Israel has a dual justice system. While operating within a single overall structure of courts and related legal institutions, in fact two separate justice systems operate within the same country: one for leftists and the other for everyone else. In part, this is a manifestation of the ideology of “judicial activism” that has long dominated the court system of Israel, a doctrine strongly promoted by the current and the previous Chief Justice of Israel’s Supreme Court. “Judicial activism” is the doctrine by which judges can simply invent rules, laws, and “rights,” regardless of what the parliament says, and impose their personal ideological prejudices upon their rulings and verdicts. The great law professor Robert Bork has criticized Israel’s Supreme Court as the worst in the democratic world for such arbitrary politicization.
One of the worst manifestations of this dual justice system concerns protections of freedom of speech. For many years, freedom of speech has been selectively protected in Israel by the courts and the legal system. Under the dual justice system, anti-Israel Arab and Jewish extremists always enjoy freedom of speech, even when engaged in treason, cheering anti-Jewish terrorism, calling for Israel’s annihilation, calling for lawbreaking and insurrection by soldiers, and even when denying the Holocaust. Non-leftists enjoy no such rights. Expressions of non-leftist political opinion by anti-Oslo dissidents constitute “incitement” and “sedition.”
After the assassination of Prime Minister Yitzhak Rabin, anti-“peace process” dissidents were carted off by the score (including some Rabbis) to face charges of “incitement,” and some did jail time. “Insulting a public official” is a crime in Israel, but the law is selectively enforced against “Rightwing” protesters, never against leftist Jews or Arabs denouncing Israeli leaders as war criminals and as Nazis. (An academic book by law scholar Michal Tamir just came out in Israel and makes the same point.) Israel has an “anti-racism” law, making the expression of “racist opinions” a crime. But it is only used to ban and criminalize the expression of opinion by rightist “Kahanists” and similar fringe extremists. Not a single Arab or Jewish leftist has ever been indicted under it, even when cheering mass terrorist murders of Jews. Jewish teenage girls have been sent to prison without trial by leftist “activist” judges, while Arab politicians openly engaged in espionage and treason are never indicted. The Attorney General has long operated as an ideological appendage of the Israeli Left.
Which brings me to what some are calling the most important Israeli free speech court case in recent years, and it represents an important victory over judicial bias and the dual legal system. It is a court case in which I defeated judicial politicization and leftist anti-democratic suppression of freedom of speech.
I have been involved in a long court case that has already run on for six years. It involves the malicious attempt by one of Israel’s worst academic anti-Israel extremists to misuse the dual judicial system to suppress freedom of speech in Israel - MY freedom of speech.
The background to this involves my activities in exposing and monitoring the anti-Israel extremism of Israeli academics. I work with several web sites that do just that, including www.isracampus.org.il, based in part on Campus Watch . One of the very worst extremists, whose misbehavior has already been covered in several pieces in this paper, is Neve Gordon, a venomously anti-Israel lecturer in political science at Ben Gurion University. Holding a PhD from Notre Dame University, Gordon was hired and promoted largely on the basis of large amounts of anti-Israel political propaganda he churns out. He regularly denounces Israel as a fascist, racist, terrorist entity, as an apartheid state, and he openly calls for Israel’s elimination (what Israeli leftist extremists these days call the “one state solution,” but what should be called the Rwanda solution). Gordon led an international campaign of defamation against his own army commander, which resulted in attempts to indict that man as a “war criminal in Europe. Gordon’s pieces are so openly anti-Semitic that some have been carried on Neo-Nazi web sites, including that run by Ernst Zundel, the Neo-Nazi deported from Canada and now in prison in Germany.
Seven years ago I criticized Gordon for endorsing the writings and opinions of Norman Finkelstein, the notorious ex-professor at DePaul University, an anti-Semite who claims Germany is the victim of Jewish extortion and “hoaxsters,” who cheers Hezbollah terror. Gordon devoted energies to celebrating Finkelstein in the media, which made quite a spectacle Here was Finkelstein, a Holocaust mocker and someone often regarded as a Holocaust denier, being promoted all over the globe by a faculty member at an Israeli university.
I also denounced a group of “protesters” whom Gordon had joined that illegally entered the West Bank town of Ramallah to interfere with Israeli anti-terror operations and to serve as “human shields” for wanted terrorists being held in Arafat’s headquarters at the time. Gordon was shown the next day on the front pages of two Israeli newspapers embracing Arafat in solidarity. On a small web site I dismissed Gordon as his “human shield” friends as a group of “Judenrat wannabes.”
Gordon is of the opinion that he should be able to denounce everyone whose opinions he dislikes as racists, fascists, war criminals, and worse, but that no one should be allowed to criticize HIS political opinions and activities. So for the internet remarks I had made about his public political writings and activities, Gordon filed a harassment “libel suit” against me. It was a classic SLAPP suit. SLAPP stands for “Strategic Lawsuit against Public Participation.” It is an anti-democratic harassment tactic designed to suppress freedom of speech. In many parts of the United States there are serious penalties for filing SLAPP suits, but in Israel there are none.
Gordon filed his harassment suit in Nazareth court, knowing that many of the judges there are Arabs, some holding extremist political opinions. He chose Nazareth for the same reason that some Klan members in the US go “forum shopping” to Alabama so that they can have their court cases held before racist judges and juries. Gordon’s complaint was that I “libeled” him and damaged his “good name” by criticizing his public political opinions. But Gordon is a public figure and attacking the political opinions and activities of anyone in Israel, especially a public figure, is supposed to be protected speech. Gordon’s entire suit was based on “freedom of speech for me but not for thee,” a fundamental principle in any dual judicial system. Calling a public figure who celebrates open anti-Semites, whose anti-Israel articles are published by Neo-Nazis, a “Judenrat wannabe” for engaging in pro-terror activism may be impolite, but it would be protected speech in any real democracy. In retrospect, I think I owe the members of the Judenrat, most of whom were decent people caught in a horrid dilemma, an apology for comparing THEM to Gordon and his friends.
The suit, which some in the media were dubbing the “Israeli David Irving Trial” with me in the role of Deborah Lipstadt, was assigned to an Arab women judge named Reem Nadaff. Her husband was at the time the right-hand party sidekick of Azmi Bishara, the Arab Knesset Member now in hiding outside Israel after engaging in espionage and assistance to the Hezbollah when it was bombing northern Israel. While most Arab judges in Israel are responsible, conservative and cautious, this judge simply threw out Israel’s entire law code and imposed her political biases on the ruling, ignoring the fact that everything I had written about what Gordon writes or does was factually correct. She found that I had “libeled” Gordon by criticizing his opinions. She ruled that treasonous pro-terror activities are protected speech, while criticism of them is slander. In her verdict, she went out of her way to endorse Holocaust revisionism, praised Finkelstein, and then - to top it all off - wrote that all of Israel is on land stolen from another people.
The dual justice system had struck with a vengeance. The judge ordered me to pay Gordon around 100, 000 NIS in “damages” and court costs for having exercised my freedom of speech.
That was all around two years back. I then filed an appeal, which under Israeli law must be in the same district court (Nazareth). And recently the appeals panel of three judges overturned the ruling by Nadaff. It was an unparalleled defeat for the dual justice system.
The appeals judges overturned the earlier ruling by the biased judge almost in its entirety. It ruled that just as Gordon enjoys freedom of speech when he smears Israel, its leaders, and even private persons such as his old army commander, so those who criticize Gordon’s politics must enjoy freedom of speech, even if it takes the form of language some might consider impolite or harsh. The panel balked by two-against-one from going all the way towards establishing freedom of speech in Israel for non-leftists. Basing itself on a Supreme Court ruling from last year, in which a journalist was ordered to pay 1 shekel to a Kahanist because the journalist had called him a “little Nazi” on national television (the Dankner vs. Ben Gvir case), the Nazareth appeals panel ruled that the court should use its powers to discourage use of Holocaust era rhetoric, and so was allowing Gordon to retain 10% of what the lower court had awarded him, as a means to penalize those who might use the term “Judenrat wannabe,” as I had. But calling a pro-terror activist serving as a ‘human shield” for murderers would be protected speech in any other democracy. The dissenting judge considered this expression to be free speech as well.
This last clause in the ruling shows that the dual justice system in Israel is not yet shut down altogether. Israeli leftists, Arabs, and politicians of all stripes use “Holocaust era imagery” in political discourse all the time and it is protected speech. A few days before the appeals panel issued its ruling, an Israeli cabinet minister said that Palestinian violence threatened to bring down upon them a “Holocaust,” a foolish although entirely legal thing to say. The famous Abba Eban had once warned that Israel giving up the West Bank would be a return to its “Auschwitz border.” He was not sued for using Holocaust era imagery.So the bottom line of the appeals court ruling was that it is entirely legitimate to write that a radical anti-Israel leftist is a traitor, a pseudo-academic, and a fascist, but one cannot call him a “Judenrat wannabe ”if he interferes illegally with anti-terror operations. And to overturn that arbitrary residual of Israel’s selective protection of freedom speech, to inflict a greater defeat of Israel’s dual justice system, I am now appealing to its Supreme Court to overturn that clause.