Volokh Conspiracy: Why todays Israel election polls are the last

Opinion polls released in Israel today show the left-wing Zionist Union party (a combination of the venerable Labor party and Tzipi Livnis group) holding a 3-4 seat lead over the right-wing Likud party. However, the total size of the right and left wing blocs in the Knesset would be equal. Thus the nature of the government that will be formed will ultimately depend on the center-right, brand-new Kulanu party, and the two mainstay haredi parties.

While the vote is on Tuesday, Israeli law prohibits announcing opinion poll results from now until then. The assumption behind the law is that late polls could unduly influence voters. In the U.S., such a law would clearly be unconstitutional under the First Amendment. Indeed, such polls are the most protected form of speech speech about political matters. In Israel, as in Europe, free speech protections are less robust than in the U.S. Yet such laws seem exceedingly silly: protecting democracy from the voters. Governmental power to regulate the informational marketplace around an election isthe most dangerous kind of speech intrusion. Strangely, despite recent international fuss about speech legislation in Israel, the restrictions on electoral speech seem to go unremarked.

The notion that voters are dumb enough to be unreasonably swayed by polls but wise enough to choose a government isodd. This is particularly true in Israel, where government coalitions are formed by a large number of parties (the next coalition will probably have at least six). Thus there is necessarily a strategic aspect to voting, and knowing the latest poll results could be quite useful to decision-making.

Those who might be ok with laws regulating speech around political campaigns should note that they do not have an obvious stopping point. One of the items likely to be high on the agenda of the likely new left-wing government is a law banning Israel HaYom, a free-distribution daily, Israels highest circulation paper, and very supportive of Netanyahu. (The law would not actually explicitly ban Israel Hayom in particular, but would rather ban free newspapers, of which it is the only major one.) The purported justification for the measure, which would be manifestly unconstitutional in the U.S. (and Israel, I think) is that the newspaper, owned by U.S. billionaire Sheldon Adelson, constitutes improper political funding because of its pro-Likud editorial stance.

Despite the deep hatred for Adelson on the Left, I cant imagine the Israeli Supreme Court upholding such a law, but one never knows. Certainly the paternalism behind the polling law sets a tone that could support more intrusive, and targeted, efforts to eliminate information that may unduly sway the citizenry. A further irony is the electoral victory that would make such a law possible would also seem to undercut Livnis argument that through the newspaper, Adelson controls our lives here.

Eugene Kontorovich is a professor at Northwestern University School of Law, and an expert on constitutional and international law. He also writes and lectures frequently about the Arab-Israel conflict.

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Volokh Conspiracy: Why todays Israel election polls are the last