Israeli law profs raise alarm over judicial reforms

Proposed judicial reforms in Israel have set off a firestorm with critical characterizations comparing Prime Minister Benjamin Netanyahu with the likes of Jair Bolsonaro and Viktor Orbán.

Israel has seen a possible division—now familiar to the United States, cf., most recently, the House Speaker election (NPR)—between a traditionally conservative right and a more extreme right since Netanyahu retained office by allying with parties NPR characterized as "ultra-Orthodox religious" and "ultra-nationalist."

The reforms, which are not yet law, comprise two plans The New York Times described:

Under the first plan, a simple majority of lawmakers could override almost any revocation of parliamentary legislation by the Supreme Court, which can currently block laws on constitutional grounds. The court would only be able to prevent itself from being overruled by Parliament if all of its 15 judges unanimously agreed about the need to block a law.

Under the second plan, the government would be able to appoint a majority of the members of the panel that selects new judges, upending the current system in which government appointees form only a minority of panel members.

Israeli Supreme Court with Knesset behind.
Israeltourism via Wikimedia Commons CC BY 2.0

On the one hand, the proposals would weaken the Israeli judiciary. But some commenters, such as American conservative Josh Hammer, have observed that the proposals are not radical. My colleague Professor Dwight Duncan has argued that a U.S. Supreme Court majority, or at least super-majority, should be required to strike down legislation as unconstitutional. Arguably, the approach better balances the legislative and judicial branches than does extra-textual judicial supremacy. The second proposal would effect a selection process hardly more partisan than federal judicial appointments in the United States.

On the other hand, Israel is not America, and it might be a more urgently pluralist democratic experiment. As well, the ways of our dated Constitution are hardly exclusive pronouncements of best practices. In the context of populist executive aggrandizement in places such as Brazil and Hungary, and subordination of judicial power, as in Poland, the Israeli reform proposals are at least cause for concern.

Objections have come not only from Israeli liberals, but also from economic conservatives, who don't want the economic apple cart upset. The Jewish Telegraph Agency explained, "Foreign investors and international credit agencies have both signaled that if the reforms go through, they will downgrade their estimation of the country," disrupting perception of Israel as "a democratic oasis in the Middle East" possessed of "business savvy."

For the reform side, a proponent think tank posted a perhaps-too-playful, Schoolhouse Rock-style video on Twitter. For opponents, I received Friday from my friend and colleague Professor Roy Peled a statement signed by 198 Israeli professors, including, Professor Peled wrote, the majority of faculty from 13 law schools in Israel. The brief statement reads:

We, senior academic members of staff at law faculties in Israel, strongly oppose the regime change that the Israeli government is promoting under the guise of “legal reforms”. These far-reaching constitutional changes include providing the government with absolute control over the appointment of the judiciary; near complete elimination of judicial review; dissolution of civil-servant ministerial legal counsels as gatekeepers; and undermining the freedom of the press. In aggregation, these proposals suffocate the independence of the judiciary, dissolve the separation of powers between the branches of governments, and eliminate the rule of law. No recognized democratic country in the world operates under such conditions. The combination of the proposed changes is alarming and dangerous. It will bring far-reaching infringements of human rights, and strip Israel’s system of government of fundamental features of its structure as a democracy.

We call on those involved in the legislative process to avoid hasty constitutional legislation that would transform the character of the State of Israel, and we urge them to initiate a process of open, respectful, and tolerant deliberation with the aim of reaching broad agreements on these deeply consequential matters.

I'll park a copy of the letter with its signatories here for the next few months.

UPDATE, Jan. 31, 2023: Professor Peled today sent news of a companion statement by U.S. law professors.

Court thins line between hate speech, free speech, while deepening European continental divide

Mural in Sofia, Bulgaria
(2019 photo by RJ Peltz-Steele CC BY-NC-SA 4.0)

A politician's racist hate speech and Holocaust denial were too readily protected by the freedom of speech in Bulgaria, the European Court of Human Rights opined in a February decision that challenges free expression and deepens tension between western and eastern Europe.

In litigation by Citizens Against Hatred and allied NGOs, plaintiffs sued in Sofia for harassment and incitement to discrimination.  Their target was Volen Siderov, a far right-wing politician, founder of the "Attack" party, who beat the drum of Bulgarian nationalism in two books and a speech to Parliament.  Siderov perpetuated denigrating stereotypes including that Jews manufactured the Holocaust as a scheme for financial extortion and that Roma people are "prone to crime and depravity."  His hate speech also targeted Turks, Catholics, and LGBTQ persons. 

Siderov's speech did not target individuals, nor call for any specific act of discrimination or violence.  The Sofia court ultimately dismissed the claims, unable to find that any one person had suffered injury or loss as a result of Siderov's vitriol.  The Sofia City Court and the Bulgarian Supreme Court of Cassation affirmed, holding, with reference to European jurisprudence, that Siderov's speech was protected by the freedom of expression.

In Strasbourg, the European Court of Human Rights held that the claimants had been denied a fair hearing in Bulgarian courts, a violation of their rights of dignity and freedom from discrimination under articles 8 and 14 of the European Convention on Human Rights.  Maybe Siderov's speech was protected expression under article 10 of the European Convention.  But the Bulgarian courts had been too quickly dismissive of the plaintiffs' claims.

"Expression on matters of public interest is in principle entitled to strong protection under Article 10 of the Convention, whereas expression that promotes or justifies violence, hatred, xenophobia or another form of intolerance cannot normally claim protection," the court explained.  "[I]t may be justified to impose even serious criminal-law sanctions on journalists or politicians in cases of hate speech or incitement to violence."

Volen Siderov
(Flickr by Nedko Ivanov CC BY 2.0)

The Bulgarian courts had not drawn an appropriate balance.  "Although the courts acknowledged the vehemence of the statements, they downplayed their capacity to stigmatise Jews as a group and arouse hatred and prejudice against them, and apparently saw them as no more than part of a legitimate debate on matters of public concern."

The decision strikes a note of discord in both westerly and easterly directions.  As a matter of free speech absolutism, American courts have been consistently resistant to regulation of hate speech.  Academics have twisted themselves into knots to reconcile the civil-rights-era First Amendment with a 1952 Supreme Court decision that momentarily sanctioned criminal libel based on race, color, creed, or religion.  Meanwhile, the First Amendment continues to be a perplexing problem for would-be regulators who link disinformation with populist nationalism of Siderov's ilk.

At the same time, the European Court decision is bound to aggravate a burgeoning resistance in Bulgaria, and throughout the east, to perceived western European cultural imperialism.  Bulgarian courts in 2018 ruled unconstitutional, and the Bulgarian Parliament was prepared to vote down, the Council of Europe convention on preventing and combating violence against women, "the Istanbul Convention" (Euractiv).  The politicization of an issue so seemingly uncontroversial is a story revealing of a deeper continental divide, and the court's strike against Siderov plays right into perceived grievances.

The case is Behar & Gutman v. Bulgaria, No. 29335/13 (Eur. Ct. Hum. Rts. Feb. 16, 2021) (LawEuro).

Poland scholars explain turmoil in streets over court decision nearly outlawing abortion; what next?

Protesters take to the streets in Kraków on October 25. (Silar CC BY-SA 4.0)

Social stability in Poland has been increasingly shaky since populist politics has threatened the independence of the judiciary in recent years.  Professor Leah Wortham wrote about the issue and kindly spoke to my Comparative Law class one year ago (before Zoom was cool).

Recently tensions have reached a boiling point.  In October, the nation's constitutional court outlawed nearly all abortions (Guardian).  Protestors have taken to the streets in the largest numbers since the fall of communism, The Guardian reported, confronting riot police and right-wing gangs.

Friend and colleague Elizabeth Zechenter, an attorney, visiting scholar at Emory College, and president of the Jagiellonian Law Society, writes: "Poland is in upheaval, after the Constitutional Tribunal restricted even further one of the most strict anti-abortion laws in Europe.  I and several other Polish women academics have gotten together, and we created a webinar, trying to offer an analysis, legal, cultural, sociological, etc."

The scholars' webinar is available free on YouTube.  Below the inset is information about the program.  Please spread the word.

Women Strikes In Poland: What is Happening, and Why?

Since the fateful decision of the Polish Constitutional Tribunal (Trybunał Konstytucyjny or TK) on October 22, 2020—further restricting one of the most restrictive anti-abortion laws in Europe—Poland saw massive, spontaneous demonstrations and civic protests in most cities, small and big, and even villages. Protests have been continuing since the day of TK’s decision and show no signs of abating.

To explain what is happening, we have assembled a panel of academics and lawyers to clarify the current legal situation, to analyze the scope of new anti-abortion restrictions, to explain whether this new law may be challenged under any of the EU laws applicable to Poland, and what might be political implications of doing that, as well as offer a preliminary cultural, linguistic, anthropological, and sociological analysis of the recent events.

Contents

0:00:00-0:03:17 Introduction: Bios of Speakers, Disclaimers

Legal Panel

0:03:17-0:26:00 Elizabeth M. Zechenter, J.D., Ph.D., "October 2020 Abortion Decision by the Constitutional Tribunal: Analysis and Legal Implications"

0:26:00-0:46:00 Agnieszka Kubal, Ph.D., "Human Rights Implication of the Decision by the Polish Constitutional Tribunal from 22 October 2020"

0:46:00-0:59:00 Agnieszka Gaertner, J.D., LLM, "Abortion Under EU Law"

Panel: Culture and Language of Protest

0:59:00-1:31:00 Katarzyna Zechenter, Ph.D., "Uses of Language by the Protesters, the Polish Catholic Church, and the Ruling Political Party 'Law and Justice' (PiS)"

Panel: Sociological and Anthropological

1:31:00-1:49:00 Joanna Regulska, Ph.D., "Struggle for Women's Rights in Poland"

1:49:00-2:12:00 Helena Chmielewska-Szlajfer, Ph.D., "Augmented Reality, Young Adults, and Civic Engagement"

Praise for the Webinar

"Wow! That was, without a doubt, one of the most informative, fascinating, engaging, and powerful webinars I have ever attended."

"All of us in your virtual audience 'voted with our feet' ... i.e., it is generally considered that 90 minutes is an audience's absolute maximum attention span for an online webinar, particularly since everyone these days is simply 'Zoomed-out' (over-Zoomed), in this era of COVID-19. But YOUR audience stayed with you for a marathon 2 hours and 45 minutes (and it felt like a sprint, not a marathon)!"

"A high tribute to you and your sister (not fellow!) panelists."

Disclaimers

The webinar was organized impromptu in response to numerous calls to analyze Poland's ongoing protests. The goal of the webinar was to provide a non-partisan review of the evolving situation and better understand the legal, cultural, and sociological underpinnings of the Constitutional Tribunal’s anti-abortion decision that resulted in such massive country-wide protests.

The opinions expressed in the seminar are those of the speakers alone who are not speaking as representatives of any institution; the main goal has been to advance understanding of the situation.

Given the urgency to offer at least a preliminary analysis (and in light of the continuously evolving situation), most speakers had less than 24 hours to prepare their remarks. We apologize for any imperfections.

While U.S. Congress ponders Big Tech oligopoly, Uruguay Supreme Court upholds TV football for all

While our powers-that-be in Congress wring their hands over trying to reconcile allegiance to our corporate overlords with antitrust in the tech sector, a court decision in Uruguay is worth noting.  The Supreme Court of Justice in the country of La Celeste held constitutional a law that compels the free live broadcast of some national soccer and basketball games.

Uruguay v. Costa Rica in World Cup 2014
(Danilo Borges/Portal da Copa CC BY 3.0 BR)

The ruling, sentencia no. 244 de 17 de agosto 2020 (search "244/2020" here), doesn't cover many games.  Explaining the case in 2019, a representative of the appellant Uruguayan Football Association (AUF) told El Observador (Uruguay) that the law would cost the franchise only some of nine Uruguay football qualifiers in four years. AUF still insisted that its economic interests were meaningfully and unconstitutionally diminished by the imposition.

Notwthstanding the limited reach of the ruling, the Court's willingness to abrogate private economic rights to further the public interest is significant.  Accepting the rationale for the law, the Court wrote, "Recuerda y resalta la Corte que la selección uruguaya de fútbol, en función de las hazañas deportivas y copas obtenidas en campeonatos mundiales y juegos olímpicos, forma parte de la identidad nacional y es tópico actual y recurrente en la ciudadanía." ("The Court recalls and emphasizes that the Uruguayan football team, as a function of its sporting achievements and championships won in the World Cup and Olympic Games, forms part of the national identity and is a current and continuing subject among the people.")

The ruling, on article 39 of the Ley de Medios, No. 19307, is one in a series from Uruguayan high courts (e.g., Observacom, Aug. 15) in recent months examining constitutional challenges to a far-ranging 2015 package of populist telecommunication reforms.  Civil rights advocates have hailed the courts' rulings for upholding the constitutional framework of the media law overall.  But business challengers have succeeded in blocking some restrictions, such as a limitation on subscriber numbers for cable TV providers, as unduly burdensome of commercial freedom.  For further example of the mixed results, the Court upheld article 40, which licenses Televisión Nacional de Uruguay to broadcast a game if no other broadcaster bought the rights.  But the Court struck down a subparagraph of article 39 that gave the executive authority to convert matches to free TV by resolution recognizing the public interest.

The telecommunication reforms have been championed by "center-right" Uruguay President Luis Lacalle Pou, who came to power in March 2020 after a hard-fought election and contested run-off.  Upon a campaign theme of "Uruguay seguro, transparente y de oportunidades," President Lacalle Pou promised to push back against left-leaning policies of the previous fifteen years with a raft of reforms aimed at slashing spending, controlling crime, combating corruption, and realigning foreign policy.  Whether or not he could have delivered, he has been, like leaders around the world, hampered by the coronavirus crisis.

Hat tip at Observacom Executive Director Gustavo Gómez (Twitter) for reporting on the case.

Expert on Polish judicial crisis speaks to law class

Prof. Wortham

Professor Leah Wortham joined Dean Peltz-Steele and my Comparative Law class on Wednesday to discuss the crisis of judicial independence in Poland (latest).  Professor Emerita of the Columbus School of Law at the Catholic University of America (CUA), Wortham is a recipient of, among other honors, the Plus ratio quam medal of Jagiellonian University (JU) in Krakow.

With JU Professor Fryderyk Zoll, Professor Wortham authored Judicial Independence and Accountability: Withstanding Political Stress, recently published at 42 Fordham International Law Journal 875 (2019).  Here is the abstract.

For democracy and the rule of law to function and flourish, important actors in the justice system need sufficient independence from politicians in power to act under rule of law rather than political pressure. The court system must offer a place where government action can be reviewed, challenged, and, when necessary, limited to protect constitutional and legal bounds, safeguard internationally-recognized human rights, and prevent departures from a fair and impartial system of law enforcement and dispute resolution. Courts also should offer a place where government officials can be held accountable. People within and outside a country need faith that court decisions will be made fairly and under law. Because the Council of Europe’s Group of States against Corruption (“GRECO”) deems judicial independence critical to fighting corruption, GRECO makes a detailed analysis of their members’ judicial system part of their member review process. This Article is a case study of the performance of Poland’s mechanisms for judicial independence and accountability since 2015, a time of extreme political stress in that country. Readers will see parallels to comparable historical and current events around the world.

In discussion with the class, Professor Wortham remarked on parallels between the Polish judicial crisis and threats to the legitimacy of the courts in the United States.  She referenced recent remarks by U.S. District Judge Paul Friedman to the American Law Institute, in which Judge Friedman distinguished denigration and personal attacks on the judiciary from disagreement with judicial decisions accompanied by respect for a co-equal branch of government (ALI, CNN).  The class discussion about Poland also treated the recent decision of the Irish Supreme Court to order extradition of a Polish man wanted for drug trafficking offenses, despite concerns about judicial independence in Poland (Irish Times).

CUA offers summer study abroad opportunities for U.S. law students and, in cooperation with JU, an LL.M. program in Comparative and International Law.

Poli sci papers embrace power plant implosion, populist revolution, and constitutional convention

Here are a few of my favorite gleanings from yesterday's day one of the 2019 annual meeting of the New England Political Science Association in Portland, Maine, April 26-27, kicking off with the Brayton Point tower implosion this morning, Saturday, April 27.

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The Brayton Point cooling towers are no more
(CC BY-SA 3.0 Wikimaster97commons).

Imploded towers invite study of environmental law, policy, and urban aesthetics

Professor Aaron Ley, on the faculty at URI Political Science and also a town council member in Bristol, R.I., is working at the point where environmental law and policy meet public aesthetics.

After presenting on Friday, April 25, Ley left NEPSA to get back to the Massachusetts South Coast and witness the implosion Saturday morning, April 26, of the cooling towers at Brayton Point.  The towers have become a defining feature of the skyline in the region, so their absence in the vicinity of Fall River, Mass., and eastern Rhode Island will be an adjustment for locals (me included).  Though oft invoked as a symbol of adverse environmental impact, Ley explained at NEPSA, the towers functioned actually to mitigate the impact of the coal-fired power plant they grace, because they cooled water before it was released back into the Taunton River, sparing fish and their eggs from destructive warm water.

Ley is working interdisciplinarily with colleagues Bryce DuBois, lecturer at the Rhode Island School of Design, and Katherine LaCasse, in psychology at Rhode Island College, to complete survey and conventional research into public perceptions of urban spaces relative to environmental law and policy.  At NEPSA, Ley detailed the fascinating history of policing pollution in American waterways, from riverkeepers back to bounties on the 19th-century Hudson.

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Are we living in Google and Facebook 'company towns'?
They have courts now

Professor Kevin McGravey at Merrimack College is collecting and analyzing social media cases to see whether the First Amendment public forum doctrine still has some vitality in deciding these disputes, such as the President's ability to mute or block Twitter users.  See Knight First Amendment Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (holding President's blocking of users on Twitter violated First Amendment requirement of viewpoint neutrality; now on appeal to Second Circuit). Cf. Packingham v. North Carolina (U.S. 2017) (holding social media restriction on registered sex offender violated First Amendment.)

The Gulf Shipbuilding Corporation, pictured here after WWI, owned the
Chickasaw, Ala., company town at issue in Marsh v. Alabama after WWII.
From Destroyer History Foundation.

McGravey thinks that the old company town case of Marsh v. Alabama (U.S. 1945) is relevant.  He concedes that the Marsh analogy to a social media platform was rejected by the court in Prager University v. Google, LLC, No. 17-CV-06064-LHK, 2018 WL 1471939 (N.D. Cal. 2018) (now on appeal to Ninth Circuit), in which the court refused to intervene in YouTube classifications and restrictions of PragerU's conservative political videos.  (See Eric Goldman's skepticism of the Marsh theory.)  But McGravey disagrees on a number of grounds, including the exclusivity of certain social media platforms as access avenues to public officials.

A company-town analogy doesn't get all the way to where we should be, McGravey admits, but the public forum doctrine might ought be reformed and extended to achieve worthwhile policy goals such as viewpoint neutrality on Facebook.  Still sounds like a stretch?  Well, consider, Mark F. Walsh in the latest ABA Journal reports on Facebook's plans to create a quasi-judicial appellate body to hear free speech claims.  Google already is adjudicating—internally and not transparently—right-to-erasure claims at the bidding of European data protection authorities.  Is that the town hall bell of the company town I hear?

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Federalism panel spans Rehnquist Court, religious freedom,
and the 1825 Constitutional Convention that never was

A smattering of views from a panel on federalism and the administrative state: 

• Christopher McMillion, Oklahoma Baptist University, is looking at the deep underpinnings of the "Rehnquist revolution" in federalism.  It's not about conservative politics, nor about federal power per se, he explained.  Rather, it's about protecting individual liberties—and actually the same kind of force can be witnessed in 10th-Amendment state jealousy of local officials' prerogatives relative to federal immigration enforcement.  
• Beau Breslin, Skidmore College, is working on a book on the constitutional conventions the United States has never had.  Surely Article V of the U.S. Constitution contemplated conventions with some periodicity.  What if we had had one about every human lifespan?  An 1825 Constitution probably would have opened with a lengthy declaration of rights and would have created an explicit voting franchise for white landholders, Breslin theorizes.  Oh, and Madison would have been so peeved that he sat out the Second Convention.  What would have been the implications in U.S. history for the Constitution thusly revised?  What would the Constitution look like after a 2022 convention?  Breslin examines these questions in part with reference to the real evidence of evolving state constitutions.

• 

  Maine Gov. Baxter with Irish Setter Garry Owen
  (public domain)

  James Stoner, Louisiana State University, exposed the thinly veiled nuance of religious freedom questions in the United States, from Employment Division v. Smith (U.S. 1990) to present.  The courts have looked the other way from legislative prayer, for example, and for that matter from the intertwining of government and religious practice since the days of George Washington himself.  He concludes that the judiciary is ultimately not the best forum for resolution of debate over religion in American public life.
• Sean Beienburg, Arizona State University, is researching the curious political journey of 1921-1925 Maine Governor Percival Baxter (namesake of Maine's beautiful Baxter State Park).  Republican Baxter advocated against the Ku Klux Klan at a time the Klan was making inroads with Maine Republicans.  He also staked out the political territory that would become Republicans' 20th-century economic libertarianism.  I note that Baxter was also an animal rights advocate before there was such a thing, and Maine's beautiful Baxter State Park is named for him.

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Populist revolution and American electoral politics
are both about more than red versus blue

I moderated and discussed on an afternoon panel with three fantastic papers.

• Erik Cleven, Christopher Galdieri, and Ashley Motta of Saint Anselm College are studying "down-ballot roll-off," when voters stop voting as they move down the ballot from "US Senator" to "Town Dogcatcher," or, really, "Register of Probate."  They set out to see whether there is merit in criticisms that voting college students dilute local electoral power because college students aren't interested in local races.  That turns out not to be true—not entirely true, anyway.  Looking at New Hampshire data, they found that new voters in a jurisdiction are responsible for down-ballot roll-off, and college students might just be part of that.  Other correlations arise with low education and lack of partisan tags to indicate party affiliation.  I suspect that an underlying cause is low information, a problem that dovetails with my own interest in transparency and affirmative disclosures of information to correct democratic deficit in developing political systems.



The "heartland-coastland" divide is more complicated than it seems and not
merely an expression of partisan sympathies, R.I. political scientists June
Speakman and Matthew Ulricksen show in new research.

• Two papers were strikingly complementary.  Isaac Effner, Brown University, took the normative lens off of "populism" to recount how a populist labor movement effected the 1934 West Coast waterfront strike and contributed dramatically to the evolution of organized American labor and 20th-century norms for the protection of American (and for that matter global) workers.  Don't be too quick to judge populism in scoffing at frustrated voters who support Trump, is the lesson, because populism per se can be a force for the vital expression of human rights, notwithstanding a temporary flirtation with demagoguery along the way.  Effner notes that similar populist motivations animated support in the last election for both Donald J. Trump and Bernie Sanders.
• And there comes to bear the remarkable work of Matthew Ulricksen, Community College of Rhode Island, and June Speakman, Roger Williams University and a representative in the Rhode Island legislature and former member of my Town Council in Barrington, R.I.  Ulricksen and Speakman showed some stunning maps of voting patterns in Rhode Island in the last election—I'd like to share, but they're not copyright-clear for my reuse; see the New York Times results.  Suffice to say the electoral maps reveal a deep divide in what looks like what Speakman and Ulricksen call a "heartland-coastland" divide, the former, Rhode Island's interior, Trump red, and the latter, in the salt air, Clinton blue.  Problem is, a number of data sets about who these voters are—wealth, ethnic identity, even partisan affiliation—do not actually bear out the divide.  What does?  Spoiler alert: population density.  What's more, because there is correlation with population density and not partisan loyalty, the heartland proves as receptive to Bernie Sanders's message as to Donald Trump's.  Speakman and Ulricksen identify one factor that explains voter behavior across the board: being "mad as hell."  The research leaves off there, but implications and questions abound for what will make an effective political movement in the future to capture increasingly alienated voters—and what conditions might trigger a populist revolution analogous to the 1934 general strike, or something bigger.

The annual meeting of the New England Political Science Association wraps up today, when I'll be presenting some findings on access to information and social and economic development in eastern Europe.