The Threat to Israeli Liberties from the Israeli Supreme Court

Steven Plaut

Robert Bork, the eminent American law professor from Yale University, once described the Israeli Supreme Court as the worst in the Western world. Israel, Bork wrote, "has set a standard for judicial imperialism that can probably never be surpassed, and, one devoutly hopes, will never be equaled elsewhere." Bork finds "less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court, can decide almost everything for them." To make things worse, judges in Israel, including Supreme Court judges, are chosen by a non-elected panel dominated by other judges, and there are no possibilities for impeachment of judges by the parliament or by ballot initiative. Appointments of judges are not subject to approval by the Israeli parliament (the Knesset). Israel's Supreme Court has been dominated by the anti-democratic doctrine of "judicial activism" for a generation. "Judicial activism" is when judges simply make up imaginary "laws" as they go along, without the need for the legislature to bother passing them as laws. This week the Israeli Supreme Court in Israel is denouncing benefits for Israeli army veterans. What law allows them to do so? None at all.

In many cases the rulings of the Israeli Supreme Court are attempts to implement the leftist ideologies of judges. Ex-chief Justice Aharon Barak used to brag about his issuing rulings based upon "enlightened opinion" in Israel, meaning leftist opinion. The current chief justice is also a great believer in "judicial activism." The unelected justices of the Supreme Court claim the right, invented by them out of thin air, to be able to overturn laws passed by the elected representatives of the people. There is no constitutional basis in Israel for their claiming such a right.

The Israeli Supreme Court has also frequently long displayed indifference when it comes to civil liberties. It is militantly aggressive in defending the "liberties" of Israeli Arabs and far leftists, but seems to have little interest in defending civil liberties, including freedom of speech, for others. In one extreme example, a Supreme Court justice, Ayala Procaccia, ordered the imprisonment without trial of 14-year-old religious girls who had dared to participate in a demonstration of the right. No one believes the girls would have been imprisoned had they participated in a demonstration of the left. Writing in Azure, Robert Bork says, "Israel's High Court, however, has decided that state inaction amounts to state action, so that the individual's freedom may be declared unconstitutional and the state required to act. Individual freedom thus exists at the sufferance of judges. ... All of this is exacerbated, as Polisar observes, by a method of selecting judges that allows the High Court to choose its own membership."

Israel's Supreme Court recently refused to review the decision of the Nazareth Appeals court in the famous long-running Plaut-Gordon lawsuit, in effect leaving the earlier anti-democratic decision by the Nazareth court in place. That lawsuit was a SLAPP harassment suit filed by the Israeli leftist anti-Semite Neve Gordon against me to try to stop my criticizing his political opinions and activities. "SLAPP" stands for "Strategic Lawsuit against Public Participation," and SLAPP suits are anti-democratic harassment tactics used to suppress freedom of speech.

The Israeli Supreme Court has now refused to defend freedom of speech and refused to squash SLAPP suit harassment in Israel. It took the Supreme Court nearly two years to decide not to review an earlier appeals court decision in the Gordon-Plaut case. Its refusal in essence establishes formal infringements on freedom of expression in Israel. The Supreme Court opinion was written by the Deputy Chief Justice, Eliezer Rivlin. He was joined in his refusal to defend freedom of speech by justices Neil Handel, supposedly the voice of religious conservatives on the court, and Salim Jubran, the Arab judge in the Supreme Court. A few days ago Rivlin was one of the judges who voted for a different Court ruling that telling the truth is no defense against the Soviet-style charge of "insulting a public official" in Israel.

This was one more nail in the coffin for Israeli freedom of speech. The Gordon SLAPP suit filed against me, which began a decade ago, should have been summarily dismissed in the very first round of litigation. Gordon sued me because I accused him of being a "groupie" of anti-Semite Norman Finkelstein, after Gordon compared Finkelstein ethically to the Prophets of the Bible, and after I denounced Gordon for his serving as a human shield for wanted terrorist murderers and his illegal interference with Israeli anti-terror operations. The facts of his doing so were never denied by Gordon.

That suit would have been if Israel were really a democratic country with a functioning judiciary. Instead, it was assigned to a radical Nazareth court Arab woman judge, whose husband was the right-hand party man of Azmi Bishara, the Israeli-Arab traitor and spy now in hiding. Nazareth court has many Arab judges, some of them radical politically. Neither Gordon nor I live in the Nazareth district, and the suit was filed in Nazareth as an act of naked forum-shopping, because Gordon wanted to get a radical Arab judge. In her verdict this judge endorsed Holocaust revisionism and declared all of Israel a state constructed on lands stolen from another people. Not surprisingly she found for Gordon and awarded him 95,000 NIS in "damages," even the law does not let her award more than 50,000 NIS in such cases. In essence her verdict amounted to the ruling that treason in Israel is protected speech but criticism of treason is libel. She is still sitting on the bench.

This is the same Neve Gordon who routinely calls for Israel to be destroyed, who insists that Israel is a fascist, Nazi-like apartheid regime, and whose own university president regards him as a traitor. Gordon is very likely to be among the very first people to be sued under Israel's new "anti-boycott" law, which allows the filing of damage suits against those who have worked for world boycotts against Israel.

That Nazareth lower court ruling in the case was later reversed on appeal in the Nazareth Appeals Court, but only 90% of it was reversed, allowing (by a vote of two judges against one) Gordon to retain 10% of the "damages" the Arab woman judge had granted him (or 10,000 shekels). Those 10% were based entirely on my use of the term "Judenrat-wannabe" in an internet article referring to Gordon's illegal pro-terrorism activities.

The Nazareth Appeals Court ruling was based on an older Supreme Court case, Dankner vs. Ben Gvir, in which Amnon Dankner, a national journalist, called the Kahanist Ben Gvir a "little Nazi" on national television. Ben Gvir sued, and when it reached the Supreme Court the ruling was that "Holocaust era rhetoric" is prohibited in political discourse in Israel. The Supreme Court found for Ben Gvir and awarded him one shekel.

The same Supreme Court has now allowed Neve Gordon to retain 10,000 shekels in "damages" because I referred to his group of human shields for terrorists as "Judenrat wannabes." The Court believes this is 10,000 times worse than calling someone a "little Nazi." Ironically, the same Deputy Chief Justice Rivlin, who wrote the Supreme Court ruling in Gordon-Plaut, voted against the ruling in Dankner-Ben Gvir, and was the minority voice who claimed even that was protected speech. To put this differently, denouncing on the internet the illegal treasonous activities of a person is now 10,000 times worse than calling someone a little Nazi on national television, in Rivlin's new opinion. Guess what the Court's "price tag" would be if a leftist called a non-leftist a Nazi or a storm trooper. I leave you to ponder how much the use of Holocaust-era rhetoric would be valued by the court if it were a leftist denouncing Israel as a Nazi regime.

After the Nazareth Appeals Court ruling, I filed a Supreme Court appeal. After dragging its feet, the Supreme Court panel of three, led by the same Rivlin, decided there was insufficient constitutional or public interest in reviewing the Nazareth appeals ruling, in effect allowing it to stand. And, in effect, also preserving the suppression of freedom of speech contained in that verdict.

The Israeli Supreme Court has once again refused to defend the freedom of speech that is supposed to exist in Israel. In their ruling, the judges appeared not even to have read my appeal, and so failed to note that the description of Gordon as a "Judenrat-wannabe" that was deemed "libelous" was in fact a reference to Gordon's serving as a human shield for wanted murderers and to his illegal treasonous interference with Israeli military operations against terrorists. For all intents and purposes, the Israeli Supreme Court reestablished Israel's status as a mere semi-democracy, one in which freedom of speech does not really exist, at least not for critics of far leftists.

The earlier Nazareth appeals court ruled that Gordon was entitled to "damages" because I had denounced his public political writings and behavior. Gordon is clearly a "public figure" by any reading of the law, and so his political behavior is hardly subject to immunity from criticism. Because of the presence of the term "Judenrat-wannabe" in my sentence, the lower appeals court ruled that this is not protected speech. Of course the hundreds of daily denunciations by Israeli leftists or Israeli Arabs against Israel or against Israeli non-leftists as "Nazi" or "fascist" are all protected speech. The Supreme Court judges have now agreed with the lower court. The Supreme Court's ruling establishes the principle that everyone in Israel may use "Holocaust era imagery" in discourse except for critics of the left.

The Supreme Court even ignored an earlier ruling by the Supreme Court itself (Freij vs. Kol Hazman) that came out after the Nazareth Appeals ruling in Gordon-Plaut, which stated that use of Holocaust-era imagery in discourse actually is permitted in Israel, especially in political discourse.

The Supreme Court has failed to act against anti-democratic SLAPP suit harassment designed to suppress freedom of speech in Israel.

The Supreme Court has failed to do anything against forum shopping by extremists and radicals seeking to use the Nazareth Court, with its large number of Arab and radical judges. It is hardly a coincidence that nearly every suit against the state of Israel filed by West Bank "Palestinians" is filed in Nazareth court.

The Supreme Court failed to act against the misuse of the courts by radical anti-Israel leftists as bludgeons again the freedom of expression for critics of those leftists.

In short, the Supreme Court decided to prove once again that in Israel there operates a dual justice system, one for radical leftists and one for everyone else.

The Gordon-Plaut case has become known in the media as the Israeli David Irving case, similar in some ways to the libel SLAPP suit filed by Holocaust Denier David Irving against Deborah Lipstadt in British court. The difference is that in Israel the Supreme Court refuses to defend the freedom of speech of the Israeli Deborah Lipstadt, nor to penalize the Israeli analogue to David Irving. Had Deborah Lipstadt been sued by David Irving in an Israeli court, especially in Nazareth court, Irving may have won.

The opposition to democracy and freedom of speech in the Israeli law community transcends court justices. In recent weeks we have seen repeated rounds of petitioning in favor of leftist causes signed by numerous professors and other faculty members in the Israeli law schools. These include a petition against singing Hatikva, signed by scores of law professors. Law professors have also signed petitions in favor of allowing the Hamas Sheikh Salah to speak on campus, as well as petitions opposed to allowing a woman army colonel to teach on campus. They have signed numerous other petitions in favor of leftist pet causes in large numbers, including calls for boycotting Ariel University and opposition to all Knesset initiatives against radical leftist subversive NGOs.

At the same time it is all but impossible to find examples of law professors speaking out in favor of freedom of speech for non-leftists, or in denunciation of infringements of freedom of speech for non-leftists. I am not aware of a single law professor who spoke out against the harassments and arrests of rabbis in recent weeks, when those rabbis dared to exercise freedom of speech. I am not aware of a single law professor who denounced the suppression of freedom of speech for Kahanists. I am not aware of a single law professor who denounced the wave of leftist McCarthyism after the Rabin assassination, in which freedom of speech for non-leftists was massively suppressed and non-leftists who exercised that freedom were denounced by the government as "inciters." I am not aware of a single law professor who has spoken out against the anti-democratic harassment by the deputy Attorney General of settlers and rightists. I am not aware of a single law professor who denounced the firing of Prof. Yeruham Leavitt for daring to express his "politically incorrect" opinions at Ben Gurion University, this in spite of open public appeals to those same law professors to take a stand, or the firing of a high school teach who criticized the indoctrination into "Rabin's doctrine" in schools. I am not aware of a single law professor who has spoken out against SLAPP suit harassment in Israel. I am not aware of a single law professor who has condemned Neve Gordon and the Nazareth court for their behavior in the Plaut-Gordon lawsuit, this despite appeals to these same professors to speak out, while I know of a handful who have actually endorsed Gordon and the Nazareth court.

In short, Israeli law schools have become home to masses of law professors and other academics who are either fundamentally anti-democratic, or are too intimidated and cowardly to take a public stand in favor of freedom of speech. They take their lead from Israel's anti-democratic judges. Meanwhile, Israeli judges and leftists now are campaigning against a Knesset proposal to require parliamentary approval of appointments of judges. They consider that idea preposterous and monstrous. I mean, what does the Knesset think this is here, the United States?

The Israeli Supreme Court is today a clear and present threat to the liberties of Israelis. It is increasingly anti-democratic and unwilling to defend freedom of speech. The Israeli parliament must reform the Supreme Court. It should consider a moratorium in which the Supreme Court is shut down altogether until that is accomplished.

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