The Likely Evolution of the Israeli Supreme Court’s Near-Certainty Test for Prior Restraint: New Doctrine or Semantic Shift?

Abstract

In the 1953 Kol Ha’am case, the Israeli Supreme Court established a probability test for prior restraint. In the absence of a Hebrew word to distinguish probable and possible, Justice Shimon Agranat coined the term vada’ut k’rova (literally: ‘near certainty’) to define the English term likely in the Mandatory Press Ordinance, while emphasizing that vada’ut k’rova meant probable. Until the Court was again confronted by a prior-restraint case in the late 1970s, it had not relied upon Kol Ha’am for some sixteen years. In the interim, Agranat coined a new term for ‘probable’ – mistaber – which quickly replaced the term vada’ut k’rova in legal usage. However, the Court continued to employ the term vada’ut k’rova in applying the test established in Kol Ha’am. By 1988, it became clear that the Court was no longer applying the flexible probability test but a more rigid near-certainty test – in accordance with the literal meaning of the term vada’ut k’rova – although it never asserted or explained any doctrinal shift. This essay speculates that the change may have been an inadvertent consequence of retaining the original language of Kol Ha’am – despite the later adoption of the term mistaber – at a time when ‘near certainty’ may have been perceived as more consistent with the evolution of Israeli society’s conception of the importance of freedom of expression.

Cite as: Sharon, JLL 11 (2022), 60–77, DOI: 10.14762/jll.2022.060