High Court of Justice 61683-12-25 The Movement for Quality Government in Israel v. The Government of Israel - part 44

"[A] government-owned media outlet would distort and manipulate information to entrench the incumbent politicians, preclude voters and consumers from making informed decisions, and ultimately undermine both democracy and markets.  Because private and independent media supply alternative views to the public, they enable individuals to choose among political candidates, goods, and securities-with less fear of abuse by unscrupulous politicians, producers, and promoters.  Moreover, competition among media firms assures that voters, consumers and investors obtain, on average, unbiased and accurate information.  The role of such private and competitive media is held to be so important for the checks-and-balances system of modern democracy that they have come to be called "the fourth estate, " along with the executive, the legislature, and the courts."

"State-owned media will distort and distort information in order to entrench incumbent politicians, prevent voters and consumers from making informed decisions, and ultimately undermine both democracy and markets.  Because private, independent media outlets provide the public with alternative perspectives, they allow individuals to choose between political candidates, products, and securities-against the backdrop of a smaller fear of abuse by uninhibited politicians, manufacturers, and promoters.  Moreover, competition between telecommunications companies ensures that voters, consumers, and investors receive, on average, accurate and unbiased information.  The role of these private and competitive media outlets is considered important to the system of checks and balances of modern democracy to the extent that it has earned them the nickname 'Fourth Authority, ' alongside the executive branch, the legislative branch, and the courts." (See ibid., at p.  342).

To verify the above, the article examined 97 countries, which showed that government control of the media is associated with poorer countries, diluted individual rights, inferior education and health systems, and more autocratic regimes (see ibid., pp.  343-344).  To this, I will add that a theoretical model published in an important economic journal predicted the erosion of the foundations of democracy in countries where the government controls the media (see: Timothy Besley & Andrea Prat, Handcuffs for the Grabbing Hand? Media Capture and Government Accountability, 96 Am.  Econ.  Rev.  720 (2006)) - According to the scenario that materialized under the auspices of the state "Ministry of Truth", described in George Orwell's dystopia, "1984".

8. The petitioners' argument that the closure of the station constitutes an infringement on freedom of expression depends on the restraint. Freedom of expression is a negative freedom: a right that, subject to a few exceptions, prevents the imposition of prohibitions and restrictions on the expression of opinions (see: High Court of Justice 7150/16 The Reform Center for Religion and State The Movement for Progressive Judaism in Israel v.  Minister of Justice, paragraph 34 of the [Nevo] judgment (September 21,2020)).  This freedom does not impose a positive obligation on the state to assist people in expressing their opinions and broadcasting them to the public by operating a radio station.  Not only that: news and current affairs broadcasts on behalf of the state are a powerful media outlet.  These broadcasts are liable to weaken the voice of private broadcasters, and even silence the expression of opinions of all those whose voices the state prefers not to hear.  Empowering state news and current affairs broadcasts is therefore liable to harm freedom of expression and distort public discourse.  Let's not forget the television scene - which was a thing of the past - of a soldier of "Army Radio", wearing the uniform of the people's army, from a microphone of the station to the mouth of a politician.  This appearance is a distortion of the regime, since the Israel Defense Forces - everyone's army - is not supposed to have any role in the political discourse that takes place in the country, not even the role of an interviewer and broadcaster.
9. The closure of the Galei Tzahal station will not bring about a change in the rights or obligations of an unspecified public. Just like the opening of the station, this act is an individual administrative provision that is not subject to legislative action (see: Criminal Appeal 213/56 Attorney General v.  Alexandrovich, IsrSC 11 695,702 (1957)).  Despite this, the petitioners and the Attorney General argue that the government's decision to close the station is a "preliminary arrangement", which must fall within the scope of primary legislation, and therefore the decision lacks authority.  This argument is based on a broad definition of "preliminary arrangement" adopted in the case of the High Court of Justice 3267/97 Rubinstein v.  Minister of Defense, IsrSC 52(5) 481, para.  19 (1998)), which derives the primacy of an arrangement from a number of characteristics that include the breadth of the public implications of that arrangement.  In my opinion, a "preliminary arrangement" is an arrangement that grants rights to an unspecified public or, alternatively, restricts the steps of such a public without it being explicitly anchored or authorized by primary legislation.  In other words, I do not see myself as a partner in the broad and vague definition of a "preliminary arrangement." In this regard, I accept the criticism of Prof.  Yoav Dotan, Preliminary Arrangements and the New Principle of Legality, Mishpatim 42 379 (2012); and the narrower, and more precise, definition of "preliminary arrangement, " which I propose to adopt, is fed, to a large extent, by these words (see ibid., at pp.  443-447).
10. Not only that. In the case before us, if we see the decision to close "Army Radio" as a "preliminary arrangement", we will inevitably reach the conclusion that the historic decision to open the station was also a "preliminary arrangement".  Since the decision to open Army Radio was made by the government and was never enshrined in Knesset legislation, we will see before us - whether we like it or not - a decision that was made without authority.  If this is the case, one who did an act without authority is entitled to correct the mistake he made, and it is better to do so one hour earlier.  In other words, the argument of the petitioners and the Attorney General, which equates the decision to close "Army Radio" with the status of a "preliminary arrangement", which requires primary legislation, is a claim that suffers from self-refutation.  This argument cannot stand for this reason alone.
11. These considerations lead to the conclusion regarding the rejection of the petitions. Despite this, I find myself agreeing with the bottom line of the judgment of my colleague, Justice Kasher.  This is for one reason only: what was stated in the letter of the Minister of Communications, Dr.    Karei, which was sent to the Minister of Defense on March 30,2025, under the title "Closure of Army Radio and Privatization of Frequencies" - a letter that was part of the procedures for shutting down the station.  This letter states, inter alia, as follows:

"I turn to you out of faith in our partnership, to advance together an important and necessary move: the closure of the military radio station Galei Tzahal, while implementing the right-wing liberal agenda that we share.  Army Radio, which was originally established as a military station for support and connection with IDF soldiers, has long since become a political stronghold, detached from its original purpose.  Criticism of IDF soldiers and ongoing damage to the values of national cohesion during wartime have become routine.  It is unlikely that in a democratic country there will be a military radio station, certainly one that is political, which, instead of being the 'home of the soldiers', lowers their spirits.  Our fighters return from the battlefield and are forced to hear content that not only does not support them, but sometimes harshly criticizes their actions."

12. In my opinion, the content of this letter - which, as noted, constituted a significant part of the government's decision-making process regarding the closure of the station - amounts to governmental interference in the content of radio broadcasts. This is while the legitimate idea that justifies - and perhaps even requires - the closure of Army Radio is the separation between the government and the content broadcast in the media.  I don't think I would be wrong to say this either: Given what was stated in the Minister of Communications' letter, it is not clear whether the latter would enthusiastically support the closure of the "Army Radio" station on the basis of the principle of separation between a newspaper and the government, or whether the station's broadcasts brought him and his partners satisfaction.  It was therefore found that the decision-making procedures regarding the closure of the radio station "Army Radio" were flawed by the consideration of a foreign target.
13. As I have already noted, contrary to the position of the petitioners and the position of the Attorney General, I am of the opinion that the closure of the "Army Radio" station does not involve a complex procedure. For this reason, and since the station is a significant factor in the broadcast communications industry, it would not be excessive to demand that this procedure be free of defects and extraneous considerations.
14. In my opinion, this clear conclusion justifies turning the order nisi that was issued before us into a definitive order.
15. For these reasons, and subject to the aforesaid in my opinion, I have decided to join the conclusion reached by my colleague, Justice Kasher, in his judgment.