Justices’ Limits on Protests in Arab Towns Reach Tel Aviv

After nearly a month in which Israel’s Hebrew-language media largely rallied behind the war with Iran – aside from a handful of dissenting voices – the facade of unity cracked last week. Familiar fault lines reemerged, dividing coverage along lines of support for or opposition to the regime overhaul led by prime minister Benjamin Netanyahu. This time, the divide centered on the High Court of Justice’s intervention in sweeping restrictions imposed by the police and the Israel Defence Forces (IDF) Home Front Command on an anti-war protest in Tel Aviv.

The court’s decision to allow a Saturday-night demonstration at Habima Square in central Tel Aviv, capped at 600 participants, along with the Justices’ criticism that the police and the Home Front Command were not enforcing similarly stringent limits on other gatherings – such as those at beaches and shopping centers – provoked outrage on both sides. Opponents of the regime overhaul argued that the Justices were safeguarding democracy, and that government ministers were precipitating a constitutional crisis by announcing plans to circumvent the ruling. Supporters of the overhaul countered that it was the Justices themselves who were creating a constitutional crisis by issuing what they called a “reckless decision” in defiance of the security establishment.

Both sides, however, are mistaken. Israel’s constitutional crisis began long before this episode – among other moments, when High Court justices permitted sweeping violations of citizens’ constitutional rights on the basis of race. For two years during the war in Gaza, the Justices accepted the position of the police – under the authority of far-right minister Itamar Ben-Gvir – that the very exercise of freedom of expression and protest in Arab towns posed a security threat, and that insufficient manpower made it impossible to allow such demonstrations. As a result, protests, assemblies, and marches against the war and the government in those towns were either preemptively banned or subjected to extreme restrictions.

Beyond the substance of their rulings, the way the Justices conducted hearings on petitions concerning protests in Arab towns had a chilling effect. Contrary to standard practice in cases involving freedom of protest, the court treated these proceedings as security matters, including the submission of classified security assessments by the police and their presentation ex parte. This security-driven discourse, echoed in the media and absorbed by the public, effectively reinforced the messaging of minister Ben-Gvir and his party, Otzma Yehudit ("Jewish Power"), about the supposed inherent security threat posed by Arab citizens of Israel.

During a January 2024 hearing on an anti-war protest in the city of Haifa, Justice Daphne Barak-Erez remarked that “it cannot be that protest is a luxury reserved for Tel Aviv.” Yet in practice, by embracing the police’s security arguments regarding protests in Arab towns and failing to protect constitutional rights uniformly, regardless of race, the court should not be surprised that even a demonstration in Habima Square has now become a luxury. In effect, the justices are reaping what they have sown.

It appears that after accepting security-based arguments in relation to protests in Arab towns, the general attorney’s office, the police, and the Home Front Command were taken aback by the justices’ refusal to automatically adopt similar arguments regarding a demonstration in Habima Square. They were equally surprised by the court’s decision to fully examine the petition filed by political activist Itamar Greenberg and the Association for Civil Rights in Israel; to issue decisions over Saturday (the Jewish day of rest); to demand further clarifications; to go beyond a narrow solution for the specific Saturday-night protest; and to insist on a principled discussion of restrictions on freedom of protest and assembly during wartime, as well as their selective enforcement.

Why, then, have the justices suddenly awakened? Are they beginning to grasp the damage they have inflicted on the standing of freedom of expression and protest in Israel? Or do they understand that if they fail to act, then when the government turns to extreme personal measures against them, they themselves may not enjoy the “luxury” of a pro-democracy public taking to the streets in their defense?

Either way, opponents of the judicial overhaul have no cause for celebration in the court’s decision. On the contrary, there is a need for an honest reckoning with the deterioration in the High Court’s functioning and with the justices’ waning ability – and willingness – to defend human and civil rights within Israel. It should also serve as a reminder that undemocratic practices that begin in the Arab city of Umm al-Fahm ultimately make their way to Tel Aviv.

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