By Alan Dershowitz
I recently returned from a visit to Israel, where the headlines focused on two investigations involving Prime Minister Benjamin Netanyahu. The first is about conversations between the prime minister and Arnon Mozes, the publisher of Yedioth Ahronoth, a popular Israeli newspaper. The second concerns gifts of cigars for Netanyahu and pink champagne for his wife from a long-time personal friend. According to news accounts, the prime minister will soon be questioned for the fourth time about the two cases. The first one poses significant dangers to freedom of the press and to democratic governance. The second is an example of a widespread problem in many democracies: namely the effort to criminalize political and policy differences.
I write this article not to defend the incumbent prime minister. I would write it regardless of who served in that office. I have made similar points over many years opposing overzealous criminal investigations of political figures – such as former Congressman Tom DeLay and former Governor Rick Perry – whose politics I oppose and whom I don’t know personally. I have also criticized Republican efforts to turn Hillary Clinton into a criminal for her misuse of a private email server. The criminalization of policy and political differences poses a grave danger to democracy, regardless of who the target of the criminalization happens to be.
These dangers exist when vague laws governing the receipts of gifts from friends are broadened and applied retroactively and selectively to a controversial public official. But they are multiplied when the criminalization extends to the relationship between the media and elected officials. Both freedom of the press and democratic governance require breathing room. Questioning the motives of publishers and politicians chills the exercise of free speech and the independence of legislators.
Journalists should never be questioned by prosecutors or police as to why they wrote a particular article, why they endorsed a particular candidate or why they wrote critically of a politician. Nor should an elected official be questioned about why he voted for or against particular legislation or took other political action. To probe the motives of journalists or public officials is to chill the exercise of their freedom.
The US Constitution explicitly provides that no members of Congress may (with limited exceptions) be “questioned” about their votes, speeches or debates by any government officials. And both American and Israeli law protects journalistic privileges from unwarranted disclosure regarding reportage. These enactments, and others, recognize the importance of allowing legislators and journalists to do the important work of democracy without fear of heavy-handed intrusion by police or prosecutors.
An independent press is essential to democratic checks and balances. The Israeli press has not always been as independent as it should be. In the early years of the state, political parties directly controlled “their” newspapers. Elected officials and party functionaries appointed publishers, editors and reporters – and approved or disapproved what was to be published. It was not thought to be a crime for Prime Minister David Ben-Gurion to demand – explicitly or implicitly – positive coverage of his policies, politics or personal actions as a condition of continued employment by those who worked for his party’s newspaper.
Newspapers are now, thankfully, more independent of such direct party control. But the relationship between the media and elected officials is still often based on implicit or explicit quid pro quos. An elected politician is more likely to vote for legislation that may benefit a company, if that company provides him or her positive coverage. Put more directly, many elected officials would be reluctant to vote against legislation that would a favor media company, if they worried that a negative vote might result in negative coverage.
However, it would be unthinkable for prosecutors or police to haul into investigation rooms every journalist or politician whose reporting or voting might have been influenced by self-interest. But that is the implication – or at least the slippery slope – of the current investigation.
The prime minster is essentially being investigated for trying to persuade a newspaper with a long history of attacking him and his family to be fairer. The publisher is being investigated for seeking the enactment of legislation that would curtail his competition. In the end, the prime minster voted against the legislation and the publisher continued the attacks on him and his family.
So what we are left with is an exploration of motives: Did the publisher try to get the prime minister to support the legislation by promising to end or reduce the attacks? Did the publisher believe that the prime minister would actually change his strong opposition to the legislation into strong support? Did the prime minister really intend to change his opposition to support, or was he merely playing him, as politicians do? Did the prime minister actually believe that the publisher would suddenly change his long history of attacks into support? If the prime minster believed he was doing something criminal by discussing these issues, why did he record the conversations and not erase the tapes?
These are the kinds of questions that should be left to voters and readers, in deciding for whom to vote and to which newspapers to subscribe. They are not the kinds of questions that prosecutors and police should be empowered to ask elected officials and media moguls as part of a criminal investigation.
The relationship between politics and the media – and between politicians and publishers – is too nuanced, subtle and complex to be subject to the heavy hand of criminal law. Many votes by politicians are designed, in part — whether consciously or unconsciously — to garner favorable coverage from the media and to achieve other self-serving results. In many cases, a piece published by a reporter, editor or publisher is also calculated to some degree to promote self-interest – whether economic, political or career-related. To empower prosecutors to probe these mixed motivations is to empower them to exercise undemocratic control over crucial institutions of democracy.
Consider the proposed Israel Hayom law that is at the center of this investigation. More than 40 Knesset members supported the law, despite its obvious constitutional problems. Did they all do so out of altruistic motivates alone? Or did at least some of them allow the fear of negative or the prospect of positive coverage by Yedioth Ahronoth – the main beneficiary of the proposed law – to tip the scale in favorite of their support? Should prosecutors and police be empowered to question under oath every member of Knesset who supported the bill to probe his or her motives? Should they be empowered to question the journalists who subsequently published favorable reports about these supporters?
This is the “parade of horrible” that may follow from the current investigations of the prime minster and the publisher.
In the contemporary political climate, in which large media companies – whether it be Yedioth, the New York Times, Time Warner, Bloomberg, Fox, Yahoo, Facebook or Google – do more than report the news, there will be more and more regulation of their activities by government.
These media companies will seek to influence the political discourse that affects their bottom line, as they simultaneously report on them. In some instances, positive votes will be rewarded by positive coverage, negative votes by negative coverage. That is – and always has been and always will be – the nature of politics and its relationship to those institutions that report on it. “Scratch my back and I will scratch yours” is as Israeli as falafel and as American as apple pie.
Voters and readers have the right, perhaps the power, to promote more visibility and accountability from those for whom they vote and whose news they read or view. But police and prosecutors should not intrude on this complex, messy and nuanced relationship between politics and the media, except in cases of clear and unambiguous financial corruption well beyond what is alleged in the current case.
So, whatever your views of Prime Minister Netanyahu or publisher Mozes, think beyond the politics of this investigation and to the dangerous precedents being set by empowering prosecutors, police and even judges to intrude so deeply into the mechanics through which the legislature and the media work. Ultimately, judgment about these institutions and their incumbents must be left to the voters and readers, not to unelected police and prosecutors. That is the way democracy is supposed to work.
Alan M. Dershowitz is Harvard’s Felix Frankfurter Professor of Law, Emeritus and the author of Taking the Stand: My Life in the Law and Electile Dysfunction. A shorter version of this article was published by Haaretz. Dershowitz provides legal services to The Sands, a public corporation of which Sheldon Adelson and his family are the major shareholders. Adelson is also the founder of the Israeli newspaper Israel Hayom, controlled by a company owned by Adelson.