Discussing Journalism and Jewish Law with Rabbi J. David Bleich

Rabbi Dr. Bleich is Rosh Yeshivah and Rosh Kollel Le’hora’ah at Yeshivas Rabbeinu Yitzchak Elchanan and Professor of Law at Cardozo School of Law. His most recent book is Contemporary Halakhic Problems, Vol. VII, published by Koren Press. He recently spoke with Jewish Action’s Binyamin Ehrenkranz about the challenges and opportunities for Orthodox media.

 

Binyamin Ehrenkranz: Why should there be a Jewish newspaper in 2017?
Rabbi Bleich: The question is: why was there ever a need for a Jewish paper? An Orthodox Jewish press emerged sometime in the 1800s and it served to satisfy a number of purposes. Even if it had served no other need, it seemed to deter people from reading publications that were hardly edifying. There was a great deal of discussion regarding the matter in rabbinic circlesI’m hardly an expert in the historybut there was broad consensus that there were additional positive benefits as well.

On the other hand, in at least two separate places, the Chofetz Chaim denigrates the reading of newspapers. He says that, in addition to everything else, reading newspapers is an absolute waste of time. I don’t think there is a contradiction between those two approaches. It depends on the circumstances. If your life centers around a small shul in Me’ah Shearim and you leave your home only to go to the beis medrash and back, you may have no need for newspapers. But if you are Rav Elyashiv and people constantly come to you for advice and guidance with regard to all manner of problems, you need to know what is transpiring in the world. I have no idea whether or not Rav Elyashiv read newspapers. But if he didn’t read them himself he assuredly had “research assistants” who read them for him and kept him abreast of current happenings.

The Chofetz Chaim was on the mark. If you are speaking of people who have no need for the news then reading newspapers is a waste of time. But, if you are talking about people who are communal leaders in one sense or another, the relevant source is the Ralbag’s commentary on Megillas Esther. The Ralbag authored two commentaries on Tanach. They are merged into one but are clearly demarcated. One is his commentary on the text, which is often philosophical in nature, the other is what he calls the “to’iliyos,” the “benefits” or moral lessons, that can be derived. In his work on Megillas Esther Ralbag enumerates fifty-one to’iliyos. Commenting on the phrase “U’Mordechai yoshev besha’ar hamelech,”     “Mordechai sits at the gate of the king,” Ralbag notes that Mordechai spent time in the corridors of the court to inform himself of the goings-on within the palace. The to’eles that one is supposed to derive from this narrative is that a leader or manhig—Mordechai was a member of the Sanhedrin—must be aware of matters of state. What transpires in the halls of government does affect us. Clearly, Jews have to be informed, or at least some Jews must be informed. Perhaps in this day and age a majority of Jews have a need to be informed.

The establishment of an Orthodox press in Europe was an attempt to produce what I would call a “name, rank and serial number” type of news reporting. It was necessary to present people with the bare-bone facts and, although I have not read the European press to any real extent, I am quite sure that there were editorial comments of one kind or another that also entered into excurses with regard to how events reported in the news columns would impact upon the Jewish community and how the community should react. That is what the Ralbag meant when he identified the benefit that can be derived from “news.” I am quite certain that one need not read a newspaper cover to cover, but I do believe that a person who is in the position of an opinion molder has to be aware of current events. Students and congregants require guidance. We do not live in an insular enclave.

I don’t read the Hamodia on a regular basis but it is my impression that the daily Hamodia fulfills that function in a quite admirable fashion. It presents basic news reports that appear to be reasonably accurate and the news columns seem to be without bias of one kind or another. That is the goal to which Jewish journalism should aspire. But other publications, including the weekend edition of Hamodia, represent a different kind of journalism. Much of the material is hortatory, designed to mold conduct. Features devoted to history, biographies, Torah topics and even fiction are also included. The rabbinic supporters of the early Jewish press in Europe also encouraged such content.

BE: Are there rules of thumb that should guide an Orthodox editor with regard to putting the public interest ahead of the needs of an individual? What about the individual’s right to privacy?
RJDB: The question reflects an ongoing dilemma. I do not know how any publication can operate within the parameters of Halachah without a resident posek (halachic decisor) who is thoroughly proficient in the works of the Chofetz Chaim and of those who amplified his works. A she’eilah or halachic question lurks behind every sentence published in a newspaper. We live in a cultural and moral milieu that is fundamentally antithetical to Torah values. Unfortunately, many do not recognize that to be the case. When I was knee-high to a grasshopper, a common theme of sermons was that you can be a good Jew and a good American—no contradiction. There is a contradiction! You cannot be “a good Jew” and “a good American” if by “good American” you mean not simply a patriotic citizen but one who subscribes to the melting pot theory and the ideology and value system called “Americanism.” What Hellenism was to ancient Jewry and Germanism was to nineteenth-century German Jews, American acculturation was to twentieth-century Jews in this country.

The basic right to privacy is a primary example. The fundamental right that it took 175 years of constitutional jurisprudence to formulate in Griswold vs. Connecticut was always accepted as axiomatic by Halachah. And that right to privacy is far broader than any principle that American courts have ever recognized. Basically, everything that concerns the individual qua individual, his personal affairs, etc., is “private” —with exceptions. There are many exceptions, particularly with regard to matters that have no personal ramifications. There is no license to divulge a private conversation without the other party’s permission even if one is not expressly told that the communication is to be regarded as confidential unless it is necessary to divulge the imparted information for one of a number of purposes. And that is so even in the absence of any suggestion of lashon hara or rechilus.

It is impossible to function in the field of journalism, certainly in the news media, without being constantly confronted with the question of what may be reported to the public at large and what may not. Yes, the exceptions are very, very broad but they must be carefully defined and precisely delineated. In America we start with the notion that a person can say whatever one likes—there is a First Amendment right of freedom of speech that is popularly, albeit erroneously, understood not simply as a limitation of government authority but as an inalienable right. People do not realize that freedom of speech is only freedom from government restraint upon speech. It is not a license. The First Amendment does not say that you are morally free to say whatever you like; it says only that the government cannot prevent you from saying what you like. But that is not an announcement of an inalienable right that a person is entitled to assert against all and sundry.

The halachic touchstone is found in the recurring biblical passage “Vayedaber Hashem el Moshe leimor,” understood in rabbinic exegesis as “lo emor—do not say.” Moshe Rabbeinu would have had no right to transmit the Torah that the Ribbono Shel Olam revealed to him had the Ribbono Shel Olam not given him specific license to divulge its contents. Every communication is considered to be private, personal and proprietary. That is antithetical to the notion that a person begins with untrammeled permission to talk and may do so with impunity unless specific restraints are placed upon the exercise of that right. Halachah starts with a diametrically opposite premise. If there is no mattir (dispensation) for a particular type of speech pertaining to individuals and their affairs, such speech is proscribed even if it does not constitute lashon hara.

BE: But does Halachah recognize that public figures are going to be written about, presumably for the public good? Is there a difference between a public and private act of such a public figure?
RJDB: That’s the first question that a Jewish newspaper should submit to its posek. And the answer I suspect will be highly nuanced. There is no categoric difference between a public figure and a private figure. However, the distinction between public and private has a tremendous impact in terms of the exceptions to the general rule against talking about people. What somebody does in the privacy of his home or within the confines of his office is not a concern of the public at large. But what public figures do with regard to public policy and governmental affairs does have an impact upon people. Certainly, if I am called upon to vote for one of two candidates, one of whom supports pending legislation and the other opposes it, I must presume that my vote makes a difference; that is the cornerstone of the American system of government. I must know what the issues are. I have to know whom to support, who is going to advance my interests—and those of my community—and who is going to support legislation antithetical to my interests. I have to know which tailor produces a fine garment and which tailor produces a shoddy suit of clothes. Such matters are important; such information represents a to’eles. Whatever negative information that is divulged must be divulged only on the basis of knowledge, not on the basis of intuition or surmise. There must be an identifiable to’eles, not mere conjecture. Moreover, do not divulge information if it is clear that it will be ignored. The broad exception is that such information may be revealed when it is for purposes of a benefit. What public figures do or say has an impact upon me; what some private individual says does not. To that extent, to be sure, there is a distinction between private persons and public figures.

A second difference lies in assumed permission to divulge. A person may give permission to divulge certain types of “personal” information that otherwise are no one’s business. Shidduchim seem to be the paradigm for discussion of this aspect of the halachos of lashon hara. In Europe, it was common for the father of a young woman to send someone to evaluate a potential son-in-law. A young man, for example, might not be the world’s greatest talmid chacham but has been paraded as a budding approximation thereof and the prospective father-in-law wishes to know if it is true. He is in no position to find out for himself, so he sends a knowledgeable rabbinic figure to do so on his behalf. The agent will engage the young man in conversation. He will be giving him a test. It is understood that the agent has absolute permission to deliver an accurate assessment, assuming that the agent has satisfied all other requisite conditionsthere are a number of conditions that must be satisfied. But the agent has a right to do this because the young man has tacitly given permission for that information to be revealed.

I am quite certain that one need not read a newspaper cover to cover, but I do believe that a person who is in the position of an opinion molder has to be aware of current events . . . . We do not live in an insular enclave.

In the modern world, the assumption is that, if an author has submitted his book for review, he anticipates that the reviewer is not going to be intellectually dishonest, which means that the reviewer is going to point out both the strengths and weaknesses of the book. On the basis of that information, the reader is then going to decide whether or not to purchase the book and/or how much weight to give to its contents. Such authorized revelations do not constitute lashon hara. The author has agreed in advance to an impartial and honest review; but it must be honest
and unbiased.

I need to know what the resident of the White House is thinking about immigration law or healthcare, etc. One way or another it has an impact upon me. And it is to be presumed that he has given permission for people to talk about his views and to discuss their cogency or lack thereof. Certainly, when he broadcasts them on Twitter, he is asking for as wide a dissemination of those views as he can possibly obtain. So the difference between public and personal is important but not because of the distinction per se.

BE: Let’s say it is considered halachically permissible to print a certain story, is there a concern of chillul Hashem? Can one rely on the fact that once you’ve fulfilled the halachic requirements for to’eles, chillul Hashem is no longer a concern?
RJDB: Chillul Hashem is the safety haven of the ignoramus. When he can’t pinpoint an aveirah, he categorizes the act as a chillul Hashem. Not everything of which I disapprove is ipso facto a chillul Hashem. The definition of chillul Hashem is a topic in and of itself. The mere fact that some people think negatively of a person who engages in a certain act does not automatically render a report of that act a chillul Hashem. Lashon hara and rechilus about alleged wrongful condct are serious enough transgressions and need not be compounded by labeling them chillul Hashem.

The fact that I or others, Jews or non-Jews, disapprove of certain types of conduct does not render them a chillul Hashem. I recall being in a city which had a highly questionable eruv. Since it was a hot summer day, I walked to shul on Shabbos wearing my tallis over my jacket. I was accosted by an elderly Jew holding his own tallis bag under his arm. He stood at the corner, stared at me and exclaimed in a loud voice, “Ah chillul Hashem!” I wished him “Gut Shabbos” and otherwise ignored him. His embarrassment at a public display of religious garb or (probably mistaken) assumption that non-Jews will harbor ill will towards us if we are seen wearing the Jewish equivalent of a dashiki does not transform that behavior into a chillul Hashem.

If you were to discover that a person who is muchzak u’mefursam b’chassidus (widely known as pious) has engaged in some peccadillo, publicizing that fact may well involve a matter of chillul Hashem. But if you tell me that there is a Jew out there who has committed an infraction, the transgression itself may be a chillul Hashem but publishing that fact is not necessarily an act of chillul Hashem.

BE: Once a wrongdoing has been publicized, whether it’s done rightly or wrongly, do the violations of Halachah become lessened in some ways?
RJDB: “Misamrei b’apei telasa—something which is said in the presence of three people—les bo mishum lishna bisha—does not constitute lashon hara.” Everyone seems to know that principle. But it does not mean what it may seem to mean. There are at least four different positions set forth by the Rishonim in defining that concept. This publication does not have the space to publish a detailed analysis of the different interpretations. But let us make it very, very brief. In the body of his classic work devoted to lashon hara, the Chofetz Chaim summarizes as black-letter law that, according to all Rishonim, it is absolutely prohibited to cause such information to be disseminated to a wider audience than would otherwise have been in possession of those facts. Intent to draw the matter to the attention of people who would otherwise have remained ignorant of that information renders the communication lashon hara per se.

BE: It is often believed that publicizing cases of leadership or even rabbinic wrongdoing will help avoid more damage by the person in question. Obviously, each case is different, but when someone with moral authority is found to engage in morally questionable behavior, shouldn’t that be publicized to prevent more people from getting hurt?
RJDB: Examine the Choftez Chaim’s tenaim (stipulations) as well as the constitutional law notion of least restrictive means. When addressing a situation involving someone who is in a position to do harm, it is certainly prudent to warn people who are likely to be harmed. But it is not necessary to warn people who will never have any need for the information. It is not necessary to harness the mass media in order to prevent a school from hiring a teacher or a synagogue from appointing a rabbi who is not appropriate for the position. There are other ways of accomplishing that end. There are forms of communication that do not require informing the populace at large. What is the motive of the journalists who engage in this type of reporting? Rare is the publication directed by tzaddikim concerned solely for the welfare of the community. Usually, the motive is to sell copies. That is definitely an example of impure motivation that Chofetz Chaim says must be purged before one can take action for to’eles.

BE: What about the so-called gedolim genre, the type of work where the author has to decide whether to gloss over foibles or to report them in a sincere and responsible way?
RJDB: Reporting foibles for the sake of reporting foibles serves no constructive purpose. Even though these people are not alive and such reports may not fall into the category of lashon hara, there are other serious issurim. Not long ago, somebody alleged that a certain rabbinic personality who is no longer living was no great genius; he was a man of average intelligence. In context, the purpose was to teach students that one does not have to be a genius to be a gadol b’Yisrael. That is certainly a to’eles; I understand the rationale for telling this to a group of talmidim. But what is the purpose of imparting this information to all and sundry? What is the point of informing everyone that Rabbi X had only mediocre talent? No point whatsoever.

BE: Is there any halachic basis for omitting photographs or other images of modestly dressed women? That’s a convention amongst a certain subset of publications today.
RJDB: I do not know what the prohibition might be. Maybe I am missing something, but I do not think that an appropriate photograph appearing in a newspaper arouses prurient interest. It is my impression that such photographs did appear on occasion in Orthodox European publications.

I presume that the people who do not want to publish tasteful photographs are making business decisions rather than halachic ones. They do not want to be boycotted. But I do not see a cogent reason for objection to modest pictures.

BE: What do you believe Orthodox publications should be doing that they are currently not doing, or perhaps not doing sufficiently?
RJDB: They should be presenting serious hashkafah (Jewish thought)—not “pop hashkafah”—history, biographies as well as “recreational” talmud Torah.

If you want people to read an article, it must appeal to their interest and focus on a topic that engages them. The topics do not necessarily have to have a practical application. To give an innocuous example: The late Louis Rainbowitz used to write a column in The Jerusalem Post on the flora and fauna of Scripture. It was hardly the most significant or most pressing topic. But he was an excellent writer and he succeeded in making the subject interesting. The column appeared for years on a weekly basis and must have appealed to readers. That is what I would term “recreational.” That is an area in which the media are uniquely capable and can produce material that will be edifying and also provide talmud Torah l’rabbim, Torah education for all.

BE: How does one publish “recreational Talmud Torah” and avoid pitfalls?
RJDB: I think one should exclude areas in which there are serious issues that are either complex, unclarified or in which there exists a significant difference of opinion. A popular publication is not the forum to discuss the intricacies of an eruv in a major metropolitan area. That subject is much too technical and complicated. There are indeed genuine differences of opinion with regard to some points. Differences of opinion aired in the media often acquire the tone of a debate. And everyone likes a debate. But debates are not a classic mode of talmud Torah for good reason. Debates center on the debaters who then seek to score debater’s points. That is not Torah lishmah (Torah for its own sake). That does not mean that you have to present all matters as univocal. Studied, dispassionate presentations of differing views are one thing and debates are quite another. Halachah is not entertainment. It may be entertaining, but it’s not entertainment.

BE: What else might today’s Orthodox journalists and their audiences keep in mind?
RJDB: Misinformation and skewered values are ubiquitous and widely disseminated. The need of the hour is availability of reliable information addressed to any and all, the highly educated and the less educated, presented in language and form comprehensible to the individual reader. Most importantly, the information and values must be unadulterated and uncompromised. Torah-focused media are uniquely positioned to further this goal.

 

 

AN INTRIGUING PARALLEL

By Rabbi Dr. J. David Bleich 

It occurred to me not long ago that a close comparison may be drawn between the prohibitions against lashon hara and American constitutional jurisprudence regarding commercial speech. The First Amendment was never regarded as providing absolute protection to commercial speech. It was never regarded as allowing someone to advertise snake oil as a panacea for cancer. The government can restrict such speech; the government can criminalize it; the government can penalize a person who engages in such speech. However, in a seminal case, Central Hudson Gas & Electric, the Supreme Court established the parameters of the restrictions that may be imposed on commercial speech. The Court did not wave a judicial wand and proclaim that when the First Amendment says Congress shall make no law with regard to the abridgment of freedom of speech, it does not mean commercial speech, because commercial speech is not “speech” and therefore Congress can impose any restriction it wishes. Instead the Supreme Court said that commercial speech is “speech” and is included in the First Amendment. However, because commercial speech is a special category of speech, the freedom of commercial speech is limited; it is not absolute.

Courts read all kinds of things into constitutional texts that I cannot find there, but that is how our judiciary functions. The Court then proceeded to spell out the limited ways in which such speech may be regulated. The Court presented a list of criteria that must be satisfied to establish that a restriction placed on commercial speech is constitutionally permitted. The government may control speech designed to promote crime or fraud; misleading or fraudulent speech is not protected. But the government can restrict commercial speech only when the restriction is designed to achieve a legitimate state interest, i.e., when the state finds a to’eles. More significantly, it can restrain such speech only if the restriction it imposes is narrowly tailored to accomplish the state interest. The government cannot with one fell swoop ban all speech relating to a particular commercial matter. Not only must there be a causal relationship between the legislation and its social purpose but the legislation must permit only the least restrictive means that can achieve that purpose. If one compares the criteria for affirming restrictions that may be placed upon commercial speech with the Chofetz Chaim’s list of conditions that must be satisfied in order to speak about other people’s personal matters it turns out that Halachah restricts all speech in a manner that is the mirror image of how constitutional jurisprudence permits limitation of commercial speech. The Torah regulates all speech by means of issurim of lashon hara and rechilus with permitted exceptions that are remarkably similar to what emerges as the limitations that may constitutionally be placed on commercial speech. Speech regarding people is proscribed save for speech designed for a to’eles. Even such speech is restricted unless it will actually achieve the to’eles and the legislation is narrowly tailored to do so.

The starting points are polar opposites. Halachah prohibits speech regarding people and personal matters but permits such speech when the requisite criteria are fulfilled. Constitutional jurisprudence permits all speech, even commercial speech, but bars some form of commercial speech on the basis of remarkably similar criteria.

But Halachah adds a further limitation upon permitted speech. The to’eles dare not be accompanied by an admixture of any personal motive. That leads to a terrible dilemma. If one knows somebody to be a poor tailor, it is perfectly acceptable to tell another person not to patronize that tailor unless the person giving such advice also harbors a dislike for the tailor. The fact that one dislikes the tailor has nothing to do with his lack of talent as a tailor. But if the person who reveals the tailor’s lack of skill also harbors ill will against him, he is acting with “actual malice”—and that he dare not do. The result is an unavoidable predicament: A person has an obligation to prevent financial loss from occurring to another. There is an obligation to prevent the buyer from suffering damage by warning him that the tailor produces ill-fitting garments; on the other hand, since he also harbors personal animosity toward the tailor, he must be silent. But if he remains silent, he will allow a loss to ensue. How does one deal with such a dilemma?

The Chofetz Chaim’s sole solution is that a person must overcome his emotions and act with only pure motives. But what if one does not succeed in overcoming one’s emotions? Ask the paper’s posek. I assume he would say “Shev v’al ta’aseh,” a person should ordinarily prefer a passive transgression to an active one.

This article was featured in Jewish Action Winter 2017.