editorials
F or the past two months, the Knesset’s Constitution,
Law and Justice Committee has held almost daily
meetings to discuss the government’s blockbuster
judicial reform proposal. The reform package seeks to
limit the power of the Supreme Court to review Knesset
legislation; grant control to the ruling coalition over
Supreme Court appointments; reduce the authority
of the attorney general and the government’s legal
advisers; and change the standards for Supreme Court
review of executive branch decisions.

Notwithstanding intense lobbying and protests
against the proposals from both within and outside
Israel, the legislation is moving forward. On Feb. 20,
two aspects of the package passed a fi rst vote of the
Knesset, in what is projected to be a long but steady
adoption process. Those moving the legislation along
are doing so with a single-minded focus on passing
the reforms with the 64-vote majority of the governing
coalition and ignoring the opposition.

But it is not just the parliamentary opposition that is
raising concerns. Cautionary fl ags have been raised by
jurists, academics, politicians, diplomats and hundreds
of thousands of citizen protesters who have taken to
the streets week after week. And perhaps the most
prominent voice of concern has come from Israeli
President Isaac Herzog, who urged the government
to suspend the legislative process and enter
negotiations with the opposition or consultations with
President of Israel Isaac Herzog
the president of the Supreme Court and the attorney
general about the reform issues in an eff ort to reach
consensus for change rather than to impose it through
brute force.

The focus of Herzog’s message is on process —
using dialogue and engagement to work toward
consensus. Neither Herzog nor most others who have
raised concern about the government’s rush to enact
judicial reform are saying that the current system is
perfect. They acknowledge that there are problems.

And they have advanced a variety of approaches and
solutions ranging from tinkering with the number of
votes needed to get things done to a comprehensive
restructuring of the country’s judicial system, including
new rules regarding Israeli basic laws, establishing an
Israeli bill of rights, establishing intermediate appellate
courts and much more. Working through those issues
will take time. But Israel’s newly empowered leaders
are impatient.

Having already ignored Herzog’s plea to pause, it
seems clear that without signifi cant intervention the
managers of the legislation intend to power forward,
even as opposition grows, massive voter protests
continue and Israel moves toward a worrisome crisis
that threatens confi dence in the judiciary, raises
concerns about democracy in the Jewish state and
tears at the country’s social contract.

The person best positioned to step in to calm the
growing chaos is Prime Minister Benjamin Netanyahu.

Yes, he is confl icted because of his own legal
complications. But he doesn’t have to address the
merits of the proposals or even become involved in
the negotiations. All he needs to do is bring order to
the process by exerting his infl uence, exercising his
well-developed deal-making skills and infl uencing
the leaders on both sides to engage in meaningful
discussion on the issues. Unfortunately, Netanyahu
appears reluctant to play that role. That’s a shame,
because this is an opportunity for him to show
singular leadership. ■
Should Tech Giants Be Protected?
I n the run-up to last week’s Supreme Court hearing
in the closely watched case entitled Gonzalez v.

Google, we were told that the court’s decision had
the potential to wreak havoc with the internet as
the justices were called on to decide how online
platforms are supposed to handle speech and
content moderation.

The case focuses on Section 230 of the
Communications Decency Act, which provides
protection from liability to tech platforms for most
content contributed to their sites by third parties.

That means that when users post defamatory tweets
or inciting comments on Twitter, Facebook, YouTube
and similar platforms, the platforms themselves aren’t
deemed legally responsible for that content. But what
happens when the platform’s own algorithm promotes
off ensive tweets, comments or videos? Does the
Section 230 protection continue, or does it disappear?
The Gonzalez case was brought by the family of
a 23-year-old American college student who was
killed in a Paris restaurant attack by Islamic State
followers. The family argues that YouTube has some
12 MARCH 2, 2023 | JEWISH EXPONENT
responsibility for the death, since YouTube’s “Up
Next” algorithm promoted radicalizing material to
viewers who viewed similar radicalized posts, and that
process further infl uenced the viewers to engage in
terror attacks.

There is appeal to the Gonzalez theory. It makes sense
to distinguish between material that a platform merely
hosts from material that the platform itself promotes.

But if platforms will be liable for algorithmically
“recommended” content — which is a process that
simply provides links based upon what the viewer has
already selected to watch — the ramifi cations could
be monumental. It would change the way the internet
operates and would likely cause platforms to abandon
any systems that recommend or prioritize material
based upon a user’s inquiry or viewing history. Instead,
as asserted by one of Google’s lawyers, the internet
would be rendered a useless jumble.

In the near three hours of argument on the case,
we saw very little of the “activist” court so many
have complained about. None of the justices seemed
anxious to take this one on. Instead, we heard practical,
thoughtful and challenging questions along with
palpable frustration with the court being called upon
to decide an issue that requires legislative clarifi cation
and guidance.

Although we sympathize with the Gonzalez
family and others who have been so brutally
impacted by horrifi c internet posts, it is not the
responsibility of the courts to rewrite legislation.

Section 230 and its 26 words that are the focus
of the debate in the Gonzalez case were created
by Congress in 1996, when the internet was
in its infancy. A lot has changed since then, including
the advent of the algorithms that are at issue in
the case and developing artifi cial intelligence
that impacts our internet interactions and our
daily lives.

Congress needs to address these issues in a
comprehensive manner. Congress needs to develop
new laws, standards and guidance to deal with
today’s ever-expanding technological development
and use. That is the job of the legislature, not
the courts. ■
Photo courtesy of Greek Ministry of Foreign Aff airs
Israel’s Judicial Reform Showdown