The Supreme Court on Thursday upheld a lower court’s ruling refusing to broaden
the gag order on the state’s main witness in the Holyland case involving former
prime minister Ehud Olmert and 15 other defendants.
The emergency motion
was filed as a last-ditch attempt to stop the airing on Thursday of what was
expected to be a highly damaging expose on Channel 2 regarding S.D., as the
state witness is referred to under the gag order.
The state tried to
characterize the motion as not merely protecting S.D., but protecting the
integrity of the entire trial.
The Supreme Court did not accept that
characterization and concurred with the lower court’s overall view that the
state had failed to show a high enough degree of proof that airing the expose
would do real damage to S.D., or would prevent him from continuing to
Until now, the gag order on S.D.’s identity has been for a
temporary period and related only to divulging his identity.
gag order sought by the state would have prohibited discussing almost any
details about S.D. – including those from his past – other than his testimony in
court, and would have halted the airing of the program.
The lower court
refused the state’s request on two primary grounds.
First, the court
noted that the media has been almost constantly airing material about S.D. and
his past (while carefully not publishing his name).
Despite all of the
stories already publicized, the state had not raised a finger or objected, let
alone started investigations against any of these media outlets.
the state refused to permit the court to see the program.
The court said
that it could not find that the program was so obviously damaging to S.D. when
similar programs had aired before, and the court could not view the program to
see why this program was so much more damaging.
Rejecting the lower
court’s rationale, the state asked the Supreme Court to reverse the ruling and
to prevent the program and future programs airing.
The state said the
fact that it had not objected to previous programs showed that it was being
judicious about when to object and that the court should defer to the state’s
judgment that this particular program and the sum total impact of recent
programs could cripple S.D.’s ability to continue to testify.
unfair and illogical to penalize S.D. and the state for their patience up until
this point, when the amount of the media focus was becoming too much for
Rebutting the second reason the lower court had mentioned, the state
said that whether the court viewed the program or not was not the key
The key issue was whether at the end of the day, S.D., with all of
his quirks, would be unable to continue testifying if he continued to be
“attacked” by the media.
The state also said that the court had been
misled by the proponents of airing the program, who said the program would not
impact the proceedings.
In fact, the state said that the issues in the
program would inevitably be raised in cross-examination by each of the defense
attorneys, and might even compel the state to address them in S.D.’s direct
Arguments about freedom of speech should be placed by the
wayside not only because they are balanced by the rights of the witness to
testify, but also because all that was requested was extending the broadened gag
order for about two months, said the state.
Ultimately, the Supreme Court
found that the state was merely rehashing arguments it made before the lower
court and that it agreed with the lower court’s analysis of the issue.