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Lashon Ha-ra in the Digital Age Part 1: Introduction

 
Lashon Ha-ra on Social Media: A Fundamental Change?
 
In the last few weeks, we have discussed the potential issues that arise when invading the privacy of others with no intent to spread the content discovered, as well as the prohibition against breaching confidentiality. In those cases, the information involved was neutral. However, when the information being shared is negative and damaging, we must also deal with the prohibition against gossip, colloquially known as lashon ha-ra.
 
As we noted in our introduction to this series, for many people, it is with this topic that a course on “Halakha in the Age of Social Media” would begin. However, as we will see, in many respects, the conceptual questions that are raised for lashon ha-ra in the various media we have explored are straightforward. Facebook has merely provided new and wider audiences to target, but has not radically changed the parameters of the discussion. Destroying someone’s reputation in front of a global audience is obviously a more egregious violation of lashon ha-ra, but again, the classical sources already develop the notion that public lashon ha-ra is worse than private gossip, even if they could never have imagined the ease with which a modern person can make something known to people all over the globe.
 
There are a few issues that are not merely quantitative, but require rethinking of categories. One of these is the topic that we have discussed for the last two weeks can we reach a point where information is sufficiently public that it is not problematic to further discuss it? This must be examined from the standpoint of lashon ha-ra, just as we did from the standpoint of the prohibition against breaching privacy. We must also explore the implications for putting information out in the world that can almost never be retracted. Therefore, after we have set up the basic framework, we will return to the category of “in front of three” and the interpretations that relate to gossip rather than revealing secrets.
 
There is also some discussion in early halakhic sources of unique problems that may be caused when gossip is shared anonymously. This problem has been exacerbated by the internet, and much psychological research has been published illustrating the disastrous effects that internet anonymity has caused by generating “disinhibition.” Again, while the basic issues that drive this problem are similar to those found in classical sources, the applications are different.
 
Finally, we will explore the potential cases of societal benefit that override or allow breaching confidentiality and spreading negative information.
 
Defining Terms: What is lashon ha-ra/ lishna bisha?
 
The Torah writes as follows: “Do not go as a talebearer (rakhil) among your people; do not stand [idly] by the blood of your friend, I am the Lord” (Vayikra 19:16). This is the source for the prohibition against lashon ha-ra (Hebrew) or lishna bisha (Aramaic), evil speech. As we have noted, many early commentaries, Geonim and Rishonim, understood this as the source for the prohibition to breach confidentiality. However, the understanding accepted by most modern authorities is that outlined by the Rambam and recorded by the Chafetz Chayim — namely, that it refers to gossip. In this model, gossip, broadly speaking, consists of three different sins.
 
  1. Rekhilut is a term used by the Rambam (Hilkhot De’ot 7:2) to refer to reporting what others have said. For example, informing person A that person B spoke badly about him is rekhilut.
  2. Lashon ha-ra (not the general category but the specific prohibition) refers to conveying accurate negative information about others (Hilkhot De’ot 7:3).
  3. Hotza’at shem ra refers to the spreading of false negative rumors, or slander.
  4. In addition to the three biblical prohibitions, there are the rabbinic prohibitions called collectively avak lashon ha-ra, the dust of gossip. These prohibitions include hinting about the existence of negative information by conspicuously refraining from talking about person X, as well as praising someone in front of his or her enemies, knowing that the praise will encourage insults. (Hilkhot De’ot 7:4)
 
Some Rishonim agree that lashon ha-ra refers to gossip but do not use the same terminological distinctions of the Rambam. For example, the Sefer Chasidim (Margolies edition, 44), the twelfth-century German pietistic work, defines hotza’at shem ra the way the Rambam defines lashon ha-ra, as truthful gossip, and the term lashon ha-ra the way the Rambam defines rekhilut. As we have noted before, the Talmud itself seems to use lashon ha-ra to refer to slander in at least one place, as detailed by the Sedei Chemed. [1]
 
We will primarily use the terms as they are used colloquially in accordance with the definitions provided by the Rambam and adopted by the Chafetz Chayim, though we must be aware that the widespread acceptance of these terms is relatively recent in halakhic literature. This does not speak to the legal implications, but simply to the categorization and terminology.[2]
 
There is another explanation we will return to, that of Rabbi Eliezer of Metẓ, in Sefer Yere’im (191). He claims that the prohibition of lishna bisha relates to being two-faced: speaking negatively of someone in a way the speaker never would in the subject’s presence. We will see the implications of this when we return to our discussion of “in front of three.”
 
Lashon Ha-ra: How bad is it?
 
The Talmud uses harsh rhetoric to highlight the gravity of this sin. The Talmud (Arakhin 15b) remarks that lashon ha-ra is as evil as the three cardinal sins — murder, sexual immorality and idol worship — combined. God is said to declare that HE cannot dwell in the same world as the consistent speaker of lashon ha-ra. God, as it were, joins forces with the angelic overseer of purgatory to punish those who commit this sin. The Gemara describes lashon ha-ra as killing three people: the speaker, the listener and the subject. While these statements are likely meant as exaggeration, they are still meaningful. Hyperbole highlights the gravity of the sin and the importance of avoiding it. [3] Thus, the disposition of the Talmud towards lashon ha-ra is crystal clear.
 
The Rambam (Hilkhot De’ot 7:1) succinctly indicates how damaging gossip can be and how it can literally lead to murder by connecting it to a tragic story from Tanakh, that of Do’eg the Edomite. When David flees from Shaul, he stops in the priestly city of Nov. Believing David to still be in the good graces of the king, as he is both his trusted servant and son-in law, they provide him with food, as well as with the sword of Golyat. The ensuing disaster is described in I Shemuel, Chapter 22:
 
Do’eg the Edomite, who was standing among the courtiers of Shaul, spoke up: “I saw the son of Yishai come to Achimelekh son of Achituv at Nov. He inquired of the Lord on his behalf and gave him provisions; he also gave him the sword of Golyat the Philistine.”
 
Thereupon the king sent for the priest Achimelekh son of Achituv and for all the priests belonging to his father’s house at Nov. They all came to the king, and Shaul said, “Listen to me, son of Achituv.”
 
“Yes, my lord,” he replied.
 
And Shaul said to him, “Why have you and the son of Yishai conspired against me? You gave him food and a sword, and inquired of God for him — that he may rise in ambush against me, as is now the case.”
 
Achimelekh replied to the king, “But who is there among all your courtiers as trusted as David, son-in-law of Your Majesty and obedient to your bidding, and esteemed in your household? This is the first time that I inquired of God for him; I have done no wrong. Let not Your Majesty find fault with his servant [or] with any of my father’s house; for your servant knew nothing whatever about all this.”
 
But the king said, “You shall die, Achimelekh, you and all your father’s house.”
 
And the king commanded the guards standing by, “Turn about and kill the priests of the Lord, for they are in league with David; they knew he was running away and they did not inform me.” But the king’s servants would not raise a hand to strike down the priests of the Lord.
 
Thereupon the king said to Do’eg, “You, Do’eg, go and strike down the priests.” And Do’eg the Edomite went and struck down the priests himself; that day, he killed eighty-five men who wore the linen ephod.
 
While the information shared was mostly true, the spin put on it by Do’eg, combined with Shaul’s explosive temper and paranoia, leads to a massacre. Hence, this story stands at the paradigm of lashon ha-ra that can actually kill.
 
Is lashon ha-ra really subject to law?
 
Before the Chafetz Chayim, there is relatively little halakhic literature about lashon ha-ra. While the Rambam devotes several laws to it, neither the Tur or Shulchan Arukh discuss it. The Magen Avraham (OC 156) includes it in his extensive list of laws that are left out of Shulchan Arukh.
 
Despite this, most modern authorities accept the basic framework of the Chafetz Chayim and treat it as law. However, Professor Benjamin Brown has argued that the absence of any similar material in early authorities may indicate that the project of the Chafetz Chayim was more novel than he realized or admitted. He argues that most authorities prior to the Chafetz Chayim understood lashon ha-ra to belong to the world of ethical principles rather than formal law, and thus actively chose not to subject it to classic legal analysis. The Chafetz Chayim, on the other hand, was generally convinced that when at all possible, ethical principles should be translated into hard and fast rules. Brown describes this process as follows:
 
…the traditional rule-centered genre in Jewish tradition is halakha, while the principle-centered one is known as musar. The Hafetz Hayim’s literary enterprise in this branch should therefore be considered as the halakhization of musar, or, if we allow ourselves a less accurate term, a legalization of ethics. [4]
 
While I believe that Brown’s claim is too radical, and we will generally proceed on the assumption that lashon ha-ra is subject to formal legal analysis, as most modern authorities do, his claim has merit and is worth considering. While both ethics and laws are critical to develop a complete Torah perspective on a topic, they are understood and applied differently. Thus, if we treat lashon ha-ra as law, if Brown is correct, the analysis will be overly formal and will not capture the issues with complete accuracy. This is also the approach taken by Rabbi Daniel Feldman in his masterful book about lashon ha-ra in the modern era, False Facts and True Rumors: Lashon HaRa in Contemporary Culture (YU Press/ Maggid, 2015).
 
Is lashon ha-ra really “true”?
 
Even if we accept the taxonomy of the Rambam and Chafetz Chayim, it may be too simplistic to refer to gossip as “true.” Rabbi Daniel Feldman notes that modern psychology sheds light on why lashon ha-ra, even when it consists of technically true information, may be prohibited, in part because even facts can be false.
 
Specifically, he notes that gossip, even if true, is almost definitionally only part of the picture. Partial information, even if technically accurate, can paint a dangerously misleading picture of the person being spoken about. Psychologists such as David Kahneman and Amos Tversky have argued that while we think that we are in control of how we think, the majority of what we think and do is not the product of our conscious mind. Rather, it is instead due to our instinctual reactions that happen beneath the surface. (The research Kahneman and Tversky did on these issues earned them the Nobel Prize in Economic Sciences in 2002, though Tversky received the prize posthumously.)
 
Kahneman summarized the central insights of their research in his ground-breaking Thinking Fast and Slow (Farrar, Straus and Giroux, 2011). He divides the functioning of the human mind into System 1 and System 2, metaphorical descriptions of the two ways in which human being assess the world around them. The first is quick, emotional and instinctual; the second is slow, logical and deliberate. People assume they are influenced primarily by System 2, but in truth most of our perceptions are products of System 1.
 
Among those instincts, are a series of heuristics, or psychological shortcuts, that we use to judge the truthfulness and integrity of people. The “halo effect” and “devil effect” (also described as the “horn effect”), for example, refer to our inclination to view people in light of our first impressions of them. If our first encounter is positive, we tend to view even their questionable behavior as meritorious (following our confirmation bias). If our first encounter is negative, even their seemingly good intentions will be questioned. This is despite there being no rational reason to think this way. Rather, Kahneman argues that these tendencies are a form of “exaggerated emotional coherence.”
 
Another relevant heuristic is what Kahneman dubs the “What you see is all there is” effect (WYSIATI). While logically human beings should not form opinions of others until they have enough information, people usually do not wait for all the data to come in to form such opinions. Rather, our desire for coherence and clarity drives us to shape perceptions based on the information available to us, regardless of how partial it may be.
 
Nicholas DiFonzo, a leading scholar of rumors, argues that there are two factors that make rumors as powerful as they are: human beings’ social tendencies, and, as outlined above, our desire to make sense of the world:
 
Why are rumors such a regular part of people’s experience? What is it about being human that sets the stage for rumor activity? The answers can be found in two fundamental features of human nature. First, people are social and relational entities. There is something especially “we” about our encounter with existence, even for the solitary loners among us. John Donne’s memorable poetic phrase “No man is an island” suggests this sentiment. Like most creatures, we seem to be designed for social interaction. We talk together, eat together, work together, we trade, barter, and bicker. A large part of what it means to be human is to communicate with one another. We also view ourselves in relation to other persons — a man may be a father, a friend, or a follower. As psychologist Susan T. Fiske put it, we are fundamentally social beings.
 
Second, humans have a deeply rooted motivation to make sense of the world. From ancient times men and women have been conceived as rational embodied entities; flesh-and-blood creatures in which reside the faculties of sensing, perceiving, thinking, deciding, believing and choosing. In other words, we are sensemaking beings. To make sense is to give meaning to our sensations, to put a context around them so that they gain significance and fit into an understanding that coheres. It means looking at the picture side rather than the tangled underside of a woven tapestry. To make sense is to put our experiences into perspective so that they can be understood, known about, navigated and predicted. Without the ability to make sense, our world would be “blooming, buzzing confusion,” as William James put it. Making sense of the world makes sense.
 
So, we are fundamentally social beings and we possess an irrepressible instinct to make sense of the world. Put these ideas together and we get shared sensemaking: we make sense of life together. Rumor is perhaps the quintessential shared sensemaking activity. It may indeed be the predominant means by which we make sense of the world together.[5]
 
Rabbi Feldman argues that the laws of lashon ha-ra can be better understood in light of these (and many other) insights from modern psychology. If, through negative gossip, we impart bias towards a person our listener has never met or formed an opinion of, the listener will now, subconsciously, cast everything the unfortunate subject of the gossip does in a negative light, even when there is no reason to do so. Furthermore, the listener will construct an entire narrative about the subject that conforms to the minimal information, now negative, that listener has about the subject. Thus, even if it the subject is guilty of some wrongdoing, the resulting picture created in the mind of the listener is unfairly and untruthfully negative. Similarly, as both psychologists and ethicists (Jewish and non-Jewish) have pointed out, when we do something questionable, we provide justification for our actions, as we know the backstory. We do not do the same for others. Thus, even if the information we convey is technically true, knowing that the listener is unlikely to search for context to explain what happened, we are leading the listener to believe something that is more negative than the unembellished facts would indicate.
 
Also, as noted above by the Talmud, rumors kill not only the subject, but the speaker and listener as well. As DiFonzo notes, part of what makes gossip so powerful is the social component. Perhaps this is why Chazal see it as so harmful — it unites people in unfair crimes against others in favor of social binding and coherence-making. 
 
These insights are particularly relevant in the age of social media, in which a compromising picture may be shared widely and irreversibly. Even when such a picture captures an actual event, the number of people it reaches almost guarantees that it will shape the first impressions of many future acquaintances, employers, or school admission boards, biasing them in ways that are unfair to the subject’s overall character.
 
With this brief background as to the nature and gravity of lashon ha-ra, we can return to explore the cases in which it may nevertheless be permitted.
 

[1] See Shabbat 33a-b and Rashi 33b, s.v. Peh gomer (first), as pointed out by the Sedei Chemed, Lashon Ha-ra. See also Chayei Adam 143. See, however, Sota 42a which distinguishes between the sinners who speak lashon ha-ra and those who lie, indicating that lashon ha-ra refers primarily to gossip rather than slander. This is used by the Chafetz Chayim to support his terminology.
[2] In many modern works, misconceptions about this terminology lead to mistakes in the understanding of classical texts.
[3] See Responsa Rivash #171 and Responsa Penei Yehoshua, EH #44. See, however, the Taz to Shulcḥan Arukh, YD 242:1, who argues that the comparisons should be taken literally.
[4] Benjamin Brown, “From Principles to Rules and from Musar to Halakhah: The Hafetz Hayim’s Rulings on Libel and Gossip,” Dinei Yisrael 25 (2008), 174-5. 
[5] Nicholas DiFonzo, The Watercooler Effect (Avery, 2008). This excerpt can be found at: http://thewatercoolereffect.com/excerpts/.

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