Court allows airing of Holyland witness documentary

Supreme Court upholds ruling allowing Channel 2 documentary on S.D., the state witness whose identity is under gag order.

FORMER PRIME MINISTER Ehud Olmert in court 370 (photo credit: Marc Israel Sellem/The Jerusalem Post)
FORMER PRIME MINISTER Ehud Olmert in court 370
(photo credit: Marc Israel Sellem/The Jerusalem Post)
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 testify.
Until now, the gag order on S.D.’s identity has been for a temporary period and related only to divulging his identity.
The proposed 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.
Second, 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.
It was 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 S.D.
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 issue.
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 testimony.
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.