Freedom of assembly and freedom of protest are basic human rights in any democratic regime. They are perceived as a manifestation of human dignity and the individual’s liberty to realize personal goals. Although these rights have not been codified in a Basic Law in Israel, it has been recognized in case law as a central human right. Justice Aharon Barak, former Chief Supreme Court Justice, stated that “a demonstration of a political or social character is a manifestation of the autonomy of individual will, freedom of choice and freedom of rejection that are part of the framework of human dignity as a constitutional right.” The Supreme Court has emphasized that it is particularly important to protect this right in the case of minority views: “Freedom of expression and protest were designed to protect not only those who hold accepted and popular opinions, but also – and herein lies the principal test of freedom of expression – opinions that are liable to be provoking or upsetting.”
Nevertheless, freedom of expression and freedom of protest are not absolute rights and may be restricted under certain circumstances. Due to the importance of freedom of protest, however, it may be restricted only in exceptional cases:
Restricting assembly or demonstration should not be the first resort but the last. Before this step is taken, it must be examined whether the assembly or demonstration may be held while at the same time the danger can be avoided and its extent reduced, by means of police forces directed at those persons who are the source of the danger… It must be made a high priority – alongside the protection of public safety and security, in general – since it is intended to ensure the freedom of expression so vital to a democratic system.
Justice Barak offered the following definition of the need to balance the various considerations:
As with other liberties, here, too, a balance must be struck between the will of the individual – and of individuals – to express views by way of assembly and demonstration, the will of the individual to protect his well-being and property, and the will of the public to protect public order and security. Without order there is no liberty. Freedom of assembly does not mean the abandonment of all public order, and freedom of procession does not mean the freedom to riot.
By law, the power to strike the balance between these liberties and other rights and interests is vested in the police, through the requirement of obtaining permits for demonstrations. A permit is required when more than 50 demonstrators are expected and when there are planned speeches. In the absence of one or both of these conditions, no permit is needed. The police may refuse a permit only if it can prove “near certainty” of harm to public safety, public order, or others’ freedom of movement or rights. The police may also to take into consideration its ability to handle the demonstration, in conjunction with the other challenges it faces.
In examining the probability of violent incidents or disturbances of public order, Supreme Court justices have established that while prior events may elicit concern for future demonstrations, they cannot justify a priori denial of the right of protest. Here, too, “near certainty” that the danger will be materialize is required.
In cases brought before the court, justices have preferred to create alternatives enabling demonstrations to be held, while taking into account public interest. The court regards restricting the duration of the demonstration, or altering its location, as proportionate measures. For example, in 1996, the justices suggested to the Council of Judea and Samaria that it reschedule a demonstration so it will not be held during visits to Israel by the US president and the president of Turkey, due to the serious burden this would impose on the police. In 2005, the court rejected a petition by the Council of Judea and Samaria to hold a 36-hour demonstration planned to block a main road in Jerusalem, citing the restrictions such a demonstration would impose on the city’s residents. The justices declared that the police restrictions, which included the closure of the thoroughfare only for short, pre-defined periods, were proportionate and appropriate. At a hearing in 2006 concerning the Gay Pride Parade in Jerusalem, the justices ruled that the police proposal to hold the parade in a restricted format enabled “realization of freedom of expression and protest, on the one hand, and protection of public safety without surrendering to violence on the part of a hostile group, on the other… The said decision of the district commander may thus be considered reasonable.” In a recent ruling concerning the demonstrations in the Sheikh Jarrah neighborhood of East Jerusalem, the High Court of Justice accepted the police position that the demonstration should be held at a certain distance from the requested location. However, the court permitted a limited procession to the homes next to which the participants sought to demonstrate. The justices said this solution balances the difficulties faced by the police in securing the demonstration and the participants’ freedom of protest.