Yesterday (26.3.2019) ACRI filed an appeal to the Supreme Court against the Haifa District Court's verdict regarding displaying the McJesus sculpture. The District Court's ruling may have far-reaching effects on the extent to which artistic freedom of expression is protected in Israel, such that the appeal is of particular significance.
The petition to the District Court was filed in January, after the mayor of Haifa, Dr. Einat Kalisch-Rotem, decided to remove the McJesus artwork from display at the Haifa Museum, which depicts the clown Ronald McDonald crucified on a wooden cross, to prevent hurting members of the public's feelings. The decision determines that the mayor has the authority, and even the duty, to act to prevent hurting the feelings of the city's population, and is thus authorized to "instruct all local authorities, including artistic and cultural bodies acting on behalf of the municipality and its jurisdiction, to include the duty to prevent hurt feelings within their independent discretion."
In the appeal filed by ACRI's legal advisor, attorney Dan Yakir, ACRI argues that the constitutional right to freedom of expression requires that cultural institutions remain independent with respect to the artistic content they display, and that the mayor does not have the authority to instruct cultural institutions to remove certain works. The District Court explained its decision regarding the mayor's vague authority to ensure public order, in contravention of the Basic Law: Human Dignity and Liberty, which requires that the restriction of a basic right such as freedom of expression be expressly stipulated in the law. "Infringement on freedom of expression cannot be anchored in general and abstract concepts of law and order that are not anchored in any concrete authority," the appeal posits.
The appeal further clarifies that although the Supreme Court recognized that offending feelings in general, and offending religious feelings in particular, constitute grounds for restricting freedom of expression, a particularly high standard for harm was set — beyond the threshold tolerated by a democratic society. Thus, in such a case, wherein the work was in a museum and not an open area where a captive audience was forcibly exposed to it, there were no grounds to order the removal of the work.
Attorney Dan Yakir: "The verdict ruled regarding the McJesus petition authorizes mayoral involvement in the artistic content of a cultural institution that operates in the same city. This is not only a mistaken legal decision, but also a very dangerous gateway for the involvement of elected officials and politicians in works displayed in cultural institutions."
Appeal of Administrative Petition 2211/19 Attorney: Dan Yakir