Israel’s Supreme Court Affirms Book-Ban After Publication

In an unprecedented violation of basic guarantees of free expression in a so-called democracy, last month the Israeli Supreme Court, in a decision written by a settler justice, affirmed a lower court ruling that banned an Israeli novel from being distributed after it had been published.  The novel, by an Israeli professor, was a roman a clef that detailed the break-up of a ten-year marriage.  A former lover of the author, who himself went through a divorce and an affair, sued him (Hebrew) in 2009, claiming the depictions of her fictionalized character were injurious to her and an invasion of her privacy.  As an example, she pointed to the fact that the character attended the same school as she did.

A lower court agreed and not only stopped distribution of the book, but banned any reference to the author’s name or the book’s title. Ironically, the author’s real-life ex-wife gave her blessing to his novel and offered no opposition.  She certainly was in a position to be far more damaged by its revelations than the “other woman.”

Two professors of literature testified as expert witnesses that the book was a work of fiction and should be judged as a work of art, not as a bill of lading or commercial transaction. The publisher, Keter, refused to put up a fight and stopped distributing the book and removed it from all Israeli bookstores.  Online booksellers continue to offer it for sale ($24.95 here).

The book may not now be mentioned or reviewed in the Israeli press.  In effect, a piece of literary fiction has been “disappeared” from Israeli discourse.  Though it’s still possible to read past reviews.  This has to be the most ineffectual gag order ever issued.  Copies of the book sit in libraries around the world including such august universities as Stanford, Columbia, Brandeis and UC Berkeley.  By what judicial fiat can a judge erase the existence of a work of art in the land in which it was written?  I can ‘understand’ Hitler stamping out Brecht and Stalin banning Akhmatova, Mandelstam, and Pasternak.  They were threats to tyrants.  But what threat does Ram Frost’s imagination pose to the Israeli State?

An issue like this is going to draw my interest.  I will happily violate this egregious Israeli judicial violation of free speech for the sake of affirming it on behalf of Israelis who cannot do so.  While I have violated many Israeli judicial gag orders, this is the first time I’ve violated one affirmed by the Supreme Court.  But it matters not whether bad law is made by a lower court or the highest court in the land.  Bad law is bad law.

The author’s name is Ram Frost, a professor of psychology at the Hebrew University.  In 2009, he published Footprints in the Sand (Akevot Ba’chol).  897 copies of the novels were sold and favorable reviews published in Israeli publications including this one in Walla!

The book is in eleven chapters, which may be downloaded in zip format (apologies that this isn’t in a more convenient, accessible format): (Chapters 1, 2, 3, 4, 5 ,6, 7, 8, 9, 10, 11).  The numbers in the file name correspond to the page numbers of the book so you may read them in proper order.

Frost’s ex-lover sued and won, not just a lower court restraining order, but a blanket gag.  Justice Solberg also awarded the woman $100,000 in damages and legal fees. Frankly, I’ve never heard of such a thing.  I’ve heard of books being withdrawn by their publisher after publication due to fraud on the part of the author.  But never an instance in which someone who alleges damage from a book’s publication succeeded in making the book vanish not just from the shelves, but from a nation’s existence.

To be fully accurate, you can find the book in Israelis’ personal libraries and in public libraries.  They haven’t yet sent the police to collect copies in private homes or public institutions.  So if you’re in Israel, while you still have a chance you better get on over to your local library and read what all the fuss is about.

Israeli law constitutes an amalgam of western and Jewish legal traditions.  Sometimes the interaction between the two is quite awkward .  Most disturbingly, the author of the opinion, who is a right-wing settler, relies on Jewish religious law rather than a western democratic legal tradition in reaching his decision:

Solberg explained that the American system is far from “the Israeli constitutional tradition, the legal framework and our Hebrew heritage.” He seems to have been particularly disturbed by the distance from “Hebrew heritage,” since throughout the ruling, he included citations and excerpts from Hebrew law. “The right to privacy is visible between the apertures of the voluminous literature of Hebrew law,” he explained, giving examples: “the prohibition against libel, gossip, the boycott of Rabbeinu Gershom” (an 11th-century European rabbi who emphasized the right to privacy, among other laws).

There is no doubt that a right to privacy is sacrosanct in many legal corpuses.  There is no doubt that the plaintiff suffered real personal angst.  But does her personal pain and right to privacy prohibit a novelist from inventing a fictional representation in novel form?  There is no such precedent even in Jewish law.  The right to privacy doesn’t trump the right to freedom of expression, even if this case marked a real example of violation of privacy (which it doesn’t).  Merely stating that a novel is a thinly concealed representation of one’s own life doesn’t entitle you to claim your privacy has been violated.  In the world Israeli judges have conceived, authors can’t write books that will hurt others’ feelings.  Imagine how impoverished such a world would be!  Great art isn’t necessarily nice or tidy.  It hurts at times, it repels at others.  It reflects life itself.  It isn’t the job of judges to make life fair or neat, especially when it comes to artistic expression.

The majority opinion disagreed and, ignoring the literary scholars who defended the book, claimed the novel was a “documentary” and thinly disguised fictional representation, which ‘penetrated her bedroom and her innermost secrets.’  The opinion begins to sound like romantic fiction itself, doesn’t it?  The majority even compared the depiction of the plaintiff in the novel to the display of nude pictures in a public art exhibition.  This indicates that the judges have no respect for literary art nor understanding of the process of writing fiction.

In interviews Frost gave after the book was published he noted there were similarities between his own life and the novel.  But he clearly stated his creation was not an autobiography and that the plot was not a reproduction of his own life.  There is a real problem when judges decide to become literary critics.  They should stick to writing legal opinions, and not critiquing fiction.

Couples have relationships.  Novelists have marriages.  Their marriages sometimes fail.  Some of them have affairs.  Thousands of such writers have written stories and novels about such break-ups.  And in many instances ex-lovers are aggrieved.  There is controversy.  Subjects go the press to complain.  Sometimes they even sue.  We can even concede that there may be instances in which novelists are cruel to their families or flames in such novels.  I cannot say whether Frost falls into such a category.  But that doesn’t matter since the guarantee of free speech trumps all that.

I never heard of a case in which a judge in a democratic society has agreed to ban such a book. Here is more of the justice’s alarming opinion:

Modesty and the private sphere may bring forth great art.  But an artistic creation is not of necessity a result of freedom of expression.  Actually, restriction, privacy and modesty may also be fertile ground for growth and renewal.  The secrets and acts performed by couples prove this.  One shouldn’t have to remind us that man, the crown of creation, is the product of the most intimate of acts.  Teaching us that unlimited exposure is not always a guarantee of great art. …There are values for which it is worthwhile losing some good books.  Man takes precedence over books.  The book is meant to serve humanity, not the other way round. …Restraining damage to privacy firstly, and realization of artistic expression afterward.  This in order to restrain a piece of art whose glory would come at the expense of trampling over the individual.

Solberg here turns things completely on their head.  What great book would be worth losing in order to defend values like modesty and restraint?  This is the statement of not just a philistine, but a tyrant.  And how can man take precedence over books, when books are solely the creation of man?  There can be no book without man and books and others works of art are the highest expression of humanity.  In essence, Solberg argues that art is expendable while people aren’t.  That’s a false comparison.

In this decision, as Seventh Eye writes, Solberg argues that freedom of expression is not absolute, and in a moment of urgency, the “public good” (here the right to privacy) trumps such rights. The court had many options short of banning.  It could’ve demanded changes in the novel (instead, one justice specifically refused to serve as literary editor though apparently she had no problem serving as literary censor).  It could’ve told the injured party to file suit in civil court for damages in lieu of banning.  It could’ve ruled that the time to stop the book was before publication rather than after the horse left the barn.

Instead, it took the most radical, anti-democratic approach.  Which is not surprising considering that Israel is a democracy in name only.  Not only does it give the security services carte blanche to trample on human rights, in this case it throws centuries of western liberty out the window in the name of an ancient Jewish legal tradition that never heard of a novel.  Do you think Rabbenu Gershom read Lady Chatterly’s Lover or Primary Colors?  Would he have banned them as being libelous or harmful to the reputations of the real-life individuals represented?  And why do we need to refer to an 11th century rabbinical sage when there is ample precedent protecting literary freedom in contemporary law?

Justice Solberg, author of this travesty of justice, also found in favor of an accused IDF war criminal, profiled by Israel’s most popular TV magazine host, Ilana Dayan.  As part of the broadcast, she included a video showing the plaintiff killing a Palestinian girl.  Solberg ordered the segment profiling the soldier censored and for Dayan to pay  him $100,000.  Solberg’s decision has been appealed to the very Supreme Court on which he now sits.  What decision do you think we can expect from his colleagues?

When he was appointed, Israeli peace NGOs filed an objection noting that Solberg’s residence in occupied Palestine constituted a violation of international law.  They pointed out the irony of a judge who violated such law sitting in judgment of Israelis who violated Israeli law.  Their legal case, the pages of which undoubtedly burned the judges’ fingers as they read it (if they read it), was dismissed almost as soon as the judges received it.  In Israel, such issues are dismissed with the wave of a hand.