Halakhot of Lashon Ha-ra and Rekhilut Part 3
Based on a shiur by Rav Shlomo Levy
The Rambam writes in Hilkhot Sanhedrin (21:7):
"It is forbidden for a judge to hear [the argument of] one of the litigants before his fellow arrives, or not in the presence of his fellow. And even a single statement is forbidden, as it says, 'Listen among your brethren." Whoever hears from one [in the absence of the other] violates a prohibition, as it says, 'You shall not bear false rumors'."
According to the Rambam, the verse, "Lo tisa sheima shav" ("You shall not bear false rumors" – Shemot 23:1) establishes a prohibition against a judge listening to the arguments of one litigant in the other's absence. The Rambam continues, "This prohibition includes a warning against accepting lashon ha-ra or speaking lashon ha-ra, and rendering false testimony." Here we have the Biblical source for the prohibition against accepting lashon ha-ra spoken about another. This source is mentioned as well in the Gemara, at the end of Masekhet Pesachim, and in the Mekhilta there in Sefer Shemot. When we speak of "accepting" lashon ha-ra, we refer not to merely listening to lashon ha-ra, but to believing the information conveyed.
The question arises, wherein lies the particular severity of accepting lashon ha-ra? After all, the listener remains entirely passive; he does nothing. Yet, Halakha holds him accountable not only for taking part in the violation of a prohibition ("lifnei iver lo titein mikhshol"), but rather for himself violating a prohibition. What more, Chazal go so far as to say, "The punishment of the one who accepts [lashon ha-ra] is greater than the one who speaks." Why?
If we perceive the prohibition of lashon ha-ra as rooted primarily in the harm caused to another person, as we discussed in the first shiur of this series, then the answer becomes perfectly clear. It is only at the moment the listener accepts and believes the information that the damage is done. Only at that moment does the relationship between the listener and the subject of the lashon ha-ra change. Accordingly, the listener himself, in a certain sense, actually inflicts the harm. If he would refuse to accept the information told to him, no harm would result from the lashon ha-ra spoken.
The question, however, remains, what happens if the listener does not want to violate the prohibition against lashon hara, but he does, unfortunately, believe the person who told him the story?
The answer is, quite simply, that this should never happen. If the listener has no intention of doing anything in response to what he heard, given the lack of conclusive proof, then why does he think he believes the information? What effect has this "belief" had that he should be held liable for accepting lashon ha-ra? He must therefore persuade himself that he does not believe the story, given the fact that it has no practical impact in any event.
As we saw, the Rambam derives the prohibition against accepting lashon ha-ra from the same verse that introduces the prohibition for a judge to listen to the arguments of one litigant in the other's absence. Why? How do these two prohibitions relate to one another?
The Gemara in Masekhet Shavuot, as well as the Rambam, at the end of the aforementioned halakha, associate the prohibition against listening to a single litigant with the more general rule of "mi-devar sheker tirchak" – "you shall distance yourself from falsehood." Why would a judge be guilty of "falsehood" by listening to one litigant before the other arrives? After all, he will, ultimately, listen to the second litigant's arguments, as well, and reach his decision on the basis of the claims of both.
When a judge hears one side in the other's absence, the second litigant cannot defend himself and explain the claims from his viewpoint. This affects the trial in two ways. On the one hand, the litigant presenting his claims receives greater confidence from this situation, which will undoubtedly affect the judge's capacity to render a fair judgment. Additionally, the judge himself is convinced of the correctness of the present litigant's arguments, since he does not hear the other side. Chazal therefore considered this situation one of "falsehood," since this hearing will very likely result in an incorrect ruling.
This also explains the connection to accepting lashon ha-ra. When one hears lashon ha-ra, the subject is not present to defend himself or explain his version of the story. Halakha therefore forbids the listener from believing the story, just as a judge may not listen to the claims of one litigant in the other's absence.
The Chafetz Chayim proves from the association between these two halakhot that the prohibition against accepting lashon ha-ra forbids not only believing the information, but even listening to it at all. In the situation of the court hearing, Halakha forbids the judge from even listening to one litigant in the other's absence, regardless of whether or not he believes the arguments he hears. Similarly, then, one may not even listen to lashon ha-ra, irrespective of his response to what he hears. The Chafetz Chayim also addresses the question as to whether this constitutes a Torah violation or a rabbinic prohibition, and he concludes that listening to lashon ha-ra is in fact forbidden by the Torah itself. Listening often leads to believing, or, at very least, leaves some impression upon the listener even before he consciously accepts the information. Therefore, listening alone constitutes a Torah violation.
This then gives rise to the question, what does one do when he hears negative information spoken about another?
The Gemara in Masekhet Nidda (61a) cites the following comment in the name of Rava: "Lashon ha-ra – although one ought not accept it, he ought to concern himself with it." What precisely does the Gemara mean, that one may "concern himself" with lashon ha-ra that he hears? The Gemara explains this halakha through a story of rumors that had spread that a certain group of people committed murder. They came to Rabbi Tarfon and asked that he give them asylum from those who might try to act upon the rumors. Rabbi Tarfon replied, "What can I do? If I don't hide you, they will see you. But should I hide you? The Rabbis said, 'Lashon ha-ra – although one ought not accept it, he ought to concern himself with it'!" Refusing to give them refuge, Rabbi Tarfon instead instructed them to hide themselves. Rashi and the She'iltot argue as to what "concern" troubled Rabbi Tarfon. Rashi explains that Rabbi Tarfon was in fact concerned that these people murdered, and therefore was afraid of granting them protection. The She'iltot took a different approach. He explains that Rabbi Tarfon was concerned lest the authorities find the suspects hiding under Rabbi Tarfon's protection, and they will thus punish him, as well. Thus, according to Rashi, it was permitted for Rabbi Tarfon to suspect them of murder on the basis of the rumors. According to the She'iltot, by contrast, he may not suspect them of murder because of the rumors, and the "concern" spoken of in the Gemara refers to a different concern entirely.
The Gemara in Masekhet Gittin (47a) tells another story relevant to this issue:
"A certain man sold himself to the Ludeans. He came before Rabbi Ami and said to him, 'Ransom us.' He said to him, 'It states in the mishna: One who sells himself and his children to idolaters – they are not ransomed; the children, however, are ransomed after their father's death because of [the fear of their] degradation. All the more so here, when there is the concern of death.' The rabbis said to Rabbi Ami, 'This Jew is an apostate… ' He said to them, 'Perhaps he eats [non-kosher food] only for enjoyment [rather than as an expression of apostasy].' They said to him, 'But there are times when he had permissible and forbidden [food] in front of him, and he ate the forbidden instead of the permissible!' He said to him, 'Go – they do not allow me to ransom you.'"
Rashi there explains that witnesses testified to the man's having partaken of forbidden food when he had the option of eating permissible food. This would imply that in the absence of witnesses, we would save the captive despite the likelihood that he is an actual apostate. This appears to contradict somewhat Rashi's own comments in Masekhet Nidda, by which one may suspect the accuracy of the rumors he hears.
How, then, should we define "concerning oneself" with the lashon ha-ra he hears?
Needless to say, we deal here with a very difficult and fine definition. On the one hand, believing is forbidden; at the same time, however, taking precautions is permitted. If people talk of someone as being dishonest, one may not believe the rumors, though he may make a point of refraining from business contact with him. Where do we draw the line?
We must distinguish between an overall attitude towards the person and the concrete response to a specific event. The Maharik was asked to address a case of a person suspected of having had an illicit relationship with a woman, on account of which the community imposed on him several sanctions, such as refusing to call him up for an aliya. The Maharik writes that first and foremost, it is forbidden to despise such a person, just as it is forbidden to despise any Jew, since the matter could not be proven. Moreover, the Maharik adds, the provision permitting "concerning oneself" with information spoken about someone does not allow concrete actions against him, and the community therefore did not have the right to issue these sanctions.
We have, therefore, two different planes. On the one hand, there is the general attitude towards that individual, which expresses itself in normal relations from one Jew to the next: giving charity, returning lost items, calling to the Torah, etc. In all these matters, unconfirmed reports about a person may not affect how people treat him. But secondly, there is the personal level of interaction. If a person had intended to conduct some business dealing with the individual in question, he may decide due to the rumors to choose someone else with whom to deal. Although this decision will cause the subject of the rumors financial loss, this loss is indirect, as it involves merely the loss of profit, rather than outright infliction of harm. Clearly, however, it would be forbidden to actively cause one harm on the basis of rumors spread against him.
May one convey rumored information to others, so that they, too, will know to take the appropriate precautions? Commenting on the Rosh in Masekhet Nidda, the Ma'adanei Yom Tov (6) writes:
"It emerges from here that just as one ought to concern himself [with the rumors he hears] if he may incur damages, the same applies if harm can possibly befall others. For why should there be a difference? Undoubtedly one must concern himself with the potential harm to others just as he must concern himself with his own harm."
According to the Ma'adanei Yom Tov, a person may and in fact must convey the information to others so that they, too, can take the necessary precautions to avoid incurring damage. The Chafetz Chayim, however, appears to disagree with this position. His reasoning would seem to be that in such a situation, one of two people will suffer harm – either the unsuspecting party whom one wishes to tell, or the subject of the rumors. Since one cannot confirm the accuracy of the rumors, he has no right to decide to whom he will cause harm and to whom he will not.
What is the halakha in a case where one has definitive, negative information about another? If one knows with certainty something negative about another person and he wishes to warn others, he may, and the listener may accept and believe the information. The halakha of "concerning oneself" applies only to uncertain reports and rumors, not to definitive information.
However, the Chafetz Chayim sets a number of conditions on this provision permitting one to relate definitive information. First, the teller must have only sincere motives in conveying the information, and may not have any interest in causing the subject harm. Secondly, it is forbidden to go ahead and cause harm to the person because of the information told. He must be treated as if the information is uncertain, despite the fact that the facts in this case are known to be true.
Clearly, we deal here with a very narrow boundary, and one must try to "walk in between the drops" with extreme care. This is a situation of two conflicting values, and therefore one's intentions and motives play a particularly critical role.
Beyond all that we discussed, there arises a separate issue, that of "lifnei iver" – facilitating a violation on the part of another. In the case of lashon ha-ra, the listener facilitates the speaker's transgression, and the speaker facilitates the listener's transgression; therefore, both the speaker and listener are in violation of the prohibition of "lifnei iver." For this reason, as well, it is forbidden to even listen to lashon ha-ra, as doing so allows the speaker to violate the prohibition.
The Chafetz Chayim takes a particularly stringent stance in this regard. But the obvious question arises, if one may not listen to negative reports about others at all, how will he know to take precautions? The Chafetz Chayim answers that the moment a person begins telling something negative about another, the listener must stop him and ask whether the information has any practical use. Only if the speaker answers in the affirmative may the listener agree to continue listening.
One must ensure not to view this as a blanket "heter" permitting one to always find out information about those around him in case at some point he may wish to engage in some kind of joint venture with them. This is clearly forbidden. Only when dealing with a specific, concrete issue may one listen to and concern himself with the information in accordance with the guidelines outlined above.