Freedom of Press and Constructive Lashon Hara

The conditions for speaking lashon hara for a constructive purpose does not apply in a situation where strict adherence to the conditions will completely offset its achievement * Media reporting is of greater importance in democratic states, than in small communities * The media was initially devised by people with leftist views, therefore it is especially important to balance it with positive values

In the previous article I explained the importance of a free and diverse media, to critique government institutions and people with power and authority. And although it involves admonishing others, and often the reports are inaccurate and sometimes even erroneous, nevertheless, based on two halakhic foundations, freedom of press is permissible, and even proper: 1) Because of the public benefit of the media, on account of which those in authority and power are reluctant to commit crimes in order to further themselves or those close to them at the expense of the public. 2) Recognizing the numerous benefits of having a free press, the public in democracies agreed to allow the media to operate, and consequently, it functions within the framework of the rule ‘dina d’malakhuta dina’ (the law of the country is binding).

Nevertheless, in order for the criticism to be within reasonable limits, basic rules of fairness were established: members of the press only deal with individuals and institutions that the public benefits by shedding light on information about them; the journalist must check the information in his possession, as well as give those criticized the right to respond; and of course, those censured have the right to recruit journalists to help them retaliate (somewhat like the ‘invisible hand’ of Adam Smith).

Following the previous article, I received a number of important comments and questions. I will present a few of the arguments, and attempt to contend with them.

The Rules of Lashon Hara (Defamation)

The main argument is that according to what is explained in the book ‘Chofetz Chaim‘ (Rule 10:1, 14), working in the media necessarily involves the prohibition of lashon hara. And although in principle it is permissible to speak lashon hara for a constructive purpose, there are seven conditions for this, and upholding them does not allow for a free press. These are the conditions: 1) The speaker must have witnessed the incident himself, rather than knowing about it from rumor. 2) The speaker should reflect thoroughly that he has indeed understood correctly what happened. 3) The speaker should first approach the transgressor privately and rebuke him with gentle language, and only if the transgressor does not listen, when it is beneficial, is it permissible to defame him. 4) Not to exaggerate or lie even a little. 5) The speaker must have pure intentions (“to’elet,” lit. “purpose”), and not out of hatred or revenge. 6) If the purpose of speaking lashon hara can be achieved in another way rather than speaking it, it is forbidden to speak lashon hara. 7) By speaking lashon hara, the transgressor should not be caused more damage than would be appropriate as determined by a Beit Din (court of Jewish law) reviewing the case.

Ostensibly, a journalist cannot uphold these rules, since his scoops are usually not based on cast-iron certainty, and consequently, it ends up he violates the first and second conditions. Seemingly, the third and sixth condition also cannot be met, since a journalist does not first try to admonish the offender, and does not check to see whether the damage can be prevented in another way. If he were to try, chances are the offender would apologize and commit to change his ways, or find another way to prevent the publication. But in practice, he may very well continue to break the law without the journalist having a way to continue monitoring him. Thus, if a journalist acts in accordance with the third and sixth conditions, he will betray his job as a journalist, and fail in deterring offenders. The seventh condition cannot be met either, since according to it, one can speak lashon hara only if the offender is not caused more damage than would be appropriate as determined by a Beit Din. In practice, there is no way to know what damage will be caused as a result of the publication, because it depends on the status of the offender, public opinion, the timing of publication, and numerous other factors.

The Heter According to Halakha

However, it seems that in principle, even according to what is explained in the book ‘Chofetz Chaim’, it is permissible to maintain a free press, because all the conditions are based on to’elet, and if the to’elet cannot be achieved according to the seven conditions – as long as the goal is for the benefit, the ‘Chofetz Chaim‘ also agrees that one may speak lashon hara without them.

I will illustrate with an extreme example: Reuven asked Shimon if he should do business with Nimrod. Simon does not know if it’s true or not, but he heard a rumor that Nimrod’s three former partners had been murdered and their bodies buried in the concrete foundations of high-rise buildings. If he were to tell this rumor, it would turn out that he transgressed most of the conditions, because the rumor is uncertain, and he also did not try to admonish Nimrod, etc. Could it be forbidden to tell this rumor?

A less extreme example: Nimrod’s three former partners, who were extremely wealthy, went bankrupt while Nimrod doubled his fortune every time. Nimrod is rumored to have deceived them and incriminated them unlawfully, and they remain silent because Nimrod promised them a salary for the rest of their lives in exchange for their silence. The rumors of course are unfounded. Could it be that for this reason Shimon is forbidden to warn Reuven about Nimrod?!

Another example: Reuven asks Shimon if he should make a shidduch for his daughter to x. Shimon believes that x is a con artist, corrupt, and violent. The problem is that Shimon hates x, and thus, according to the fifth condition that speaking the lashon hara be with pure intent, he is forbidden to tell this to Reuven. Could it be that according to halakha, Shimon should say nothing and allow Reuven’s daughter to marry x, who may be a violent criminal?!

To put it another way, the seven conditions lay down rules of principle, but the overriding condition of all of them is the consideration of benefit to others. Consequently, when it comes to a significant risk to others – even when the conditions are not met, the questioner must be saved from the concern of danger or damage.

Life in a Small Community versus a State Framework

All this refers to damage caused to a single person – how much more so when speaking of the media, which deals with saving the public. If we delve deeper into the examples given in the tenth rule in the ‘Chofetz Chaim’, we find that it is speaking about a framework of life in a small community where there is almost no need to speak lashon hara when it is uncertain, because everyone knows each other, and even without being told a rumor, people usually know to beware of cheaters and exploiters. In addition, even when the person asked remains silent because he does not know how to answer with certainty, the questioner can understand from his silence that there is room for concern. Also, since these are people who know each other personally, the possibility of first admonishing the transgressor or preventing the damage in other ways, is a reasonable possibility, and there is no need to spread the lashon hara publically.

Nowadays, however, thanks to means of transportation and communication, people live in much larger settings. If there was no free press, people would be able to lie and deceive a very large populace who are unable to get to know them personally. And one of the effective means against such individuals is a free and hard-hitting media. Thus, according to the basic principle of speaking lashon hara for benefit, in large settings it is necessary to have a media that blows the whistle and is critical, although, with a warning attached that matters reported on are indefinite, and only after a police investigation and legal inquiry can more reliable information be obtained. And this is indeed the credibility the public attributes to the media – limited trust.

Should There Be a Free Press in a Religious Society

Some argue that although a free press in secular society is valuable, but should be avoided in religious society. For in religious society, when a person has a claim against another, a public figure, or an institution, he must bring his claim before a Beit Din (court of Jewish law) or a rabbi, and not make it public. And since it is forbidden to have a free press in a religious society, consequently, it is also forbidden to read or pay attention to investigations dealing with the religious society.

This claim is important, and I wish we were able to act accordingly, but it seems to be possible only in an ideal society where the Beit Din has the authority to examine every claim, and all of the religious and Haredi public – with all their various factions – are obliged to accept the Beit Din’s exclusive jurisdiction. In our current situation, however, there is no Beit Din agreed upon, until quite often, the factions of the religious and Haredi public turn to the secular courts to resolve difficult disputes. Not only that, but since the Haredi and religious public does not have a free press according to the accepted format, it has problematic replacements, in the form of street ads or partisan newspapers that avoid any criticism of those close to them, and defame opponents disproportionately. A free press cannot prevent all the problems, but it could improve to some degree the ability to correct them. For in a state of partisan rivalry, the criticism leveled is sweeping, extreme, and one-sided, lacking the ability to focus on the real problems of good governance, and individual or institutional corruption. It turns out that sometimes people who are more committed to moral values, ​​are unable to overcome public or institutional fraudulence due to a lack of effective public criticism.

The Worldwide Problem of Conservatives

In general, those with a religious and conservative stance tend to criticize the free and critical press, because it harms the dignity of those in authority, and because it is recalcitrant and unsupervised. On the other hand, those with left-wing liberal positions willingly support the free press, since from the liberal side that advocates freedom, the value of freedom of expression is implicit, and from the leftist side fighting for equality, any harm of power or authority is a positive thing intended to promote equality. The upshot is that the media as a whole was built on the values ​​of the liberal left, and most journalists are predisposed to harshly criticize groups and personalities that represent values ​​of religion, nationalism, tradition, family and conservatism, which from their point of view endangers the values ​​of liberty and equality. In practice, the outcome is that the media throughout the world is very left-leaning.

The solution: understanding the positive value of the media and creating quality, right-wing and religious media which will utilize the media’s beneficial tools to reinforce positive values, ​​and for harsh criticism when these values ​​are harmed by movements, institutions, or individuals.

With the help of God, I will dedicate another article to the rules of morality worthy of journalists and media consumers in accordance with halakha.

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew.

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