I. Lashon Ha-Ra in Modern Society
To function properly, a modern society requires a relatively free flow of important information. However, Judaism prohibits repetition of damaging information, even if it is true, as Lashon Ha-Ra. How can a political candidate campaign for office if he is unable to say, for example, that his opponent is underqualified? How can a newspaper report on a candidate’s misdeeds, relevant as they may be? While we intuitively see the importance of responsible negative speech in such circumstances, of voters’ and constituents’ “right to know,” we need to frame such an attitude within halakhic parameters.
Two avenues of Jewish law offer promise. The first is that of to’eles (benefit). Within certain other conditions, lashon ha-ra is permitted when there is a clear benefit to its recipients. While this category of permission requires further refinement before broad application, it seems like an important and relevant qualification to the laws of lashon ha-ra.
Another avenue is that of nisparsem ha-davar (already publicized). Once negative information has already been widely disseminated, there may be room to allow further publicization since, more or less, “everyone knows it.” Recent responsa and articles in Israel have advanced such a thesis (see Be-Mareh Ha-Bazak, vol. 6 no. 96 n. 1 – PDF; R. Shlomo Aviner, She’eilas Shlomo, vol. 3 no. 485; R. Azriel Ariel, “Lashon Ha-Ra Be-Ma’arekhes Tziburis Demokratis” in Tzohar, no. 5 – PDF). However, with a good deal of trepidation, I respectfully dissent from this view.
II. Already Publicized
The arguments are strong to permit repetition of damaging information that is already well known. R. Yisrael Meir Kagan, in his classic work on the laws of forbidden speech, Chafetz Chaim, repeatedly states this leniency explicitly:
- In explaining the Talmudic statement that you may call someone a sinner if he violates a rabbinic prohibition (Shabbos 40a), the Chafetz Chaim (part 1, ch. 4 n. 7) asks how we can permit such a blatant violation of lashon ha-ra. He answers that this must refer to someone who violates the rabbinic prohibition publicly. Because such a violation is well known, the prohibition of lashon ha-ra does not apply at all to the information.
- Similarly, the Talmud (Pesachim 112b) tells how R. Yehudah Ha-Nassi referred to residents of one town as “scoffers.” How, the Chafetz Chaim (ibid., n. 41) asks, can such a negative declaration be permitted? He answers that since their behavior was well known, one is entirely permitted to discuss it.
- Similarly, in explaining the view of Tosafos, the Chafetz Chaim (ibid., ch. 2 n. 1 in parentheses) states that when one person publicly berates another, you are allowed to relay that information because lashon ha-ra does not apply to it.
- In explaining the view of Rabbenu Yonah, the Chafetz Chaim (ibid., ch. 3 n. 12) suggests that the case in which he permits repeating negative information is one in which the action was done publicly, so the information is already publicized.
- The Gemara (Gittin 31b) tells how either Rav Huna or Rav Chisda refused to rise when the Torah scholar Geniva passed, failing to show him respect. He explained to his colleague that Geniva caused fights among scholars and therefore was unworthy of such respect. The Chafetz Chaim (ibid., ch. 8 n. 16 in asterisk), troubled by the negative speech, explained that Geniva’s trouble-making actions were widely known and therefore the criticism was permitted.
The conclusion jumps off the page that repeating widely know information does not fall under the prohibition of lashon ha-ra, yet the issue is not as simple as may seem.
III. In Front of Three
The Chafetz Chaim contains contradictory statements that complicate the matter:
- The Chafetz Chaim (ibid., ch. 2 par. 3) discusses the leniency, according to the Rambam and some others, of repeating negative information that is stated in front of three people (be-apei telasa). The assumption is that the information is no longer private and will eventually become widely publicized. However, you may only repeat such information under specific conditions (detailed in subsequent paragraphs), including that you only mention it incidentally and you do not intend to spread the information. How can that be, if public information does not fall under the prohibition of lashon ha-ra? While we can easily distinguish between the cases, further statements reveal that the issue is more complicated.
- In paragraph 4 of the chapter, the Chafetz Chaim states that if the information you heard in front of three people becomes well-publicized, you may repeat the name of the person who told you. The wording implies that you may only set aside the condition against repeating the name of the person who told you the information but not the other conditions. Meaning, you may still only mention the information in passing and without intent to spread the information. However, well-publicized information still falls unders the guidelines of apei telasa.
- In discussing lashon ha-ra about a child, the Chafetz Chaim (ibid., ch. 8 par. 3) states that guidelines on well-publicized information can be found in ch. 2 par. 3, the section about apei telasa. It does not say that lashon ha-ra does not apply at all but, implicitly, that the above conditions must entail before the information can be repeated.
- When discussing the issue of a persistent rumor (yatza kol), the Chafetz Chaim (ibid., ch. 7 par. 4) does not say that the laws of lashon ha-ra do not apply. Rather, readers are directed to the above section of apei telasa and its attendant conditions.
- You may not state that someone violates Jewish law, including that he does not learn Torah (Chafetz Chaim, ibid., ch. 4 par. 2). Even though it is generally public information that a person does not learn Torah, you may still only repeat such information under the conditions of apei telasa (ibid., n. 6).
R. Binyamin Cohen, in his Chelkas Binyamin commentary to Chafetz Chaim (part 1, ch. 2 CB n. 10), compiles this list of contradictory rulings and leaves the matter unresolved. I’d like to suggest the following explanation that, I believe, accounts for every case listed above.
IV. Granting Permission
There are two interpersonal elements to lashon ha-ra: damaging the person about whom it is told (i.e. causing negative consequences) and insulting him. Why is information told to three people treated differently than totally private information? The commentators explain that since the information will quickly become public knowledge, your telling it does not harm the individual. The damage has already been set in motion.
Then why can’t you freely repeat the information? Because, I suggest, you are still insulting him. Even if everyone in the world knows about a politician’s marital problems, he will still be hurt when people discuss it. As the Gemara (Bava Metzi’a 58b) says and Rashi explains, you are forbidden to call someone an insulting nickname even if everyone does it and he is used to it (dash beih); frequency does not remove pain but dulls it through surrender. Therefore, you are only allowed to repeat lashon ha-ra that was told to three people under specific circumstances in which you do not intend to hurt the subject. However, if a person indicates that he does not object to the insult, if he forgives and permits it, then others may freely discuss the information. The information no longer falls under the prohibition of lashon ha-ra in any way.
I suggest that the leniency of publicized information (nisparsem ha-davar) only applies to an act committed in front of others. By sinning in public, the actor is declaring that he does not care whether other people know of his infractions. He does not consider discussion of his actions insulting. He gives permission, thereby removing the prohibition of lashon ha-ra. However, when information about a private act is publicized, the prohibition still applies, albeit under the category of apei telasa.
As we review the first list above, we see that all the cases where the prohibition no longer applies (arguably) involve public actions: a public sinner, a city that is publicly full of scoffers, someone who publicly berates others and a scholar who causes fights among and in front of his colleagues. The second list involves acts in general, presumably only private in contrast to those in the prior list (refraining from studying Torah is not an act committed in public).
If all this is correct, then the leniency of publicized information cannot always be used in the public arena. A candidate campaigning for election may freely discuss his opponent’s public actions but may not mention those committed in private, even if widely reported in the media.
Additionally, according to the initial understanding off this subject, you may repeat any information that is well known. Therefore, once the information has left the public arena and has been generally forgotten, you may no longer repeat it. My proposed understanding is that the subject has given permission to others to reveal the information. Presumably, this permission has no time limit.
We began by discussing two avenues of leniency that allow for public discussion within the parameters of the lashon ha-ra laws. The permission of publicized information is more limited than we had initially thought, even if it provides some public leeway. The leniency of public benefit offers another area with rich potential for contemporary application.
(See this post where we explored the issue of public benefit regarding lashon ha-ra in history: link)