Has Coverage of Israel’s Nation-State Law Been Sober and Factual?

It comes as no surprise that the recently passed nation-state law declaring the State of Israel the national home of the Jewish people evoked frenzied condemnation by Israel’s enemies. Turkish President Recep Tayyip Erdogan, Syria, Iran, Hamas, and Palestinian Authority President Mahmoud Abbas all used the opportunity to attack Israel as “racist,” “fascist,” and Nazi-like. More disturbing is that many media outlets provided one-sided and biased coverage of the issue.

Some of Israel’s supporters have questioned elements of, and the need for, the Jewish nation-state law, while others have endorsed it. Some who oppose the law believe it needlessly alienates minority communities living in Israel and provokes Israel’s enemies. Supporters of the law contend that it is, at essence, a reaffirmation of the principle of Zionism — the establishment of Israel as a Jewish democratic state akin to the many other liberal democracies established by national groups in Europe and beyond. They point out that this law does not infringe on the individual rights of any of its citizens and argue that it is necessary to validate the Jewish state at a time that its enemies are working so hard to erode its legitimacy.   
 
One can debate the merits and demerits of passing such a law, while presenting the facts accurately. Indeed, that’s the role of a journalist. Both news stories and opinion columns should be based on accurate facts without overstatement or distortion. Unfortunately, many in the mainstream media have failed in these respects.  

Below are a few examples of the distorted, inaccurate, or one-sided pieces that have come out in the past weeks. 

Vox

What happens when Miriam Berger, a reporter who insisted Israel’s 2002 counter-terror operation triggered the Palestinian terror campaign it was meant to stop, joins forces with Vox, an explanatory journalism website that had previously charged Israel with limiting Palestinian traffic on a non-existent 20-mile bridge connecting the Gaza Strip to the West Bank? A July 31 article about the nation-state law that substantively errs and severely misleads in order to build a case against Israeli democracy.

Although Berger’s piece goes through the motions of citing “supporters” and “critics” of the law, she is hardly impartial in laying out the respective cases. She quotes five critics of the law — Ayman Odeh, Yohanan Plesner, the Association for Civil Rights in Israel, Ihab Elbedour, and Sawsan Zaher — but only two supporters: Israeli prime minister Benjamin Netanyahu, whom she goes on to disparage (including, oddly, for establishing relations with Saudi Arabia’s crown prince) and Niran Dishin, who is quoted as saying equal rights for Arabs should be conditional on them proving themselves.  

Notably missing from the piece are quotes from any serious analysts who defend the law, or even ones who express milder skepticism. In the former camp, there is, for example, Eugene Kontorovich and David Hazony; in the latter, see Yuval Shany, who says the law “is not a game changer and has very little problematic implications, but it causes anxiety.” Or put another way, “It is not an injury but an insult. It doesn’t change anything practically.” (Although Berger quotes criticism of the law by Shany’s colleague at the Israel Democracy Institute, Yohanan Plesner, she neglects to share that Plesner, too, doesn’t foresee any “immediate concrete implications” to the law.) 

In case that lopsidedness wasn’t enough, Berger interjects her own opinions about the law, which just so happen to overlap with its harshest critics. “Discrimination is officially enshrined in Israel’s basic law,” she insists. “Only Jews have the right to determine what kind of state and society they live under,” a peculiar way of saying that Israel is a democracy in which Jews are the overwhelming majority population. The law “appears to create a legal right to separate Arabs from living in Jewish communities,” she claims, despite the fact that the controversial clause allowing for Jewish-only communities was dropped from the bill. 

She backs up her dire assessment with a series of false and misleading claims about the country in general.

• Berger, for example, wrongly claims “most of the international community” says “Israel has been illegally occupying [the West Bank] since it seized the territory in 1967.”

Occupations are not illegal under international law, and it is untrue that the international community has deemed Israel’s occupation since 1967 to be illegal. Nicholas Kristof correctly stated several years ago in The New York Times that “many international legal scholars suggest that Israel’s occupation of the territories is not itself illegal.” One such scholar, George P. Fletcher, the Cardozo Professor of Jurisprudence at Columbia University School of Law, also writing in the New York Times, asserted about Israel that “it is not illegal for victorious powers to occupy hostile territory seized in the course of war until they are able to negotiate a successful peace treaty with their former enemies.”

In a report commissioned by the BBC, Noam Lubell, formerly of the dovish group B’tselem and currently a professor and Head of School at the University Essex School of Law, has likewise taken issue with those describing the occupation as “illegal,” and urged the BBC to refrain from such language. In that same report, he quoted Alain Pellet, whom Lubell calls “a notable expert on international law” and who, like Lubell, is a sharp critic of Israel, saying: “Even if the deprivation of its right to self-determination infringes an imperative norm of international law, occupation remains a legal institution, governed by the rules of law.”

After communication with CAMERA, the New York Times and Independent corrected articles that had similarly claimed the occupation is viewed as illegal.

• Berger also tells readers that “Palestinians in East Jerusalem can’t vote in Israeli national elections or obtain Israeli passports.” But this all-embracing comment, meant to suggest Israel has locked the group out of the democratic process, is untrue. The population was offered the right to Israeli citizenship after the area transferred from Jordanian to Israeli control in 1967. And although most have chosen not to apply, the thousands who have been granted citizenship certainly can vote in national elections and obtain Israeli passports. After communication with CAMERA, Ha’aretz and the New York Times published corrections to the claim that east Jerusalem Arabs can’t vote.

• In a similarly misleading statement, Berger asserts that “Arab Israelis say that since the state’s founding, in practice they have not been afforded the same rights as Jewish Israelis. This is one reason why many Arab Israelis refer to themselves as Palestinians with Israeli citizenship.”

It is true that some Israeli Arabs feel this way. But her blanket characterization amounts to an error of omission. According to a recent poll, a slim majority of Israel’s Arab citizens believe they are treated equally. This is a vital point because it shines a clarifying light on lazy assumptions — and it is particularly important in a piece like Berger’s, which is strikingly lopsided in citing harsh critics of Israel, and in which Berger clearly weighs in on the side of the critics.

The second sentence (about Arab Israelis referring to themselves as “Palestinians”) is marred by a similar omission. The poll cited above, and others like it, makes clear that a distinct minority of the country’s Arab population view their identity more as Palestinian than as Arab and Israeli. Asked to choose one self-identification from a list, most — 40.8 percent — opted for Arab citizen of Israel. An additional 11.4 percent chose “Israeli.” Only 24.3 percent viewed themselves primarily as Palestinian or Palestinian-Israeli.

Los Angeles Times

An article in the Los Angeles Times by Noga Tarnopolsky and a subsequent editorial in the same paper claim the law gives advantages to “Jewish-only communities,” apparently referring to a draft clause that was in fact removed from the final bill. See CAMERA’s detailed analysis here.)

New York Times

The New York Times, in typical fashion, uses labels to convince its readers to view this and other legislation by Israel’s government as racist, discriminatory, and illiberal. Rather than dispassionately presenting the arguments on both sides and letting readers draw their own conclusions, articles have misrepresented recently passed laws, labeled them and their supporters with pejoratives and indulged in hypothetical speculation.

• A July 20th front page article, “Israeli Law Declares the Country the ‘Nation-State of the Jewish People,'”  branded the law as “incendiary” and its supporters as “right-wing” and “ultra-nationalists,” associating them with “nationalist and populist movements” around the world. It told readers that “centrists and leftists” denounce the law as “racist and anti-democratic,” and that many North American Jews are alienated by the Israeli government’s “hawkishness.” In this way, the Times wielded labels in a way that would predispose readers to automatically discount any possible arguments by proponents of the law, or even by its moderate critics, as illiberal and anti-democratic.

• In a second article the next day, “Israel Cements a Right-Wing Agenda With a Furious Week of Lawmaking,” Jerusalem bureau chief David Halbfinger misrepresented three other pieces of recent Israeli legislation to further entrench the notion that Israel is regressive and reactionary.  

An education bill – that could bar outside groups or individuals from speaking at Israeli public schools if they publicly defame or initiate legal proceedings against the state or its soldiers acting in the line of duty – was erroneously described as a law empowering the education minister to bar groups that “criticize the Israeli occupation of the West Bank.” In fact, the bill’s co-sponsor explained that the law is not limited to those who criticize Israel’s military occupation, but can also bar those who promote it, such as those who initiate legal proceedings against the army’s evacuation of settlements there.

The reporter similarly misrepresented a new surrogacy law that was passed by stating that “it blocked single men and gay couples from having children through surrogacy,” implying that these groups were targeted to take away their rights. In fact, there was no change in the law with respect to single and gay men. Israel’s previous surrogacy law had allowed for state-supported surrogacy only under limited conditions. Last week’s law expanded state-supported surrogacy to include single women but not single men or gay couples, despite the urging of LGBT rights advocates that it do so.

Halbfinger then misrepresented events involving a Conservative rabbi in Haifa who was detained by police. He wrote that the rabbi was “arrested by the police.” In fact, the rabbi was not arrested and charged, as the reporter stated, but was detained by police for questioning and released, after having ignored a summons to appear for questioning earlier in the week. Although CAMERA explained all three errors to Times editors, they did not correct.

After misrepresenting the above three events, Halbfinger introduced the nation-state law as the “capstone” of the Israeli government’s “right-wing” and “polarizing” agenda, and filled the article primarily with quotes from its critics.

• Then on July 23, also on the front page, the New York Times published a column by Max Fisher, entitled “Israel, Riding Nationalist Tide, Puts Identity First. It isn’t Alone.” (The online headline read, “Israel Picks Identity over Democracy. More Nations May Follow.”) Attempting to show a departure from the liberal democracy envisioned by the Israeli state’s founding fathers, Fisher misrepresented the facts, on several fronts. 

“Israel has formally declared the right of national self-determination, once envisioned to include all within its borders, as ‘unique to the Jewish people,'” Fisher claims. In fact, Israel has always been envisioned as a Jewish state, meant to fulfill the right of the Jewish people, exclusively, to national self-determination. In declaring independence and the “establishment of a Jewish state,” Israel’s founding fathers referred to the “Jewish people” and their right to determine their own fate in “their own sovereign state.” The UN, too, called for a specifically “Jewish” state alongside a specifically “Arab” state, and took steps to protect the demographic majorities on each side.

That doesn’t mean Israel’s founders didn’t also envision full individual rights and equality for minorities. They did, promising in the country’s declaration of independence “complete equality of social and political rights to all [of the country’s] inhabitants irrespective of religion, race or sex,” as the Declaration puts it. That, however, is not the same as “national self-determination.” 

Middle East historian Martin Kramer points out on his blog that Fisher also errs in the introduction to his piece. The New York Times journalist claims that Israel’s first prime minister, David Ben Gurion, had come out of retirement in 1967 to insist “that Israel give up the territories it had conquered” or risk “distort[ing]the young state….”

Kramer debunked the source that was provided for this false quote by tracking down the transcript of the meeting where Ben Gurion had allegedly made these remarks, and finding no such statement by Ben Gurion. He also provides ample evidence from Ben Gurion’s documented quotes that demonstrate the opposite – that Ben Gurion was actually in favor of holding on to much of the territory that came under Israel’s control in 1967. (Read Martin Kramer’s detailed debunking of the quote here.) New York Times editors, however, have seen no need to issue any corrections to these falsehoods.

Time Magazine

Beginning with the headline “A New Law Shifts Israel Away From Democracy,” an opinion piece by journalist Ilene Prusher misleads readers with hyperbolic misrepresentation of the law.

Prusher suggests that the law is a movement away from Israel’s foundational documents that “ensure complete equality of social and political rights to all [the country’s] inhabitants irrespective of religion, race or sex” and guarantee “freedom of religion, conscience, language, education and culture.” She cites a Hebrew University professor to declare that the law now “makes discrimination constitutional.” She quotes Adalah, the partisan NGO responsible for the misleadingDiscriminatory Laws” database, to announce that the new law “codifies” discrimination.  And she quotes an Arab-Israeli Knesset member to wildly speculate that it might lead to “segregating public pools … and public transportation.” Pointing to the law’s encouragement and promotion of “Jewish settlement” in the State of Israel, the author claims that it “provides legal teeth for discrimination … particularly in the important area of housing.”

Contrary to these claims, however, nothing in the new law alters the individual rights of any Israeli citizen, as declared in Israel’s foundational documents and that are enshrined in Israel’s other Basic Laws (for example, here and here). Nor does the promotion of “Jewish settlement” as a national value legislate any discriminatory actions against its non-Jewish citizens. It is declaratory in nature, and reiterates Article 6 of the League of Nation’s 1922 Mandate for Palestine that encouraged “close settlement by Jews on the land, including State lands and waste lands not required for public purposes.”  

In other words, Prusher’s charge that discrimination is being codified into law is simply false.

NBCNews.com

On July 20, NBCNews.com posted an entirely one-sided article. Under the headline “Israel ‘nation-state’ law prompts criticism around the world, including from U.S. Jewish groups,” the article was limited to condemnation and criticism of the law by its opponents.

Failing to distinguish between national self-determination and self-determination of individuals within that state, the article misrepresents the legislation. It incorrectly states that the law “declared among other provisions that only Jews have the right of self-determination.” The law, however, specifies the Jewish right of national self-determination within Israel, which is distinct from the political equality and social rights that constitute the individual self-determination of all Israeli citizens.

The article includes hypothetical speculation from the American Jewish Committee about how the law “could be read” and criticism from Arab-Israeli legislators and citizens, including radical opposition politician Ayman Odeh, but fails to present any rebuttal or countervailing positions.