The freedom to participate in demonstrations and processions is a basic right in any democratic regime. This freedom is perceived as a manifestation of human dignity and the individual’s liberty to fulfill his wishes. Although this right has not been enshrined in a Basic Law in Israel, it has been recognized in case law as a central human right. Justice Aharon Barak, the former president of the Supreme Court, established that “a demonstration of a political or social character is a manifestation of the autonomy of individual will, freedom of choice and freedom of negation that are included in the framework of human dignity as a constitutional right.” The Supreme Court has emphasized that it is particularly important to protect this right in the case of those holding minority views: “The freedom of expression and demonstration is intended to protect not only those who hold accepted and popular opinions, but also – and herein lies the principal test of freedom of expression – opinions that are liable to incur anger or outrage.”

Nevertheless, freedom of expression and freedom of demonstration are not absolute rights and may be restricted under certain circumstances. Due to the importance of freedom of demonstration, however, it may only be restricted in exceptional cases:

Restricting assembly or demonstration is not the first resort but the last. Before this step is taken, it must be examined whether the assembly or demonstration can be held while at the same time preventing the occurrence of the danger and reducing its dimensions, by means of police details directed at those persons who are creating the danger… It must be made a high priority – alongside the protection of public well-being and security, in general – since it is intended to ensure the freedom of expression that is so vital to a democratic system.

Justice Barak offered the following definition of the need to balance the various considerations:

As with other liberties, here, too, a balance must be struck between the will of the individual – and of individuals – to express their views by way of assembly and demonstration, the will of the individual to protect his well-being and property, and the will of the public to protect public order and security. Without order there is no liberty. Freedom of assembly does not mean the abandonment of all public order, and freedom of procession does not mean the freedom to riot.

By law, the authority to strike the balance between these liberties and other rights and interests lies with the police, through the establishment of the obligation to grant a permit for demonstrations. Such a permit is required when more than 50 people are expected to participate in the demonstration, and when speeches are made during its course. If either of these conditions is not present, there is no need for a permit. The police are entitled to refuse to grant a permit only if they can prove there is “near certainty” of harm to public security, public order, or the freedom of movement or rights of other persons. The police are also permitted to take into consideration their ability to cope with the demonstration, in the context of the other challenges they face.

In examining the probability that violent incidents or disturbances of public order will occur, Supreme Court justices have established that while past events may create such concern, they cannot justify a priori denial of the right of demonstration. Here, too, “near certainty” that the danger will be fulfilled is required.

In cases brought before the Supreme Court, justices have preferred to create alternatives enabling the demonstration to be held without ignoring the public interest. The court regards restricting the duration of the demonstration, or altering its location, as proportionate measures.

For example, in 1996, the justices suggested to the Yesha Council that it reschedule a demonstration so as not to hold it during visits to Israel by the president of the US and the president of Turkey, due to the serious burden this would impose on the police. In 2005, the court rejected a petition by the Yesha Council to hold a consecutive 36-hour demonstration that was planned to block a main road in Jerusalem, citing the restrictions such a demonstration would impose on the residents of the city. The justices established that the police restrictions, which included the closure of the thoroughfare for short, defined periods, were proportionate and proper.

At a hearing in 2006 concerning the Pride Parade in Jerusalem, the justices ruled that the police proposal to hold the parade in a restricted format enabled “realization of freedom of expression and demonstration, on one hand, and protection of public well-being without surrendering to violence on the part of a hostile public, on the other… The said decision of the district commander thus lies within the realms of reasonableness.” In a recent ruling concerning the demonstrations in the Sheikh Jarrah neighborhood of East Jerusalem, the High Court of Justice accepted the police position that the demonstration should be held at a certain distance from the location requested by the demonstrators. However, the court permitted the holding of a limited procession reaching the homes next to which the participants sought to demonstrate. The justices determined that this solution balances the difficulties faced by the police in securing the demonstration and the participants’ freedom of demonstration.