actions that actually cause violence against someone.

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Martin Panek
Liberalni Institute