In section 24 of said verdict Judge Naddaf wrote the following, cited here verbatim and with no embellishment:
At times we are witness to the phenomenon in which some people “dare” to re-examine the Holocaust and its dimensions, from various aspects, whether it be the human, historic, scientific, political, etc., and where such people automatically are turned into objects for attack and accusations of being anti-Semites and Holocaust Deniers, deserving of being called Judenrat or Jews for Hitler.
The phenomenon is reinforced when factual data or opinions or theories about the Holocaust are presented that happen to differ from those published about it to date or which deviate from the prevailing consensus.
This phenomenon is not understandable or justified, in my opinion, and contradicts the principles of democracy, which should stand fast, especially in those debates in which stormy public opinion re-examines such sensitive and painful subjects.
The freedom to think, form an opinion, to investigate and re-examine any historic event are basic elements in the world of democracy, and, if we strip them from anyone, we empty them of meaning.
It is impossible and improper to turn the Holocaust into some sort of “taboo” subject, about which people may not comment, think beyond, investigate, or analyze unless it is within the framework of the consensus and the “permissible,” as the defendant claims.
This defense of the right to engage in Holocaust revisionism could have been the closing argument by David Irving’s lawyers, just before he was convicted in Vienna of Holocaust denial. But they appear in a verdict against freedom of speech issued by a judge in Israel. Her tortuous defense of the “freedom to question” regarding the Holocaust is not being used to defend dissident freedom of speech, but rather to justify her denial of it to Plaut.
The judge ordered Plaut to pay Gordon damages; never mind that Gordon had never claimed to have suffered any material damages, nor had the judge found that he had.
The court ruling ignored all previous case law in Israel. Other Israeli courts have defended the right to denounce and criticize public figures as protected speech. Satire is always supposed to be protected. There is even court precedent that says that calling someone a Nazi in Israel is protected speech, especially when it refers to someone with extremist political opinions. (Plaut never called Gordon a Nazi or a Holocaust denier, but if he had, it should have been protected speech.)
The truly frightening thing about all this is that it is the worst in a growing assault against freedom of speech in Israel. Free speech has long been selectively defended by the Israeli courts, prosecutors, and media. The most openly seditious statements of radical Arab militants and leftist Jews is always protected speech, even when they openly endorse terrorism and violence or call for Israel’s destruction. Right-wingers enjoy no such protection. This open bias is possible because Israel has no constitutional guarantee of free speech, no First Amendment(indeed, no formal constitution at all).
But that is not the only threat to Israeli democracy. The very presence on the bench of a judge like Reem Naddaf is the ultimate proof, if any were still needed, that incompetent and biased judges are being appointed with alarming regularity.
Meanwhile, for the sake of the future of Israeli democracy, let us hope this travesty is overturned on the appeal Plaut is filing.
