("Justice", No. 3, Autumn 1994)
Freedom of Commercial Speech
H.C.J. 606/93, Promotion of Initiatives and Publishers (1981) Ltd. v. Israel Broadcasting Authority and others, 13.1.1993 (Unpublished). Before Justices Bach, Cheshin and Dorner
The Supreme Court held that a proposed radio advertisement, which had racy associations fell into the category of commercial speech. As such it was entitled to many of the protections enjoyed by other forms of free speech.
Per Justices Dorner and Justice Bach (in the majority): In this case the injury to the public caused by broadcasting the advertisement was not so extensive its to justify the intervention of the Court in the discretion of the Broadcasting Authority.
Per Justices Cheshin and Bach: At the same time, while restrictions on other forms of speech have to be justified following the test of "near certainty of injury to the public" if such speech is allowed, at lesser test is required in the case of restrictions on commercial speech. A distinction must also be drawn between a situation where, for example, political or literary speech is being restricted and the instant case where the Petitioner was asking for an order compelling the Respondent to broadcast the advertisement.
Per Justice Cheshin (in the minority): The advertisement under consideration was not protected speech in view of its vulgar associations.
The Petitioner was a company concerned with helping students to pass matriculation and other examinations. As part of its promotional campaign, the Petitioner coined a slogan in Hebrew, translatable as "Promotion: Go Excel Yourself" [ed., the Hebrew phrase reminds the listener of a four letter word]. The slogan became part of the reputation of the Petitioner, and appeared on its publications and advertisements.
The Petitioner wished to broadcast an advertisement on the radio, including this slogan. The director of the radio prohibited broadcast of this phrase, relying on Section 5 of the Regulations issued by the Israel Broadcasting Authority, which enabled him to prohibit an advertisement that did not meet the test of "good taste".
The Petitioner obtained an Order Nisi against the Respondent and argued that the right to freedom of expression and freedom of occupation also applied to commercials, and that the Broadcasting Authority had ignored these principles. The Broadcasting Authority responded that the application of principles of freedom of speech to commercial advertisements was minimal and that the tests restricting freedom of speech established by judicial precedents were not relevant in this case. The Respondents further argued that the relationship between the Authority and the Petitioner was contractual and based on the Regulations. The Regulations limited publications to advertisements in "good taste" and gave the Authority wide discretion to reject advertisements which do not meet criteria established therein. Finally, the Respondents argued that its discretion could not be interfered with, unless it was unreasonable in the extreme. The slogan "Go Excel Yourself" reminded listeners of a vulgar profanity and distressed them, the listeners were a "captive audience" and could therefore not elect whether or not to listen to the commercial.
The Supreme Court Judgment:
In three separate judgments, the Justices of the Supreme Court held as follows:
Justice Dorner held that the Petition should be allowed on the grounds that the Respondent had infringed the Petitioner’s right to free speech. The additional argument relating to freedom of occupation was left for consideration on another occasion. Justice Dorner noted that freedom of speech heads the list of freedoms on which democracy rests. Freedom of speech is not given only to expressions which satisfy the general consensus, its importance lies in applying also to irritating and even injurious expressions. Today, the foremost method of realizing one’s freedom of speech is through radio and television broadcasts which enter every house. These are managed by the Broadcasting Authority which is currently a monopoly. A citizen has no means of disseminating his views by other electronic means. The right to broadcast on radio and television is therefore a derivative right from the principle of freedom of speech. Freedom of speech may not be restricted unless the following cumulative conditions apply: express authority of the primary legislator has been granted; the near certainty, or, in some cases, reasonable possibility, that a value conflicting with the freedom of speech will be impaired; and that the impairment of the conflicting value is severe and continuous.
Free commercial speech is an integral part of free speech; it provides information to the public and therefore satisfies their right to receive commercial knowledge; it allows competition between publishers and enables the public to reach its own opinions in relation to preferred products or services. Free commercial speech is protected under the First Amendment in the U.S., and under the International Convention relating to Civilian and Political Rights of 1966, to which Israel is a party.
Nevertheless, not all the rationale behind freedom of speech applies to freedom of commercial speech. For example, the rationale behind safeguarding democratic processes does not apply, or at the most has limited application, to free commercial speech. Therefore, there is no fundamental obstacle to restricting free commercial speech which injures public sensitivities, although such restrictions must also meet certain tests. Where the question is whether the speech violates "good taste" in the terms of the Regulation, two questions must be considered: first, what is "good taste", and second, how great a violation of such good taste is necessary. The same standard of "good taste" must apply to artistic programs as to commercials. Here the Broadcasting Authority did not give due consideration to the Petitioner’s right to free commercial speech and did not draw a balance between this right and the possible injury to the public’s feelings, and in any event there were no objective grounds for finding a serious injury to public feelings.
Justice Dorner therefore held that the Petition should be allowed.
Justice Cheshin opened his judgment by quoting Voltaire, "I do not agree with one word that he says but I’ll defend to the death his right to say it", and noted that the phrase under consideration was very far from what Voltaire had in mind.
Justice Cheshin held that enlisting the principle of freedom of speech to defend the broadcast of the commercial "Go Excel Yourself" was an improper usage of the concept of freedom. This was a trivial case of negligible importance, and was not the sort of matter in which it was right to give relief for the sake of justice. Justice Cheshin noted that if it was up to him the Court would dismiss the Petition and devote itself to real issues of freedom, however in view of Justice Dorner’s lengthy opinion, he felt it necessary to state his own views.
The Broadcasting Authority is a statutory body with a statutory discretion to reject certain broadcasts. The Petitioner’s right to promote his business on the radio would more properly be discussed in the context of freedom of occupation than free speech, although in the instant case the arguments revolved around the right to free speech, and more precisely a broadcast which the Petitioner wished the Court to compel the Broadcasting Authority to publish.
As a statutory body the Broadcasting Authority is subject to all the public law principles applicable to a public body holding its assets on trust for the public. But, in the same way that it has a duty to the Petitioner, it has an equal or an even stronger duty to the rest of the listening public.
The essential question is whether commercial speech is really in the same category as political speech. In the U.S. a compromise has been reached where commercial speech comes within the framework of free speech but is not entitled to the same wide defences as other "classical" methods of speech, such as criticism of the government, freedom to pass information, etc.
In Israel commercial speech is entitled to protection as is other speech, on the basis of the principle that free speech is what differentiates man from the animal world, and must be protected at all costs, so long as it does not clash with another basic principle of equal weight. At the same time it is not entitled to the same far reaching protective measures as other forms of speech and may be restricted on lesser grounds than the "near certainty" of injury to the public (if such speech were to be allowed) which is the accepted test for restricting free speech where there is a clash of basic ‘interests.
"Free speech" is not an absolute value but must be weighed against competing values as well as the context in which it is expressed. Quoting U.S. Justice Holmes, "the character of every act depends upon the circumstances in which it is done". In literature a phrase may be defended which, as part of commercial speech, should not be broadcast. Analysis of the powers and duties of the Broadcasting Authority showed that the discretion of the Authority was administrative in nature and not subject to any a priori principles. This indicated that the discretion in respect of the broadcasting of commercials was wide. and one of the factors which could be taken into account was the aesthetic value of the advertisement.
Here the phrase had vulgar associations and the Broadcasting Authority therefore acted properly and within its discretion in deciding to refuse it’s publication.
In conclusion, the issue under discussion did not really relate to human or basic rights nor to individual liberties or the duties of the Authority, but more to matters of culture, habits and Good taste. Here the issue was not prohibiting free speech but rather compelling the Broadcasting Authority to publish an advertisement that it believed in good faith injured public feelings, that it did not want to publish and that it was not its duty to publish. Justice Cheshin therefore held that the Order Nisi should be set aside and the Petition dismissed.
Justice Bach agreed with large parts of both the above judgments and in particular the statement that the principle of freedom of speech also applies to commercial speech but that it is not entitled to the same defensive measures as other forms of speech. Justice Bach also agreed with Justice Cheshin’s distinction between an order prohibiting a broadcasting body from publishing a certain item and an order compelling a body to publish an item contrary to the wishes of its director. In the first case the principle of freedom of speech stands in its pure form, and the prohibition must be justified by weighty reasons. The second case is more complex, and editors of communications media should not easily be forced to publish against their will.
A distinction must also be drawn between the policy or artistic decisions of an editor and a decision such as the instant one. If an editor decides to broadcast one program in preference to another. there are few circumstances in which the court would see fit to intervene. But the situation was different in the case of advertisements. According to policies established by the Broadcasting Authority a certain amount of time is allocated to advertisements and the Authority is under a duty to place this time at the disposal of its customers from among the public, without discrimination. In such a case, rejection of an advertisement without an adequate reason is subject to the Court’s intervention. Therefore, the questions to be asked are "what is an adequate reason for rejection" and "in what circumstances will the court exercise its right to intervene?"
Justice Bach did not agree with Justice Cheshin’s view of the triviality of the matter before the Court and noted that many democratic principles are founded on "minor" decisions and not questions of major significance.
With regard to the issue itself, the proper test was not as stated by Justice Dorner, namely, whether there was "near certainty of injury to the public". This test was appropriate in cases which involved performing an act intended to prevent a danger to public safety or to the foreign relations of the state. In such cases the "near certainty" test of such a danger occurring was proper, but where the question was the occurrence of a breach of "good taste" in broadcasting a certain commercial, the test should be whether there was such a breach or not, and not whether there was "a near certainty of a breach of good taste"!
The second, quantitative, test put forward by Justice Dorner was to be preferred. According to this test a commercial may be rejected if its contents or presentation violate good taste, in a significant and severe manner. For this purpose the feelings of minority groups may also be taken into account.
Some of the factors to be considered in deciding whether or not a violation of good taste has taken place, are as follows:
A. The extent of the violation of good taste of the commercial. This should be tested against the views of a modern, enlightened and liberal society.
B. Whether the injury posed by the commercial has a special effect on the public or part of it. The feelings of significant minorities (but not extremists) may be taken into account here.
C. The amount of damage that will be caused to the person wishing to advertise by rejection of the commercial.
D. Whether the injurious phrases are commonly published in other commercials.
Weighing these factors, and in the light of the finding that the Petitioner had no intention of harming its students, and that the term under discussion was merely an advertising "gimmick" which would, at the most, raise a smile to the lips of its listeners, Justice Bach held that the term could not be brought within the category of "serious and significant violation of good taste", and that there was no reasonable justification to reject it.
Since reference was to basic freedoms, Justice Bach joined with Justice Dorner and held that the Court would intervene in the discretion of the Respondents and give an Absolute Order in favour of the Petitioner.
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