Voices in conflict: free speech, social media, and the workplace during national trauma

Moria Tam-Harshoshanim

Herzog Fox & Neeman, Tel Aviv

tam@herzoglaw.co.il

Omer Ben-Weiss

Herzog Fox & Neeman, Tel Aviv

weissom@herzoglaw.co.il

Alon Sherbaty-Nahari

Herzog Fox & Neeman, Tel Aviv

sherbatya@herzoglaw.co.il

Over the past decade and a half, as social media has become an accessible and widely used social platform, an increasing number of questions concerning employees’ freedom of expression in the virtual sphere – and the balance between that freedom and the employer’s managerial prerogative – have reached Israel’s labour courts. These issues appear to arise with particular intensity during periods of heightened security tension, and especially, as discussed in this article, following the events of 7 October 2023.

In times of national trauma, the boundaries of acceptable speech tend to diminish. Emotions run high, public discourse becomes polarised, and institutions, especially employers, sometimes feel pressure to ‘take a stand’. But what happens when that pressure collides with one of the most fundamental democratic rights: freedom of expression?

Over the past two years, Israeli labour courts have repeatedly confronted this exact question. A series of highly publicised decisions following the events of 7 October addressed dismissals and disciplinary actions against employees who expressed controversial political opinions during wartime. Among the most notable cases were the decisions regarding Limor Kraus, Dr Meir Baruchin and Munstar Abasi, each of which reflected a different balance between freedom of expression, workplace obligations and the employer’s duty to maintain organisational functioning and employee safety.[1]

In the Kraus case, the Tel Aviv Regional Labour Court dealt with the dismissal of an employee who spoke disparagingly about IDF soldiers during conversations at work. Despite emphasising the severity and offensiveness of the statements, the Court held that such remarks could not automatically justify dismissal in violation of applicable collective bargaining protections. The Court ultimately invalidated the termination process because of substantial procedural defects and the employer’s failure to comply with the governing collective agreement.

In the Baruchin case, the Court ordered the reinstatement of a high school teacher who had published controversial political posts on Facebook. As in the Kraus case, the regional labour court attached significant importance to the procedure followed in dismissing the employee, holding that because the required procedural rules were not followed, the dismissal was void. In addition, the court stressed that even during wartime, freedom of expression does not disappear, particularly where the speech concerns political opinions expressed outside the workplace. Consequently, the court also found that the dismissal was disproportionate. For the sake of completeness, in the appeal proceedings, the matter was resolved by consent: Dr Baruchin undertook to conduct classroom discussions with greater sensitivity and moderation and accepted responsibility for the tone of the discourse, while the municipality agreed to his continued employment.

At the same time, not every case ended in reinstatement. In the Abasi matter, the Court upheld the dismissal of an employee whose social media publications included Quranic verses and statements that were interpreted as calls for jihad and support for violence against the State of Israel. Unlike the Baruchin and Kraus cases, the Court gave substantial weight to the employer’s concerns regarding workplace safety, employee fear, and the perception that the publications crossed the line from controversial political expression into incitement. In the appeal proceedings, the parties agreed, following the National Labour Court’s proposal, that the employment relationship would end by consent.

Together, these cases demonstrate first and foremost the significant importance the labour courts attach to a proper job termination process, including the right to full and fair hearing, even in cases involving extreme conduct in the workplace. They also demonstrate that Israeli labour courts have not adopted a simplistic approach to employee speech during wartime. The decisions consistently recognise freedom of expression as a central constitutional value, while simultaneously acknowledging that employees also owe duties of loyalty, trust, collegiality, and restraint toward their employers and colleagues.

Against this broader legal backdrop came the recent decision by the Be’er Sheva Regional Labour Court involving Dr Varda Saada and the Kaye Academic College.[2] The judgment offers a comprehensive examination of the tension between academic freedom, employee obligations and political speech during national crisis.

The case arose after Dr Saada, a senior lecturer employed by the college for nearly three decades, published a series of social media posts, including films taken by Hamas, during and after the events of 7 October 2023. In light of the posts attributed to her, the college notified her of her suspension and, subsequently, of her dismissal.

Like in the Kraus and Dr Baruchin cases, the Court ultimately ruled that the dismissal process was unlawful. It was found that the college had acted without a proper disciplinary framework, failed to follow its own procedures, and appeared to have reached conclusions about the lecturer before a proper hearing had even taken place. At the same time, the Court did not accept the lecturer’s position either. It emphasised that some of the lecturer’s statements lacked sensitivity, included misleading content, and were understandably perceived as offensive during an exceptionally painful national moment.

On one hand, the court strongly defended freedom of expression and academic freedom, stressing that democratic societies, and particularly academic institutions, must tolerate dissenting and even deeply unpopular views. On the other, the judgment acknowledged that speech has consequences, especially during wartime, and that employees are not entirely detached from their workplace obligations simply because they speak on private social media accounts.

The decision therefore avoids easy slogans. It neither embraces unlimited free speech nor endorses automatic dismissal for controversial expression. Instead, it reflects the uncomfortable reality that both principles coexist simultaneously.

Freedom of expression cases are often emotionally charged, particularly during national emergencies. But the judgment emphasises that precisely in such moments, institutions must act carefully and fairly. Procedural fairness is not only meant for easy cases or sympathetic employees. It is designed for situations where emotions threaten to overwhelm objectivity. As the Israeli labour courts have held in other contexts as well, where serious acts or misconduct are attributed to an employee, the importance of conducting a fair procedural process is heightened, so as to allow the employee a meaningful opportunity to respond before a decision is made.

At the same time, the court refused to ‘romanticise’ the employee’s conduct. It repeatedly noted that Dr Saada did not clearly acknowledge the pain caused by some of her statements and did not adequately distance herself from problematic publications. The judge also criticised the dissemination of misleading information on social media and stressed the dangers of online discourse during wartime.

This part of the ruling is especially interesting because it recognises a truth many courts are increasingly confronting: social media has fundamentally changed the relationship between private speech and professional identity.

A decade ago, an employee’s political opinions might have remained largely personal. Today, a Facebook post can reach thousands within minutes, generate screenshots that circulate endlessly, and become associated with the employer almost immediately. The distinction between ‘private citizen’ and ‘employee’ has become far more blurred. The Court acknowledged this reality without allowing it to completely erase freedom of expression protections.

As workplaces become more politicised and social media continues to blur the line between professional and private life, courts are likely to face more disputes involving employee speech during periods of political tension or armed conflict. The legal questions will rarely be simple.

When does political speech become workplace misconduct? How much reputational harm must an employer tolerate? Should universities bear broader obligations to protect controversial speech than private corporations? And perhaps most importantly, how should democratic societies respond when freedom of expression itself becomes emotionally unbearable?

Ultimately, the Saada case is not only about one lecturer or one college. It reflects a much broader struggle taking place in democratic societies during times of crisis: the attempt to uphold open discourse while maintaining social cohesion, institutional trust and basic human sensitivity.

That balance is fragile. The challenge, as these recent judgments demonstrate, is that both sides of the equation matter.