Useless Israeli Gag Orders

A gag order becomes meaningless if those who are gagged don't know that they have been gagged. If no one knows about the order, they could accidentally publish something that has been barred from publication.

Amir Oren
Amir Oren
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Amir Oren
Amir Oren

Before his appointment to his current post, Attorney General Yehuda Weinstein knew the secrets of the State of Israel, in his role as a legal counsel for suspects and defendants. Now Weinstein finds himself in the heart of the absurd, otherwise called the "gag order." Weinstein has admitted he considered and decided against a criminal investigation into Haaretz - and one hopes not against its reporters either - over the alleged offense of knowingly violating a gag order in the Ben Zygier case.

The gag order is signed by judges who have been persuaded by arguments from the police, the Shin Bet security service or the state attorney's office; or alternatively following requests from the defense, or civil litigation parties. The orders do not go into the particular reasons that persuaded the judges: for example, the ban on quoting foreign sources out of fear that the secret would be "exported" into some unheard-of foreign language blog, before being "imported" back for publication as a new report. The absurdity begins with the gag order. The judges pronounce gag order upon gag order and even go so far as to ban publication of the fact that a gag order has been issued. In an outrageous oversight, however, they do not insist on banning the publication of the fact that there is a ban on publication of the gag order, and so on, ad infinitum. But a gag order becomes meaningless if those who are gagged don't know that they have been gagged. If no one knows about the order, they could accidentally publish something that has been barred from publication.

According to the legal definition, "publication" means transmitting a message to at least one person. There is no fundamental difference between a national or local television broadcast, an article in a newspaper, a news item on the Internet, a breaking news announcement on the radio, a speech at a rally, a sermon in a synagogue, a note on a bulletin board, a banner being dragged along by a plane in the sky, the palm of Mordechai Vanunu's hand, a pasquinade and - in the spirit of the times - a self-portrait doodle on a Facebook page. In order to ensure that those who control the means of publishing such material do not to publish that which has been prohibited, they must be informed of what they have been prohibited to publish.

So it happens that in order to prevent seven million Israelis, and consequently 70 million Iranians and 700 million foreign citizens from seeing, reading and hearing something, another something that must not be spoken about in public is distributed to 700 or 7,000 journalists, thus ensuring that what is hidden will be revealed. The gag order is actually confirmation of what the press didn't know, or at best suspected, and is confirmed by the virtue of its existence.

The internal contradiction doesn't end with the expansion of the circle of those whose help is needed in order to keep the secret from leaking. Weinstein relates that the gag order was passed to "10 major media outlets." They include, of course, four to five newspapers, three television channels, two radio stations and one or two news websites. And what about all the rest? Can you put an obstacle before them as you would before a blind man? And what about the Knesset channel - is that regarded as a communications medium that can be prevented from broadcasting a secret revealed by a Member of Knesset in the plenum, or is an arm of the legislative branch immune to such limitations?

Either way, the decision to impose the gag order on some but not on others means that the attorney general or his agents have not blindly and indiscriminately enforced the judges' orders, but have exercised discretion. The major media outlets (which, contrary to popular perception, are not as evil as the 10 sons of Haman ) acted in this exact same way. Different rules would appear to exist for different media outlets. Gag orders are not issued to barely read blogs in the murky backwaters of the Internet, but to the 10 major media outlets in the country. According to the shaky logic of those who request gag orders, even if the Australian prime minister were to address parliament in Canberra about the Zygier affair live and local television stations broadcast it live, the Israeli media must refrain from reporting it.

When a directive becomes devoid of meaning, we can recall the late attorney general Haim Cohen, who refused to enforce the law prohibiting homosexual acts, a decision which effectively changed the law. The lessons of the Zygier affair should spur Weinstein to adopt fresh thinking concerning gag orders.

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